Pay Transparency Act, 2018, S.O. 2018, c. 5 - Bill 3

• Jurisdiction: Ontario
• Bill Number: 3
• Date: 07 May 2018

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 3 and does not form part of the law. Bill 3 has been enacted as Chapter 5 of the Statutes of Ontario, 2018.

The Pay Transparency Act, 2018 is enacted. The Act establishes requirements relating to the disclosure of information about the compensation of employees and prospective employees.

Section 5 prohibits employers from seeking compensation history information about an applicant for a position. Section 6 requires employers to include in any publicly advertised job posting information about the expected compensation or range of compensation for the position. Section 7 requires employers with 100 or more employees and prescribed employers to prepare pay transparency reports that include information about the employer, the employer’s workforce composition and differences in compensation in the employer’s workforce with respect to gender and other prescribed characteristics.

Section 8 is an anti-reprisal provision that prohibits employers, or persons acting on their behalf, from intimidating, dismissing or otherwise penalizing employees for, among other things, making inquiries about the employee’s compensation, disclosing their compensation or asking the employer to comply with the Act or the regulations. Complaints by employees that an employer has contravened the anti-reprisal provision may be dealt with by arbitration or by filing a complaint with the Ontario Labour Relations Board.

Sections 9 to 12 address the powers and duties of compliance officers who may be appointed to enforce the Act. Compliance officers may conduct compliance audits, and if an officer believes that a person has contravened a provision of this Act or the regulations, the officer may issue a notice of contravention to the person under section 13. Sections 14 to 16 specify the procedures that apply for disputing a notice of contravention before the Ontario Labour Relations Board and enforcing the notice in a court.

Miscellaneous provisions are included addressing limitation periods and other matters, and related regulation-making powers are added.

chapter 5

An Act respecting transparency of pay in employment

Assented to May 7, 2018

contents

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation, Application, Etc.

Definitions

1 In this Act,

“applicant” means an individual who applies for employment with an employer, other than an individual who is an employee of the employer at the time of applying; (“candidat”)

“Board” means the Ontario Labour Relations Board; (“Commission”)

“compensation” means all payments and benefits paid or provided to or for the benefit of a person who performs functions that entitle the person to be paid a fixed or ascertainable amount; (“rémunération”)

“employee” has the same meaning as in the Employment Standards Act, 2000; (“employé”)

“employer” has the same meaning as in the Employment Standards Act, 2000; (“employeur”)

“Minister” means the member of the Executive Council to whom responsibility for the administration of this Act is assigned or transferred under the Executive Council Act; (“ministre”)

“Ministry” means the ministry of the Minister; (“ministère”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“publicly advertised job posting” means an external job posting for a specific job that an employer advertises to the general public in any manner, but for greater certainty does not include recruitment campaigns, general help wanted signs or positions that are only advertised to existing employees of the employer; (“annonce publique de poste”)

“regulations” means the regulations made under this Act. (“règlement”)

Minister responsible

2 (1) The Minister is responsible for the administration of this Act.

Policies

(2) The Minister may establish policies respecting the interpretation, administration and enforcement of this Act.

Delegation of powers

(3) Where, under this Act or the regulations, any power or duty is granted to or vested in the Minister or the Deputy Minister of the Ministry, the Minister or Deputy Minister may, in writing, delegate that power or duty from time to time to any employee in the Ministry, subject to such limitations, restrictions, conditions and requirements as the Minister or Deputy Minister may set out in the delegation.

Crown bound

3 This Act binds the Crown.

Purposes of the Act

4 The purposes of this Act are,

(a) to promote gender equality and equal opportunity in employment and in the workplace, including equality of compensation between women and men, through increased transparency of pay and workforce composition;

(b) to increase disclosure of inequities related to employment and compensation that women and other Ontarians may experience in the workplace to encourage the removal of such inequities to promote the full and equal participation of women and other groups in the workplace;

(c) to promote, amongst employers, the elimination of gender and other biases in hiring, promotion, employment status and pay practices;

(d) to support open dialogue and workplace consultation between employers and employees on issues concerning employment, compensation and equal opportunity; and

(e) to support economic growth through the advancement of equity in employment and in the workplace for women and other groups.

Compensation History

Compensation history

5 (1) No employer shall seek compensation history information about an applicant by any means, whether personally or through an agent.

Unprompted disclosure

(2) Nothing in this section prohibits an applicant from voluntarily and without prompting disclosing compensation history information to an employer or an employer’s agent.

Comparable compensation

(3) Nothing in this section prohibits an employer from seeking information about the ranges of compensation or aggregate compensation provided for positions comparable to the position for which the applicant is applying.

Use of information

(4) Where an applicant has made a disclosure of compensation history information described in subsection (2) or the employer has obtained information described in subsection (3), nothing in this section prohibits the employer from considering or relying on such information in determining compensation for the applicant.

Exception, public information

(5) This section does not apply to compensation history information that is publicly available.

Compensation Range Information

Compensation range information

6 Every employer who advertises a publicly advertised job posting shall include in the posting information about the expected compensation for the position or the range of expected compensation for the position.

Pay Transparency Reports

Pay transparency reports

7 (1) Every employer with 100 or more employees and every prescribed employer shall collect the prescribed information for the purposes of preparing, no later than May 15 each year, a pay transparency report that complies with the requirements in the regulations and that contains the prescribed information relating to the employer, the employer’s workforce composition and differences in compensation in the employer’s workforce with respect to gender and other prescribed characteristics.

First report, employer with 250 or more employees

(2) An employer with 250 or more employees shall submit the first pay transparency report no later than May 15, 2020.

First report, employer with 100 or more employees

(3) An employer with 100 or more employees but fewer than 250 employees shall submit the first pay transparency report no later than May 15, 2021.

Submission of report

(4) An employer who is required to prepare a pay transparency report under subsection (1) shall submit it to the Ministry in accordance with any prescribed requirements.

Posting

(5) An employer who is required to prepare a pay transparency report under subsection (1) shall post it online or in at least one conspicuous place in every workplace of the employer where it is likely to come to the attention of employees in that workplace.

Publication

(6) The Ministry shall publish, or otherwise make available to the public, the pay transparency reports submitted under subsection (4).

Internet publication

(7) Authority to publish under subsection (6) includes authority to publish on the Internet.

Anti-reprisal

Anti-reprisal

8 (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee has,

(a) made inquiries to the employer about the employee’s compensation;

(b) disclosed the employee’s compensation to another employee;

(c) made inquiries about a pay transparency report made under section 7, or about information contained in such a report;

(d) given information about the employer’s compliance or non-compliance with the requirements of this Act or the regulations to the Ministry; or

(e) asked the employer to comply with this Act or the regulations.

Arbitration

(2) Where an employee complains that an employer or person acting on behalf of an employer has contravened subsection (1), the employee may either,

(a) have the matter dealt with by final and binding settlement by arbitration under a collective agreement, where one is in place; or

(b) file a complaint with the Board, in which case any rules governing the practice and procedure of the Board apply, with all necessary modifications, to the complaint.

Board may inquire

(3) The Board may inquire into any complaint filed under clause (2) (b), and where it does so, the following provisions of the Labour Relations Act, 1995 apply, with any necessary modifications, for the purposes of this Act:

1. Section 96, except subsection (5).

2. Section 110, including, for greater certainty, the power to make...