Further Employment Standards Changes in Ontario: Bill 66 – Restoring Ontario’s Competitiveness Act, 2018

On December 6, 2018 the Ontario government announced it was introducing omnibus legislation, Bill 66, Restoring Ontario’s Competitiveness Act, 2018, that, if passed, would make additional key changes to the Employment Standards Act, 2000. Unlike the changes under Bill 47 to roll back many of the Bill 148 changes or under Bill 57 to eliminate the gender pay parity proposals, these changes remove long-standing administrative requirements relating to hours of work exemptions and employee notifications.

The proposed changes are outlined below:

Excess Hours of Work per Week
Currently, employers are required to obtain approval from the Director of Employment Standards for employees to work in excess of 48 hours per week. Bill 66 would eliminate the need to obtain approval, regardless of how many hours employees are expected to work per week.

Other hours of work restrictions and approvals would continue to apply, including the requirement that employers obtain the written agreement of employees or their union to work in excess of 48 hours per week and the daily and weekly requirements for time away from work.

Overtime Averaging Agreements
Under the existing ESA provisions, the Director of Employment Standards must approve agreements regarding the averaging of employee’s hours over two or more weeks.  These agreements are typically used to reduce the potential for overtime pay during a busy week and then subsequent week is quieter. Under Bill 66, employers would be able to enter into averaging agreements with employees or their union, without obtaining outside approval. The period over which hours of work can be averaged would be limited to a maximum of four weeks. For non-unionized workplaces, averaging agreements would be limited to two years. For unionized workplaces, averaging agreements would need to terminate before a new collective agreement comes into effect.

Employment Standards Poster
Amongst other posting requirements, Ontario employers are required to display a Ministry of Labour poster in a conspicuous location in the workplace.  The poster is updated regularly by the Ministry and sets out employment standards information. Bill 66 would eliminate this requirement, but employers must still provide a copy of this poster to employees within 30 days of hiring. Further, the poster would be prepared by the Director of Employment Standards, rather than the Ministry of Labour.

PH Takeaways

Bill 66 has not yet passed: Bill 66 has passed first reading but given that the legislature has adjourned for the rest of the year, there will be no further developments until 2019. While the legislation will likely pass, the current employment standards provisions remain in effect. We will keep you updated on any further developments regarding Bill 66 and the ESA.

Reduced administrative burden: By removing existing approval and posting requirements, the changes under Bill 66 will reduce the administrative burden when employers are arranging for hours of work and overtime pay exemptions and updating workplace posting boards.

No impact on Bill 148 rollbacks: While Bill 66 introduces further changes, it is important to keep in mind that it does not materially impact the ESA to the degree of the rollbacks and delays announced by the Ford government this fall. Rather, it addresses employment standards provisions that Bills 148, 47 and 57 did not consider.

Chetan Muram, Associate