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5.1 Legislative History of the ESA

See also: The Changing Workplaces Review

Ontario’s first comprehensive employment standards legislation – the Employment Standards Act, 1968 – was proclaimed into force in 1969. This law consolidated a number of Acts dealing with different types of employment standards.

Sections below highlight key changes made to employment standards legislation over the past four decades. Note that this is not an exhaustive list of amendments and does not identify all details relating to a particular change (e.g., exemptions from, or qualifying conditions for, a particular standard).

Pre-1969

Related predecessor legislation to the Employment Standards Act, 1968 included the following Acts:

  • the Ontario Factories Act of 1884 was Ontario’s first statute to regulate hours of work. That Act applied to the manufacturing industry and set maximum hours of work for boys, girls and women at 10 hours per day and 60 hours per week;
  • in 1920, the Minimum Wage Act authorized a Board to establish a weekly minimum wage in a particular trade, industry or business. Initially the Act applied only to female employees, but was extended to male employees in the 1930s. The Board was also given authority to establish minimum hourly rates for overtime. In the early 1960s, hourly minimum wage rates replaced the weekly rates; and
  • in 1944, the Hours of Work and Vacations with Pay Act set maximum hours of work at 8 hours per day and 48 per week in certain industrial undertakings, the same general standard that prevails today. A Board was authorized to order longer hours where both the employer and employees agreed. Also:
    • the Act provided for 1 week of vacation with 2% vacation pay after each year of service; in the mid-1960s employees with 3 or more years of service became entitled to 2 weeks’ vacation and 4% of their total wages as vacation pay; and
    • meal break requirements were introduced into the Act in the mid-1960s.

1968 and 1969

The separate statutes described above were replaced with the Employment Standards Act, 1968. In addition to setting out maximum hours of work, vacation with pay and minimum wage entitlements, the 1968 Act:

  • set overtime pay at 1.5 times the regular rate for hours of work in excess of 48 hours a week (the employer and employee (with the approval of the Director of Employment Standards) could agree to average hours of work for the purposes of determining the employee’s entitlement to overtime pay);
  • incorporated provisions that were in the Ontario Human Rights Code concerning equal pay for female workers doing the same work as male workers in the same establishment; and
  • provided for premium pay for hours worked on one of the four public holidays – Good Friday, Dominion Day (now Canada Day), Labour Day and Christmas Day.

1970 to 1999

Key amendments to the Act in the 1970s:

  • instituted written notice of termination and provided for termination pay where notice was not given; created rules around mass terminations;
  • incorporated pregnancy leave entitlements that were in the Women’s Equal Employment Opportunity Act;
  • lowered the overtime pay threshold from 48 to 44 hours of work in a week; and
  • added 3 more public holidays – New Year’s Day, Victoria Day and Thanksgiving Day.

Key amendments to the Act in the 1980s:

  • introduced entitlement to severance pay;
  • introduced the lie detector provisions;
  • altered the length of required notice of termination; and
  • added a public holiday – December 26 (Boxing Day).

Key amendments to the Act in the 1990s:

  • introduced parental leave (in 1990); and
  • created the Employee Wage Protection Program (EWPP) (in 1991; narrowed in 1995; and discontinued in 1997).[117]

The following were introduced after the change in government in 1995:

  • a $10,000 cap on an order to pay issued by an Employment Standards Officer (ESO);
  • a shorter time limit for recovery of unpaid wages;
  • permission for the Director of Employment Standards to appoint private sector collectors;
  • a general prohibition against unionized employees filing complaints under the Act (enforcement put under collective agreements); and
  • jurisdiction to hear applications for review transferred from the Office of Adjudication to the Ontario Labour Relations Board (OLRB).

2000

The 2000 review of the former Employment Standards Act included province-wide consultations by the government. The new Act took effect in 2001.

Key changes included:

  • hours of work – the permit system for excess hours was eliminated; an employee’s agreement to work excess hours now had to be in writing; approval by the Director of Employment Standards for excess hours was required only after 60 hours in a week, not 48 hours;
  • rest periods – daily, weekly/bi-weekly and between shift rest periods were introduced;
  • overtime – agreements to average overtime over a period of up to 4 weeks no longer required the approval of the Director of Employment Standards; the Director’s approval was still required to average overtime for a period longer than 4 weeks. Employers and employees could agree in writing that overtime will be taken as paid time off in lieu of overtime pay;
  • job-protected leave – personal emergency leave (PEL) was introduced for employers with 50 or more employees; the length of parental leave was extended;
  • posting information – required employers to post information about the ESA in the workplace;
  • reprisals – introduced a general anti-reprisal provision enforceable by an ESO through orders for reinstatement and/or compensation. Burden placed on the employer to show there was no reprisal; and
  • enforcement tools – authorized ESOs to issue Notices of Contravention (NOCs) and compliance orders. Provided for escalating maximum fines for corporations and increased the maximum jail term.

Post-ESA, 2000

Additional changes to the Act that generally focused on a specific issue, rather than a full review of the Act.

Excess hours of work and overtime averaging (2005):

Public consultations on the scheme for excess daily and weekly hours led to the following changes:

  • the Director of Employment Standards must approve all agreements between employers and employees to work excess weekly hours (i.e., more than 48 hours in a week rather than just those above 60 hours a week);
  • employers are required to give to an employee agreeing to work excess daily or weekly hours an information document, prepared by the Director of Employment Standards, that describes employees’ rights under the hours of work and overtime pay provisions; and
  • the Director of Employment Standards must approve all agreements between employers and employees to average hours of work for the purposes of determining the employee’s entitlement to overtime – rather than just those agreements that average hours beyond a 4-week period.

New job-protected leaves:

  • family medical leave was introduced in 2004;
  • reservist leave was introduced in 2007; and
  • organ donor leave was introduced in 2009.

New public holiday:

  • Family Day was added beginning February 2008.

Temporary help agencies:

  • extensive amendments relating to temporary help agency (THA) employment were introduced in 2009 (see section 5.3.9 for details).

Changes to the claims process (2010):

  • provided that the Director of Employment Standards generally would not assign a claim to an ESO unless the employee takes certain steps identified by the Director (one such step established by the Director is that, generally, the employee must contact his or her employer to try to resolve the issue before she or he files a claim);
  • provided that an ESO assigned to investigate a claim can attempt to effect a settlement between the parties; and
  • provided that an ESO can give notice requiring an employee or employer to supply evidence or submissions within a specified timeframe, failing which, the ESO can make a decision based on the best available evidence.

2014 and 2015

The most recent changes to the ESA came into force in 2014 and 2015:

  • cap and time period for recovering wages – the $10,000 cap on orders to pay wages was eliminated and the time limit for recovery of unpaid wages was extended from six (or twelve months in certain cases) to two years;
  • minimum wage – beginning October 1, 2015, annual adjustments to the minimum wage became based on changes in the Consumer Price Index. A review of the minimum wage and the process for adjusting it must commence before October 1, 2020;
  • employment standards poster – employers are now required to provide employees with a copy of the most recent version of the employment standards poster;
  • temporary help agencies (THAs) – introduced joint and several liability between THAs and their clients for the failure to pay certain unpaid wages and premium pay; and
  • new job-protected leaves – family caregiver leave, critically ill child care leave, and crime-related child death or disappearance leaves were enacted.

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