November 14, 2017

On June 1, the Ontario government introduced Bill 148, the Fair Workplaces, Better Jobs Act, which proposes a number of significant changes to the province’s labour and employment laws that are intended “to create more opportunity and security for workers”. The legislation follows the release of the final report of the Changing Workplaces Review (CWR) prepared by government-appointed advisors Michael Mitchell and John Murray. Bill 148 includes many of the recommendations made in the CWR final report, while excluding others. Controversially, Bill 148 also proposes to raise the minimum wage in Ontario to $15 an hour in 2019, a move that has been applauded by unions and decried by businesses. In this special audio session, a panel of experts will debate the implications of Bill 148, and consider whether the proposed measures as amended will make a difference in protecting vulnerable workers in precarious employment and advancing collective bargaining. Among the issues to be discussed:

Increasing the Minimum Wage

  • Will increasing the minimum wage to $14 an hour on January 1, 2018 and to $15 an hour a year later benefit workers and contribute to economic growth, or will it result in job loss and economic hardship?

Revising the Employment Standards Act, 2000

  • Scope and coverage: Is the present definition of “employee” under the ESA, which has been maintained under Bill 148, sufficiently inclusive? Should the government have followed the CWR recommendation to include a category for “dependent contractors”? Has the government established a process to further review existing exclusions or exemptions, as recommended by the CWR? Should the government follow the CWR’s recommendation for a sector-specific approach to existing exemptions? Is the omission of measures under Bill 148 to hold contractors liable for ESA obligations of subcontractors or to hold franchisors liable for violations by franchisees defensible? Will any of the changes proposed under Bill 148 protect employees from “fissuring” or splintering of employment (through franchising, supply chains, etc.)? What changes are proposed under Bill 148 to correct the misclassification of the employment status of workers? Are they sufficient to address the problem?
  • Scheduling: What are the key reforms to scheduling under Bill 148? Are they adequate to address the current uncertainty in scheduling practices, which the CWR recognized as “a key contributing factor in making work precarious”? If not, what changes are necessary?
  • Equal pay: Is it fair to treat part-time, casual, temporary, contract and seasonal employees differently from comparable full-time employees? Is the measure recommended in the CWR and adopted under Bill 148 – i.e. mandating an equal rate of pay for comparable employees, but not extending this requirement to benefit and pension plan coverage – a tenable solution, given the expert advice to the CWR that “mandatory coverage of part-time employees in benefit plans could well drive many employers out of providing benefits altogether”? Should the government have followed the CWR recommendation that the requirement to provide equal pay be subject to a six month qualifying period in the case of temporary help agency employees? Why or why not?
  • Enforcement: What measures were recommended in the CWR to increase compliance with the ESA? What changes has the government committed to make? Are they sufficient to address non-compliance?

Amending the Labour Relations Act, 1995

  • Unionizing and certification: How does Bill 148 propose to modify first contract arbitration, remedial certification, voting procedures and the disclosure of employee information? Are these measures sufficiently responsive to the adverse impact that employer misconduct has on the rights of employees to free and independent choice? Should card-based certification be reintroduced in Ontario, or is the CWR correct in concluding that the “clock is not easily set back”?
  • Employer/successor rights: Should the LRA mandate broader-based bargaining for franchisees of the same franchisor, as recommended by the CWR? Should employees of temporary help agencies be deemed to be employees of the enterprise/client to which they are assigned for the purposes of the LRA?
  • Powers of the Ontario Labour Relations Board: How does Bill 148 propose to expand the Board’s powers with respect to interim orders and the modification of bargaining units? Should other changes be considered, and why?