1 Fair Workplaces, Better Jobs Act, 2017John W. Saunders September 2017

2 Bill 148: An Overview The Bill will amend: Subject to further change!Employment Standards Act, 2000 Labour Relations Act, 1995 Minor changes to several other employment related legislation

3 Timeline of Events CWR Commences (May 2015)Interim Report Released (July 2016) Final Report Released (May 23, 2017) Legislation Announced (May 30, 2017) Bill 148 First Reading (June 1, 2017) Public Consultations (July 2017) Clause-by-Clause Consideration by Committee (August 21, 2017)

4 Timeline of Events Legislature returns September 11, 2017LRA changes will be effective 6 months after the Bill receives Royal Assent Most ESA changes will be effective January 1, 2018 More public consultations after second reading Legislature returns September 11, 2017

5 Changes to the Employment Standards Act, 2000

6 Overview of Changes Classification of Employee Minimum WageEqual Pay for Equal Work Scheduling Vacation Increases Holiday Pay Statutory Leaves

7 Changes in Scope of ESA Now applies to: Classification of “Employee”Prohibits misclassification Employer has onus to prove independent contractors are true independent contractors trainees

8 General Minimum Wage in Ontario 2013 – 2019

9 Equal Pay for Equal WorkEqual pay for equal work has been extended to include employment status No employee may be paid less than what is paid to full-time employees of the same employer, performing the same job

10 Equal Pay for Equal WorkEmployment status: Full-time/part-time/temporary/casual/unionized Students?

11 Equal Pay for Equal WorkNo Employer shall pay a rate of pay to one employee that is different than another employee because of a different employment status when: They perform substantially the same kind of work in the same establishment; Performance requires substantially the same skill, effort, responsibility; and The work is performed under similar working conditions.

12 Equal Pay for Equal WorkSeniority; Merit; A system that measures earnings by quantity or quality of production; Any other factor other than sex or employment status.

13 Equal Pay for Equal WorkThe Bill provides for a transition period for collective agreements that are in effect on April 1, 2018 Continues until earlier of a date the collective agreement expires or January 1, 2020

14 Equal Pay for Equal WorkPractical Issues In a Composite Fire Department Volunteer Firefighters - $25/hr Full-Time Firefighters First Class $43/hr ($93,000.00/yr) Probation $28/hr (65% of 1st Class)

15 Equal Pay for Equal Work“Rate of Pay” not defined “Regular Rate” “amount earned for an hour of work” "amount earned in a given work week divided by the number of hours actually worked in that week” 3/6/9? Point systems for Volunteers? Honorarium for Volunteers?

16 Equal Pay for Equal WorkIn a Composite Fire Department Volunteer v. Full-Time Same kind of work? N.F.P.A same skill, effort, responsibility Similar working conditions

17 Equal Pay for Equal WorkEqual pay does not apply if: In a Composite Fire Department Different seniority system? Different merit No real performance appraisals System that measures earnings by quality or quality of production Other factors Volunteers don’t have to show up

18 Equal Pay for Equal WorkPractical Process Parks & Recreation Dept. or Public Works Dept. Grass cutting/pools/operator #1 Same kind of work in same kind of establishment Substantially same skill, ability, responsibility Similar working conditions

19 Equal Pay for Equal WorkEqual pay does not apply if: Parks and Recreation Dept. or Public Works Dept. Seniority system – Union v. Non-Union Merit – all have DZ license and certificate System that measures earnings by quality or quantity of production – probably does not apply Other factors?

20 Equal Pay for Equal WorkIn Practice: Employee may request a review of wages Employer must respond by either: Protections from reprisal 1 2 Adjusting the employee’s pay accordingly If the employer disagrees, providing a written explanation

21 Equal Pay for Equal WorkHow to prepare: Proactive with wage rates Work with temporary agencies? Make it part of pay equity Prepare for collective bargaining Have a review system in place for complaints

22 Scheduling Any employee with at least 3 months’ service has the right to request schedule or work location changes without reprisal  City shall discuss request with employee City shall notify employee of decision in reasonable time Give reasons for denial

23 Scheduling Bill 148 will amend the 3-hour reporting rule to require payment at the regular rate of pay (as opposed to the minimum wage rate) If regulatory work for more than 3 hours works less than 3 hours, despite being able to work longer Does not apply if caused by fire, lightening, power failure storms, similar causes beyond city’s control

24 Scheduling New “on-call” rule to require payment at least 3 hours pay for employees who are on-call and who are either a) Not called in to work or b) Who are called in but work less than 3 hours

25 Scheduling The right to refuse a shift or to refuse being placed “on call” without reprisal if there is less than 4 days’ notice provided Does not apply: work is to deal with an emergency, or to remedy a threat to public safety

26 On-Call Rule Volunteer Firefighters Don’t have to attendOn call vs. being on a call-in list Cost $25 x 3 hrs/day x 365 days/yr = $27,375/yr

27 On-Call Rule Part-time/Full-time Firefighters Have to attend$43.00 x 3 hrs/day x 365 days/yr = $47,085/yr Divide by 4 platoons = $11,771/yr

28 On-Call Rule Managers Fire/EMS/Police Public Health Water/SewerOperation #1 – plowing/water/sewer Public Health Nurses

29 Practical Issues Are they dealing with an emergency or staffing shortage? Are they reducing a public threat to safety? Normal winter snow = more than two inches Not an emergency? Many PSWs call in sick Large water main break

30 Vacation and Public Holidays3 weeks vacation for employees with 5+ years Public Holidays Based on regular wages from previous pay period Holiday Pay = Regular wages from previous pay period Days worked in that period

31 Practical Issues 9 StatsAll part-timers who work 1 day every two weeks get paid 9 extra days Make pay period one week, don’t schedule in previous week If part-time then works in 3 different jobs, get paid 3 times for each stat

32 Personal Emergency Leave10 days (2 paid + 8 unpaid) Qualifying period for paid days: 1 week of employment Applies to all workplaces (the 50 employee threshold will be removed) Employers will not longer be able to require a medical note as reasonable evidence

33 Domestic or Sexual Violence LeaveNew standalone leave for domestic or sexual violence An employee who has been employed for at least 13 consecutive weeks is entitled to an unpaid leave of absence with respect to domestic/sexual violence To seek medical attention, obtain services from a victim services organization, obtain counselling, relocate, or to seek legal assistance

34 Pregnancy and Parental LeaveBrings the ESA in line with recent changes to the Employment Insurance Act The length of parental leaves will increase by a total of 26 weeks: From 35 weeks to 61 weeks for employees who took a pregnancy leave, and From 37 weeks to 63 weeks for employees who did not

35 Other Leaves of AbsenceFamily Medical Leave Increased leave from 8 weeks  27 weeks Increased period of risk from 26 weeks  52 weeks Child Death/Disappearance Leave No longer requires the death to be crime related Disappearance leave increased to 104 weeks

36 Temporary Help AgenciesEqual pay for equal work Agency employer has obligation to reply A temporary help agency must provide an assignment employee with one week’s notice (or pay in lieu of notice) if an assignment of more than three months ends early Unless another assignment of more than one week is offered Agency must retain a record of written notice

37 Enforcement Increase penalties for non-complianceAdditional employment standards officers New education programs

38 Miscellaneous ChangesRelated employer provisions clarified/expanded Use of electronic agreements Overtime rates (multiple jobs) Wage collection measures Many additional record-keeping requirements

39 CWR Recommendations Not Included in Bill 148Elimination of the student and server minimum wage Removal of the requirement for Director’s approval to work hours in excess of 48 per week up to 60 per week Overtime averaging agreements Whistleblower protection An internal responsibility system for minimum standards, similar to OHSA for health and safety in the workplace

40 Questions & Answers

41 John W. Saunders I Mark StoneFair Workplaces, Better Jobs Act, 2017 John W. Saunders I Mark Stone September 2017

42 Ontario Municipal Human Resources AssociationBill 148 – Fair Workplaces, Better Jobs Act, Changes to Labour Relations Act, 1995 Ontario Municipal Human Resources Association 2017 Fall Conference September 14, 2017

43 Bill 148: Union Access to Information

44 Bill 148: Union Access to InformationWill allow unions to access employee lists and certain employee contact information where the union can demonstrate 20% support. (Section 6.1) Where there is no existing bargaining agent, the union may apply to the OLRB for an order directing the employer to provide the union a list of employees of the employer.

45 Bill 148: Union Access to Information(a) The union shall deliver a copy of the application to the employer. The application must include a written description of the proposed bargaining unit, including an estimate of the number of individuals in the unit, and (b) A list of the names of the union members in the proposed bargaining unit and evidence of union membership (this evidence is not provided to the employer).

46 Bill 148: Union Access to InformationIf the employer disagrees with the description of the proposed bargaining unit, or the estimate of the number of individuals in the unit, the employer shall file with the OLRB a notice of disagreement within two days of receiving the application. The employer’s response must indicate whether the employer agrees with the description of the bargaining unit the union proposes, or explain why the employer believes that bargaining unit could not be appropriate for collective bargaining, and indicate whether the employer agrees with the union’s estimate of the number of employees in that proposed unit.

47 Bill 148: Union Access to InformationThe OLRB will determine whether the union’s proposed bargaining unit “could be appropriate”. If the OLRB determines that the union’s proposed bargaining unit could not be appropriate, the OLRB shall dismiss the application. If the union’s proposed unit could be appropriate, then the OLRB determines whether 20% or more of the individuals in the union’s proposed bargaining unit appear to be members of the union.

48 Bill 148: Union Access to InformationIf the union has the requisite 20%, then the OLRB shall order the employer to provide a list of employees in that proposed bargaining unit to the union. The list of employees shall include the name of each employee in the proposed bargaining unit and a phone number and personal , if the employee has provided that information to the employer. There are restrictions on the use of the information by the union. The union must keep the list confidential and not disclose it to anyone other than the appropriate union officials, and the list must be used by the union only for the purposes of a campaign to establish bargaining rights.

49 Bill 148: Union Access to InformationThe information on the list must remain confidential. Both the union and the employer are obligated to take all reasonable steps to maintain the security and confidentiality of the information on the list. The list must be destroyed no later than one year after it was issued. The Act provides that the disclosure of this personal information does not violate either the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act.

50 Bill 148: Union Access to InformationIf, within one year of providing the list the union makes an application for certification, the description of the proposed bargaining unit included in the application must be the same as the description that was used to obtain the list. The section allowing for the employee list does not apply to construction industry employers. Coming into force: 6 months from the date that Bill 148 comes into force

51 Bill 148: Remedial Certification

52 Bill 148: Remedial CertificationBill 148 provides amendments that make it easier for unions to obtain remedial certification where an employer engages in misconduct. The remedial certification section applies where an employer engages in a breach of the Act (an unfair labour practice) and, as a result: The true wishes of the employees in the proposed bargaining unit were not likely reflected in a representation vote; or The union was not able to demonstrate the 40% or more of the employees in the proposed unit were members of the union.

53 Bill 148: Remedial CertificationUnder the existing legislation, the OLRB could order a second representation vote (where the first vote did not likely reflect the true wishes of the employees) or order a first representation vote (where the union could not demonstrate that it had the requisite 40% to obtain a membership vote). Under the existing version of the Act, the OLRB would order automatic/remedial certification only where no other remedy would be sufficient to counter the effects of the employer’s breach of the Act.

54 Bill 148: Remedial CertificationIn other words, the OLRB would order remedial certification only where a vote (or a second vote) would not reflect the true wishes of the employees. Under Bill 148, those provisions of the Act have been repealed. Now, if an employer violates the Act and, as a result: The true wishes of the employees are not likely reflected in a representation vote; or The trade union is not able to demonstrate 40% membership to obtain a representation vote Then, the OLRB shall certify the trade union.

55 Bill 148: Remedial CertificationThe result is that it is now much easier for a union to obtain remedial certification. Previously, the OLRB usually ordered a representation vote, usually with certain other remedial orders, to ensure that the representation vote reflected the true wishes of the employees. Previously the employer had to engage in very serious misconduct, which would not be remedied by a representation vote with conditions. Coming into force: 6 months from the date that Bill 148 comes into force.

56 Bill 148: No Discharge or Discipline Following Certification

57 Bill 148: No Discharge or Discipline Following Certification“Just cause” protection will apply to all bargaining unit employees during the period that begins on the date of certification and ends on the date on which a first collective agreement commences. In order to discipline or discharge an employee during this timeframe, the employer must establish just cause. Once a collective agreement is in place, an employee will have the same just cause protection.

58 Bill 148: No Discharge or Discipline Following CertificationTherefore, an employee now has just cause protection from discipline or discharge from the date the union is certified, through to a first collective agreement, and then continuing through the provisions of the collective agreement. Coming into force: 6 months from the date that Bill 148 comes into force.

59 Bill 148: Reinstatement Following Strike

60 Bill 148: Reinstatement Following StrikePreviously under section 80, an employee engaging in a lawful strike could make an unconditional application to the employer, within six months from the commencement of the strike, to return to work. The employer would then have to reinstate the employee. The six month timeframe has been removed. Now, an employee can make an unconditional application to return to work even after the previous six month deadline.

61 Bill 148: Reinstatement Following StrikeThe employer then has to reinstate the employee to his former employment on such terms as the employer and the employee may agree upon. Section 80 has also been amended to include provisions that, at the conclusion of a lawful strike or lockout, the employer shall reinstate an employee who was on strike, or who was locked out, to the employee’s former employment on such terms as the employer and the union may agree upon.

62 Bill 148: Reinstatement Following StrikeThis obligation to reinstate the employee can be enforced through the grievance and arbitration procedure in the collective agreement. In addition, section 80.1 has been added to the Act to provide additional just cause protection during a strike or lockout. An employer shall not discharge or discipline an employee without just cause during the period that begins on the date on which a strike or lockout became lawful and the date a new collective agreement is entered into.

63 Bill 148: Reinstatement Following StrikeTherefore, employees essentially have just cause protection from discharge or discipline from the date the union is certified through any strike or lockout, and up until a new collective agreement is entered into. Coming into force: 6 months from the date that Bill 148 comes into force.

64 Bill 148: Consolidation of Bargaining Units

65 Bill 148: Consolidation of Bargaining UnitsIn its original form, Bill 148 would have allowed the OLRB to determine if existing bargaining units were “no longer appropriate”. The employer or union could have applied to the OLRB to essentially review and rewrite a bargaining unit description, where that bargaining unit was no longer appropriate. Recent amendments to Bill 148 made by the Standing Committee on Finance and Economic Affairs have removed this initial proposal.

66 Bill 148: Consolidation of Bargaining UnitsHowever, the OLRB will be given a power to “consolidate” bargaining units after certification. Where the OLRB certifies a union as the bargaining agent of employees, the OLRB may review the structure of that bargaining unit if the following conditions are met: The employer or union makes an application to the OLRB requesting a review at the time the application for certification is filed, or within three months after the date of certification; A collective agreement has not yet been entered into regarding that bargaining unit; and The trade union already represents employees of the same employer in another bargaining unit, whether at the same or at a different location.

67 Bill 148: Consolidation of Bargaining UnitsThe OLRB must first allow the parties an opportunity to come to an agreement on a consolidated unit but, if there is no agreement, it can make orders to consolidate the two units into an appropriate bargaining unit. The OLRB can consolidate the newly certified bargaining unit with an existing bargaining unit, so long as it is the same union. The OLRB can also order that the existing collective agreement will apply to the consolidated bargaining unit, with or without modifications.

68 Bill 148: Consolidation of Bargaining UnitsThe OLRB can amend the provisions of a collective agreement regarding the expiry date, or seniority rights. The OLRB is obligated to take into consideration whether consolidating the bargaining units would contribute to the development of an effective collective bargaining relationship and contribute to the development of collective bargaining in the industry generally. These provisions could lead to more frequent certification/unionization of smaller, fragmented bargaining units (i.e. other than all employee units) which the OLRB previously would not usually certify. The OLRB has an aversion to fragmented bargaining units.

69 Bill 148: Consolidation of Bargaining UnitsThe OLRB will be more likely to certify these types of fragmented units because the OLRB can also consolidate them into an existing larger bargaining unit, making collective bargaining for the entire group easier and more achievable. It should be noted that the employer can also make this type of application for an order consolidating bargaining units. That may be desirable where the employer does not want to deal with a small, fragmented bargaining unit, and where it is easier to consolidate them into the larger unit for collective bargaining purposes.

70 Bill 148: Consolidation of Bargaining UnitsComing into force: 6 months from the date that Bill 148 comes into force.

71 Bill 148: Card Based Certification in Certain Industries

72 Bill 148: Card Based Certification in Certain IndustriesThe Act is being amended to make it easier for unions to organize certain industries by providing for “card based” applications for certification. For certain industries, a union will have an option of applying for “card based” certification, as opposed to the current process requiring a “vote based” certification. Under the current system (other than construction), a union must demonstrate that it has at least 40% of the employees signed as members.

73 Bill 148: Card Based Certification in Certain IndustriesThe union can then apply for a vote based application for certification, and the union must win the vote by 50% plus one. Under the new provisions, the union can elect to proceed with the traditional vote based application, or the new card based procedure. If the OLRB determines that at least 40%, but not more than 55%, of the employees in the proposed bargaining unit are members of the union on the date the application is filed, then the Board shall direct a representation vote.

74 Bill 148: Card Based Certification in Certain IndustriesIf, however, the OLRB is satisfied that more than 55% of the employees are members, then the OLRB may certify the union or direct that a representation vote be taken. If the OLRB determines that less than 40% of the employees in the proposed bargaining unit are members of the union, then the OLRB shall dismiss the application. These are similar to the current construction industry provisions. Currently, the OLRB rarely orders a vote where it determines that 55% of the employees are members of the union.

75 Bill 148: Card Based Certification in Certain IndustriesThis applies ONLY to certain industries (new Section 15.3): “Building Services Industry”, which means businesses engaged in providing services directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services; “Home Care and Community Services Industry”, which means businesses engaged in providing community services under the Home Care and Community Services Act, 1994; “Temporary Help Agency Industry”, which means businesses engaged in employing persons for the purpose of assigning them to perform work on a temporary basis for clients of the employer.

76 Bill 148: Card Based Certification in Certain IndustriesCombined with expanded “successor rights” provisions, the “card based” application for certification process could have a significant impact on municipal employers who contract for building services, for example. Coming into force: 6 months from the date that Bill 148 comes into force.

77 Bill 148: Successor Rights, Building Services

78 Bill 148: Successor Rights, Building ServicesBill 148 extends successor rights to “building services”. Building services mean services “provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services”. (Section 69.1) The new section does not apply to the following services: (1) Construction, (2) Maintenance (other than maintenance activities related to cleaning the premises) and (3) the production of goods, other than goods related to the provision of food services at the premises for consumption on the premises.

79 Bill 148: Successor Rights, Building ServicesThe new successor right provisions for building services apply where: Employees perform services at premises that are their principal place of work; Their employer ceases, in whole or in part, to provide the services at those premises; and Substantially similar services are subsequently provided at the premises by another employer. In other words, where a building services contract is terminated, and a new company or entity begins to provide those services at the same premises, then successor rights will apply.

80 Bill 148: Successor Rights, Building ServicesAny union contract of the previous services provider will bind the new services provider. Would extend union successor rights to cover the retendering of building services contracts. e.g. Municipality A owns an office building. It contracts with Company X to perform cleaning and maintenance services for the building. Company X is unionized. Subsequently, Municipality A contracts with Company Y to provide those services instead. Company Y will adopt the previous union and become bound to any collective agreement that Company X and its employees entered into.

81 Bill 148: Successor Rights, Building ServicesThis would also apply where a municipality takes the services “in house” and does the work itself. Additionally, if regulations are enacted, would apply to the retendering of other “publicly funded contract services”. This means such other types of service providers that directly or indirectly receive public funds.

82 Bill 148: Successor Rights, Building ServicesThis means that, if a municipality tenders out any building services work, or takes requests for proposals, any existing bargaining rights in collective agreements will be binding on the new services provider. This may limit the number of building services providers willing to bid on the work and may, therefore, limit a municipality’s options.

83 Bill 148: Successor Rights, Building ServicesThese provisions should be considered in conjunction with the new “card based” certification provisions which make it easier for employees of building services providers to unionize in the first place. This will make it easier for unions to organize the employees of building services providers, not only because they can file a card based application, but also because they can make a “sales pitch” to employees that any collective agreement will flow to any successor, thereby providing them with greater job security.

84 Bill 148: Successor Rights, Building ServicesComing into force: 6 months from the date that Bill 148 comes into force.

85 Bill 148: Expanded First Contract Mediation-Arbitration Procedure

86 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureUnder the current legislation, the ability of a union to obtain first contract arbitration is limited. If a union applies for first contract arbitration, it must establish that the process of collective bargaining has been unsuccessful because of: Refusal of the employer to recognize the bargaining authority of the union; The uncompromising nature of any bargaining position adopted by the employer without reasonable justification; The failure of the employer to make reasonable or expeditious efforts to conclude a collective agreement; or Any other reason the OLRB considers relevant.

87 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureTypically, if an employer does engage in good faith bargaining and does make good faith efforts to conclude a collective agreement, even if it engages in hard bargaining, a union will be unsuccessful in obtaining first contract arbitration. The process has now been made easier. The Act has been amended to include both first contract mediation and mediation-arbitration. (Section 43)

88 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureIf the parties are unable to achieve a first collective agreement (and a “no board” report has been issued), either party may apply to the Ministry of Labour to appoint a “First Collective Agreement Mediator”. The applicant must include with its application a list of issues in dispute, and the applicant’s position on those issues. No later than five days after receiving the application, the other party must provide its list of issues and its position with respect to those issues.

89 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureIf either party makes the application, then the Minister SHALL, within seven days of receiving the application, appoint a First Collective Agreement Mediator. (This is merely mediation at this stage.) The First Collective Agreement Mediator’s duties include: Meeting with the parties and assisting them to achieve a first collective agreement; and Facilitating and encouraging the process of collective bargaining, and educating the parties in the practices and procedures of collective bargaining.

90 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureIf the Minister does appoint a mediator, no employee is allowed to strike, and the union is not allowed to authorize or threaten to call a strike, from when the Minister makes the mediator’s appointment, and ending 45 days later. Similarly, the employer cannot lock out employees during this timeframe. In addition, if there is a decertification application by employees, or a displacement application by another union, then the OLRB will deal with the mediation application/process first.

91 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureWhat if the parties do not achieve a collective agreement through mediation? 45 days after the Minister appointed the mediator, if the parties have not entered into a collective agreement, then either party may apply to the OLRB to direct the settlement of a first collective agreement by mediation-arbitration.

92 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureIf the OLRB receives an application for mediation-arbitration, the OLRB can: Order the parties to engage in further mediation; Dismiss the application; or Direct the settlement of a first collective agreement by mediation-arbitration. In fact, the OLRB SHALL direct the settlement of a first collective agreement by mediation-arbitration unless: The applicant has bargained in bad faith; It appears to the OLRB that the process of collective bargaining has been unsuccessful because of the uncompromising positions taken by the applicant without reasonable justification; or The OLRB is of the opinion that further mediation would be appropriate.

93 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureTherefore, so long as the applicant is not engaging in bad faith bargaining, it can quite easily obtain first contract mediation-arbitration. If the OLRB does order first contract mediation-arbitration, the parties can choose their own single mediator-arbitrator, or apply to the OLRB to have it act as the mediator-arbitrator.

94 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureIf the Board does order mediation-arbitration, then employees cannot strike and the employer cannot lock out, and if a strike or lockout has already started, then the strike or lockout must immediately end and employees be reinstated to work. Wages, benefits and other terms and conditions of employment shall not be altered until the first collective agreement is settled.

95 Bill 148: Expanded First Contract Mediation-Arbitration ProcedureThe bottom line is, it is now much easier to obtain first contract arbitration. Most employers would prefer to engage in the negotiation process they control, rather than be subjected to an OLRB ordered first contract.

96 Bill 148: Remedial Powers and Interim Orders

97 Bill 148: Remedial Powers and Interim OrdersThe current remedial powers of the OLRB are being replaced with a much broader provision which states “the Board may make interim decisions and orders in any proceeding”. The OLRB can also impose conditions on an interim decision or order. The OLRB need not provide reasons for its interim decisions or orders. These powers are broad and unspecified.

98 Bill 148: New Provisions Regarding Certification Votes

99 Bill 148: New Provisions Regarding Certification VotesThe OLRB will be given expanded powers to conduct certification votes, including the ability to conduct votes outside of the workplace, and to conduct votes electronically or by telephone. The OLRB will also be given expanded powers to issue directions relating to the voting process or voting arrangements.

100 Bill 148: Timing

101 Bill 148: Timing The provincial legislature resumes sitting on September 11, 2017 and it is expected that these provisions will be discussed further at that time. After the Bill receives second reading, it could be sent back to the Standing Committee on Finance and Economic Affairs. This may provide some further opportunity for employers to have further input on some of these more controversial amendments.

102

103 Contact: Mark A. Stone [email protected] Toronto TORONTO333 Bay Street Suite 2500, Box 44 Toronto, Ontario M5H 2R2 t f LONDON 620A Richmond Street Suite 621 London, Ontario N6A 5J9 t f HAMILTON 1 King Street West Suite 1201, Box Hamilton, Ontario L8P 4W9 t f

104 Pay Equity and BILL 148 New Legislation… …Pay Equity and BILL New Legislation… ….Same Obligations Marianne Love Mary Turan Sr. Consultants with Gallagher McDowall Associates September

105 …what’s required and what’s new Bill 148 Considerations and Pay EquityPay Equity Compliance …what’s required and what’s new Bill 148 Considerations and Pay Equity …cost plus?

106 Pay Equity Overview

107 Clarifying Terms: What is Pay Equity? What it is NOT:Pay Equity is “equal pay for work of equal or comparable value”. Pay equity compares the value and pay of different jobs, such as nurse and electrician. Pay Equity Act prescribes the methods of comparison, the definition of job rate, how to determine job class gender… What it is NOT: Equal Pay for Equal Work – this addresses situations in which men and women do the same job (or substantially same). Example two Cooks: doing substantially the same job – should receive the same pay Ontario: Employments Standards Act

108 Ontario Pay Equity Legislation OverviewPay Equity legislation in Ontario… Applies to all employers with 10 or more employees in Private Sector and all employers in Public Sector Compliance Date for Public Sector employers: January 1, 1990 Compliance obligations fall to the employer to ‘achieve’ pay equity, and where there is a bargaining unit, ‘achieving’ pay equity is a joint obligation Maintenance obligations fall to the employer for both unionized and exempt employee groups Process for maintenance may be joint by agreement

109 ….Compliance, Monitoring and Enforcement…HR is the steward of pay equity compliance which transcends the posted Pay Equity Plan Pay Equity Commission in Ontario is active: Wage Gap Analysis Reporting or Monitoring Current focus on newly registered Corporations First point of contact for a “complaint” A number of ‘new’ Review Officers with extensive powers of production and entry on site open files will include multiple employee groups with same employer ability to issue Orders which must be complied with or appealed by the employer to the Tribunal Interest automatically included in retroactive obligations if open file with Ontario PE Commission

110 Pay Equity Process: It All Starts with Job EvaluationSince the Pay Equity process involves testing for “equal pay for work of equal value (or comparable value)”, a systematic job evaluation system is required to establish the relative value of jobs within an organization. Skill: the amount and type of Skill required to perform the job competently Responsibility: how much Responsibility the job has Effort: how much Effort (physical and mental/sensory) is required in performing job tasks, and Working Conditions: the conditions under which the job is performed The job evaluation system must be underpinned by consistent, transparent point-factor scoring model (i.e., arithmetic or geometric progression), and must be capable of evaluating the diverse jobs within the employee group . Principles of conservatism, consistency and ‘best fit’ apply.

111 ….other considerationsIdentification of job class and position type Inclusion of part time, seasonal and casual positions Definition of job rate Determination of gender Identification of male comparator Regular and periodic pay equity analysis Loss of male comparator Market alignment Posting or communicating

112 Methods of Comparison ….prescribed by the Pay Equity Act Job-to-JobProportional Value (Regression Line) Proxy (public sector only)

113 Job Rates and ComparisonDefinition of Job Rate is particularly important when looking at male comparators, cross comparators and benefit entitlement Maximum rate Hourly rates Top of grid Mid-point of salary range Actual salaries if no grid/range Include all forms of compensation Bonus, Commission, Benefits, etc.

114 Sample Pay Equity Impact Chart – Using Job-to-Job and PV Method* Note: Hierarchy of Pay Equity Comparison Job to Job within Band (lowest paid Male job is comparator) Job to Job Lower Band (higher paid Male job is comparator) Proportional Value (Male Pay line is comparator)

115 Proportional Value (PV)Male Pay Line regression analysis least square formula

116 Maintenance ObligationsEmployer’s obligation to maintain Current job information; current evaluations; current analysis Ongoing comparison of job rates with male comparator or regression line Introduction of new job classes Significant changes to job classes warranting re-evaluation Elimination of male comparator job classes Changed Circumstances: a new job evaluation system; changing banding methodology; merger/acquisition - “Sale of Business” Posting Requirements and Communication Prepare Annual Pay Equity Analysis If an organization does not maintain on regular basis, retroactivity will apply back to the period an organization last completed a maintenance assessment (Ontario) CRA – 7 year limit does not apply re: Pay Equity obligations (Ontario)

117 Maintenance Considerations - Bargaining Unit PositionsTerms of Reference document with unions Pay Equity v. Internal Equity Job Evaluation Committee v. Steering Committee Frequency of joint job evaluation Dispute Resolution Methods Pay Equity Commission Arbitration Referee – Advisors

118 Pay Equity Complaints Current or former employees Unionized or notUnions Even where signatory to a Pay Equity Plan or not Even where collective agreement rates purport to be pay equity compliant Unions acting as agents for former non-union employees No time limits (Ontario) Estoppel/waiver does not apply if non-compliance with PEA Random audits by Pay Equity Commission Review Officers “adding to” legislative requirements

119 What’s New?/Did You Know?Interest applied at the Commission to all open files Review Officers visiting on-site: Examine payroll records Requesting copies of T4s Changes in Staff at Review Services: many new Review Officers

120 What’s New?/Did You Know, cont’d.Monitoring: Engagement Survey for Unionized Workplaces New employers (in existence 3 years of less) Vendor of Record Monitoring Federal Contractors Program Monitoring Innovation Sector

121 Bill 148 and Impacts on Pay Equity

122 Two amendments, significant from a pay equity perspective: First: Minimum Wage…Increase to minimum wage will impact job rates (at a minimum) and may result in additional increases where minimum wage is used as Step 1 in the pay band Increases on the base line of the compensation structure may require increases to job rates for other positions to realign pay/relative value in the hierarchy Consider how increases to male comparator job classes impact female jobs in the pay equity plan(s)

123 Bill 148: Increased Minimum WageJob to job scenario:

124 Bill 148: Increased Minimum WageJob to job scenario: Compression issue….

125 Bill 148: Increased Minimum WageImpact on Proportional Value (PV) Line: Female job classes that use the Proportional Value method for maintaining pay equity may be impacted if the PV line uses male jobs that are paid at the new minimum wage rate as part of the male pay line. Example: A female job with 500 points with a job rate of $23.07/hour would be increased to $23.79 per hour when the minimum wage is increased to $14.00 per hour for male jobs that are included in the male pay line. In this example the increase means $0.72 per hour increase, or $1,308 per annum increase for all incumbents in the impacted female job.

126 Bill 148: Increased Minimum WageMale Jobs Job Rate/hr JE points Pre Post 750 $ 400 $ 350 $ $ 325 $ Female Job PE Adjustment 500 $ $ $ per hr annual $ ,991 $ ,299 $ ,308 per annum PV formula slope 0.0674 0.0638 intercept Rsq

127 Bill 148: Increased Minimum Wage

128 Two amendments, significant from a pay equity perspective: Second: Comparable Work…Bill 148 – Proposes that effective April 1, 2018 no employee may be paid less that what is paid to a full time employee of the same employer who performs the same job Ensures equal pay between employment classes….full time, part time, casual, temporary and seasonal employees Non-gender based Two key elements: job content and comparability: Document job duties and differentiate using job evaluation; where possible Consider how male dominated job classes that receive adjustments based on employment status impact female jobs in the Pay Equity Plan (s) Exception: seniority, merit or production measures or any other factors other than gender or employment status

129 ….Comparable Value… Example:

130 ….Comparable Value… Example:

131