Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER APRIL 2018 NEWS 3 'Employment status' now part of equal pay legislation in Ontario Could mean greater focus on job postings, performance evaluations: Experts BY SARAH DOBSON WHILE Ontario has had equal pay for equal work legislation for years, it changed considerably when new rules recently took ef- fect as part of the Fair Workplaces, Better Jobs Act, 2017. As of April 1, it is now manda- tory for employers to pay casual, part-time, temporary and sea- sonal employees, who are doing substantially the same work as full-time or permanent employ- ees, the same rate of pay as full- time or permanent employees. Employees in these categories can now ask their employer to review their rate of pay if they believe they're not receiving the same rate of pay as full-time or permanent employees perform- ing substantially the same work. And employers will have to respond by either adjusting the employee's pay or giving the em- ployee a written explanation. Why the change? The equal pay for equal work provisions have been in place for decades, but were largely over- taken when pay equity came into effect in the 1980s, said Paul Broad, a lawyer at Hicks Morley in Toronto. "It wasn't that these provi- sions went away, but they didn't get used the same way as much because people were focused on pay equity." ere was also a concern from a policy perspective, rightly or wrongly, said Carl Cunningham, a partner at Bennett Jones in Toronto, that given the evolving workforce, with more freelance and contract work, the Employ- ment Standards Act (ESA) needed to be updated to make sure those precarious or vulnerable workers received entitlements that at least met the minimum for the act. "It's not a wholly surprising move," said Claire Vachon, a partner at Fasken in Ottawa, and is really a response to what is perceived as a growing gap or imbalance between the rich and poor and precarious and secure employment. Similar prohibition added Ontario's ESA already provided that an employer could not pay an employee of one sex at a rate of pay less than that paid to an employee of the other sex when: both employees performed sub- stantially the same kind of work in the same establishment; their performance required substan- tially the same skill, effort and re- sponsibility; and their work was performed under similar work- ing conditions, she said. e new provisions add a simi- lar prohibition based on employ- ment status. is is defined as a difference in the number of hours regularly worked by the employees, or a difference in the term of their em- ployment, including a difference in permanent, temporary, seasonal or casual status, said Vachon. "Depending on the circum- stances, a casual employee may be doing the exact same thing and having the exact same responsibil- ity as a full-time employee. But, in many cases, they don't, they won't do the full responsibility of the job." For example, an occasional teacher may not be paid the same rate as a permanent teacher be- cause he has different skills or re- sponsibilities, she said. As part of the new legislation, employers are exempt from the new rules if the wage difference is based on: a seniority or merit system; systems that measure earnings by quantity or quality of production; or "other factors." What will be interesting is the catch-all category of "other fac- tors," said Broad, because looking at old cases, a lot of the other fac- tors were actually differences in employment status, such as part- time employees. Today, "other factors" might refer to temporary assignments, people going through training or probationary-type situations, he said. Responding to the new rules e first thing employers should do is look to see where there are differences in the rates of pay, and then check if the provisions even apply, said Broad. For example, if they pay a part- timer $5 per hour less than full- timers, then — and this is where BEING > pg. 12

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