The Ontario government introduced Bill 66, Restoring Ontario’s Competitiveness Act, 2018 on December 6, 2018. Bill 66 passed First Reading, and is set to bring about further employer-friendly amendments to the Employment Standards Act, 2000 (the “ESA”) and the Ontario Labour Relations Act (the “LRA”).
Proposed ESA Changes
Bill 66 would relieve employers of the obligation to post the Ministry’s poster providing information about the Act and regulations in the workplace.
More significantly, Bill 66 would remove the requirement for employers to obtain approval from the Director of Employment Standards before instituting excess hours and overtime averaging agreements.
Currently, even with employees’ written agreement, employers cannot permit employees to work in excess of the legislated weekly maximum of 48 hours without the consent of the Director (“excess hours approval”). Similarly, even with employees’ written agreement, employers cannot average employees’ hours of work for the purpose of determining entitlement to overtime pay without the Director’s approval (“overtime averaging approval”).
In practice, it has been relatively easy for employers to obtain approval for excess hours agreements, especially where the proposed hours do not exceed 60 in a week (i.e. 12 hours weekly over 48). However, in recent years, it has become extremely difficult for many employers to obtain overtime averaging approval, especially where they have sought to average overtime hours over a period exceeding two weeks.
Overtime averaging is typically sought by employers to reduce costs, particularly where employees work fluctuating hours. In recent years, the Ministry has cracked down on employers it viewed as seeking overtime averaging agreements which provided (in the Ministry’s view) no benefit to employees. Illustrating such benefit can be extremely difficult to do in practice, and many applications, particularly for averaging over a four week period, were rejected.
If passed, Bill 66 would allow employers and employees to agree to excess hours and overtime averaging (in writing) without the need for Director approval.
Proposed LRA Changes
Bill 66 would amend the LRA to deem municipalities and certain local boards, school boards, hospitals, colleges, universities and public bodies to be non-construction employers. This would mean that trade unions currently representing employees of such institutions who are employed in the construction industry would lose representation rights over those employees. Any collective agreements in existence in regard to such employees would cease to apply, insofar as they apply to the construction industry.
This proposal is likely to face strong opposition from trade unions before it passes – and constitutional challenge if it passes. In our view, the legislation should survive constitutional scrutiny, since the government would not be foreclosing bargaining rights and collective bargaining, but would simply be designating the industrial (non-construction) regime under the LRA as the appropriate platform for the expression and enforcement of those rights.