Restoring Ontario's Competitiveness Act amends labour laws again

(May 30, 2019, 1:21 PM EDT) -- On April 3, 2019, Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (Bill 66) received royal assent. Amendments to the Employment Standards Act, 2000 (ESA) made by Bill 66 have not changed since we first reported on the bill when it passed first reading. Amendments made by Bill 66 to the section of the Labour Relations Act, 1995 (LRA) relating to the construction industry, however, have been slightly modified.

Amendments Bill 66 made to ESA

A recap of the amendments Bill 66 made to the ESA, which are now in effect, are set out below:

  1. Responsibility for preparing and publishing the poster containing information about rights and obligations under the ESA has been transferred from the minister of labour to the Director of Employment Standards. Employers are no longer required to post the ESA poster; however they are still required to provide a copy of it to each employee within 30 days of the day the employee commences employment. The ESA poster was updated after the passage of Bill 47 amendments to the ESA, which we reported on here and here. We previously reported on the updated ESA poster here. Employers are obligated to provide each employee with a copy of the most recent poster published by the director.
  2. Employers no longer require the approval of the Director of Employment Standards to allow some or all of their employees to work more than 48 hours in a week. An employee’s hours may exceed 48 hours in a week if the employee (a) enters into a written agreement with the employer that the employee is willing to work up to a specified number of excess hours, and (b) the excess hours do not exceed the number of hours specified in the agreement. An information sheet that must be given to employees before they agree to work in excess of the daily or weekly ESA limits on hours of work has been updated by the Ministry of Labour. The excess hours agreement entered into between the employer and the employee must include a statement by the employee acknowledging receipt of the information sheet represented by the employer as the most recent document published by the Director of Employment Standards.
    An employee may revoke an agreement to work more than 48 hours in a week two weeks after giving written notice to the employer. The employer may revoke the agreement after giving the employee reasonable notice.
  3. Employers are no longer required to obtain approval from the Director of Employment Standards for a written agreement averaging an employee’s hours of work for the purpose of determining the employee’s entitlement to overtime. An employee’s hours of work may be averaged for the purpose of making this determination if (a) the employee and employer enter into an averaging agreement, and (b) the averaging period does not exceed four weeks. In the absence of such averaging, employers must pay overtime under the ESA to eligible employees (salaried and hourly) after 44 hours in one week.
    If the employee is not represented by a union, the averaging agreement will not be valid unless it provides for a start date and an expiry date; the expiry date must not be more than two years after the start date. If the employee is represented by a union, and a collective agreement applies to the employee, the averaging agreement must expire no later than the day a subsequent collective agreement that applies to the employee comes into operation.
    An averaging agreement may not be revoked before it expires unless the employer and employee agree to revoke it.
    An averaging agreement entered into before April 3, 2019, continues to be valid until the earlier of the day the employer and employee agree to revoke it, or the day the approval of the Director of Employment expires or is revoked.

Amendments Bill 66 made to LRA

The final amendments Bill 66 made to the LRA relating to the construction industry are:

  1. The definition of “non-construction employer” in the LRA is repealed and the following definition is substituted:
    • an employer who does not work in the construction industry for which the employer expects compensation from an unrelated person; or
    • an employer who is deemed to be a non-construction employer under subsection 127(1).
  2. The following entities are deemed to be non-construction employers:
    • A municipality
    • A local board as defined in subsection 1 (1) of the Municipal Act, 2001 or in subsection 3 (1) of the City of Toronto Act, 2006
    • A local housing corporation as defined in s. 24 of the Housing Services Act, 2011
    • A corporation established under s. 203 of the Municipal Act, 2001 or under s. 148 of the City of Toronto Act, 2006
    • A district social services administration board established under the District Social Services Administration Boards Act
    • A school board within the meaning of the School Boards Collective Bargaining Act, 2014
    • A hospital within the meaning of the Public Hospitals Act
    • A college established under the Ontario Colleges of Applied Arts and Technology Act, 2002
    • A university in Ontario that receives regular direct operating funding from the government and the university's affiliates and federates
    • A public body within the meaning of the Public Service of Ontario Act, 2006.
  3. A union that represents employees of a non-construction employer listed above will no longer represent it, and any collective agreement binding the non-construction employer and the union will cease to apply to the non-construction employer to the extent that it applies to the construction industry.
  4. A procedure has been added by which entities deemed to be non-construction entities may irrevocably elect to opt out if, on the day Bill 66 received royal assent (i.e., April 3, 2019), a trade union represented employees of the entity who are employed, or who may be employed, in the construction industry. This election must be made in writing by a person or body with authority to bind the entity, and it must set out the day on which the election was made. The election must be filed with the Ministry of Labour within three months after Bill 66 received royal assent.
    The amendments to the LRA relating to the opt-out procedure came into force on royal assent. The remainder of the amendments to the LRA will come into force on a day named by proclamation of the lieutenant-governor.
    A “backgrounder” issued by the Ministry of Economic Development, Job Creation and Trade on April 2, 2019, provided the following explanation for the amendments made by Bill 66 to the LRA: “Certain broader public-sector entities had become subject to the specialized construction labour relations model in the Labour Relations Act, 1995 and bound to collective agreements for the construction industry, even though they are not actually in the construction business. This change explicitly deems municipalities, school boards, hospitals, colleges, universities and other public bodies to be ‘non-construction employers’ under the Labour Relations Act, 1995. It also removes them from the construction labour relations model, which is an inappropriate model for broader public-sector entities.”
    Affected employees can still organize and collectively bargain under the general provisions of the Labour Relations Act, 1995. Among other things, this change is expected to increase competitiveness for broader public-sector construction projects.
    These LRA and ESA amendments are widely seen as part of the Ontario government’s initiatives to reduce “red tape” and to promote Ontario as “open for business.”

As knowledge management counsel for Littler in Canada, Rhonda Levy is responsible for satisfying the firm's Canadian knowledge management needs, for monitoring legislative, regulatory and case law developments and for drafting and editing publications. George Vassos has practised employment and labour law for more than 35 years with a focus on advocacy before the courts and before various arbitrators, mediators, adjudicators and other administrative tribunals.

This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc.

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