Changing Workplaces Review Final Report: Update 1

Introduction:

The Ontario Ministry of Labour has issued its Final Report in the Changing Workplaces Review it initiated in February of 2015 (the “Report”).  By commencing the Changing Workplaces Review, the Ministry of Labour gave a broad mandate to review the current statutory framework impacting workplaces and recommend changes to that framework to better address the issues faced in modern Ontario workplaces. 

Following a period of consultations with stakeholders from the employer and employee communities, the Changing Workplaces Review has issued a Final Report recommending significant changes to the legal framework of labour and employment law in Ontario.  While the recommendations contained in the Report are only proposals and do not hold the force of law, it is reasonable to presume that the current legislature will make a concerted effort to implement at least some of these recommendations.

This update provides a high-level summary of the recommendations contained in the Report and outlines the impact that these changes may have on employers and employees alike.

Summary of Recommendations:

The recommendations in the Report fall into seven (7) broad categories:

1. Enforcement and Administration;
2. Sectoral Regulations and Exemptions;
3. Changes to Basic Standards;
4. Exclusions from Basic Standards;
5. Scope and Coverage of the Labour Relations Act;
6. Access to Meaningful Collective Bargaining; and,
7. Other Changes to the Labour Relations Act

In this article, we focus on recommendations relating to enforcement and administration, changes to basic standards and access to meaningful collective bargaining.  For a summary of all the recommendations in the Report, readers should review the Summary Report prepared by the Changing Workplaces Review.

Enforcement and Administration

Perhaps the most sweeping change recommended in the Report is the proposal to consolidate the various statutes that regulate workplaces in Ontario to a single unifying statute.  The current statutory framework in Ontario is comprised of a number of statutes, each addressing a particular aspect of the employment landscape.  The proposal, if implemented, would see the Employment Standards Act, 2000 (which sets basic minimum standards for employees), the Labour Relations Act, 1995 (which regulates access to collective bargaining) and the Occupational Health and Safety Act consolidated into a single statute similar to the federal Canada Labour Code.

Other recommendations regarding the current enforcement and administration mechanisms include:

• Providing more resources to investigators and strategically increasing the use of targeted inspections, particularly in sectors where there are significant amounts of vulnerable workers;
• Greater protections for employees alleging reprisal;
• Increased accessibility for employees seeking to enforce statutory rights with priority given to cases involving termination of employment; and,
• Increased penalties for employers who are found to have acted in contravention of the law.

Changes to Basic Standards

The Report recommends a number of changes to the basic employment standards that are currently established by the Employment Standards Act, 2000.  Specific changes to basic standards proposed in the Report include:

• Equal pay between part-time or casual employees and full-time employees in comparable positions;
• Regulation of scheduling of employees by employers with a view to recognizing the need for predictable schedules for employees;
• Increasing vacation entitlement from two (2) weeks to three (3) weeks after five (5) years of employment;
• Changes to the overtime averaging rules requiring employers to justify a specific need to average overtime;
• Eliminating the necessity to obtain Ministry approval for employees to work more than forty-eight (48) hours but less than sixty (60) hours a week; and,
• Changes to personal emergency leave, family medical leave, crime-related child death or disappearance leave and the introduction of a separate bereavement leave.

Access to Meaningful Collective Bargaining

The Report recommends a number of changes to the process of obtaining and administering collective bargaining rights.  On the whole, the recommendations aim to provide employees with greater access to collective bargaining and make it easier for them to exercise their right to unionize.  Specific recommendations include:

• Preservation of the current “secret ballot” system for union certification for non-construction employees;
• Increased reliance on remedial certification and first contract arbitration where employers are found to have interfered with employees’ ability to unionize;
• Providing the Ontario Labour Relations Board with the ability to consolidate or amend bargaining units, particularly in industries where single location bargaining units are not effective; and,
• Requiring franchisees of the same franchisor to bargain together.

Potential Implications:

For Employers

The recommendations contained in the Report, if implemented, will have a significant impact on employers.  Changes to the statutory framework and basic standards may require employers to review and amend their current policies to comply with the new statutory provisions.  Furthermore, changes relating to access to bargaining rights may give employers cause to review and reconsider current operational structures that were designed in the context of the current legal framework.  Finally, an increased focus on enforcement will mean that employers must be even more diligent in ensuring that they are in compliance with all applicable legislative requirements.

For Employees

The Report’s recommendations would provide greater protections for employees and increased accessibility to enforcement procedures.  Employees should educate themselves on their statutory rights and become familiar with the enforcement procedures available to them if they believe their rights have been violated.

Conclusion:

While the Report contains only recommendations, none of which have yet to be implemented, it does provide employers and employees with some insight into significant changes to the labour and employment landscape that may be on the horizon.  We will continue to monitor the implementation of these recommendations and provide updates of developments as they arise.  In the interim, you can contact Mark Fryer, Matthew Vella, Joseph Cohen-Lyons, Sara Yousefi or your primary Loopstra Nixon lawyer if you have any questions regarding the Report.