Wynne’s Minimum Wage Hike Caused Great Confusion For Workers And Business Owners

By Josh Lieblein

RAVING CANUCK, via an Access to Information request, obtained all 250 pages of complaints sent to the Ministry of Labour as Bill 148’s minimum wage hike came into effect in January. These emails reveal that there was another side to the story that the former Ontario Liberal government effectively suppressed, and provides some context for why the new Ford government currently has the legislation on the chopping block.

Just under a year ago, Kathleen Wynne attempted to cement her legacy as an “activist Premier” by passing Bill 148, the Fair Workplaces, Better Jobs Act. The bill mostly made headlines for mandating a raise in the province’s minimum wage from $11.40 to $14.00 an hour (which came into effect on January 1, 2018) and a further raise of another dollar to $15 an hour, which is scheduled for the first day of 2019. Further legislative changes included giving employees ten sick days per year, removing the need for doctors’ notes, mandating three weeks of paid vacation for employees who have been with the company for five years or more, and making it illegal to require employees to wear shoes with elevated heels.

When the bill was introduced, the media became preoccupied with stories of Tim Horton’s franchises cancelling their employees’ coffee breaks and the ex-Premier’s rather Trumpy tweet calling the founder of the company out for allegedly bullying behavior. It was a major public relations win for the Liberals and allowed them to direct the narrative away from small business owners who would have been squeezed by their reforms. Their gambit paid off: at the time, polls showed that 6 in 10 people supported the minimum wage hike.

Lost in the debate over Tim Horton’s treatment of their employees was another potential story related to prominent Asian supermarket chain  T + T Supermarkets. According to correspondence sent to the Ministry of Labour by Avvy Go, the Clinic Director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, the chain had pressured several employees — many of whom had limited English skills — to sign a letter consenting to a termination package with a lump sum payment as well as waiving their right to legal advice.

“Some of the workers who contacted us advised that they were working part time at T + T. They and some of their co-workers were laid off after raising concerns about their working conditions or working hours, which were being cut for no apparent reasons. … [W]e have reviewed a copy of one of the offers issued by T + T, in which it did stress the confidentiality of the offer. More troublingly, it contains a clause which requires the employee to confirm that they have had ‘ample opportunity to review’ the offer, and if they did not do so, it was because they have understood the terms and did not feel that they need legal advice.”

Go also mentioned that other former and current employees had testified to loss of paid breaks, severely reduced hours without corresponding reduction in work duties, and cancellation of a “lunch box” special program.

The story was covered by the Toronto Star back in January, also obtaining a copy of Go’s letter. That story revealed that T + T had since backed off on their plan to cut paid breaks for employees, and that the dismissals had, according to them, “nothing to do with tenure.” T + T declined to comment further for this story.

The majority of complaints to the Ministry of Labour came from small business owners who were confused by the new rules. Since the bill mandated that employers must provide 96 hours of notice of scheduling to employees, one owner wanted to know what was to happen if an employee scheduled a day off with less than 96 hours notice. Another constituent wrote in to ask if they should receive a proportional increase if they were already being paid $14 an hour before the January 1, 2018 increase, and others wanted to know why people who work a very small number of days per year were entitled to 10 days off and 3 weeks paid vacation.

“I am a small retail business owner who, a year ago, thought that maybe, after 8 1/2 years of struggle, I could finally receive some small return. Any hope of that disappeared with the changes to labour costs that Bill 148 will impose. … My regular staff work for me 1,2,3, or 4 days per week, with typical shifts of 6 hours. How do personal days apply to these situations? Surely I can’t be expected to provide 10 days off, include 2 paid days for someone who works about 50 days per year.”

Several complainants also noticed a major loophole in the formula for calculating public holiday pay, which stated that the total pay must be equal to the total amount of wages in the pay period immediately preceding the holiday divided by the number of days worked in that period. This meant that if someone only worked one day in a period, they stood to make the equivalent amount in holiday pay since their wages would only be divided by one to calculate the stat pay amount. By contrast, a person who worked two days for the equivalent wage would make the same amount of holiday pay as someone who worked one day, since the person who worked for two days would have their total divided by two. Eventually, this new formula was temporarily put on hold while the government promised it would come up with a new formula by December 2019.

Some workers reported that there had been a probationary period as the calendar rolled over from 2017 to 2018, and that the minimum wage increase hadn’t applied to the last pay period of the year. One of the government’s own MPPs, Michael Gravelle, (who held his seat of Thunder Bay-Superior North in the 2018 provincial election) went so far as to raise the case of a constituent who calculated that under the increase, a worker who worked fewer shifts at longer hours gets more stat pay than a worker who works more shifts but fewer hours.

In some cases, people were cut off from the minimum wage increase and other benefits altogether. Autoworkers alleged they were told that they would get 7 days of illness and 3 days of bereavement leave, as opposed to the promised 10 sick days, while other union members received the full 10. There was a letter from a salesperson who explained that since “true and good” salespeople work on commissions alone, they are not paid a salary and thus did not see an increase in wages.

Another letter from Elections Ontario inquired as to whether the organization would still be able to adhere to its standard practice of exemption from the Employment Standards Act:

“This staffing model has been based on the exemptions provided to employees of the Crown in Section 3(4) of the ESA, which applied to election officials. One of the key impact of the Fair Workplaces, Better Jobs Act on Elections Ontario is the removal of this exemption […] of particular concern are the impacts that compliance with Sections 17 and 18 of the ESA will have on our ability to operate polls for the hours prescribed in the Election Act…

Section 18 of the ESA provides for minimum hours free from work (e.g. between shifts). During the writ period, it will be challenging to guarantee that employees with receive the ESA’s mandated 24 consecutive hours without work in a single work week, or 48 consecutive hours without work in a two week period. There may be instances in which accommodating these hours free from work would compromise time-sensitive legislative responsibilities.”

Finally, there was the sad case of “deeming”, as applied by the Workplace Safety and Insurance Board to people on disability. According to a lawyer’s letter, the WSIB “deems” workers that have been injured capable of finding work again, they are paid the difference between the minimum wage and their previous earnings. Thus, as the minimum wage increases, the amount of money they receive from ODSB goes down. Bill 148 did not appear to address this situation, and no movement on the file has been noted since it came into effect early this year.

“The WSIB’s practice of determining what the injured worker should be able to earn, even if the actual earnings are zero (i.e. “deeming”), reduces the LOE (Loss of Earnings) payable. This is compounded by the fact that the pre-injury wages remain static over time […] The reviews of the LOE payments give the WSIB the ability to lower the LOE when wages go up in the workplace over time, even if the injured worker never returns to work.”

While the correspondence obtained by RAVING CANUCK shows only part of the confusion and headaches caused by Bill 148’s accelerated timeline, it is clear that the government’s desire to fast-track these changes caused a great deal of problems for both employees and employers.