On November 21, 2018, the Progressive Conservative government passed and gave Royal Assent to Bill 47, the Making Ontario Open for Business Act, 2018 (“Bill 47”). This legislative change reversed many of the controversial laws introduced by Bill 148 in late 2017. The following overview discusses Bill 47’s significant changes to Ontario’s Employment Standards Act, 2000 (“ESA”):
1. Minimum Wage
As most of you are by now aware, Bill 47 cancelled the legislated hike of the general minimum wage from $14 per hour (current levels) to $15 per hour. This change was scheduled to take effect on January 1, 2019. Similar increases were scheduled to take effect for other “sub-minimum wage” classes of employees, including students and liquor servers.
Bill 47 has frozen the provincial minimum wage at $14 per hour until October 1, 2020. Sub-minimum wage rates for students under the age of 18 ($13.15 per hour) and liquor servers ($12.20 per hour) will also remain at their current rates until October 1, 2020. The “homeworker” minimum wage has also been maintained at $15.40 per hour.
2. Personal Emergency Leave
Before Bill 47, workers in Ontario were entitled to take up to ten (10) Personal Emergency Leave (“PEL”) days per calendar year. Workers with over one (1) week of service were also entitled to two (2) paid PEL days. Generally, these days could be used for personal emergencies, illnesses (personal and family illnesses), bereavement, and other “urgent matters”. Thanks to Bill 148, employers were also forbidden from “requiring” employees to provide medical certificates to substantiate their entitlement to PEL.
Bill 47 altogether eliminates PEL from the ESA. Effective January 1, 2019, PEL was replaced with the following types of leaves:
- Unpaid Sick Leave (3 days per calendar year)
- Unpaid Family Responsibility Leave (3 days per calendar year)
- Bereavement Leave (2 days per calendar year)
Bill 47 once again permits employers to “require” medical certificates (personal and related to family member illnesses) in addition to “evidence reasonable in the circumstances” to substantiate their entitlement to the new leaves. An employee needs to be employed for a minimum of two (2) weeks to qualify for these new types of leaves.
3. Scheduling Changes
Perhaps the most controversial changes made to the ESA under Bill 148 related to scheduling. Employers across the province expressed concerns about the viability of the below scheduling rules, many of which were slated to take effect on January 1, 2019:
- Requested Changes – The right to request scheduling changes to changes to work location after three (3) months of employment;
- Three Hour Rule: The right to minimum call-in pay of three (3) hours if the employee is available to work but is not called into work, or works less than three (3) hours;
- Short-Notice Shift Changes: The right to refuse short-notice scheduling (less than ninety-six  hours’ notice);
- Shift Cancellation Pay: The right to shift cancellation pay of three (3) hours’ wages if a shift is cancelled within forty-eight (48) hours of the start of the shift;
- Record keeping requirements related to the above changes.
Thanks to Bill 47, the only scheduling rule carried forward from Bill 148 is the three (3) hour rule.
4. Equal Pay for Equal Work (“EPFEW”)
The “Equal Pay for Equal Work” provisions of Bill 148 took effect on April 1, 2018, and required employers across the province to equalize wages regardless of “employment status”. Bill 148 essentially made it unlawful to pay part-time, casual, or temporary staff members less than full-time employees performing essentially the same work, subject to very limited exceptions. The EPFEW changes under Bill 148 built upon the previous language in the ESA, which prohibited differential pay on the basis of sex.
Bill 47 has altogether repealed the changes to the ESA introduced by Bill 148. Only the previous requirement to ensure EPFEW between sexes has been maintained.4
5. Public Holiday Pay Calculation
Bill 148 introduced a controversial public holiday pay formula which resulted in casual and part-time employees receiving substantially higher public holiday pay than they did under the pre-Bill 148 ESA. In June of 2018, the Liberal government subsequently revoked the public holiday pay formula, rolling it back to its pre-Bill 148 status.
Bill 47 maintains the public holiday formula found in the pre-Bill 148 ESA.
6. Vacation Time / Pay
Bill 47 did not change the new vacation time and vacation pay rules introduced by Bill 148. This means that employees with five (5) or more years of service will continue to be entitled to three (3) weeks of vacation time, and six (6) percent vacation pay. Standard pre-Bill 148 rules apply for employees with between 0 and 5 years of service.
7. Domestic and Sexual Violence Leave
In November 2017, Bill 148 added Domestic and Sexual Violence leave to the other job-protected leave provisions found under the ESA. Bill 47 makes no changes to the rules introduced by Bill 148.
8. Misclassification (Employee vs. Independent Contractor)
Bill 148 introduced a “reverse onus” provision which required employers to prove that employees were not independent contractors in the event of a misclassification complaint. Bill 47 has eliminated the “reverse onus” introduced by Bill 148, which means that employees will need to prove that they have been improperly classified as independent contractors to claim entitlements that are available to employees under the ESA (e.g. termination and severance pay).
Bill 47 returns the administrative penalties section of the ESA to its pre-Bill 148 form by decreasing the maximum penalties from $350/$700/$1500 to $250/$500/$1000, respectively.
All of the above-noted changes came into effect on or before January 1, 2019, meaning that the Ministry of Labour’s Employment Standards Branch is already enforcing the rules and regulations set out above. Having said that, many of the changes introduced by Bill 47 are restorative rather than revolutionary. As a result, the exercise of updating policies and employee manuals should be simpler than it was at approximately the same time last year.
Please note, the above overview describes the general rules that apply to most employers across the province of Ontario. There are a number of “Special Rules” which apply to specific sectors (e.g. construction, automotive). The ESA “Special Rules” web page identifies rules that apply to particular industries.
It is also worth noting that Bill 47 introduced other significant changes to Ontario Labour and Employment statutes, including the Labour Relations Act, and the Ontario College of Trades and Apprenticeship Act. Stay tuned for continuing coverage of recent statutory changes in our follow-up article on Bill 47 next month.
Written by Tushar Anandasagar
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.