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.

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