Update: Ontario Government’s Changing Workplaces Review

Special Advisors have been tasked by the Ministry of Labour to review and make recommendations on what changes, if any, should be made to the Employment Standards Act, 2000 and the Labour Relations Act, 1995 in light of the changing nature of the workforce, the workplace, and the economy.

Given the breadth and scope of the Review, an Interim Report was released this summer, identifying 50 issues and laying out the over 225 options under consideration. Stakeholders are invited to review the full range of options under consideration and to provide comment.

One area we want to flag is the potential changes to exemptions from the Employment Standards Act (ESA). The ESA provides the basic minimum terms and conditions of employment applicable to all employers and employees in Ontario. Over the years, a number of exemptions and special rules have been introduced to meet the unique challenges and needs of specific sectors and employment categories. Today, the ESA contains over 85 exemptions and special rules.

While the Ministry Labour has implemented an internal policy framework for considering new exemptions (six “Special Industry Rules” have been approved since 2005 using this new framework), since most of the existing exemptions predate this process the reviewers have recommend that the current exemptions be reviewed. They have divided the exemptions into three categories: exemptions that the reviewers might recommend for elimination or change as part of this process; recent exemptions that the reviewers do not think require further review at this time; and exemptions that should be reviewed under a new, transparent, process.

Though this is an ongoing process, the deadline to submit feedback on the options laid out in the Interim Report is October 14, 2016. The Special Advisors will be meeting with stakeholders over the month of October, after which they will submit their final report and recommendations to the government. The Ministry of Labour will then respond to the report, indicating at that point how they will be moving forward with potential legislative, regulatory and policy changes, including the potential changes to the exemptions.

Copied below are the categories, for your review. Sussex consultants are available to discuss the changes outlined above, as well as other issues identified in the report that may impact your employees and organization.

1. Exemptions that might be recommended for elimination or variation without a further review.

Reviewers are asking for feedback on whether to maintain, modify or eliminate exclusions to:

• information technology professionals;
• pharmacists;
• managers and supervisors;
• residential care workers;
• residential building superintendents, janitors and caretakers;
• special minimum wage rates for: students under 18; and liquor servers;
• student exemption from the “three-hour rule”

2. ESA exemptions that they don’t think warrant review and which should be maintained:

• public transit (2005);
• mining and mineral exploration (2005);
• live performances (2005);
• film and television industry (2005);
• automobile manufacturing (2006);
• ambulance services (2006).

3. ESA Exemptions that should be reviewed in a new process:

The reviewers think that these exemptions should be reviewed using a transparent and consistent review process to determine whether an exemption is justifiable. They’re asking for submissions on the process to be implemented for the review and assessment of the current exemptions as well as for the review of proposed new exemptions that may be proposed in the future.

1. Architects
2. Chiropodists
3. Chiropractors
4. Dentists
5. Engineers
6. Lawyers
7. Massage Therapists
8. Naturopaths
9. Physicians and Surgeons
10. Physiotherapists
11. Psychologists
12. Public Accountants
13. Surveyors
14. Teachers
15. Veterinarians
16. Students In-Training in Professions
17. Ambulance Drivers, Ambulance Driver’s Helper or First-aid Attendant on an Ambulance
18. Canning, Processing, Packing or Distribution of Fresh Fruit or Vegetables (seasonal)
19. Continuous Operation Employees (Other than Retail Store Employees)
20. Domestic Workers (Employed by the Householder)
21. Commissioned Automobile Salesperson
22. Homemakers
23. Embalmers and Funeral Directors
24. Firefighters
25. Fishers – Commercial fishing
26. Highway Transport Truck Drivers (“For Hire” Businesses)
27. Local Cartage Drivers and Driver’s Helpers
28. Retail Business Employees
29. Hospital Employees
30. Hospitality Industry Employees (hotels, restaurants, taverns, etc.)
31. Hunting and Fishing Guides
32. Ontario Government and Ontario Government Agency Employees
33. Real Estate Salespersons and Brokers
34. Construction Employees (Other than Road Building and Sewer and Watermain Construction)
35. Road Construction
36. Sewer and Watermain Construction
37. Road Construction Sites – Work that is Not Construction Work
38. Road Maintenance – Work that is Not Maintenance Work
39. Sewer and Watermain Construction Site Guarding
40. Road Maintenance
41. Sewer and Watermain Maintenance
42. Maintenance (Other than Maintenance of Roads, Structures Related to Roads, Parking Lots and Sewers and Watermains)
43. Ship Building and Repair
44. Student Employee at Children’s Camp
45. Student Employee in Recreational Program Operated by a Charity
46. Student Employee Providing Instruction or Supervision of Children
47. Swimming Pool Installation and Maintenance
48. Taxi Cab Drivers
49. Travelling Salespersons (Commissioned)

Agricultural Exemptions:

50. Farm Employees – Primary Production
51. Harvesters of Fruit, Vegetables or Tobacco
52. Flower Growing
53. Growing Trees and Shrubs
54. Growing, Transporting and Laying Sod
55. Horse Boarding and Breeding
56. Keeping of Furbearing Mammals
57. Landscape Gardeners
58. Canning, Processing, Packing or Distribution of Fresh Fruit or Vegetables (seasonal)

Should you wish to discuss this process, or how it may impact your organization, Sussex consultants are available to work with you to develop and execute a plan for engaging in this process.  As always, please feel free to contact us with any questions.