“We’ve heard loud and clear from businesses across Ontario that job growth starts with cutting the burdensome, job-killing red tape that is driving jobs and investment out of our province … We are making Ontario open for business.” 

Premier Ford in his closing speech this October at the annual Ontario Economic Summit.

Less than 2 months later,  the Ontario government tabled Bill 66, Restoring Ontario’s Competitiveness Act, 2018.

Bill 66, an omnibus bill, is part of the Ontario Open for Business Action Plan and announces over 30 actions to make it easier for businesses to create jobs.

Bill 66 at Schedule 9 outlines, among other things, the proposed changes to Ontario’s Employment Standards Act, 2000 (“ESA”).

How Bill 66 Proposes to Amend the ESA

The changes Bill 66 makes to the ESA are intended to reduce regulatory burdens on businesses. Firstly, Bill 66 amends section 2 of the ESA so that employers no longer must display a poster that provides information about the ESA and its regulations in the workplace. However, the requirement to provide a copy of the most recent version of this ESA poster to each employee is retained.

Second, Bill 66 would remove the requirement for employers to obtain approval from the Director of Employment Standards for excess hours of work and overtime averaging. Specifically, Bill 66 would amend Part VII of the ESA so that a Director’s approval would no longer be required for employers in order to make an agreement that allows their employees to exceed 48 hours of work in a work week.

Further, Bill 66 proposes to amend Part VIII of the ESA to remove the requirement to obtain the Director’s approval for employers to make agreements which allow them to average their employees’ hours of work for the purpose of determining the employees’ entitlement to overtime pay. This means that for the purposes of overtime entitlement, an employee’s hours may be averaged over a period that does not exceed 4 weeks,  in accordance with the terms of an averaging agreement between the parties.

Bill 66 also proposes that existing averaging agreements be deemed to have met the requirements set out in the ESA. Therefore, such agreements would continue to be valid until it is revoked by the employer, employee, or the Director.

As a result of these changes, employers would no longer be required to apply to the Ministry of Labour for approval of their employees’ excess weekly hours of work and overtime averaging. Employers are for these changes because it provides for increased flexibility to manage employee shifts. Employee groups oppose these changes, believing that they could result in more hours and less overtime pay for workers.

Lesson To Be Learned

If Bill 66 becomes law employers should review their employment contracts to make sure employees agree to work excess hours if requested, and also make sure that employees agree that their hours can be averaged over 2 or more weeks for the purpose of calculating overtime pay. This will ensure that there are enough employees available to address surges in business, and reduce payroll costs in workplaces where there are ebbs and flows in hours of work. We would would be pleased to assist with this contractual review.

Although Bill 66 is not yet law, it is expected to proceed quickly through legislature, just as Bill 47 did. For more information on the impact Bill 66 will have on your business, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.