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It has been a busy year in the world of employment, and there are still many more changes in store for 2019. How will these affect employers?

The previous Ontario Liberal government brought in monumental changes to the Employment Standards Act, 2000 (ESA) through Bill 148, the Fair Workplaces, Better Jobs Act. Most of the changes took effect earlier this year, while some were due to take effect in 2019.

Business owners and HR professionals have spent the past year trying to understand and abide by Bill 148, including redrafting workplace policies and employment contracts to ensure they were not offside the new laws.

The recent change of government in Ontario resulted in a significant review and overhaul of many of the amendments made to the ESA. On November 21, 2018, the new Progressive Conservative government succeeded in enacting Bill 47Making Ontario Open for Business Act, 2018. While employers will likely be happy with the amendments, they will have to again review their workplace policies and employment contracts to ensure they will be compliant with the amendments when they come into force on January 1, 2019.

Watch Jim talk about recent changes to ESA at a recent InvestOttawa session.

What are the changes introduced by Bill 47?

The following are highlights of Bill 47:

  1. Minimum wage: The minimum wage hike to $15.00/hr has been cancelled. Instead, minimum wage will remain at $14.00/hr until October 2020 when it will begin increasing in line with the consumer price index.
  2. Public holiday pay: The manner of calculating public holiday pay has been permanently returned to the old formula (pre-Bill 148) – that is, earnings in the previous 4 weeks divided by 20. The formula set out in Bill 148 (earnings during the previous pay period divided by the number of days worked) proved extremely problematic in some circumstances. The former Liberal government recognized this and returned to the old formula on a temporary basis as of July 1, 2018. Bill 47 reverts permanently to the old formula.
  3. Equal pay: “Employment status” has been removed from the Equal Pay for Equal Work provisions. For example, as of January 1, 2019, employers will again be able to have different rates of pay between full-time and part-time employees, and between permanent and casual employees. Bill 148 made it difficult to justify such discrepancies. Equal Pay for Equal Work will again focus exclusively on gender discrimination.
  4. Personal leave: As of January 1, 2019, employees will no longer be entitled to 10 days of personal emergency leave, the first 2 days of which being paid. Rather, employees will be entitled to 3 days of sick leave, 3 days of family responsibility leave and 2 days of bereavement leave. As a result, the total number of days of leave is reduced to 8 and none are paid. The prohibition on demanding medical certificates for absences will also be repealed.
  5. Independent contractors: The provision on the misclassification of employees (such as treating service providers as independent contracts when they are rightfully employees) has not been repealed. However, the onus will no longer be on the employer to prove an individual is an independent contractor; the onus will be on the individuals who believe they are employees to prove they are employees.
  6. Scheduling: The new employee-friendly scheduling provisions that were due to come into force on January 1, 2019 have been largely repealed (For example, paying employees for at least 3 hours of work when on call and when a shift is cancelled with less than 48 hours’ notice). The three-hour rule remains: if an employee attends work and is sent home after working less than 3 hours, the employee must nonetheless be paid for 3 hours. This entitlement will apply if the employee was supposed to work three or more hours, was available to work longer and as long as the cancellation was not due to some force outside of the employer’s control (e.g. a storm, electrical outage, fire, etc.).
  7. Vacation: The entitlement to 3 weeks’ vacation upon attaining 5 years’ service has not been repealed. Employees who reach their fifth anniversary will be deemed to have accrued at least 3 weeks’ vacation in the previous vacation entitlement year.
  8. Victims of violence: The leave entitlements for victims of sexual/domestic violence also remain, including the entitlement to 5 days of paid

What does this mean for employers?

Employers should regularly review their employment contracts and workplace policies to ensure they are compliant with the law.

While Bill 47 largely relaxed the law for employers, some amendments may be necessary or wanted, especially if previous changes were made to comply with leave and scheduling entitlements.

Please contact the Employment Law Group for assistance in understanding the changes to the law and reviewing/drafting your workplace policies and employment contracts.


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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