Bill 148 | Author: Bram Lecker, Principal, Lecker & Associates
Bill 148: When Politics Intersect with Employee Rights
Ontario’s newly elected Conservative government tabled an omnibus bill yesterday that brings politics directly into the arena of employee rights. In our 35+ years of practice, we have never seen this play out so brazenly. Bill 148 was introduced under a year ago by the former Liberal government. It was passed after 2 years of extensive consultations, the Changing Workplaces Review. They investigated the matter from the perspective of both employees and employers. The sheer number of precedent setting employment lawsuits indicated that our employment laws had gaping holes in them. For years, our judges were filling these gaps with court rulings that protected employee rights. The Employment Standards Act,2000 desperately needed an overhaul. Bill 148 was passed to fix those flaws.
Changes to the Employment Standards Act were never on the Conservative Party platform during the election – in fact no platform existed other than “opening Ontario for business”. The voting public has certainly not bargained for what we have received. Partisan politics is playing out. In sharp contrast, our current government has proposed changes to a law without any reviews or consultations. Minimum wage increases are the first target. The Premier announced that these changes are “good for business”. Yet economists have debunked any theory that existed about minimum wage increases negatively impacting business. In fact, quite the opposite has occurred. Increasing the minimum wage has been good for the economy. Our unemployment rate has never been lower.
Politicians have power and this government appears to be using theirs not for the people they represent, but to promote the interests of the business lobby. Without an open consultative process, do we even know if the business lobby includes U.S. based corporations who operate in Canada? Canadian employment laws have always been very progressive compared to the U.S. A majority Conservative government means the new bill will likely come to pass. And some of the changes, like the minimum wage increase and sick day provisions, will be reduced. This is a step backwards.
For any employee out there concerned about this, we want to reassure you. Ontario’s judicial system remains strong. Employee rights cannot be undone so easily. Many Bill 148 provisions were already established by our forward-thinking judges, adjudicators and common law. No polititican can undo that. The Wynne government simply codified those into law. Even when our politicians look away, we will not.
Bill 148 continues to be the law today. This blog highlights what it does for you. When the law changes, we will update you accordingly.
What Bill 148 Means for You
On November 22, 2017, Ontario employees had every reason to cheer. The Ontario government passed Bill 148, also called the Fair Workplaces, Better Jobs Act, 2017. They recognized how rapidly Ontario’s economy was changing. Workplaces are less secure with part-time and contract jobs on the rise.
With the passage of Bill 148, weighty changes arrived to Ontario’s labour and employment regime. Ontario workers, particularly those deemed as ‘precariously’ employed, received expanded protections and improved standards from the government. Deemed pro-employee by many pundits, Bill 148 amended both the Employment Standards Act, 2000 (“ESA”) as well as the Labour Relations Act, 1995 (LRA”).
While the media focused primarily on the significant minimum wage increase, Bill 148 heralded in so much more. We now have clear requirements for classifying workers as employees or contract workers. The Act expands the requirements of equal-pay-for-equal-work beyond the identity of gender. And Ontario employees now receive greatly improved leaves that are currently protected under the Employment Standards Act, 2000.
A Bill 148 Cornerstone: The Minimum Wage Increase
Minimum wage sat at $11.40 in Ontario. It was well below a living wage, leaving many with full time jobs unable to make ends meet. While corporate profits and executive compensation have continued to rise to record levels in Ontario, wages remained stagnant. This fact specifically drove the charge for minimum wage reforms.
As a minimum wage employee, you may see a larger paycheck on January 1, 2018. Ontario’s minimum wage rises substantially to $14.00 per hour. This should have gone up once again on January 1, 2019 to $15.00 per hour. But our new political regime did not allow it to pass. The Act continues existing practices of lower rates for selected categories of workers, like liquor servers and students. However, even those rates increase proportionately on the dates noted above.
Classification of Contract Workers
Following the landmark decision in our dependent contractor case, Keenan vs. Canac Kitchens, the Wynne Government swiftly moved to improve standards for contract workers. Employers now have to classify the working relationship for this rapidly growing segment of workers in Ontario. They can no longer intentionally mislabel you as independent contractors to avoid paying out your severance and notice obligations. They now bear the burden of proof for justifying your classification as a dependent or independent contractor. Effective immediately, the ESA considers it an offense if your employer classifies you incorrectly.
Anyone working in non-traditional employment, such as commission sales agents should understand their rights and entitlements, clearly. Similarly, temp and part time workers should seek clarification of their status from their employer right away. And, particularly so if you are perpetually caught up in endless cycles of illegitimate layoffs that serve no purpose other than denying your severance entitlements.
Equal Pay Provisions
On April 1, 2018, seasonal, temporary, casual and full-time workers performing similar type of work at the same workplace were entitled to equivalent wage rates. The law makes exceptions for seniority and merit. However, you now have the right to ask for a wage review to determine, in writing, why your wage differentiation exists.We expect to see some court challenges with the interpretation of “substantially the same kind of work” outlined in the legislation.
Scheduling Hours of Work
On-call employees and shift workers often work in unpredictable conditions that encroach on their ability to manage their personal time. Starting January 1, 2018, your employer must compensate you for this inconvenience with a minimum of 3 hours at your regular rate when they cut back hours on an already planned shift. The same terms apply to on-call workers if your employer requires you to remain on-call, but eventually does not call you in. Furthermore, you have the right to decline extra shifts without penalty if your employer provides less than 96 hours of notice.
Even though the current government is trying to repeal parts of this law, judge-made laws, called Common Laws, set a precedent. They will continue to exist and protect you. In 2003 we argued a case on behalf of our client, Michael Hilton against his employer, Norampac Inc. His employer required him to be on-call every sixth weekend and without compensation. Mr. Hilton refused, citing child care arrangements and they fired him. We took the case all the way to the Supreme Court of Canada. Because of this case, your employer is limited on how far they encroach on your personal time and family commitments. They cannot force on-call work on you. Even if our government repeals the law, case law will continue to exist and protect your rights.
Vacations, Overtime, and Holidays
On January 1, 2018, long term employees with five years or more service with the same employer, will now automatically receive a minimum of three weeks paid vacation or 6% vacation pay. In addition, the new legislation amended overtime pay calculations for a specific group of workers. If you are employed in multiple positions at the same organization, your overtime pay will now be based on that of the position and the actual work you perform during the overtime period.
Although Bill 148 effected temporary changes to how holiday pay is calculated in Ontario, a new regulation was passed early in May 2018. It reinstates the previous holiday pay calculations. Starting July 1st 2018, your employer will calculate your public holiday pay by taking the amount you earn four weeks prior to your holiday and divide it by 20 days. The Ontario governement remains committed to a fair society operating in our modern workplaces. They are conducting a review of public holiday rules, hoping to introduce a new system by 2020.
ESA Protected Leaves
Ontario’s ESA already provided several leaves of absence that protected your job status. Bill 148 strengthened the existing provisions on some of them, recognizing the special needs of parents and caregivers. Enhanced Pregnancy, Parental Leave and Personal Emergency Days will allow individuals more opportunity to balance your work obligations with the challenges of being pregnant, raising children and caring for ill and dying family members.
In addition, Bill 148 introduced an important new protected leave. Employees who suffer domestic or sexual violence now qualify for a 15 week leave. The law extends the same protection to parents of children suffering similar abuse.
Bill 148 – So Much More
While the above encompass some of the highlights, Bill 148 is a comprehensive Act that addresses so much more. It also introduces new standards for temp agencies, reduces exemptions from ESA minimums for Crown employees and students in training.
The amendments adopted to the Act are significant. Proactive workplaces may conduct extensive reviews of their employee contracts for compliance. However, we encourage all employees to get fully educated about these improved rights to ensure you receive all your entitlements.
An an hour consultation with one of our experienced employment lawyers may be well worth your while to discuss this legislation as it specifically applies to you.
Lecker & Associates are employment and disability benefits lawyers. We exclusively represent employees of Ontario and have been practicing this area of law for over 35 years.
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