18 Sep Bill 148 – New Changes to Ontario’s Employment and Labour Laws
On June 1, the Ontario Government introduced Bill 148, The Fair Workplaces, Better Jobs Act, 2017, which includes sweeping changes to the Employment Standards Act, 2000 (ESA) and Labour Relations Act (LRA). Bill 148, also known as, the “Fair Workplaces, Better Jobs Act, 2017”. Over the summer, public consultations were held across the province to gather feedback and on September 11, 2017 an amended version of Bill 148 was introduced.
The following is PooranLaw’s summary of the key changes impacting DS Sector employers, including the newly proposed amendments. Please join us for our upcoming webinar (register here) for a full discussion of all of the changes, their implications for your organization and recommended action points to ensure you are compliant when the changes come into effect beginning in January 2018.
- Scheduling, Shift Cancellation and On-call Pay
A number of modifications to the scheduling practices of employers will be mandated by the new legislation.
- Right to Request Scheduling and Location Change – After being employed for 3 months an employee will have a right to request a scheduling or location change, and if the change is denied, to be provided with written reasons by their employer.
- Right to Refuse Shifts – Employees will have the right to refuse work without a penalty unless provided with 4-days’ notice.
- Cancellation Pay – There will be a 3-hours’ pay penalty for cancelling a shift on less than 48-hours’ notice.
- On-call Pay – On call employees who do not get called in will be entitled to 3 hours pay for every 24 hours on call.
Most DS Sector employees have a legitimate need for flexibility in scheduling and have developed complex scheduling systems to address 24-hour staffing requirements in residential settings and 1:1 supports. Based on the recently introduced changes to Bill 148, collective agreements containing conflicting provisions will only be permitted to prevail until January 1, 2020 and thereafter conflicting provisions will be rendered void.
- Equal pay for part-time, casual (relief), temporary, and seasonal employees
Bill 148 provides that part-time, temporary, and casual employees and agency workers must receive the same rate of pay as full-time employees when performing the same job, in the same circumstances for the same employer. Employees will also have the right to request a review of their wages (wit protection for reprisal) and to receive a written response from their employer. Fortunately, pay systems that differentiate based on total hours worked, seniority, merit, or quantity and/or quality of production/work would be exempt. These rules would come into effect on April 1, 2018.
Transition language in the legislation provides a short-term reprieve for collective agreements that conflict with these provisions, however all collective agreements will eventually have to comply.
- Increased Minimum Wage
The most talked about feature of the new legislation is the increase to the minimum wage. If the new legislation is passed, as it appears it will be, the general minimum wage will rise to $11.60 on October 1st, 2017, $14.00 per hour on January 1, 2018; and $15.00 per hour on January 1, 2019. While most employers in the DS Sector have wage rates significantly above those proposed, we anticipate that unions will press for a corresponding percentage based increase to base rates and the wage grid in collective bargaining. In addition, these rates will have implications for families who use their passport, other forms of direct funding or pay out of pocket for respite and other services at below the proposed rate.
- New Prohibition on Mischaracterizing “Independent Contractors”
Bill 148 makes it an offence for an employer to improperly classify a person as a “contractor”, “volunteer”, “trainee” or other “non-employee” when the person is actually an employee. Contravention of the act can be subject to a complaint an investigation by an Employment Standards officer who has the authority to issue orders to pay back wages, compensation, fines of up to $50k and the possibility of imprisonment for individual offenders, and fines of up to $500k for repeat offender corporations.
DS Sector employers should carefully consider their relationships with workers they treat as “non-employees” or “independent contractors”. In PooranLaw’s experience, the Ministry of Labour is only too happy to find an employment relationship in any service arrangement that comes close the line. DS Sector agencies providing advice and supports to families in relation to Direct Funding should also be wary of advising families to enter into ‘contractor’ relationships with workers, or paying funds to ‘contractors’ on behalf of families without the appropriate paperwork in place.
- Temporary Help Agency Employees
Effective April 1, 2018, temp agency workers will now need to be paid the equivalent of what regular staff are paid, resulting in a significant increase in the cost of using temp agency workers. In addition, effective January 1, 2018, a minimum of 1-week’s notice or payment in lieu will be required for the early termination pf a temp agency work assignment, which cost we expect temp agencies will pass along to their DS Sector clients.
DS Sector employers that employ or pay respite providers to perform work assignments with families and individuals in the community should be aware of the risk of being deemed to be a “temporary help agency” for the purposes of the ESA. Where that designation applies a wide range of obligations are triggered under the ESA.
- Vacation and Public Holidays
Under the proposed legislation, vacation entitlement would increase to 3 weeks’ vacation time and 6% vacation pay after 5 years of service with an employer. The government would also be amending the formula for calculating public holiday pay to clarify that employees are entitled to their “average daily wage” and to simplify other aspects of this entitlement. Both of these changes would come into effect on January 1, 2018. Most DS Sector employers have vacation and public holiday pay practices that are more generous than those proposed here. We anticipate however that unions will use the new minimum as a basis for attempting to negotiate increased vacation entitlements for employees.
- Personal Emergency Leave
Effective January 1, 2018, all workplaces will now be subject to the 10-day personal emergency leave entitlement, with the first 2 of those days being fully paid (i.e. whatever pay would have been received had the employee worked the shift in question). In addition, employers will be prohibited from requesting medical certificates in relation to personal emergency leave use, with negative implications for managing attendance and absenteeism.
Bill 148 does not address concern related to the accumulation of paid personal emergency leave for employees who work only intermittently. This is very concerning for employers who rely on casual and relief employees, and may incentivize employees to seek out multiple jobs in order to capitalize on paid personal emergency leave from multiple employers.
- New and Longer Leaves of Absence
Bill 148, as amended, provides for generous new leaves and increases to existing leaves, including:
- New Unpaid Domestic or Sexual Violence Leave – up to 10 days for certain types of needs and an additional 15 weeks for other types of domestic/sexual violence related needs.
- Family Medical Leave – increased from 8 weeks to 27 weeks (provided that any time taken in any week is treated as a full week of leave).
- Parental Leave – increased by 26 weeks meaning that an employee could take as much as 18 months of leave with full job protection, benefit continuation, and EI benefits (based on recent changes to the Employment Insurance Act).
- Pregnancy Leave – Leave for employees who suffer a still-birth or miscarriage will be extended from 6 weeks to 12 weeks after the pregnancy loss occur.
- Child death and crime related death or disappearance leave – 104 weeks (2 years) of job protected leave with benefit continuance.
- New Records to be Kept by Employers and Temporary Help Agencies
Bill 148 now includes new record keeping requirements, including records related to: scheduling, shifts worked, shift cancelled, on-call records, overtime, substitution of public holidays, vacation pay accrual, use of Domestic/Sexual Violence Leave, and for temp help agencies, records related to work assignments and notice.
The number of years that records must be kept will also be increased from 3 years to 5 years. These record-keeping requirements mean that supervisors and managers, scheduling personnel and human resource professionals will have to be all the more vigilant in their administrative practices, both in terms of ensuring compliance with the new scheduling obligations and in documenting that compliance on a regular basis.
- Eliminating “Simulated Work” and “On-the-job Training” Exemptions
Existing language under the ESA provides that persons who perform work in a “simulated job or workplace” for the “primary purpose of rehabilitation” are not employees for the purposes of the ESA and therefore are not entitled to the minimum wage or other benefits and protections associated with employment under the ESA. There is no case law confirming that this exemption applies to DS Sector sheltered work programs or social enterprises, but it is nonetheless the principal defense advanced by agencies in human rights and ministry of labour complaints related to social enterprises and other operations in which persons supported perform work-like activities for less than the minimum wage.
The proposed amendments to the ESA remove this exemption effective January 1, 2019, thereby adding the force of law to the MCSS “Supporting the Transition to Greater Inclusion: Guidelines for Impacted Programs” (the “Transition Guidelines”) introduced in September 2016, requiring agencies to transition away from sheltered work.
On the Job Training
The ESA currently provides that a person who receives training from an employer is an employee unless:
- the person does not receive training in skills used by employees of the employer; or
- the training meets 6 conditions, including that the training is similar to that received in a vocation school, is for the benefit of the employer, does not materially benefit the employer, does not displace employees, does not come with the right to employment and is without remuneration.
The proposed language eliminates (b) above. Practically speaking, this means that all “on-the-job” trainees will need to receive at least the minimum wage. This appears to go one-step further than the MCSS Transition Guidelines, significantly restricting the types of training programs that DS Sector agencies are permitted to operate for the benefit of persons supported. As agencies work towards building alternative programming, it will be important to keep in mind these changes.
- Changes to the LRA that affect the DS Sector
The government is proposing to introduce card-based certification (certification without a vote) for employees in a number of industries, including the temporary help agency industry, the and the “home care and community services industry”. Non-union agencies receiving funding from the Ministry of Health and Long-term Care for home care and community service supports should be aware of the increased risk of unionization.
The government will also introduce a number of other changes which will make it easier for unions to certify employers and negotiate a first collective agreement, and provisions allowing for the consolidation of bargaining units of a single employer.
All non-union organizations should be aware of these changes and the increased risk of being certified. As always, positive employee relations and open communications are your best bet for remaining union free.
More Analysis to Come….
Bill 148 moved on to Second Reading in the legislature on September 11, 2017. PooranLaw will be releasing further newsletters on this topic as the Bill progresses through further debates.
PooranLaw will also be hosting a Lunch ‘n’ Learn Webinar to discuss the recent changes and their implications for DS Sector employers on September 28, 2017 from 12 p.m. to 1 p.m. You can register now by clicking here.
In the meantime, please contact Cheryl Wiles Pooran if you would like to discuss the proposed legislation and its implications for your organization.