Employment and Labour Law Related Changes in Ontario Bill 66 and More

On December 6, 2018, the Ontario Conservative government introduced Bill 66 – An Act to restore Ontario’s competitiveness by amending or repealing certain Acts in the legislature. Bill 66 impacts several employment and labour related laws, such as the Employment Standards Act, 2000 and the Labour Relations Act, 1995. This blog post outlines the Bill 66 changes and my thoughts on these continuous employment and labour law government driven changes.

The Employment Standards Act, 2000 (ESA) Bill 66 Changes

Key amendments to the ESA being proposed in Bill 66 include the following:

• Employment standards posting: Currently, section 2 of the ESA requires the Minister of Labour to publish a poster on ESA rights and responsibilities. Employers are required to post that poster in a conspicuous place in the workplace and provide copies to each employee as soon as practicable after they are hired. Bill 66 would move the responsibility for publishing the poster from the Minister of Labour to the Director of Employment Standards. It would also remove employers’ obligations to post the poster in the workplace. Moreover, if Bill 66 passes, employers will no longer have to post that poster, but will still be required to provide a copy of the poster to each employee.
• Approval to work in excess of the maximum weekly hours of work: Currently, under Part VII of the ESA, when employers require employees to work in excess of 48 hours in a week in Ontario, they must 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 to have the employees work in excess of 48 hours in a week. If Bill 66 is enacted, it will remove 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.
• Approval from director to average hours of work to determine overtime pay: Currently, under Part VIII of the ESA, employees and employers can 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, it requires the approval of the Director of Employment Standards once the agreement is signed. If Bill 66 is enacted, it will 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.

The ESA changes outlined above will come into force on the day the Restoring Ontario’s Competitiveness Act, 2018 receives royal assent and becomes law.

Labour Relations Act, 1995 (LRA) Bill 66 Changes

Key amendments to the LRA being proposed in Bill 66 are of interest to unions, municipalities and certain local boards, school boards, hospitals, colleges, universities and public bodies.

Under the current LRA, municipalities and certain local boards, school boards, hospitals, colleges, universities and public bodies at some point in time have been deemed to be construction employers and have been bound to collective agreements and bargaining units of employees under construction sector rules in the LRA.

When Bill 66 is enacted, it will exempt municipalities and certain local boards, school boards, hospitals, colleges, universities and public bodies and 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.

Moreover, trade unions that represent employees of these employers who are employed, or who may be employed, in the construction industry no longer represent those employees. Any collective agreement binding the employer and the trade union ceases to apply in so far as it applies to the construction industry.

The LRA changes outlined above come into force on proclamation at a later date after the day the Restoring Ontario’s Competitiveness Act, 2018 receives royal assent.

Other employment law-related Acts impacted by Bill 66

Other employment law-related Acts impacted by Bill 66 include the following:

• Schedule 1 of Bill 66 amends the Agricultural Employees Protection Act, 2002 to extend the application of the Act to employees who engage in ornamental horticulture. “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 Bill 66 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. A trade union that was already representing employees who engage in ornamental horticulture recognized under the Agricultural Employees Protection Act, 2002 will continue to represent them when Bill 66 comes into force.
• Schedule 6 of Bill 66 amends 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. The Schedule repeals subsection 80.4(1). This Schedule comes into force on the day the Restoring Ontario’s Competitiveness Act, 2018 receives royal assent.

Making Ontario Open for Business Act (Bill 47)

In addition to the above, the recent enactment of Making Ontario Open for Business Act (introduced as Bill 47) effectively rolling back many employment and labour law changes brought in by the previous Liberal government’s Fair Workplaces, Better Jobs Act, 2017 (Bill 148) also include employment standards and labour relations changes.

For example, and briefly stated, employment standards amendments in Bill 47 include among other things:

• Changes to personal emergency leave: Bill 47 repeals the personal emergency leave (PEL) provision in the ESA (s. 50) and replaces it with three separate leaves: three unpaid sick days, three family responsibility leave days and two unpaid bereavement days. There is no prohibition on the requirement of medical documentation and no paid sick leave.
• Equal pay for equal work based on employment status: Bill 47 repeals section 42.1 of the ESA, which relates to equal pay for equal work based on employment status including the protection from reprisal in the disclosure and discussion of one’s salary with a co-worker for the purpose of asking for a review of one’s salary.
• Changes to scheduling and record keeping: Scheduling and related record-keeping provisions of the ESA were to come into force on January 1, 2019. Bill 47 repeals sections 27(2), (3) and (5) of the ESA, which relate to scheduling and record-keeping provisions in the ESA. These include providing a minimum of three hours of pay in the event a shift is cancelled 48 hours or less before it was scheduled to begin.
• Modified three hour rule exemption: Bill 47 provides for a modified three hour rule under Part VII.1 (s. 21.2) of the ESA.
• Minimum wage: Bill 47 freezes the province’s minimum wage at $14 an hour until 2020, with future increases to be tied to the rate of inflation.

Labour relations repeals are more significant and extensive and include among other things:

• Card-based certification: Bill 47 repeals the rules that forced card-based certification on the workers in home care, building services and temporary help agencies. Instead, the government will preserve the right of these workers to vote through a secret ballot.
• Employee lists: In an effort to protect Ontarians’ privacy and personal information, Bill 47 repeals an employer’s obligation to hand over employee contact information once a union establishes 20 percent support for certification. Once Bill 47 comes into force, any trade union that has been given such a list since January 1, 2018, must destroy the list in such a way that it cannot be reconstructed or retrieved.
• Remedial certification: The Bill reinstates the remedial certification rules that were in the Act prior to the Fair Workplaces, Better Jobs Act, 2017 coming into force. The remedial certification rules deal with the test and preconditions for the Ontario Labour Relations Board (OLRB) to certify a union as remedy for employer misconduct. It will require the OLRB to determine whether a vote or new vote would be a sufficient remedy, or whether the only sufficient remedy would be to certify the union.
• Return-to-work rights: Bill 47 reinstates the six-month limit on an employee’s right to reinstatement following a strike or lockout.
• First collective agreement mediation and mediation-arbitration: Bill 47 repeals the first collective agreement mediation, the mediation-arbitration provisions and the provisions for education support and reinstates the Labour Relations Act rules for access to first agreement arbitration that were there prior to the Fair Workplaces, Better Jobs Act, 2017 coming into force.

Restoring Trust, Transparency and Accountability Act, 2018 (Bill 57)

On December 6, 2018, the Restoring Trust, Transparency and Accountability Act, 2018 (Bill 57) received Royal Assent. As a result, the Pay Transparency Act, 2018 to promote gender equality and equal compensation between men and women will not come into force on January 1, 2019 as expected, and will be put on hold to allow the government time to engage in public consultations regarding the need for the law.

The Pay Transparency Act, 2018 included requirements that all public job postings (including online postings) required a stated salary range; and prohibited employers from inquiring about job candidates’ past income levels and allowed anti-reprisal measures against the disclosure of salaries between co-workers among other things. Delaying the coming into force of the Act may be a subversive way of never letting the Act come into force instead of proceeding to repeal it just after the repeal of Bill 148.

What’s Next?

Unfortunately, we have not seen the last of laws denigrating employee rights and protections and trade union rights to collectively bargain from this Ontario conservative government.

The Ontario conservative government introduced these laws as removing burdens and red tape for businesses. When you google red tape, search results define red tape as “excessive bureaucracy or adherence to rules and formalities, especially in public business.” Moreover, excess bureaucracy and regulation that serves as cost on business.

The “red tape strategy” or also referred to as “war on red tape” of the Ontario conservative government is designed to find ways to reduce the compliance costs to small business and to report to government. They also claim it is to make Ontario more” competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.” For example, the government keeps saying that businesses keep telling them that employment-related regulation holds them back from growing their businesses and employing more people.

The problem with the above statements from government and businesses, is that all other Canadian jurisdictions, including the federal government are increasing employee rights and protections including increasing the minimum wage.

The other problem is that businesses in provinces that have increased the minimum wage and increased protection rights are not in a worst state a year later. They are faring far better than the province of Ontario.

Extensive economic studies disprove some of the rhetoric around the negative impacts of increasing the minimum wage. A high wage and a certain level of disposable income are absolutely necessary for the proper functioning of the economy and the market. In addition, the reality is that since Alberta increased the minimum wage to $15 per hour, there are more people working. According to Statistics Canada’s latest unemployment report, Alberta added 24,000 jobs in November 2018, provincial unemployment dropped to 6.3% and in the last year, employment in Alberta has risen by 59,000 jobs or 2.6 percent.

As for trade union rights, most government in other jurisdiction are thinking of implementing the same Labour Relations Act provisions implemented under the Fair Workplaces, Better Jobs Act, 2017 that the Ontario conservative government repealed. For example, on October 25, 2018, the British Columbia government made public recommendations that would bring about changes to British Columbia’s Labour Relations Code. The independent report makes 29 recommendations covering a wide range of topics, such as union certification processes, dispute resolution, successorship, unfair labour practices and arbitration procedures.

Lastly, here are some thoughts… or questions?

• Since when did providing a living wage to workers, the right to two paid days and eight unpaid days to deal with illness and other urgent family related matters out of 365 days in a year a burden to employers?
• Why is it that every time a conservative government is in power it uses employment and labour law as the focus of red tape review and reduction?
• Giving a business a tax break or making labour cheaper doesn’t mean that businesses will hire more people.
• Why do government think that tax relief by providing personal income tax breaks to employees instead of increasing the minimum wage an answer. As stated in Bill 57, “Ontario workers earning less than $30,000 will no longer have to pay Ontario Personal Income Tax starting in 2019, and those earning up to $38,000 will pay less tax. The Low-income Individuals and Families Tax (LIFT) Credit would provide low-income and minimum wage workers up to $850 in Ontario Personal Income Tax relief and couples up to $1,700.” It is a fact that tax relief provide employees with less disposable income. As economist have stated, the same worker getting the tax relief would get nearly twice that amount if the hourly minimum wage had risen by $1 in 2019 ($14 to $15 per hour).