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Date:
2018.10.23

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THE EMPLOYERS' EDGE

BREAKING NEWS: Making Ontario Open for Business Act

 

The Ford government’s newly proposed Making Ontario Open for Business Act would repeal a substantial number of amendments made by Bill 148, the Fair Workplaces, Better Jobs Act, 2017. The repeal of Bill 148 was supported by employers province-wide, the Ontario Chamber of Commerce, and us here at CCPartners.

The proposed legislation is good news for employers as many of the most onerous provisions of Bill 148 are slated for repeal, including the Personal Emergency Leave reforms, minimum wage increases, and the scheduling provisions set to come into force on January 1, 2019. 

The legislation is also set to modernize Ontario’s apprenticeship system, in part, by winding down the Ontario College of Trades. 

It is important for employers to ensure that they continue to comply with existing legislation, including the requirements of Bill 148, until the newly proposed legislation comes into force.

If the legislation passes, the most notable amendments to the Employment Standards Act, 2000 and the Labour Relations Act that would be repealed include the following:

Employment Standards Act, 2000 (ESA)

Minimum Wage

Under the proposed legislation, the minimum wage would remain at $14 per hour until 2020, at which point annual increases tied to inflation would restart.

Scheduling

A significant victory for employers is the repeal of the scheduling provisions that were set to come into force on January 1, 2019, including:

  • The right to request changes to schedule or work location after an employee has been employed for at least three months;
  • Minimum of three hours' pay for being on-call if the employee is available to work but is not called in to work, or works less than three hours;
  • The right to refuse requests or demands to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours' notice;
  • Three hours' pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin; and,
  • The record-keeping requirements that relate to the above-noted scheduling provisions.

Three Hour Rule

Under the Making Ontario Open for Business Act, where an employee who regularly works more than three hours a day is required to report to work, but works less than three hours, the employee would be paid for three hours.

Personal Emergency Leave

Another noteworthy change is the repeal of the Personal Emergency Leave reforms. Instead, employees will be provided with the right to take up to three days for personal illness, two for bereavement and three for family responsibilities.

The Act will also repeal the provision that prohibits employers from requiring that employees provide medical notes from qualified health practitioner in order to establish their entitlement to leave.

Some changes introduced by Bill 148, however, are here to stay. The proposed legislation will preserve the entitlement to three weeks of paid vacation after five years of service. The current provisions providing paid leave for domestic and sexual violence established by Bill 148 will also be maintained.

Public Holiday Pay

The averaging public holiday pay formula prescribed by Bill 148 will be repealed and the previous prorating public holiday pay formula will be restored.

Misclassification

Under Bill 148, employers had a reverse onus to prove that an individual was not an employee in the event that there was a dispute – for example, this onus would apply if an independent contractor attempted to claim employee status upon termination. This onerous requirement is set for repeal.

Equal Pay for Equal Work

The legislation will repeal the requirement for equal pay for equal work on the basis of employment status and assignment employee status.

This is great news for employees who have part-time, causal, and temporary employees or use labour supply agencies for temporary postings. Under Bill 148, these employees are currently entitled to pay equal to full-time employees.

Sheltered Workshops

Under Bill 148, the exclusion from the Employment Standards Act, 2000 of individuals who perform work in a simulated job or working environment for the primary purpose of rehabilitation was set to be repealed on January 1, 2019. The repeal has now been delayed and will instead come into force on proclamation.

Penalties for Contravention

Finally, under the Making Ontario Open for Business Act the maximum penalties for contravention of the Employment Standards Act, 2000 would be decreased from $350/$700/$1500 to $250/$500/$1000, respectively.

Labour Relations Act

Card-based Certification

Workers in home care, building services, and temporary help agencies will return to the secret ballot method of certification rather than card-based certification.

Employee Lists

Under the new legislation, employers will not be required to disclose employee information to a union if 20% of workers show an interest in membership. More details to follow as to when this disclosure will be required.

Remedial Certification

The preconditions for remedial certification that existed prior to Bill 148 will be reinstated. The Ontario Labour Relations Board will further be required to determine a vote or new vote would be a sufficient remedy rather than remedial certification.

Successor Rights

The Making Ontario Open for Business Act will repeal the regulation-making authority to expand successor rights to contract tendering for publically funded services.

Structure of Bargaining Units

The Ontario Labour Relations Board is set to lose its power to review and consolidate newly certified bargaining units with existing bargaining units; however, it will be empowered to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.

Return-to-work Rights

The legislation will return the six month limitation on an employee's right to reinstatement following the start of a strike or lock-out.

First Collective Agreement Mediation and Mediation-Arbitration

The first collective agreement mediation and mediation-arbitration provisions and provisions for educational support under Bill 148 will be repealed and the Bill 148 conditions for access to first agreement arbitration will be restored.

Fines

Maximum fines for offences under the Labour Relations Act will also be decreased from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.

Employers should be sure to review existing policies in anticipation of the repeal of Bill 148. The lawyers at CCPartners can assist you in preparing for the changes likely to be implemented and navigating the legislation. Of course, CCPartners will continue to update you on any developments with respect to the proposed legislation as they become available.

Click here to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.


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