Find out what you need to know now from Employment and Labour Relations Lawyer, Antonio F. Urdaneta.

1. Equal Pay for Equal Work, Mandatory Remedial
Certification and other Perks from Bill 148
Antonio F. Urdaneta

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ANTONIO F. URDANETA
ASSOCIATE LAWYER | SCHIBLE LAW
A legal innovation enthusiast focused
on workplace and human resources
laws, and dismissal negotiation and
litigation.

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This presentation is for general guidance only.
The assessment, application and consequences of employment laws can vary widely based on the
specific facts involved. Neither the presenter nor the organizer are engaged in delivering legal,
accounting, tax, or other professional advice and services beyond legal information. As such, legal
information should not be a substitute for consultation with professional accounting, tax, legal or other
competent advisers. Before making any decision or taking any action, you should consult an
employment lawyer.
Disclaimer

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ARE YOU PREPARED?
Equal Pay For Equal Work Changes to LRA
Difference in employment status Employee list
Allowed differentiators Mandatory remedial certification
Source of review Bee Believes … First agreement mediation
Agatha visits … Card-based certification
One strategy you cannot use is … Successor rights
Unions & agencies Consolidating & restructuring bargaining units

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Challenge: EPEW

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What is Equal Pay for Equal Work?
EPEW
Employers are expected to pay employees who perform substantially the same work, etc., at the same rate of pay without
regards to sex, employment status or assignment employment status.
How old is the Employment Standards Act, 2000 (“ESA”)’s EPEW?
• Sex
• Difference in employment status
• Difference in assignment employee status
Is it the same as pay equity in the Pay Equity Act?
• Employees performing substantially the same work, etc.
• Job classes

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Workshop Facts
• The Mental Health Registered Charity (“Health”) has 101 employees.
• Ace Jane (“Ace”) is Health’s only full-time employee. She works in one of Health’s location in Toronto, near Bay and
Dundas.
• Marie Bee (“Bee”) is one of Health’s 100 part-time (and assignment) employees. Bee’s pay rate is $4 per hour lower than
Ace’s.
• Ace and Bee perform substantially the same work, etc.
• Bee has a remote work arrangement. She works from her home-office in Hamilton. She needs to attend in-person bi-
weekly meetings with her supervisor in Toronto, near St. Clair and Yonge, which is Health’s second location in Toronto.
• Bee works for Health 10 hours per week.

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Q: Would Bee be legally entitled to Ace’s
rate of pay?

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Employment Standards Act, 2000
• No employer shall pay an employee at a rate of pay less than the rate paid to another employee of the employer because of a difference in employment status when,
(a) they perform substantially the same kind of work in the same establishment;
(b) their performance requires substantially the same skill, effort and responsibility; and
(c) their work is performed under similar working conditions.
• Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,
(a) a seniority system;
(b) a merit system;
(c) a system that measures earnings by quantity or quality of production; or
(d) any other factor other than sex or employment status.
• No employer shall reduce the rate of pay of an employee in order to comply with subsection (1).
• No trade union or other organization shall cause or attempt to cause an employer to contravene subsection (1).
• If an employment standards officer finds that an employer has contravened subsection (1), the officer may determine the amount owing to an employee as a result of the contravention and that
amount shall be deemed to be unpaid wages for that employee.
• An employee who believes that their rate of pay does not comply with subsection (1) may request a review of their rate of pay from the employee’s employer, and the employer shall,
(a) adjust the employee’s pay accordingly; or
(b) if the employer disagrees with the employee’s belief, provide a written response to the employee setting out the reasons for the disagreement.
• If a collective agreement that is in effect on April 1, 2018 contains a provision that permits differences in pay based on employment status and there is a conflict between the provision of the
collective agreement and subsection (1), the provision of the collective agreement prevails.
• Subsection (7) ceases to apply on the earlier of the date the collective agreement expires and January 1, 2020.

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EPEW
Sex Employment Status
Allowed differentiatorsRule
X
Assignment employment status

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Difference in Employment Status
Health shall not pay Bee at a rate of pay less than the rate paid to Ace because Ace is full-time and Bee is part-time
(“difference in employment status”), if:
1. Bee and Ace perform substantially the same kind of work in the same establishment;
2. Bee and Ace’s performance requires substantially the same skill, effort and responsibility; AND
3. Bee and Ace perform their work under similar working conditions.

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Allowed Differentiators
Health could pay Bee at a lower rate of pay than Ace’s rate, if Health has:
1. a seniority system in place;
2. a merit system in place;
3. a system that measures earnings by quantity or quality of production; OR
4. any other factor other than employment status

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Health Cannot …
• reduce Ace’s rate of pay (ESA & common law);
• breach other statutory and regulatory duties; i.e. The Code

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Q: What’s the source of EPEW scrutiny?
1. Prudent employer;
2. Employees;
3. Employment Standards
Officer

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Bee “believes”
Bee believes that her rate of pay is lower than Ace’s, and she requests Health to review her pay rate. Health could (choose
all the legal options that apply):
1. Information about employees pay rate is private information, and I cannot disclose it;
2. Adjust the employee’s pay accordingly; and/or
3. If the employer disagrees with the employee’s belief, provide a written response to the employee setting out the
reasons for the disagreement.

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Agatha visits …
Agatha, the Employment Standards Officer, inspected your workplace, and found (according to Agatha) that Bee is entitled
to Ace’s pay rate.
What do you think Agatha would say/do?
1. As soon as you get the budget, pay Bee’s unpaid wages;
2. You have to pay Bee $4/hour more;
3. Pay the unpaid wages (hours of work on and after April 1st, 2018);
4. Here is a ticket (notice of an offence);
5. Here is a notice of contravention;
6. You are going to jail; and/or
7. All the above?

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Orders & Numbers
• Order to pay
• Compliance order
• Offence notice (“Ticket”) + victim fine surcharge + court costs
• Issue a notice of contravention
Inspection: April 1, 2019;
Hours inspected: 520 hours;
Order to pay: $2,080 unpaid;
Order to comply;
Notice of Contravention: $350 (1st time)

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Health v Cee Ly (“Cee”) [2017 CanLII 57706 (ON LRB)]
Health reprimanded Cee, who was taking breaks against Health’s policies. Cee took another
terminated Cee, who called employment standards. Agatha conducted an inspection.
Agatha issued:
1. Compensation order ($995.00 direct earnings loss and emotional pain and suffering);
2. Order to Pay: $9.38 ($9.02 minimum wages and $0.36 statutory vacation pay);
3. Notice of Contravention: $250.00
Health appealed to the OLRB. The OLRB decided:
1. There was no reprisal;
2. Pay wages: $9.38;
3. Notice of Contravention was confirmed: $250.00

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But Agatha also inspected …
Bee’s pay rates, Dee, Fred and the other 96 part-time (and assignment) employees and:
• Order to pay: [total: $2,080 x 100 employees = $208,000 unpaid wages/1 year/520 hours];
• Compliance order: equal pay for equal work [increases operations budget];
• NoC: [Total: $350 x 100 = $35,000 (1st time)]; [$70,000 (2nd time) | $150,000 (3rd time)]
• Poor public relations and bad reputation;
• Your choices are reduced (i.e. premium rate legal fees and disbursements to negotiate)

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Agatha and her colleague issued the following against Health:
(a) NoC #00001: April 8, 20XX, by Agatha for $1,500.00 divided:
(i) $250.00 failing to maintain accurate payroll records for Bee;
(ii) $1,000.00 for failing to pay wages (vacation pay) for employee Dee;
iii) $250.00 for failing to pay termination pay to Dee.
(b) NoC #00002: May 2, 20XX, by Agatha’s colleague for $1,750.00
(i) $500.00 for a second violation of failing to pay wages;
(ii) $500.00 for a second violation of failing to pay vacation pay;
(iii) $500.00 for a second violation of failing to pay termination pay;
(iv) $250.00 for failing to produce records or attend a fact finding
These contraventions related to a claim by employee Fred (“Fred”)

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“Taxi Company Owner Sentenced to Jail for Failing to Comply With Orders to Pay
Wages”
Offence: failure to pay wages after being ordered to do so by [Agatha]. There were 63
than 30 claimants for a total of $74,854.24.
Date of sentence: October 24, 2017
Penalty: 15-day jail sentence (Hugh I. pleaded guilty)
$1,000 fine per count against the company.
25-per-cent victim fine
On April 2014 [Agatha] responded to [Bee, Cee, Dee and Fred] complaints of non-
a total of 63 orders to pay and served the company and on the sole director of the
The orders were not complied with and an application to review the orders was not
The company is no longer in business and the director has filed for bankruptcy.

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Unions & Agencies
• No union or other organization shall cause/attempt to cause an employer to contravene EPEW;
• If a collective agreement that is in effect on April 1, 2018 contains a provision that permits differences in pay based
on employment status and there is a conflict between the provision of the collective agreement and EPEW, the
provision of the collective agreement prevails;
• Prevails until the earlier of the date the collective agreement expires and January 1, 2020

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Q: Would Bee be legally entitled to Ace’s pay
rate?
Health: not entitled, because Ace works in a different establishment.
Bee: entitled, because I work in the same establishment; she claims
she works in the same city, twice per month. Alternatively, there are
“bumping rights” between Toronto and Hamilton.
Answer …

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• What about “similar working conditions”? And/or
• Could Health include remote work in “any other factor other than employment status”?
(Bee works from her home-office in Hamilton, ON. Ace works from an office setting. Bee can claim home-office
tax deductions. Bee doesn’t spend resources (time and fares) commuting)
Health’s additional arguments …

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(i) Prevent precarious work (encourage decent work);
(ii) pay employees what they are entitled to;
(iii) prevent noncompliance related penalties;
(iv) keep high employee morale; and
(v) maintain or increase your good reputation
What is Your EPEW Challenge?

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Changes to the
Labour Relations
Act

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1. Application for employee list;
2. Mandatory remedial certification;
3. Card-based certification;
Pre-Certification:

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4. First collective agreement mediation;
5. Successor rights;
6. Consolidating & restructuring bargaining units
Existing Bargaining Units

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THANK YOU!
Antonio F. Urdaneta
antonio@schiblelaw.com
www.schiblelaw.com | (416) 642-3582
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