Arbitrator and NAA member, Susan Stewart briefly describes Ontario’s New Fair Workplaces, Better Jobs Act.
In 2014, the Ontario government announced its intention to “engage with Ontarians to consider what it can do in the context of our labour and employment law regime to continue to protect workers while supporting business in today’s modern economy”. This announcement was preceded by a 2013 research study, “Vulnerable Workers and Precarious Work”, conducted for the Law Commission of Ontario, which recommended legislative changes to improve conditions for those engaged in precarious work.
In 2015, the government announced the Changing Workplace Review and the appointment of special advisors, C.M. Mitchell, a former union side lawyer and currently an arbitrator and part-time Vice Chair of the Ontario Labour Relations Board, and J. Murray, a former management side lawyer and Superior Court judge, with a mandate to make recommendations for changes to labour relations and employment standards legislation. Their objective was to: “improve security and opportunity for those made vulnerable by the structural economic pressures and changes”. Public hearings were held and written submissions were reviewed, along with academic research papers that were commissioned to support the initiative.
On July 27, 2016, an Interim Report was issued. The Report set out issues and options for reform with respect to the Labour Relations Act and the Employment Standards Act and sought submissions. The Final Report was issued on May 23, 2017. The Interim Report and the Final Report can be viewed at here.
Below is a summary of the new legislation provided by the authorities.
The proposed legislation would:
- Establish card-based union certification for the temporary help agency industry, the building services sector and home care and community services industry.
- Make the following changes to the union certification process:
- Eliminate certain conditions for remedial union certification, allowing unions to more easily get certified when an employer engages in misconduct that contravenes the LRA
- Make access to first contract arbitration easier, and also adding an intensive mediation component to the process.
- Require the Ontario Labour Relations Board (OLRB) to address first contract mediation-arbitration applications before dealing with displacement and decertification applications
- Allow unions to access employee lists and certain contact information, provided the union can demonstrate that it has already achieved the support of 20 per cent of employees involved
- Expressly empower the OLRB to conduct votes outside the workplace, including electronically and by telephone
- Empower the OLRB to authorize Labour Relations Officers to give directions relating to the voting process and voting arrangements in order to help assure the neutrality of the voting process
- The proposals would extend successor rights to the retendering of building services contracts.
- The proposed legislation would also enable the government to apply this expanded notion of successor rights, by regulation, to the retendering of other publicly funded contracted services.
Structure of Bargaining Units
- The proposed legislation would allow the OLRB to change the structure of bargaining units within a single employer, where the existing bargaining units are no longer appropriate for collective bargaining.
- The proposed changes would also allow the OLRB to consolidate newly certified bargaining units with other existing bargaining units under a single employer, where those units are represented by the same bargaining agent.
Return-to-Work Rights and Procedures
- Currently, the LRA gives employees the right, under certain conditions, to return to work within six months of the commencement of a lawful strike. The proposed changes would remove the six-month limitation.
- The proposed legislation would require an employer to reinstate an employee at the conclusion of a legal strike or lock-out (subject to certain conditions), and to provide access to grievance arbitration for the enforcement of that obligation.
Just Cause Protection
- The proposed legislation would protect employees from being disciplined or discharged without just cause by their employer in the period between certification and conclusion of a first contract, and during the period between the date the employees are in a legal strike or lock-out position and the new collective agreement.
- The proposals would increase maximum fines under the Labour Relations Act to $5,000 for individuals and $100,000 for organizations (from the current $2,000 for individuals and $25,000 for organizations).
Coming Into Force
- If the proposed legislation is passed, all labour relations proposals would be in effect six months after the Act comes into force.
- The Ministry of Labour will work with affected ministries to consult with stakeholders to review the Special Advisors’ recommendation to remove the exclusions under the LRA taking into account ongoing litigation.
- The proposed legislation, Bill 148, also contains provisions establishing significant employment standards reform. Bill 148 passed First Reading on June 1, 2017. A motion to dispense with Second Reading also passed and the Bill has been referred to the Standing Committee on Finance and Economic Affairs. The Standing Committee is scheduled to review the Bill throughout the summer.