BACKGROUND
On March 6, 2019, the Government of Ontario’s Bill 66, Restoring Ontario’s Competitiveness Act, passed Second Reading in the House and was sent for further study to the Standing Committee on General Government. The bill is part of the provincial government’s multi-year Ontario Open for Business Action Plan, which aims to eliminate red tape and restrictive regulations for businesses in the province. Bill 66 is the second initiative by the government under the Plan, following Bill 47, the Making Ontario Open for Business Act.
The omnibus bill, first introduced on December 6, 2018, contains over 30 actions, including changes to legislation related to the areas of labour and employment, day care and education of young children, and much more.
A summary of the proposed changes of relevance to not-for-profit employers in the social services, health and developmental services sectors are as follows:
Changes to the Employment Standards Act, 2000 (“ESA”):
No approval required for excess hours of work
The ESA currently prohibits employees from working more than 48 hours per week, unless approved by the Ministry of Labour’s Director of Employment Standards (the “Director”.) While employers would still be required to enter into written agreements with employees with regards to excess hours, Bill 66 would eliminate the need to have the extra hours approved by the Director.
It is important to note that even with this change, the rules that apply are still very strict and include:
- For unionized employees:
- The union and employer must agree, in writing, that the employee will work up to a specified number of additional hours in the week.1
- For non-union employees:
- The employee and employer must agree, in writing, that the employee will work up to a specified number of additional hours in the week and the employee was given the Ministry of Labour Information Sheet entitled “Information for Employees About Hours of Work and Overtime Pay” before the agreement was made.2
Unless these conditions are met, an agreement may be of no -force or effect.
No approval required for overtime averaging
Currently, the ESA requires (i) an employer to pay employees overtime pay for more than 44 hours of work per week and (ii) approval by the Director for the employer to average hours of work over two or more consecutive weeks. Bill 66 would eliminate the need for the Director to approve overtime averaging agreements. Employers would still be subject to written agreements with employees, but would have the ability to average an employee’s hours of work for up to four weeks to determine overtime pay.
It is important to note that even with this change, the rules that apply are still very strict and include:
- For unionized employees:
- The union and employer must agree, in writing, that employees’ hours of work will be averaged over a specified number of weeks for the purpose of calculating overtime pay.3
- The agreement must provide an expiry date.
- For non-unionized employees:
- The employee and employer must agree, in writing, that the employees’ hours of work will be averaged over a specified number of weeks for the purpose of determining their entitlement to overtime pay.4
- The agreement must contain an expiry date and that date cannot be more than two years from the day the agreement takes effect.
Unless these conditions are met, an agreement may be of no -force or effect, which could result in significant liability for unpaid overtime going back as much as two years. We recommend that any employer seeking to enter into an overtime averaging agreement get legal advice before doing so and ensure that the foregoing requirements are clearly documented.
No ESA Poster in Workplaces
Under the ESA, employers are currently required to post ESA posters in the workplace, which display information about the Act and the regulations, and provide copies to employees. While employers would still be required to provide handouts to employees, Bill 66 removes the obligation to post the ESA information in the workplace.
Change to the Labour Relations Act, 1995 (“LRA”):
Non-Construction Employers
Bill 66 proposes changing the LRA so that broader public entities, such as municipalities, school boards, hospitals, colleges, universities and other public bodies would be designated as “non-construction employers.” As it stands, employers who are not in the construction industry may apply to the Ontario Labour Relations Board to be declared a “non-construction employer.” If Bill 66 becomes law, any collective agreements that designated non-construction employers have with unions representing employees in the construction industry would cease to apply. This means that employers may be able to hire non-union contractors for construction projects.
Change to the Pension Benefits Act, 1995 (“PBA”):
Merging Pension Plans
Under Bill 66, private-sector employers would be able to merge single-employer pension plans with jointly sponsored pension plans (JSPP), without approval from the government. Currently, the mergers of JSPPs are limited to public sector pension plans or pension plans designated by regulations under the PBA.
TAKEAWAY FOR EMPLOYERS
If passed, Bill 66 would lessen bureaucracy and grant employers the flexibility to manage scheduling, and broader public sector employers the ability to work with both union and non-union contractors.
While there is no need for employers to adapt to the provisions in the bill just yet, we expect that it may move quickly through the legislative process, given the rapid implementation of previous Bills 47 and 57. PooranLaw will closely monitor Bill 66 and will keep you informed as it develops.
If you have any questions or wish to discuss the implications for your organization, please contact Cheryl Wiles Pooran at cwpooran@pooranlaw.com.
[1] https://www.labour.gov.on.ca/english/es/forms/hours.php
[2] https://www.labour.gov.on.ca/english/es/forms/hours.php
[3] https://www.labour.gov.on.ca/english/es/forms/hours.php
[4] https://www.labour.gov.on.ca/english/es/forms/hours.php
