Hit Rewind: Ford Government Reverses Bill 148 Changes to Ontario Employment Laws

On October 23, 2018 the Ford government presented Bill 47, the Making Ontario Open for Business Act. Bill 47 is set to repeal a large portion of Bill 148, the Fair Workplaces, Better Jobs Act, which was passed into law by the previous provincial government just 11 months ago.

The following article highlights some of the changes set out in Bill 47. If you are looking for advice on how the changes in Bill 47 may specifically apply to you or your business, however, please contact our firm directly.

As it currently stands, Bill 47 will modify the existing Employment Standards Act, 2000 (“ESA”) in the following ways:

• Minimum wage: Minimum wage will remain at $14.00/hour until at least October 2020, with the proposed increase to $15.00 as of January 1, 2019 being scrapped. Instead, any future increases will be tied to inflation.

• Personal emergency leave: This is a major modification where the current personal emergency leave provisions (which included 2 paid days) will be repealed. In its place will be three new types of unpaid leave - up to three days for personal illness, two days for bereavement and three days for family responsibilities.

• Equal work for equal pay: Employers will no longer be required to pay part-time and casual staff the same rate as full-time workers doing the same work. The requirement for equal pay on the basis of sex, however, shall remain in effect.

• Medical notes: Employers will be allowed to request a medical note from a qualified health practitioner to establish an employee’s entitlement to the new three-day sick leave entitlement.

• Public holiday pay: The formula for working out public holiday pay will be returned to the pre-Bill 148 pay formula.

• “Three-hour rule”: as of January 1, 2019, employees who regularly work more than three hours per day, and are required to report to work but then work less than three hours that day (despite being available to work longer), must be paid the greater of:

  • 3 hours’ pay at the employee’s regular rate; or

  • The sum of the amount that the employee earned while working plus the remaining time calculated at the employee’s regular rate.

• Independent contractor vs. employee: The reverse onus established by Bill 148 for employers to prove, when challenged, that an individual is an employee rather than an independent contractor will no longer apply.

• Fines: The maximum financial penalty for a violation of the ESA will be reduced from $350/$700/$1500 to $250/$500/$1000 respectively.

Despite the preceding, some Bill 148 changes will remain in place. Employees will continue to be entitled to three weeks’ paid vacation upon reaching five years of service with their employer. In addition, the new domestic and sexual violence provisions will remain part of the ESA, including the employer obligation to provide paid leave.

In addition, Bill 47 will also make the following amendments to the Labour Relations Act:

• Card-based certification: Card-based certification for workers in home care, building services, and temporary help agencies will be repealed. Workers in these industries will instead be entitled to vote via secret ballot.

• Remedial certification: Bill 47 will reinstate the pre-Bill 148 test and preconditions for remedial certification as a remedy for employer misconduct.

• Employee Lists: Employers will no longer be required to provide an employee list to unions who are able to establish 20% support for a proposed bargaining unit among relevant workers.

• Bargaining unit structure: The Ontario Labour Relations Board (“OLRB”) will no longer have the authority to review and consolidate newly-certified bargaining units with existing bargaining units. Rather, the OLRB will have the power to review the structure of bargaining units when the existing bargaining unit is no longer appropriate.

While Bill 47 has yet to come into force, it is likely to receive Royal Assent and be in effect as of January 1, 2019 (assuming no delays in the legislative process). As such, Ontario employers and employees should be aware of its implications and ensure that their day-to-day operations, policies and processes remain compliant.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca