Ontario Government Moves to Roll Back Bill 148 with the Making Ontario Open for Business Act

On October 23, 2018, the Government of Ontario announced that it will seek to pass the Making Ontario Open for Business Act, legislation designed to roll back many of the changes made to the Employment Standards Act, 2000 and to the Labour Relations Act, 1995, which were introduced by the Fair Workplaces Better Jobs Act (“Bill 148”) under the previous government.

If passed, the new Act will change the following elements of the Employment Standards Act (“ESA”):

1. The minimum wage will remain at $14.00/hour on January 1, 2019 and will continue for 33 months until increases tied to inflation resume in 2020.
2. Scheduling changes intended to come into force on January 1, 2019 will be repealed, meaning that:
   1. employees will not have the right to request schedule and work location changes after three months of employment;
   2. employees who are on-call and called in for less than three hours or who are on-call but not called in will not be eligible for a minimum of three hours’ pay;
   3. employees who have a shift (or on-call shift) cancelled with less than 48 hours’ notice will not be eligible for three hours’ pay;
   4. employees who are scheduled to work a shift with less than 96 hours of notice will not be entitled to refuse the shift; and
   5. employers’ record keeping obligations are returned to pre-Bill 148 requirements.
3. The Personal Emergency Leave provisions are being repealed and replaced by:
   1. three personal illness days*;
   2. two bereavement days*; and
   3. three family responsibility days*.
      *While the Government did not specify whether these leaves would be paid or unpaid, it is being reported by multiple sources that they will be unpaid.
4. Employers will be permitted to request evidence of eligibility for the leave taken, which is reasonable to the leave taken and the circumstances surrounding it. The prohibition on requesting doctor’s notes will be repealed.
5. The reverse onus on employers in misclassifying employees as independent contractors will be repealed.
6. The formula for calculating public holiday pay will be returned to pre-Bill 148 methodology. (Note that this was actually carried out in May by the Liberal government).
7. The equal pay for equal work provisions based on employment status (i.e. part-time, casual, and temporary) and based on temporary help agency employment status will be repealed.
8. The penalties for contravention of the ESA will all be returned to pre-Bill 148 levels.

Unchanged in the ESA by the new Act are:

1. Employees’ eligibility for three weeks’ vacation after five years of employment.
2. Existence of and eligibility for domestic abuse and sexual violence leave.
3. Equal pay for equal work based on gender. (Note that this provision pre-dated Bill 148).

The new Act also proposes to make substantial changes to the Labour Relations Act, including:

1. Repealing card-based certification for workers in home care, building services, and temporary help agencies, and instituting instead a secret ballot system.
2. Repealing the employer’s obligation to hand over employee contact information once a union establishes 20% support for certification.
3. Repealing Bill 148 changes to remedial certification rules, and re-instituting pre-Bill 148 rules.
4. Repealing the authority of the Ontario Labour Relations Board (“OLRB”) to expand successor rights to contract tendering in publicly-funded services, like homecare.
5. Repealing the consolidating power of the OLRB to consolidate newly certified bargaining units with existing bargaining units.  While providing the OLRB with the power to review the structure of existing bargaining units where the existing unit no longer appears appropriate for collective bargaining.
6. Reinstituting a six month limit on an employee’s right to reinstatement after a strike or lock-out.
7. Repealing first collective agreement mediation and mediation-arbitration provisions, and reinstituting pre-Bill 148 rules for access to first agreement arbitration.
8. Repealing the enhanced fines for breach of the Act and returning them to pre-Bill 148 levels.

If passed, which is likely given that the government holds a majority of the seats in the Legislature, these changes will largely nullify the obligations on employers created by Bill 148 last year. Given the sweeping changes that will take place, we encourage you to contact a member of our team if you or your organization has any questions about statutory obligations to your employees.