The firm gratefully acknowledges the contribution to this post by articling student Megan Fultz.
The Ontario government made good on its promise to repeal the labour and employment reforms enacted by the Liberals, when it introduced Bill 47, the Making Ontario Open for Business Act, on October 23, 2018. Bill 47 reverses most changes from the Liberal’s Fair Workplaces, Better Jobs Act, also known as Bill 148, enacted last year. Bill 47 will likely pass before the legislature breaks on December 13, 2018. If Bill 47 passes, it will take effect on January 1, 2019.
Bill 148 represented a significant, if imperfect, effort to advance workers’ rights. Bill 47 unquestionably tips the scales back in the other direction, favouring the protection and rights of employers. It also reduces the amount of oversight in the enforcement of employment standards and the consequences for breaching the Ontario Labour Relations Act.
Overview of major changes in Bill 47
The changes in Bill 47 are numerous and they universally favour employers at the expense of workers. The major changes include:
Minimum Wage Frozen – Under Bill 148, minimum wage was set to increase to $15.00 per hour in January, 2019. Bill 47 will freeze it at $14.00, with no increase until October 1, 2020, at which time it will only increase at the rate of inflation.
Reduced Fines for Employers – Bill 47 reverses the increased fines for offences under the Labour Relations Act enacted in Bill 148. Fines are going down to $2,000 for individuals, reduced from $5,000, and to $25,000 for organizations, down from $100,000.
No More Paid Emergency Leave – Under Bill 148, all Ontario workers were entitled to two paid and eight unpaid days of Personal Emergency Leave. These ten days of leave allowed workers to take time for either their own urgent needs, or to care for the urgent needs of their loved ones. Bill 47 eliminates Personal Emergency Leave and replaces it with eight days, all unpaid, under three specific categories: sick leave (three days), family responsibility leave (three days), and bereavement leave (two days).
No Equal Pay for Equal Work – Bill 148 introduced equal pay for equal work, meaning employees performing the same work must be paid the same, regardless of whether they were full-time, part-time, casual, and temporary workers. Bill 47 will repeal this protection and allow for some workers to be paid less solely on the basis of their employment status. Bill 47 also removes certain protections for workers who believe they are experiencing wage discrimination on the basis of sex. Under Bill 148, workers could request a review of their pay, requiring employers to either provide a written explanation of how the worker’s pay is compliant with wage discrimination laws, or adjust their pay. These requirements and protections will be repealed under Bill 47.
Burden on Workers to Prove Employee Status – Bill 148 shifted the burden to the employer when there is a dispute about whether a worker is an employee or an independent contractor: employers had to prove that the worker was not an employee. Bill 47 shifts the burden back to the employee to prove that they are an employee and not an independent contractor.
Remedial Certification No Longer Mandatory – Under Bill 148, if a union was prevented from obtaining enough votes to certify because of an employer’s influence and interference with its employees, the Ontario Labour Relations Board was required to certify the union as a remedy to that interference. Under Bill 47, remedial certification is no longer required; instead, the Board has to consider whether to certify the union or merely order a secret ballot vote.
This list represents just some of the regressive changes made by Bill 47 that will impact Ontario workers. Bill 47 also introduces changes that will affect workers’ scheduling and “on call” rights, public holiday pay, card check certification, and return-to-work rights, among others.
Dark days for workers’ rights
Bill 47 represents a significant step backwards from the progress made by Bill 148. The Ontario government has framed these changes as aimed at improving the economy and helping businesses, but the scope of the changes reveals the true aim to be reducing or removing protections for workers. Employers will have far fewer obligations to their employees, and will even face reduced penalties if they disregard the modest obligations they still have. Bill 47 looks less like making Ontario “open for business”, and more like “open season” on Ontario’s work force.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]