Fair Workplaces, Better Jobs Act, 2017

Transcription

1 Fair Workplaces, Better Jobs Act, 2017 Sophia Duguay October 5,

2 AMCTO Zones 4 & 5 Fall Meeting October 5, 2017 Sophia Duguay, Partner, Kingston 2

3 Introduction to Bill 148 Sophia Duguay 3

4 Bill 148: An Overview The Bill will amend: Employment Standards Act, 2000 Labour Relations Act, 1995 Minor changes to several other employment related legislation Subject to further change! 4

5 Timeline of Events CWR Commences (May 2015) Final Report Released (May 23, 2017) Bill 148 First Reading (June 1, 2017) Clause-by- Clause Consideration by Committee (August 21, 2017) Interim Report Released (July 2016) Legislation Announced (May 30, 2017) Public Consultations (July 2017) 5

6 Timeline of Events Legislature returned September 11, 2017 More public consultations after second reading Most ESA changes will be effective January 1, 2018 LRA changes will be effective 6 months after the Bill receives Royal Assent 7

7 Changes to the Employment Standards Act,

8 Overview of Changes Minimum Wage Equal Pay for Equal Work Scheduling Vacation Increases Holiday Pay Statutory Leaves 9

9 Changes in Scope of ESA Now applies to: all Crown employees trainees Classification of Employee prohibits misclassification employer has onus to prove independent contractors are true independent contractors 10

10 General Minimum Wage in Ontario $16.00 $14.00 $12.00 $10.00 $8.00 $6.00 $4.00 $2.00 $- $14.00 $15.00 $10.25 $11.00 $11.25 $11.40 $

11 Equal Pay for Equal Work Equal pay for equal work has been extended to include employment status No employee may be paid less than what is paid to full-time employees of the same employer, performing the same job 12

12 Equal Pay for Equal Work Exceptions: Objective reasons for wage differential other than gender or employment status Seniority; Merit; A system that measures earnings by quantity or quality of production; Any other factor other than sex or employment status. The Bill provides for a transition period for collective agreements that are in effect on April 1,

13 Equal Pay for Equal Work In Practice: Employee may request a review of wages Employer must respond by either: 1 2 Adjusting the employee s pay accordingly If the employer disagrees, providing a written explanation Protections from reprisal 14

14 Equal Pay for Equal Work How to prepare: Proactive with wage rates Work with temporary agencies? Make it part of pay equity Prepare for collective bargaining Have a review system in place for complaints 15

15 Scheduling Any employee with at least 3 months service has the right to request schedule or work location changes without reprisal Bill 148 will amend the 3-hour reporting rule to require payment at the regular rate of pay (as opposed to the minimum wage rate) Contains transition period for collective agreements 16

16 Scheduling New on-call rule to require payment at least 3 hours pay for employees who are on-call and who are either not called in to work or who are called in but work less than 3 hours The right to refuse a shift or to refuse being placed on call without reprisal if there is less than 4 days notice provided Does not apply: work is to deal with an emergency, or to remedy a threat to public safety 17

17 Scheduling Bill 148 will provide for an obligation to provide 3 hours pay at the regular rate if a shift is cancelled or on call period is cancelled within 48 hours of its scheduled start. Does not apply where the work cannot be provided for weather-dependent reasons or fire, storms, power, failure, etc Entitlement in this Part is limited to three hours of pay 18

18 Vacation and Public Holidays 3 weeks vacation for employees with 5+ years Public Holidays Based on regular wages from previous pay period Holiday Pay = Regular wages from previous pay period Days worked in that period 19

19 Personal Emergency Leave 10 days (2 paid + 8 unpaid) Qualifying period for paid days: 1 week of employment Applies to all workplaces (the 50 employee threshold will be removed) Employers will not longer be able to require a medical note as reasonable evidence 20

20 Domestic or Sexual Violence Leave New standalone leave for domestic or sexual violence An employee who has been employed for at least 13 consecutive weeks is entitled to an unpaid leave of absence with respect to domestic/sexual violence To seek medical attention, obtain services from a victim services organization, obtain counselling, relocate, or to seek legal assistance 21

21 Pregnancy and Parental Leave Brings the ESA in line with recent changes to the Employment Insurance Act The length of parental leaves will increase by a total of 26 weeks: from 35 weeks to 61 weeks for employees who took a pregnancy leave, and from 37 weeks to 63 weeks for employees who did not 22

22 Other Leaves of Absence Family Medical Leave Increased leave from 8 weeks 27 weeks Increased period of risk from 26 weeks 52 weeks Child Death/Disappearance Leave No longer requires the death to be crime related Disappearance leave increased to 104 weeks 23

23 Temporary Help Agencies Equal pay for equal work Agency employer has obligation to reply A temporary help agency must provide an assignment employee with one week s notice (or pay in lieu of notice) if an assignment of more than three months ends early Unless another assignment of more than one week is offered Agency must retain a record of written notice 24

24 Enforcement Increase penalties for non-compliance Additional employment standards officers New education programs 25

25 Miscellaneous Changes Related employer provisions clarified/expanded Use of electronic agreements Overtime rates (multiple jobs) Wage collection measures Many additional record-keeping requirements 26

26 Changes to the Labour Relations Act,

27 Overview of Changes Union Certification First Collective Agreement Arbitration Successor Employers Review/Consolidation of Bargaining Units Just Cause Protections All changes in effect 6 months after Royal Assent 28

28 Card-Based Certification Option The union will be able to elect to have its application proceed by way of card-based certification for: building services home care and community services temporary help agencies <40% Dismissed >40-55% Direct a vote >55% Certify OR vote 29

29 Provide Employee List to Union Union can make an application to the Labour Board for an order directing an employer to provide a list of employees Union must demonstrate at least 20% support List will include: Employee names Phone number and personal (if known) Amendments address confidentiality issues: requirement to protect the security/confidentiality of the list 30

30 First Collective Agreement Arbitration Parties may apply for mediation in every case Application will contain: List of issues Position on issues After receiving the application, the Minister would appoint the first contract mediator 31

31 First Collective Agreement Process Application Either party may apply List issues and positions Response Due within 5 days List issues and positions Mediation A single first collective agreement mediator appointed No strikes or lockouts for 45 days after the appointment is made Application for Settlement Either party may apply to OLRB for settlement by mediation-arbitration 32

32 Successor Employer Successor rights will apply to services provided by or to a building owner or manager that are related to servicing the premises, including: cleaning services food services security services Will be deemed to have occurred where the employer ceases to provide services and substantially similar services are subsequently provided by another employer 33

33 Review and Consolidation of Bargaining Units Broad powers will be given to the OLRB to consolidate bargaining units after certification Power to review where certain conditions are met: i. Application made at certification or within 3 months; ii. No collective agreement has been entered into; and iii. Union already represents employees of employer in another bargaining unit at same or different location 34

34 Review and Consolidation of Bargaining Units OLRB will consider whether consolidation would contribute to the development of bargaining relationships and the development of collective bargaining in the industry The OLRB will have the power to: Consolidate the bargaining unit Amend the certification order or bargaining unit description, Order which collective agreement applies Amend expiry dates and seniority rights 35

35 Right to Return from Strike No time limit to apply to return to work Bill 148 will remove the six-month time limit Employees will have the right to reinstatement at the conclusion of the strike or lockout Enforcement through grievance/arbitration procedure An employer cannot discharge or discipline an employee without just cause during lawful strike/lockout 36

36 Extension of Just Cause Protection Employers will not be able to discipline or terminate an employee, except for just cause, once the union has been certified as the bargaining agent This protection extends from the date of certification to first collective agreement 37

37 Changes to Remedial Certification When employer or employer organization contravenes the Act and as a result, either: The true wishes were not likely reflected; or The union obtained less than 40% of the vote, Board shall order remedial certification 38

38 Additional Changes Broader powers regarding interim decisions and orders OLRB may conduct votes outside workplace, electronically or by telephone Increase in maximum fines Individuals $2,000 $5,000 Organizations $25,000 $100,000 39

39 Economic Analysis 40

40 Independent Economic Impact Analysis The Keep Ontario Working Coalition released an independent economic impact analysis of Bill 148 in August 2017 Conducted by the Canadian Centre for Economic Analysis (CANCEA) 41

41 Independent Economic Impact Analysis CANCEA concluded: Bill 148 will put about 185,000 jobs at risk in the first two years after implementation: 30,000 of the jobs at risk are youth under 25 96,000 employees at risk are expected to be women $23 billion hit to business over the next two years alone 42

42 Independent Economic Impact Analysis CANCEA concluded: Owners of small businesses are likely to be affected five times more than larger businesses Will affect women more than men Sectors most at risk to lose jobs: Manufacturing, accommodation and food services, retail trades and wholesale trades 43

43 Independent Economic Impact Analysis CANCEA concluded: Consumer price changes will vary across business sectors Consumer prices are expected to increase by a further 0.7% on average This translates into an additional increase of consumer goods and services by $1,300 per household on average per annum. 44

44 What s Next? 45

45 Timeline of Events Legislature Returns (September 11, 2017) Further Public Hearings (Likely Fall 2017) Royal Assent (Likely Fall- Winter 2017) Second Reading (Likely Fall 2017) Third Reading (Likely Fall 2017) 46

46 Going Forward What we don t know: Additional changes after second reading? Potential for future legislation to address more of the CWR recommendations? 47

47 Questions & Answers 48

48 Fair Workplaces, Better Jobs Act, 2017 Sophia Duguay October 5,