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Beneplan Annual HR and Employment Law Workshop - Sherrard Kuzz Presentation

Beneplan Annual HR and Employment Law Workshop - Sherrard Kuzz Presentation

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Beneplan Annual HR and Employment Law Workshop - Sherrard Kuzz Presentation

  1. 1. Overview of Bill 148 Fair Workplaces, Better Jobs Act, 2017 Keith Burkhardt Andrew Ebejer Beneplan HR & Employment Law Workshop November 2, 2017 250 Yonge Street Suite 3300 Toronto, Ontario M5B 2L7 Tel 416.603.0700 Fax 416.603.6035 24 Hour 416.420.0738 www.sherrardkuzz.com
  2. 2. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Agenda Context Minimum Wage Increases Changes to Employment Standards Act, 2000 Changes to Labour Relations Act, 1995 Expected next steps Questions 2
  3. 3. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com How Did We Get Here? A view among some that there is a culture of non-compliance A call for greater assets and heightened efforts at enforcement “Vulnerable Workers” and “Precarious Employment” become terms of art 3
  4. 4. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Changing Workplaces Review Special Advisors Michael Mitchell Honorable John C. Murray Motivating purpose Determine how the Employment Standards Act, 2000 and the Labour Relations Act, 1995 can be reformed to better protect workers while supporting business in our changing economy 4
  5. 5. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Legislative Status 1st Reading – June 2017 Referred to Standing Committee: Public Meetings across Ontario – July 2017 Clause by clause review – August 2017 2nd Reading – September and October 2017 Referral back to Standing Committee – November 2017 Predicted enactment - January 2018 5
  6. 6. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Increases to Minimum Wage Current January 2018 January 2019 General $11.60 $14.00 $15.00 Students $10.90 $13.15 $14.10 Liquor Servers $10.10 $12.20 $13.05 Hunting/ Fishing Guides $58 per day $70 per day $75 per day Homeworkers $12.80 $15.40 $16.50  Not included in CWR terms of reference  Able to be created in Regulation  +20.7% in 2018  +7.1% in 2019 6
  7. 7. Changes to Employment Standards Act, 2000 7
  8. 8. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Equal Pay for Equal Work (April 1, 2018) A part-time, seasonal or casual employee is entitled to be paid the same wage as a ‘comparable’ full-time employee Can be paid differently if based on: Seniority system (including hours-based seniority system) Merit system Quantity/Quality of production Other objective factor 8
  9. 9. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Temporary Help Agency Employees (April 1, 2018) Paid equally to permanent employees of the temporary help agency client Can be paid differently if based on any factor other than sex, employment status or temporary help agency employee status Temporary help agency to provide one weeks’ notice when assignment scheduled to last longer than 3 month is terminated 9
  10. 10. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Vacation and Public Holidays (January 1, 2018) Paid Vacation 3 weeks’ vacation time and 6% vacation pay after 5 years of service with the same employer Public Holiday Pay “Simplifies” the formula for calculating public holiday pay Average regular daily wage 10
  11. 11. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Scheduling (January 1, 2019) An employee is entitled to be paid for at least 3 hours (at his/her regular rate of pay) where: Scheduled to work more than 3 hours but attends works and works less An entire scheduled day of work is cancelled within 48 hours of its start On call and not called to work, or called to work for fewer than 3 hours 11
  12. 12. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Scheduling (January 1, 2019) An employee also has the right: To refuse a shift if request made with fewer than 96 hours’ (4 days’) notice To request a change to work location or work schedule (after 3 months of employment) Exemptions apply to these scheduling provisions to account for extraordinary circumstances and weather-dependent operations 12
  13. 13. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Employee Misclassification (Royal Assent) Prohibit misclassification of independent contractors Subject to penalties, prosecution, conviction and monetary penalties Employer onus in the event of a dispute No change to include “dependent contractor” 13
  14. 14. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Personal Emergency Leave (January 1, 2018) 50 or more employee threshold eliminated 10 personal emergency leave days per year First two (2) personal emergency leave days are paid  Employee must be employed for at least one week Employer can request evidence to support need for PEL but cannot request doctor’s note 14
  15. 15. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Domestic Violence and Sexual Assault Leave (January 1, 2018) 10 days a year and 15 weeks a year To be taken as required to due to domestic violence or sexual assault of an employee or employee’s child 15
  16. 16. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Death of Child and Family Medical Leave (January 1, 2018) Leave for Death of a Child From any cause for a period up to 104 weeks Also crime related child disappearance Family Medical Leave 27 weeks in 52 weeks 16
  17. 17. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Pregnancy Leave (January 1, 2018) Employee can take up to 12 weeks of leave in case of still-birth or miscarriage Increase from 6 weeks 17
  18. 18. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Parental Leave (Royal Assent) Extends parental leave entitlements to: 61 weeks (from 35 weeks) if pregnancy leave taken 63 weeks (from 37 weeks) if no pregnancy leave taken Impact is an employee who takes both a pregnancy leave and parental leave is entitled to take up to 18 months off 18
  19. 19. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Record Keeping and Compliance (January 1, 2018) Record Keeping Increased record keeping obligations to correspond with scheduling and other new entitlements Penalties for non-compliance Increase flexibility around the administrative monetary penalties Publish penalties, description of contravention, date and penalty 19
  20. 20. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Joint Liability (January 1, 2018) Bill 148 eliminates “intent or effect” Two persons may be considered one employer if they carry on “related activities or businesses” This may have a potentially significant impact on employers Will depend on how the term “related” is interpreted 20
  21. 21. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Changes to Labour Relations Act, 1995 21
  22. 22. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Underlying Principle to Amendments to Labour Relations Act, 1995 Constitutional protection for “Freedom of Association” Facilitating access to collective bargaining  Easier certification process and greater security for existing units  Removing obstacles to remedial certification Facilitating collective bargaining  Obtaining first contract and protecting employment 22
  23. 23. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Facilitating Union Certification Access to list of employees and contact information provided union cards from at least 20% of employees in proposed bargaining unit Name Telephone number Personal email address Requires remedial certification for any unfair labour practice violation 23
  24. 24. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Card-Based Certification - Industries Temporary Help Agency Industry Building Services Industry Cleaning, security, maintenance, food services, parking, etc. Home Care and Community Services Industry 24
  25. 25. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Card-Based Certification - Process Union cards from more than 55% of employees in bargaining unit - Certified Union cards from between 40% and 55% of employees in bargaining unit - Representation vote Union cards from under 40% of employees in bargaining unit members - Dismissed 25
  26. 26. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Consolidation of Bargaining Units Labour Board given broad powers to rationalize bargaining structures Following certification, a union (or employer) may apply to have a newly-certified union consolidated with an existing bargaining unit of the employer represented by the same union 26
  27. 27. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com First Agreement After Certification A union or employer may apply for first contract mediation at any point after a “no board” is issued 45 days after a mediator’s appointment, either party may apply for mediation-arbitration 27
  28. 28. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Successor Rights Extend to the retendering of building services contracts Cleaning, security, maintenance, food services, parking, etc. May be extended by regulation to service providers that receive public funds Municipalities, school boards, hospitals, long term care facilities, universities, etc. 28
  29. 29. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Protection of Employment Just Cause Protection Between certification and first contract During period when strike/lock-out legal Also protects probationary employees Return to work following strike or lockout Six month limit removed Mandatory reinstatement of employees at end of strike/lock-out 29
  30. 30. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com What Next? Referral back to Standing Committee – November 2017 3rd reading – December 2017 Predicted enactment - January 2018 Subject to dates mentioned previously 30
  31. 31. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com “Always be Prepared” Budget cost of minimum wage increase Consider “trickle up” rate changes Review Scheduling practices and strategize changes to current processes Statutory holiday pay practices and scheduling Leave of absence language in policies Relationships with temporary help agencies 31
  32. 32. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com “Always be Prepared” Educate managers regarding union certification process and permissible actions to remain “union free” Card-based certification Risk of unfair labour practice Consider union obligations in contracting situations Consider unionized facilities and efforts to consolidate bargaining units 32
  33. 33. Sherrard Kuzz LLP, Employment & Labour Lawyers Fair Workplaces, Better Jobs Act, 2017 – November 2, 2017 Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com Questions? 33
  34. 34. 34 250 Yonge Street, Suite 3300 Toronto, Ontario, Canada M5B 2L7 416.603.0700 Phone 416.420.0738 24 Hour 416.603.6035 Fax www.sherrardkuzz.com
  35. 35. 35  The information contained in this presentation/article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This presentation/article is current as of November 2, 2017 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the presentation/article is prepared, but may become outdated as laws or policies change. For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP (or other counsel).

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Beneplan Annual HR and Employment Law Workshop - Sherrard Kuzz Presentation

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