Government Efficiency Act brings changes to legislation

On September 25, the Government of Ontario introduced its Government Efficiency Act to the legislature. The GEA is an “omnibus bill” which contains a variety of amendments to existing legislation, as proposed by the ministries which administer those Acts. The following is intended as an overview of amendments which may have some impact on the employment of OPSEU members. Generally speaking, the amendments which will have greatest (negative) effect are those which increase employer flexibility (ie. those to the Employment Standards Act) or which further facilitate contracting out and government control over contracted services (ie. those to the Ministry of Correctional Services Act).

Amendments Proposed by the Ministry of Labour

A. Crown Employees Collective Bargaining Act and Ambulance Services Collective Bargaining Act, 2001

Conciliators subject to non-disclosure, non-compellability rules

Amendments to these Acts (to section 35 and section 7, respectively) cause subsections 119(2) and (3) and section 120 of the Labour Relations Act, 1995 to apply to conciliation officers appointed under the Acts to achieve essential services agreements. Subsections 119(2) and (3) of the LRA, 1995 prohibit the public disclosure of information or materials received by, or reports generated by, a conciliator. Section 120 renders a conciliator incompetent and non-compellable to give evidence before a court or tribunal in respect of information or material received by them in the context of negotiations.

Effect of amendments

The amendments strengthen the position of conciliation officers to effect essential services agreements

B. Employment Standards Act, 2000

Reporting requirements for vacation pay amended

1. The requirement that an employer report, on each pay cheque information stub, amounts of vacation pay accrued by and paid to an employee (s. 12(1)(d)) would be removed from the Act.

Effect of amendment

The Ministry claims that the reporting requirement was removed to help facilitate the more flexible arrangements for taking vacation that other provisions of the Efficiency Act make possible. However, the change will make it more difficult for employees to keep track of their vacation pay entitlements on an ongoing basis. Employees wishing to determine their vacation time/pay entitlements will have to make written requests to their employers for such information at the end of their vacation entitlement year (s. 41.1; see below).

2. New provisions, replacing the Act’s existing provisions, would expand the scope of information employers would be obliged to record and retain with respect to vacation time/pay owing to and taken by employees (s. 15.1).

Effect of amendment

The new recording requirements are more comprehensive than the existing ones, for the ostensible reason that, as a result of the amendments, employers would no longer be required to report vacation pay entitlements to employees on an ongoing basis (ie. on each pay cheque stub). However, the information will only be available to employees by written request, once a year.

Reporting requirements for termination and severance pay improved

A section would be added requiring an employer to report, on a statement accompanying an employee’s final pay cheque, a) the gross amount of any termination pay or severance pay being paid to the employee, b) the gross amount of any vacation pay being paid to the employee, and c) how these amounts were calculated (unless this is set out for the employee in some other manner) (section 12.1).

Effect of amendment

Requiring the employer to provide this information will make it easier for employees to determine whether they have been paid the appropriate amounts of termination pay, severance pay and vacation pay.

“Hours off” provision clarified

Subsection 18(1) of the Act would be amended by substituting “11 hours” for “11 consecutive hours”.

Effect of amendment

The change will ensure that an employee’s right to 11 hours off in each day will be in consecutive hours.

No alternate day off for employees on leave or on layoff

Section 29 (which provides for an alternate day off with pay where the public holiday falls on a day which is not ordinarily a work day for an employee or a day which the employee is on vacation) would be amended by adding two new subsections. Subsection 2.1 provides that if a public holiday falls on a day which is not ordinarily a working day for an employee who is on a leave of absence (s. 46 or s. 48) or on layoff, the employee will be entitled to public holiday pay for the day but not an alternate day off with pay. Subsection 2.2 provides that ss. 2.1 does not apply to an employee who is terminated and the public holiday for which he or she would otherwise have been paid falls on or after the day on which the layoff exceeded the period of a temporary layoff (s. 56(2)).

Effect of amendment

Subsection 2.1 clarifies the section 29 entitlements of employees who are on leave or layoff at the time of the (non-working day) public holiday. Such employees are presently absent from the section 29 language.

Vacation provisions amended

Sections 33, 34 and 35 would be replaced with a new set of vacation with pay provisions. The key differences are as follows:

i) An employee becomes eligible for two weeks vacation “after each vacation entitlement year” rather than “after each 12 months the employee is employed” (s. 33(1)).

ii) Where an employee does not take his or her vacation in complete weeks and that employee does not have a regular work week, his or her entitlement will be based on “the average number of days [he or she] worked per week “during the most recently completed vacation entitlement year”, rather than “the average number of days [he or she] worked per week in the four months immediately preceding the first day on which vacation time for the 12 months of employment is taken” (s. 33(3)(b)).

iii) An employer may establish for an employee an “alternative vacation entitlement year” (ie. a year for which the anniversary is other than the employee’s start date). Doing so would create a “stub period”, that being the period between the employee’s start date and the beginning of the alternative vacation entitlement year. The new provisions set out a means of determining an employee’s vacation entitlements for the stub period, and rules for determining when an employee must take his or her vacation relating to the stub period. The “vacation pay” provision (presently s. 35; s. 35.2 under the amended Act) is amended to recognize the stub period (ie. a vacation calculation period of less than 12 months).

Effect of amendments

The change to the period upon which vacation entitlement for employees who do not have a regular work week and do not take vacation in complete weeks is based (ie. from four months to one year) may have an effect, either positive or negative, on an employee’s entitlement, depending upon whether the employee has worked (or tends to work) more intensively in the four month period immediately preceding their vacation. The ability of an employer to establish an “alternative vacation entitlement year” may have the effect of delaying an employee’s entitlement to a full two-week vacation (ie. an entitlement to vacation based on a full year of employment).

New method of determining “week of lay-off”

Section 56(3) would be replaced by a series of provisions (subs. (3) to (3.6)) by which “a week of lay-off” would be determined, for both employees who have a regular work week, and those who do not. Under the existing subs. (3), a week of lay-off occurs where an employee “receives less than one-half the amount he or she would earn at his or her regular rate in a regular work week, and that week is not a week in which [he or she] was not able to work, was not available for work, was subject to a disciplinary suspension, [or was on strike or subject to a lock-out]”. The new subs. (3) clarifies the concept of the “excluded week” which is implicit in the existing subs. (3). “Excluded week” will mean “a week during which, for one or more days, the employee is not able to work, is not available to work, etc., rather than simply “a week in which the employee is not able to work, is not available for work, etc.

Effect of amendment

With the new definition of “excluded week”, what would otherwise be a week of lay-off (ie. a week in which an employee earns less than one-half of what he or she would earn at his or her regular rate in a regular work week [in the case of an employee who has a regular work week], or less than one-half the average amount he or she earned per week in the 12-week period preceding the lay-off calculation period [in the case of an employee who does not have a regular work week]) may be more readily excluded from the number of weeks which comprise a period of lay-off. The greater possibility of a week being excluded will have the effect of extending the period of “temporary lay-off” for some workers. This may be regarded as either a positive or negative effect, depending on the viewpoint of a given employee. On the one hand, for an employee who wants to continue working for the employer the effective extension of the temporary lay-off period will forestall deemed termination under s. 56(1)(c) of the Act. On the other hand, an employee who wishes to be deemed terminated so that they might collect their termination pay and pursue move on may have to wait longer to do so.

Limitation period for recovery of unpaid vacation pay extended

A new subsection would be added to section 111 (time limits on recovery) for recovery of vacation pay. Existing subsections (1) to (3) refer to “wages” recovery of which is limited to 6 months before a complaint was filed or an investigation by an employment standards officer commenced. New subs. 3.1 permits recovery of vacation pay which became due up to 12 months before a complaint was filed or an investigation commenced.

Effect of amendment

This amendment extends the period for which vacation pay moneys can be recovered.

Government may make regulations allowing employers to deduct insurance and pension benefits from termination/severance pay owing

A new paragraph would be added to the section which empowers the Lieutenant Governor in Council to make regulations (section 141(1)). Paragraph 14.1 would empower the Cabinet to make a regulation mandating that employers take into account or not take into account certain benefit payments (ie. pension benefits, insurance benefits, EI benefits, WSIA benefits) in determining the amount an employer is required to pay to an employee under s. 60(1)(b) (wages during termination notice period), s. 61 (pay in lieu of notice) and s. 64 (severance pay).

Effect of amendment

Although the Government would not have been prohibited from making such a regulation without this provision, its addition to the section suggests that the Government may be contemplating a regulation requiring (allowing) employers to take into account benefits of the types described so as to reduce the sums they have to pay to employees who are being terminated.

Amendments Proposed by the Management Board Secretariat

Public Service Act

Written notice of termination now required

Section 22(4) of the Act would be amended to require that written notice be provided to a public servant released from employment because of shortage of work, etc.

Effect of amendment

The effect is positive, as the existing provision does not require written notice.

Amendments Proposed by the Ministry of Public Safety and Security

Ministry of Correctional Services Act

Change to definitions reflects fact that Government contracting out services

The words “operated by or for the Minister” in the definitions of “place of open custody”, “place of secure custody” and “place of temporary detention” would be replaced by “operated or maintained by the Ministry or by a contractor”.

Effect of amendment

A change in the language to reflect the fact that operation of such facilities is being contracted out.

Ministry no longer required to create “social environment” for inmates

One of the functions of the Ministry – creating a social environment for inmates - would be changed to creating an environment for inmates.

Effect of amendment

The purpose of this unusual amendment appears to be to ensure that this Ministry function isn’t in conflict with the Minister’s authority (also new) to establish “maximum security custody programs in which restrictions are continuously imposed on the liberty of inmates”.

Authority for superintendents to conduct searches

A new section would be added (s. 23.1) authorizing the superintendent of an institution to conduct searches of a) the correctional institution (all or any part of it), b) the person of any inmate or other person on the premises of the correctional institution, c) the property of any inmate or other person on the premises of the correctional institution, and d) any vehicle entering or on the premises of the correctional institution.

Effect of amendment

The new provision appears to authorize the superintendent to search the person or property of employees of the institution, their cars or their staff rooms, etc.

Coverage of “conflict of interest” provisions extended

The words “no person employed in the Ministry” would be replaced by “no person employed in the Ministry or by a contractor” in the provision in the Act prohibiting employees from having an interest in contracts with the Ministry (s. 30(1)). The same amendment would be made to the provision prohibiting employees from having dealings with inmates (s. 30(2)).

Effect of amendment

Again, the changes reflect the fact that the Ministry contracts out the operation of correctional facilities.

New provision authorizes search of youth facilities and young offenders

The present section 49 of the Act (which now provides that a young offender is to be detained in a place of open temporary detention unless it is necessary that that person be held in a place of secure detention) would be replaced by a provision authorizing searches of youth facilities, young offenders and young offenders’ property.

New provision authorizes Minister to establish rehab programs permitting young offenders to obtain employment or training

Section 50 of the Act (which stipulates the place of custody for young offenders committed to “secure custody”) would be replaced by a new provision authorizing the Minister to establish rehabilitation programs “under which young persons may be granted the privilege of continuing to work at their regular employment, obtaining new employment, attending academic institutions, or participating in any other program that the Minister may consider advisable in order that such young persons may have a better opportunity for rehabilitation”. Section 50.1 would empower the Minister to authorize a young person or group of young people to participate in a work project or rehab program outside the youth facility.

New provision grants Ministry greater flexibility in assigning young offenders to institutions

A new section (s. 50.2) would replace the provisions regarding custody presently set out in section 49. Whereas under section 49 a person detained under the Young Offenders Act, must be detained in a place of open temporary detention unless a provincial director determines otherwise, under section 50.2 a young person, whether sentenced or not, may be detained in “any youth facility, as directed by the Ministry, or in the custody of a provincial bailiff or of a person employed in a youth facility”. Subsection (4) provides that “any designation of a particular youth facility in an order of disposition or warrant is of no force or effect”.

Effect of amendment

The amendment will make it easier for the Ministry to reassign young offenders to new facilities if they close or downsize existing ones.

Series of amendments would strengthen Ministry control of privately-operated youth detention facilities

Section 57.3 would be amended to clarify that youth detention facilities operated by contractors would be subject to the same contract compliance monitoring provisions as privately-run correctional institutions.

Subsection 60(1)(l) would be re-written to clarify that the government may enact regulations with respect to employees of contractors (“persons employed in the administration of this Act”).

Subsections 60(1)(s) and (t) would be added, empowering the government to enact regulations prescribing procedures for carrying out searches of correctional institutions and youth detention facilities, and for the disposition of contraband found during a search.

Effect of amendments

The purpose of these amendments is to facilitate Ministry control over privately-run youth detention facilities.

Amendments Proposed by the Ministry of Training, Colleges and Universities

Ministry of Training, Colleges and Universities Act

A new provision (s. 7.2) would be added permitting the Minister to impose on post-secondary institutions, in the context of agreements regarding the administration of loans, etc. to students, “performance or other requirements” in order for students of an institution to be eligible to apply for awards, grants or student loans. Such requirements may include a performance bond and a loan default sharing agreement. The Minister may withdraw the approval of a post-secondary institution as an institution whose students are eligible to apply for loans, grants, etc. if the institution ceases to meet any condition of the agreement.

Effect of amendment

This amendment could conceivably have an impact on college instructors (ie. job security) at institutions subject to performance requirements imposed by the Ministry.

Amendments Proposed by the Ministry of Health and Long-Term Care

Independent Health Facilities Act

Limits on transfer value of licences removed

The IHFA presently limits the amount which a facility operator can obtain for its licence in a proposed transfer of the licence to another operator. It does this by establishing a “maximum allowable consideration” (in most cases, zero) and restricting transfers of licences for more than that amount. Amendments to the Act would remove these limits thereby allowing the market to determine the value of existing independent health facility licences.

Effect of amendment

The removal of limits on the value of licences will inevitably affect the manner in which independent health facilities are operated. Presumably, the value of a licence will increase with the profitability of the facility. Thus, operators will have greater incentive to improve the profitability of their facilities. Patient care is likely to suffer as a result.

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