The most significant changes to the Ontario Employment Standards Act, 2000 (the “ESA”) in more than fifteen years were recently implemented by Bill 148, the Fair Workplaces, Better Jobs Act, 2017. Bill 148 was far-reaching legislation which has also amended the Ontario Labour Relations Act, 1995 and the Ontario Occupational Health and Safety Act. Bill 148’s impact on construction employers was unclear at the time the Bill received Royal Assent (November 27, 2017), as both unions and employers anticipated the passage of regulations under the ESA exempting construction employees from the amendments.
On December 18, 2017, O. Reg. 285/01: When Work Deemed to be Performed, Exemptions and Special Rules, was amended to reflect some of the changes introduced by Bill 148. O. Reg. 285/01 now specifically exempts construction employees from the application of the amendments to the ESA concerning public holidays and personal emergency leave in certain circumstances.
Bill 148 introduced a simplified calculation for public holiday pay wherein public holiday pay is now calculated by dividing an employee’s total wages earned in a pay period by the number of days worked in that pay period.
O. Reg. 285/01 now clarifies that Part X of the ESA, which addresses all obligations with respect to public holidays, including the requirement that employers pay public holiday pay, will not apply to construction employees if certain conditions are met. Pursuant to O. Reg. 285/01, construction employees with less than 5 years of service will not be entitled to paid public holidays where those employees are receiving 7.7% or more of their hourly rate or wages for vacation pay or holiday pay. Construction employees with more than 5 years of service will not be entitled to paid public holidays where those employees are receiving 9.7% or more of their hourly rate or wages for vacation pay or holiday pay.
Many construction industry collective agreements currently in force provide for pay in lieu in paid vacation and holidays. Where this amount exceeds the percentage thresholds set out in O. Reg. 285/01, construction employers will not be required to adhere to the provisions of the ESA governing public holidays, and will not need to provide public holiday pay.
Personal Emergency Leave
As a result of Bill 148, employers are now required to provide the first two days of personal emergency leave taken by an employee as paid leave. O. Reg. 285/01 modifies the application of this requirement to construction employees. As of January 1, 2018, a construction employee who receives 0.8% or more of their hourly rate or wages for personal emergency pay is not entitled to paid personal emergency leave under the ESA. Such an employee will continue to be entitled to take a total of 10 days of unpaid leave per calendar year.
Hours of Work Exemptions – Status Quo Maintained
Additional exemptions under O. Reg. 285/01 applicable to construction employees remain the same, meaning that such employees continue to be exempt from the application of sections 17, 18, and 19 of the ESA, which address hours of work. The standards established within the ESA with respect to weekly limits on hours of work, daily rest periods, time off between shifts, and weekly/bi-weekly rest periods consequently continue to be inapplicable to construction employees.
Restrictions on Scheduling
Notwithstanding the fact that construction employees continue to be exempt from ESA standards governing hours of work, Bill 148 has created several significant restrictions and obligations with respect to the scheduling of employees, which will be applicable to construction employers. Bill 148 has introduced five standards addressing scheduling under the new Parts VII.1 and VII.2 of the ESA:
- Employees will have right to refuse an employer’s request that the employee work or be on call where the employee is provided with less than 96 hours’ notice of such a request;
- Employees will have the right to request a schedule or location change without reprisal after being employed for 3 months;
- Employees who regularly work more than 3 hours per day but who are given a shift under three hours will need to be for paid 3 hours of work;
- On-call employees who are not called in will be entitled to 3 hours’ pay; and
- Employees will be entitled to 3 hours’ pay where a shift is cancelled with less than 48 hours’ notice for reasons that are within the employer’s control.
These changes come into effect on January 1, 2019, unless there is a collective agreement in force on that date which directly addresses the same issue or issues (i.e., which provides for call-in pay). In such instances, the terms of the collective agreement addressing the specific scheduling practice shall govern until the collective agreement expires (or until January 1, 2020, whichever is earlier). Employers should therefore carefully review any applicable collective agreements before January 1, 2019, in order to determine whether they will be exempted from the application of the new scheduling provisions, and when compliance with these new provisions will be required.
This article has provided an overview of the construction-specific standards and exemptions introduced by Bill 148 and the newly amended Regulations to the ESA. Bill 148 also made a number of other changes to the ESA which will impact all employers, including those operating in the construction industry, which include, but are not limited to, minimum wage increases, and the requirement for employers to pay employees the same rate for the same work performed, regardless of employment status (effective April 1, 2018, or, where a collective agreement is in force addressing differences in pay based on employment status, the earlier of the date the collective agreement expires or January 1, 2020). Employers across Ontario are contending with a changed employment standards landscape, and should familiarize themselves with the newly amended ESA in order to ensure continued compliance.