Employment Standards Act – Update

The Province of Ontario enacted Bill 148, being an Act to amend the Employment Standards Act, 2000, the Labour Relations Act, 1995, and the Occupational Health and Safety Act on November 22, 2017.

This Bill substantively changes many aspects of employment law and should be required reading for all employers in the Province of Ontario.

A copy of the Explanatory Notes accompanying the passage of Bill 148 into law can be found below:

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 148 and does not form part of the law.  Bill 148 has been enacted as Chapter 22 of the Statutes of Ontario, 2017.

SCHEDULE 1

EMPLOYMENT STANDARDS ACT, 2000

The Schedule makes various amendments to the Employment Standards Act, 2000.

The Act is amended to bind the Crown, subject to an exception in section 4 of the Act (Separate persons treated as one employer).

New section 5.1 prohibits employers from treating, for the purposes of the Act, a person who is their employee as if the person were not an employee under the Act.

New Part VII.1 (Requests for Changes to Schedule or Work Location) adds an ability for employees to request changes to their schedule or work location.  Employers who receive these requests must discuss them with the employee and either grant them or provide reasons for a denial.

New Part VII.2 (Scheduling) sets out new scheduling provisions.  These include a minimum of three hours’ pay for shifts that are under three hours, minimum pay for being on call, a right to refuse requests or demands to work on a day that an employee is not schedule to work with insufficient notice and entitlement to pay for three hours of work in the event of cancellation with insufficient notice.  The existing power to make regulations requiring employers to pay a minimum prescribed amount of employees who work fewer than three hours in a day is repealed.

Part VIII (Overtime Pay) is amended to establish a rule for overtime pay for employees who have two or more regular rates for work performed for the same employer.

Section 23.1 (Determination of minimum wage) is amended to increase the minimum wage on January 1, 2018.  The minimum wage increases again on January 1, 2019 and is subject to an annual inflation adjustment on October 1 of every year starting in 2019.  The minimum wage for employees who serve liquor now applies only if the employee also regularly receives tips or other gratuities from their work.

Part X (Public Holidays) is amended.  The rules for the calculation of public holiday pay under section 24 are amended to be based on the number of days actually worked in the pay period immediately preceding the public holiday.  Sections 27, 28, 29 and 30 are amended to require an employer to provide an employee with a written statement that sets out certain information when a day is substituted for a public holiday.

Part XI (Vacation with Pay) is amended to provide a minimum of three weeks vacation entitlement to employees whose period of employment is five years or more, beginning after the end of the employee’s vacation entitlement year.  Related amendments are made throughout the Part.

Part XII (Equal Pay for Equal Work) is amended to add four new provisions.  A definition is added that provides that “substantially the same” means “substantially the same but not necessarily identical”.  The Part is amended to provide for an entitlement for equal pay from an employer regardless of a difference in employment status and an entitlement for equal pay for assignment employees of a temporary help agency who perform substantially the same work as an employee of the temporary help agency’s client.  Finally, new section 42.3 requires that the Minister cause a review of the new entitlements.  Related amendments are made to the reprisal provisions in the Act to prohibit reprisals against employees who make inquiries about rates of pay or who disclose their rate of pay for the purpose of determining or assisting in determining whether an employer is complying with Part XII.

Part XIV (Leaves of Absence) is amended.  The entitlement to six weeks pregnancy leave in certain circumstances is increased to 12 weeks.  Section 48 is amended to provide that a parental leave may begin no later than 78 weeks after the child is born or comes into the employee’s custody, care and control for the first time.  The entitlement to parental leave is increased from 35 weeks to 61 weeks for employees who take pregnancy leave, and from 37 weeks to 63 weeks otherwise.  The entitlement to family medical leave is increased from up to eight weeks to up to 28 weeks.  Currently, an employee may take leave to provide care and support to their critically ill child; new section 49.4 provides that an employee is entitled to take leave to provide care and support to any critically ill family member.  New section 49.5 establishes an entitlement to up to 104 weeks of unpaid leave if a child of the employee dies for any reason, instead of the current entitlement to leave only in the event of a crime-related child death.  New section 49.6 retains the entitlement to crime-related child disappearances leave but increases the entitlement from up to 52 weeks to up to 104 weeks.

New section 49.7 (Domestic of Sexual Violence Leave) provides that an employee who has been employed by an employer for at least 13 consecutive weeks is entitled to up to 10 days and up to 15 weeks of leave if the employee or a child of the employee experiences domestic or sexual violence or the threat of domestic or sexual violence.  The first five days of leave are to be paid.  The leave must be taken for any of the purposes listed in the section.

Section 50 (Personal Emergency Leave) is amended to provide personal emergency leave to all employees, not just employees of employers who regularly employ 50 or more employees.  In addition,m two days of personal emergency leave are now required to be paid days, if the employee has been employed for one week or longer.  The paid days have to be taken before any unpaid days of personal emergency leave in a calendar year.  Employers retain the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner.

Part XVIII.1 (Temporary Help Agencies) is amended to add a new section 74.10.1.  This section requires temporary help agencies to provide an assignment employee with one week’s written notice or pay in lieu if an assignment that was estimated to last for three months or more is terminated before the end of its estimated term unless another assignment lasting at least one week is offered to the employee.

Subsection 88 (5) (Interest) is amended to allow the Director to calculate rates of interest for amounts owing under different provisions of the Act or the regulations and for money held by the Director in trust.

New sections 88.2 and 88.3 allow the Director to provide recognition of employers that meet prescribed criteria.

The requirement in section 96.1 (Steps required before complaint assigned) for a complainant to take steps specified by the Director before the Director assigns a complaint for investigation is repealed.

Subsection 103 (1) (Order to pay wages) is amended to allow employment standards officers to order employers to pay wages directly to employees.  Similar amendments are made to other order-making powers.

Section 113 (Notice of contravention) is amended to provide that the penalties for contraventions shall be determined in accordance with the regulations, which permit the establishment of a penalty range or of different penalties that apply to individuals and to corporations.  Employment standards officers are given the discretion to determine a penalty within the range in accordance with the prescribed criteria, if any.  New provisions are added to authorize the Director to publish information related to a deemed contravention of the Act following the issuance of a notice of contravention.

New provisions are added to Part XXIV (Collection) to allow the Director to accept security for amounts owing under the Act, issue warrants to collect money pursuant to an order under the act or register a lien respecting money owed pursuant to an order under the Act.  These powers may be delegated to collectors.  The Director and the collectors may disclose information to each other for the purpose of collecting an amount payable under the Act.

Related consequential amendments are made to the Employment Protection for Foreign Nationals Act, 2009, and to the Occupational Health and Safety Act.

SCHEDULE 2

LABOUR RELATIONS ACT

The Schedule makes various amendments to the Labour Relations Act, 1995.

Section 6.1 is added to the Act.  Under this section, in certain circumstances, a trade union may apply to the Ontario Labour Relations Board for an order directing an employer to provide the trade union with a list of employees of the employer.  The section sets out the process for applying, obtaining and using such a list and establishes the rules to be followed by the Board in determining whether to make such an order.

The rules that govern when the Board will certify a trade union where there has been a contravention of the Act by an employer in section 11 of the Act are amended.

Section 15.1 is added to the Act.  Under that section, in certain circumstances, the Board may review the structure of bargaining units and make orders in respect of the structure of bargaining units, and the parties may by agreement and with the consent of the Board make changes to the structure of bargaining units.

New section 15.2 provides for an alternate process for the certification of trade unions as the bargaining agents of employees of specified industry employers.  The specified industries are the building services industry, the home care and community services industry, and the temporary help agency industry.  The trade union may elect to have its application for certification dealt with under section 15.2 (application for certification without a vote) rather than under section 8 (representation vote).

Currently, section 43 provides for first agreement arbitration where parties are unable to effect a first collective agreement.  The section is re-enacted to provide for first collective agreement mediation.  Section 43.1 is also added to the Act and provides for first collective agreement mediation-arbitration where the first collective agreement mediation under section 43 does not result in the parties entering into a collective agreement.

Sections 69.1 and 69.2 are added to the Act.  Those sections set out rules governing how section 69 (successor rights) apply in respect of certain service providers.

Amendments are made to section 80 of the Act, which governs the reinstatement of employees.  New provisions provide for the reinstatement of employees at the conclusion of a lawful strike or lock-out and set out the rules that govern reinstatement.

Sections 12.1 and 80.1 are added to the Act.  Those sections provide that, during certain bargaining periods, an employer may not discharge or discipline an employee in an affected bargaining unit without just cause.

Section 98, which governs the powers of the Board to make interim orders, is amended.

Technical and consequential amendments are also made.

SCHEDULE 3

OCCUPATIONAL HEALTH AND SAFETY ACT

A new section is added to the Occupational Health and Safety Act that provides that an employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely.  An exception from this prohibition is made for employers of performers in the entertainment and advertising industry.

For any detailed question or issue, reference should be directed to the legislation as amended.