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The More Things Change… Ford Government Rolls Back Bill 148

On November 21, 2018, Bill 47—the Making Ontario Open for Business Act, 2018—received royal assent. Bill 47 makes numerous amendments to the Ontario Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA), and the Ontario College of Trades and Apprenticeship Act, 2009. As outlined earlier, Bill 47 revisits the previous Liberal government’s labour reforms included in Bill 148 and eliminates many of its most controversial aspects.

The effective dates of the changes as outlined in Bill 47 are as follows:

  • The majority of changes with respect to the ESA come into force on January 1, 2019.
  • The changes with respect to the LRA came into force upon royal assent (November 21, 2019).

A summary of some of the significant changes is provided below.

EMPLOYMENT STANDARDS ACT, 2000

  • The scheduled minimum wage increase effective January 1, 2019 is cancelled. The $14.00/hr minimum wage will be maintained and will be re-indexed beginning in October 2020.
  • Equal pay for equal work will be removed on the basis of employment status and assignment employee status. However, the requirement for equal pay on the basis of sex will be maintained.
  • The 2 paid personal emergency leave days will be removed. Personal emergency leave days will be provided up to 8 unpaid days consisting of up to 3 days for personal illness, 3 days for family responsibility, and 2 days for bereavement. Employers will not be prohibited from asking for a certificate from a qualified health practitioner as evidence to support the request for personal emergency leave days.
  • For employees who regularly work more than 3 hours per day but attend work and thereafter work less than 3 hours, the employer will be required to pay wages equivalent to 3 hours of pay.
  • The new scheduling and on-call provisions will be revoked.
  • The reverse onus on employers regarding independent contractors will be repealed.

LABOUR RELATIONS ACT, 1995

  • The ability for trade unions to apply, when there is no certified bargaining agent for the employees, for an order requiring an employer to provide the trade union a list of all employees is revoked. Any applications under this section are immediately terminated and trade unions must destroy any employee lists they have received.
  • The Ontario Labour Relations Board is no longer required to certify a trade union for certain employer contraventions of the LRA.
  • The ability of the Ontario Labour Relations Board to review the structure of bargaining units and grant certain orders in certain circumstances is repealed.
  • The expansion of automatic, card-based certification for industries outside of construction is revoked.
  • Educational support in the practice of labour relations and collective bargaining is revoked.
  • The new first contract arbitration provisions are reversed.
  • Collective agreements will now be publically available on the Government of Ontario website.
  • The increase in fines for convictions under the LRA is reversed.
  • New methods of delivering notices and communications under the LRA are contemplated and corresponding presumptions with respect to receipt of these communications are included in the LRA.

Bill 47 did not repeal the increased vacation benefits nor the new leaves of absence (i.e. Child Death and Domestic or Sexual Violence Leave) which were introduced by Bill 148. Nonetheless, employers throughout the province will likely welcome these amendments which will help eliminate some of the uncertainty that was introduced along with Bill 148.

For those interested, the Ontario Minister of Labour, Laurie Scott, will be the keynote speaker at Dentons Canada LLP’s upcoming Labour, Employment and Pensions seminar on Friday, November 30. For more information regarding the seminar, please click here.

The More Things Change… Ford Government Rolls Back Bill 148

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

Terminating for Financial Reasons? Don’t Expect the Courts to Help You Out

Employers who undertake reductions in force due to financial difficulties should not count on employee notice periods being reduced as a result of the financial troubles.  This point was recently emphasized by the Ontario Court of Appeal in the decision of Michela v. St. Thomas of Villanova Catholic School.

Michela, Gomes and Carnovale were long-term teachers at St. Thomas of Villanova Catholic School, with 11, 13 and 8 years of service respectively.  All worked under a series of one-year contracts.  In May of 2013, the employer advised each of them in writing that they would not receive a contract renewal for the coming year because enrolment was expected to be lower.  Subsequently, in June of 2013 each of them was provided with a termination letter and advised that notice was not owed because they were employed pursuant to fixed-term contracts.

The claims were dealt with by summary judgment, and the motions judge determined that due to the succession of fixed-term contracts, the employees were really indefinite term employees and entitled to common law notice of termination.  However in determining that the reasonable notice period for each employee should be 6 months rather than the 12 months which was claimed, the judge made reference to the employer’s poor financial position.
In overturning the decision, the Court of Appeal made reference to the Bardal factors used to calculate reasonable notice at common law: the employee’s character of employment, length of service, age, and availability of similar employment having regard to experience, training and qualifications.  The Court found that the motions judge had mistakenly viewed “character of employment” through the lens of the employer rather than the employees, and stated that the financial position of the employer does not factor into the calculation of reasonable notice.  The court confirmed that while an employer’s financial position may be the reason for a termination without cause, the financial position of the employer does not justify a reduction in the notice period in bad times nor an increase when times are good.

For employers considering reductions in force during difficult times, it may be best to consider other options such as a temporary layoffs, ensuring that proper termination provisions are in place which provide only statutory minimums in the event of termination, or the provision of working notice.  While legal advice should be sought in order to ensure the best plan of action, it is clear at the very least that employers should not count on a reduced notice period due to a difficult financial position.

The decision in Michela v. St. Thomas of Villanova Catholic School can be read here:  http://www.ontariocourts.ca/decisions/2015/2015ONCA0801.htm.

Terminating for Financial Reasons? Don’t Expect the Courts to Help You Out

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

Ontario’s Pay Equity Commission Publishes Interpretative Guide to Pay Equity Act

Ontario’s Pay Equity Commission recently published an interpretative guide designed to help employers understand their obligations under the Pay Equity Act. Introduced in 1987, the Pay Equity Act’s stated purpose is “…to redress systemic gender discrimination in compensation for work performed by employees in female job classes.” It applies to all private sector employers in Ontario that have ten or more employees and all public sector employers.

In addition to setting out the requirements for achieving and maintaining pay equity, the Guide also highlights the pay equity office’s pro-active monitoring program which it has undertaken in recent years to ensure that employers are complying with their statutory obligations.

To access the Guide online, please visit: http://www.payequity.gov.on.ca/en/resources/guide/ope/index.php

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Ontario’s Pay Equity Commission Publishes Interpretative Guide to Pay Equity Act