On June 1, 2017, the Ontario government introduced its Fair Workplaces, Better Jobs Act, 2017 (the “Act”). On November 22, the Act was passed in the Legislature and received Royal Assent on November 27. Headlining the Ontario government’s legislative changes is a hike to minimum wage for Ontario workers that will be increased to $15.00 per hour over the next 18 months. We provided an overview of the Act in a previous article.
In the interim, the Act has undergone vigorous debate and amendments, including amendments in August, which were covered in our webcast*. Most recently, on November 16, 2017, the Standing Committee on Finance and Economic Affairs (the “Standing Committee”) chose to adopt a number of additional amendments to the Act, which have now been adopted by the Legislature with the passing of the Act.
The most recent amendments impact both the Employment Standards Act, 2000(the “ESA”) as well as the Labour Relations Act, 1995 (the “LRA”), in the areas of: protected leaves of absence; scheduling provisions; and equal pay for equal work provisions.
The highlights of the amendments to both the ESA and the LRA include the following:
Employment Standards Act, 2000
Amendments to Leave Provisions
Domestic or Sexual Violence Leave: August amendments to the Act provided for this new form of leave pursuant to which an employee with a minimum of 13 consecutive weeks of tenure with an employer is entitled to an unpaid leave of absence where the employee or his or her child experiences domestic or sexual violence or the threat of such violence. The dual entitlement provides an employee with both up to 10 days of leave and 15 weeks of leave in addition. The amendments on November 16 added the requirement that the first five days of the leave will be paid. The payment will be equal to the wages that the employee would have earned had they not taken the leave. The amendment also requires employers to maintain confidentiality over records related to the leave.
Critical Illness Leave: As part of the 2017 Budget Bill, the federal government amended the Employment Insurance Act in relation to the benefits for parents of critically ill children, while also establishing a new adult caregiving benefit of up to 15 weeks in a 52-week period for individuals providing significant care to an adult family member recovering from critical illness or injury. The Standing Committee amended the Act to account for these changes and benefits; accordingly, the Critically Ill Child Care Leave will be replaced by the Critical Illness Leave.
The Critical Illness Leave is composed of two entitlements:
1. a leave of up to 37 weeks (in a 52-week period) for an employee to provide care to a critically ill minor child who is a family member; and
2. a leave of up to 17 weeks (in a 52-week period) for an employee to provide care to a critically ill adult who is a family member.
This new leave came into effect on December 3, 2017.
Pregnancy and Parental Leave: The Standing Committee’s amendments clarify that the new rules provided by the Act will only apply where a pregnancy leave begins on January 1, 2018 or later, otherwise the current rules will still apply.
Of note, the amendments also expand the scope of the definition of “legally qualified medical practitioner” for pregnancy leave purposes. The amendment allows nurses with extended certificates and midwives to certify the due date, as well as whether an employee is unable to perform employment duties because of complications during the pregnancy.
These amendments came into effect on December 3, 2017. The new rules on extended parental leave only apply if the child is born or first comes into the custody, care or control of the parent after the effective date of the new provisions.
Family Medical Leave: The Standing Committee amended this form of leave to further extend it to a leave of 28 weeks in a 52-week period, while also expanding the definition of “qualified health practitioner” to include physicians, registered nurses with an extended certificate of registration and prescribed health practitioners.
Amendments to Scheduling Provisions
Three Hour Rule: In the August amendment, language was deleted requiring an employee to “present himself or herself for work” in order to be eligible for the minimum 3 hours of wages. The Standing Committee reinserted this language into the Act, bringing the Act back into accordance with the language used in the current regulations.
The Standing Committee also amended the manner in which the three hours of pay are calculated. The new calculation requires the employer to pay “wages for three hours”, which is defined as the greater of:
1. three hours’ pay at the employee’s regular rate; or
2. the sum of (1) the amount that the employee earned while working, plus (2) the remaining time calculated at the employee’s regular rate.
If an employee is entitled to some form of premium pay while actually working, the employee remains entitled to that premium in calculating the wages owed to him or her.
Minimum On-Call Pay: The Standing Committee also amended the calculation of the minimum on-call pay to coincide with the calculation of the three hour rule, and also adopted a new exception for employees who are on-call for the purposes of “ensuring the continued delivery of essential public services”, but who are ultimately not required to come into work. These employees will not be entitled to the minimum on-call pay. This new exception will apply regardless of who delivers the essential public service. The Act does not yet define what constitutes an “essential public service”.
Work Refusal: The Act provides employees with the option to refuse to work an on-call assignment if less than 96 hours’ notice of the assignment is provided. The Standing Committee adopted an amendment to the Act that creates an exception to ensure the continued delivery of essential public services. The existing exception surrounding “emergencies” was further clarified by adding a provision defining an “emergency” to include search and rescue operations, as well as a “situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise.”
Amendments to Equal Pay for Equal Work
Seniority System: The August amendments added a new definition of “seniority system” to include one that provides for different pay based on the accumulated hours worked. This was an important amendment as it provided a differentiation factor between employees. The Standing Committee deleted this amendment in the Act.
The government has also committed to reviewing the equal pay for equal work provisions by not later than April 1, 2021.
Labour Relations Act, 1995
Coming into Force Date: The Standing Committee amended the Act so that all LRA amendments came into force on January 1, 2018, which is six months earlier than had previously been scheduled.
Bargaining Unit Structure: The Standing Committee adopted a new amendment to the Act, which allows an employer and a trade union that represents multiple bargaining units to agree in writing to review the structure of bargaining units. These new provisions allow the employer and trade union to agree to certain changes provided that the Ontario Labour Relations Board (the “OLRB”) approves their joint application, including:
1. amending the description of bargaining units;
2. consolidating bargaining units;
3. applying a collective agreement to consolidated units and terminating the existing agreements that previously applied to the pre-consolidation units; and
4. amending collective agreements, including expiry dates and seniority provisions.
Employee Lists: The Standing Committee amended the Act to make it mandatory for employers to provide a union with certain employee information during an organizing campaign, including: employee name, phone number and personal email in cases where the employee has given the information to the employer. The amendment also gives the OLRB the discretion to order the employer to release other information, including job titles, business addresses and any other means of contacting the employee (aside from a home address) known to the employer.
Many of the amendments resulting from the enactment of the Act are significant and are now, or will soon be, operative. As a result of the expedited operation of a number of provisions in the Act, it is more critical than ever for employers to become knowledgeable about the Act.
These linked charts provide a reference tool for the coming into force of various provisions within the Act. We encourage you to contact a member of our Labour and Employment team with any questions you might have.
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