December 11, 2018
Last week, the Ford Government tabled the Restoring Ontario’s Competitiveness Act, 2018, more commonly known as Bill 66. Debate on the Bill will not begin until February 19, 2019, but given the substantial PC majority in the House, it is likely that some version of the Bill will receive Royal Assent in the spring of 2019.
The following are key changes that the current version of Bill 66 would make to labour, employment, and pension legislation:
Labour Relations Act, 1995
- Expanding the definition of “non-construction employer”: Bill 66 would amend the Labour Relations Act, 1995 to deem municipalities and certain local boards, school boards, hospitals, colleges, universities, and public bodies to be non-construction employers, thus ending construction trade unions’ representation of employees with respect to these employers, and terminating the operation of any collective agreement to which any of these types of employers are a party insofar as it applies to the construction industry.
Agricultural Employees Protection Act, 2002 (the “AEPA”)
- Deeming “ornamental horticulture” employees to be agricultural workers: Bill 66 would extend the application of the Agricultural Employees Protection Act, 2002 to employees who engage in ornamental horticulture, thereby removing those employees from the scope of the Labour Relations Act, 1995.
Employment Standards Act, 2000 (the “ESA”)
- Removing posting requirements: Bill 66 would remove the requirement that an employer post in its workplace a copy of a poster prepared and published by the Ministry of Labour concerning the rights and obligations of employers and employees under the ESA.
- Removing requirement for Director approval to override limits to hours of work: Bill 66 would remove the requirement that an employer apply to the Director of Employment Standards before making any agreement that allow its employees to exceed 48 hours of work in a work week;
- Removing requirement for Director approval to average hours of work for overtime: Bill 66 would remove the requirement that an employer receive approval from the Director of Employment Standards before entering into agreements that would allow it to average its employee’s hours of work for the purpose of determining the employee’s entitlement to overtime pay.
Pension Benefits Act (“PBA“)
- Removing restrictions on transfer of assets: Bill 66 would repeal section 80.4(1) of the Pension Benefits Act, which restricts the ability of private-sector and non-prescribed single employer pension plans to transfer assets into a jointly sponsored pension plan through a transfer of assets and liabilities.
Bill 66 is an omnibus piece of legislation that amends a number of existing laws—namely:
- the Agricultural Employees Protection Act, 2002 (“AEPA”)
- the Child Care and Early Years Act, 2013;
- the Education Act;
- the Employment Standards Act, 2000 (“ESA”)
- the Farm Registration and Farm Organizations Funding Act, 1993;
- the Highway Traffic Act;
- the Labour Relations Act, 1995
- the Long-Term Care Homes Act, 2007;
- the Ministry of Agriculture, Food and Rural Affairs Act;
- the Ontario Energy Board Act, 1998;
- the Pawnbrokers Act;
- the Pension Benefits Act (“PBA”)
- the Personal Property Security Act;
- the Planning Act;
- the Private Career Colleges Act, 2005;
- the Technical Standards and Safety Act, 2000;
- the Toxics Reduction Act, 2009; and
- the Wireless Services Agreements Act, 2013.
This summary will focus specifically on the amendments relating to the Labour Relations Act, the AEPA, the ESA, and the PBA.
Changes to the Labour Relations Act
Schedule 9 to Bill 66 would make major changes to the construction provisions of the Act by expanding the definition of “non-construction employer” in subsection 126(1) to include a number of provincial and municipal entities:
- a municipality;
- a local board within the meaning of the Municipal Act, 2001;
- a school board within the meaning of the School Boards Collective Bargaining Act, 2014;
- a hospital within the meaning of the Public Hospitals Act;
- a college established under the Ontario Colleges of Applied Arts and Technology Act, 2002;
- a university in Ontario that receives regular direct operating funding from the Government and the university’s affiliates and federates; and
- a public body within the meaning of the Public Service of Ontario Act, 2006.
As a result of these amendments, a trade union representing employees of the above entities employed in the construction industry would no longer represent those employees. Any collective agreement that was binding on one of these entities and a trade union would cease to apply with respect to the non-construction employer insofar as the collective agreement applied to the construction industry.
While the rest of Schedule 9 would come into force on the day that the Restoring Ontario’s Competitiveness Act, 2018 received Royal Assent, the provisions dealing with the construction industry would come into force on a date to be determined.
Changes to the AEPA (and corresponding changes to the Labour Relations Act)
Under Schedule 1 to Bill 66, the application of the AEPA would be extended to “ornamental horticulture”. This would not include individuals engaged in ornamental horticulture for a municipality or individuals employed in silviculture.
“Ornamental horticulture” is the production of ornamental plants or their parts for the purpose of their sale or distribution. “Ornamental plants” include annual and perennial plants, nursery sod, woody plants, and Christmas trees.
The Labour Relations Act exempts from its application employees that fall within the scope of the AEPA, as well as individuals who are employed in horticulture by an employer whose primary business is agriculture or horticulture.
Hence, it appears that the effect of these amendments would be to remove from the Labour Relations Act employees in ornamental horticulture whose employers only had an ancillary business in horticulture.
An exception would be made where a trade union was already certified or voluntarily recognized under the Labour Relations Act as the bargaining agent for a bargaining unit that included employees engaged in ornamental horticulture. The Labour Relations Act would continue to apply to the employees in that bargaining unit, whether or not they were in the bargaining unit at the time of certification or voluntary recognition, the trade union that represents those employees, and the employer of those employees.
Changes to the ESA
Schedule 9 to Bill 66 would make a number of changes to the ESA.
Posting of Information Concerning Rights and Obligations
There is currently a requirement under section 2 of the ESA that employers post a Ministry of Labour-prepared poster regarding employment rights and obligations in a conspicuous place in the workplace “where it is likely to come to the attention of employees.” Bill 66 would remove this requirement.
Hours of Work
Currently, an employee’s hours of work can only exceed 48 hours in a work week if the employer receives an approval from the Director of Employment Standards (the “Director”) applying to that employee or to a class of employees that included that employee. Bill 66 removes that requirement, so that all that is needed is an agreement between the employer and employee.
Averaging Hours of Work for Overtime Pay
A similar change has been made with respect to agreements that allow for the averaging of an employee’s hours of work for the purpose of determining the employee’s entitlement to overtime pay. Currently, an employer must apply to the Director for an approval permitting such an arrangement. Bill 66 would remove the approval requirement.
The averaging period would be the lesser of either four weeks or the number of weeks specified in the agreement.
Changes to the PBA
Section 80.4 of the PBA provides that single employer pension plans (“SEPPs”) may transfer assets into a jointly sponsored pension plan (“JSPP”), provided that certain criteria are met.
Section 80.4(1) stipulates that section 80.4 applies only to public sector plans, and certain prescribed pension plans (see O. Reg. 311/15, Schedule 0.1 for the list of prescribed plans).
Bill 66 would repeal 80.4(1). The effect of this would be that private sector SEPPs that are not prescribed in O. Reg. 311/15 would be permitted under s. 80(4) to transfer assets to a JSPP, provided that the other requirements in s. 80.4 are satisfied.
Authored by Amani Rauff Articling Student