The recently released Fair Workplaces, Better Jobs Act (Bill 148) proposes considerable changes to Ontario's Employment Standards Act (ESA), including a number of new equal pay for equal work provisions.

If passed, Bill 148 would considerably expand the current ESA equal pay provisions, which only contemplate equal pay between the sexes. In particular, the proposed sections mandate that casual, part-time, temporary, seasonal and full-time employees be paid equally when performing the same job for the same employer. Employees from a temporary help agency who perform substantially the same work as an employee of the temporary help agency's client would also be paid equally to the client's employee. Bill 148 precludes employers from reducing the rate of pay of an employee in order to comply with the equal pay provisions.

In addition, Bill 148 would entitle employees to request a review of their wages without reprisal. In turn, employers would be required to respond by either increasing the wage rate or providing a written explanation of the pay differential.

These proposed provisions are subject to some exceptions. The equal pay requirements do not apply in instances where there is a difference in wages among similarly situated employees due to (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) another factor justifying the difference on objective grounds. Where Bill 148 does not provide any guidance on what "another factor" under subsection (d) may be (this would likely shake out in subsequent jurisprudence), an employer would certainly need to be sure that any factor on which it relies to justify a pay difference does not directly or indirectly discriminate against employees or otherwise offend human rights legislation.

Bill 148's equal pay provisions also carve out a limited exception for collective agreements that are in effect on April 1, 2018, and that provide for different wages for assignment employees and employees of the client. In such circumstances, the collective agreement prevails over the ESA until the collective agreement expires. As a result, employers currently engaged in collective bargaining may wish to consider the proposed provisions in the context of their negotiations. This exception does not apply to collective agreements made or renewed on or after April 1, 2018.

The new equal pay provisions would require employers to take a holistic look at their employees and positions, to determine which roles are exempt from the provisions, and which non-exempt roles are substantially similar in skill, effort, responsibility and working conditions so as to require equal pay. In addition, employers would likely wish to consider standardized procedures as to how wage review requests would be determined and communicated.

Bill 148 passed First Reading on June 1, 2017 and, in an expedited process, was referred to the Special Committee on Finance and Economic Affairs the same day. The Special Committee has since posted a Notice of Public Hearings on Bill 148 to be held:

  • the week of July 10, 2017 in Thunder Bay, North Bay, Ottawa, Kingston, and Windsor-Essex. Those planning to make an oral presentation in any of these locations must provide their name and contact information to Committee Clerk by 10:00am on July 4, 2017; and
  • the week of July 17, 2017 in London, Kitchener-Waterloo, Niagara, Hamilton, and Toronto. Those planning to make an oral presentation in any of these locations must provide their name and contact information to Committee Clerk by 10:00am on July 10, 2017.

Alternatively, written submissions may be sent to the Special Committee by 5:30 pm on July 21, 2017.

This gives employers and other stakeholders a final chance to have their voices heard on the Bill 148 amendments.

If you have questions or concerns about these or any of the Bill 148 amendments to Ontario's labour and employment laws do not hesitate to contact the Norton Rose Fulbright Canada Labour and Employment Team.

Written with Rebecca Liu.

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