On Royal Assent (27 November 2017)
The following provision came into effect immediately:
5.1 (1) An employer shall not treat, for the purposes of this Act, a person who is an employee of the employer as if the person were not an employee under this Act.
(2) Subject to subsection 122 (4), if, during the course of an employment standards officer’s investigation or inspection or in any proceeding under this Act, other than a prosecution, an employer or alleged employer claims that a person is not an employee, the burden of proof that the person is not an employee lies upon the employer or alleged employer.
This is huge, for two immediate reasons:
- this will force an employer to document, before engaging a worker, the reasons why the work is being done by an independent contractor instead of an employee
- as the Canada Revenue Agency, in its payroll audits, follows provincial law in determining who an employee is, their work has gotten much easier as they can now demand to see such documentation to satisfy themselves as to such status
This gets better over the coming months.
1 January 2018
The following definition in s. 1(1) is amended to read:
(a) a person, including an officer of a corporation, who performs work for an employer for wages,
(b) a person who supplies services to an employer for wages,
(c) a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees, or
(d) a person who is a homeworker,
and includes a person who was an employee;
The portion in bold replaces the current provision relating to interns and other trainees, and it looks like it removes any remaining excuses employers might have to say that training doesn't count for being paid.
1 April 2018
The following definition is added to s. 1(1):
“difference in employment status”, in respect of one or more employees, means,
(a) a difference in the number of hours regularly worked by the employees; or
(b) a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status;
Why is this important? It's because of the new provisions that have been inserted into Part XII concerning equal pay for equal work:
41.2 In this Part, “substantially the same” means substantially the same but not necessarily identical.Similar provisions have also been inserted to prevent the use of employment agencies to try to make an end run around these prohibitions.
42.1 (1) No employer shall pay an employee at a rate of pay less than the rate paid to another employee of the employer because of a difference in employment status when,
(a) they perform substantially the same kind of work in the same establishment;
(b) their performance requires substantially the same skill, effort and responsibility; and
(c) their work is performed under similar working conditions.
(2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,
(a) a seniority system;
(b) a merit system;
(c) a system that measures earnings by quantity or quality of production; or
(d) any other factor other than sex or employment status.
(3) No employer shall reduce the rate of pay of an employee in order to comply with subsection (1).
(4) No trade union or other organization shall cause or attempt to cause an employer to contravene subsection (1).
(5) If an employment standards officer finds that an employer has contravened subsection (1), the officer may determine the amount owing to an employee as a result of the contravention and that amount shall be deemed to be unpaid wages for that employee.
(6) An employee who believes that their rate of pay does not comply with subsection (1) may request a review of their rate of pay from the employee’s employer, and the employer shall,
(a) adjust the employee’s pay accordingly; or
(b) if the employer disagrees with the employee’s belief, provide a written response to the employee setting out the reasons for the disagreement.
(7) If a collective agreement that is in effect on April 1, 2018 contains a provision that permits differences in pay based on employment status and there is a conflict between the provision of the collective agreement and subsection (1), the provision of the collective agreement prevails.
(8) Subsection (7) ceases to apply on the earlier of the date the collective agreement expires and January 1, 2020.
What does this mean? Quite simply, too many employers were claiming that anyone who was not a permanent full-time employee could therefore be hired at a discount. This was, frankly, abusive behaviour on their part which the law has sought to punish in recent times in both the legislature and the courts. I can also see the need to express all compensation in terms of specified hours per pay period for each employee, in order to determine an hourly rate in order to show that compliance is being achieved across all such classifications of employees, whether full-time, part-time, seasonal or casual. While I disagree with the present régime at Queen's Park on many things, this time I think they got it right.
Stay tuned. I'm sure there's going to be a lot of fun seeing this come into force.