Bill 66: A Holiday gift for Employers?

On December 6, 2018, the Ontario government introduced by way of a first reading, Bill 66, Restoring Ontario’s Competitiveness Act. Bill 66 is the second in a series of bills through Ontario’s Open for Business Action Plan wherein the government’s objective as the Ministry of Economic Development, Job Creation and Trade posted on its website is “to stimulate business investment, create good jobs, and make Ontario more competitive by cutting unnecessary regulations that are in efficient, inflexible or out of date.”

Bill 66, if passed in its current form, would amend a number of Acts, including the Employment Standards Act, 2000 and the Labour Relations Act.

The Employment Standards Act, 2000 (“ESA”)

Under Bill 66, employers would no longer need to obtain the approval from the Director of Employment Standards to make agreements which would permit employees to exceed 48 hours of work in a work week. The implication of this proposed amendment to overtime policies may provide the legislative green light for employers to increase the use of overtime agreements.

The second major amendment proposed under Bill 66 is to allow employers to make agreements with their employees to allow the averaging of an employee’s hours of work for the purpose of determining overtime entitlements over a period not exceeding four weeks. This amendment changes the perspective from a minimum to a maximum period in which to average hours of work but does not change the underlying premise namely that the employee and employer must have an averaging agreement in the first place.

Lastly, Bill 66 sets out that employers would no longer be required to post a poster in their workplaces to provide information to employees about the ESA and its regulations. Interestingly enough, Bill 66 does not propose to substantially alter section 2(5) which sets out that the employer shall give a copy of the poster to every employee.

Labour Relations Act (“LRA”)

Construction workers are subject to exceptional rules for certifying unions. Bill 66 proposes to streamline and reduce the red tape for those who are subject to the Act by reducing the number of applications from employers whose primary business is not construction.

The LRA has a unique set of rules for certifying unions in the construction industry that can result in province-wide, multi-employer collective agreements. Currently, employers subject to this statute, who are not primarily in construction business, may apply to the Ontario Labour Relations Board to be declared a “non-construction employer”. Under the LRA such a declaration relieves an employer from their obligation to comply with the terms of these collective agreements.

The aforementioned proposed changes to the Labour Relations Act, 1995 under Bill 66 would deem municipalities and certain local boards, school boards, hospitals, colleges, universities, and public bodies to be non-construction employers, thus no need to apply to the Ontario Labour Relations Board. This revision in the definition would mean construction trade unions would no longer represent these types of employees with respect to these particular categories of employers.

Conclusion

Given the parliamentary swiftness in which the Ontario government passed Bill 47, our prediction is that Bill 66 will likely follow the same path. However, employers should not be in a rush to amend policies or overtime procedures as the Bill has yet to receive royal assent.

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