Employment and Financial Services

On 7 March 2016 the Senior Managers and Certification Regime (SM&CR) was introduced to improve accountability in the financial services sector.   The SM&CR applies to UK banks, building societies, credit unions, PRA designated investment firms and branches of foreign banks operating in the UK.  It consists of three elements: the Senior Managers Regime (SMR), the Certification Regime and the Conduct Rules, all of which have an impact on the employment of individuals.   It is proposed to extend the regime to all firms regulated or authorised under the Financial Services and Markets Act 2000, although the exact date for that implementation has not been finalised.

Senior Managers Regime

Under the SM&CR relevant firms must allocate responsibilities to senior managers to ensure there is an individual senior manager accountable for every aspect of regulated activity within relevant firms. Any application for approval as a senior manager must be accompanied by a statement of responsibility (SOR), which sets out the areas of a firms regulated activities that each senior manager is responsible for.  The Senior Manager will be responsible for their particular area, and will have to show that they took all reasonable steps to prevent any issues from arising.

New rules on regulatory references also apply to firms covered by the SM&CR. The purpose of the regulatory references is to make it harder for senior staff with poor conduct records to be “recycled” between firms, so that, where a firm is proposing to hire a candidate for certain senior management roles a reference must be sought from all the candidate’s employers over the preceding six-year period. A firm who receives a request for a reference must respond within six weeks using a mandatory template. The reference need only disclose matters where a firm has concluded particular points – and this would not cover matters where disciplinary issues have come to light but a firm has not yet reached a conclusion or where the individual has resigned prior to the completion of the investigation or disciplinary process.  This will also affect the terms of any settlement agreement as employers are prohibited from entering into an agreement with the employee about the information in the regulatory reference. Employers who are regulated also have a duty to update regulatory references within six years of the employee leaving the business where they become aware of information which would have affected the original drafting.

Certification Regime

The Certification Regime extends the application of Financial Conduct Authority (FCA) and Prudential Regulatory Authority (PRA) to individuals whose involvement in the firm’s activities might involve a risk of significant harm to the firm or its customers. The relevant firm must undertake the assessment of fitness and propriety prior to appointment to the role and therefore, any interview questions should be sufficiently probing to establish fitness and propriety.  The assessment should also be made an annual basis and this should therefore form the basis for any employment appraisal.

Conduct Rules

The Conduct Rules are an important component of the regime to increase the accountability of senior individuals. The rules will now apply directly to almost all staff within the relevant firm. Only those staff  who are considered  ancillary staff (i.e. whose role is not specific to the financial services business of the firm, for example, catering staff) will not be covered. The rules are intended to provide a framework against which the regulators in the UK (the FCA and the PRA) can judge an individual’s actions as part of the general supervision of a firm.  Relevant firms must notify the regulators when they have taken formal disciplinary action against a person for breach of the conduct rules.  This will require the employer to ensure that the disciplinary and regulatory requirements combine.  Firms must also ensure that all staff who are subject to the rules are aware of them and how they apply to their jobs. This includes delivering suitable training to provide a broad understanding of all of the rules and a deeper understanding of the practical application of the specific rules which are relevant to the employee’s individual work.

Whistleblowing

Finally, the regulators have introduced new whistleblowing rules which apply to the Financial Services sector. The aim of the rules is to encourage an environment in which individuals feel able to raise concerns about practices without fear of detriment or dismissal. The rules apply to UK regulated banks, building societies and credit unions with total gross assets exceeding £250 million, PRA designated investment firms, and insurance and re-insurance firms regulated by the PRA. In relation to other regulated entities, the rules will act as non-binding guidance.  In summary the whistleblowing  rules require that relevant firms should:

  • put internal whistleblowing arrangements in place;
  • inform their UK based employees that they can blow the whistle to the FCA or the PRA regardless of whether they have made an internal report;
  • require its appointed representatives and tied agents to tell their UK based employees about the FCA whistleblowing service;
  • include a specified passage in settlement agreements clarifying that nothing in the agreement prevents an employee or ex-employee from making a protected disclosure;
  • allocate responsibility for whistleblowing under the SMR to a “whistleblowers’ champion”;
  • inform the FCA if it loses an employment tribunal case with a whistleblower; and
  • present a report on whistleblowing to its board at least annually.

Ontario Bill 148 Amendments and Public Holidays: What Else Has Changed?

Under the Ontario Employment Standards Act, 2000 (“ESA”) Ontario has nine public holidays: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day (December 26).   Nothing in Bill 148 has changed that.

Likewise, an employee who would otherwise be eligible to take the public holiday may still agree to work on it.  The ESA requires the employee’s agreement to be obtained “electronically” (for example, confirmation by email) or “in writing” signed by the employee.

Employees who work on a public holiday are entitled to receive:

  • premium pay at 1.5 times their regular rate for all hours worked on the public holiday, plus public holiday pay, in which case they are not entitled to a substitute holiday;

OR

  • their regular wages for all hours worked on the public holiday, plus a substitute holiday for which they must be paid public holiday pay.

A substitute holiday must be scheduled for a day that is no later than three months after the public holiday for which it was earned.  Alternatively, if the employee has agreed (again “electronically” or “in writing”), the substitute holiday may be scheduled up to 12 months after the public holiday.

So, what’s new?

A Bill 148 reform that took effect on January 1, 2018 imposes a new obligation on employers when an employee working on a public holiday will receive regular wages for that day and a substitute holiday off at a later date.

As a result of Bill 148, the ESA now requires the employer to provide the employee with a written statement containing the following information: (i) the public holiday that is being substituted (i.e., the holiday the employee will be working); (ii) the date of the substitute holiday; and (iii) the date the written statement was given to the employee.  Note that the written statement must be given to the employee before the public holiday.

For further information about Bill 148 amendments and the ESA public holiday provisions, see my January 6, 2018 post on the new formula for calculating public holiday pay.

Ontario Bill 148 Amendments and Public Holidays: What Has Changed?

Bill 148 reforms have ushered in changes to the public holiday provisions of the Ontario Employment Standards Act, 2000 (“ESA”). This post outlines the new formula for calculating public holiday pay that came into effect on January 1, 2018.

Full time, part time, permanent and fixed-term employees can all still qualify for the public holiday entitlement.  No matter how recently employees were hired, they will be entitled to the nine public holidays listed in the ESA if they worked their last regularly scheduled day of work before the public holiday and their first regularly scheduled day of work after the public holiday.  The Ministry of Labour calls this the “last and first rule”.  Bill 148 did not alter this.

However, Bill 148 introduced a change in the formula for calculating an employee’s pay for the public holiday.  Subject to the following exceptions, the amount of public holiday pay to which an employee is entitled is all of the regular wages earned by the employee in the pay period before the public holiday, divided by the number of days the employee worked in that period.

Exception 1:  For employees on personal emergency leave (“PEL”) or vacation – or combination of  both – for the entire pay period before the holiday, public holiday day pay is based on their regular wages earned in the pay period before the start of PEL and/or vacation, divided by the number of days worked in that pay period;

Exception 2: For new employees who were not employed during the pay period before the holiday, public holiday pay is based on their regular wages earned in the pay period that includes the public holiday, divided by the number of days the employee worked in that period.

Note that the definition of “regular wages” under the ESA does not include overtime pay, vacation pay, public holiday pay, premium pay, personal emergency leave pay, domestic or sexual violence leave pay, termination pay, or severance pay.

Watch for my next post on a new obligation Bill 148 imposes on employers when employees work on a public holiday.

New Version 7.0 of Ontario Employment Standards Poster Now Available

The Ontario Employment Standards Act, 2000 (the “ESA”) is a key employment law statute setting certain minimum terms and conditions of employment applicable to most employees in Ontario.

Employers covered by the ESA are required to post “the most recent version” of the Ontario Ministry of Labour poster about rights and obligations under the ESA in the workplace where it is likely to come to the attention of employees.  Employers must also provide employees with a copy of the poster within 30 days of their hire date.

The poster must be displayed in English. If the majority language of a workplace is a language other than English, and the Ministry has published a version of the poster in that language the employer is required to post a copy of the translation next to the English version of the poster.  Employees must also be provided with available translations of the poster, upon request.

The recent Bill 148 reforms to the ESA have rendered the previous version of the poster out of date.  As a result, the Ministry has published a new “streamlined” version 7.0 of the poster on its website.  Copies of the poster can be downloaded in pdf format and printed free of charge.  Currently only an English version and a French version are available.  However, it is likely that the Ministry will translate the poster into other languages, as it did with outdated version 6.0.

Employers covered by the ESA must ensure that version 7.0 of the poster is posted in the workplace and a copy distributed to every employee in Ontario immediately.  Failure to do so would be in violation of the ESA and could expose employers to enforcement action.

La présomption d’innocence peut-elle s’opposer au licenciement d’un salarié fondé sur des faits visés par une procédure pénale ?

La Cour de cassation a été saisie d’un dossier concernant un salarié de la société Euro Disney, qui avait été licencié à la suite de la découverte, par son employeur, et dans le cadre d’une enquête pénale, du fait que celui-ci avait acheté à l’un de ses collègues des stupéfiants.

En effet, au printemps 2012, une procédure d’instruction avait été ouverte pour rechercher des faits d’infraction à la législation sur les stupéfiants au sein du parc d’attraction. Plusieurs salariés avaient alors été mis en cause. Dans le cadre de cette procédure pénale, la société Euro Disney s’était constituée partie civile, ce qui avait permis à son avocat d’avoir accès à une copie du dossier pénal. Celui-ci contenait notamment un procès-verbal d’audition du salarié, qui reconnaissait avoir régulièrement passé des commande de résine de cannabis auprès de l’un de ses collègues. Le salarié n’avait cependant pas fait l’objet d’une quelconque condamnation, ni même d’une mise en examen.

La société Euro Disney a cependant notifié au salarié son licenciement pour faute le 24 septembre 2013. La société a fondé ce licenciement sur le fait que le comportement du salarié avait facilité et participé au développement d’un trafic de stupéfiants au sein de l’entreprise. Par ailleurs, la société a reproché au salarié d’avoir méconnu son obligation de sécurité à l’égard des autres salariés de l’entreprise.

Le salarié a contesté son licenciement, en invoquant la nullité de celui-ci. A l’appui de ses prétentions, le salarié faisait valoir la présomption d’innocence, au titre de liberté fondamentale dont la violation est sanctionnée par la nullité de l’acte incriminé (ici, le licenciement). Il estimait que son licenciement, fondé sur des déclarations faites lors d’une audition auprès des services de police dans le cadre d’une enquête pénale, alors qu’il était en situation de contrainte, méconnaissait les libertés fondamentales que sont la présomption d’innocence et le droit de se défendre en justice.

La Cour d’appel a fait droit aux demandes du salarié, et ordonné la réintégration du salarié sous astreinte. La société a formé un pourvoi en cassation à l’encontre de l’arrêt de la Cour d’appel.

La Cour de cassation avait la lourde charge de répondre à un certain nombre de questions. Le salarié pouvait-il se prévaloir de la présomption d’innocence ? La société pouvait-elle fonder le licenciement sur des faits découverts à l’occasion de la consultation du dossier pénal d’instruction ? Le licenciement était-il justifié, alors que le salarié n’avait fait l’objet d’aucune condamnation ?

Dans l’arrêt du 13 décembre 2017, la Cour de cassation balaie d’un revers de main ces questions, et affirme très clairement que :

  • « le droit à la présomption d’innocence qui interdit de présenter publiquement une personne poursuivie pénalement comme coupable, avant condamnation, d’une infraction pénale n’a pas pour effet d’interdire à un employeur de se prévaloir de faits dont il a régulièrement eu connaissance au cours d’une procédure pénale à l’appui d’un licenciement à l’encontre d’un salarié qui n’a pas été poursuivi pénalement », et
  • « la procédure disciplinaire est indépendante de la procédure pénale, de sorte que l’exercice par l’employeur de son pouvoir disciplinaire ne méconnaît pas le principe de la présomption d’innocence lorsque l’employeur prononce une sanction pour des faits identiques à ceux visés par la procédure pénale ».

Dans la mesure où la société Euro Disney avait eu régulièrement connaissance des faits dans le cadre de la procédure pénale (ce qui n’était pas contesté), c’est légitimement qu’elle a pu s’en prévaloir dans le cadre de la procédure de licenciement, procédure disciplinaire distincte de la procédure pénale.

Le licenciement intervenu n’était donc pas contraire, ni à la présomption d’innocence, ni à la liberté fondamentale du salarié d’exercer ses droits de la défense.

A noter cependant que notifier un licenciement pour des faits visés par une enquête pénale n’est pas sans risque. En effet, une décision de relaxe peut, dans certains cas, venir remettre en cause la réalité des faits ayant donné lieu au licenciement. Ces licenciements doivent donc faire l’objet d’une attention particulière.

French employment code reform: Focus on collective negotiation

On September 22, 2017, French President Emmanuel Macron signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

These texts have now been supplemented by a further ordinance (published in the French Official Journal on December 21st, 2017) and by a number of decrees (published over the last few weeks).

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our third article on the amendments relating to collective negotiation.

The main aspects of the Reform regarding collective negotiation are as follows.

1. A new hierarchy of rules

As from 1 January 2018, as a matter of principle, collective agreements entered into at the company level will prevail over collective agreements entered into at the sector-wide level, except in limited areas specifically enumerated by law in which collective agreements entered into at sector-wide level imperatively prevails or may prohibit company collective agreements from providing for different stipulations.

The mandatory set of rules will include in particular minimum remuneration, classification, complementary welfare, equality between men and women at work, and certain measures relating to working time, fixed-term and temporary contracts and trial periods. For these areas, collective agreements entered into at sector-wide level will automatically prevail over company collective agreements.

2.  Collective negotiation is simplified in companies in which no union delegates have been appointed

As a principle, collective agreements must be entered into with “majority” trade unions, i.e. trade unions which are considered as sufficiently representative in companies (this being determined by the results of the most recent elections of employee representatives at each company level). However, union delegates may generally only be appointed in companies employing at least 50 employees, this preventing collective negotiation in smaller companies.

French law already provided for “alternative” negotiation options available for companies with a lower headcount (e.g. negotiation with employee representatives or with an employee appointed by a trade union). These possibilities have been broadened by the ordinances, which have even created the ability for employers in companies with less than 11 employees to propose for ratification by its staff a draft collective agreement established unilaterally by the employer.

3.  A broader range of areas of negotiation is available

New areas of negotiation are now available at company level, such as the themes and periodicity of collective negotiation.

In addition wider publicity of company collective agreements will be effected , as they will be made available on a French public website.

Who, me? Could be: SCC extends protections regarding employment under the BC Human Rights Code

In a landmark case, the Supreme Court of Canada has extended the protection it offers to employees from discrimination in the workplace to encompass discrimination perpetrated by an individual with a different employer: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62.

This case answers in the affirmative the question of whether the BC Human Rights Code applies to discrimination perpetrated by someone other than the complainant’s employer or superior.  The decision will have significant implications for employers and all those involved in the workplace.

The case involved two individuals who worked for two different employers at the same worksite.  Mr. Schrenk was employed by a contracting company (Clemas) as the site foreman.  Mr. Sheikhzadeh-Mashgoul was a civil engineer working for another consulting company and was the site administrator in charge of supervising the work done by Clemas. Schrenk repeatedly made a number of highly derogatory statements to Sheikhzadeh-Mashgoul and others about the latter’s sexual orientation, religion, and place of birth. Subsequently, Sheikhzadeh-Mashgoul filed a complaint of discrimination with the British Columbia Human Rights Tribunal, alleging that Clemas and Schrenk had discriminated against him under section 13 of the Human Rights Code.

Clemas and Mr. Schrenk filed an application to dismiss the complaint, arguing that the Tribunal lacked jurisdiction over the matter as there was no relationship of employment between Sheikhzadeh-Mashgoul and Clemas/Schrenk.  Schrenk was neither Sheikhzadeh-Mashgoul’s employer nor his superior in the workplace. The Tribunal rejected the application to dismiss.  Mr. Schrenk’s petition for judicial review was dismissed by the BC Supreme Court.  Mr. Schrenk was successful in his appeal to the British Columbia Court of Appeal, however, which held that the Tribunal’s jurisdiction was limited to addressing complaints against those who had the power to inflict discriminatory conduct as a condition of employment.  Since Schrenk was not in a position to force Sheikhzadeh-Mashgoul to endure the discriminatory conduct as a condition of the latter’s employment, the BCCA held that the Tribunal did not have jurisdiction over the complaint.

The majority of the SCC broadly applied the protections under the Code, saying they are not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace.  Rather, the majority held that section 13(1)(b) of the Code is directed at addressing conduct that targets employees so long as that conduct has a sufficient nexus to the employment context.  It does not require that the perpetrator of the discrimination be someone within the employment relationship. Therefore, other workplace relationships – co-workers, for example – or non-employers exercising power over employees could be sources of discrimination regarding employment, so long as the discriminatory conduct has a sufficient nexus to the employment context.

In determining whether such a nexus exists in the totality of all relevant circumstances, the majority enumerated three non-exhaustive factors that inform this contextual analysis: (1) whether the respondent was integral to the complainant’s workplace; (2) whether the impugned conduct occurred in the complainant’s workplace; and (3) whether the complainant’s work performance or work environment was negatively affected.  Applying this contextual approach to the circumstances before it, the majority found that Schrenk’s conduct did fall within the ambit of section 13(1)(b) as, given his position as site foreman, he was an integral and unavoidable part of Sheikhzadeh-Mashgoul’s work environment.

Schrenk is an affirmation from the highest court in our country of the application of section 13 of the Code beyond employers and supervisors, to non-direct employment relationships in which employees may be a “captive audience” subject to discriminatory behaviour. In determining what is “regarding employment” for the purposes of a complaint, the question of whether the discriminatory acts were perpetrated by those in a hierarchical position of power over more vulnerable individuals is not the determinative factor.

This broad approach to what is “regarding employment” is liable to pose challenges for employers.  The majority decision effectively expands the scope of whom may be responsible for ensuring that workplaces are free from discrimination.  Shared worksites can pose particular complications where the harassed employee’s employer may not have a direct ability to remedy the discrimination.  In such circumstances, all involved employers and contractors may need to cooperatively approach their efforts to provide a discrimination-free workplace.

In addition, this decision also creates an increased prospect of personal liability, including for contractors, on a worksite.  What may have been before viewed as a private act of discrimination between individuals, and not subject to the Code, may now be caught under statutory protections regarding employment.

The resulting expansive application of workplace protections by the SCC could result in an influx of complaints under section 13 of the Code against both employers as well as non-employer entities and other individuals in the employment context.

Although in this case Sheikhzadeh-Mashgoul did not file a human rights complaint against his employer, employers have an obligation to not only ensure that their employees are not discriminated against in their employment but also maintain a harassment-free working environment for its employees under the BC Workers’ Compensation Act.  Given the SCC’s affirmation of a broad interpretation of section 13(1)(b) of the Code, employers should revisit their bullying, harassment, and anti-discrimination trainings, policies, and procedures to account for a wider range of relationships in the employment context.

Overall, discriminatory behaviour in the workplace may be governed by the employment provisions of the Code, regardless of the identity of the perpetrator.

Collective agreements may prevail over some Bill 148 scheduling provisions

Those of you who have been following this series of blogs will know that Bill 148 ESA amendments generally apply to unionized workplaces as of the effective date of the particular amendment.  There are a few limited exceptions, however.

In yesterday’s post, we addressed how employers with unionized employees may find temporary relief from the Bill 148 “equal pay for equal work” amendments.

In this post we explain the three circumstances in which a collective agreement in effect on January 1, 2019 may temporarily prevail over corresponding on-call and scheduling provisions in Bill 148.

1. Minimum pay for being on call (ESA section 21.4)

Under Bill 148, when an employee who is on call is not required to work, or is required to work but works less than three hours, the employer must pay the employee wages equal to at least three hours at his or her regular rate. An exception applies if the employer required the employee to be on call for the purposes of ensuring the continued delivery of essential public services, regardless of who delivers those services, and the on-call employee was not required to work.

Although this new three-hour rule comes into effect on January 1, 2019, employers of unionized workforces may be able to delay its implementation.  The amendment expressly states that if a collective agreement in effect on January 1, 2019 contains a provision that addresses payment for being on call, and there is a conflict between the provision of the collective agreement and section 21.4 of the ESA, then the collective agreement provision prevails until the earlier of the date the collective agreement expires or January 1, 2020.

2. Right to refuse to work or be on call (ESA section 21.5) 

Bill 148 gives employees the right to refuse a request to work/be on call on a day that they were not scheduled to work or be on call if the employer makes the request less than 96 hours in advance.  However, an employee has no right to refuse the request to work or be on call if the request is made: (a) to deal with an emergency; (b) to remedy or reduce a threat to public safety; (c) to ensure the continued delivery of essential public services; or (d) for any other reason that may be prescribed.

While this amendment to the ESA is set to come into effect on January 1, 2019, there may be some temporary relief for employers of unionized workforces.  If a collective agreement in effect on January 1, 2019 contains a provision that addresses an employee’s ability to refuse the employer’s request or demand to perform work/be on call on a day the employee is not scheduled to work or be on call, and there is a conflict between the collective agreement provision and section 21.5 of the ESA, the collective agreement provision prevails until the earlier of the date the collective agreement expires and January 1, 2020.

3. Cancelling a scheduled day of work or scheduled on call period without sufficient notice (ESA section 21.6)

Bill 148 requires an employer to pay employees three hours of wages at their “regular rate” if the employer cancels their entire scheduled day of work or entire scheduled on call period with less than 48 hours advance notice.  However, note that this new three-hour rule does not apply if the day of work or on call period is shortened or extended.

Further, this three-hour rule does not apply if: (a) the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work; (b) the nature of the employee’s work is weather-dependent and the employer is unable to provide work for the employee for weather-related reasons; or (c) the employer is unable to provide work for the employee for such other reasons as may be prescribed.

As above, employers with collective agreements in effect on January 1, 2019 will be able to delay implementation of this amendment if the collective agreement contains a provision addressing payment when the employer cancels the employee’s scheduled day of work or on call period, and there is a conflict between the collective agreement provision and section 21.6 of the ESA. If those conditions apply, the collective agreement provision prevails until the earlier of the date the collective agreement expires and January 1, 2020.

“Equal pay for equal work” provisions in a collective agreement may prevail over Bill 148 ESA amendments

As we explained in yesterday’s post, the Bill 148 amendments to the ESA minimum standards will generally apply to unionized workplaces as of the effective date of the particular amendment.

However, there are two circumstances in which a collective agreement provision in effect on April 1, 2018 will temporarily prevail over certain Bill 148 amendments requiring “equal pay for equal work”.

 1. Difference in employment status (ESA s.42.1)

Under the Bill 148 reforms, an employer is prohibited from paying part-time, casual and other employees who do not have regular full-time status at a lower rate than what it pays to regular full-time employees 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.  Further, an employer is not permitted to reduce any employee’s rate of pay in order to comply with the new statutory obligation.   Bill 148 provides an exception to this “equal pay” requirement when the difference in the rate of pay is made on the basis of: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; or any other factor other than sex or employment status.

Employers with unionized employees may find temporary relief from the “equal pay” rule in section 42.1. If a collective agreement effective 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 section 42.1, the provision of the collective agreement will prevail until the earlier of the date the collective agreement expires and January 1, 2020.

 2. Difference in assignment employee status (ESA s.42.2)

Bill 148 amendments prohibit temporary help agencies to pay assignment (i.e., agency) employees assigned to perform work for a client at a rate of pay less than the rate paid to an employee of the client if the following conditions apply: (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. Note that Bill 148 provides an exception to this new requirement if the difference in the rate of pay is made on the basis of any factor other than sex, employment status or assignment employee status.

Clients of a temporary help agency may not reduce the rate of pay of an employee in order to assist a temporary help agency in complying with this new “equal pay” obligation. Similarly trade unions or other organizations are not permitted to cause or attempt to cause a temporary help agency to contravene this obligation.

Again, there is some relief for unionized workplaces for a transition period.  If a collective agreement in effect on April 1, 2018 contains a provision that permits differences in pay between employees of a client and an assignment employee, and there is a conflict between the provision of the collective agreement and section 42.2, the provision of the collective agreement will prevail until the earlier of the date the collective agreement expires and January 1, 2020.

Check out our blog tomorrow to learn how existing collective provisions that address cancelling an employee’s scheduled day of work or on-call period may prevail over Bill 148 ESA amendments.

How do Bill 148 amendments to the ESA affect existing collective agreements?

It is hard to imagine a question more pressing for Ontario employers of unionized employees.

For the most part, the Bill 148 amendments to the ESA minimum standards will apply to unionized workplaces as of the effective date of the particular amendment. More specifically, Bill 148 ESA amendments – including with respect to the minimum wage, vacation entitlements, personal emergency leave and the new Domestic and Sexual Violence Leave – will “trump” a collective agreement if:

  • the amendment provides a greater right or benefit than the employees are entitled to under the collective agreement;
  • the amendment imposes a more onerous obligation on the employer than in the collective agreement; or
  • the collective agreement is silent with respect to the Bill 148 obligation or entitlement.

There is only a handful of other specific circumstances in which an existing collective agreement provision may prevail over Bill 148 ESA amendments.

Check out our blog tomorrow to learn how an existing collective agreement provision addressing “equal pay for equal work” may prevail over two of the Bill 148 amendments.

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