EMPLOYMENT LEGISLATION

Unit 5: Understanding Employment Legislation

Module 1: Introduction to the Employment Standards Act (ESA)

  • Definition: The Employment Standards Act (ESA) establishes minimum terms and conditions of employment.

  • Significance:

    • Functions as a safety net for workers.

    • Parties (employers and employees) cannot agree to terms below the ESA minimum standards.

ESA Exemptions

  • Groups Not Covered by ESA:

    • Federally Regulated Employees:

    • Examples: Banks, airlines, broadcasting companies.

    • Reason for Exemption: Due to constitutional separation of federal and provincial regulation. These employees are primarily under the Canada Labour Code.

    • Students:

    • Participants in programs approved by colleges or universities may be exempt.

    • Secondary school students involved in authorized work programs by their school boards for skill training are also excluded.

    • Ontario Works Participants:

    • Individuals involved in community participation programs under the Ontario Works Act, 1997, are excluded until fully employed.

    • Foreign Government Workers:

    • Employees of embassies or consulates are not covered under the provincial ESA.

    • The State Immunity Act protects foreign governments from provincial employment law.

    • Supreme Court ruling in 1992 indicated that employment principles might apply through the Canada Labour Code.

    • Inmates in Work Programs:

    • Rights are limited for those in correctional institutions.

    • Programs aim to reduce the likelihood of re-offending post-release.

    • Simulated Job Workers:

    • Individuals working in jobs meant solely for rehabilitation.

    • Includes political, judicial, religious, or trade union office holders.

Enforcement of the ESA

  • Enforcement Mechanism:

    • Complaint-Based Process: Employees must file complaints to the Ministry of Labour about violations.

    • Civil Lawsuits: Can also serve as enforcement means; lawsuits act as deterrents against ESA violations.

ESA Statutory Minimums

  • General Responsibilities:

    • Employee complaints must be filed to address violations.

    • Employees must actively understand and report possible ESA breaches.

Greater Right or Benefit Principle

  • Application: If an employer provides better rights or benefits exceeding the ESA minimums, those provisions take precedence (e.g., higher overtime pay).

  • Employer Morale: Employers exceeding ESA standards often experience better employee retention and productivity.

  • Important Note: Employees cannot waive or agree to non-enforcement of statutorily protected rights.

Examples

  • Overtime Pay Example: Employees must receive at least 1.5 times their regular rate after 44 hours worked per week, not later hours specified by a contract.

Module 2: General Obligations

Key Sections of ESA

  • Section 15: Employers must maintain accurate employee records, beneficial for legal defense during disputes.

  • Section 2: Includes the Director's responsibility for posting ESA information in workplaces, although employers must also provide it to employees within 30 days of employment.

Wages and Payment Obligations

  • Section 11 & 12: Employers must pay wages as due and cannot unjustly withhold wages unless legally mandated (e.g., court order/garnishment).

  • Deductions: Not permissible for poor work quality or wrongful actions; any overpayment must be carefully reclaimed without significantly impacting the employee’s finances.

  • Minimum Wage Regulations: Different groups have varying minimum rates (e.g., students). Currently:

    • Ontario Adult Minimum Wage: $17.20/hour

    • Student Minimum Wage: $16.20/hour.

The Three-Hour Rule (Section 21.2)

  • Compensation Requirement: Employees reporting for work who work less than three hours must be compensated as follows:

    • Greater of:

    • Pay for three hours at regular rate, or

    • Regular wages for actual hours worked plus wages equal to regular rate for up to three hours.

Public Holidays and Leaves

  • Public Holiday Definition: Entitles employees to public holiday pay under specified conditions, i.e., working the last day before and the first day post-public holiday.

  • Public Holidays Calculation: Depends on average wages earned in the four weeks prior to the public holiday.

Module 3: Probationary Periods

  • Definition: A period for evaluating new employees' performance, commonly interpreted as three months under ESA.

  • Termination: Employees under probation can be terminated with minimal notice (one week) if not contractual.

  • Longer Probationary Periods: Must be explicitly stated in employment contracts.

Module 4: Leaves

Types of Recognized Leaves under ESA

  • Pregnancy Leave: Up to 17 weeks; requirements include having been employed for at least 13 weeks prior to the expected due date. Extensions may apply in specific cases.

  • Parental Leave: Following childbirth or adoption, parents may take up to 61 or 63 weeks depending on circumstances.

  • Family Medical Leave: Up to 28 weeks to care for seriously ill family members.

  • Sick Leave: Unpaid up to three days; based on employment tenure.

  • Domestic Violence Leave: Up to 10 days of paid leave, 15 weeks unpaid if experiencing violence.

  • Bereavement Leave: Two days for specific family members after death.

  • Reservist Leave: Unpaid leave for reservists called to active duty under specific conditions.

Module 5: The Occupational Health and Safety Act (OHSA)

Minister's Responsibilities

  • Promote workplace health and safety, enforce compliance with safety standards.

Employers' Obligations

  • Provide safe working environments and proper tools, under OHSA.

Right to Refuse Unsafe Work

  • Employees can refuse work that poses a danger, e.g., faulty machinery.

Employee Duties

  • Follow safety procedures, report unsafe conditions.

Offences and Penalties Under OHSA

  • Describe penalties for non-compliance, including fines and possible imprisonment for serious violations.

Module 6: Harassment and Violence in the Workplace

Definition and Policies

  • Harassment encompasses unreasonable conduct affecting an individual’s demeanor with results potentially harming their psychological wellbeing.

  • Employers are required to have procedures in place for reporting, investigating and resolving workplace harassment claims, including special provisions under Bill C-65 (federally regulated employers).

Bill 132 (Amendments to OHSA)

  • Expansion of Definitions: Now includes sexual harassment; mandates employer responsibilities in preventing and addressing harassment.

Module 7: The Pay Equity Act (PEA)

Key Principles

  • Employers must ensure equal pay for work of equal value between genders, including compliance-based obligations.

  • Distinction made between equal pay for equal work versus equal pay for work of equal value

  • Challenges remain in achieving true gender parity in pay.

Implementation Steps

  1. Define employment establishments.

  2. Identify job classes equivalently.

  3. Evaluate jobs for gender predominance.

  4. Select a gender-neutral evaluation system for compensation.

  5. Post and adjust pay structures ensuring compliance.

Module 8: Recent Amendments to ESA (Effective June 21, 2024)

  • Requirements for Vacation Pay: Written agreements are mandated.

  • Job Postings: New obligations include expected salary disclosures.

  • Social Responsibility: Employers barred from requiring sick notes for sick leaves up to three days, shifting to self-attestation when necessary.