Changes to Ontario Workplace Laws Confirmed Bill 66 Receives Royal Assent

April 16, 2019

On April 3, 2019 Bill 66, Restoring Ontario's Competitiveness Act, 2019, received Royal Assent. Bill 66 (previously discussed here on our blog) confirms a number of amendments to the Employment Standards Act, 2000 ("ESA") and the Labour Relations Act, 1995 ("LRA").

We note the following significant amendments:

ESA Changes

  • Overtime Averaging. Ontario employers are no longer required to obtain approval from the Director of Employment Standards for overtime averaging agreements. Overtime averaging allows an employer to average their employees’ hours of work over two (2) or more weeks, in order to determine entitlement to overtime pay. Employers may now enter into overtime averaging agreements directly with their employees, as long as the averaging period does not exceed four (4) weeks. To be valid, an overtime averaging agreement must include a start date and an expiry date. For non-unionized employees, an overtime averaging agreement can be in place for no more than two (2) years but may be renewed or replaced.
  • Excess Hours of Work. Ontario employers may now enter into agreements directly with their employees to work more than 48 hours in a week; there is no longer any requirement to obtain Director approval in respect of such agreements.
  • Posting Requirements. Employers are no longer required to post the ESA informational poster in the workplace. The poster must still be provided to employees by the employer. In addition, the Director of Employment Standards now has the authority to prepare, publish and update the ESA informational poster. Previously, the Ministry of Labour had this authority. The current version of the poster is available here.

LRA Changes

  • Deemed Non-Construction Employers. A new definition of "non-construction employers” has been added to the LRA. The construction industry provisions under the LRA will not apply to “non-construction employers.” Pursuant to Bill 66, municipalities, local boards, school boards, hospitals, colleges, universities and public bodies will be deemed to be “non-construction employers.”
  • Impact on Bargaining Rights. Unions that represent employees of a non-construction employer in the construction industry will no longer represent those employees. Any collective agreement binding the non-construction employer and the union will cease to apply with respect to the non-construction employer in so far as the collective agreement applies to the construction industry.
  • The above changes to the LRA will come into force upon proclamation by the Lieutenant Governor. This date has not yet been announced.
  • Election to Opt Out. Bill 66 includes a mechanism by which deemed non-construction employers can elect to opt out of the application of these new rules. The opt out provisions are already in force and an election can be made within the next three (3) months.

Pay Transparency Update

We previously advised on this blog that the coming into force of Bill 57, An Act to enact, amend and repeal various statutes was postponed until a date to be named by proclamation of the Lieutenant Governor, thereby delaying the implementation of the Pay Transparency Act (see here and here). In the interim period, the Ministry of Labour has been consulting with stakeholders on the legislation. These consultations closed April 5, 2019 however the status of Bill 57 remains unclear. We are continuing to monitor any developments in this regard.

Action

Employers should update their policies and procedures to incorporate the amendments to the ESA respecting overtime averaging and excess hours. The new legislation also serves as a reminder to employers to continue providing the ESA poster to all employees. We will continue to provide updates on the status of the Pay Transparency Act on this blog.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

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