Bill 47

On October 23, 2018 the Government of Ontario introduced Bill 47, the Making Ontario Open for Business Act (“Bill 47” or the “Bill”) in the Ontario Legislature. Today, it received Royal Assent.

Below is a summary of the changes to both the Employment Standards Act (the “ESA”) and the Labour Relations Act (the “LRA”) pursuant to Bill 47.

As always, if you have questions regarding this Memorandum, please contact one of the local offices.

CHANGES TO THE ESA

Bill 47 alters a number of ESA provisions introduced through Bill 148. In particular:

• The increase in the minimum wage from $14 to $15 per hour effective January 1, 2019 is cancelled and the yearly minimum wage increase tied to the rate of inflation will be delayed until October 1, 2020.
• The section of the ESA which prohibited discrimination on the basis of employment status is repealed.
• The ten-day personal emergency leave (PEL) provision of the ESA is repealed and replaced with three separate leaves – the first for personal illness (three days), the second for family responsibility (three days), and the third for bereavement (two days). These leaves will be unpaid, thus reducing the total number of personal leave days under the ESA from 10 to 8, and eliminating the two paid sick days introduced by Bill 148. In addition, employers will now be able to require a doctor’s note or other evidence reasonable in the circumstances to support an employee’s entitlement to leave.
• All of the scheduling protections introduced through Bill 148 and set to come into force on January 1, 2019 are repealed. This includes the right to refuse a request to work where the request is made with less than 96 hours’ notice; the right to three hours’ pay where the employee is on-call and works less than 3 hours; the right to 3 hours’ pay where an employer cancels an employee’s shift with less than 48 hours’ notice; and the right to request changes in a work schedule or work location. The rule guaranteeing employees a minimum of 3 hours’ pay where a worker has their shift reduced to less than 3 hours during the course of a work day will remain in the ESA.
• The Government has repealed the “reverse onus” provision which requires an employer to prove an individual is not its employee. This language was introduced by Bill 148 in an effort to combat the misclassification of employees as independent contractors.
• Fines for contraventions of the ESA are reduced.

Some of the ESA changes introduced through Bill 148 remain. They are as follows:

• Three weeks’ vacation for those employees who have 5 or more years of service.
• Paid (and unpaid) leave for victims of domestic and sexual violence.
• Changes to pregnancy, parental, critical illness, and family medical leave that correspond to changes in the federal Employment Insurance Act.
• Minimum 1 weeks’ notice or pay in lieu of notice for temporary workers with assignments that were anticipated to last at least 3 months, but are terminated early.
• Increased leaves for parents who are abducted and subsequently found deceased.
• Simplified rules for overtime pay for workers who have different rates of pay depending on the specific work being performed.
• The elimination of the requirement to show an intent to defeat ESA rights when establishing two businesses constitute a single employer.
• The designation of Family Day as a public holiday in the ESA (as opposed to in a regulation as it was pre-Bill 148).

CHANGES TO THE Labour Relations Act

In addition to changes to the ESA, Bill 47 repeals or amends a number of union-friendly provisions introduced through Bill 148. In particular:

• The provision allowing unions to obtain employee contact information where it can show it has the support of 20% of a proposed bargaining unit is repealed. Unions in possession of such lists pursuant to previously issued Board orders will be required to destroy them.
• Card-based certification is eliminated for workers in the building services, homecare, and temporary help agency industries.
• The provision allowing unions and employers to access automatic first contract mediation-arbitration (including requests for labour relations education from the Ministry of Labour) is repealed, and the pre-Bill 148 language in respect of first contract arbitration is restored. In addition, a party applying for conciliation must now file a copy of the most recent collective agreement with its request. In addition, under Bill 47, all collective agreements in Ontario must be filed with the Ministry of Labour.
• The provision granting employees an unconditional right to return to work at the conclusion of labour dispute, including the right to displace replacement workers hired during the course of the dispute, is repealed and the pre Bill-148 language is restored.
• The provision making it easier for unions to access remedial certification is repealed, and the pre-Bill 148 language is restored.
• The provision giving the Board the power to consolidate newly certified bargaining units with existing bargaining units upon application by an employer or union is repealed.
• Fines for contravention of the LRA are reduced.

Certain Bill 148 amendments to the LRA remain. They are as follows:

• Successor employer protection in the building services sector (including security services) remains. However, Bill 47 repeals the power of the Government to extend these protections to other sectors through regulations.
• Bargaining unit employees continue to have statutory just cause protection against discipline or discharge from the period of certification until the ratification of a first collective agreement.
• Bargaining unit employees continue to have statutory just cause protection against discipline or discharge from the time the bargaining unit is in a lawful strike position until the ratification of a new collective agreement.