Ontario Erectors Association

On April 3, 2019, Restoring Ontario’s Competitiveness Act, 2019  (Bill 66) received Royal Assent. Bill 66 amends several pieces of legislation in Ontario. The government has stated that the changes are intended to “lower business costs to make Ontario more competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.”

Changes to the Employment Standards Act (ESA)

As we reported in our earlier post, Bill 66 amends the ESA as follows:

• No Approvals Needed for Excess Hours/Overtime Averaging: Employers are no longer obliged to obtain the Director of Employment Standards’ approval to make agreements to either: (1) permit 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 entitlement to overtime pay.
• Changes to Averaging Agreements: Employers may average the employee’s hours of work in accordance with the terms of an averaging agreement between the parties over a period that does not exceed four weeks. Existing overtime averaging agreements in unionized workplaces would continue to be effective until a subsequent collective agreement comes into effect.
• No Posting of Posters: Employers would no longer be required to post a poster in their workplaces to provide information to employees about the ESA and its regulations. Copies of the most recent poster still need to be provided to employees.

These amendments are in force as of April 3, 2019.

Changes to the Labour Relations Act (LRA)

As we explained previously, the LRA has a unique set of rules for construction industry employers that can entail province-wide, multi-employer collective agreements. 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 “construction provisions” of the LRA.

Deemed non-construction employers

Bill 66 amends the definition of “non-construction employer” in the LRA and provides that designated employers will be deemed to be “non-construction employers”, thereby releasing them from labour relations law applicable to the construction sector, including collective agreements negotiated on a sector-wide basis. 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 organization.

Designated employers will include municipalities, school boards, hospitals, colleges and universities, as well as the following entities:

• local boards under the Municipal Act, 2001 or the City of Toronto Act, 2006;
• local housing corporations under the Housing Services Act, 2011;
• corporations under the Municipal Act, 2001 or the City of Toronto Act, 2006;
• district social services administration boards under the District Social Services Administration Boards Act; and
• public bodies under the Public Service of Ontario Act, 2006.

The government has not yet set the date on which these amendments will come into force.

Opt-out election

Bill 66 also provides that employers that fall within the aforementioned categories are able to “opt-out” of these new rules by filing an election with the Minister. The following conditions must be met for the “opt-out” election to apply:

• A trade union must represent employees of the employer who are employed/may be employed in the construction industry on April 3, 2019;
• The election must be made by a person with authority to bind the entity, and the election must be made in writing; and
• The election must be filed with the Minister within three (3) months of April 3, 2019.

Once an “opt-out” election is made, it is irrevocable. However, this does not preclude an employer from subsequently making an application under section 127.2 of the LRA to declare that a trade union no longer represents those employees of the “non-construction employer” that are employed in the construction industry.

The opt-out election provisions are in force as of April 3, 2019.

We will monitor and report on the timing for the amendments that are still due to come into force.