On November 21, 2018, the Ontario government passed the Making Ontario Open for Business Act, 2018 (Bill 47), which introduces significant changes to Ontario's Employment Standards Act, 2000 (ESA), Labour Relations Act, 1995 and the Ontario College of Trades and Apprenticeship Act, 2009.
As discussed in our October 2018 Blakes Bulletin: Ontario Looks to Roll Out Major Changes to Labour Law with Bill 47: Making Ontario Open for Business Act, Bill 47 will roll back or revise certain statutory obligations implemented by the previous government's Fair Workplaces, Better Jobs Act, 2017 (Bill 148). These changes include numerous amendments to the ESA, which will have significant implications for employers in Ontario.
Below is a brief overview of these amendments, which will come into force on January 1, 2019.
Minimum Wage: The current minimum wage will be frozen at C$14 until October 1, 2020, with the previously planned increase to C$15 on January 1, 2019 being eliminated. In October of each year beginning in 2020, the minimum wage will be adjusted annually for inflation.
Request for Schedule or Work Location Changes: Bill 47 will repeal proposed scheduling provisions that were to come into force on January 1, 2019. Employees will no longer be entitled to certain on-call pay and shift cancellation pay, nor will they be entitled to request changes to work schedules or locations, or refuse to work or to be on-call with less than 96 hours' notice.
Instead, Bill 47 provides for a "three hour rule" whereby if an employee who regularly works more than three hours a day is required to report to work, but works less than three hours, the employee would be paid for three hours.
Equal Pay for Equal Work: Employers will no longer be required to ensure that no differences in pay exist based on "employment status" (e.g., part-time, full-time, casual, temporary, and assignment or temporary help employee status).
Leaves of Absence: New "sick leave, family responsibility leave and bereavement leave" provisions will replace the personal emergency leave provisions of the ESA. Instead of 10 days of personal emergency leave, two of which are paid, employees will receive three sick days, three family responsibility days, and two bereavement days – all of which will be unpaid.
These new provisions also eliminate the current prohibition on requiring a note from a qualified health practitioner as evidence of an employee's entitlement to the leave.
Public Holiday Pay: The formula for calculating public holiday pay entitlements will return to the formula pre-dating Bill 148. This formula calculates public holiday pay as the total amount of regular wages earned and vacation pay payable to an employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.
Misclassification of Employees: In the context of misclassification claims, Bill 47 will eliminate the reverse onus requirement on employers, introduced by Bill 148, to prove that independent contractors and other non-employees were not, in fact, employees.
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