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HRPA SD&G CHAPTER LABOUR LEGISLATION UPDATE
 
Minimum Wage for Ontario
The minimum wage for the province of Ontario has been $10.25 hourly since 2010.  An independent panel was set up to review the minimum wage rate and has just recently recommended that he minimum wage be increased to $11.00 per hour effective June 1, 2014.  They are also proposing that the minimum wage be tied to the inflation rate and that businesses receive four (4) months warning of any future increase.
Bill 21 Amends the Employment Standards Act
The bill amends the ESA to add three (3) new unpaid leaves of absence for family caregiver leave, critically ill child care leave and crime-related child death or disappearance leave.  The bill was ordered for 3rd reading in November 2013.
Bill 32 The Registered Human Resources Professionals Act
On November 6, 2013 the Ontario Legislature officially recognized the evolving importance of HR in today’s workplace by passing Bill 32.  The Act allows HRPA to establish by-laws relating to academic performance and experience for registration, member conduct and standards of practice.  Furthermore, the legislation if expected to benefit HRPA members by elevating their profession to a Tier 1 status that will increase the value of the nationally recognized CHRP designation, as well as enhance HRPA control over the unauthorized use of the designation.
Bill 105 Supporting Small Businesses Act
Bill 105 would increase the exemption for private-sector employers, including small businesses, charities and not-for-profit organizations with an annual payroll of $450,000 or less for the 2014 to 2018 calendar years.  The Bill received 3rd reading on December 12, 2013.  Will come into force when royal assent is received.
Bill 146 Stronger Workplaces for a Stronger Economy Act, 2013
Bill 146, recently received its first reading. If enacted, Bill 146 will have significant implications for Ontario employers as a direct result of amendments it will make to the following employment legislation:
 
   Employment Standards Act, 2000
 
   Labour Relations Act, 1995
 
   Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
 
   Occupational Health and Safety Act
 
   Workplace Safety and Insurance Act, 1997
 
Among the potential changes, the amendments propose to increase the cost of administrative orders that may be made against employers; make more onerous the record-keeping and administrative obligations regarding individuals not directly employed by employers; enhance workplace health and safety obligations to include a broader category of worker; and reduce the opportunities for unionized construction employees to bring decertification applications to the Ontario Labour Relations Board.
 
The following summarizes the amendments proposed by Bill 146. We will continue to monitor Bill 146's status and provide updates on its progress.
 
 
Employment Standards Act, 2000 (ESA)
 
Currently, an employment standards officer may not issue an order to pay wages owed to an employee that exceeds $10,000. If Bill 146 is enacted, there will be no monetary limit on orders to pay wages.
 
In addition, Bill 146 will allow an employee to recover wages owed up to two years before the date of a complaint, an increase from the current ability to recover wages owed within six months of the date of complaint.
 
Part XVII.1 of the ESA sets out "Temporary Help Agencies" provisions (Provisions). The Provisions set out the rights and obligations of employees of temporary help agencies and the employers who hire them. Notable is section 74.3 and section 74.4(3) of the Provisions, which make clear that a temporary employee is the employee of the agency that assigns him or her work, and not of the employer to whom he or she is assigned.
 
Despite this, Bill 146 will impose obligations on employers who retain temporary employees assigned by an agency. Ontario employers would now be required to record the number of hours performed by assignment employees on each day and week and would be required to retain those records for three years. Records must also be available for inspection by the Ministry of Labour, if requested. Enhanced record-keeping obligations for the temporary help agency are also contemplated by Bill 146.
 
In addition, Bill 146 will make the Ontario employer jointly and severally liable with the temporary help agency for any wages owed to the employee by the temporary help agency. Proceedings to recover those wages can run concurrently.
 
Bill 146 will require employers to perform "self-audits" of their ESA compliance and provide the results of those audits to the Ministry of Labour, if ordered to do so by an employment standards officer. Notice from the employment standards officer will set out the audit's parameters, including the period of review and any ESA provisions or employment practices at issue. Employers will be required to self-assess whether they have breached the ESA and whether any wages are owed to employees as a result of the audit. At the request of the employment standards officer, an employer would also be required to set out how they will prevent future contraventions of the legislation.
 
The ESA currently requires employers to post an employment standards poster titled, "What You Should Know About The Employment Standards Act" in a conspicuous location in the workplace. If the workplace's majority language is not English, an employer must ask the Ministry of Labour whether the poster has been produced in that other language. If enacted, Bill146 will also require employers to provide a copy of the poster to its employees within 30 days of their date of hire. The poster must be provided in the language requested by the employee, if a translation of the poster in that language has been prepared by the Ministry of Labour. Employers will have to provide current employees with a copy of the poster within 30 days of the date Bill 146 is enacted.
 
 
Labour Relations Act, 1995 (LRA)
 
Bill 146 will only effect changes to the construction industry provisions of the LRA, by enabling a trade union to "raid" a bargaining unit represented by another union in the last two months of a collective agreement. The LRA currently contemplates the ability to undertake a raid, although only in the last three months of a collective agreement. The amendments will therefore shorten the window within which such an application could be made in the construction industry.
 
Similarly, Bill 146 will shorten the period in which a decertification application could be brought. Currently, any bargaining unit employee can bring a decertification application in the last three months of a collective agreement's term. The proposed amendments would impose a more limited ability to bring a decertification application, within the last two months of a collective agreement in the construction industry.
 
Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
(EPFNA)
 
Bill 146 will amend the title of the EPFNA to the Employment Protection for Foreign Nationals Act, 2009.
 
In tandem with the change to the legislation's title, Bill 146 will expand current EPFNA protections to "every foreign national" who is part of a foreign employee program and is, or is attempting to be, employed in Ontario. In effect, the legislation's application would be widened from live-in caregivers, to whom the legislation currently primarily applies, to any foreign national employed or attempting to become employed in Ontario. Current EPFNA protections include prohibitions on:
 
   The ability of a recruiter to charge fees to a foreign national caregiver seeking employment;
 
   The ability of an employer to recover fees or costs paid to obtain the services of a foreign national caregiver;
 
   The ability of a recruiter or an employer to seize a foreign national caregiver's property, including a passport or work permit;
 
                  Reprisals by a recruiter or an employer against a foreign national caregiver who seeks to enforce his or her legal rights or who participates in a legal proceeding under the legislation or the ESA.
 
Record-keeping obligations and penalties for breaches of the legislation and the ESA are also set out in the current EPFNA.
 
Occupational Health and Safety Act (OHSA)
 
For OHSA purposes, a worker is defined as a person who "performs work or supplies services for monetary compensation." As a result, workers, for OHSA purposes, are only those individuals who are receiving monetary compensation. If enacted, Bill 146 will expand the definition of a worker to include some individuals who are performing work or providing services but not receiving monetary compensation. The exceptions to the existing definition of a worker will be limited, as follows:
 
   A secondary school student performing work or supplying services under a work experience program authorized by the school board that operates the school in which the student is enrolled;
 
   A person working or supplying services under a program approved by a post-secondary institution;
 
   A person who receives training from an employer, even if he or she is not an employee for ESA purposes because he or she is receiving unpaid training in the circumstances described in section 1(2) of the ESA. Such training would generally arise in the course of an unpaid internship; and
 
   Any other person who is prescribed (e.g., set out in a regulation to the OHSA) in the future.
 
Workplace Safety and Insurance Act, 1997 (WSIA)
 
Bill 146 will alter reporting obligations where a worker of a temporary employment agency is injured while performing work for an Ontario employer. An employer using a temporary employment agency's services will be required to report any injury that requires health care, or results in a worker not being able to earn full wages, within three days of the incident. This provision would apply despite the fact that the WSIA deems the worker to be an employee of the temporary help agency and not of the employer accessing their services.
 
Furthermore, an employer who uses the services of a temporary help agency will have its experience and merit rating programs affected by injuries sustained by workers dispatched by temporary employment agencies.
 
Ontario Human Rights Commission
 
In 2012, the Ontario Human Rights Commission (OHRC) added two (2) new grounds “gender identity” and “gender expression” as grounds of discrimination in the Code.  Adding these grounds makes it clear that transgender people are entitled to the same legal protections from discrimination and harassment as everyone else.  These grounds will also protect people who face harassment and discrimination because they are perceived to be trans or do not conform to stereotypical gender norms.
 
  
AODA (Accessibility for Ontarians with Disabilities Act 2005)
 
Everyone should take a look at their AODA reporting requirements for 2014.  Most employers are aware of their obligations under the Customer Service Standard of AODA; however many employers are not aware of the upcoming requirement:  Integrated Accessibility Standard.  If you have more than 50 employees (Customer Service Standard was 20 employees) you are required to create an Accessibility Policy pertaining to their obligations under the Integrated Accessibility Standard.
 
COLLECTIVE BARGAINING HIGHLIGHTS
 
Wage settlements, summaries, wage trends and major negotiations underway are available at www.labour.gov.on.ca/english/lr/pubs/index.php
 
 
NEW AND YOUNG WORKERS SAFETY BLITZ IN 2013
 
From May to August 2013, Ministry of Labour inspectors conducted 2,982 visits to 2,326 workplaces and issued 8,582 orders under the Occupational Health and Safety Act (OHSA) including 201 stop work orders.
 
 
WSIB RELEASES REPORT ON ONTARIO’S WORKPLACE SAFETY AND INSURANCE SYSTEM
 
The WSIB released their latest report called “Funding Fairness:  A Report on Ontario’s Workplace Safety and Insurance System”.
Funding fairness speaks to the fundamental aspects of the worker’s compensation system in Ontario.
The WSIB will carefully study the recommendations and consider the integration of these recommendations into strategic priorities.  The report can be read at:-
 
 
 
PRACTICAL ADVICE ON HOW TO PROTECT ONLINE PRIVACY  (Office of the Information and Privacy Commissioner)
 
Spurred by numerous recent media reports of employers requesting Facebook passwords from job candidates, Ontario’s Information and Privacy Commissioner, Dr. Ann Cavoukian, launched a paper to provide Ontarians with practical advice on how to protect their online privacy in the increasingly complex social media world.  The report is entitled “Reference Check:  Is our Boss Watching ? The New World of Social Media: Privacy and Your Facebook Profile.”  Cavoukian said it is absolutely crucial to remember that anything posted online may stay there forever, in one form or another, so to think carefully before you post.  The full report is available online.  Call 416-326-3939.
 
Ontario’s Integrated Health and Safety Strategy
 
Ontario’s MOL has developed the province’s first integrated strategy to prevent injuries and improve the delivery of workplace health and safety.  The strategy includes actions to:-
 
.  Introduce mandatory health and safety training for workers and supervisors.
.  Create task groups for small businesses and for vulnerable works to address OHS issues.
.  Weekend and after hours inspections of workplaces.
 
Mandatory health and safety training will come in effect July 1, 2014.  By that date, employers must ensure that all workers and supervisors have completed a basic OH&S awareness training that meets the requirements set out in the new regulation.
 
Employers can develop their own training or use existing training as long as it meets requirements outlined in the regulation, or they can use a suite of tools provided at no cost by the Ministry, available on-line in multiple formats.  You will also be required to maintain records of who has completed the training and also trained new employees.
 
For more information search on “awareness training” at www.wsps.ca and click on each tab for a full spectrum of support.
 
 
LABOUR MARKET OPINION (LMO)
 
If you are hiring any foreign workers, the federal government has recently introduced changes to the hiring process for allowing foreign workers in Canada.  You may need to apply for a Labour Market Opinion (LMO) before you can hire a foreign worker or get pre-approval to hire a large number of workers.  For more information please check http://www.hrsdc.gc.ca/eng/workplaceskillsforeign_workers/index.shtml
 
 
HRPA SD&G Chapter
February 2014