This section will highlight some of the more important changes set forward in "The Fair Workplaces, Better Jobs Act, 2017", passed November 22, 2017.

 

The Fair Workplaces, Better Jobs Act, 2017, also amends the Employment Standards Act, 2000 with respect to a wide variety of other matters including: overtime pay, public holiday pay, fines, penalties for non-compliance, expanded no reprisal provisions, transitional provisions, calculation of pay for time not worked, enforcement mechanisms, exemptions and students. We strongly advise you to visit the appropriate websites, indicated below, and decide how these changes affect your business. For more information, call the Ministry of Labour Health & Safety Contact Centre 1-877-202-0008. 

 

Increased minimum wage, new rules and calculation formula for Public Holidays, increased vacation for employees with more than five years of service, and new and extended leaves of absence

Effective date: January 1, 2018

Minimum Wage:

   2017  2018  2019
 Most Employees  $11.60  $14.00  $15.00
 Liquor Servers  $10.10  $12.20  $13.05
 Students*  $10.90  $13.15  $14.10
       
*special minimum wages applicable to students employed part-time or during school holidays
Wages will be adjusted annually, thereafter for inflation
 
Public Holidays:  Most employees are entitled to take the public holiday off and be paid public holiday pay according to the new calculation. Alternatively, the employee can agree in writing to work on the holiday and be paid:
  • public holiday pay plus premium pay for all hours worked on the public holiday and not receive another day off (called a "substitute" holiday), or
  • be paid their regular wages for all hours worked on the public holiday and receive another substitute holiday for which they must be paid public holiday pay.
The method of calculating the public holiday pay has been revised as well.

          Total amount of regular wages earned in the pay period immediately before the public holiday

                        divided by the number of days the employee worked in that period.

(Example:  John earned $500 in the previous pay period and he worked 4 days, therefore his holiday pay would be $125.)

Vacation: Currently, the ESA mandates two weeks' (4%) paid vacation for all employees. The new Act ensures that employers must provide at least three weeks' (6%) paid vacation to employees with at least five years' service.

Leaves of Absence: Personal Emergency Leave: All employers will be required to provide 10 days of personal emergency leave (PEL), per year, effective January 1, 2018 (previously this leave is only required at workplaces with 50 or more employees). Further, employers are required to pay regular wages for the first two days of the leave (if the employee has been employed for one week or longer). Additionally, the employer is prohibited from requiring a doctor's sick note from and employee taking PEL (although they may require other evidence reasonable in the circumstances).

Family Medical Leave: Family medical leave is extended from 8 weeks to 28 weeks if a "qualified health practitioner" issues a certificate stating that a family member has a serious medical condition with a significant risk of death occurring in 26 weeks or less. The definition of a "qualified health practitioner" is expanded to include a broader range of health practitioners.

Domestic or Sexual Violence Leave: A new leave for employees who have been employed for at least 13 consecutive weeks and if they or their child experiences the threat or act of domestic or sexual violence, and the leave is taken for prescribed purposes (which relate to seeking medical attention, victim services, counselling, and legal assistance). In each calendar year, an employee may take up to 10 days of leave and may take up to 15 weeks of leave as well. The first 5 days of leave in each calendar year under this entitlement are paid.

Child Death Leave: This is to replace the former "Crime Related Child Death or Disappearance Leave" with two distinct leaves: "Child Death Leave" and "Crime Related Child Disappearance Leave" - each provides an employee with at least six months' service with unpaid leave of up to 104 weeks.

Pregnancy Leave: Previously, where an employee is not entitled to parental leave, their pregnancy leave would end on the later of (a) 17 weeks after it began, and (b) six weeks after the birth, still-birth or miscarriage. This now increases the six week period to 12 weeks.

ACTION: Employers should budget for increased costs with respect to minimum wage, vacation, and leaves of absence. Employers should revise policies and procedures to address these changes.

For detailed information on how this can affect your business, please read the Bill 148 Explanatory Notes on the Province's website, by clicking here.


 

New scheduling rules represent major changes in how businesses operate 

Effective date: January 1, 2019

Reporting Pay: Three-hour minimum pay: Employees who regularly work more than three hours per day, but upon reporting to work are given less than three hours, must be paid three hours pay. This rule does not apply if circumstances beyond the employer's control result in the stopping of work.

On-call Pay: Three hour minimum pay: Employees who are "on-call" and not called into work, or who are called into work but work less than three hours, must be paid three hours pay. Only one three-hour minimum applies to all on-call scenarios which may occur during a 24-hour period. On-call pay is not required if the on-call is for purposes of ensuring the continued delivery of essential public services and the employee was not required to work.

Shift Cancellation: Three hour minimum pay: If an employer cancels a shift within 48 hours of its start, employees must be paid three hours pay (with an exception for cancellations due to circumstances beyond the employer's control and other prescribed reasons).

Request for changes to schedule or work location: Employees with at least three months service have the right to request a change to their work schedule or location of work. The employer is required to discuss the change with the employee, provide a response within a reasonable time, and provide reasons if the request is denied.

Right to Refuse: Employees can refuse to accept shifts if their employer asks them to work with less than 96 hours's notice (with an exception for employees ensuring the continued delivery of essential public services, to deal with an emergency, to remedy or reduce a threat to public safety, or for such other reasons as prescribed).

ACTION: Employers should turn their minds to the day-to-day operation of their business, including the scheduling of employees, so as to be prepared for the pending financial cost of planned, but not necessarily performed labour. 

For detailed information on how this can affect your business, please read the Bill 148 Explanatory Notes on the Province's website, by clicking here.


Equal pay for equal work provisions: casual, part-time, temporary help agency employees


Effective date: April 1, 2018


Employers are required to pay:

  • casual, part-time, temporary and seasonal employees at a rate of pay that is not less than the rate of pay for full-time employees, and
  • temporary help agency employees at a rate of pay that is not less than the rate of pay for permanent employees of the agency's client,

           

                     if -

  • the employees are performing substantially the same kind of work in the same establishment,
  • the work requires substantially the same skill, effort and responsibility; and
  • the work is performed under similar working conditions

 

Exceptions to these equal pay rules will exist where the difference in pay is based on factors other than sex or employment status, or based on the provisions of a collective agreement in force on April 1, 2018(examples would include a merit system or seniority).


An employee may request a review of his or her rate of pay, and the employer must either adjust the employee's pay accordingly or provide written reasons for not doing so. Employers are prohibited from reducing an employee's rate of pay in order to comply with the Equal Pay for Equal Work provisions.

ACTION: Employers should consider their employees' respective rates of pay and ensure that the basis for any differences do not contravene the amended ESA; they should also consult with any temporary help agencies for the same reason. Employers should train supervisors that any request for a review of the rate of pay needs to be immediately handled by a designated person, as it is a legally sensitive document.


For detailed information on how this can affect your business, please read the Bill 148 Explanatory Notes on the Province's website, by clicking here.


   

Extensions to the unpaid parental and critical illness leaves of absence


Effective date: December 3, 2017


Parental Leave: The length of parental leave is extended 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. The extension brings the leave provisions in line with recent changes to the Employment Insurance Act, which will allow employees to spread their parental benefits over a longer period of time.


Critical Illness Leave:This leave replaces the former "Critically Ill Child Care Leave" and is available to employees with at least six months' service. The leave provides for the following:

  • an unpaid leave of up to 37 weeks to care for a critically ill minor child (who is under 18 and a family member)
  • an unpaid leave of up to 17 weeks to care for a critically ill adult who is a family member (family member is broadly defined)

ACTION: Leave policies should be reviewed and updated according to the new law. In particular, employers with a policy of topping-up EI parental benefits to 100% of the employee's regular salary must consider how this will work now that employees can extend their parental leave over a longer period of time (and receive less EI each week from the government).


For detailed information on how this can affect your business, please read the Bill 148 Explanatory Notes on the Province's website, by clicking here.

 

Independent contractor/employee distinction: Reverse onus and criminalization

Effective date: November 22, 2017

The Fair Workplaces, Better Jobs Act, 2017 does not clarify the distinction between the two classifications but it does provide that:

  • if there is a question about whether someone is an employee or independent contractor, a 'reverse onus' is triggered, meaning that the burden is on the employer to prove that the person is an independent contractor (and therefore excluded from Employment Standard Act coverage) and not an employee
  • if a person is misclassified, meaning that the employer treats a person as an independent contractor but he or she is really an employee, the Ministry of Labour may commence a prosecution against the employer (the reverse onus provision does not apply in a prosecution)

ACTION: Employers should examine their relationship with individuals they presently do not treat as employees, such as independent contractors, and consider whether such individuals are properly classified as such for the purpose of ESA compliance.

For detailed information on how this can affect your business, please read the Bill 148 Explanatory Notes on the Province's website, by clicking here.


 

In connection with these legislative changes, the province has announced that it plans to hire up to 175 more employment standards officers, and inspect 1 in 10 workplaces every year. This means the Ontario Ministry of Labour will be placing a renewed emphasis on ESA compliance. 

The maximum fines under the province‚Äôs Labour Relations Act would also be increased, to $5,000 from $2,000 for individuals and to $100,000 from $25,000 for businesses and the Director of Employment Standards will be allowed to publish the names of the individuals who have been issued a penalty, along with a description of the circumstances leading to the penalty and the amount of the fine.  In addition, Employment Standatds Officers will be able to award interest on unpaid wages.

Again, we strongly advise you to visit the appropriate websites and decide how these changes affect your business.  For more information, call the Ministry of Labour Health & Safety Contact Centre 1-877-202-0008.