Say Goodbye to Bill 148: The New Ontario Government Reverses Labour Reforms

Torkin Manes LegalPoint

On October 23, 2018 the Ontario Government introduced Bill 47, Making Ontario Open for Business Act, 2018 (the “Open for Business Act”), with the intent of cancelling almost all of the labour reforms introduced by the previous Government under Bill 148, Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”).

The Government’s rationale for cancelling Bill 148 can be found in its press release:

The Making Ontario Open for Business Act will, if passed by Ontario's Legislature, enable more Ontario employers to boost job creation and investment by cutting unnecessary regulations that are inefficient, inflexible and out of date, while maintaining standards to keep Ontarians safe and healthy.

As we previously reported, the Government had signalled that they would repeal Bill 148.  The introduction of the Open for Business Act, which is very likely to be passed quickly, follows through on that.  Some of the more notable changes are as follows:

  • Minimum Wage - Cancelling the $15/hour minimum wage set for January 1, 2019. Instead, the minimum wage will remain at $14/hour until 2020 and then be adjusted by inflation.

  • Equal Pay – Repealing the requirement that part-time, temporary and casual employees are paid the same rate as full-time employees in substantially similar positions.

  • Personal Emergency Leave ("PEL") – Cancelling the 2 paid PEL days and changing the existing 10 PEL days to 3 sick days, 2 bereavement leave days and 3 family responsibility leave days (for a total of 8 unpaid days).

  • Medical Notes – Reinstating the right of employers to ask for medical evidence reasonable in the circumstances to justify a leave.

  • Public Holiday Pay – Removing the Bill 148 formula that sought to guarantee a day’s pay and returning to the old averaging formula for determining public holiday pay.

  • Scheduling – Repealing the scheduling changes set to come into force January 1, 2019, which included
    • Permitting employees to refuse work (or to be on call) where they were not scheduled with less than 96 hours’ notice
    • Mandating that employers pay a minimum of 3 hours’ pay for employees to be on call if the employee is available to work but is not called in to work
    • Mandating 3 hours’ pay in the event of a shift or on call shift cancellation within 48 hours before the shift was to begin

  • Certification - Eliminating card based certification for workers in home care, building services and temporary help agencies. Such workers will return to the secret ballot vote based system in place for non-construction workplaces. The Ontario Labour Relations Board’s remedial authority has been changed to the pre-Bill 148 rules which made it more difficult for unions to be certified as a remedy for employers committing an unfair labour practice.

  • Employee Lists - Repealing the ability for unions to acquire an employee list upon demonstrating 20% membership support. Any lists acquired under Bill 148 will have to be destroyed.

  • Bargaining Unit Structure – Allowing a union or employer to apply to the OLRB for an order that existing bargaining units are no longer appropriate for collective bargaining (rather than, as under Bill 148, limiting such an application to newly certified bargaining units).

Employers are required to continue to comply with the Bill 148 amendments until the Open for Business Act comes into force, which we expect to happen quickly.

Our Labour Relations & Employment Group will continue to monitor the development of the Open for Business Act.