Canada: Competitiveness Restored: Ontario Passes Legislation To Lower Business Costs And Increase Flexibility For Employers

On April 3, 2019, Bill 66, Restoring Ontario's Competitiveness Act, 2018 ("Bill 66") received Royal Assent and became law. Bill 66 is an omnibus bill, amending several provincial acts, including Ontario's Employment Standards Act, 2000 ("ESA") and the Labour Relations Act, 1995 ("LRA"), with the goal of boosting business in Ontario.

Amendments to Ontario's Employment Standards Act, 2000

With respect to amendments to the ESA, which take effect immediately, Bill 66 eliminates an employer's obligation to post the Employment Standards Poster in the workplace.

Additionally, Bill 66 amends certain hours of work and overtime rules in the ESA. In particular:

  • Employers are no longer required to obtain the approval of the Director of Employment Standards (the "Director") in order to permit an employee to work in excess of 48 hours per week. An employee's hours of work may exceed 48 hours in a work week if the employee has made an agreement with the employer that he or she will work up to a specified number of hours over the limit and his or her hours in a work week do not exceed those specified in the agreement.
  • Employers are no longer required to obtain the Director's approval in order to average an employee's hours of work for the purposes of determining an employee's entitlement to overtime pay. An employee's hours of work may be averaged in accordance with the terms of an averaging agreement between the employee and employer over a period of up to four (4) weeks. In other words, if an employee agrees to average their hours of work for the purposes of overtime eligibility, the Director no longer needs to approve such agreements.
  • For transition purposes, averaging agreements entered into before April 3, 2019 and that were approved by the Director will remain valid until they are revoked, or until the Director's approval expires or is revoked.
  • For unionized employees, averaging agreements will expire no later than the day that the next collective agreement comes into operation.

These amendments are a welcome change for employers. The previous Director approval process was time-consuming, often taking several months to receive approval. Additionally, the Director was increasingly denying applications for excess hours and overtime averaging approval.

Amendments to the Ontario Labour Relations Act, 1995

Amendments to the LRA resulting from Bill 66 include the following:

  • Municipalities will be deemed to be non-construction employers, along with other entities including, broadly speaking, certain local boards, local housing corporations, municipal corporations, district social services administration boards, school boards, hospitals, applied arts and technical colleges, certain universities, and public bodies.
  • Construction industry employees who are employed by a newly-deemed non-construction employer will no longer be represented by their previous trade union. Any collective agreement binding the non-construction employer to the trade union will cease to apply, as far as the agreement relates to the construction industry.
  • Entities or trade unions that will be affected by the changes—and that have bargaining units that include construction and non-construction employees—may apply to the Ontario Labour Relations Board to have the composition of the bargaining units redefined.
  • A newly-deemed non-construction employer may opt-out (in accordance with specified timelines) of the deemed designation and remain a construction employer, if it has an existing trade union relationship related to construction.

These amendments have not yet been declared to be in force.

We will continue to provide regular updates on these and other changes to Ontario's workplace laws as they occur.

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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