Ontario overhauls labour and employment laws

Labour and employment law in Ontario has broken from a usual pattern of stability and relative predictability over the last decade. As lawyer Lee Shouldice pointed out at a recent Blake, Cassels & Graydon seminar, “prior to the 1990s, changes to the law were the exception rather than the norm” and usually came only as a result of perceived gaps or flaws in legislation.

However, with the election of the NDP in 1990, the legislative pendulum swung to the left “in one fell swoop,” said Shouldice. Then, with the Progressive Conservative victory in 1995, the government swung to the right, repealing most of what the NDP had changed.

In the past year, the Mike Harris government has continued making changes in labour and employment law, including taming “the great beast of Ontario employment legislation, the Employment Standards Act (ESA),” said Shouldice.

The ESA, which was first enacted in 1974, had managed to escape meaningful revision for more than 25 years until November of last year when Chris Stockwell, the Minister of Labour introduced Bill 147 An Act to Revise the Law Related to Employment Standards. Although the Bill received royal assent on December 21, 2000, only the parental leave provision came into effect by the end of the year.

In addition to the ESA, the government turned its attention to the existing Labour Relations Act 1995. The result was the Labour Relations Amendment Act, 2000, which came into force on Dec. 30, 2000.

Labour representatives recoiled from the legislative changes. In a letter to Premier Harris and the province’s Labour Minister Chris Stockwell, Buzz Hargrove, president of the Canadian Auto Workers, wrote that the changes were “harmful for the most vulnerable of today’s workforce, the 81 per cent of private-sector workers who have no union.” Sid Ryan, president of the Canadian Union of Public Employees, called the changes regressive, punitive and a threat to workers’ rights to organize and “to expect minimum workplace standards in the province.”

Changes to the Employment Standards Act

Here is a look at some of the changes to Ontario’s new employment standards legislation, which are expected to be in force by the fall. These changes repeal a significant portion of the province’s labour-related laws including the Employment Standards Act, the One Day’s Rest in Seven Act, the Government Contracts Hours and Wages Act, the Employment Agencies Act and the Industrial Standards Act.

Hours of work
•One of the more contentious changes to the legislation is the 60-hour work week. Under the new law, an employer and employee may agree to an arrangement in writing in which the employee may work up to 60 hours per week. These agreements can be revoked — by the employee upon providing two weeks’ written notice — and by the employer by providing “reasonable notice” to the employee.

Rest periods and hours free from work
•Upon written agreement with an employee, the present 30-minute meal break can be taken in the form of two shorter breaks totaling 30 minutes in each five-hour consecutive period.
•An employer must provide an employee with a daily rest period of 11 consecutive hours of work in each 24-hour period.
•There must be a rest period of 24 hours during each work week or 48 consecutive hours in every period of two consecutive work weeks.
•Employees are entitled to a period of at least eight hours free from work between shifts unless otherwise agreed to in writing or unless the total time on successive shifts does not exceed 13 hours.

Overtime compensation
•Upon written agreement it is now possible to average an employee’s overtime over a four-week period or less. Such written agreements cannot last more than two years and are subject to renewals and once established can be revoked before the expiry date only if the employer and employee agree in writing.
•An employee can take paid time off in lieu of overtime compensation at the rate of one and one-half times regular time.
•The time off must be taken within three months of the overtime worked, but can be extended by written agreement to 12 months.
•If employment ends and overtime payment has been “banked” in this manner, the former employee must be paid the appropriate overtime pay.

Vacation pay
•By written request and with the approval of the employer, an employee may schedule vacation in blocks of less than one week, including single days.
•With the approval of the government, an employee may be allowed to forego taking vacation and obtain vacation pay in lieu of time off.

Pregnancy and parental leave
•Birth mothers can now combine 17 weeks of pregnancy leave with 35 weeks of parental leave.
•The other parent can take parental leave of up to 37 weeks.
•A leave may now start at the time of birth or up to 17 weeks before the due date.

Emergency leave
•Employers of more than 50 employees must provide at least 10 days of unpaid emergency leave days per year.
•An employee continues to participate in most benefit plans during any such leave.
•The leave period is to be included in calculating the duration of employment, service and seniority, but not for completing a probationary period.

Termination and severance of employment
•Constructive dismissal is a termination from employment, for the purposes of the legislation.
•An employer who lays off an employee without specifying a recall date is not to be considered to have terminated the employment of that employee, unless the period of the layoff exceeds that of a “temporary layoff” as defined in the new act.
•Calculating an employee’s severance pay is based on all time spent by the employee in the employer’s employ, whether or not continuous or active.
•Severance may be paid in installments, as long as the installments do not exceed three years in duration.

The Labour Relations Act

The following are changes to the Labour Relations Act. Some of the more contentious changes were those made to the certification and de-certification process and continue what Lee Shouldice described as “the government’s focus on the rights of individual employees to determine the structure of their representation in the workplace, be it representation by trade union or on their own accord.”

Changes in certification process
•The legislation imposes a mandatory cooling off period of one year before a repeat certification vote can be taken if the union has had an unsuccessful representation vote and the application for certification is subsequently dismissed by the Labour Board; if the application is withdrawn following the representation vote; or if the application is withdrawn before a representation vote twice in any given six-month period.
•The bar applies not only to the same bargaining unit, but also to a differently constituted bargaining unit if there is any overlap of employees.

•The open period during which employees may apply for decertification is extended to three months as is the open period during which one trade union may displace another trade union.
•Before Dec. 21, 2001, the labour minister will publish a document describing the process for making an application for decertification. Unionized employers must use reasonable efforts to post a copy in every workplace.
•Employers must post a notice stating that any unionized employee may request a copy of the document from the employer.
•Employers must distribute a copy of the document to unionized employees once a year.
•The document would contain information on who may apply for certification, when the application could be made, and which Labour Board rules for the procedure are relevant.

First contract amendments
•When a union is attempting to arrive at a first contract, but at the same time, some of the employees the union is seeking to represent launch an application to decertify the union, the Labour Board must deal with the decertification process first.
•The ballot question in a vote to ratify a proposed first contract must be restricted to a choice between ratifying the contract or not; the question cannot contain any direct or indirect reference to calling a strike.
•Similarly, in a strike vote, the question must be limited to a choice between authorizing a strike or not authorizing a strike.
Union salary disclosure
•Trade unions must disclose the salaries of union officials and employees with an annual salary and benefits totalling more than $100,000.

Time limit on board decisions
•A party may apply to terminate and re-institute the proceeding if the Labour Board decision is pending six months after the last day of hearing.

Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].

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