On October 23, 2018, the PC government introduced Bill 47, the Making Ontario Open for Business Act (“Bill 47”). If passed, Bill 47 will repeal a number of changes made by the Liberal government’s Fair Workplaces, Better Jobs Act (“Bill 148”). While Bill 148 provided some much-needed protection for Ontario’s most vulnerable workers, many aspects of Bill 148 posed significant challenges for charities, not-for-profit government funded agencies and people with disabilities receiving individualized/direct supports and their families. For the most part, Bill 47 addresses those challenges by simply reverting back to the legislation that existed before Bill 148 was passed.
We’ve outlined some of the important changes for you below and we’ll be discussing the implications further in a WEBINAR NEXT WEEK – be sure to sign up here.
What’s in or stays the same?
- Sexual and domestic violence leave
- Vacation pay increase for employees with 5+ years service
- New and longer unpaid leaves of absence
- The three-hour rule
What’s out or repealed?
- The $15.00 minimum wage
- Paid and unpaid personal emergency leave
- Equal pay for equal work for part-time, temporary, casual workers and assignment employees
- On-call pay, shift cancellation pay, minimum notice for call-ins, and requests for shift or location changes
- The new public holiday pay formula
- The employer’s burden of proving they haven’t improperly classified an employee as an independent contractor, volunteer etc.
- Elimination of Sheltered Work exemption (for the time being)
- Record keeping obligations related to these changes
- Card-based certification in some sectors
- Union access to employee lists with only 20% support
- Automatic remedial certification
- Successor rights to contract tendering for publicly-funded services
- OLRB power to review and consolidate bargaining units
- New unpaid leaves to replace Personal Emergency Leave:
- New unpaid bereavement leave (2 days)
- New personal Illness leave (3 days)
- New family responsibilities leave (3 days)
- OLRB empowered to review the structure of bargaining units in certain circumstances
Below is our brief analysis of the implications, generally positive, for charities, not-for-profits and other employers in the social services, health and developmental services sectors:
CHANGES TO THE EMPLOYMENT STANDARDS ACT, 2000
1. Personal Emergency Leave
Bill 148 expanded entitlements to Personal Emergency Leave (“PEL”) to all employees under the Employment Standards Act, 2000 (the ” ESA “), regardless of the size of the employer, and converted 2 of the existing 10 days to paid days of leave. This has resulted in significant cost increases for many employers and families in the DS sector. The change also left many unionized agencies confused about whether the benefits they offered to their employees were “greater rights or benefits” within the meaning of the ESA or whether their employees would be gaining even more leave entitlements than those already provided under generous collective agreements or employment policies. A number of recent arbitration decisions have dealt with this issue, but rather than providing certainty for employers, these decisions have further muddied the waters. See our blog for a summary of these recent decisions.Bill 47 scraps PEL altogether and creates three new types of unpaid leave, for which employers can require medical evidence where reasonable in the circumstances. Specifically, Bill 47 replaces the previous 10 days of PEL with:
- 3 days for personal illness, injury or medical emergency;
- 2 days for bereavement; and
- 3 days for family responsibilities.
Even more importantly, Bill 47 specifically states that where an employer provides any leave that corresponds to the purposes covered by these leaves in a contract (which includes a collective agreement), then these new leaves are included in and not in addition to any contractual leaves. This clause singlehandedly addresses the biggest challenge posed by Bill 148 PEL provisions and will likely prevent disputes and grievances on this issue moving forward. Finally, it’s important to note that unlike under Bill 148, under this new legislation employers will be permitted to request a medical certificate from a qualified medical practitioner when an employee uses the new leaves replacing PEL.
2. Equal Pay for Equal Work
Bill 47 will eliminate the requirement to pay employees equal pay regardless of employment status (part-time, casual, and temporary). This change will alleviate significant cost pressures many social service organizations faced from unions and temporary help agency workers claiming entitlements under the new equal pay for equal work provisions, as well as costly obligations to respond to demands for equal pay in contexts where the rules arguably did not apply. We would not be surprised, however, to see employees or unions scrambling to make equal pay for equal work challenges before Bill 47 comes into effect.
3. Sheltered Workshops
Bill 47 will delay the repeal of the exclusion from the ESA of individuals who perform work in a simulated job or working environment. The sheltered workshop exemption was set to be repealed on January 1, 2019 – it will now be repealed “on proclamation”. This should buy some time (the amount unknown for now) for agencies supporting people with disabilities to complete transition plans and restructuring of day, training and employment support programs. For many agencies the transition process is well underway as a result of changes in Ministry policies and human rights case law. It’s important to note that even if the sheltered work exemption remains in place indefinitely, agencies and others offering sheltered work or jobs paying less than the minimum wage will continue to be at risk from a human rights perspective. The reality is that the Human Rights Code trumps the ESA and that is generally the bigger source of liability in any event.
Bill 47 will repeal the scheduling provisions that were set to come into force on January 1, 2019. These include:
- Right to Request Schedule and Location Changes: Should Bill 47 pass, employees will not gain the right to request changes to schedule or work location after being employed for at least 3 months.
- On-Call Pay: Bill 47 will repeal an employee’s entitlement to a minimum of 3 hours’ pay where the employee is on-call and available to work, but the employee is not actually called-in or the employee is required to work for less than 3 hours. This would have applied to managers and supervisors as well, a very costly change for many organizations providing 24-7 service.
- Right to Refuse Shifts on Short Notice: Employees will not gain the right to refuse demands to work, or to be on-call, on days that the employee is not scheduled to work or be on-call with less than 96 hours’ notice. This posed significant concerns for employers with casual, relief, and supply staff.
- Shift Cancellation Pay: Employees will not be entitled to 3 hours’ pay at their regular rate where a scheduled or on-call shift is cancelled within 48 hours before the shift was to begin. Once again, this provision had posed serious concerns for employers whose staffing needs could change unexpectedly based on the needs of the people they support and other factors outside their control.
- Record-keeping: New record-keeping requirements relating to the scheduling provisions will not come into effect.
The proposed repeals should provide some much-needed relief to agencies and families that rely on employees to be on-call or work flexible schedules.
5. Public Holiday Pay Formula
Bill 47 repeals the new averaging public holiday pay formula prescribed by Bill 148 and return to the previous prorating public holiday pay formula.” Note, that as of July 1, 2018, in response to widespread criticism of the public holiday pay formula introduced under Bill 148, the Liberal government had temporarily reverted back to the formula in effect before Bill 148. Bill 47 will simply make the change back to the old formula permanent.
6. Employee Misclassification
Bill 47 will not eliminate the Bill 148 prohibition on misclassifying workers. This element of Bill 148 shone a light on unreported work arrangements that are somewhat common when direct funding is used to engage support workers in the health, disability and developmental service sectors. Bill 47 will, however, reverse the onus of proving employment status and put it back on workers. This does not eliminate the risk that families and agencies who pay workers as contractors face if those workers are mischaracterized as independent contractors. You can learn more about this issue here .
7. Minimum Wage
To no one’s surprise, the $15.00 minimum wage scheduled to come into effect January 1, 2019 has been eliminated. While Bill 47 will not roll back the increase to the minimum wage that came into effect this past January, it will prevent any further minimum wage increases for 33 months. Annual increases to minimum wage, which are tied to inflation, will restart in 2020.
8. Three-Hour Rule
Bill 148 introduced the “three hour rule”, which provides that an employee is entitled to 3 hours’ pay where the employee reports to work, but works less than 3 hours despite being available to work longer and despite normally working 3 or more hours each shift. While Bill 47 leaves this rule intact, it moves it to a new section of the ESA , i.e., Part VII.1.
CHANGES TO THE LABOUR RELATIONS ACT, 1995
Bill 47 will repeal and amend a number of provisions in the Labour Relations Act, 1995 (the “LRA”), including provisions dealing with card-based certification, employee lists and remedial certification. It is important for non-union agencies in the DS sector to be aware of these changes as they have significant consequences in the event that the union certification process is initiated.
- Card-Based Certification. Bill 47 will repeal the rules that forced card-based certification on workers in home care, building services and temporary help agencies. Instead, these workers will be allowed to vote through a secret ballot.
- Employee Lists. Bill 47 will also repeal the rules that forced employers to hand over their employees’ personal information to a union, even where only 20% of the employees showed interest in joining a union.
- Remedial Certification. Bill 47 will reinstate the pre-Bill 148 test and preconditions for the Ontario Labour Relations Board (the “OLRB”) to certify a union as a remedy for employer misconduct. Whereas the OLRB must certify the union where employer misconduct is established under the current rules, Bill 47 will restore discretion to the OLRB to determine whether a vote or new vote would be a sufficient remedy for employer misconduct, or whether the only sufficient remedy would be to certify the union.
- Successor Rights. Bill 47 will remove successor rights to contract tendering for publicly-funded services by repealing certain regulation-making authority.
- Power to Restructure Bargaining Units. Bill 47 will introduce significant changes to the OLRB’s powers in relation to the structure of bargaining units. The Act will repeal the power of the OLRB to review and consolidate newly certified bargaining units with existing units, but will empower the OLRB to review the structure of bargaining units where the existing units are no longer appropriate for collective bargaining.
- Fines and Penalties. The maximum amount of a fine upon conviction for an offence is lowered from $5000 to $2000 for individuals and from $100,000 to $25,000 for corporations.
While the new legislation offers welcome relief to not-for-profit government funded organizations and families that are not adequately funded to meet the significant costs associated with Bill 148, the wholesale repeal may have thrown the baby out with the bathwater. Indeed, many of the concerns with Bill 148 could have been addressed with a scalpel (regulatory exemptions, a tweak here or there), rather than a sledgehammer. Sadly, minimum wage workers, particularly those with disabilities who disproportionately occupy roles that do not have paid leave or other worker protections, stand to lose most as a result of this new legislation.
We will provide further updates and analysis as this situation develops. In the meantime, if you have any questions or wish to discuss the implications for your organization please contact any member of our labour team here . You can also access further information on Bill 47 here , or get the full text of the legislation here .