Part XXVIII - Transition
Part XXVIII of the Employment Standards Act, 2000 provides transitional provisions, amendments to the former Employment Standards Act, the repeal of five employment-related statutes, a provision for the Act to come into force on a date to be proclaimed by the Lieutenant Governor and the official short title of the Act.
Section 142 - Transition
Transition - s. 142(1)
Section 142(1) provides that Part XIV.1 of the Employment Standards Act will continue to apply, even though the former Employment Standards Act was repealed on September 4, 2001. See ESA Part XXVIII, s. 144 for further discussion.
Part XIV.1 of the former Act provides for employee eligibility for compensation for unpaid wages that were due and owing under the Employee Wage Protection Program, prior to the Program's discontinuance on October 29, 1997, by the Public Sector Transition Stability Act, 1997.
As of September 4, 2001, the application of Part XIV.1 of the former Employment Standards Act is limited to situations where:
- The wages became due and owing before the discontinuance of the Employee Wage Protection Program on October 29, 1997; and
- Prior to September 4, 2001, the employee to whom the wages were owed had submitted a certificate of claim to the Program Administrator of the Employee Wage Protection Program, on a form prepared by the Ministry of Labour.
For further information on the history and application of Part XIV.1 of the former Employment Standards Act, please see Legislative History.
Section 143 omitted (Amends or repeals other Acts)
Amendment to Employment Standards Act - s. 143(1)
Section 38(1) of the former Employment Standards Act provided that an employee must commence parental leave no more than 35 weeks after the day in which the child was born or came into the employee's custody, care and control for the first time.
Section 143(1) of the Employment Standards Act, 2000 amended s. 38 of the former Employment Standards Act by including s. 38(2.1). Section 38(2.1) extended the deadline for commencing parental leave to 52 weeks for any employee whose child was born or came into their custody, care and control for the first time on or after December 31, 2000.
Please see the discussion on pregnancy and parental leave in Legislative History for further information.
Amendment to Employment Standards Act - s. 143(2)
Section 40 of the Employment Standards Act provided that an employee was entitled to 18 weeks of parental leave with regards to the birth or the coming into custody, care and control of a child.
Section 143(2) amended section 40 of the former Employment Standards Act by adding a new subsection (s. 40(2)). Section 40(2) increased the entitlement to parental leave for any employee whose child was born or came into their custody, care and control for the first time on or after December 31, 2000. Parental leave for such employees was extended from 18 weeks to 35 weeks, for an employee who took pregnancy leave. For employees who did not take pregnancy leave, parental leave was extended to 37 weeks.
Please see the discussion on pregnancy and parental leave in Legislative History for further information.
Section 144 omitted (Amends or repeals other Acts)
Repeals - s. 144(1)
On September 4, 2001, the Employment Standards Act, 2000 was proclaimed in force. It replaces the former Employment Standards Act as the legislation governing employment standards entitlements for the majority of Ontario workplaces.
With the coming into force of the Employment Standards Act, 2000, the former Employment Standards Act and s. 143 of the Employment Standards Act, 2000 were repealed. Please note, however, that the repeal of s. 143 of the Employment Standards Act, 2000 and the former Employment Standards Act does not affect any rights or entitlements that employees had under the former Employment Standards Act prior to September 4, 2001. The Employment Standards Act, 2000 cannot be retroactively applied. Instead, the Employment Standards Act, 2000 takes effect and only replaces the former Employment Standards Act as of September 4, 2001.
Application of the former Employment Standards Act
1. The former Employment Standards Act will continue to be the source for employment standards and for investigation procedures and remedies for any alleged contraventions occurring prior to September 4, 2001.
Example:
Wally files a complaint on December 3, 2001, that he has not been paid wages for 8 hours of work he performed on July 27, 2001. The amount should have appeared on his August 10, 2001, pay cheque, which covers the pay period July 15, 2001, to July 28, 2001.
Wally earned the wages for 8 hours of work on July 27, 2001, but the wages did not become due until August 10, 2001, the pay day for the pay period which covers July 27, 2001.
Even though the complaint was filed after the coming into force of the Employment Standards Act, 2000, both the date the wages were earned (July 27, 2001) and the date the alleged contravention of an employment standard (August 11, 2001 - one day after the pay cheque was due) occurred prior to September 4, 2001.
Therefore, the former Employment Standards Act would govern the investigation and available remedies for the alleged contravention. An order to pay for a contravention of s. 7(3) would be issued by an employment standards officer under s. 65(1.2) of the former Employment Standards Act.
2. In addition, it is Program Policy that the former Employment Standards Act will also apply to the investigation and available remedies of an alleged contravention of an employment standard that occurred on or after September 4, 2001, but was based on an employment standard entitlement arising prior to September 4, 2001.
Example:
Dana files a complaint on November 20, 2001, that her employer did not pay the premium rate for work she performed on Labour Day, 2001 (September 3, 2001). The amount was due on her September 15, 2001, pay cheque which covered the pay period August 26 to September 8, 2001.
The alleged contravention of an employment standard occurred when the employer failed to pay the premium rate on September 15, 2001. Although September 15 occurs after the coming into force date of the Employment Standards Act, 2000, the entitlement to the premium rate arose when it was earned on Labour Day, which was prior to the coming into force of the Employment Standards Act, 2000 on September 4, 2001.
The date of the entitlement to the premium rate (September 3, 2001) and not the date upon which it became due (September 15, 2001) is the determining date of which Act governs the investigation and available remedies for Dana's claim.
Therefore, an order to pay for a contravention of s. 7(3) would be issued by an employment standards officer under s. 65(1.2) of the former Employment Standards Act.
3. Lastly, it is Program Policy that the former Employment Standards Act will also apply to the investigation and available remedies with respect to a contravention concerning a pregnancy leave or parental leave that commenced prior to September 4, 2001.
Example 1:
April files a complaint on January 7, 2002, that her employer did not reinstate her to her position at the end of her parental leave on December 31, 2001.
The parental leave had commenced on May 1, 2001. Although the leave ended after the coming into force of the Employment Standards Act, 2000, the leave commenced prior to the coming into force of the Employment Standards Act, 2000 on September 4, 2001.
The date the leave commenced (and not the date the leave ended) is the determining date of which Act governs the investigation and available remedies for April's claim.
Therefore an order for compensation for a contravention of s. 43 of the former Employment Standards Act would be issued by an employment standards officer under s. 45 of the former Employment Standards Act.
Example 2:
Glenda files a complaint on May 29, 2002, that she was not reinstated to her position at the end of her parental leave on May 20, 2002.
Glenda had commenced a pregnancy leave on May 21, 2001, and that leave had ended on September 17, 2001. Her parental leave commenced on September 17, 2001, after the Employment Standards Act, 2000 came into force.
Because Glenda's complaint concerns her rights to reinstatement following her parental leave, the date the parental leave commenced is the determining date of which Act governs the investigation and available remedies for Glenda's claim.
Therefore an order for compensation and/or reinstatement for a contravention of s. 53 of the Employment Standards Act, 2000 would be issued by an employment standards officer under s. 104 of that Act.
Same - s. 144(2)
The One Day's Rest in Seven Act, R.S.O. 1990, c. O.7, provided that hospitality industry workers in towns with a population greater than 10,000 would have to receive at least one day off work in every seven-day period. The Act required that, if possible, the day off be a Sunday. Watchmen, janitors, supervisors, managers and certain part-time workers were excluded from the Act. A violation of the Act was subject to a maximum fine of $25,000. The One Day's Rest in Seven Act was repealed on September 4, 2001.
Section 18(4) of the Employment Standards Act, 2000 now provides a general entitlement for a period free from the performance of work of at least 24 consecutive hours in every work week or at least 48 consecutive hours in every two consecutive work weeks. The weekly and bi-weekly rest entitlements provided in s. 18(4) are applied to employees generally and are not limited to hospitality industry workers within towns with a population greater than 10,000.
For further information on the application of s. 18(4), please see ESA Part VII, s. 18(4).
Same - s. 144(3)
The Government Contracts Hours and Wages Act, R.S.O. 1990, c. G.8, was first enacted in 1936. It was enacted to establish a legislative foundation for a government fair wage policy for hours of work and wages for workers employed by private sector employers who were carrying out construction contracts for the provincial government.
The Government Contracts Hours and Wages Act was repealed on September 4, 2001. It should be noted, however, that in recent years, the government's fair wage policy has been established pursuant to an order-in-council independently of the Government Contracts Hours and Wages Act. The repeal of the Government Contracts Hours and Wages Act, therefore, has no impact on the current fair wage policy.
Same - s. 144(4)
The Employment Agencies Act, R.S.O. 1990, c E.13, required that employment agencies, whether engaged in finding employees for employers or in finding employers for employees, be licensed. This Act was repealed on March 31, 2001. As a result, employment agencies in Ontario are no longer required to obtain a licence to operate.
Same - s. 144(5)
The Industrial Standards Act, R.S.O. 1990, c I.6, was first enacted in 1935. It provided a means for establishing minimum standards for hours, wages and other working conditions for specific industries that were different from the entitlements provided under the former Employment Standards Act. These entitlements were set out in schedules contained in regulations under the former Employment Standards Act.
By the time of the former Employment Standards Act's repeal on September 4, 2001, only two industries were covered by active schedules: the women's coat and suit industry and the women's dress and sportswear industry. Entitlements for these two industries are now set out in O. Reg. 291/01 (Terms and Conditions of Employment in Defined Industries) under the Employment Standards Act, 2000.
Section 145 omitted (Provides for coming into force of provisions of this Act)
Section 143 of the Employment Standards Act, 2000 was proclaimed into force as of December 30, 2000, amending the parental leave provisions of the former Employment Standards Act. Subsection 144(4) of the Employment Standards Act, 2000, providing for the repeal of the Employment Agencies Act, was proclaimed in force as of March 31, 2001. All remaining provisions of the Employment Standards Act, 2000 (including s. 144(1) which repealed s. 143) were proclaimed in force as of September 4, 2001.
Section 146 omitted (Enacts short title of this Act)
All bills introduced in the Legislative Assembly contain both a long title and a short title. However, once the bill receives Royal Assent, the statute created by the bill will for convenience usually be referred to only by its short title.