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Additional changes for employment laws proposed

Focus on Labour & Employment Law
|Written By Meagan Gillmore
Additional changes for employment laws proposed
Lucas Mapplebeck says changes to overtime and averaging agreements in Ontario are ‘very relevant.’

Ontario’s employment and labour laws could undergo more changes in 2019.

On Dec. 6, the government introduced Bill 66, Restoring Ontario’s Competitiveness Act. The omnibus legislation proposes changes to several laws, including the Employment Standards Act and the Labour Relations Act. This is in addition to changes already in force with the passing of Bill 47, Making Ontario Open for Business Act in November. That reversed several changes introduced in November 2017 when the then-Liberal government passed Bill 148, The Fair Workplaces, Better Jobs Act.

Bill 66 proposes to change the ESA by removing the requirement that the director of employment standards approve agreements between employers and employees that allow employees to work more than 48 hours a week or to average their hours to determine how much overtime pay they’re owed, the bill says.

It also proposes to remove the requirement that employers post a poster in the workplace detailing employees’ rights under the ESA.

The bill contemplates changing the definition of “non-construction employer” in the Labour Relations Act to include municipalities, municipal boards, school boards, hospitals, colleges established by the Ontario Colleges of Applied Arts and Technology Act, universities that receive government funding and public bodies defined in the Public Service of Ontario Act.

“This isn’t one of these things like a future change in payroll or a change in vacation pay where employers will have to plan it out and make budgeting conditions,” says Lucas Mapplebeck, an associate with Filion Wakely Thorup Angeletti LLP in Hamilton, Ont., about the proposed changes to the overtime and averaging agreements.

“It’s just a matter of changing how the employer does certain things.”

Craig Rix, a partner at Hicks Morley LLP in Toronto, says these changes are consistent with other government actions.

“The government has been clear in signalling since the election that it’s interested in coming at a variety of laws with an eye to the ‘Ontario-is-open-for-business’ mandate,” he says.

Rix says the proposed changes to the process of approving averaging and overtime agreements “doesn’t mean that the rules go away entirely.”

“It just means that there’s a different process to deal with things like hours of work, agreements for overtime averaging,” he says.

Right now, an employer and an employee have to agree about overtime and averaging agreements, and the director of employment standards has to approve the arrangement, he says. This change, if passed, would mean the director’s approval is no longer needed, but the employer and employee would still have to agree.

These changes to overtime and averaging agreements are “very relevant,” says Mapplebeck.

“It’s going to have an impact particularly on employers in any sector where there is a need to have either flexibility because your employees work varying hours per week or sectors where there simply is a requirement to occasionally have employees work many hours in a week for whatever reason,” he says.

Ernie Schirru, a partner at Koskie Minsky LLP, who practises union-side labour law, says removing the need for a director’s approval is “another erosion of the safeguards that are put in place to protect employees in that inherent imbalance of power” between employers and employees.

He says employees who are represented by unions may not be too negatively impacted by the change, if it passes, because the union would have to agree to these arrangements.

Employees who aren’t represented by a union may fear reprimands or discipline if they refuse to work overtime, he says.

Schirru says he also has concerns about potentially removing the requirement that employers post a poster detailing employment standards in the workplace.

“Often, [workers] don’t know what their rights are and aren’t sure how to avail themselves of those rights,” he says.

“Those posters play an important part in conveying that information.

“Employees typically don’t turn their minds to their rights and entitlements until an issue arises in the workplace,” Schirru says. “That’s why having the poster in the workplace makes more sense.”           

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