George Vassos, Rhonda Levy

Changes to Ontario, Canada's Employment Standards Act and Labour Relations Act Keep on Coming

On December 6, 2018, Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (“Bill 66”), passed First Reading.1 If Bill 66 is passed in its current form, it will impact several statutes in the province.

Of particular interest to employers is the proposed impact of Bill 66 on the Employment Standards Act, 2000 (ESA), which sets the minimum wage, hours of work, leave entitlements and other minimum employment standards for employees working in Ontario for employers subject to provincial jurisdiction, and the Labour Relations Act, 1995 (LRA), which governs labour-management relations in the province.

Proposed Changes to the ESA:

ESA Poster

The ESA currently requires the Minister of Labour to prepare and publish a poster containing information about rights and obligations under the ESA (the “ESA Poster”). In addition, it requires employers to post the ESA Poster in at least one conspicuous place in every one of the employer’s workplaces where it is likely to come to the attention of employees, and to provide a copy of it to each employee.

In its current form, Bill 66 transfers the responsibility of preparing and publishing the poster from the Minister of Labour to the Director of Employment Standards. In addition, Bill 66 repeals the provision requiring employers to post the ESA Poster; however the requirement that employers provide a copy of the poster to each employee remains intact.

Agreement to Excess Hours of Work in a Week (Exceeding Prescribed 48-Hour Limit)

Bill 66 proposes to repeal the provision requiring employers to seek approval from the Director of Employment Standards to allow some or all of their employees to work more than 48 hours in a week. The Bill provides that an employee’s hours of work may exceed the prescribed 48-hour limit in a week if the employee (a) enters into a written agreement with the employer that the employee is willing to work up to a specified number of excess hours, and (b) the excess hours do not exceed the number of hours specified in the agreement. Director approval will no longer be required.

Agreement re Averaging Hours of Work (to Determine Entitlement to Overtime)

Bill 66 proposes to repeal the provision requiring employers to obtain approval from the Director of Employment Standards for a written agreement averaging an employee’s hours of work for the purpose of determining the employee’s entitlement to overtime. The Bill provides that an employee’s hours of work may be averaged for the purpose of making this determination if (a) the employee and employer enter into an averaging agreement, and (b) the averaging period does not exceed four weeks. Director approval will no longer be required.

Proposed Changes to the LRA:

Non-construction Industry Employers

The amendments that Bill 66 proposes to make to the LRA are in the section of the statute that relates to the construction industry. The Bill amends the definition of “non-construction employer” by deeming municipalities, local boards, school boards, hospitals, colleges, universities, and public bodies to be non-construction employers. In addition, it proposes that on the day the provision deeming these entities to be non-construction employers comes into force: (a) unions that represent their employees employed in the construction industry will no longer represent them, and (b) any collective agreement binding the non-construction employer and the union will cease to apply to the non-construction employer insofar as the collective agreement applies to the construction industry.

Timing

In its current form, Bill 66 proposes that:

(a) Amendments to the ESA will come into force on Royal Assent; and

(b) Amendments to the LRA will come into force on a day to be named by proclamation of the Lieutenant Governor.

Ontario’s Legislative Assembly is on break until February 19, 2019. Accordingly, Bill 66 will not advance through the legislative process until after conclusion of the break.

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