Ontario: Employment Standards Law Overhauled

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By Peter Menyasz

Ontario has overhauled its employment standards law to better protect workers. The changes in Bill 148, clearly an effort by Premier Kathleen Wynne’s Liberal Party government to gain support from the labor movement for what is expected to be a hard-fought provincial election in summer 2018, will increase employers’ compliance burden and costs, employment lawyers tell Bloomberg Law, by (among other things) expanding paid leave; offering equal pay rights tor part-time, temporary, casual, and seasonal workers doing the same work as full-time employees; and gradually raising the minimum wage to C$15 ($11.80) an hour.

Ontario’s Conservative Party, likely the strongest challenger in the 2018 election, hasn’t made promises to reverse the employment standards changes in Bill 148, but has committed to slowing the phase-in of the minimum wage. Its election platform, citing a TD Bank study suggesting the minimum wage rise would lead to the loss of 90,000 jobs, calls for a four-year transition, with C$0.25 ($0.20) increments starting Jan. 1, 2019.

“Our government should not be intentionally putting tens of thousands of good jobs at risk—it’s too fast, and it’s too soon,” the platform says.

‘Transformational' Change

The changes respond to the recommendations of the Changing Workplaces Review, the first-ever independent review of the province’s Employment Standards Act and Labour Relations Act, the provincial government said Nov. 22 when the legislation was passed in the provincial legislature. The bill subsequently received the rubber stamp of royal assent on Nov. 27.

“Ontario workers deserve fair wages they can live on, as well as safe and fair working conditions,” Labour Minister Kevin Flynn said in a statement. “Too many families struggle to get by on part-time or temporary work. Those working full-time can be living in poverty. This is unacceptable in Ontario. The Fair Workplaces, Better Jobs Act will help ensure everyone who works hard has the chance to reach their full potential and share in Ontario’s prosperity.”

The legislative amendments represent a “transformational” change in the province’s workplace legislation, drawing on broad support from labor and worker advocacy groups for its increased rights and protections, said Daniel Pugen, a partner with Toronto law firm Torkin Manes LLP., but employers will face significant additional burdens and costs.

“Employers should carefully study the changes, amend workplace policies, train management, and adopt strategies to contain costs and counter the likely increase in employee complaints and union activity,” Manes said.

Policy Review

Daryl Cukierman, a partner in the Toronto office of Blake, Cassels & Graydon LLP, agreed that employers need to fully review their workplace policies and practices, including scheduling and payroll, to prepare for the changes, and they should as well update offer letter or employment agreement templates if necessary.

“Employers will also want to consider any training that may be necessary to ensure that managers, supervisors, and other employee relations personnel are aware of—and in compliance with—the amendments once they come into force,” Cukierman said.

Employers who haven’t already reviewed their policies in anticipation of the changes will have to hurry, as the bulk of the amendments will take effect immediately or on Jan. 1, 2018, said Clifford J. Hart, a partner in the Toronto office of Borden Ladner Gervais LLP.

“Employers in unionized workplaces and employers facing the possibility of unionization may have particular cause for concern, as amendments to the Labour Relations Act will be coming into force five months earlier than previously anticipated,” Hart said in an analysis. “As the government now turns its attention to the regulations under the Employment Standards Act, employers can also expect further clarity in the coming months on those changes coming into force later than January 2018.”

‘Huge Victory'

Bill 148 is a “huge victory” because decent working conditions are a requirement for justice and fairness for workers, whether unionized or not, said Ontario Federation of Labour president Chris Buckley.

“The collective voice of millions demanded immediate action to modernize our labor and employment laws,” Buckley said in a statement. “That being said, the law needs to go further to better safeguard decent work for generations to come. It must reflect what these workers and so many others face every day, including low wages, no access to unions, and no job security.”

Canada’s largest union, Unifor, said the employment law changes will help millions of Ontario workers and commended the provincial government for creating a more just economy and fairer workplaces. The government has “raised the bar” in ensuring that decent work is the new normal for Ontario workers, and any political party that doesn’t support the changes won’t get Unifor members’ votes in June 2018, said Naureen Rizvi, the union’s Ontario regional director.

“Every single change in this law is the result of the hard work of thousands of trade unionists and advocates across Ontario who shared their hardship, their hopes, and their expectations for a brighter future,” Rizvi said in a statement. “Workers decided for themselves that they can and should expect better. We mobilized, and we won.”

The United Steelworkers Canada was more qualified in its praise. While welcoming Bill 148 for providing a fairer path for some employees to choose union membership, stronger employment standards, and a higher minimum wage, the union criticized the bill for not being the comprehensive overhaul Ontario’s labor laws need, particularly in its treatment of collective bargaining.

“We’ll keep pushing for more effective and durable solutions like broader-based bargaining,” Marty Warren, the union’s Ontario director, said in a statement. “We hope that this government will soon set up plans to consider this, and we expect the opposition parties to take a stand as well.”

The Steelworkers also supported amendments proposed by the socialist New Democratic Party that included three weeks of paid vacation after the first year of employment and card-check certification rights for all workers.

“We are disappointed that those amendments did not find support from the government,” Warren said. “We’ll keep employee rights on the front burner in next spring’s provincial election campaign.”

Four Stages

The changes in Bill 148 are scheduled to be implemented in four main stages, the highlights of which follow:

  •  Effective Dec. 3, 2017, parental leave was extended to 61 from 35 weeks during pregnancy and to 61 from 37 weeks in other circumstances, matching changes to federal unemployment insurance legislation; and a new critical illness benefit provides leave of up to 17 weeks to care for adult family members.
  •  Effective Jan. 1, 2018, the paid vacation entitlement is increased to three weeks and the leave benefit to 6 percent of wages for workers with five years’ service; family medical leave is increased to 28 weeks in a 52-week period; and a new five-day leave entitlement for domestic and sexual violence is added and a new two-day entitlement for personal emergencies.
  •  Also effective Jan. 1, various new collective bargaining rules take effect, including a new right to card-based certification for certain employees, mandatory mediation of first collective agreements, and new employment protections for striking employees.

To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

For more information on Ontario HR law and regulation, see the Ontario primer.

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