Jordan Kirkness is a labour and employment lawyer at Baker McKenzie in Toronto.
The pendulum is swinging farther and faster than ever and we are all paying the price.
Last week, Ontario Premier Doug Ford tabled Bill 47, proposing to repeal virtually all of the previous government’s Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Workers’ rights advocates are outraged and many in the business community appear to be relieved.
Ontario employers have faced significant challenges as a result of Bill 148. Some of the previous government’s incremental changes were predictable – more leave time, more paid vacation for longer service employees and easier access to employee information for unions seeking to organize. But several more fundamental changes presented real difficulties – adding paid leave time, and equal pay rates for part-time employees. For many employers, the plan to increase minimum wage by more than 30 per cent in fewer than three years has been particularly challenging.
Bill 148 appeared to be driven by a political timetable. For example, under the new formula for calculating public holiday pay, many part-time employees became entitled to full-time public holiday pay. Surely this was an oversight. It was corrected six months later with a regulation that restored the previous formula, but it illustrates the fact that the legislature was moving too quickly, failing to carefully consult the business community and consider the consequences of their proposals before making law.
As history has shown us repeatedly, when politics trump sound public policy, the issues turn into a game of political table tennis, as was the case with Bill 148. So, the stage was set for the current government to repeal virtually all of Bill 148. “The party is over,” Mr. Ford said, and the message of simply rejecting almost everything – all of the previous government’s labour and employment reforms – seemed irresistible. Many employers welcomed the idea, hoping to recoup at least some of the cost increases that hurt their bottom line.
But the fact is that most employers will not recoup their Bill 148 costs. The bill has forced many employers to make strong commitments. There will be some relief – the repeal of Bill 148′s “equal pay” provisions will reduce certain costs associated with temporary and part-time workers, and the Ontario Labour Relations Board will spend less time redefining who belongs to union bargaining units. But employers who try to restore the pre-Bill 148 status quo will damage workplace morale and may run the risk of grievances or constructive dismissal claims.
Most employers will be forced to follow through on their Bill 148 commitments, including a minimum wage of $15 an hour, which had been scheduled to commence on Jan. 1, 2019. The repeal of Bill 148 will do very little to assist employers who are suffering from increased labour costs – at least in the short term.
What businesses, workers and other stakeholders would most benefit from is a complete review of labour and employment legislation, considering the modern workplace as affected by technology and globalization. The previous government purported to do this, but the changes were piecemeal and ultimately did not address some of the most pressing questions, such as clarifying the extent to which freelancers – so prevalent in the “gig economy” – are entitled to minimum employment standards, or addressing the issue of whether employees have a “right to disconnect” their mobile devices outside of working hours (as was recently legislated in France).
To effectively accomplish a complete review of labour and employment legislation, our legislature must engage in genuine debate and fair compromise. If our legislators could truly engage on the key issues before passing their bills – balancing fair employment standards and promoting economic prosperity – then we could make meaningful progress and avoid the unnecessary costs associated with the dramatic legislative changes that have become commonplace.
What is so unfortunate about the current political environment is that it forces legislators to overlook practical compromises. For example, a clear definition of “related employer” under the Employment Standards Act could protect against inadvertent circumvention of employment standards, and yet provide employers with some clear guidance as to whether they may become jointly liable for employment standards breaches in workplaces or projects involving multiple corporations. And on the issue of sick leave, a more balanced set of rules for employers on requesting doctor’s notes would help to ensure it is not misused (without overburdening our medical service providers).
Ontario employers are suffering from political whiplash. They are looking forward to a day when legislators don’t just seek to win the popular vote at any cost but instead seek to understand the merits of their opponent’s point-of-view, strike a genuine compromise and properly address real and emerging workplace issues. That way, we can avoid the exorbitant costs of the current political climate – a climate of talking past one another and failing to see the bigger picture.
Perhaps then we will effectively strike a balance between workers' rights and economic prosperity.