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Back to the Future With Ontario’s Bill 47 to Repeal Bill 148 Workplace Reforms

The laws governing Ontario workplaces have been subject to seismic changes throughout the past year.

First, Bill 148, passed by the then-Liberal government ahead of a provincial election, provided significant increases to the minimum wage, paid emergency leave, vacation, and equal pay protections based on employment status. In labour relations, Bill 148 provided for new card-based certification in certain industries, as well as changes to remedial certification, first agreement arbitration, and successor rights. Not surprisingly, many employers expressed concern that the changes were too broad in scope and had come too fast.

These legislative changes did not save the Liberal government from election defeat, and it was anticipated that, sooner than later, many of the changes brought by Bill 148 would suffer the same fate under the new Progressive Conservative government.

On October 23, 2018, the Ontario government introduced Bill 47, entitled the Making Ontario Open for Business Act, representing a significant swing of the pendulum back to pre-Bill 148 standards. Bill 47, if passed, will impact several workplace laws. Below are some of the highlights.

Employment Standards Act, 2000

Minimum Wage

Bill 148 increased minimum wage to $14.00 per hour and included an additional increase to $15.00 per hour effective January 1, 2019. While the current minimum wage will not be rolled back, Bill 47 would eliminate the January 2019 increase. Future increases to the minimum wage, beginning in 2020, would be tied to inflation.

Personal Emergency Leave

One of the most significant changes introduced would result in the elimination of the 10 days of personal emergency leave (including two paid days) provided under Bill 148. This would be replaced by a total of eight unpaid leave days per year—three days per year for personal illness, three days per year for family responsibilities (such as illness or urgent matters concerning a spouse or child), and two days per year for bereavement leave. Employers would once again be permitted to require a doctor’s note as reasonable evidence for sick leave, which had been prohibited under Bill 148. Importantly, Bill 47 also provides that similar leaves of absences taken in accordance with existing employment contracts will be deemed to be leave under the Employment Standards Act, 2000. This will help combat employee “double dipping” by claiming both statutory and contractual leave rights in relation to the same kind of absences.

Equal Pay for Equal Work

While employment standards provisions providing for equal pay on the basis of sex will be maintained, Bill 47 would repeal the requirement of equal pay for equal work on the basis of employment status (such as part-time or casual) and assignment employee status. The Bill 148 provision has proved to be a practical problem for many employers, including those operating under collective agreements, particularly where full-time employees enjoyed a higher rate of pay for performing the same work and seniority was not the determinative factor.

Employee Classification

Where there is a dispute as to whether an individual is an employee or an independent contractor, Bill 47 would repeal the “reverse onus” requiring an employer to prove that an individual is not an employee. This would return the law to the pre-Bill 148 status quo.

Scheduling

In addition to modifying the three-hour rule for minimum pay when an employee is required to report to work, Bill 47 would repeal the Bill 148 scheduling provisions that were to come into force on January 1, 2019, including:

  • the employee’s right to request changes to his or her schedule or work location;
  • three hours’ pay for being on-call if the employee is available but not called in to work;
  • the right to refuse to work on a day the employee is not scheduled to work with less than 96 hours’ notice; and
  • three hours’ pay for cancelling a scheduled shift within 48 hours.

Contraventions

Administrative penalties would be returned to the previous maximums.

Not all Bill 148 amendments to the Employment Standards Act, 2000 would be repealed by Bill 47. The increase of paid vacation entitlement to three weeks after five years of service will remain. In addition, the government intends to keep intact the leave entitlement provisions relating to domestic and sexual violence.  

Labour Relations Act, 1995

Employee Lists

Under the Bill 148 amendments, an employer could be directed to provide to a union a list of employees with phone numbers and personal emails, provided that the union could establish that 20 percent of the employees in the proposed bargaining unit were members of the union. The employee list provisions would be repealed by Bill 47.

Card-Based Certification

Bill 47 would repeal the amendments that provided for card-based certification of workers in the home care, building services, and temporary help agency industries.

Remedial Certification

Bill 148 made it easier for unions to obtain remedial certification without an employee vote. Where an employer had contravened the Labour Relations Act, 1995 and, in doing so, prevented the true wishes of the employees from being reflected in a vote or prevented 40 percent membership, the Ontario Labour Relations Board would be required to certify the union. Bill 47 would repeal this provision and provide that the Board may order a vote and take steps to ensure that the vote reflects the true wishes of the employees, which is more consistent with the Board’s pre-Bill 148 powers.  

First Collective Agreement

Bill 47 would restore the pre-Bill 148 conditions for first agreement arbitration (such as refusal to recognize bargaining authority or a union, uncompromising positions without reasonable justification, or the failure of a party to make reasonable efforts to conclude an agreement). 

Contraventions

Maximum fines would be restored to pre-Bill 148 levels (decreasing from $5,000 to $2,000 for individuals, and from $100,000 to $25,000 for organizations).

Ontario College of Trades and Apprenticeship Act, 2009

Winding Down of the College of Trades

The government intends to develop a replacement model for both the regulation of skilled trades and the apprenticeship system by early 2019. As part of this transition, the government would wind down the Ontario College of Trades. Although it would appear that such changes would not impact the Occupational Health and Safety Act, there will likely be questions as to how the transition will impact certification in the compulsory trades, where proper training and qualification is paramount to safety. 

Apprenticeship Ratios

For trades that are subject to ratios, Bill 47 would set Ontario’s ratios to a one-to-one journeyperson to apprentice standard, which would likely have the impact of removing some of the current limits on the number of apprentices an employer can train. 

Moratorium

Bill 47 would impose a moratorium on the referral of trades to the Classification Roster.   

While Bill 47 has only passed the first reading stage, we anticipate that this legislation will progress quickly. The schedule outlining changes to the Employment Standards Act, 2000 provides that it would come into force on the later of January 1, 2019, and the date the legislation receives Royal Assent. We will continue to monitor Bill 47 as it proceeds through the legislature.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

John Illingworth Ogletree Attorney
Attorney

John Illingworth is of counsel in the Toronto office of Ogletree Deakins. His practice includes a broad range of labour and employment issues, with a special focus on labour relations and occupational health and safety.

416-572-2796
Michael Comartin, Ogletree Deakins Law Firm, Labor and Employment Attorney
Associate

Michael is an associate in Ogletree Deakins’ Toronto office. His diverse practice spans all areas of employment law, labour law, wage and hours issues, human rights, accessibility, and employee benefits and executive compensation. Michael also has experience with class actions, appellate litigation, and general litigation, having practiced in commercial and public law litigation at a previous firm, with an emphasis on class actions, judicial review, and international litigation.

Michael has appeared before the Court of Appeal for Ontario, the Divisional Court, the Superior Court of Justice, the Federal Court, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario and various labour arbitrators. Michael clerked at the Divisional Court. Michael regularly appears in Divisional Court as duty counsel as part of Pro Bono Law Ontario’s amicus project.

416-572-2792