On November 21, 2018, the provincial government passed Bill 47, the Making Ontario Open for Business Act, 2018. The new law repeals much of the previous government’s controversial Bill 148, the Fair Workplaces, Better Jobs Act, 2017.
The most notable changes of Bill 47 include the following amendments to the Employment Standards Act, 2000 (the “ESA”) effective January 1, 2019:
- Maintaining Ontario’s current minimum wage at $14 per hour until October 1, 2020, with annual inflationary adjustments thereafter;
- Replacing current personal emergency leave entitlements by providing employees the right to take only 8 annual unpaid leave days, with specifically 3 days for personal illness, 2 for bereavement and 3 for “family responsibilities”;
- Repealing the current prohibition on the right to require a medical note to establish an employee’s entitlement to personal emergency leave;
- Repealing equal pay for equal work on the basis of employment status and assignment employee status (but maintaining the requirement for equal pay on the basis of sex);
- Repealing the averaging public holiday pay formula prescribed by Bill 148 and reinstituting the “old” public holiday pay formula;
- Repealing the reverse onus requirement for the employer to prove that an individual is not an employee where a classification as a contractor is disputed; and
- Decreasing fines payable by employers for violations of the ESA.
Bill 47 also cancels some of the Liberal government’s ESA amendments that were scheduled to come into force on January 1, 2019, including on-call pay, shift cancellation pay, and the right to request or refuse changes to scheduling or work location in certain cases.
Under Bill 47, the right of employees to receive three weeks of paid vacation after five years’ service is maintained. Bill 47 also maintains the current ESA leave provisions for cases of domestic and sexual violence affecting an employee or an employee’s child.
Bill 47 also amends the Labour Relations Act, 1995 as of November 21, 2018 by repealing card-based certification for workers in certain industries, repealing rules that required an employer to give their employees’ personal information to a union, reinstating the pre-Bill 148 test to certify a union as remedy for employer unfair labour practices during an organizing campaign, and reinstituting the employee’s right to reinstatement within six months following the start of a strike or lock-out.
We encourage employers to seek guidance on how the changes may impact their business and workplace policies, and whether they can change the existing entitlements of employees without risking a constructive dismissal claim.