Bill 47 (Making Ontario Open for Business Act, 2018) and what is reversed from Bill 148

Bill 47 received Royal Assent as of November 21, 2018. Several amendments have been issued to the Employment Standards Act, 2000, the Labour Relations Act, 1995, and the Ontario College of Trades and Apprenticeship Act, 2009 and make complementary amendments to other Acts. See what reversals have been changed to Bill 148 and what other amendments have been issued.

The following Bill 47 is to take in effect January 1, 2019, unless otherwise specifically stated:

Minimum Wage

Bill 148 introduced wage increases for January 1, 2018, at $14.00 and January 1, 2019, at $15.00. The minimum wage increase to $15.00 as of January 1, 2019, has been eliminated. The minimum wage is subject to annual inflation adjustment every October 1 starting in 2020 and you should receive the new rate in April of that year.

Public Holiday Pay

Bill 148 introduced a ‘fairer’ method to calculate holiday pay for all levels of employees which was:

In the interim of Bill 47 being passed and after Bill 47 being passed, and while the Ministry of Labour figures out a fair way to calculate public holiday pay; the old way of calculating public holiday pay was enacted as of July 1, 2018. The old formula is:

Employee Status

Bill 148, employers had the onus to prove the complainant is not an employee and Bill 47 reversed back that the onus is on the complainant to prove they are in fact an employee.

Scheduling

Bill 148 allowed the following to become effective as of January 1, 2019: 3 hour rule for shortened and cancelled shifts; on-call rule; right to request scheduling or work location changes; right to refuse work or on-call requests made with less than 96 hours of notice.

Bill 47 only kept the 3 hour rule for shortened shifts, the remaining was repealed.

Equal Pay for Equal Work

In Bill 148, the pay differences based on the employment status are prohibited or for temporary help agency workers. This was repealed with Bill 47.

Personal Emergency Leave (PEL)

Bill 148 gave employees 10 PEL days with the first 2 days paid, provided you were employed for 7 consecutive days. Employers cannot require a certificate from a doctor or other qualified health practitioner unless required for STD/LTD health plans.

Bill 47 repealed and replaced it with 8 unpaid leave days which include: 3 sick leave days, 3 family responsibility leave days, and 2 bereavement leave days. They can request employees to provide doctor’s/qualified health practitioner’s notes/certificate as proof for the leaves.

Fines for ESA Act

Bill 148 increased the fines for contravention of the ESA and Bill 47 decreased the maximum fine amounts to pre-Bill 148 amounts $250, $500 and $1000.

The following Bill 47 is to take in effect November 21, 2018, unless otherwise specifically stated:

Employee Lists

Bill 148 allowed unions to apply to the Board for an order requiring the employer to produce a list of the employees with certain information. Bill 47, Schedule 2 repeals section 6.1.

Remedial Certification

Bill 148 allowed the Board to be able to conduct a representation vote and order the employer to take the necessary actions to ensure the vote reflects the true wishes of employees.

Bill 47 reinstated pre-bill 148 rules where the Board would again have discretion to order a vote or certify the union.

Reviewing the Structure of Bargaining Units

Under Bill 148, the Board can review the structure of the bargaining unit providing certain conditions have been met; the application was made at time of certification application or within 3 months of certification, there is no collective agreement established, and the same union represents all the units involved. Bill 47, Schedule 2 repeals Section 15.1.

Card-Based Certification

Under Bill 148, Card-Based Certification now encompassed building services, home care and community services, and the temporary help agency industry allowing the Board to certify the union, providing the Board has been satisfied with more than 55% of employees in bargaining unit being union members.

Bill 47 repealed Schedule 2, Section 15.2 but also added a transition clause for elections that were made before the day the Making Ontario Open for Business Act, 2018 received first reading. For elections made on or after the first reading of the Making Ontario Open for Business Act, 2018, the application shall be determined in accordance with section 8 of the Labour Relation Act, 1995.

First Agreements

Bill 148 provided the following first arbitration provisions for mediation and mediation-arbitration; with issuances of no board report: either party will be able to apply to the Minister of Labour to appoint a “first collective agreement mediator.” They will have the same power of the conciliation board. The LRA will still require the parties to meet with a conciliation officer prior to the issuance of the no board report, that the true purpose of first collective agreement mediation is to extend the bargaining process and delay the risk of economic conflict.

Bill 47 repeals Schedule 2, section 43 and adds sections 43.1. Section 43.1 details if the parties are unable to result in a first collective agreement and the Minister has released a notice where it is not advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

Effect upon Strike or Lock-out Resolution

At the resolution of strike or lock-out, employers must reinstate striking employees to their former employment on terms where both the employer and union agree; not only within the first six months of the strike as it was prior to Bill 148. The existing exceptions to this right of reinstatement remain intact. Employees returning can be placed on layoff in accordance with the seniority provisions of the applicable collective agreement if there is insufficient work.

At the end of a strike or lockout returning employees will have the right to replace the substitute employees who performed bargaining unit work during the strike or lockout if the returning employee had longer service than the substitute employee when the strike or lockout began. The benefit is that employers will not be able to keep substitute workers in place of the workers who went on strike in most cases.

Bill 47 returns an employee’s right to reinstatement following a legal strike or lock-out to six months; pre-Bill 148.

LRA Fines

Bill 148 increased the maximum fines for individuals to $5,000 and made a significant increase to corporations up to $100,000.

Bill 47 reverted the maximum fines back to the pre-Bill 148 amounts of $2,000 and $25,000 respectively.

To learn more about the changes of Bill 47 please visit the Ontario Legislative Assembly for details.

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