The Employment Standards Act, 2000 contemplates equal pay between the sexes. As we reported in June, Ontario Bill 148 proposes adding “new equal pay for equal work” provisions that mandate paying casual, part-time, temporary, and seasonal employees be paid the at the same rate as regular full-time employees who perform the same job for the same employer. Bill 148 also requires temporary help agency employees to be paid at the same rate as employees of the agency’s client who perform substantially the same work. Employers are prohibited from reducing an employee’s rate of pay in order to comply with Bill 148.
The proposed equal pay provisions are subject to some exceptions. The provisions do not apply if a difference in wages among similarly situated employees is due to (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) another factor justifying the difference on objective grounds.
On September 11, an amended version of Bill 148 was ordered for Second Reading and then debated over the next two days. One of the amendments provides some clarity with respect to how employers might rely on a “seniority system” to justify different wage rates on the basis of employment status. The amended equal pay provision expressly states that a “seniority system includes a system that provides for different pay based on the accumulated number of hours worked”.
And employers with unionized employees, please take note. Under the amended version of Bill 148, if your collective agreement contains a provision that permits differences in pay based on employment status, and there is a conflict between the collective agreement provision and the Bill 148 equal pay provision, then the collective agreement provision will prevail and continue to apply until the earlier of (i) the date the collective agreement expires; and (ii) January 1, 2020. If you are currently engaged in collective bargaining, you may wish to consider this in the context of your negotiations.
Overall, the equal pay provisions in Bill 148, if enacted, will require employers to take a holistic look at their employees and positions, to determine which roles are exempt from the provisions, and which non-exempt roles are substantially similar in skill, effort, responsibility and working conditions so as to require equal pay. In addition, it would be prudent to consider adopting standardized procedures as to how wage review requests will be determined and communicated.