Canada: Changing Workplaces Review

Advisory Panel to Recommend Major Changes to Labour and Employment Laws
Last Updated: September 28 2016
Article by Daniel Pugen

The Ontario Government has asked two special advisors (the "Advisors") to review and recommend legislative changes to the Labour Relations Act, 1995 ("LRA") and the Employment Standards Act, 2000 ("ESA"). In July 2016, the Advisors submitted their interim report. The report measures 312 pages.

The Policy Behind the Review

The interim report is part of the Advisors' "Changing Workplaces Review". It will very likely result in major changes to the LRA and ESA. The Advisors have been given a broad mandate by the Ontario Government to recommend changes while considering various "guiding principles". The two most notable "guiding principles" are modernizing the legislation to reflect the changing nature of the workplace/economy and protecting "vulnerable workers in precarious jobs". Fortunately, the Advisors have seen fit to acknowledge that the Changing Workplaces Review should support business as well. Of course, producing a final report that incorporates (or at least balances) both the concerns of labour and business will be extremely difficult.

The Potential Changes

Given the length of the interim report, this article does not summarize every single change being considered by the Advisors (only what this author considers the most material).

Labour Relations (LRA)

The following is a summary of some of the changes being considered to the LRA:

1. Eliminating Exemptions from the LRA: Certain employees (e.g. professionals and domestic workers) are currently exempt from the LRA. This means that these employees do not have access to the protections of the LRA and, most notably, the ability to unionize. The Advisors are considering whether these exemptions should be changed or eliminated with the goal of ensuring that more employees are covered by the LRA.

2. Eliminating Voting to Unionize: For non-construction employers, a union must prove (by providing written evidence to the Ontario Labour Relations Board ("OLRB")) it has 40% membership support. Then, the OLRB orders a vote of employees. If a majority of employees vote in favour of the union, then the union is certified. The Advisors are considering whether to eliminate the voting requirement. This would mean that employees could be unionized only by demonstrating membership support (referred to as "card based" certification). The Advisors are also looking at electronic membership evidence and alternative voting procedures such as the use of telephone or internet voting. All of this would make it easier to unionize.

3. Union Access to Employee Lists During Organizing Drive: The Advisors are considering permitting union access to employee lists during an organizing drive. This will make it easier for unions to contact employees to obtain the required membership support and then prior to any vote.

4. Easier Access to Arbitration: The Advisors are examining whether binding arbitration (in a first contract situation) should be more readily available and also whether alternative mediation structures should be in place prior to the parties being in a legal strike or lockout position. The Advisors are also considering whether the OLRB should have the power to order interest arbitration in certain circumstances in renewal negotiations.

5. Expanding the "Related Employer" Concept: Currently, employers who are "related" may be considered as one employer by the OLRB. This means two different legal entities may be bound to a union certified with one entity so long as the two entities are "related". The Advisors are considering expanding the related employer concept to capture additional corporate structures, including the franchisee – franchisor relationship.

6. Expanding Successor Rights to Certain Industries: If a unionized vendor is sold to a non-unionized purchaser, the purchaser will inherit the union in most cases. This is referred to as successor rights. Many unions have argued that successor rights should apply more broadly and, specifically, to industries in which one service provider replaces another service provider (e.g. cleaning companies who have contracts with a building). The Advisors are considering whether successor rights should apply in this situation when all that has occurred is that one provider has lost a contract to another provider.

7. Consolidating/Amending Bargaining Units: Generally speaking, and subject to open periods for decertification, a bargaining unit does not change once certified. The Advisors are considering giving the OLRB the power to redefine, consolidate or amend bargaining units after certification. This would provide more flexibility to change (or add to) the composition of the bargaining unit over time.

8. Replacement Workers: During a strike, an employer is permitted to use replacement workers. Unions are obviously not in favour of this and have pressured the Advisors to recommend that the LRA prohibit the use of replacement workers.

9. Reinstatement of Employees Following a Strike: When a strike concludes, there is a general right of reinstatement for employees within six months from the date the strike commences. The Advisors are considering whether the six month time frame should be eliminated and what, if any, restrictions on reinstatement are appropriate.

10. Remedies: The Advisors are looking at broadening the remedies available to the OLRB and increasing penalties for non-compliance with the LRA.

Employment Standards (ESA)

The following is a summary of some of the changes being considered to the ESA:

1. Misclassification Issues: Many labour groups have commented that employers are misclassifying employees as independent contractors in order to avoid employment standards obligations (e.g. vacation pay, overtime pay, holiday pay, etc.). The Advisors are considering whether more resources should go into enforcement and/or whether the definition of employee in the ESA needs to be altered to put the onus on employers to prove independent contractors are not employees. The Advisors are also considering adding dependent contractors as being subject to certain parts of the ESA.

2. Expanding Employer Liability: In response to the submissions from labour about employers 'avoiding' liability, the Advisors are looking at expanding the situations in which an employer would be liable for ESA breaches. Suggestions include holding the employer responsible for the ESA breaches of contractors it retains, making it easier for the Ministry of Labour to find that corporate entities are "related", and imposing liability on franchisors for the ESA breaches of franchisees.

3. Tightening Exemptions: The ESA contains various exemptions. A common example is that managers/supervisors are generally excluded from the hours of work and overtime provisions. The Advisors are closely examining whether these exemptions should be changed or eliminated. For instance, one suggestion is to narrow the definition of manager such that a manager would only be exempt if he/she directly supervised a specified number of employees. Another suggestion is to impose a threshold compensation limit (e.g. $100,000/year) where anyone making less than the limit would be non-exempt.

4. Revising Rules Around Excess Hours of Work and Overtime: A large section of the interim report deals with this topic. Many options are on the table for the Advisors including lowering the overtime threshold, amending caps on daily and weekly hours of work, setting out when employees may refuse to work excess hours, and restricting averaging agreements.

5. Vacation: The Advisors are considering changing the minimum vacation entitlement from 2 to 3 weeks per year either at the start of the employment relationship or upon reaching a certain level of seniority.

6. Leaves of Absence: The Advisors have received submissions about personal emergency leave and paid sick leave. Some submissions have argued that the 50 employee threshold for 10 unpaid personal emergency leave days should be abolished. Some submissions have gone further and have argued that employees should have a right to paid sick leave under the ESA. One proposed formula is that employees would accrue 1 hour paid sick time for every 35 hours worked up to a cap. The Advisors have raised the possibility of having employers pay for doctor's notes required from employees.

7. Protecting Part Time and Temporary Employees: As noted above, a major reason for the Changing Workplaces Review is to assist "vulnerable workers in precarious jobs".

The Advisors heard many submissions on this and are now considering a proposal whereby part-time, temporary and casual employees would be paid the same (or at least the same wage rate) as full-time employees if they do the same work and have the same skills. As many part time employees do not have access to benefits, the Advisors are looking at requiring employers to provide benefits to part time employees on a pro rata basis.

8. Increased Termination/ Severance Pay Obligations: Upon termination without cause, employers must provide notice of termination (or pay in lieu) equal to 0 – 8 weeks depending on service. Severance pay of 5 – 26 weeks is required where the employer has a payroll of $2.5 million annually and the employee dismissed has at least five years of service. The Advisors heard submissions on increasing the termination pay and severance pay obligations and reducing the thresholds for employees to obtain severance pay upon dismissal.

Next Steps for Employers

The Advisors are seeking comments on the interim report. The deadline is October 14, 2016. If you or your company wish to make submissions, you should contact the Advisors by e-mail at

Employers can expect that some of the changes described above will be recommended by the Advisors and then enacted into law in the near future. The trend is clear. The Government wants to strengthen protections for vulnerable workers and to modernize labour and employment laws to reflect the current workplace realities. This mandate has been made clear to the Advisors and is very apparent from the interim report.

While all of the ultimate recommendations will not be enacted into law, it is reasonable to expect that the LRA will be amended to make unionizing a workforce easier. Also, the ESA will likely be amended to add protections for part-time employees and to tighten exemptions. These changes will likely result in increased costs and administration for many employers and an increased risk of union activity.

We will be monitoring the progress of the Changing Workplaces Review.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions