Update on Bill 148: Employment and Labour Law Reform

On September 11, 2017, an amended version of Bill 148, Fair Workplaces, Better Jobs Act, 2017 was ordered for second reading and is currently being debated. Amendments to Bill 148 so far include:

1. Equal pay provisions

The Bill proposes adding “new equal pay for equal work” provisions that mandate paying casual, part-time, temporary and seasonal employees at the same rate as regular full-time employees who perform the same job for the same employer. The Bill also requires temporary help agency employees to be paid at the same rate as employees of the agency’s client who perform substantially the same work. Employers would be prohibited from reducing an employee’s rate of pay in order to comply with the equal pay provisions.

The proposed equal pay provisions are subject to some exceptions. The provisions do not apply if a difference in wages among similarly situated employees is due to (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) another factor justifying the difference on objective grounds.

One of the amendments is meant to clarify how employers might rely on a “seniority system” to justify different wage rates on the basis of employment status. The amended equal pay provision expressly states that a “seniority system includes a system that provides for different pay based on the accumulated number of hours worked.”

The second amendment deals with labour relations changes that will include if your collective agreement contains a provision that permits differences in pay based on employment status, and there is a conflict between the collective agreement provision and the Bill 148 equal pay provision, then the collective agreement provision will prevail and continue to apply until the earlier of (i) the date the collective agreement expires; and (ii) January 1, 2020. If you are currently engaged in collective bargaining, you may wish to consider this in the context of your negotiations.

2. New leave of absence for domestic or sexual violence

Bill 148 originally proposed to expand the grounds for claiming personal emergency leave to include domestic or sexual violence or the threat of sexual or domestic violence. Amendments to Bill 148 introduce a new stand-alone unpaid leave of absence where an employee or the employee’s child has experienced domestic or sexual violence.

As a result, new section 49.7 (Domestic or Sexual Violence Leave) provides that an employee who has been employed by an employer for at least 13 consecutive weeks is entitled to up to 10 days and up to 15 weeks of unpaid leave each year if the employee or a child of the employee experiences domestic or sexual violence or the threat of domestic or sexual violence. The leave must be taken for the following purposes:

  • To seek medical attention for the employee or the child of the employee in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.
  • To obtain services from a victim services organization for the employee or the child of the employee.
  • To obtain psychological or other professional counselling for the employee or the child of the employee.
  • To relocate temporarily or permanently.
  • To seek legal or law enforcement assistance, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic or sexual violence.
  • Such other purposes as may be prescribed.

3. Extensions to pregnancy and parental leave

Under the revised Bill 148, pregnancy leave will be extended from six weeks to 12 weeks for employees after a miscarriage or stillbirth.
Additionally, the length of parental leave will be extended by 26 weeks—from 35 weeks to 61 weeks for employees who have taken a pregnancy leave, and from 37 weeks to 63 weeks for employees who have not.

Section 48 is amended to provide that a parental leave may begin no later than 78 weeks after the child is born or comes into the employee’s custody, care and control for the first time.

4. Paid personal emergency leave

Bill 148 will require all employers to provide 10 days of personal emergency leave, two of which must be paid. The amendments slightly limit the entitlement to paid leave to apply only to employees who have been employed for at least one week.

5. Leave deemed to be taken in entire weeks

For the purposes of an employee’s entitlement to a statutory leave of absence, if an employee takes any part of a week as leave, the employer may deem the employee to have taken one week of leave.

6. Public holiday

The revised Bill 148 restores the right for employees to take a substitute day off with public holiday pay where employees work on a public holiday—a provision that was removed under the original version of Bill 148. However, under the amendments where an employee agrees to work on a public holiday, employers will be required to provide the employee with a written statement setting out the public holiday the employee will work and the day that is designated to be the substitute holiday.

7. Scheduling changes

Under Bill 148, employees will have a right to refuse work requests where the request is made within 96 hours of the start of the shift. The amendments clarify that this will not apply where the work is to deal with an emergency, to remedy or reduce a threat to public safety or for other prescribed reasons.

Under Bill 148, employees will be entitled to payment of a minimum of three hours of work if their shift is cancelled on less than 48 hours of notice. The amendments clarify that this will not apply where the nature of the employee’s work is weather-dependent and the employer cannot provide work for weather-related reasons.

Under Bill 148, employees will be entitled to payment of a minimum of three hours of work if they are asked to be “on-call.” The amendments clarify that this will not apply where the employee was not available to work for at least three hours at the relevant time.

8. Record keeping obligations

Under the revised Bill 148, employers will be faced with more onerous record keeping requirements. Employers will now be required to keep records of:

  • the dates and times an employee was scheduled to work or be on-call , and any changes made to the on-call schedule;
  • the dates and times an employee worked;
  • the dates and times that the employee worked in excess of the overtime threshold at each rate of pay, if the employee has two or more regular rates of pay for work performed for the employer and, in a workweek, the employee performed work for the employer in excess of the overtime threshold;
  • any cancellations of a scheduled day of work or scheduled on-call period of the employee, and the date and time of the cancellation;
  • the amount of vacation pay that the employee earned during the vacation entitlement year and how that amount was calculated; and
  • the amount of vacation pay that the employee earned during the stub period and how that amount was calculated.

9. Collective bargaining agreements

The original version of Bill 148 provided that where the terms of a collective agreement conflicted with the new scheduling provisions, the collective agreement prevailed. The amendments adopted by the Committee limit this provision to provide that the collective agreement will only prevail if the agreement is in place on January 1, 2019. Further, any provision in a collective agreement that conflicts with the new legislation will cease to apply upon the expiry of that agreement or January 1, 2020, whichever is earlier.

What’s next?

Once the Bill receives second reading, it is referred back to Committee and may undergo further amendments.

The Committee rejected a proposal made by the Progressive Conservative which would have required the government to commit to an economic impact analysis of Bill 148 and its effects. The government rejected the proposal; therefore, we expect that the Ontario government plans to move relatively quickly to pass the Bill into law.

According to Beyond Rewards, “the Ontario Chamber of Commerce provided their economic analysis under the title Keep Ontario Working Coalition. Looking at the research provided by the Ontario Chamber of Commerce and the Keep Ontario Working Coalition, in their opinion, there are many major concerns. They deduced, among other things, that the government would need to borrow $440 million to cover the incoming costs of this legislation change—not to mention the societal and structural impact it will have on our otherwise competitive and economically profitable province. While employees see a benefit in the rise of minimum wage, it might not be all it’s cracked up to be as the cost of the inflation is about to rise by 50 percent for goods and services in the same short time frame, equaling, at minimum, $1,300 per household per year.” The report concluded that over 185,000 jobs could be impacted by the minimum wage hike and suggests the minimum wage hike will add $23 billion in costs to business over a two year period.

The Keep Ontario Working Coalition has stated that if the government implemented the change over a five-year-period, instead of the planned 18 months, it could decrease the risk of job losses by 74 percent.

In addition, the Ontario government has indicated that it won’t back down on the $15-an-hour plan. Businesses are waiting for the government’s relief package which will be “likely on the tax side.” Jeff Leal, the minister responsible for small business, has said Ontario is eyeing the example of Manitoba, which has a zero tax rate for small businesses on the first $1.25 million of active income.

Moreover, employers with total remuneration in a year of $1.25 million or less are exempted. Associated groups (associated corporations/certain corporate partnerships) must share the $1.25 million exemption based on the total of their combined yearly payroll.

We will continue to monitor the progress of Bill 148 in legislature.

Comments

  1. Hello,
    It is a great read and update on Bill 148.
    I noticed that the date should read as “September 11, 2017” instead of September 11, 2018.

    Thank you.
    Sugi

  2. Thanks Sugi for pointing it out… corrected. Yosie

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