Ontario Ministry of Labour Interim Report on the Changing Workplaces Review

The Government of Ontario initiated the Changing Workplaces Review in 2015 to determine what changes, if any, should be made to employment and labour laws in the province in light of the changing nature of the workforce, the workplace, and the economy. The focus of the Review is on the Ontario Employment Standards Act, 2000 (ESA) or the Labour Relations Act, 1995 (LRA).

On July 27, 2016, the Ministry of Labour released an Interim Report. It canvasses a large number of issues affecting Ontario’s workplaces and provides a broad array of options to address each issue, which in many places includes maintaining the “status quo.” However, some of the legislative changes being considered would place additional burdens on employers.

What You Need To Know

• The Interim Report focuses on the need for legislative amendments to address issues facing “vulnerable workers in precarious jobs.” The report concludes that there are “too many people in too many workplaces” not receiving their basic rights guaranteed under the ESA and LRA.
• The report makes two broad conclusions: the administration and enforcement of the ESA should be strengthened; and there should be a comprehensive review and reform of occupation-specific exemptions from ESA provisions, such as minimum wage and hours of work.
• The Interim Report reviews what is seen as a growing problem of misclassification of employees as independent contractors, and the use of temporary workers (through a staffing agency or otherwise). The potential options identified to address this include: expanding the definitions of what constitutes an “employee” and an “employer” and the scope of liability for the purposes of the ESA; extending the ESA’s minimum standards to independent and dependent contractors; and reviewing existing exceptions and special rules (including with respect to overtime and hours of work).
• Many of the changes to the LRA that are under consideration would support the enhancement of union rights, including stronger laws on related or joint employers, the potential expansion of successor rights provisions to contracting out or contract tendering situations, and a possible prohibition on replacement workers. For employers in the non-unionized private and public sectors, the changes under consideration could make it easier for employees to organize or join a union, engage in collective bargaining, and strike.¹
• The Interim Report calls for submissions on the provisions regarding termination of employment and severance pay. Significantly, one of the issues under consideration is whether the ESA should adopt “unjust dismissal” provisions, similar to those in federal legislation. Given the recent decision of the Supreme Court of Canada in Wilson v. Atomic Energy (read our bulletin on the decision here), in which the Court found that the “unjust dismissal” provision in the Canada Labour Code prohibits dismissal of an employee without cause, the introduction of an “unjust dismissal” provision to the ESA could have serious implications to employers in Ontario.
• The Ontario Ministry of Labour is inviting comments and submissions on the Interim Report. Submissions specifically related to the subject of personal emergency leave are due by August 31, 2016. The deadline for submissions on all other issues is October 14, 2016. Parties interested in making a submission to the Ministry are encouraged to contact the authors. Further information on the Review, the Interim Report, and how to make a submission can be found here.

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¹ In Ontario, approximately 86% of the private sector workforce is not unionized.

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