Ontario Government Moves to Repeal Bill 148

Premier Doug Ford’s government introduced omnibus legislation on Tuesday, October 23, 2018 designed to repeal the bulk of Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”).

The majority of the previous administration’s amendments to the Employment Standards Act, the Labour Relations Act and the Occupational Health and Safety Act under Bill 148 only came into effect in January 2018.

The changes to the Employment Standards Act implemented as part of Bill 148 focused on both expanding employee rights and ensuring a closer scrutiny of employers through amendments such as:

• Increases to the minimum wage rate;
• Increases in vacation allowance under the Employment Standards Act;
• Increases to leave provisions, including to Family Medical Leave; and
• Tighter restrictions to the definition of an employee to include many individuals currently characterized as contractors.

The Ontario provincial government has now announced the Making Ontario Open for Business Act 2018 which includes labour reform alterations that will repeal much of the previous administration’s Bill 148.

If this legislation passes, the amendments to the Employment Standards Act that would be repealed include:

Minimum Wage

• Keeping the minimum wage at $14 per hour on January 1, 2019 rather than proceeding with the scheduled increase in the minimum wage to $15 per hour
• Establishing a freeze in minimum wage increases until 2020, with subsequent increases tied to inflation.

Scheduling

• Repealing the following provisions relating to employer scheduling obligations:
• Right to request changes to schedule or work location after an employee has been employed for at least three months.
• Minimum of three hours pay for being on-call if the employee is available to work but is not called in to work or works less than three hours.
• Right to refuse requests or demands to work or to be on-call on a day that an employee is not scheduled to work or to be on-call with less than 96 hours’ notice.
• Three hours pay in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin.
• The record-keeping requirements that relate to the above-noted scheduling provisions.

Personal Emergency Leave

• Replacing the Personal Emergency Leave reforms granting employees the right to ten Personal Emergency Leave days per year, and in particular, the right to two days of paid leave per year.
• Repealing the provision that prohibits employers from requiring an employee to provide a medical note from a qualified health practitioner when taking a day of Personal Emergency Leave.

Public Holiday Pay

• Repealing the averaging public holiday pay formula prescribed by Bill 148 and return to the previous prorating public holiday pay formula (the law had previously been reverted to the pre-Bill 148 calculation formula for an interim period under Ontario Regulation 375/18 pending further review).

Misclassification of employees

• Repealing the requirement for the employer to prove that an individual is not an employee (“reverse onus”) where there is a dispute over whether the individual is an employee.

Equal Pay for Equal Work

• Repealing equal pay for equal work for part-time, casual, and temporary employees and for employees referred by temporary help agencies.

Penalties for Contravention

• The government is returning to the previous administrative penalties for contraventions of the ESA by decreasing the maximum penalties from $350/$700/$1500 to $250/$500/$1000, respectively.

The proposed legislation will also repeal changes to the Labour Relations Act that were designed to make it easier for workers in various sectors to join a union.

During his run for PC leader and during the election campaign, Ford frequently promised to put a neon sign at the border with the U.S. declaring Ontario open for business.

Sultan Lawyers PC will continue to keep its client informed of any further developments. If you have any questions about the new bill and its potential impact on the workplace for both employees  and employers please contact Alexandra Hobson by telephone at 416-214-5111 or by email at ahobson@sultanlawyers.com.