Employment Law Basics Thursday September 23, 2004

Objective Today: High Level Overview Create Awareness

Many Ontario Statutes Have An Impact On Employment For Example: Agricultural Employees Protection Act Day Nurseries Act Employment Standards Act Human Rights Code Labour Relations Act Pay Equity Act Smoking in the Workplace Act Occupational Health and Safety Act Wages Act Workplace Safety and Insurance Act

Focus For Today: Labour Relations Act Occupational Health & Safety Employment Standards Act

Labour Relations Act

Nutshell:  Unions Appointing / Removing Day-to-Day Operations  Union / Management Relationship

Labour Relations Act Purposes: Facilitate collective bargaining Promote flexibility, productivity and employee involvement in the workplace Encourage communication between employers and employees in the workplace Recognize economic growth as mutually beneficial to employers, employees and unions Encourage co-operative participation in expeditious resolution of workplace issues

Labour Relations Act Key Points No discrimination (as per Human Rights Code or Canadian Charter of Rights and Freedoms) Employees/Members certify and decertify a union as their official representative Collective agreement replaces individual contracts of employment Deemed non interference obligations on Employers, Unions and Employees/Members Collective agreement cannot be used to justify non compliance with statutory obligations

Occupational Health and Safety Act

Occupational Health and Safety Act Nutshell:  Creates a joint employer/employee committee  Committee monitors | and enforces minimum safety standards

Occupational Health and Safety Act Joint Committee required where: > 20 people regularly employed toxic substances in use (to which a s. 33 order applies) designated substance in use (to which a regulation applies) 2+ people on Committee 50% must be non managerial employees

Occupational Health and Safety Act Powers of Committee: Identify sources of danger or hazard to workers Make recommendations for improvement Suggest maintenance & monitoring procedures respecting the health or safety of workers Obtain information respecting: Potential or existing hazards Practices/standards in other industries Testing equipment, materials, chemical etc.

Occupational Health and Safety Act Duties of Employers Include: Provide information, instruction and supervision Take every reasonable precaution to protect workers Post copy of Act in conspicuous place At least annually – prepare and review an OHS policy and develop/maintain a program to implement that policy Keep accurate records of handling / storage / use of chemicals by employees

Occupational Health and Safety Act A worker may refuse work where they have reason to believe that: Any equipment, device or thing is likely to endanger the worker or another worker The physical condition of the workplace is likely to endanger the worker Any equipment, device or thing is in contravention of Act or the regulations and such contravention is likely to endanger the worker or another worker

Employment Standards Act

Employment Standards Act Nutshell:  Defines minimum terms of employment relationship  Applicable to both employers and employees

Employment Standards Act Scope Work performed in Ontario Work outside of Ontario that continues work started in Ontario Exceptions for federal employees, co-op students, inmates, retraining programs, etc. Cannot contract out of Act Terms of Act take precedence over terms of any employment contract

Employment Standards Act Wages Cheque or cash (or direct bank deposit with employee’s consent) Written statement re calculation, deductions etc. (electronic copy acceptable as long as printing available to employee) Only deductions required by statute, court order or with an employee’s authorization are allowed Wages have priority over all other unsecured creditors up to $10,000 per employee

Employment Standards Act Hours No employer shall require or permit: more than 8 hours per day and 48 hours per week (unless the employee consents and then no more than 60 hours per week) At least 30 minutes for eating within first 5 hours At least 11 hours free each day (unless on call) At least 24 consecutive hours free each week (or 48 hours over 2 work weeks) Special rules around ‘emergencies’

Employment Standards Act Rates of Pay Minimum rate of pay cannot be less than minimum wage rate set pursuant to the Act Room and board, where provided, are included when calculating the minimum rate of pay Overtime rate of pay must equal at least 1.5 times regular rate of pay (or with employer and employee agreement, time at same 1.5 rate can be taken in lieu of wages) Public holiday pay is equal to the regular and holiday pay earned over previous four weeks divided by 20 (i.e. basically a regular day’s pay)

Employment Standards Act Vacations Employer shall give at least 2 weeks vacation after completion of first year of employment Employer shall pay the employee 4% of the employee’s regular annual salary Employer holds accruing vacation pay in a deemed trust for employees Employer and employee may agree (with Director’s approval) to forgo accrued vacation time, but the employer must still pay the vacation pay amount

Employment Standards Act Equal Pay For Equal Work No wage difference based upon gender of people who: Perform substantially the same work Use same skills, exert comparable effort and have similar responsibilities Have similar working conditions No application where difference based upon a seniority, merit or quantity/quality of production No trade union etc. shall cause/attempt to cause employer to contravene equal pay obligation

Employment Standards Act Pregnancy Leave Threshold – Due date > 13 weeks after start date Leave Starts – No earlier than 17 weeks before due date or date of birth and no later than due date or date of birth Leave Ends – If entitled to parental leave, then 17 weeks following start of pregnancy leave; or if not entitled to parental leave, then the later of a) 17 weeks following start of pregnancy leave or b) 6 weeks following birth / still birth / miscarriage Notice Requirements – 2 weeks before leaving or returning and 4 weeks before return if not returning

Employment Standards Act Parental Leave Threshold – Due date > 13 weeks after start date and parent first having custody,care and control Leave Starts – Within 52 weeks of first custody, care and control (or if pregnancy leave taken, immediately after pregnancy leave) Leave Ends – If pregnancy leave taken, then 35 weeks following start of parental leave; or if no pregnancy leave taken, then 37 weeks following start of parental leave Notice Requirements – 2 weeks before leaving or returning and 4 weeks before return if not returning

Employment Standards Act Emergency Leave Threshold – > 50 employees Duration – Maximum 10 days per year Criteria Personal illness, injury or medical emergency Death, illness, injury, medical emergency or urgent matter relating to identified individuals

Employment Standards Act Emergency Leave - continued Identified Individual Include: Employee’s spouse / same-sex partner, brother or sister Employee’s (or employee’s spouse / same sex partner’s) parent, step-parent, child, step- child, foster child, grandparent, step- grandparent, grandchild or step-grandchild Employee’s child’s spouse / same sex partner A relative dependent upon the employee for care or assistance

Employment Standards Act Termination No termination of employment unless: Employer provides employee with advance written notice (e.g. 1 week for less than 1 year; 2 weeks for less than 3 years; 3 weeks for less than 4 years, etc.) Alternatively, payment of regular remuneration etc. for the appropriate period can be made in lieu of notice Additional requirements when >50 employees terminated at the same time

Employment Standards Act Employment terminated when: Employer dismisses employee or otherwise refuses or is unable to continue employment Employer constructively dismisses employee and employee resigns from their employment in response to constructive dismissal within a reasonable period Employer lays employee off for a period longer than period of a temporary lay-off (i.e. 13 to 35 weeks)

Employment Standards Act Severance Employee entitled to severance pay if: Employed by the employer for > five years Severance occurred because of permanent discontinuance of all or part of employer’s business Employee is one of 50 or more employees whose employment relationship has been severed within a six-month period or employer has a payroll > $2.5 million

Employment Standards Act Directors’ Liabilities Some exceptions (e.g. Part III Corporations Act, corporations without purpose of gain, etc.) Directors’ liabilities include: Regular wages Vacation pay Holiday pay Overtime wages Maximum liability is capped (e.g. 6 months wages, vacation pay accrued over past 12 months, etc.) Directors are jointly and severally liable No provision in contract, articles, by-laws, etc. can relieve a director of their ESA liabilities

Government of Ontario e-Law Site:

Insert 10 e-law web site screen shots here

Thank You