Ontario introduces changes to labour and employment legislation
On May 28, 2015, the Ontario Government introduced Bill 109 (the Employment and Labour Statute Law Amendment Act, 2015) which is comprised of three schedules amending three different labour and employment statutes.
Schedule 1 – Amendments to the Fire Protection and Prevention Act, 1997
Schedule 1 contains a significant number of amendments to the Fire Protection and Prevention Act, 1997 (FPPA), which will bring that legislation, which governs the collective bargaining for professional fire fighters, more into line with other collective bargaining legislation in the province.
In particular, if passed, Bill 109 will introduce an unfair labour practice provision to prohibit employers from interfering with the collective bargaining rights of fire fighter associations and from threatening, coercing or intimidating employees who are exercising their rights under the Act. These provisions mirror those found in the Labour Relations Act, 1995.
Bill 109 would also give firefighter associations the right to enforce the rights and protections provided by FPPA before the Ontario Labour Relations Board (OLRB). Previously violations of the FPPA – such as an allegation of bad faith bargaining – could only be enforced in the courts (with the exception of an allegation that an association had failed to meet its “duty of fair representation”, which is made to the OLRB). Access to the OLRB will be more expeditious and less expensive for firefighter associations, and ensure that disputes are heard before an expert tribunal.
Bill 109 would provide for expedited grievance arbitration. This would address the excessive delays associations and their members have experienced in having grievances heard by arbitrators. These provisions have been available to most unionized workers under other labour legislation for decades.
Bill 109 would also give a firefighter association the express right to negotiate union security and dues collection language into collective agreements, including the right to require fire fighters to be members of the association or to pay union dues whether or not they are members of the association (mandatory Rand Formula provisions).
Bill 109 also includes limited protections from discharge from employment for employees who are expelled or suspended from membership in an association because they are members of another association or engaged in activity against or reasonable dissent within an association. These same general provisions are applicable to all unionized employees in Ontario, including in the Labour Relations Act, 1995. Contrary to some media reports, there is nothing in Bill 109 that specifically authorizes professional fire fighters to work as two hatters in other municipalities. Whether and how the provisions of Bill 109 will apply in any particular case of expulsion or suspension will depend on the specific facts and circumstances before the OLRB, and the OLRB’s interpretation as to whether a particular individual employee was engaged in activity against, or reasonable dissent within, the association.
Schedule 2 – Amendments to the Public Sector Labour Relations Transition Act, 1997
Schedule 2 of Bill 109 would amend section 23 of the Public Sector Labour Relations Transition Act, 1997 to provide that, in the case of a restructuring covered by the legislation, no vote is required with respect to a new bargaining unit if at least a “prescribed percentage” of the employees in the bargaining unit were previously represented by a single bargaining agent. In such circumstances, the OLRB must appoint that bargaining agent as the bargaining agent for all of the employees in the unit. Bill 109 further provides that the prescribed percentage must be more than 60 per cent. If enacted, this would reduce the opportunity for affected employees to democratically choose their bargaining agent following a restructuring.
Schedule 3 – Amendments to the Workplace Safety and Insurance Act
Finally, Schedule 3 of Bill 109 would provide protection under the Workplace Safety and Insurance Act against taking or threatening to take disciplinary action, imposing a penalty or intimidating or coercing a worker with threats, promises, persuasion or other means where such action is intended to discourage the worker from filing a claim for benefits or influence the worker to withdraw or abandon a claim for benefits. It would also permit the WSIB, in the case of survivor benefits for a worker who has no net average earnings on the date of injury, to use net average earnings for workers engaged in the same trade, occupation, profession or calling, instead of the current statutory minimum.