The Ontario government introduced Bill 66, Restoring Ontario’s Competitiveness Act  (“Bill 66”) on December 6, 2018. If passed, Bill 66 will make amendments to several pieces of legislation in Ontario. The government has stated that its objective in introducing these changes is to “lower business costs to make Ontario more competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.” We outline below the proposed changes to the province’s labour and employment legislation below.

Key takeaways

Employers should not alter their policies or practices to reflect Bill 66…yet. Employers can anticipate that the government will move quickly in advancing Bill 66 through the legislative process. The swift rate at which Bill 47 and Bill 57 were implemented is likely to be repeated in the case of Bill 66.

Proposed changes to the Employment Standards Act (“ESA”)

If Bill 66 is implemented in its current form, the ESA would be amended such that employers would no longer be required to obtain the Director of Employment Standards’s approval to make agreements to:

  1. permit their employees to exceed 48 hours of work in a work week; or
  2. allow averaging of an employee’s hours of work for the purpose of determining the employee’s entitlement to overtime pay.

Under Bill 66, the employer would be able to average the employee’s hours of work over a period not exceeding four weeks in accordance with the terms of an averaging agreement between the employer and the employee. Existing overtime averaging agreements in unionized workplaces would continue to be effective until a subsequent collective agreement comes into effect.

The current requirement to obtain the Director’s approval for excess hours and overtime averaging agreements came into effect in 2005 under the Liberal government. The provisions were controversial at the time due to the administrative burden placed on employers to obtain these approvals.

In addition, Bill 66 contemplates 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.

Proposed changes to the Labour Relations Act (“LRA”)

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 regime whose primary business is not construction may apply to the Ontario Labour Relations Board to be declared a “non-construction employer” under the LRA, relieving them of their obligation to comply with the terms of these collective agreements.

If Bill 66 passes, designated employers, including municipalities, school boards, hospitals, colleges and universities, will be deemed to be “non-construction employers” under the LRA. Designated employers will be released from the obligations established under the “construction provisions” of the LRA. In some cases, this will enable designated employers to tender construction projects to non-union contractors and/or negotiate agreements specific to the circumstances of their sector.

We will continue to monitor the status of Bill 66 and report on its progress.

– Many thanks to Shereen Aly for her assistance with this article.