On November 21, 2018, Bill 47, the Making Ontario Open for Business Act, 2018, received Royal Assent. The legislation is designed to repeal many of the amendments to the Employment Standards Act, 2000 and the Labour Relations Act, 1995 introduced by the previous provincial government last year. A summary of the key changes introduced by Bill 47 can be found in our previous communiqué.
While the legislation remains largely intact from its introduction in October, the Bill was amended by the Standing Committee on Finance and Economic Affairs to repeal (rather than amend) section 15.1 of the Labour Relations Act, 1995, which addressed the circumstances under which the Ontario Labour Relations Board (“OLRB”) can review the structure of bargaining units and the types of orders that it may make in respect thereof.
Changes to the Labour Relations Act, 1995 that are now in force include:
- Repealing card-based certification for workers in home care, building services, and temporary help agencies, and instituting instead a secret ballot system;
- Repealing an employer’s obligation to hand over employee contact information once a union establishes 20% support for certification;
- Repealing Bill 148 changes to remedial certification rules, and re-instituting pre-Bill 148 rules;
- Repealing the authority of the OLRB to expand successor rights to contract tendering in publicly-funded services, like homecare;
- Repealing the consolidating power of the OLRB to consolidate newly certified bargaining units with existing bargaining units;
- Reinstituting a six month limit on an employee’s right to reinstatement after a strike or lock-out;
- Repealing first collective agreement mediation and mediation-arbitration provisions, and reinstituting pre-Bill 148 rules for access to first agreement arbitration; and
- Repealing the enhanced fines for breach of the Act and returning them to pre-Bill 148 levels.
The following changes to the Employment Standards Act, 2000 will come into force on January 1, 2019:
- The personal emergency leave provisions will be repealed and replaced by:
- three unpaid personal illness days;
- two unpaid bereavement days; and
- three unpaid family responsibility days.
- 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 The prohibition on requesting doctor’s notes will be repealed;
- The reverse onus on employers in misclassifying employees as independent contractors will be repealed;
- 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);
- 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; and
- The penalties for contravention of the ESA will all be returned to pre-Bill 148 levels.
Bill 47 also repealed scheduled changes to the Employment Standards Act, 2000 that were set to come into force on January 1, 2019:
- The minimum wage will remain at $14.00/hour (rather than rising to $15.00/hour) and will continue for 33 months until increases tied to inflation resume in 2020; and
- The scheduling provisions contained in the previous legislation will no longer come into force, meaning that:
- employees will not have the right to request schedule and work location changes after three months of employment;
- 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;
- employees who have a shift (or on-call shift) cancelled with less than 48 hours’ notice will not be eligible for three hours’ pay;
- employees who are scheduled to work a shift with less than 96 hours of notice will not be entitled to refuse the shift; and
- employers’ record keeping obligations are returned to pre-Bill 148 requirements.
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.