Ontario considers options to amend the Employment Standards Act and the Labour Relations Act

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The Ministry of Labour has released an Interim Report setting out a number of options to update and overhaul employment and labour laws in Ontario. The report was prepared by C. Michael Mitchell and former Justice John C. Murray and is the culmination of numerous public consultations that were held in 12 cities across Ontario in 2015.

The Interim Report, released July 27, 2016, is part of a larger study entitled The Changing Workplaces Review (“Review”).  The Review is unprecedented as it is the first independent review commissioned by the Ontario Government seeking recommendations for legislative change of both the Employment Standards Act (“ESA”) and the Labour Relations Act (“LRA”) in more than a generation. The intent of the Review is to provide recommendations to modernize the ESA and the LRA to better protect vulnerable workers while still being mindful of the interests of employers.

The Interim Report puts forward numerous options for amendments to the ESA and the LRA. This Focus Alert will set out the areas of each statute that are being considered for legislative change. Employers are encouraged to review the Interim Report and make submissions on the various issues that may impact their organizations. There are two submission deadlines to note:

  • August 31, 2016 – Submissions on the personal emergency leave options in the Interim Report; and
  • October 14, 2016 – Submissions on all other options set out in the Interim Report.

ESA Amendments

The Interim Report discusses a number of options that would amend the ESA. Most of these options are aimed at protecting the most vulnerable employees and strengthening enforcement tools to deal with non-compliance. The areas that are under review are:

  • The scope and coverage of the ESA relating to:
    • the definition of “employee”;
    • the misclassifications of employees as independent contractors;
    • determining the employer and the employer’s scope of liability;
    • ESA exemptions, special rules and general process; and
    • ESA Exclusions.
  • Standards relating to:
    • hours of work;
    • overtime pay;
    • scheduling;
    • public holidays;
    • paid vacations;
    • personal emergency leaves;
    • paid sick days;
    • job-protected unpaid leaves of absence;
    • wages and benefits for part-time and temporary workers;
    • termination, severance and just cause; and
    • temporary help agencies.
  • Other standards and requirements relating to:
    • greater or alternative rights or benefits;
    • written agreements between employers and employees to have alternate standards apply; and
    • pay periods.
  • Enforcement and administration of the ESA relating to:
    • education and awareness programs;
    • creating a culture of compliance;
    • reducing barriers to making claims;
    • strategic enforcement;
    • applications for review; and
    • collections. 

As noted above, the submission deadline in respect to the personal emergency leave options in the Interim Report is set for August 31, 2016. As larger organizations are aware, the ESA currently requires employers with 50 or more employees to provide 10 days of unpaid personal emergency leave. This job-protected leave of absence is available for emergencies such as a personal injury or illness, or a medical emergency. The ESA provides that an employee may use these days for a personal illness, injury or medical emergency or for the death, illness, injury or medical emergency or urgent matter concerning: 

  • the employee’s spouse;
  • a parent, step-parent or foster parent of the employee or the employee’s spouse;
  • a child, step-child or foster child of the employee or the employee’s spouse;
  • a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse;
  • the spouse of a child of the employee;
  • the employee’s brother or sister; and
  • a relative of the employee who is dependent on the employee for care or assistance.

The Interim Report notes that approximately 74% of Ontario employees are covered by the personal emergency leave provisions of the ESA. Nevertheless, during the consultation period, numerous employee advocates made recommendations to remove the eligibility threshold of 50 or more employees. The removal of this threshold would expand the benefit to all workers.

Employers, on the other hand, expressed concerns and raised issues in respect of the ESA leave as it is in its current form. These included:

  • the complexity in navigating the various ESA leaves;
  • difficulties in establishing that the employer’s leave policies provide a greater benefit than the ESA personal emergency leave;
  • concerns relating to excessive absenteeism and the difficulties in monitoring; and
  • the costs associated with filling in for absent employees, such as overtime pay, or retaining temporary or part-time workers.

The options that the Interim Report sets forth are as follows:

  • Maintain the status quo;
  • Remove the 50 employee threshold for the personal emergency leave;
  • Break down the 10-day entitlement into separate leave categories with separate entitlements for each category but with the aggregate still amounting to 10 days in each calendar year. For example, a specified number of days for each of personal illness/injury, bereavement, dependent illness/injury, or dependent emergency leave but the total days of leave still adding up to 10; and
  • A combination of options 2 and 3 but maintaining different entitlements for different sized employers.

Notwithstanding that the personal emergency leave is an unpaid leave, the costs that an employer may incur in monitoring and administering the leave, in addition to the costs of covering for employees on leave, can be considerable. Organizations with less than 50 employees may wish to make submissions setting out how option 2, the removal of the 50 employee threshold, may impact their operations. The Interim Report states that during the consultation period they did not hear from many smaller employers. Employers, both large and small, are encouraged to provide their views on the various options before the above noted deadline.

LRA Amendments

In addition to the ESA options that are canvassed, the Interim Report considers various options to amend the LRA. Most of these options are aimed at removing obstacles to unionization and providing for effective collective bargaining. The amendments to the LRA that are under consideration relate to the following areas:

  • The scope and coverage of the LRA relating to:
    • coverage and exclusions; and
    • related and joint employers.
  • Access to, and maintenance of, collective bargaining relating to:
    • the certification process:
      • card-based certification;
      • electronic membership evidence;
      • access to employee lists;
      • off-site, telephone and internet voting; and
      • remedial certification.
    • first contract arbitration;
    • successor rights; and
    • consolidation of bargaining rights.
  • The bargaining process relating to:
    • replacement workers;
    • the right of striking employees to return to work; and
    • renewal agreement arbitration.
  • Remedial powers of the Ontario Labour Relations Board relating to:
    • interim orders and expedited hearings;
    • just cause protection; and
    • prosecutions and penalties.
  • Other models of bargaining relating to:
    • broader-based bargaining structures; and
    • employee’s right to participate in decision-making in some dimension.
  • Additional LRA issues.

As can be seen, the scope of the Review is sweeping and the amendment options that are under consideration have the potential to impact every employer in Ontario. We are currently undertaking a detailed review of the report and will be preparing future Focus Alerts on specific options that are being considered. In the meantime, the Interim Report can be accessed via the following link: https://www.labour.gov.on.ca/english/about/pdf/cwr_interim.pdf.

For further information please contact André Champagne at 613-940-2735, or Sébastien Huard at 613-940-2744, or Paul Lalonde at 613-940-2759.