New employer-friendly legislation on the horizon
Since its election this summer, Ontario’s Progressive Conservative government has been busy reforming Ontario’s labour and employment laws to make them more employer-friendly as part of a campaign aimed at bringing business back to Ontario. The government first passed Bill 47, repealing many of the new entitlements introduced by the previous Liberal government, then stalled implementation of the province’s Pay Transparency Act.
Now with Bill 66, the Restoring Ontario’s Competitiveness Act, 2018, the government has taken aim at the Employment Standards Act, 2000’s (the ESA) overtime and hours of work provisions and certain aspects of the Labour Relations Act, 1995 (the LRA). Bill 66 had not yet passed into law as of the end of 2018. However, given the Progressive Conservative majority in Ontario’s legislature, we expect that Bill 66 will become law soon after the legislature resumes sitting in February 2019.
Bill 66’s proposed amendments to the ESA include:
- Eliminating the requirement for employers to post the employment standards poster in a conspicuous place in the workplace.
- Removing the requirement for employers to obtain governmental approval for employee agreements to work in excess of 48 hours per week.
- Removing the requirement for employers to obtain governmental approval for employee agreements to average an employee’s hours over a two-to-four-week period for the purposes of calculating overtime hours worked.
- Where the employee is not represented by a union, the duration of such agreements would be capped at two years before expiring or having to be renewed by the employer and employee.
- In unionized settings, such agreements would expire upon the commencement of the next collective agreement.
Previously, employers were required to obtain governmental approval of an agreement between the employer and an employee for the employee to work in excess of 48 hours per week or to average hours worked across multiple weeks for the purposes of determining overtime pay. Although historically this approval was often received, in recent years the government has become stricter in assessing requests to approve these agreements. In particular, the government has in recent years much more frequently refused to approve overtime averaging agreements, such that even where the employer and employee have agreed, the agreement had no force.
With the removal of the requirement for governmental approval, employers will be able to rely on a simple written agreement with the employee, without any further administrative effort or risk of the agreement being denied by the government. In practice, this will make it easier for employers and employees to agree that the employee can perform more than 48 hours of work per week, and to agree that employers can average the employee’s hours for the purposes of determining overtime pay in order to limit the amount of overtime pay owed to employees.
Bill 66’s proposed amendments to the LRA include:
- Deeming certain types of public employers not to be construction employers. In particular, the amendments would mean that the following types of employers would no longer be construction employers for the purposes of the LRA: municipalities, local boards, school boards, hospitals, colleges, universities and public bodies as defined by the Public Service of Ontario Act, 2006.
- The new amendments also provide that on the day Bill 66 would come into force, all existing employees subject to collective bargaining agreements which do not conform to the new definition of construction employer will no longer be represented by construction industry unions.
These changes will be consequential for these employers and their employees as the recently passed Bill 47 has removed access to card-based certification from all industries, except the construction industry. As the various types of public employers noted above would no longer be considered construction employers, those employers’ workforces would be required to unionize by way of representation votes, rather than by signing union membership cards.
Bill 66 would also amend the Pension Benefits Act by repealing s. 80.4 (1) which limited the conversion of single-employer pension plans to jointly sponsored pension plans, implemented through a transfer of assets and liabilities to public pension plans and certain prescribed pension plans. These sorts of conversions would become available more broadly.
The Progressive Conservative Ontario government has demonstrated its willingness to make substantial changes to the province’s labour and employment laws in a relatively short period of time. Given the rapidly shifting climate, employers would be wise to regularly keep up-to-date on any governmental announcements or legislative changes which might impact how businesses and organizations interact with their employees. As always, we will keep you updated as Bill 66 proceeds through the legislative process, and regarding any more legislation that may be tabled throughout 2019 that would further amend provincial legislation that would impact employer obligations and employee entitlements.