When 2017 turned the page to 2018, with it changed a number of important aspects of the Employment Standards Act (ESA) for Ontario employees and organizations. While those initial changes shook things up significantly, Bill 148, or The Fair Workplaces, Better Jobs Act, 2017 has rolled out its second phase which will also impact all Ontario employers. There will be even further changes, including additional increases to minimum wage, scheduled for January 1, 2019.
April 1, 2018 - Equal Pay for Equal Work
Most notably, this phase focuses on equal pay for equal work, meaning that, beginning on April 1, 2018, there will be a prohibition on paying certain employees less than others based on their employment status or gender. Although it may seem like measures such as these have been law for decades, the reality is that these provisions are just now being formally introduced under the ESA, ensuring that:
- No employer shall pay an employee at a rate of pay less than the rate paid to another employee of the employer because of a difference in employment status when:
- they perform substantially the same kind of work in the same establishment;
- their performance requires substantially the same skill, effort and responsibility; and
- their work is performed under similar working conditions.
- Employers pay casual, part-time, temporary and seasonal employees, who are doing substantially the same work as full-time/permanent employees, the same rate of pay as full-time/permanent employees
- Employers pay temporary help agency employees (also known as assignment employees), who are doing substantially the same work as employees of the client, the same rate of pay as employees of the client
- Employers are prohibited from making reprisals against employees who make inquiries about rates of pay or who disclose their rate of pay for the purpose of determining or assisting in determining whether an employer is complying with the above provisions of the act.
In short, this means that neither the employment status of the individual (be it full-time, seasonal, casual, part-time, permanent or temporary) or their gender should impact their level of compensation. All employees working the same job, under the same conditions, should be compensated equally whether they identify as male, female or otherwise, or are working two hours, 20 hours or 40 hours a week.
With that said, there are some notable exceptions to consider. A difference in the rate of pay will be allowed under the new provisions if it is based on a number of different factors, including:
- 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 – for instance, a higher-paid employee being reassigned to a typically lesser-paying role at the same wage following the abolishment of their previous role within the same organization.
Reduction of Pay is Prohibited
It is also very important to note that employers cannot reduce the rate of pay of any current employee to meet their obligation to provide equal pay. Unions also cannot attempt to cause an employer to disregard this obligation.
Lastly employees who believe their rate of pay does not comply with equal pay for equal work may request a review of their rate of pay from the employer; the employer must adjust the employee’s pay or provide written response to the employee with the reasons for the disagreement.
Temporary help agency employees will also be allowed to ask their employer to review their rate of pay if they believe they’re not receiving the same rate of pay as employees of the client who perform substantially the same work. The employer will have to respond by either adjusting the employee’s pay or giving the employee a written explanation.
What do you think? Will these additional changes under Bill 148 require big changes in your organization, or do you feel that you’re already compliant with these new changes?
The information contained herein is summary in nature and is intended to provide general guidance only. It should not be viewed as a replacement for legal or professional advice.
ADP, the ADP logo and A more human resource are registered trademarks of ADP, LLC. All other marks are the property of their respective owners. Copyright © 2018 ADP Canada Co.