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Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

The Ontario government has just passed the Bill 148 which amends the Employment Standards Act and the Labour Relations Act with a target effective date of January 1, 2018.  The Bill still needs to receive Royal Assent.

Key changes to the Employment Standards Act will include:

  • Raising the general minimum wage to $14 per hour as of January 1, 2018 and $15 per hour as of January 1, 2019
  • As of April 1, 2018 requiring the same rate of pay as paid to full-time employees for employees doing substantially the same kind of work including temporary help agency staff, casual, part time, temporary and seasonal workers
  • Increasing the minimum vacation to three weeks per year after an employee has five years of service
  • Increasing parental leave for birth mothers who have taken maternity leave to 61 weeks (from the current 35 weeks);  increasing parental leave for adoptive parents and fathers to 63 weeks (from the current 37 weeks)
  • Extending the availability of personal emergency leave days to employers with under 50 employees
  • Requiring the first two days per year of personal emergency leave to be paid with the remaining eight days unpaid
  • Extending the leave of absence to 104 weeks for death of a child as a result of a crime to the death of a child for any reason
  • Increasing the current 52 week leave of absence in the case of child disappearance as a result of a crime to 104 weeks
  • Increasing family medical leave from 8 weeks to 28 weeks
  • Adding a new domestic violence/sexual violence leave of absence ; up to 10 days off and up to 15 weeks of leave per year will be available (first five days to be paid) where an employee or an employee’s child experiences domestic or sexual violence and needs time off for medical attention, counselling, to relocate, for legal assistance or law enforcement reasons

There are numerous changes that will come into effect on January 1, 2019 concerning scheduling including the following:

  • If a shift is cancelled within 48 hours of its start, employees will be paid 3 hours of pay
  • Employees can refuse a shift without repercussion if they receive less than 96 hours of notice
  • On-call employees who are either not called into work or work fewer than three hours must be paid three hours of their regular pay rate

The Ministry of Labour has announced that it will hire up to 175 additional Employment Standards Officers to enforce the changes.

Key changes to the Labour Relations Act will include:

  • Card-based union certification for the building services industry, the home care and community services industry and the temporary help agency industry
  • Allowing unions to access employee lists and certain contact information provided the union can demonstrate that it has the support of 20% of employees in the proposed bargaining unit.
  • OLRB can conduct votes outside the workplace, including electronically and by telephone
  • Employees in a bargaining unit may only be disciplined or discharged for just cause in the period between certification and the date on which a first contract is entered into, and during the period between the date the employees are in a legal strike or lock-out position and the date a new collective agreement is entered into (or the date on which the union no longer represents the employees)
  • Maximum fines will increase to $5,000 for individuals and $100,000 for organizations (formerly these fines were $2,000 for individuals and $25,000 for organizations).
Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

Federal Pay Equity Legislation Promised

Legislation coming to the Federally Regulated Employment Sector (and possibly provincially-regulated employers enrolled in the Federal Contractors Program)

The Canadian pay equity model requires employers to assess the value of female-dominated jobs and male-dominated jobs within an organization by evaluating the value of the jobs on the basis of skill, effort, responsibility and working conditions. Female-dominated jobs which are paid less than male-dominated jobs of the same or comparable value need to be paid the same.  This type of job evaluation permits jobs with entirely dissimilar job functions to be valued. The Equal Wages Guidelines, 1986 under the Canadian Human Rights Act was arguably the first piece of pay equity legislation in the country.  This was followed by private sector pay equity laws in Ontario and Quebec.  However, the provincial laws do not simply rely on employee or union complaints and, instead, set out a proactive compliance regime with various milestones and deadlines.  The Equal Wages Guidelines, 1986, on the other hand, are complaint-based and have a history of spawning notoriously lengthy litigation.

The Special Committee on Pay Equity tabled its First Report to Parliament on June 10, 2016. Among its 31 recommendations, the Special Committee recommends that the Government of Canada draft proactive gender pay equity legislation within 18 months of the tabling of the Report to apply to the federal public service, Crown corporations,  federally regulated companies with 15 or more employees, and companies participating in the Federal Contractors Program.  Federally regulated employers in Ontario and Quebec which can provide evidence of compliance with the provincial legislation would be exempt from the federal pay equity plan, monitoring and reporting requirements.

The Report recommends the creation of a pay equity commission and a pay equity tribunal. The legislation would require both unions and employers to be responsible for modeling, implementing, monitoring and maintaining pay equity plans and would prohibit unions and employers from negotiating collective agreements that would contravene the pay equity legislation.  In fact, it was recommended that the legislation should stipulate that any pay equity agreement would supersede a collective bargaining agreement.  A female-dominated job class would be one with at least 60% female incumbents for job classifications with 100 or more employees, or at least 70% female for job classifications with fewer than 100 employees.

The federal government announced in October 2016 that it first plans to consult with stakeholders and experts and then table proactive pay equity legislation by 2018. The legislation will cover 874,000 employees and 10,800 employers in the federal jurisdiction.  There has been no comment from the Government on the Report’s recommendation to extend the requirements to provincially-regulated private sector employers participating in the Federal Contractors Program.   The government has faced criticism from unions and from the NDP for delaying pay equity to 2018.

We will keep you posted.

Federal Pay Equity Legislation Promised

July 1 Changes to AODA Customer Service Standards

Effective July 1, 2016, the Customer Service Standard Regulation will be revoked.  An expanded Integrated Accessibility Standards Regulation will include all standards, including customer service requirements.

Following public consultations, there are certain changes to the accessible customer service standard:

Training Required for ALL Employees 

The primary change is with respect to the extent of training required on accessible customer service.  As you will recall, training on accessible customer service has been required for employees and third parties who work with customers or who participate in developing your policies on accessible customer service.  As of July 1, 2016 all employees must be trained on accessible customer service, as well as any third parties who provide goods, services or facilities on your behalf to the public or participate in developing your policies (for example, a member of your board of directors).  While the government has been notifying organizations that the training must be completed by July 1, 2016, the Regulation states that the training must take place “as soon as practicable”.  Ongoing training is also required on any changes to the company’s policy.  All organizations with 50 or more employees must keep records of the training provided, including the dates of training and the number of people trained.  We advise sign-in sheets or on-line logs with names included.  In addition, all organizations with 50+ employees must prepare a document that describes the training policy, summarizes the content of the training, specifies when training is to be provided and, on request, provide a copy of this document to any person who so requests.

Expanded Definition of “Service Animal”

While this is unlikely to affect many customer service policies, the definition of a service animal has been expanded to include a number of ways in which the individual with the service animal can confirm that they need the service animal for reasons relating to a disability.  Documentation from a number of different regulated health professionals will be acceptable, including, for example, a member of the College of Psychologists of Ontario.

Support Persons

In the event that your organization has health and safety reasons  to require a person with a disability to be accompanied by a support person when on your premises, you must consult first with the person with the disability, consider the available evidence and make a determination that the support person is necessary and there is no other reasonable alternative.

Expanded Feedback Process

The feedback process that you have established under the Accessible Customer Service Standard to allow the public to comment on how you provide accessible customer service has been expanded.  The feedback process must be accessible to people with disabilities, and accessible formats and communication supports must be provided on request.  Organizations with 50 or more employees must prepare a document describing the feedback process, provide this document to anyone on request and include a notice on the premises and/or on the website (or any other reasonable method) that this document is available upon request.

Because the Regulation now defines a large organization as having 50 or more employees, a business with 20 to 49 employees is no longer legally required to have the accessible customer service policy in writing or to make it public.  However, it is advisable, in our view, to have the policy in writing in the event of any complaints or disputes.

Reporting Online

As a reminder, the Regulation sets out the following timetable for filing the online compliance report:

  • Government of Ontario – annually commencing December 31, 2013
  • Public sector organizations – every 2 years commencing December 31, 2013
  • Large organizations with 50 or more employees – every 3 years commencing December 31, 2014
  • Organizations with 20 to 49 employees – every 3 years commencing December 31, 2014, but only with respect to the accessibility standards for customer service
  • Organizations with 1 to 19 – no online compliance reporting is required.

The Ontario government is preparing a new training module, expected to be available in August 2016.  In the meantime, you can access a free customer service training module at: http://curriculum.org/sae-en/index2.php Just click on the “Start course” button.

July 1 Changes to AODA Customer Service Standards

Benefits for Employees over Age 65

As of December 2006, the Ontario Human Rights Code was amended to abolish mandatory retirement. However, the provincial government intentionally did not make corresponding revisions to the Employment Standards Act or the Workplace Safety and Insurance Act. As a result, the law prohibits employer-initiated termination of employment because an employee has reached the age of 65. Voluntary retirement remains acceptable and common. However, employees who work past age 65 are not covered for work-related injuries and need not be covered by group benefit plans. The maximum period for which loss of earnings benefits will be paid under the workers’ compensation system is two years after the date of injury if the employee was age 63 or older on the date of injury. While some employers have arranged for benefit plans to cover employees over age 65, given the increased premium costs, this can lead to a decrease in benefit coverage for all employees or other types of trade-offs. In addition, some unionized employers have been required to provide group health benefits to employees over age 65 due to the wording of a collective agreement – typically a benefits clause which describes the benefits for all members of the bargaining unit.

It was foreseeable that this hybrid status of a worker over age 65 – legally protected from mandatory retirement but not legally protected to receive continued benefits – would lead to litigation. Such an employee would face difficulty succeeding with a complaint under the Employment Standards Act, Human Rights Code or Workplace Safety and Insurance Act since these provincial laws all permit this differentiation.

The Human Rights Tribunal of Ontario (HRTO) is currently hearing such a case. The employee is a unionized teacher who is representing himself. His union cannot bring forward a grievance because it has reached an agreement with the school board in exchange for lump sum payments to teachers over age 65. Nor is the union appearing at the HRTO proceedings. So far, there have been a number of Interim Decisions and Case Assessment Directions issued in the case and the teacher has been unsuccessful in alleging unlawful age discrimination. The final argument, which continues to proceed through the HRTO process, is whether the Human Rights Code of Ontario contravenes the equality rights provisions of the Canadian Charter of Rights and Freedoms, a significant legal challenge for a lone, unrepresented employee.

We will be following this important case as it continues to unfold.

Talos v. Grand Erie District School Board, 2013 HRTO 1949; 2014 HRTO 529

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Benefits for Employees over Age 65

Compliance Reminder – Ontario Pay Equity Commission is open for business

The Pay Equity Act of Ontario requires every provincially regulated employer with ten or more employees to ensure that pay equity exists in the workplace. This is not a one-off compliance requirement. Rather, employers must maintain pay equity on an ongoing basis. This means that both unionized and non-union employers need to re-visit their pay equity compliance when changes occur in the workplace such as the creation of new job classes, significant changes to job duties, elimination of a prior male comparator job class or a business acquisition or reorganization. Pay equity compliance is voluntary and self-directed. However, the Pay Equity Commission operates two programs that permit the Commission to reach out to employers even in the absence of a complaint in order to determine whether the employer is pay equity compliant. These two programs are described briefly below.

Monitoring Program

The Monitoring Program has been underway for a number of years. By September 30, 2010 (most recent date for which information is publicly available), the Monitoring Program had contacted over 3,000 Ontario employers. In the past, the Pay Equity Commission tended to focus on particular industry sectors (for example retail, food) or geographic areas (for example Greater Toronto Area and northern regions of the province). However, the Monitoring Program is currently focussed on contacting employers who were flagged as part of the Wage Gap Program or did not respond to a contact under the Wage Gap Program. Pursuant to the Monitoring Program, the Pay Equity Commission contacts employers to request three years of compensation data and information about jobs, locations and the employer’s pay equity process. The Review Officer can require up to seven years of data where concerns are raised. If the employer is not compliant with the Pay Equity Act, the Review Officer will require compliance pursuant to a set time line.

Wage Gap Program

The Wage Gap Program was launched in 2011. Its goal is to cover all Ontario workplaces to determine whether wage gaps persist. Using the Dunn & Bradstreet listing of employers, the Pay Equity Commission has completed its pilot project of canvassing employers with 500 or more employees. As it winds down phase two, covering employers of 250 to 499 employees, it is now turning its focus to employers with 100 to 249 employees. Employers are not required to produce employee data for the unionized work force. Currently the Wage Gap Program is not contacting employers which have been visited by the Pay Equity Commission within the last ten years. If an employer does not respond by the deadline or the wage data indicates possible pay inequities, the file is referred to a Review Officer.

Our advice

The Pay Equity Act is unusual in that it does not include a limitation period. Therefore, it is possible for the Pay Equity Hearings Tribunal to order an employer to comply retroactively to a date in the early 1990’s, depending on when the company began operations in Ontario and depending on the size of the work force. We strongly recommend that all employers become compliant with the pay equity requirements, generally by selecting a realistic retroactivity date for which the employer has sufficient data about pay, gender dominance and job duties. Be sure that all new positions are evaluated under your job evaluation system. Keep records so that you can show compliance at least to your selected retroactivity date. Build pay equity compliance into the H/R systems by ensuring that all jobs have up to date job descriptions, all positions are evaluated under your job evaluation system and all newly created positions are immediately evaluated and paid according to your job evaluation system.

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Compliance Reminder – Ontario Pay Equity Commission is open for business