Ontario reverses Bill 148’s sweeping employment law changes
By Dylan Augruso
For Ontario’s government and its lawmakers, 2018 was a year full of discussion, debate, lobbying and eventually re-writing of Ontario’s employment laws. However, the final result was not very much change at all.
On June 1, 2017, following two years of consultation, Ontario’s Liberal Government unveiled the Fair Workplaces, Better Jobs Act, 2017 (Bill 148), which introduced some of the widest-sweeping changes to Ontario’s employment legislation in the province’s history. The changes did not last long; less than one year after Bill 148 was passed, Premier Doug Ford’s Progressive Conservative (PC) Government tabled the Making Ontario Open for Business Act (Bill 47), which repealed many amendments to Ontario’s employment legislation made by Bill 148. In total, Bill 47 contains more than 200 provisions affecting nine different pieces of legislation.
Overview
Bill 47 represented a major shift for employers from the changes expected under Bill 148. Since the 2018 election, savvy employment lawyers advised employers and their human resources professionals to hold off on making major employment and human resources changes in preparation for the Bill 148 amendments set to take place in 2019.
After months of employing a “wait and see” approach before making any drastic changes to their policies, employers received some clarity (for the next four years, at least) when Bill 47 received Royal Assent in late November 2018. Bill 47’s changes eliminated most of the proposed amendments to the Employment Standards Act (ESA), which were set to come into effect on Jan.1, 2019. Employers and their staff should prepare their policies to reflect changes under Bill 47. In many cases, reverting to an employer’s pre-Bill 148 policy will be sufficient.
Unfortunately, for those proactive employers who adjusted their policies in preparation for Bill 148, not all changes are reversible. For example, employers who have already adjusted permanent wages to balance out the increase in minimum wage (in preparation for the enforcement of Bill 148), cannot simply roll back wages already increased.
Below are some additional insights related to Bill 47 that employers and human resources professionals should be aware of.
Eliminates equal pay for equal work based on employment status
Bill 47 repealed the requirement for employers to provide “equal pay for equal work” on the basis of employment status (part-time, casual and temporary) and assignment employee status (temporary help agency status). Under Bill 148, employers were required to pay part time, casual, temporary and assignment employees at the same rate as a full-time employee conducting the same work.
Critics of Bill 47 have argued that rolling back this change permits discrimination on the basis of employment relationship. However, employers have defended it, arguing it will help stimulate more hiring, particularly for seasonal and casual work. Employers will be able to hire workers to accommodate the needs of their business, at a rate commensurate with temporary or seasonal employment. There will be no requirement to match temporary or seasonal employee salaries and benefits to those of full-time employees of the employer.
Eliminates notice for schedule changes
Bill 47 repealed some of the most onerous and costly components in Bill 148 for industries that use on-call or flexible-schedule employees. It removed the right of workers to refuse shifts assigned with less than 96-hours’ notice and eliminates the requirement for employers to provide three-hours pay for cancelling shifts on short notice. Employers will be able to continue to use on-call employees at no cost unless they attend work.
Reduces personal emergency leave
Bill 47 reduced the number of Personal Emergency Leave (PEL) days introduced under Bill 148 to up to three days for personal illness, two for bereavement and three for family responsibilities. Unlike Bill 148, all PEL days are without pay. It also repealed the provision of Bill 148 that prohibits employers from requesting a medical note. Under Bill 47, employers have the right to require evidence of entitlement to leave that is reasonable in the circumstances (e.g. a medical note).
It is suspected that these changes will result in a reduction in the number of PEL days utilized by employees, with the hope of providing more certainty for employers in their scheduling and hiring practices. However, the reduction of PEL days will also have an immediate impact on employee rights in the workplace as employers will have the ability to hold employees accountable for all PEL days they take. Failure to provide evidence of entitlement to a PEL day by an employee could result in discipline by their employer.
The Federal Government moves in the opposite direction
Interestingly, in stark contrast to its provincial counterpart, in early November 2018, the Federal Government announced new legislation aimed at expanding workers’ rights; including three PEL days, scheduling rights and equal pay for part-time, temporary and casual workers in relation to their full-time counterparts – all protections which Ontario’s PC Government moved to repeal in Bill 47.
The newly announced updates to the Canada Labour Code will impact workers in federally-regulated sectors like airlines, telecommunications, trucking and banks, whereas the majority of employees in Ontario rely on provincial employment laws for their rights on the job. In announcing the changes, federal Employment Minister Patty Hajdu cited Bill 148 as the template for the federal changes and criticized the PC Government, calling it, “devastating to watch really fundamental protections be rolled back.”
What’s next for Ontario employers?
Unfortunately, there is no clear answer. There are indications that the PC Government is committed to further review of Ontario’s employment legislation to lessen the role of government in the employment relationship.
One recent example is Bill 57, entitled Restoring Trust, Transparency and Accountability Act, 2018 (Bill 57), which received Royal Assent on Dec. 6, 2018. Bill 57 suspended the introduction of the Pay Transparency Act (the PTA), which was passed by the previous Liberal Government with the aim of increasing pay and workforce composition transparency by addressing biases in hiring, promotion, employment status and pay practices. If proclaimed, the PTA will apply to both public and private sector employers and include:
- Measures to increase transparency in the hiring process, such as a requirement for all Ontario employers to indicate a compensation rate or range for all publicly advertised job postings.
- Anti-reprisal provisions that would prohibit employers from reprising against employees for discussing their compensation with their employer or co-workers.
- Reporting requirements for certain employers to report to the government annually on workforce composition and differences in compensation.
Although the PTA’s introduction is suspended, it has not been discarded. The PC Government has not made an official announcement on whether it will eventually introduce the PTA or what amendments may be made to it in anticipation of its introduction.
Employers should expect additional changes to Ontario’s employment laws that will result in further deregulation. Therefore, employers and their human resources staff are encouraged to closely monitor legislative sessions and media sound bites from the government for further indications about what is to come. With so much uncertainty on the horizon for Ontario employers, one thing is known: Continue to expect, and prepare for, change.
Dylan E. Augruso is a lawyer in Dickinson Wright’s Canadian Employment Law Group.