Change is coming in Ontario

By Geoffrey Lowe and Stuart Rudner

Last week, the government of Ontario released the final report of the Changing Workplaces Review. The report acknowledges the widespread existence of precarious work arrangements in Ontario and suggests over 170 changes to the Employment Standards Act, 2000 (ESA), Labour Relations Act, and other employment-related legislation. 

Following dissemination of the report, Ontario Premier Kathleen Wynne outlined a number of changes that the government of Ontario would table at the gall 2017 sitting of the Legislative Assembly of Ontario. Some are based on the suggestions in the report, while others appear to arise independently. The key points are:

• The minimum wage will increase to $14.00 in 2018 and $15.00 in 2019.
• Increased vacation time after five years of service.
• Broader access to emergency leave provisions, including a period of paid leave.
• An increased focus on enforcement by the Ministry of Labour.

   The suggestions outlined in the report can be categorized under four broad headings:

• Enforcement
• Wage protection
• Harmonization
• General changes.

  Enforcement

  The report suggests the creation of a multi-tiered system to address ESA violations, with the director of employment standards responsible for triaging claims to be addressed as follows:

• The Ministry of Labour will focus on reprisal claims and complaints that are likely to lead to expanded workplaces investigations, with a focus on responding to claims within five days of receipt of the complaint.
• The Ontario Labour Relations Board (OLRB) will address claims not prosecuted by the Ministry of Labour.
• Complaints not addressed by the ministry or the OLRB will be heard by newly appointed vice-chairs, who will have the same powers as employment standards officers.

  Additionally, the government will publish and make accessible lists of pro bono lawyers and legal clinics, as well as undertake a campaign to increase employee and employer awareness of their rights under the ESA, and assist employers with establishing their own internal self-reporting systems. The overall impact of this is intended to be an increased access to justice for all parties in the system. 

  Wage protection

  The report suggests changes to the ESA, the Personal Property Security Act, and the Ontario Business Corporations Act (OBCA) to ensure employees receive their wages in the event their employer becomes insolvent. These changes would create a priority charge on company assets in favour of the director of employment Standards of up to $10,000 per employee. Additionally, a corporation’s directors would be responsible to the corporation’s employees for unpaid wages and vacation pay.

  Harmonization and exemptions

  The report suggests reconsideration of certain categories of employees currently exempted from the ESA, and the implementation of a new system for reviewing and considering how categories of employees are chosen for exemption from coverage under the ESA. 

  Reconsideration suggested by the report includes:

• Removal of the lower minimum wage rate for students and alcohol servers.
• Review of the means by which managers and supervisors are categorized as such.
• Review of IT professionals, pharmacists, and building superintendents.

  The report also suggests the creation of a committee-based system for reviewing existing and new exemptions under the ESA. Committees would include employer, employee, and government representatives, as well as subject matter experts where necessary.

  The report suggests all employees be entitled to access the emergency leave protections of the ESA, and that this not be limited to employers with 50 or more employees as it is now.

  Wynne confirmed that the Ontario government would include this suggestion in its legislative enactment by providing all employees with 10 days of emergency leave, with two of these days provided with pay.    

  General changes

  The broadest raft of changes suggested in this report and by Wynne are improvements to working conditions for nearly all members of the Ontario workforce, including:

• Providing temporary employees the same wage as full-time employees after six months of work.
• Increasing vacation time for long-service employees from two to three weeks.
• Regulating scheduling practices.
• Giving employees the right to request changes to their working arrangement after one year of employment, without fear of employer retribution for this request.
• Amending the “three-hour rule”, providing that employees who regularly work more than three hours who are required to work for a period of fewer than three hours be paid three hours at their standard rate. Wynne confirmed than any employee whose shift was cancelled within 48 hours of their scheduled shift would be paid at minimum of three hours pay as a result.    

Conclusion

The Changing Workplaces Review contains a number of suggested legislative amendments to both normalize treatment of employees in Ontario’s workforce and to improve their working conditions. This is combined with a recommendation both to focus on enforcing existing employment standards and to create a more responsive system to address employee complaints and employer misconduct. Many of the changes put forward by the government are clearly intended to protect those “lower level” workers who cannot negotiate the same terms and conditions as others, and need help to achieve some level of parity.

Despite Wynne’s remarks it remains unclear the extent to which these suggestions will be implemented, or when these will be addressed by the Legislative Assembly of Ontario. In the interim, this is a good opportunity for employers to review their HR policies and procedures to ensure that they are compliant with the law.