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Ontario’s news media op-eds have fervently decried ad nauseum the Progressive Conservative’s scrapping of the minimum wage hike . Meanwhile, the loss of a lesser known provision of the previous Liberal Government’s labour reforms goes unnoticed, before it had a chance to impact fair pay in this province.
When Kathleen Wynne was in power, her Liberal government engaged in an overhaul of our province’s employment laws, by passing the Fair Workplaces Better Jobs Act .
The Fair Workplaces Better Jobs Act amended the Employment Standards Act, the Labour Relations Act and the Occupational Health and Safety Act . Some of the eye-catching reforms included an increase in the minimum wage to $15 per hour in 2019, 2 paid sick days, and domestic or sexual violence leave . But a lesser known change was the inclusion of a new equal pay provision.
The potentially far reaching change was an addition of an “Equal Pay for Equal Work” provision, relating to “difference in employment status” . “Equal Pay for Equal Work”, is undoubtedly a classic feminist rallying cry, harkening back to the mid-century days of a “Family Wage” when women’s work was seen as pocket money augmenting the family budget. The new “Equal Pay for Equal Work” relates to a difference in pay that on it’s face seems more justifiable. Employers have long had differentiated pay rates between part-time, contract and full-time workers, and employees brought in by temporary help agencies.
In our “gig-economy” more and more people found themselves forever relegated to part-time status, with full-time positions being a goal to work towards in many industries, rather than the norm for hiring . This problem was especially pronounced in “pink-collar”, female and other vulnerable worker dominated professions . The Liberal government sought to curtail the incentivization of employing workers precariously by ensuring that employees be paid the same despite employment status. They passed the following additions to the Equal Pay for Equal Work clauses of the ESA;
42.1 (1) 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,
(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.
Exception
(2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,
(a) a seniority system;
(b) a merit system;
(c) a system that measures earnings by quantity or quality of production; or
(d) any other factor other than sex or employment status.
42.2 (1) No temporary help agency shall pay an assignment employee who is assigned to perform work for a client at a rate of pay less than the rate paid to an employee of the client 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. 2017, c. 22, Sched. 1, s. 28.
These provisions came into effect on April 1, 2018 . As can be gleaned from the above section, there are still provisions to pay more senior and more skilled workers a higher wage, but it cannot solely be based on employment status. In other words, if a clear seniority system existed for higher pay, the legislation would have allowed it. This provision could have had far reaching effects in the employment law field, but instead it has been repealed by the current government.
The Making Ontario Open for Business Act received Royal Assent on November 21, 2018 . Going forward the Employment Standards Act will only have equal pay provisions related to sex, and the gig economy, temporary help agencies and uncertain employment contracts appear to be here to stay. It seems that “Making Ontario Open for Business”, may mean leaving Ontario’s workers open to some unfortunate funny business.

Disclaimer: Use of this site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for non-profit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.

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Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.