May 2018 Charity & NFP Law Update
On May 7, 2018, the Ontario government announced that, following feedback from stakeholders and as part of the government’s on-going response to the Changing Workplaces Review (CWR), the Ministry of Labour would review the public holiday system under Part X of Employment Standards Act, 2000 (“ESA”). In this regard, on the same day, the government released Ontario Regulation 375/18 under the ESA as an interim measure to reinstate the public holiday pay formula recently amended by the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”), discussed in Charity & NFP Law Bulletin No 411. The government also indicated that submissions regarding the public holiday pay review can be sent via email to [email protected].
Before the amendments introduced by Bill 148, section 24(1)(a) of the ESA provided that an employee’s public holiday pay was “the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20”. Effective January 1, 2018, Bill 148 amended this calculation to “the total amount of regular wages earned in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that period”.
Because clause 24(1)(b) of the ESA allows the government to prescribe some other manner of calculation by regulation, Regulation 375/18, which will come into force on July 1, 2018, reinstates the public holiday pay formula in section 24(1)(a) of the ESA before the amendments introduced by Bill 148. In this regard, public holiday pay during the first half of the year was subject to the new formula, but public holiday pay during the second half of the year should return to the old formula.
Regulation 375/18 is scheduled to be revoked on December 31, 2019 if no other action is taken by the government before that time. Charities and not-for-profits subject to the ESA should continue to monitor these developments, as it is unclear how soon another change may be expected from the public holiday pay review.