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HomeMy WebLinkAboutCOD-001-18Clarington If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee Date of Meeting: January 2, 2018 Report Number: COD -001-18 Resolution: GG -027-18 File Number: By-law Number: Report Subject: Bill 148, Fair Workplaces, Better Jobs Act, 2017 Recommendation: That Report COD -001-18 be received for information. Municipality of Clarington COD -001-18 Report Overview Page 2 This report is intended to provide information for Council regarding Bill 148, Fair Workplaces, Better Jobs Act, 2017. 1. Background 1.1 Bill 148 Legislation Timelines Bill 148, the Fair Workplaces, Better Jobs Act, received Royal Assent on November 27, 2017. Some of its provisions came into force upon Royal Assent. Provisions that amend the Employment Standards Act, and the Occupational Health & Safety Act come into force on January 1, 2018, April 2018 and January 1, 2019. The attached table #1 outlines the provisions of Bill 148 and the general changes to the Employment Standards Act (ESA), Labour Relations Act (LRA), and the Occupational Health & Safety Act (OHSA). Late changes to the proposed Bill included exemptions to the Volunteer Firefighters comparison to full time positions for equal pay, and on call provisions for fire and snow removal services. The exemption on the Volunteer Firefighters full time comparison will be dealt with through regulations. 1.2 Impact of Bill 148 Throughout the consultation process of Bill 148, there were concerns raised by the Municipal sector Associations such as AMO, MFOA, OHMRA, and the OAFC, regarding the negative and costly effect of the proposed legislation. The small business industry also raised many concerns regarding the financial impact of this Bill. The timing of the legislation was also seen being processed more quickly than expected, particularly considering the wide potential impact and changes to three existing pieces of legislation. The changes to the legislation for each of the Acts are outlined in Attachment #1, compiled from information circulated by Hicks Morley, the Province, OMHRA, and other Associations. It notes the clauses of the particular Act that has changed with Bill 148, the effective date, and whether the preliminary costing has been considered by Clarington. The impacts of the Bill are spread predominantly over 2018 and 2019. There are some conditions that are not triggered on the effective dates if they are covered by prevailing collective agreements, however any of those provisions will be over-ridden by the legislation at January 1, 2020, regardless of the collective agreement conditions. The Municipality will be entering negotiations for the 2018 and future term, and will be considering the implications of the specifics of the legislation during deliberations. The operational impacts such as scheduling, on-call implications, cancellation of shifts, absence coverage for the additional 2 ESA days with no medical documentation, extended leave and new leave provisions and the related coverage and support document requirements, will all be worked out as the occasions arise going forward. It is difficult to qualify and quantify some of the subtle and event driven impacts, in advance of Municipality of Clarington Resort COD -001-18 Paae 3 the experience. The estimated cost of Bill 148 on the known areas of impact has been assessed as referenced below. 2. Financial Consideration The provisions of Bill 148 that are known to affect areas that can be quantified and qualified have been assessed. There may be significant impacts that cannot be determined at this time. Further information will be forthcoming as the legislation is implemented. The most widely impacted department with this legislation is Community Services, as it employs the most part-time positions, however all departments are impacted in some way. The areas known to be impacted financially at this point for 2018 are as follows: a. Part-time i. Minimum Wage $ 62,343 ii. Vacation Pay Increase from 4% to 6% $ 42,088 iii. 2 Paid ESA Emergency Days $ 77,003 b. On -Call & Contingencies $ 24,117 c. Full-time ESA Emergency Days: $99,449 Estimated 2018 Cost Impact Budgeted 1305,000 The 2019 estimated costs for the above totals 242 635 At this point the costs are estimates based on past activities, and/or known circumstances. It is realistic to predict that the direct and indirect costs associated with the legislation will escalate over time and will be absorbed into budgets as they are experienced. For the 2018 Budget, the Director of Finance has included the total of $305,000 based on the above best estimates at this point. 3. Concurrence All Department Heads have discussed and reviewed the provisions of Bill 148 for potential implications to the operational and budgetary impact on their Department. 4. Conclusion It is respectfully recommended that Report COD -001-18, regarding Bill 148, Fair Workplaces, Better Jobs Act, 2017, be received for information. Municipality of Clarington Resort COD -001-18 5. Strategic Plan Application Not Applicable Submitted by: Reviewed by: Paae 4 Marie Marano, H.B. Sc., AMCT., Andrew C. Allison, B. Comm, LL.B Director of Corporate Services CAO Staff Contact: Lisa Wheller, Human Resources Manager Ext 2205 or Iwheller@clarington.net Attachment 1 — Bill 148 Provisions December 14, 2017 'Bill 148 Provisions COD -001-18 Attachment # 1 Financial =CATEGORY GENERAL CLAUSE CHANGES EFFECTIVE DATE Impact Assessed Y/N Item Employment Standards Act, 2000 ESA Changes 1 Employee Classification Prevent misclassification of employee as independent contractors. November 27, 2017 N Onus on Employers to prove an individual is independent contractor and not an employee 2 Parental Leave Increase parental leave by a total of 26 weeks: December 3, 2017 N ' from 35 weeks to 61 weeks for employees who to pregnancy leave, and • from 37 weeks to 63 weeks for employees who did not. adjustment to timing of when leaves begin and end - in line with E.1. Act (once election made - no change) 3 Critical Illness Leave Replaces Critically III Child Care Leave, to provide a new leave with two entitlements: N • up to 37 weeks in a 52-week period for care of critically ill family member -child " up to 17 weeks in a 52-week period for support to critically ill adult family member 4 Minimum Wage Increase to $14.00 January 1, 2018 Y Increase to $15.00, thereafter increases based on CPI January 1, 2019 Y 5 Public Holiday Pay New formula to divide wages earned in pay before the holiday by # days worked January 1, 2018 N Substitute holiday where an employee worked or it occurred on a day off - written statement required Y setting out the replacement date. 6 Vacation with Pay Vacation pay will increase to 3 weeks paid vacation or 6% of wages where the employment is 5 years or January 1, 2018 Y more. 7 Leaves of Absence a) Pregnancy Leave - from 6 weeks up to 12 weeks for miscarriage or still -birth January 1, 2018 N b) Family Medical Leave & Caregiver Leave - for family member with risk of death within 26 weeks - increased leave from 8 weeks to 28 weeks within a 52 week period. Caregiver Leave 8 weeks per N calendar year per member. Both leaves could extend to person deemed "like" family. c) Crime -Related Child Disappearance Leave and Child Death Leave - after 6 months of employment - N entitlement to up 104 weeks of leave without pay. d) Domestic or Sexual Violence Leave - after 13 weeks of employment - for incident or threat of violence for employee or their child, annually - up to 10 days leave and up to 15 weeks of leave, with the first 5 N days of leave paid. e) Personal Emergency Leave - all employees, after 1 week of employment - first 2 days of the current unpaid 10 day entitlement, are paid. Employers are prohibited from requiring a medical note for any ESA Y days. 8 Record Keeping Retention period extended from 3 years to 5, and requirement to now keep records of on-call schedules, January 1, 2018 cancellations of shifts, on call periods, vacation pay and other matters. N 9 Temporary Help Agency Temporary Help Agency must provide 1 week written notice or pay -in -lieu where the assignment is January 1, 2018 N/A terminated early. 10 Complaint Filing Repeal of Sec.96.1 of ESA - employee no longer required to inform employer of basis of a complaint to January 1, 2018 ESA, before an employment standards officer is assigned to investigate. N/A 11 Additional Amendments Range of other changes to ESA including: expansion of related employer provision, electronic January 1, 2018 agreements, penalties for non-compliance, wage collection measures, & revoking "recognition" of N/A employers who meet prescribed criteria for compliance. 12 Equal Pay/Equal Work a) Difference in Employment Status ( i.e. Part-time vs Full-time) Prohibits payment of different wages because of difference in employment status (for permanent, April 1, 2018 Y temporary, casual or seasonal) if performing substantially the same work, with substantially the same skill, effort and responsibility, under similar working conditions. ( substantially the same does not mean necessarily identical) ( Differential pay rate can be justified on objective grounds including seniority, merit or measured quantity/quality of production) ( Employees have a right to request a review of their pay rate without reprisal) A Collective Agreement in effect on April 1, 2018 with different rates based on employment status prevails until the expiry of the C.A. or January 1, 2020. b) Assignment Employee Status Temporary help agency employees assigned to a client must be paid the same rate as an employee of the N client, where they perform substantially the same work. (with same criteria as above) 13 Change Work Location After 3 months employment, employees can request in writing, a change in their schedule or work location January 1, 2019 N/A or Schedule - employer must discuss and notify of decision in reasonable time, with reasons provided for any denial. 14 Scheduling a) Three -Hour Rule January 1, 2019 Employees who regularly work more than 3 hours - where they work less than 3 hours in a shift, must be N paid the greater of 3 hours regular rate or amount earned while working plus remaining time at regular rate. ( except where work stopped due to external forces) b) Minimum On -Call Pay reviewing On-call employees not called in, or work less than 3 when called in - paid greater of 3 hours regular rate, or amount earned plus remaining time at regular rate. process Does Not Apply - employees on call for essential public services and not required to work. - including Fire and Snow Removal Collective agreements in place on January 1, 2019 prevail until the earlier of the expiry or Jan.1,2020 c) Right to Refuse Work Employees have a right to refuse work or be on call on days not scheduled if the request is made less than 96 hours before start of shift - unless for emergency or threat to public safety or delivery of essential N public service. Collective Agreements prevail until 2020 d) Minimum Cancellation Pay December 14, 2017 'Bill 148 Provisions COD-001-18 Attachment # 1 Financial CATEGORY GENERAL CLAUSE CHANGES EFFECTIVE DATE Impact Assessed Y/N Cancelling a scheduled work day or on-call within 48 hours of start, requires payment of 3 hours work - assess on except where cancelled for weather-dependent conditions, or power failure, fire, lightening etc. outside of actual Employer's control, causing cancellation. ...Page 2 claims Collective agreements in place on January 1, 2019 prevail until the earlier of the expiry or Jan.1,2020 e) Limitation on Payment N/A Employees are only entitled for payment for 3 hours in respect of one scheduled day of work or on call period - i.e. where cancelled for outside causes Labour Relations Act, LRA 1995 January 1, 2018 N/A 15 Employee Lists If Trade Union can establish 20% support in workplace - subject to certain requirements, it can apply to the OLB to order employer to provide an employee list with name, phone # & personal email. Employer and Union have obligations regarding confidentiality of info. 16 Remedial Certification If OLRB is satisfied of contravention of the Labour Relations Act and Union was not able to get 40% support, or if the true wishes of the employees are not likely reflected in a representation vote, the OLRB is required to automatically certify the Union as the bargaining agent of the employees. January 1, 2018 17 Just Cause Protection Expanded January 1, 2018 Just cause protection for employees - employer will be prohibited from discharging or disciplining an employee without just cause during the period of a lawful strike/lockout. Also no discipline or termination except for just cause once a trade union has been certified, until a new collective agreement is entered into. 18 Bargaining Unit Structure Review January 1, 2018 a) Consolidation after Certification For a newly certified bargaining unit - within 3 months of certification - either employer or Union can apply to the OLRB for a review of the structure of the unit, and the same union already represents employees with the employer, the Board may: * order the consolidation of the bargaining units, * amend any certification order * order the existing collective agreement will apply to the consolidated bargaining unit, * declare an employer is no longer bound by an existing collective agreement, * amend a collective agreement including expiry dates and seniority provisions, * determine the terms and conditions that apply until a C.A. for the consolidated unit is set b) Joint Review by Parties Employer and Trade Union ( or Council of Trade Unions) that represent multiple units may jointly agree to review the structure of the bargaining units. The parties may agree to changes, with OLRB consent, including: * consolidating bargaining units * amending descriptions of bargaining units * make existing collective agreement apply to consolidated units * amend collective agreements, including expiry & seniority 19 Card-Based Certification - Certain Industries - Building Services, Home Care and Community Services Industries January 1, 2018 Certification in theses industries, and temporary help industry can elect to have its application on a card- based vs existing vote-based certification process. OLRB will dismiss application if less than 40% of employees are Union members. 20 First Collective Agreemen a) Educational Support January 1, 2018 Ministry of Labour will provide educational support in labour relations and collective bargaining upon request of either party to a 1 st C.A. b) 1st Collective Agreement Mediation Parties can apply for appointment of a mediator and an OLRB-managed process. The applying party submits a list of disputed items; 2nd party submits their list in 5 days, and Minister appoints mediator within 7 days of receiving application. After mediator is appointed - time limits apply before lawful strike or lockout / when the OLRB might decertify or displace application / when a party seeks OLRB to direct settlement of a 1st agreement by mediation-arbitration. c) 1st Agreement Mediation-Arbitration If directed by OLRB, parties agree to single mediator-arbitrator; submissions are made under time limits. No strike or lockout where C.A. is being settled by mediation-arbitration. All rates & other terms of employment continue until the 1st C.A. is determined. C.A. would be settled for a 2 year period from date it is settled. 21 Successor Rights LRA provisions expanded to include changes to building services providers - services to building owners related to cleaning services, food services & security services. Also criteria on sale of business. January 1, 2018 22 Right to Return from Strike or Lockout Time limit during which a striking employee can return to work (6 months) is removed. Just cause protection during strike/lockout, and employees have a right to challenge any refusal to reinstate them to employment following stake/lockout - through the grievance/arbitration process. 23 Remedial Powers OLRB OLRB power to issue interim orders expanded JJanuary 1, 2018 24 Logistics of Votes OLRB permitted to conduct votes outside the workplace, and electronically or by telephone. JJanuary 1, 2018 25 1FInes Increased maximum fines: Individuals - from $2,000 to $5,000 / Employer from $25,000 to $100,000. JJanuary 1, 2018 Occupational Health & Safety Act ' November 27, 2017N/A December 14, 2017 'Bill 148 Provisions COD-001-18 Attachment # 1 Financial CATEGORY GENERAL CLAUSE CHANGES EFFECTIVE DATE Impact Assessed Y/N 26 =El,-v.t,-d Employer cannot require wearing heels unless it is required for safety - except entertainment and advertising industry.