Bill 47 and Impacts to Employment Standards in Ontario

November 12th, 2018 by Brynn Leger

On October 23, 2018, the Ontario government announced changes to employment standards in the province in the form of Bill 47, dubbed the “Making Ontario Open for Business Act.” The proposed changes will largely undo the amendments made to employment and labour legislation last year with the Liberal government’s Bill 148, the Fair Workplaces, Better Jobs Act.

Here, we will provide an overview of some of the major changes coming to employment standards in the province.

1. Minimum Wage

It was Bill 148 that substantially increased the minimum wage to $14.00 per hour with plans for a further increase to $15.00 per hour in January 2019. As promised by Doug Ford during the election campaign, Bill 47 removes this increase and freezes the minimum wage for at least the next two years, until October 2020. At that point, the increases will be indexed to inflation.

Critics of the Bill have pointed out that the effect of this is that the minimum wage will not reach $15.00 per hour until at least 2025, according to an analysis released by Goldblatt Partners.

In response to “too much, too fast” arguments from Conservatives about the minimum wage hike in 2017, supporters of the increase point out that the minimum wage was frozen for 8 years under previous Conservative administrations, and Ontarians suffered as the cost of living went up. The jumps introduced by Bill 148 were intended to compensate for this disconnect between the minimum wage and the cost of living. The current Ontario government has continued to argue that the minimum wage increase has been detrimental to business and Bill 47, along with other measures, will make Ontario a more attractive place for business.

2. Equal Pay for Equal Work

Although the minimum wage issue received a lot of publicity when Bill 148 was passed, the 2017 changes to employment standards did much more for workers than just bring their wages closer to a liveable standard. Notably, it mandated equal pay for equal work, which meant huge changes for those in the workforce who are in part‑time, casual or temporary positions. Bill 148 mandated that workers performing the same work were required to have the same rate of pay regardless of their employment status (i.e. whether full time or casual). This meant, for example, that a seasonal employee and a permanent employee doing the same job must be paid at the same rate.

Bill 47 will remove these equal pay for equal work provisions on the basis of employment status from the Employment Standards Act (the ESA), but will maintain prohibition on differential pay rates on the basis of sex.

As MPP Catherine Fife explained in the debate on Bill 47 on October 29, 2018, most workers in these more precarious positions (casual, temporary, seasonal, etc.) are women and racialized minorities. She argued that removing the equal pay provisions from the ESA will have the effect on maintaining inequality for these populations. With the proposed amendments, worker in a temporary or contract position, more likely to be a woman or minority, can have a lower rate of pay than their counterparts performing the same work in a permanent or full‑time position.

3. Personal Emergency Leave Days

Since 2001, the ESA has provided for ten days off from work for reasons of illness, illness of a family member, or similar urgent needs. These are known as “personal emergency leave days.” The 2017 changes to the ESA made two of these days off paid days off.

In the debates on Bill 47, one MPP described the previous government’s personal emergency leave program as “disastrous,” calling it, “a piece of red tape so burdensome it discouraged employers from hiring new workers or creating new jobs.” The concern is that employees are treating these as extra vacation days, and abusing the ten days of personal emergency leave.

In response to these concerns, Bill 47 scraps the personal emergency leave program, including the two paid days off, and in its place provides eight days off per year for employees, all unpaid. These days are allocated as follows: three sick days, three family responsibility days and two bereavement days. Therefore, not only are workers losing two days off, and losing their two paid days off, but they are limited in how they can use the days they are given. This removes flexibility for workers who may be sick for more than three days in a year, but do not need to use bereavement days, for example.

4. Doctor’s Notes

Another change will restore the ability of employers to ask for a note from a medical professional when an employee stays home sick, ensuring that the sick days described above are not used dishonestly by employees.

The 2017 amendments added a provision to the ESA that restricts employers’ ability to demand doctor’s notes, although employers are still able to require “reasonable evidence” in the event of an absence. This provision is removed by Bill 47. The problem with requiring employees to get medical notes when they are sick is that an employee that is too sick to work should probably not be going to doctor’s office. It increases risk of infection of others and puts a strain on limited resources in doctor’s offices and clinics, according to the Ontario Medical Association.  In addition, these notes can cost money, meaning that workers may need to spend money in order to justify losing a day’s pay to their employers.

5. Other Changes

These are just a few of the changes that will be rolled back with the new proposed amendments. Other changes that employers should be aware of include returning the calculation of public holiday pay to what it was before the 2017 changes and removing some of the limits on scheduling (previous changes required 96 hours’ notice). There are also many changes that were made to the Ontario Labour Relations Act that have impacts on unionized or unionizing workplaces, which we aren’t discussing here.

6. Conclusion

The Bill is currently being debated in Parliament. The proposed changes to the ESA are set to become law as of January 1, 2019 or when it receives Royal Assent. Despite some of the rollbacks on employment standards advanced by Bill 47, employers can still work to advance the rights of workers beyond the legislated minimums in employment standards legislation. Organizations such as the Ontario Non‑profit Network continue to be proponents of decent work in the sector, acknowledging that fair, stable employment strengthens organizations and the sector. Groups such as Fight for $15 and Fairness continue to mobilize against Bill 47, recently stating that community pressure has succeeded in sending the Bill to Committee for further review.

For our clients, these changing employment standards can be confusing. Employers must ensure that their employment contracts and policies meet or exceed the legislated employment standards in Ontario. Bill 47 brings changes to the current employment standards that employers should be aware of. Stay tuned to this blog for more updates on changing employment and labour laws.

Filed in: Employment Law