Bill 148, known as the Fair Workplaces, Better Jobs Act, 2017, in Ontario, encompassed a range of reforms aimed at improving labour conditions and addressing the evolving needs of the workforce. Bill 148 significantly increased the minimum wage in Ontario, with a planned rise to $14 per hour, and a subsequent increase to $15 per hour. The Act made it more challenging for employers to misclassify employees as independent contractors, thereby ensuring better protection for workers in terms of severance and notice obligations. Besides, the Act also mandated equal pay for seasonal, temporary, casual, and full-time workers performing similar types of work, subject to certain conditions such as seniority and merit. Moreover, The Act introduced regulations for on-call employees and shift workers, including compensation for shortened shifts or cancelled on-call periods and the right to refuse shifts or on-call periods with insufficient notice. Coupled with this, the expansion of existing leaves and the introduction of new ones, such as for domestic or sexual violence, reflects an understanding of workers’ needs beyond the workplace.
Schedule 1 Part 11 of the Secure Jobs, Better Pay Act 2022 outlines an expansion of the current NES with three main changes to address flexible working arrangements. The Fair Work Act 2009 (Cth) currently allows employees to request flexible working arrangements due to a change in hours or location of work due to parenting/caring responsibilities, being over 55 years of age, a disability, experiencing family and domestic violence, or supporting such victims. Starting from June 6, 2023, amendments have expanded the categories in which employees can request flexible working arrangements when they or someone in their immediate family or household experiences family or domestic violence to align with the entitlement to family and domestic violence leave. The pregnant employees can also directly request flexible working arrangements. Furthermore, s65A of the Fair Work Act 2009 (Cth) strengthens employers’ accountability by introducing a more detailed procedure for responding to requests for flexible working arrangements. To summarize, the changes require employers to discuss the flexible working arrangements’ requests with their employees and make a genuine effort to reach an agreement before communicating their decision within 21 days. If an employer refuses the request, they must provide reasons in writing, including the “reasonable business grounds” on which it is based. Amendments specify “reasonable business grounds” are also shaped by the employer’s enterprise size and nature. For instance, small companies may struggle to accommodate schedule changes due to limited staff flexibility. The employer must also indicate any alternative changes to the employees’ work arrangements that may accommodate their situation or confirm that there are no changes the employer is willing to make.
Lastly, these amendments provide “increased” legal avenues for employees. If the request is refused or unanswered for 21 days, and both parties cannot resolve the dispute through efforts at the workplace, the employee can access dispute-resolving mechanisms through the Fair Work Commission. The Fair Work Commission can use conciliation, mediation, or arbitration to resolve disputes and must first attempt non-binding means before resorting to arbitration unless there are exceptional circumstances. The amendments mandate Fair Work Commission’s orders to prioritize fairness and comply with relevant laws and instruments, with civil penalties of up to 60 penalty units imposed for an employer’s breaches.
Compared to the Secure Jobs, Better Pay Act 2022 in Australia, which notably introduced enforceable rights for employees to request flexible working arrangements and empowered the Fair Work Commission to resolve related disputes, Bill 148, focused more on wage increases, the classification of workers, and scheduling issues. Several OECD countries recognize flexible working arrangements as a way to give workers more control over their work-life balance and reduce stress. Ontario could consider incorporating similar provisions, recognizing the growing need for work-life balance and the diverse needs of the modern workforce after COVID-19. Ontario might benefit from establishing a similar authoritative body or mechanism, like Fair Work Commission in Australia, to handle disputes related to work arrangements, ensuring fairness and efficiency in resolving such issues. The Australian legislation offers a detailed framework for evaluating and implementing flexible working arrangements. Ontario could adopt similar guidelines to ensure a structured approach to flexible working arrangements, providing clarity for both employers and employees.
In conclusion, while Bill 148 has made important progress, learning from Australia's approach to flexible working arrangements could further enhance labour standards in Ontario, particularly in terms of flexibility and dispute resolution related to work arrangements. However, adapting such practices to the Canadian context would require careful consideration of Canada’s unique federal and provincial jurisdictional structure. Any adaptations from the Australian model would need to be tailored to fit within Ontario’s legal and economic landscape.
About the author
Yicheng Ru is currently a third-year Juris Doctor student at the University of Ottawa. Before starting law school, she completed degrees in Accounting, History, and International Political Studies. She is a full member and a CPA accredited by CPA Australia. Her future aspirations extend across various legal fields, notably Corporate Governance, Securities Law, Tax Law, WTO Law, AI, Employment Law, and Construction Law.
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