Posted: 5 October 2018
It seems that every day there is a new piece of labour news to keep those of us in human services hopping. This last week was no exception with the PC “Government For the People” announcing their intentions in relation to employment and labour standards legislation in Ontario, as well as changes to WSIB.
On September 26, the WSIB announced the elimination of the WSIB’s $14 billion unfunded liability, which until recently plagued employers paying WSIB premiums. This unfunded liability was partially to blame for the sky-high premiums employers have paid over the past two decades. The WSIB announced that there would be a corresponding average premium rate decrease of almost 30% for employers – good news indeed. Even better is the possibility that, with the elimination of the WSIB’s unfunded liability, the WSIB departure premium will be eliminated for schedule-1 by application employers (i.e. most agencies in the DS Sector). Agencies that had previously sought to leave WSIB due to its inefficiency, procedural challenges, and exorbitant premiums, were hit with departure premiums in the hundreds of thousands of dollars, representing their portion of the unfunded liability. If the unfunded liability is gone, presumably the departure premium will be too, allowing these agencies to walk away and take out WSIB alternative insurance at a fraction of the cost. With “austerity” budgets looming, these cost savings could make a real difference to many underfunded agencies.
On October 2, Premier Ford let it slip that “ we are getting rid of Bill 148”. As we’ve spoken about previously, the Fair Workplaces Better Jobs Act, better known as “Bill 148” was designed to protect vulnerable workers by creating more fulltime jobs, eliminating sheltered work, and providing more generous working conditions for all workers.
Unfortunately, the Bill also raised significant challenges for not-for-profit government funded agencies and families supporting loved ones with disabilities. Stakeholders across the province have been struggling to address these challenges over the last year through collective bargaining, restructuring support arrangements, policy changes, and transitioning supported work and training programs. Ford’s announcement means that agencies may want to think twice before embedding any Bill 148 related changes in their collective agreements, agreeing to inflated third party staffing/temporary help agency rates, or making commitments on rate increases or other employment terms.
At this point no legislation has been introduced to repeal Bill 148, nor is it clear whether any new legislation would be proposed in its place. In the meantime support arrangements must continue. With that in mind, there are a few points we can share on these issues that will continue to apply, regardless of whether Bill 148 remains the law of the land or not:
Take a Minimalist Approach to Collective Bargaining
For those agencies lucky enough to find themselves at the bargaining table in these tumultuous times, consider a minimalist approach to collective bargaining. By that we mean avoid incorporating legislative wording in your collective agreement, including formulas for calculating public holiday pay, personal emergency leave, and other entitlements. As a rule at the bargaining table, when advising clients we tend to recommend that agencies commit to follow the law at a high level (ex. we will provide public holiday pay calculated in accordance with applicable employment standards legislation) as opposed to including all of the finer points of the law in the agreement (ex. public holiday pay shall be calculated based on the previous four weeks wages divided by 20).
Taking an overly specific approach can result in an employer being stuck providing a significantly greater benefit than desired if and when the law changes. For instance, when Bill 148 was first introduced the formula for calculating public holiday pay was modified making it much costlier for part-time and casual employees. Unfortunately, some employers incorporated that formula into their collective agreements in the earlier half of the year, before the Liberal government decided to revert back to the old public holiday formula. Those employers are now stuck with this formula until they go back to the bargaining table when their collective agreements expire.
Employers may also wish to consider being explicit when it comes to negotiated benefits that exceed the minimums prescribed in the Employment Standards Act. Specifically, when negotiating additional sick leave, personal days or float days, consider expressly stating that these benefits are inclusive of statutory entitlements such as personal emergency leave. An employer can certainly argue collective agreement terms are a greater right or benefit without this express language, however, being explicit about the nature of entitlements and what they include will help to avoid a scenario where a union threatens and brings grievances claiming both statutory entitlements and negotiated benefits.
Structuring Private Support Arrangements
Many families and agencies may be thinking that if Bill 148 is repealed private support arrangements structured as “independent contractor” or “under the table” relationships can continue. As we have said from the get go, Bill 148 didn’t significantly change the law in this respect, it just served as a mechanism for bringing existing law and the risks of mischaracterizing workers to the attention of the public and increased scrutiny on independent contractor arrangements. Even if Bill 148 is repealed, it will continue to be a risk for a family or an agency to engage a worker as a contractor, when they are actually an employee. Doing so comes with potential exposure to claims to the Ministry of Labour, Canada Revenue Agency, the Workplace Safety and Insurance Board and civil proceedings.
There are situations where a worker will legitimately be a self-employed independent contractor, but it is important for a family engaging a support worker to turn their minds to the issue and understand what they are getting themselves into before deciding how to characterize their worker. Whatever the status of a private support worker, families are well advised to protect themselves through appropriate contracts, insurance and practices. For more information on this issue check out our blog and stay tuned for further free resources.
Sheltered Work and Training Programs
Many families and agencies may be thinking that if Bill 148 is repealed agencies will have carte blanche to continue operating sheltered work programs and provide long term “trainee” experiences. While it is true that Bill 148 would have eliminated the exemption that allowed agencies to operate these programs in the past, the fact is that the government had put agencies on the path to winding up sheltered work programs as early as 2015, long before Bill 148 came along. The push for transition away from sheltered work has its roots in human rights law, pressure from self-advocates and families in the community, as well as the worldwide progressive movement towards more inclusive opportunities for people to participate in their communities, whether it be through social/recreational activities, volunteering or paid employment.
While the Ford Government may choose to repeal Bill 148, thereby giving tacit approval to the continuation of sheltered work, this will not change the human rights law, which poses a clear risk for agencies to continue with these types of programs. Nor will it be viewed favourably by many of the people and families that are opposed to segregated support arrangements that they view as devaluing people with disabilities and what they have to offer society. Most agencies were motivated to move away from sheltered work long before Bill 148 forced them to do so and it would be surprising if many agencies chose to step back into what is always going to be a risky business. We’ve worked with people, families and agencies across the province on this issue over the past four years and we are pleased to see that, despite their initial hesitancy, people with disabilities are now reaping significant rewards and a greater sense of belonging having left sheltered work behind. We would urge the Government to invest in inclusive community supports and meaningful training opportunities rather than moving backwards to outdated models of support.
We will be keeping a close eye on these developing issues so stay tuned for further details and contact any member of our team if you have any questions or require assistance.