Changing Workplaces Review Final Report May 23, 2017 Dear Clients and Friends, Today, the Government of Ontario released the Changing Workplaces Review final report and recommendations, labeling it an “An Agenda for Workplace Rights”. Touted as the first independent review of the Employment Standards Act and Labour Relations Act in more than a generation, the review was commenced in February, 2015. For every Ontario employer, the recommended changes to the Employment Standards Act and Labour Relations Act are far reaching and will have significant impact. The government has undertaken to announce its formal response to the report in the coming days, and may be aiming to table draft legislation modeled on all, or part, of the recommendations prior to the Legislature rising for summer recess (June 1, 2017). If that occurs we could see legislation make its way into force by late Fall or early next year. Sherrard Kuzz LLP will review the report and government response and distribute a comprehensive briefing note, as we did following the release of the Interim Report (see Sherrard Kuzz LLP homepage). In the interim, to review the report click here, and the summary report click here. Sherrard Kuzz LLP is one of Canada’s leading employment and labour law firms, representing management. Firm members can be reached at 416.603.0700 (Main), 416.420.0738 (24 Hour) or by visiting www.sherrardkuzz.com. MAY 2017 THE CHANGING WORKPLACES REVIEW AN AGENDA FOR WORKPLACE RIGHTS Summary Report SPECIAL ADVISORS C. MICHAEL MITCHELL JOHN C. MURRAY TABLE OF CONTENTS THE CHANGING WORKPLACES RECOMMENDATIONS ON Related and Joint Employer ..............................50 REVIEW: AN AGENDA FOR LABOUR RELATIONS ....................................... 23 Remedial Powers of the OLRB ..........................51 WORKPLACE RIGHTS .....................................03 CONCLUDING Right of Striking Employees ..............................51 The Mandate ..................................................... 03 RECOMMENDATIONS ...................................... 29 Just Cause Protection .......................................52 Elements of the Review .....................................04 Introductory Recommendations ........................ 29 Successor Rights ..............................................52 General Observations & Upfront Enforcement and Administration ......................30 Recommendations ............................................04 Ability of Arbitrators To Extend Sectoral Regulation and Exemptions ................37 Arbitration Time Limits in the Guiding Principles, Values Arbitration Procedure ........................................52 and Objectives ..................................................07 Changes to Basic Standards .............................39 Conciliation Boards ...........................................52 Trends in the Economy and Who is an Employer and Who is the Workplace ..................................................08 an Employee ......................................................44 Concluding Recommendations .........................52 Exclusions ........................................................44 RECOMMENDATIONS ON EMPLOYMENT STANDARDS ...........................11 Exclusions from Collective Bargaining ..............44 Changes to Basic Standards .............................17 Acquisition of Bargaining Rights .......................46 THE CHANGING WORKPLACES REVIEW: AN AGENDA FOR WORKPLACE RIGHTS THE MANDATE economy itself, particularly in light Examples of the third category are other of relevant trends and factors operating items included in the Minister of Labour’s In February 2015, the Minister of Labour on our society, including globalization, Mandate Letter: the gender wage gap, initiated the Changing Workplaces issues specific to migrant workers, and Review (Review) building on government trade liberalization, technological legislation dealing with compulsory commitments in the 2014 Throne Speech change, the growth of the service interest arbitration for certain groups and the Minister of Labour’s 2014 sector, and changes in the prevalence of workers. Mandate Letter. We, C. Michael Mitchell and characteristics of standard and the Honourable John C. Murray, were We were tasked with examining academic appointed to lead the Review, with the employment relationships. and inter-jurisdictional research, and Minister stating that: soliciting input from the general public The Review focuses on the Labour and stakeholders by holding consultation Relations Act, 1995 (LRA) and the sessions and accepting written The Changing Workplaces Review will Employment Standards Act, 2000 (ESA). submissions. consider the broader issues affecting The majority of sections under both Acts the workplace and assess how the are in scope for the Review, with the We reported back to the Minister of current labour and employment law following exceptions: Labour with our progress in February 2016 and released an Interim Report framework addresses these trends and (1) construction industry provisions of in July 2016. Our final report and issues with a focus on the LRA and the the LRA; recommendations have now been ESA. In particular, the Special Advisors (2) minimum wage; and submitted. This summary provides an overview of these recommendations. will seek to determine what changes, if (3) policy discussions for which any, should be made to the legislation other independent processes have in light of the changing nature of the been initiated. workforce, the workplace, and the THE CHANGING WORKPLACES REVIEW | An Agenda for Workplace Rights 03 ELEMENTS OF THE REVIEW In conducting the Review, we relied upon the support of academics and consultation with experts in a variety of fields. We engaged frequently with leading academics who focus on workplace issues from a variety of perspectives, including economics, social science, and law. Several research projects were commissioned focusing on specific issues that were in the Review’s scope. During the review process, two phases of consultation took place to provide the general public and stakeholders with the opportunity to comment on how the LRA and ESA could be amended to reflect the changing nature of work. A discussion paper, titled, “Guide to Consultations” was released to initiate the review and consultation process. In the first phase of consultation, there were 12 public sessions held across Ontario. Altogether, we heard over 200 public presentations and and individuals and received over 280 GENERAL OBSERVATIONS received over 300 written submissions. written submissions in response to the & UPFRONT Interim Report. These comments contributed to the RECOMMENDATIONS development of our Interim Report, which The final report and ecommendationsr are was released in July 2016 and contained This is the first independent review in based on the broad range of stakeholder Canada to consider specific legislative approximately 50 issues and over 225 and expert comment received, academic options for further consultation. changes to both employment standards input, and research projects and and labour relations in a single process. The second phase of consultation was information provided by the Ministry Considering both acts simultaneously, initiated after the release of the Interim of Labour. within the broader context of workplace Report, and concluded in October and economic change, has provided 2016. We met with several groups a unique and original perspective to the issues. 04 THE CHANGING WORKPLACES REVIEW | Summary Report We were mandated to consider the need We found that there is no doubt that A Workplace Rights Act for reform through the lens of the changes there are many legitimate social and & Greater Awareness that have been occurring in the workplace economic concerns regarding vulnerable In the course of this review, we have and in the economy over a lengthy period employees in precarious employment. noted that there is a widespread lack of time. The recommendations are aimed The recommended changes seek, among of knowledge and understanding of at creating better workplaces in Ontario other things, to improve conditions for workplace rights under both Acts. where there are decent working conditions those who find themselves in these and widespread compliance with the law. circumstances. These changes would benefit workers The mandate also directed us to be “ This is the first directly, and employers and society in supportive of business in a changing independent review in general. Employees will benefit from a economy. The Ontario Chamber of Canada to consider specific better workplace and an enhanced ability Commerce and the Keep Ontario legislative changes to both to assert their basic rights. Employers will Working Coalition have said: “the goals of employment standards and benefit from happier and more productive economic growth and improved employee labour relations in a single workplaces and from more robust rights are not mutually exclusive.” There enforcement. Better enforcement will help is a need to take a balanced approach process. to ensure that employers that play by the to change, and we have endeavoured to Considering both acts rules do not experience unfair competition strike this balance by taking the bona fide from those that do not. Responsible, interests of all stakeholders into account simultaneously, within the law-abiding businesses, that represent a in developing recommendations. broader context of workplace vast majority of employers,