Ontario Seeking Input on Certain Upcoming Employment and Labour Law Rules

Ontario Bill 148, Fair Workplaces, Better Jobs Act, 2017 received second reading on October 18 and was sent to Standing Committee on Finance and Economic Affairs for further review and possible additional amendments.

Before the Bill received second reading, three draft regulations for public consultation were tabled at the Ontario Regulatory Registry to support the implementation of the Employment Standards Act and Labour Relations Act amendments under Bill 148. In addition, as part of the employment and labour standards review that brought about the changes found in Bill 148, the Ontario government is seeking public input to help make workplaces fairer for workers in industries that currently have exemptions, special rules or exclusions. There are approximately 85 special rules and exemptions under the Employment Standards Act (ESA).

Tabling of three draft regulations for public consultation

Interested stakeholders are invited to submit their comments by November 27, 2017. These regulations include the following.

1) Increased penalties. To support enforcement of the Employment Standards Act (ESA) and Employment Protection for Foreign Nationals Act (EPFNA) under Bill 148, Fair Workplaces, Better Jobs Act, 2017, the Ontario Ministry of Labour is proposing that the financial penalties for contravening the ESA and EPFNA should increase to create a greater deterrent to non-compliance. The amounts of these penalties, which are called Notices of Contravention are set out in Regulation 289/01 under the ESA. The amounts of the penalties for contravening the EPFNA is set out in O. Reg. 47/10 and would similarly mirror the proposed change in penalty amounts to the ESA’s penalty regulation. More information on the proposed changes to increase EPFNA and ESA penalties and how to comment can be found here.

2) Proposed consequential amendments to O. Reg. 285/01 and O. Reg. 125/16. A number of consequential and technical changes to regulations made under the Employment Standards Act would be required if Bill 148 is enacted. These changes would not affect the substance of the legislation or regulation but would:

  • Update a reference related to tips or other gratuity;
  • Remove Family Day from the regulation as it would be moved from regulation to the ESA and be part of the list of public holidays; and
  • Remove minimum wage rates from the regulation and update certain minimum wage references.

Bill 148 would also increase vacation pay entitlement after five years of service with the same employer. The proposal is to update the regulation, specifically the exemption of construction employees from Part X of the ESA (Public Holiday), to align with the increased vacation pay entitlement in Bill 148. The proposed amendment to section 9(2) of O. Reg. 285/01 would increase the amount required to trigger the exemption for construction employees that have been working with the same employer for five or more years from 7.7 percent to 9.7 percent in order to align with the increased vacation pay entitlement in the proposed Bill 148. Details on this regulatory proposal can be found here.

The rules for minimum payment for employees who regularly work more than three hours (three hour rule) who are called in to work for less than three hours, currently set out by regulation, would change and be moved to the legislation. The employee’s wages would be three hours at their regular rate of pay. This would be set out in a new section of the ESA and take place January 1, 2019. Details on this regulatory proposal can be found here.

3) Transitional rules for the implementation of Labour Relations Act. If the proposed Bill 148, Fair Workplaces, Better Jobs Act, 2017 is passed, there will be a number of transitional rules for the implementation of certain proposed amendments to the Labour Relations Act. As stated on the Ontario’s Regulatory Registry page, these transitional rules would not affect the substance of the legislation but would specify when certain proposed amendments would begin to take effect, as follows:

  • Remedial certification: Bill 148 would amend the powers of the Ontario Labour Relations Board to remedially certify a trade union where the employer has contravened the Labour Relations Act, subject to certain conditions. A transitional provision is proposed to specify that the amended remedial certification provision would apply in respect of any application for certification filed on or after the coming-into-force date of Schedule 2 of the Bill, in respect of events or conduct that occurred on or after that date.
  • Review of structure of bargaining units: Bill 148 would allow the Ontario Labour Relations Board, in certain circumstances, to review the structure of bargaining units and make orders in respect of the structure of bargaining units. A transitional provision is proposed to specify that these new powers would apply in respect of any application for certification made on or after the coming-into-force date of Schedule 2 of the Bill.
  • No discharge or discipline during lawful strike/lock-out periods: Bill 148 would provide that, during lawful strike/lock-out periods, an employer may not discharge or discipline an employee in an affected bargaining unit without just cause. A transitional provision is proposed to specify that this new prohibition would apply in respect of events or conduct that occurs on or after the coming-into-force date of Schedule 2 of the Bill.
  • Offences: Bill 148 would increase the maximum fines on conviction of an offence under the Act to $5,000 for individuals and $100,000 for corporations, trade unions, councils of trade unions and employers’ organizations. A transitional provision is proposed to specify that these new maximum fine amounts would apply in respect of events or conduct that occurred on or after the coming-into-force date of Schedule 2 of the Bill.
  • Location and method of voting: Bill 148 would expressly empower the Ontario Labour Relations Board to conduct votes outside the workplace, including electronically and by telephone, give directions in connection with votes and authorize persons to carry out certain Board powers. Transitional provisions are proposed to specify that these new powers would apply in respect of any certification application filed with the Board on or after the coming-into-force date of Schedule 2 the Bill, and that the Board would also have the discretion to apply the new powers in respect of certification applications filed prior to the coming-into-force date of Schedule 2 of the Bill, as long as the vote has not yet taken place.

You can comment on the above LRA proposal at Ministry of Labour, 400 University Ave., Suite 1502, Toronto, ON, M5G 1S7, or online here.

Review of exemptions and exclusions under employment standards and labour relations

A special rule changes how a provision of the ESA applies to a specific occupation or industry. An exemption means that a provision of the ESA does not apply to that occupation or industry.

As explained by the Ontario Ministry of Labour, the first phase of these consultations focuses on reviewing eight occupations currently exempt from, or have special rules related to, minimum employment standards:

  • Architects, who have special rules or exemptions related to:
    • Minimum Wage
    • Hours of Work
    • Daily Rest Periods
    • Time Off Between Shifts
    • Weekly/Bi-Weekly Rest Periods
    • Eating Periods
    • Overtime
    • Public Holidays
    • Vacation With Pay
    • Personal Emergency Leave
  • Domestic workers, who have special rules or exemptions related to:
    • Minimum Wage

Note: This phase of the consultation will also review the exclusion of domestic workers under the Labour Relations Act.

  • Homemakers, who have special rules or exemptions related to:
    • Minimum wage
    • Hours of work
    • Daily rest periods
    • Time off between shifts
    • Weekly/bi-weekly rest periods
    • Eating periods
  • IT professionals, who have special rules or exemptions related to:
    • Hours of work
    • Daily rest periods
    • Time off between shifts
    • Weekly/bi-weekly rest periods
    • Eating periods
    • Overtime
  • Managerial and supervisory employees, who have special rules or exemptions related to:
    • Hours of work
    • Daily rest periods
    • Time off between shifts
    • Weekly/bi-weekly rest periods
    • Overtime
  • Pharmacists , who have special rules or exemptions related to:
    • Minimum wage
    • Hours of work
    • Daily rest periods
    • Time off between shifts
    • Weekly/bi-weekly rest periods
    • Eating periods
    • Overtime
    • Public holidays
    • Vacation with pay
    • Personal emergency leave
  • Residential building superintendents, janitors and caretakers, who have special rules or exemptions related to:
    • Minimum wage
    • Hours of work
    • Daily rest periods
    • Time off between shifts
    • Weekly/bi-weekly rest periods
    • Overtime
    • Public holidays
  • Residential care workers, who have special rules or exemptions related to:
    • Minimum wage
    • Hours of work
    • Daily rest periods
    • Time off between shifts
    • Weekly/bi-weekly rest periods
    • Eating periods
    • Overtime

More information on exemptions and special rules under the ESA can be found here.

Interested stakeholders can provide feedback in the form of written submissions by December 1, 2017 by email at Exemptions.Review@ontario.ca

The Ontario Ministry of Labour is consulting directly with the regulatory bodies for pharmacists and architects as part of its review of the ESA exemptions that apply to these occupations. The regulatory bodies will be conducting their own consultations with their members and the public and will report their feedback to the Ministry. Those interested in participating in the regulatory bodies’ consultations should visit the links below on the Regulatory Registry website:

To facilitate the consultation process for the other occupational groups included in Phase I of the review, the Ministry of Labour has prepared ESA Exemptions Toolkits. To obtain more information about these occupational groups and how to participate in the consultation process, visit the links below on the Regulatory Registry website:

An LRA Exclusions Toolkit has also been prepared for domestic workers with respect to their exclusion from the LRA. For more information about this occupational group and how to participate in the consultation process, visit the link below on the Regulatory Registry website:

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