The Ontario government’s proposal for the modern workplace and what it means for millennials
Recently, the Ontario government released its long-awaited Final Report of the Changing Workplaces Review. This report suggested approximately 150 changes to several pieces of legislation, amongst them the Employment Standards Act, 2000. Shortly after its release, the government announced Bill 148, the Fair Workplaces, Better Jobs Act, 2017, which contains the government’s suggested changes to the act, some of which go beyond the changes suggested in the report. However, a number of positive changes that were suggested in the report appear to have been omitted from the government’s consideration. The first reading of Bill 148 took place on June 1, 2017. Bill 148 was subsequently ordered to the Standing Committee on Finance and Economic Affairs for review and comment.
The workplace is being revolutionized and the casualties are the millennials. They are caught between wanting to be part of the Canadian workforce and not being properly admitted to it. Millennials, who form the most significant population of the workplace today, are being relegated to temporary, part-time and contract positions, without any means to become full-time permanent members of working society.
This is bad for the economy, as if we do not have permanent employees, they will not be spending. It is bad for morale, as we will witness a generation of workers living from paycheque to paycheque in a type of welfare state. It is bad for the social sphere, as millennials will live with their parents, not being able to afford to move out, which will, in turn, lead to less or no socializing, not dining out, not qualifying for loans or mortgages, and of course, this leads back up to not spending on our economy.
The solution to this quagmire of the part-time worker is for both employers and employees to change the way they function. Millennials have to battle the stereotype of being given participant ribbons for showing up and employers need to embrace a new workplace. Both parties must work together to achieve it.
The changes to the Ontario Employment Standards Act, 2000 (the act) suggested in the newly-announced Bill 148 can be categorized under five headings: Wages, Wage Protection, Working Conditions, Leaves of Absence and Vacation, and Enforcement.
The Ontario government has stated that the changes suggested in Bill 148 are suggestions only and a broad group of stakeholders will be consulted on the feasibility of implementing these changes. Accordingly, the suggestions outlined here are in no way guarantees of what amendments to the act will be implemented.
Wages
The most publicized change is the increase in Ontario's minimum wage. This will give at least 30 per cent of Ontario workers a substantial raise, first to $14 per hour in 2018, and to $15 in 2019. Subsequent increases to the minimum wage will be tied to inflation.
Other suggested changes are more subtle. All workers at an employer performing the same job are now required to be paid the same rate, irrespective of their status with the employer, whether they are full- or part-time, or if they are casual, temporary, seasonal, or permanent employees. This is bolstered by the right to request, without the threat of repercussion, that their employer review their wages if they feel they are not being compensated at the same rate as another employee performing the same work, or to ask another employee about his wage rate.
The Final Report of the Changing Workplaces Review suggested that wages for certain workers — including students and alcohol servers — be brought into line with every other worker, which strangely was not included in the government’s proposed amendments. As such, students and alcohol servers, many of whom are students and millennials, will remain at a lower rate of pay, despite the minimum wage being increased. The continued existence of this multi-tiered wage system runs contrary to the stated goal of the update to this law, and fails to provide any additional protection to vulnerable employees.
Wage protection
The report also suggested a change to the act and the Personal Property Security Act to allow employees to recover outstanding wages at a higher rate than is presently available under the Wage Earner Protection Program (WEPP) under the Bankruptcy and Insolvency Act (to a maximum of $10,000 instead of the current amount of $3,946.16 under WEPP) in the event their employer becomes insolvent. The report also suggested a fundamental change to the Ontario Business Corporations Act (OBCA) that would allow employees to claim outstanding wages from a corporation’s directors. Under the current structure of the OBCA, directors and officers of a corporation (who in many cases are also the corporation’s owners) may rely on the corporation’s limited liability status to avoid being ordered to pay workers any outstanding wages out of their own pockets in the event their corporation becomes insolvent. The changes suggested in the report would have represented a dramatic change in corporate law, and would have been a first not only for Ontario but for Canada as a whole. Bill 148 fails to include either of these proposals.
Rather, the focus of the government’s proposed amendments are on ensuring that workers get paid outstanding wages, instead of addressing issues related to insolvency. Employment standards officers will now have the authority to order employers to pay employees their outstanding wages directly, without going through the current process of using the Ministry of Labour as an intermediary. Where these wages have remained outstanding for a lengthy period, the government may order that their payment include interest. The Director of Employment Standards may now also employ collectors to obtain outstanding wages, who will be permitted to undertake standard collector’s activities, including issuing liens and holding securities.
Working conditions
The most dramatic impact of the government’s suggestions will be to the working conditions of most Ontario workers. This will provide workers more input into their working conditions, and force employers to more carefully consider how they assign work.
Changes that will impact workers include:
• The right for workers to request changes to their working location and schedule, without fear of retribution
• The right for workers to refuse a shift change made without sufficient notice (four days), without fear of retribution
• The right for a worker to be compensated with at least three hours’ pay if they are called in for under three hours of work, or if their shift is cancelled within 48 hours of its scheduled start
• The right for workers to be compensated at three hours of pay for every 24-hour period they spend on-call
• The right for workers to be compensated at their highest rate of pay when working overtime if they are normally compensated at different rates of pay for various tasks at their employer.
Greater responsibilities for employers in relation to the act include:
• A change to the test in the act for determining joint liability of multiple employers and corporate structures
• A prohibition on classifying employees as independent contractors.
The change to the law regarding misclassification of employees as independent contractors will provide a great deal of additional protection for precariously employed individuals, whose incorrect classification as an independent contractor stands to benefit the employer by permitting them to skirt tax, workers’ compensation, and employment standards laws while doing little to nothing to benefit the employee.
Leaves of absence and vacations
The government’s suggested changes will also lead to an increased accessibility to emergency leave for nearly all workers in Ontario. The most substantial change in this respect is the removal of the threshold for the availability of leave: previously, there needed to be at least 50 employees at an organization for its staff to be able to avail themselves of the act’s emergency leave provisions. Now, the government’s suggested changes will provide each employee, regardless of the size of the employer, up to 10 days of emergency leave each year, with two of these provided as paid time off. Significantly, employers will be prohibited from requiring any form of medical documentation from their employees before providing this leave. The reasons for requesting this leave will also expand to include addressing issues surrounding domestic violence.
The government’s suggestions include an increase in family medical leave from its current length of eight weeks per 52-week period to 27 weeks per 52-week period. Regrettably, Bill 148 remains silent as to whether the 50-employee threshold be removed for this and all other leaves of absence in the act.
Long-service employees (more than five years) will also see an increase in vacation, from two weeks to three, with a corresponding increase in vacation pay to correlate to the additional week of vacation.
Enforcement
These new provisions are irrelevant without a commitment to enforcement: a law is only as good as the governing body’s enforcement of it. The report suggested expansion of the enforcement provisions of the act to make the Ministry of Labour more responsive to claims by creating a triage system for addressing and assigning claims to different tiers in the ministry. The government’s suggested changes do not incorporate this. Instead, the ministry will be provided funding to hire up to an additional 175 employment standards officers.
The changes proposed in the report would have represented a sweeping change to the way claims under the act are addressed and prosecuted. Instead, by providing only for additional employment standards officers to field complaints without a more comprehensive adjudication system to back them up, Bill 148 provides more of the same, both literally and figuratively.
This increase is warranted, as a number of the suggested changes are likely to lead to a drastic influx of new claims. The Director of Employment Standards is also instructed to take on claims it would not have accepted previously — specifically, cases where the complainant has not provided the investigating officer with all the necessary information. Additionally, the current requirement that the employee attempt to address the matter with his employer before filing a complaint with the Ministry of Labour would be removed.
Finally, the government suggests increased fines for violations of the act, as well as a new program to identify parties convicted of these violations: the perpetrator, their wrongdoing, and the associated penalty will all be named.
Ultimately, all employees and employers want a sense of belonging, meaningful work, and a paycheque to live on so they can invest in the economy. While the proposed changes make some headway towards achieving this, unless Ontario’s government goes further, not only will millennials remain the casualties, but the rest of the workplace too, as we will not have the robust economy necessary to support the workplace as we have known it.
