More Changes to Workplace Laws are on the Horizon for Ontario Employers

On December 6, 2018, Bill 57, Restoring Trust, Transparency and Accountability Act, 2018 passed Third Reading in the Ontario Legislature and received Royal Assent. On the same date, the government tabled Bill 66, Restoring Ontario’s Competitiveness Act, 2018, omnibus legislation which, if passed, will make significant amendments to the Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA), the Pension Benefits Act (PBA) and other statutes. Learn more in this FTR Now.

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

Bill 57 is omnibus legislation which came into force on December 6, 2018. It amends various statutes and, among other things:

indefinitely delays the coming into force of the Pay Transparency Act, 2018 (previously slated to come into force on January 1, 2019)
amends the collective bargaining and interest arbitration process in the fire sector (changes in force December 6, 2018)
makes various pension-related changes, including a provision that permits pension plan administrators to accept electronic beneficiary designations (see Bill 57 for coming into force information)
amends both the Municipal Act, 2001 and the City of Toronto Act, 2006 to clarify the existing authority of municipalities to further restrict smoking or vaping, including in other outdoor spaces such as parks, through implementation of bylaws (in force December 6, 2018).

For more information see our FTR Nows of November 19, 2018 The Outlook is More Change: Ontario Proposes Significant Reforms to Pension and Employment-Related Statutes and November 15, 2018 Ontario Government Tables Legislation Impacting Bargaining and Interest Arbitration in the Fire Sector.

Bill 66, Restoring Ontario’s Competitiveness Act, 2018

In its news release dated December 6, 2018, Ontario’s Government for the People Cutting Red Tape to Help Create Jobs, the Ontario government announced that it was tabling the Restoring Ontario’s Competitiveness Act, 2018 [Bill 66] to, “along with regulatory changes, cut business costs, harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.”

We highlight some of the key changes in Bill 66 below:

Eliminating Director’s Approvals and Changing Poster Requirements

If passed in its current form, Bill 66 would amend the ESA to eliminate the need for employers to obtain the approval of the Director of Employment Standards in relation to two key agreements: (1) excess weekly hours of work agreements; and (2) overtime averaging agreements.

(a) Excess Weekly Hours of Work Agreements

For excess weekly hours of work agreements, employers would still be required to obtain the written agreement of employees or their bargaining agent to work weekly hours in excess of 48 hours per week. However, there would be no need to obtain the approval of the Director of Employment Standards for any such agreement, regardless of the number of hours contemplated in the agreement.

Other rules relating to excess hours of work agreements would continue to apply. Thus, for example, the agreements would continue to be revocable by an employee by providing 2 weeks’ notice. Similarly, the ESA’s requirements for daily and weekly time off work would be unaffected by the Bill 66 amendments.

(b) Overtime Averaging Agreements

For overtime averaging agreements, employers would be permitted to enter into written agreements with employees or their bargaining agent to average hours of work for the purposes of determining entitlement to overtime pay for periods of up to four weeks without requiring the approval of the Director. As with the existing ESA provisions, the averaging periods must be “separate, non-overlapping [and] contiguous”.

In order to be valid, overtime averaging agreements would need to specify a start date and end date. For non-union employees, the agreement is limited to two years’ duration. For unionized employees, the agreement would need to terminate no later than the date that a new collective agreement comes into effect. Bill 66 also provides for the continuation of existing approved averaging agreements.

(c) ESA Poster

Currently, the ESA obligates the Minister of Labour to prepare a poster setting out information about the ESA. Employers must post a copy of the poster in their workplaces in a conspicuous location where it will come to the attention of employees, and must also provide each employee with a copy of the poster.

Bill 66 would remove the obligation for employers to post the poster in the workplace. However, employers would still be obligated to provide a copy of the poster to their employees. (Note that Bill 66 would also transfer responsibility for the poster from the Minister to the Director of Employment Standards.)

All of the changes to the ESA would come into effect on the date that Bill 66 receives Royal Assent.

Permitting Private Sector Plan Mergers with Jointly Sponsored Pension Plans

Bill 66 proposes to repeal section 80.4(1) of the PBA. Section 80.4 sets out the framework for mergers of existing single employer pension plans and jointly sponsored pension plans (JSPP), which are jointly governed and risk-shared plans. Currently, section 80.4(1) of the PBA limits JSPP mergers to public sector pension plans or pension plans that are specifically designated in regulations under the PBA. If a private sector employer wishes to merge with a JSPP, it is necessary for a specific regulation naming the employer’s pension plan(s) to be adopted.

Through the repeal of section 80.4(1) of the PBA, private sector employers would no longer need to obtain a specific regulation naming their pension plan(s), eliminating a bureaucratic step in the merger process. This change is consistent with the Ontario government’s statements in the Fall Economic Statement, which were broadly supportive of JSPPs. It should be noted, however, that a similar change has not been proposed with respect to section 81.0.1(1) of the PBA, which relates to the conversion of single employer pension plans into JSPPs and such conversions continue to be available only to public sector pension plans or prescribed plans.

This change to the PBA would come into effect on the date that Bill 66 receives Royal Assent.

Changes to the Non-Construction Provisions of the LRA

Bill 66 would amend the LRA by deeming a wide range of public sector organizations to be “non-construction employers” to whom the construction industry provisions of the LRA would not apply:

municipalities;
local boards within the meaning of the Municipal Act, 2001;
school boards;
public hospitals;
colleges of applied arts and technology;
universities that receive regular direct operating funding from the government, and their affiliates and federates; and
public bodies within the meaning of the Public Service of Ontario Act, 2006

Bill 66 also provides that where a trade union represents employees of one of these newly deemed non-construction employers, and the employees are or may be employed in the construction industry, then two changes will occur once the new provisions come into effect:

the trade union will cease to represent those employees of the non-construction employer who are employed in the construction industry; and
any collective agreement binding the non-construction employer and the trade union will cease to apply with respect to the non-construction employer to the degree that the collective agreement applies to the construction industry.

These changes to the LRA would come into effect on a future date to be named by proclamation of the Lieutenant Governor.

Early Education

Bill 66 proposes a number of changes to early childhood education rules. Among other changes being proposed, Bill 66 would lower the age of children who can participate in authorized recreation programs before or after school from age 6 to age 4. The Bill would also remove the requirement in the Education Act that third party programs be led by early childhood educators or other persons who meet certain criteria in the regulations under the Child Care and Early Years Act, 2014.

These changes would come into effect on the later of July 1, 2019 and the date that the Bill receives Royal Assent.

Long-Term Care

Changes would also be made to the Long-Term Care Homes Act, 2007 relating to the public consultation process and the issuance of non-renewal temporary emergency licences. These changes would come into effect on a future date to be named by proclamation of the Lieutenant Governor.

Next Steps

Bill 66 is omnibus legislation, and will amend a number of other statutes in addition to those discussed in this FTR Now. The proposed amendments will impact a number of employers, and should be carefully reviewed by those organizations who are affected by them.

At the end of the December 6^th sitting at which Bill 66 was introduced, the Legislature adjourned until February 19, 2019. Therefore, the Bill will not be considered again this year, and will proceed through the legislative process when the Legislature resumes sitting next year. We will continue to monitor the progress of the Bill and will report back on any notable changes or developments.

If you have any questions about Bill 57 or Bill 66, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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