Bill 148
By
Kellie Gray
December 7, 2017
December 7, 2017
By
Kellie Gray and Carly Watt
December 7, 2017
December 7, 2017
As you may or may not have heard, Ontario’s Bill 148, Fair Workplaces, Better Jobs Act, 2017 received Royal Assent on November 27, 2017. The Act made many significant amendments to Ontario’s Employment Standards Act, 2000 and Labour Relations Act, 1995. The two charts below detail these amendments and how they may affect you and your place of business.
Many employers will need to amend their employment contracts and policies to reflect these new amendments. Please contact Kellie Gray at gray@omh.ca for more information or assistance.
Employment Standards Act, 2000
| Current ESA Requirements | Fair Workplaces, Better Jobs Act (formerly Bill 148) | Date the Provision Comes into Force | |
| Minimum Wage | $11.60/hour (general) | $14.00/hour (general) $13.15 (student under 18) $12.20 (employees who regularly serve alcohol and receive tips/gratuities) $15.40 (homeworkers) | January 1, 2018 |
| $15.00/hour (general) $14.10 (student under 18) $13.05 (employees who regularly serve alcohol and receive tips/gratuities) $16.50 (homeworkers) | January 1, 2019 | ||
| Paid Vacation | 2 weeks’ vacation time; 4% vacation pay | Less than 5 years employment, same as ESA entitlement After 5+ years of employment, 3 weeks’ vacation time | January 1, 2018 |
| Scheduling | 3 hours pay at minimum wage if an employee works less than 3 hours (and is typically scheduled for more than 3 hours work) | Minimum of 3 hours’ pay for shifts that are under 3 hours (including on-call employees who are not called in or who work less than 3 hours) | January 1, 2019 |
| Entitlement to pay for 3 hours of work in the event of cancellation with insufficient notice (less than 48 hours) | |||
| Right to Refuse Work | No requirement | A right to refuse requests or demands to work on a day that an employee is not scheduled to work with insufficient notice (less than 96 hours) | January 1, 2019 |
| Requests for a Change to Schedule or Work Location | No requirement | An employee who has been employed for 3 months will be permitted to request a change to their schedule or work location. If the employer denies the request, the employer must provide written reasons for the denial | January 1, 2019 |
| Equal Pay for Equal Work | No requirement | Entitlement for equal pay regardless of a difference in employment status, extending to temporary, seasonal, casual, part-time, and temporary help agency employees | April 1, 2018 |
| Guarantees an employee the right to request information about the wage rate paid to another employee and provides protection against reprisal where an employee seeks to enforce this right | |||
| Provides protection against reprisal where an employee discloses their rate of pay to another employee | |||
| Misclassification of “Employee” | No provision | Prohibits an employer from treating an employee as if that person were not an employee (i.e., misclassifying employees as independent contractors) The burden of proof that the person is not an employee lies upon the employer | January 1, 2018 |
| Related Employer Liability | Associated or related business entities shall be treated as one employer if the intent or effect of the business relationship is to directly or indirectly defeat the purpose of the ESA | Separate persons will be treated as one employer if associated or related activities or businesses are or were carried on by or through an employer and one or more other persons | January 1, 2018 |
| Public Holiday Pay | Calculated by taking the regular wages in 4 weeks prior ÷ 20 (Provides an “average” of the daily wage) | Calculated by taking the amount of regular wages earned in the pay period immediately preceding the public holiday ÷ number of days worked in that period | January 1, 2018 |
| Working on a Public Holiday | Pay the regular wages and substitute another day off in the future as the public holiday with pay; or pay premium pay (time and a half) plus public holiday pay | If an employee works on the public holiday and receives a substitute day off, the employer must provide to the employee a written statement before the public holiday that sets out the public holiday on which the employee will work, the date of the day that is substituted, and the date on which the statement is provided | January 1, 2018 |
| If an employee does not work on the public holiday, the employer must substitute another day off and must provide to the employee a written statement before the public holiday that sets out the public holiday that is being substituted, the date of the day that is substituted for, and the date on which the statement is provided | |||
| Personal Emergency Leave | An employer with 50+ employees must provide 10 unpaid PEL days per year | Employees in all workplaces (not just those with 50+ employees) will be entitled to 10 days per calendar year (2 paid days and 8 unpaid days) | January 1, 2018 |
| 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 | |||
| Domestic and Sexual Violence Leave | No provisions | An employee who has been employed 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 following purposes: 1. To seek medical attention in respect of a physical or psychological injury or disability caused by the domestic or sexual violence. 2. To obtain services from a victim services organization. 3. To obtain psychological or other professional counselling. 4. To relocate temporarily or permanently. 5. To seek legal or law enforcement assistance. 6. Such other purposes as may be prescribed. | January 1, 2018 |
| Critical Illness Leave for Adult Family Member | No provision | Employees with 6 consecutive months’ of service will be entitled to a critical illness leave of absence of up to 17 weeks to provide care and support to a critically ill adult family member | December 3, 2017 |
| Parental Leave | 35 weeks if employee took pregnancy leave; and 37 weeks if employee did not take pregnancy leave | 61 weeks if employee took pregnancy leave; and 63 weeks if employee did not take pregnancy leave | December 3, 2017 |
| Pregnancy Leave | Pregnancy leave ends 6 weeks after the birth, still-birth or miscarriage | Pregnancy leave ends 12 weeks after the birth, still-birth or miscarriage | January 1, 2018 |
| Family Medical Leave | 8 weeks unpaid leave in a 26-week period | 28 weeks unpaid leave in a 52-week period | January 1, 2018 |
| Child Death Leave | Up to 104 weeks for crime-related death of an employee’s child | After 6 months of employment, up to 104 weeks of leave for death of a child, regardless of whether related to a crime | January 1, 2018 |
| Crime-Related Child Disappearance Leave | Up to 52 weeks of leave | After 6 months of employment, up to 104 weeks of leave | January 1, 2018 |
| Temporary Help Agencies | Silent on these new issues | Requires temporary help agencies to provide an assignment employee with 1 week’s written notice or pay in lieu if an assignment that was estimated to last for 3+ months is terminated before the end of its estimated term | January 1, 2018 |
| An assignment worker must be paid a rate equal to the rate paid to an employee if they perform substantially the same kind of work in the same establishment, their performance requires substantially the same skill, effort and responsibility, and their work is performed under similar working conditions | April 1, 2018 | ||
| An assignment employee who believes that their rate of pay is lower than that of a comparable employee may request a review of their rate of pay from the temporary help agency. If the temporary help agency disagrees with the assignment employee’s belief, provide a written response to the assignment employee setting out the reasons for the disagreement | |||
| Record Keeping Requirements | An employer shall record the following information with respect to each employee: 1. The employee’s name and address. 2. The employee’s date of birth, if the employee is a student and under 18 years of age. 3. The date on which the employee began his or her employment. 4. The amount of vacation time the employee earned, had taken, and had not taken | An employer shall also record: 1. The dates and times that the employee worked 2. If the employee has 2+ regular rates of pay and worked in excess of the overtime threshold in a work week, the dates and times that the employee worked in excess of the overtime threshold at each rate of pay 3. The amount of vacation pay that the employee earned during the vacation entitlement year and how that amount was calculated 4. In cases of an alternative vacation entitlement year, the amount of vacation pay an employee earned during the stub period and how that amount was calculated 5. Domestic or sexual violence leave: An employer shall ensure that mechanisms are in place to protect the confidentiality of records given to or produced by the employer that relate to an employee taking such leave 6. Written statements regarding working or substituting a public holiday (see above) | January 1, 2018 |
| An employer shall also record the dates and times that the employee was scheduled to work or to be on call for work, and any changes made to the on call schedule and any cancellations | January 1, 2019 | ||
| The employer shall retain or arrange for some other person to retain each vacation time and vacation pay record for 3 years after it was made | The employer shall retain or arrange for some other person to retain each vacation time and vacation pay record for 5 years after it was made | January 1, 2018 | |
| Remedies & Penalties | The Ministry of Labour published the name of a person convicted for contravention of ESA provisions on its website | The Director of Employment Standards may publish information about employers (including online) if deemed to be in contravention of the ESA, including the names, a description of the contravention, the date of the contravention, and the amount of the penalty | January 1, 2018 |
| Collection | No provision | Allows 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 | January 1, 2018 |
Labour Relations Act, 1995
| Current LRA Requirements | Fair Workplaces, Better Jobs Act (formerly Bill 148) | Date the provision comes into force | |
| Certification | Vote based system | Card-based certification will be permitted in the building services, home care and community services, and temporary help agency industries | January 1, 2018 |
| The Ontario Labour Relations Board will be allowed to conduct votes outside the workplace, as well as electronically and by telephone | |||
| Application for Employee List | No provision | Unions with the support of at least 20% of an organization’s employees will be entitled to access a complete list of the employees in the proposed bargaining unit, along with their phone numbers and personal emails The employer shall ensure that all reasonable steps are taken to protect the security and confidentiality of the list, including protecting its security and confidentiality during its creation, compilation, storage, handling, transportation, transfer and transmission | January 1, 2018 |
| First Agreement Mediation & Arbitration | First agreement arbitration where parties are unable to effect a first collective agreement | If the parties are unable to effect a first collective agreement, either party may apply to the Minister to appoint a first collective agreement mediator | January 1, 2018 |
| Where the first collective agreement mediation does not result in the parties entering into a collective agreement, it may proceed to first collective agreement mediation-arbitration | |||
| Decertification or displacement certification application operates as a stay of the request for first agreement arbitration | Displacement certification application must be held in abeyance pending completion of the first agreement mediation-arbitration process | ||
| Consolidation of Bargaining Units | Limited powers | The Ontario Labour Relations Board will have the power to consolidate a certified bargaining unit with an existing bargaining unit of employees of the employer represented by the same union | January 1, 2018 |
| Extending Just Cause Requirement for Discipline & Discharge | Employer is prohibited from dismissing, threatening to dismiss or imposing any other penalty on an employee if the purpose is to prevent the employee from joining a union or from exercising any rights under the Labour Relations Act. Limited to employees who passed their probationary period | An employer is prohibited from dismissing, threatening to dismiss or imposing any other penalty on an employee unless they have just cause (including prior to the expiry of a probationary period) during the following times: 1. The period that begins on the date of certification and ends on the earlier of (i) the date on which a first collective agreement is entered into and (ii) the date on which the trade union no longer represents the employees in the bargaining unit, and; 2. The period that begins on the date on which a strike or lock-out became lawful and that ends on the earlier of (i) the date on which a new collective agreement is entered into and (ii) the date on which the trade union no longer represents the employees in the bargaining unit | January 1, 2018 |
| Successor Rights | Successor rights apply where a trade union by reason of a merger, amalgamation, or a transfer of jurisdiction is the successor of a trade union that was the bargaining agent of a unit of employees of an employer | Extended to the building services industry for services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises (i.e., building cleaning services, food services and security services) | January 1, 2018 |
| Will be extended to other types of service providers that directly or indirectly receive public funds as may be prescribed, subject to such terms and conditions as may be prescribed | |||
| Interim Orders | Limited powers: the Board may make interim orders concerning procedural matters | The Board may make interim decisions and orders in any proceeding. The Board may impose conditions on an interim decision or order. An interim decision or order need not be accompanied by reasons | January 1, 2018 |
| Offences | Maximum fines for contravention are $2,000 for individuals and $25,000 for organizations | Maximum fines for contravention are $5,000 for individuals and $100,000 for organizations | January 1, 2018 |
| Return to Work | Requirement to reinstate an employee within 6 months of commencing a lawful strike | Required to reinstate employees upon request at any time following the commencement of a lawful strike | January 1, 2018 |
Additionally, a new section is added to the Occupational Health and Safety Act that provides an employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform their work safely. There is an exception for employers of performers in the entertainment and advertising industry.
The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.