Canada: Beyond Bill 148 : More Changes Announced To The Employment Standards Act And The Labour Relations Act

Last Updated: January 18 2019
Article by Marc A. Rodrigue

On Thursday, December 6, 2018, a busy legislative day before a two month holiday break, the Government of Ontario introduced Bill 66 - An Act to restore Ontario's competitiveness by amending or repealing certain Acts in the legislature.

Bill 66 impacts several pieces of legislation, including the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA). Key amendments being proposed in Bill 66 that may be of interest to employers in Ontario are set out below.

Changes to the Employment Standards Act, 2000

No Requirement to Post the ESA Poster

Currently, the ESA requires the Minister of Labour to publish a poster on ESA rights and responsibilities, and requires employers in Ontario to post that poster in the workplace.

Bill 66 would change the responsibility of publishing the poster from the Minister to the Director of Employment Standards. It would also remove employers' obligations to post the poster. If Bill 66 passes, employers will no longer have to post that poster.

No More Director Approval for Excess Hours Agreements

With some exceptions, in the event employers require or permit employees to work in excess of 48 hours in a week in Ontario, they are required to have: 1) written agreement with the employees to work in excess of 48 hours up to a set number of hours, and 2) the approval of the Director of Employment Standards to have the employees work in excess of 48 hours in a week.

Bill 66 proposes to remove the need to have the approval of the Director of Employment Standards.

No More Director Approval for Overtime Averaging Agreements

The current ESA permits employees and employers to agree to average the weekly hours worked by an employee over a number of weeks for the purposes of determining overtime pay. In order for such an agreement to be valid, it requires the approval of the Director of Employment Standards.

Bill 66 proposes to remove the requirement to have the approval of the Director. Instead, employers and employees will be permitted to agree (in writing) to overtime averaging over a number of weeks, so long as the period of averaging is no longer than four weeks.

Averaging agreements in place at the time of the changeover would continue to apply until the agreement is revoked (or the collective agreement containing the averaging agreement expires), the Director's already-provided approval expires, or the Director's approval for the agreement is revoked.

Changes Proposed to the Labour Relations Act, 1995

Municipalities and Others to be Deemed Non-construction Employers

A longstanding dispute in the construction sector has been over whether municipalities, local boards, school boards, hospitals, colleges, universities and public bodies can (or should) be deemed construction employers at any time for the purposes of the LRA, and therefore subject to the unique construction sector rules of the LRA.

Under the current LRA, many of these entities have been deemed to be construction employers, and have been bound to collective agreements and bargaining units of employees under the LRA. The practical effect of this designation is that these employers are often required to work with unionized construction companies, and are prohibited from tendering construction work to non-union companies.

Bill 66 proposes to exempt all of these entities and to deem them to be non-construction employers. This would permit them to work with union or non-union construction companies as they deem fit. As a result, all current bargaining rights, and all applicable collective agreements to which these entities are bound, would cease to apply.

Those familiar with the industry know that this will affect multiple unions and their members, and in particular the Labourers International Union of North America (LiUNA) and the Carpenters Union, both of whom hold bargaining rights for certain municipalities and school boards. As of the publication of this bulletin, it is unclear if either of these unions will seek to challenge the extinguishment of bargaining rights on constitutional grounds, as has occurred in the past.

Timing for the Changes

Changes to the ESA are being proposed for the day Bill 66 is passed by the Legislature and received Royal Assent by Ontario's Lieutenant Governor. The proposed changes to the LRA are scheduled to take effect after the Bill is enacted, on a day to be chosen and set by the Government of Ontario.

As the Legislative Assembly will not sit again until February 2019, these changes may take some time before they come into effect. We will continue to monitor their progress.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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