Beneplan Annual HR and Employment Law Workshop - Sherrard Kuzz Presentation

Overview of Bill 148
Fair Workplaces, Better Jobs Act, 2017
Keith Burkhardt Andrew Ebejer
Beneplan HR & Employment Law Workshop
November 2, 2017
250 Yonge Street Suite 3300
Toronto, Ontario M5B 2L7
Tel 416.603.0700
Fax 416.603.6035
24 Hour 416.420.0738
www.sherrardkuzz.com

Sherrard Kuzz LLP, Employment & Labour Lawyers
Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017
Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com
Agenda
Context
Minimum Wage Increases
Changes to Employment Standards Act, 2000
Changes to Labour Relations Act, 1995
Expected next steps
Questions
2

How Did We Get Here?
A view among some that there is a culture of
non-compliance
A call for greater assets and heightened efforts
at enforcement
“Vulnerable Workers” and “Precarious
Employment” become terms of art
3

Changing Workplaces Review
Special Advisors
Michael Mitchell
Honorable John C. Murray
Motivating purpose
Determine how the Employment Standards Act,
2000 and the Labour Relations Act, 1995 can be
reformed to better protect workers while
supporting business in our changing economy
4

Legislative Status
1st Reading – June 2017
Referred to Standing Committee:
Public Meetings across Ontario – July 2017
Clause by clause review – August 2017
2nd Reading – September and October 2017
Referral back to Standing Committee –
November 2017
Predicted enactment - January 2018
5

Increases to Minimum Wage
Current January
2018
January
2019
General $11.60 $14.00 $15.00
Students $10.90 $13.15 $14.10
Liquor Servers $10.10 $12.20 $13.05
Hunting/
Fishing Guides
$58 per
day
$70 per
day
$75 per
day
Homeworkers $12.80 $15.40 $16.50
 Not included in
CWR terms of
reference
 Able to be created
in Regulation
 +20.7% in 2018
 +7.1% in 2019
6

Changes to
Employment Standards Act, 2000
7

Equal Pay for Equal Work
(April 1, 2018)
A part-time, seasonal or casual employee is
entitled to be paid the same wage as a
‘comparable’ full-time employee
Can be paid differently if based on:
Seniority system (including hours-based seniority
system)
Merit system
Quantity/Quality of production
Other objective factor
8

Temporary Help Agency Employees
(April 1, 2018)
Paid equally to permanent employees of the
temporary help agency client
Can be paid differently if based on any factor
other than sex, employment status or
temporary help agency employee status
Temporary help agency to provide one weeks’
notice when assignment scheduled to last
longer than 3 month is terminated
9

Vacation and Public Holidays
(January 1, 2018)
Paid Vacation
3 weeks’ vacation time and 6% vacation pay
after 5 years of service with the same employer
Public Holiday Pay
“Simplifies” the formula for calculating public
holiday pay
Average regular daily wage
10

Scheduling
(January 1, 2019)
An employee is entitled to be paid for at least 3
hours (at his/her regular rate of pay) where:
Scheduled to work more than 3 hours but
attends works and works less
An entire scheduled day of work is cancelled
within 48 hours of its start
On call and not called to work, or called to
work for fewer than 3 hours
11

Scheduling
(January 1, 2019)
An employee also has the right:
To refuse a shift if request made with fewer
than 96 hours’ (4 days’) notice
To request a change to work location or work
schedule (after 3 months of employment)
Exemptions apply to these scheduling
provisions to account for extraordinary
circumstances and weather-dependent
operations
12

Employee Misclassification
(Royal Assent)
Prohibit misclassification of independent
contractors
Subject to penalties, prosecution, conviction
and monetary penalties
Employer onus in the event of a dispute
No change to include “dependent contractor”
13

Personal Emergency Leave
(January 1, 2018)
50 or more employee threshold eliminated
10 personal emergency leave days per year
First two (2) personal emergency leave days are
paid
 Employee must be employed for at least one
week
Employer can request evidence to support need
for PEL but cannot request doctor’s note
14

Domestic Violence and Sexual
Assault Leave (January 1, 2018)
10 days a year and 15 weeks a year
To be taken as required to due to domestic
violence or sexual assault of an employee or
employee’s child
15

Death of Child and Family Medical
Leave (January 1, 2018)
Leave for Death of a Child
From any cause for a period up to 104 weeks
Also crime related child disappearance
Family Medical Leave
27 weeks in 52 weeks
16

Pregnancy Leave
(January 1, 2018)
Employee can take up to 12 weeks of leave in
case of still-birth or miscarriage
Increase from 6 weeks
17

Parental Leave
(Royal Assent)
Extends parental leave entitlements to:
61 weeks (from 35 weeks) if pregnancy leave
taken
63 weeks (from 37 weeks) if no pregnancy
leave taken
Impact is an employee who takes both a
pregnancy leave and parental leave is entitled
to take up to 18 months off
18

Record Keeping and Compliance
(January 1, 2018)
Record Keeping
Increased record keeping obligations to
correspond with scheduling and other new
entitlements
Penalties for non-compliance
Increase flexibility around the administrative
monetary penalties
Publish penalties, description of contravention,
date and penalty
19

Joint Liability
(January 1, 2018)
Bill 148 eliminates “intent or effect”
Two persons may be considered one employer
if they carry on “related activities or
businesses”
This may have a potentially significant impact
on employers
Will depend on how the term “related” is
interpreted
20

Changes to
Labour Relations Act, 1995
21

Underlying Principle to Amendments
to Labour Relations Act, 1995
Constitutional protection for “Freedom of
Association”
Facilitating access to collective bargaining
 Easier certification process and greater security
for existing units
 Removing obstacles to remedial certification
Facilitating collective bargaining
 Obtaining first contract and protecting
employment
22

Facilitating Union Certification
Access to list of employees and contact
information provided union cards from at least
20% of employees in proposed bargaining unit
Name
Telephone number
Personal email address
Requires remedial certification for any unfair
labour practice violation
23

Card-Based Certification -
Industries
Temporary Help Agency Industry
Building Services Industry
Cleaning, security, maintenance, food services,
parking, etc.
Home Care and Community Services Industry
24

Card-Based Certification - Process
Union cards from more than 55% of
employees in bargaining unit - Certified
Union cards from between 40% and 55% of
employees in bargaining unit -
Representation vote
Union cards from under 40% of employees in
bargaining unit members - Dismissed
25

Consolidation of Bargaining Units
Labour Board given broad powers to
rationalize bargaining structures
Following certification, a union (or employer)
may apply to have a newly-certified union
consolidated with an existing bargaining unit
of the employer represented by the same union
26

First Agreement After Certification
A union or employer may apply for first
contract mediation at any point after a “no
board” is issued
45 days after a mediator’s appointment, either
party may apply for mediation-arbitration
27

Successor Rights
Extend to the retendering of building services
contracts
Cleaning, security, maintenance, food services,
parking, etc.
May be extended by regulation to service
providers that receive public funds
Municipalities, school boards, hospitals, long
term care facilities, universities, etc.
28

Protection of Employment
Just Cause Protection
Between certification and first contract
During period when strike/lock-out legal
Also protects probationary employees
Return to work following strike or lockout
Six month limit removed
Mandatory reinstatement of employees at end
of strike/lock-out
29

What Next?
Referral back to Standing Committee –
November 2017
3rd reading – December 2017
Predicted enactment - January 2018
Subject to dates mentioned previously
30

“Always be Prepared”
Budget cost of minimum wage increase
Consider “trickle up” rate changes
Review
Scheduling practices and strategize changes to
current processes
Statutory holiday pay practices and scheduling
Leave of absence language in policies
Relationships with temporary help agencies
31

“Always be Prepared”
Educate managers regarding union
certification process and permissible actions to
remain “union free”
Card-based certification
Risk of unfair labour practice
Consider union obligations in contracting
situations
Consider unionized facilities and efforts to
consolidate bargaining units
32

Questions?
33

34
250 Yonge Street, Suite 3300
Toronto, Ontario, Canada M5B 2L7
416.603.0700 Phone
416.420.0738 24 Hour
416.603.6035 Fax
www.sherrardkuzz.com

35
 The information contained in this presentation/article is provided for general information
purposes only and does not constitute legal or other professional advice, nor does
accessing this information create a lawyer-client relationship. This presentation/article
is current as of November 2, 2017 and applies only to Ontario, Canada, or such other
laws of Canada as expressly indicated. Information about the law is checked for legal
accuracy as at the date the presentation/article is prepared, but may become outdated as
laws or policies change. For clarification or for legal or other professional assistance
please contact Sherrard Kuzz LLP (or other counsel).

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