Ontario Bill Tabled to Repeal Liberal Employment Standards Reforms

On October 23, 2018, the Conservative Ontario government tabled Bill 47, Making Ontario Open for Business Act, 2018 to repeal certain amendments made by the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) that implemented reforms and more job protections under the Employment Standards Act and Labour Relations Act. In addition, Bill 47 repeals Ontario Regulation 375/18 dealing with public holiday pay and makes changes to the apprenticeship program.

Bill 47 is divided into three parts. Schedule 1 deals with changes to the Employment Standards Act, schedule 2 deals with changes to the Labour Relations Act and Schedule 3 introduces new changes to the Ontario College of Trades and Apprenticeship Act, 2009.

This article deals only with changes to the Employment Standards Act under Bill 47. We will provide an overview of the changes to the Labour Relations Act reforms next week.

Bill 47, when enacted, will make the following changes to the Employment Standards Act:

Minimum wage

Bill 47 eliminates the $15 per hour minimum wage increase scheduled for January 1, 2019, officially. This amendment will also restore the annual minimum wage increase to the rate of inflation adjustment on October 1 of every year starting in 2020.

Personal emergency leave

Bill 47 repeals Section 50 (personal emergency leave) and replaces it by new sections 50, 50.0.1 and 50.0.2, “sick leave, family responsibility leave, bereavement leave” that introduce separate unpaid entitlements to sick leave, family responsibility leave and bereavement leave. It also repeals the definition of “personal emergency leave pay” in subsection 1 (1) of the Act. The definition of “regular wages” in subsection 1 (1) of the Employment Standards Act is amended by striking out “personal emergency leave pay” and “section 50.”

Sick leave

An employee who has been employed by an employer for at least two consecutive weeks is entitled to three days of unpaid leave of absence in each calendar year because of a personal illness, injury or medical emergency.

• The employee must advise the employer before taking the leave of his or her intention, and if unable to do so, as soon as possible when taking the leave.
• An employer may require an employee who takes leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave, such as a doctor’s note. As a result, the prohibition on requesting doctor’s notes will be repealed.
• If an employee takes the leave and has already paid or unpaid sick leave entitlements under an employment contract, the Act states that if t

he employee does take a sick day whether it is paid or unpaid, it is deemed as taking a sick leave under the Employment Standards Act but must follow the same rules.

• If an employee takes any part of a day as leave, the employer may deem the employee to have taken one day of leave on that day.

Family responsibility leave

An employee who has been employed by an employer for at least two consecutive weeks is entitled to three days of unpaid leave of absence in each calendar year because of an illness, injury or medical emergency of an individual or an urgent matter that concerns that individual. Individual is defined in the ESA under subsection (3) as: the employee’s spouse; a parent, step-parent or foster parent of the employee or the employee’s spouse; a child, step-child or foster child of the employee or the employee’s spouse; a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse; the spouse of a child of the employee; the employee’s brother or sister; or a relative of the employee who is dependent on the employee for care or assistance.

• The employee must advise the employer before taking the leave of his or her intention, and if unable to do so, as soon as possible when taking the leave.
• An employer may require an employee who takes leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave.
• If an employee takes any part of a day as leave, the employer may deem the employee to have taken one day of leave on that day.
• If an employee takes any related family responsibility leave under an employment contract, the Act states that the day whether it is paid or unpaid is deemed as taking a family responsibility leave under the Employment Standards Act and must follow the same rules.

Bereavement leave

An employee who has been employed by an employer for at least two consecutive weeks is entitled to two unpaid days of leave because of the death of an individual described in subsection (3) of the ESA (see family responsibility leave.)

• The employee must advise the employer before taking the leave of his or her intention, and if unable to do so, as soon as possible when taking the leave.
• An employer may require an employee who takes leave to provide evidence reasonable in the circumstances that the employee is entitled to the leave.
• If an employee takes any part of a day as leave, the employer may deem the employee to have taken one day of leave on that day.
• If an employee takes bereavement leave under an employment contract, the Act states that the day whether it is paid or unpaid, is deemed as taking a bereavement leave under the Employment Standards Act and must follow the same rules.

Three hour rule and scheduling provision in force January 1, 2019

Bill 47 amends Part VII.1 and 2 that provides that employees are entitled to a minimum of three hours’ pay for shifts that are under three hours, except in certain circumstances. The three-hour rule does not apply if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work.

Scheduling changes under the same parts under the Employment Standards Act are also repealed and will not come into force on January 1, 2019, and include:

• employees will not have the right to request schedule and work location changes after three months of employment;
• employees who are on-call and called in for less than three hours or who are on-call but not called in will not be eligible for a minimum of three hours’ pay;
• employees who have a shift (or on-call shift) cancelled with less than 48 hours’ notice will not be eligible for three hours’ pay;
• employees who are scheduled to work a shift with less than 96 hours of notice will not be entitled to refuse the shift; and
• employers’ record keeping obligations regarding scheduling provisions.

Equal pay for equal work provisions

Bill 47 repeals equal pay for equal work on the basis of employment status (part-time, casual and temporary) and assignment employee status (temporary help agency status) provisions. However, the Bill is maintaining the requirement for equal pay on the basis of sex that was there before the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) came into force.

As a result, Bill 47 repeals section 1 (1) and the definition of “difference in employment status” in subsection 1 (1) of the Employment Standards Act.

Public holiday pay formulas

Public holiday pay is confirmed as being the total amount of regular wages earned and vacation pay payable to the employee in the four workweeks before the workweek in which the public holiday occurred, divided by 20.

As a result, the interim Ontario Regulation 375/18 that set the above formulas in place until December 31, 2018 is repealed.

Independent contractors

Bill 47 will repeal the requirement for the employer to prove that an individual is not an employee (“reverse onus”) where there is a dispute over whether the individual is an employee.

Penalties and offences

The penalties for contravention of the Employment Standards Act will all be returned to what was there before the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) came into force; therefore, decreasing the maximum penalties from $350/$700/$1500 to $250/$500/$1000, respectively.

What is not changing and remaining from the Fair Workplaces, Better Jobs Act, 2017

The Ontario government has decided to keep vacation after five years of employment to three weeks of paid vacation and the related record keeping requirements.

The government is also keeping the following provisions that were enacted under the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148):

• Domestic and sexual violence leave and the paid days requirement provisions for cases of domestic and sexual violence affecting an employee or an employee’s child in place.
• The child death and the critical illness leave for a child and an adult family member.
• The 12 weeks (pre-bill 148 was 6 weeks) increase to pregnancy leave in certain circumstances (still-birth or miscarriage).
• The increase to family medical leave from eight-week leave in a 26-week period to a 28-week leave in a 52-week period.
• Overtime pay when employee has two or more rates of pay.
• Extended parental leave for a period of 61 or 63 weeks.

The requirement for equal pay on the basis of sex that was there before the Fair Workplaces, Better Jobs Act, 2017 came into force will also remain.

What’s next?

Bill 47 has to progress through legislation to become law. When enacted, employment standards provisions under Bill 47 will come into force on the later of January 1, 2019, and the day Bill 47, Making Ontario Open for Business Act, 2018 receives royal assent. Section 2 comes into force on a day to be named by proclamation of the Lieutenant Governor.

Moreover, Bill 47’s subsection (2)’s definition of personal emergency leave and (3)’s definition of regular wages comes into force on the day it receives royal assent. The balance, except section 2, comes into force January 1, 2019.

Employers have a lot of work ahead reviewing and revising, yet again, their workplace policies and practices. Or, better yet, they could decide to offer a greater benefit and leave some of the provisions of the Fair Workplaces, Better Jobs Act, 2017 that are not contrary to provisions under Bill 47 in place; for example, providing 2 or more of the sick, family responsibility and bereavement leave days as paid or increasing the employees hourly wage to $15 per hour. Just a thought!