Ontario Bill 66 Given Royal Assent and Impacts Employment and Labour Law

An amended version of the Restoring Ontario’s Competitiveness Act, 2019 (introduced as Bill 66) was enacted into law on April 3, 2019, which revises several pieces of legislation, including the Employment Standards Act and the Labour Relations Act.

Amendments to the Employment Standards Act

Effective April 3, 2019, employers must make changes to the following HR and payroll practices and policies:

  • Employment standards posting: Prior to April 3, 2019, section 2 of the Employment Standards Act (ESA) required the Minister of Labour to publish a poster on ESA rights and responsibilities. Employers were required to post that poster in a conspicuous place in the workplace and provide copies to each employee as soon as practicable after they were hired. The Restoring Ontario’s Competitiveness Act, 2019 moves the responsibility for publishing the poster from the Minister of Labour to the Director of Employment Standards. It also removes the employer’s obligation to post the poster in the workplace. Moreover, effective April 3, 2019, employers no longer have to post that poster, but are still required to provide a copy of the poster to each employee.
     
  • Approval to work in excess of the maximum weekly hours of work: Prior to April 3, 2019, under Part VII of the ESA, when employers required employees to work in excess of 48 hours in a week in Ontario, they had to first obtain a written agreement with the employees to work in excess of 48 hours up to a set number of hours and request the approval of the Director of Employment Standards. Effective April 3, 2019, the requirement to obtain the Director’s approval when employers have made agreements that allow their employees to exceed 48 hours of work in a workweek is removed. This allows employers, with the agreement of employees, to have more flexibility when planning production and scheduling hours of work.
     
  • Approval from Director to average hours of work to determine overtime pay: Prior to April 3, 2019, under Part VIII of the ESA, employees and employers could agree to average the weekly hours worked by an employee over a number of weeks for the purposes of determining overtime pay. However, in order for such an agreement to be valid, the approval of the Director of Employment Standards was required once the agreement was signed. Effective April 3, 2019, the requirement to have the approval of the Director was removed. Instead, employers and employees are 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. The other requirements regarding overtime averaging agreements remain in place. Averaging agreements in place at the time of the changeover 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. Some critics of the Restoring Ontario’s Competitiveness Act, 2019 believe this will allow employers to avoid paying overtime or to pay less overtime.

Amendments to the Labour Relations Act

The Restoring Ontario’s Competitiveness Act, 2019 also amends the Labour Relations Act. When the provisions are proclaimed in force, three months of the Restoring Ontario’s Competitiveness Act, 2019 receiving Royal Assent, a broad range of employers (i.e., unions, municipalities and certain local boards, school boards, hospitals, colleges, universities and public bodies, among others) will be deemed to be non-construction employers and trade unions that represent employees of these employers who are, or may be, employed, in the construction industry will no longer represent those employees. As a result, any binding collective agreement will cease to apply in so far as the collective agreement applies to the construction industry.

Amendments to the Pension Benefits Act

Currently, subsection 80.4 (1) of the Pension Benefits Act provides that the conversion of single employer pension plans to jointly sponsored pension plans, implemented through a transfer of assets and liabilities, is only available with respect to plans that are public sector plans and with respect to prescribed pension plans or classes of pension plans. Effective April 3, 2019, schedule 6 of the Restoring Ontario’s Competitiveness Act, 2019 repeals subsection 80.4(1).

Amendments to the Agricultural Employees Protection Act, 2002

Schedule 1 of the Restoring Ontario’s Competitiveness Act, 2019 amends the Agricultural Employees Protection Act, 2002 (AEPA) to extend the application of the AEPA to employees who engage in ornamental horticulture. Employees covered by AEPA are not permitted to unionize, but they have the right to form associations for the purposes of making representations to their employer regarding working terms and conditions. “Ornamental horticulture” means the production of ornamental plants or their parts for the purpose of their sale or distribution. The term “ornamental plant” includes annual and perennial plants, nursery sod, woody plants and Christmas trees. Amendments found in the Restoring Ontario’s Competitiveness Act, 2019 do not apply to a person who is engaged in ornamental horticulture or the production of ornamental plants if (a) the person is employed by a municipality to do so or (b) the person is employed in silviculture.

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