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 and passed Bill 47, entitled Making Ontario Open for Business Act (“Bill 47”), which repeals 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. The focus of this piece are its changes to the Employment Standards Act (“ESA”).
Bill 47 represents a major shift for employers from Bill 148. Since the election, savvy employment lawyers have largely been advising employers 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 finally have some clarity (for the next four years, at least). Bill 47’s changes will largely eliminate proposed amendments to the ESA set to come into effect on January 1, 2019. Therefore, employers should start preparing their policies to reflect changes under the bill. 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 should be aware of:
Eliminates Equal Pay for Equal Work Based on Employment Status
Bill 47 repeals 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 repeals some of the most onerous and costly components in Bill 148 for industries that use on-call or flexible schedule employees. It removes 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 (“PEL”)
Bill 47 reduces the number of 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 will be without pay. It also repeals 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 employee’s 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, the Federal Government recently 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. Employers should expect additional changes to the ESA that will result in further de-regulation of Ontario’s employment laws. Therefore, employers 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.
What legal and business questions come to mind with the implementation of Bill 47? I welcome your feedback and questions on this topic. Please post your comments on our LinkedIn page at: Dickinson Wright Canada, on Twitter at @DWrightCanada or on my personal LinkedIn pages at: linkedin.com/in/Dylan-augruso-333a6762
Note: This post originally appeared on the Lawyer’s Daily website published by Lexis Nexis Canada Inc.