Canadian Employment Law Today

6 | November 21, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends pacting workplace flexibility, reduced barri- ers to unionization, and the prohibition on requesting doctor's notes to justify personal emergency leave for ill employees. e election of Doug Ford and the Pro- gressive Conservative Party transformed the province's labour and employment law landscape virtually overnight. While Pre- mier Ford promised during his campaign to cap the minimum wage increase at $14, his platform was vague with respect to the Tories' plans for Bill 148. e tabling of Bill 47, the Making Ontario Open for Business Act, 2018, erases all doubts about the gov- ernment's intentions when it comes to reori- enting Ontario's employment standards and labour relations laws. Employers that struggled to comply and manage in the wake of Bill 148 were pleased to learn on Oct. 23 that the Conservatives plan to repeal many — although not all — of the amendments to the Employment Standards Act, 2000 and the Labour Relations Act, 1995. Scrapping workplace policy changes While this sweeping reversal may be laud- ed, many business owners, managers and HR professionals will undoubtedly lament the time and money spent adjusting em- ployee policies and employment conditions to comply with Bill 148. In the likely event that Bill 47 becomes law without significant revisions, employers will be tasked with revising those policies yet again to address new employer obligations and changes to employee entitlements. Of course, some organizations will likely opt to continue offering Bill 148 entitlements such as additional or paid leave days for ill- ness or family issues, or even enshrine equal pay for equal work provisions in their work- place policies. Why? In a tight labour market many organizations are struggling to attract and retain workers, and employee-friendly provisions such as these are relatively cost- effective tools to help recruit top-perform- ing employees, particularly in industries such as tech where competition for talent is fierce. Others might leverage a decision not to roll back Bill 148 provisions as a tactic to position their organization as an employer of choice, or to maintain employee morale in the face of inevitable worker disgruntlement over the repealed amendments. Either way, HR-savvy employers will look to turn chang- es expected to be introduced under Bill 47 to their advantage. And those amendments are dramatic. e rollback in employment standards entitle- ments would have an immediate impact on organizations across industries. Some of the most significant changes include: Minimum wage. Rather than increasing to $15 on Jan. 1, 2019, Ontario's minimum wage would be frozen at the current rate of $14, and would then rise annually in line with the inflation rate beginning in 2020. Employers — particularly those that rely on minimum- wage labour — are breathing a sigh of relief, having feared that another wage increase would further erode competitiveness and hamper their bottom-line performance. Scheduling. ere were few provisions introduced under Bill 148 that were more contentious than those pertaining to em- ployee scheduling rights, which were slated to come into force on Jan. 1, 2019. Virtually all of these measures would be repealed with Bill 47. As such, employees would not be al- lowed to refuse requests to work or to be on- call on a day when they are not scheduled to work, or refuse to work or be on-call with less than 96 hours' notice. Employees would not be entitled to three hours' pay if their shift is cancelled within 48 hours of its scheduled start or for an on-call shift when not called in to work, nor would they be eligible to re- quest schedule or work location changes af- ter being employed for at least three months. Of all the new scheduling provisions that were introduced by Bill 148, Bill 47 would keep only the requirement that employees be paid for a full three hours at their regu- lar rate as well as any premium rates, such as night differential or overtime, if they are sent home after showing up for work or working fewer than three hours of a shift that would typically be at least three hours. Personal Emergency Leave (PEL) days. Another controversial Bill 148 measure was the extension to smaller employers of the requirement to provide employees with up to 10 personal emergency leave days with two of those days paid. If passed, Bill 47 would instead provide employees with up to three days' leave for sickness, two days leave for bereavement and three days for family responsibilities — all of which would be unpaid. In addition, employers would once again be permitted to request a doctor's note to confirm an employee's illness. Physicians and medical associations are already voicing opposition to the latter amendment, but employers have long argued that doctor's notes are a necessary tool to help prevent abuse of sick day entitlements. Public Holiday Pay. Bill 47 would main- tain the pre-Bill 148 formula for calculating public holiday pay — which had been rein- stated by the previous Liberal government after it was changed by Bill 148 following an outcry from employers about the dispropor- tionate impact of the new formula on em- ployers that use casual or part-time labour. Equal pay for equal work. Employers would no longer be required to provide equal pay for equal work on the basis of employ- ment status. is means that part-time, ca- sual and temporary workers, as well as those engaged through a temporary help agency, would once again be eligible for rates of pay that differ from those of full-time colleagues, even if the reason for the difference is their employment status. Employers argued that the equal pay for equal work provisions lim- ited compensation flexibility, particularly when hiring student and seasonal workers. Labour Relations Act, 1995. Many of the Bill 148 amendments designed to facili- tate easier unionization would be repealed with Bill 47. is includes provisions such as card-based certification rules for the home care, building services and temporary help industries, as well as rules that required em- ployers to provide employee lists and contact information to unions during membership drives. In addition, Bill 47 would overturn the requirement that a trade union be au- tomatically certified when an employer's contravention of the Labour Relations Act, 1995, impacts a union organizing drive, with discretion being returned to the Ontario La- bour Relations Board to determine the ap- propriate remedy in the circumstances. Amendments to Bill 47 are still possible, although they'll likely be minor at this point given the Conservatives' strong majority in the legislature. While employers should hold off on making workplace policy revisions until the bill nears final passage and any last- minute amendments are confirmed, organi- zations should take a proactive approach and begin mapping out policy changes to comply with the proposed amendments to the leg- islation. Communicating these changes will also be crucial — many will be unpopular with employees — and will require a strategic approach to ensure that basic legislative com- pliance doesn't result in increased employee turnover or widespread disengagement. ere's little doubt that Bill 47 relieves the burden on employers, but a great deal of work lies ahead to ready organizations to ad- dress yet another broad set of employment standards amendments. « from AN EMPLOYMENT STANDARDS on page 1 Most, but not all, of Bill 148 changes scrapped ABOUT THE AUTHOR Joel Smith Joel Smith is a lawyer with Williams HR Law in Markham, Ont., where he practices management-side labour, employment, and human rights law. He can be reached at (905) 205-0496 ext. 224 or jsmith@williamshrlaw.com..

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