Fair Workplaces, Better Jobs Act, 2017 – Repeal of Key Bill 148 Provisions

October 30, 2018

"On October 23, 2018, the Ontario Government announced its plan to repeal various amendments made by Bill 148, the Fair Workplaces, Better Jobs Act, 2017."

On October 23, 2018, the Ontario Government announced its plan to repeal various amendments made by Bill 148, the Fair Workplaces, Better Jobs Act, 2017.

The Ontario Government intends to implement the Making Ontario Open for Business Act  which, if passed, would enact the following significant amendments to the Employment Standards Act, 2000:

Minimum Wage Frozen at $14 per hour. Annual wage increases based on inflation to restart in 2020.
Scheduling The following scheduling rules will not come into effect:

  • 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.
Three Hour Rule If an employee who usually works more than three hours per day is called into work, but works less than three hours, the employee would be paid for three hours.
Personal Emergency Leaves Repeal of the Personal Emergency Leave amendments, instead employees will be entitled to take the following days off unpaid:

  • 3 days for personal illness;
  • 2 days bereavement; and,
  • 3 days for family responsibilities.

Domestic and sexual violence leave provisions will remain intact

Medical Notes Employers will no longer be prohibited from requiring an employee to provide a medical notice in order to support their absence.
Public Holiday Pay Repeal of Bill 148’s averaging method for calculating public holiday pay and reinstatement of the previous prorating public holiday pay formula.
Misclassification Bill 148 established that an employer had the onus of proving an individual was not an employee, if this was ever in dispute (e.g. independent contractor vs. employee dispute) . The new Act seeks to repeal this.
Equal Pay for Equal Work Repeal of provisions requiring employers to pay part-time, causal and  temporary help agency employees the same amount as full-time employees.
Penalties Reinstatement of previous penalties for contravention of the ESA, specifically penalties reduced from $350/$700/$1,500 to  $250/$500/$1000.

The Making Ontario Open for Business Act also proposes the following amendments to the Labour Relations Act, 1995:

Card-based Certification Card-based union certification rules affecting employees in the home care, building services and temporary help agencies sectors will be repealed. Such employees will be able to vote through a secret ballot.
Employee Lists Employers no longer required to disclose their employees’ contact information to the union if 20% of employees support the union.
Remedial Certification Prior test and preconditions for the Ontario Labour Relations Board (“OLRB”) to certify a union as a remedy for employer misconduct will be reinstated. Under this test, the OLRB would determine whether a vote or new vote would be a sufficient remedy, or whether the only sufficient remedy would be to certify the union.
Successor Rights Repeal of the regulation-making authority to expand successor rights to contract tendering for publicly-funded services such as homecare.
Structure of Bargaining Units Repealing OLRB’s power to review and consolidate a newly certified bargaining unit with existing bargaining units.
OLRB granted the power to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.
Return-to-work Rights Return to six month limitation on an employee’s right to reinstatement after the start of a strike or lock-out.
First Collective Agreement Mediation and Mediation-Arbitration Repeal of Bill 148 first collective agreement mediation and mediation-arbitration provisions and the provisions for educational support.
Reinstating the pre-Bill 148 conditions for access to first agreement arbitration (where it appears to the OLRB that collective bargaining has been unsuccessful for specified reasons).
Fines Previous maximum fines for offences under the LRA reduced from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.
Procedural Changes Broadening alternative means of communication under the Act (e.g. fax, email) for various types of documents, and determining time for release and receipt of the document.
Allowing the OLRB to make rules to expedite certain proceedings without the requirement of an order of the Lieutenant Governor in Council to establish the coming-into force date for the rule.
Facilitating and requiring the publication of documents (collective agreements, arbitration awards) filed with the Minister, including publication on the Government website.

If passed, the Making Ontario Open for Business Act will also significantly impact the Province’s current trade and apprenticeship program and result in the winding down of the Ontario College of Trades and the implementation of a replacement system.

The Making Ontario Open for Business Act is not yet law in Ontario. As such, employers should continue to abide by Bill 148’s requirements while beginning to review their internal policies in light of these proposed changes.