Taking a step back in time: Ontario’s ESA turns 50 years old

Original document held unique provisions for females working nights

This year, Ontario’s employment standards legislation marks a milestone. It has reached the half-century mark.

On Jan. 1, 1969, the provincial government implemented the Employment Standards Act, 1968. The new legislation consolidated other acts that addressed working conditions such as hours of work, vacations, and minimum wages, bringing employment standards rules together in one act for the first time in Ontario.

Compared to today’s legislation, the original ESA was short, with only 39 sections. (There are more than 140 now.) The original act did not address leaves of absence, terminations, or severance pay. They would come later.

A look back at the first ESA reveals how much employment rules have changed in Ontario over five decades and where they are still similar.

In 1969, the act set the maximum hours of work at eight per day and 48 per week, with employers allowed to apply for permits for longer hours. The maximums, which still exist today, applied under a previous Hours of Work and Vacations with Pay Act, which the ESA replaced.

One big change in the new act was that employers had to pay employees 1.5 times their regular rate for overtime hours. It was the first time overtime rules in Ontario required employers to pay employees more than their regular rate.

It applied when employees worked more than 48 hours a week, compared to today’s 44-hour threshold.

A Toronto Star article from May 28, 1968, reported then-labour minister Dalton Bales saying the new overtime rules would bring employment standards more in line with those of unionized workers and encourage employers to hire more workers.

In addition, by requiring employers to pay more for overtime, the new rules would also “ensure that employees are not required to work excessive overtime hours,” said Bales.

The overtime pay proposal was controversial. The Star article quoted an employer as saying it would be “disastrous,” while a union official called it a “gimmick that would affect ‘only a handful of people.’”

In a June 6, 1968, Toronto Star article, a union representative dismissed premium pay for working overtime, saying he was more concerned with the government setting new minimum wage rates. At the time, the general minimum wage rate was $1 an hour.

“This business of time-and-a-half when you’ve got nothing,” said Gerry Gallagher, agent for the Laborers Union local 18. “Time-and-a-half of what?”

Opposition parties were also unhappy with the hours of work and overtime pay proposals. A June 7, 1968, article in The Globe and Mail reported that during study of the ESA bill, the NDP proposed reducing maximum weekly hours to 40 and the Liberals called for overtime pay to apply after 40 hours. Both amendments were defeated.

The overtime and hours of work provisions also included rules specific to female workers. Female employees under age 18 were not allowed to work more than six hours a week of overtime. They were also prohibited from working between midnight and 6 a.m.

If adult female employees began or ended work between midnight and 6 a.m., their employer was required to provide them with private transportation to and/or from work, at the employer’s expense.

In addition to overtime pay, the ESA required employers, for the first time, to pay time-and-a-half to employees who worked on public holidays.

The act listed as holidays New Year’s Day, Good Friday, Victoria Day, Dominion Day (later to become Canada Day), Labour Day, Thanksgiving, and Christmas. There were no requirements to pay employees who did not work on a holiday.

“Ontario has never had legally required paid statutory holidays,” the June 6 Toronto Star article said. “This is a step toward them,” it reported a labour spokesperson as saying.

The vacation rules required employers to provide employees with at least one week of paid vacation per year (at two per cent of their pay) after 12 months of employment for the first three years. Afterwards, employees would get two weeks’ paid vacation at four per cent of their pay.

In 1970, the government amended the act to require two-week vacations after two years of service. Later, it changed the rules to provide employees with two weeks’ paid vacation after one year of employment.

The two-week vacation standard remained unchanged until last year, when the government amended the act to give employees at least three weeks’ paid vacation after five years.

The original ESA also included provisions requiring equal pay for equal work, which is still in the act today. The provisions prohibited employers from paying female employees less than male employees (or vice versa) if they did the same work, in the same establishment, under the same conditions, and the work required the same skill, effort and responsibility.

Like today, the standards then allowed for exceptions for pay differences based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any factor other than sex.

Prior to being included in the ESA, the equal pay requirements were part of the province’s human rights legislation.

A May 28, 1968, Globe and Mail article reported Bales as saying the provisions would be better enforced under employment standards law than under human rights legislation.

“The Human Rights Commission acts only in response to complaints, Mr. Bales noted,” said the article. “The field staff of the Labour Department will make regular checks and be in a position to act whenever a violation occurs.”

Not all employers agreed with the equal pay rules.

The June 6, 1968, Toronto Star article included comments from an employer in the garment industry who admitted to paying women less than men doing the same job.

“Most men have more highly skilled jobs than women, but even if they don’t, ‘they still get more,’” said the article, quoting Jack Lipson, president of McGregor Hosiery in Toronto.

“Men tend to make careers in the industry and the firm wants to protect its investment in their skills, Lipson said. ‘We try to build their potential more than the women,’” it said.

The ESA also included rules for pay statements, which are similar to today’s requirements.

When employers paid employees, they had to provide a written statement setting out the period for which they were paying the wages, the wage rate, and the amount owing to the employee. The statement also had to show deductions, living allowances or other payments, and net pay.

The ESA also included new minimum wage requirements. On Jan. 1, 1969, the province increased the general minimum wage rate from $1 an hour to $1.30, although there had been calls to raise it to at least $2.

There were also other minimum wage rates for different categories of workers, including workers with no more than four months of work experience, construction workers, taxi drivers, students, and employees working in restaurants, hotels and taverns.

Over the years, governments have made numerous amendments to the ESA to reflect changing societal views and economic conditions.

While employee rights and employer responsibilities have sometimes expanded or shrunk, depending on the political party in power, amendments to the act over the last five decades have generally broadened the scope of the legislation to cover more aspects of the employment relationship.

Given how much the act has changed since the late 1960s, one can only wonder what the legislation will look like in another 50 years.

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