Amendment to Employment Standards Act, 2002
Changes to Ontario Overtime Rules
On December 6, 2018, the Ontario government introduced Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (Bill 66). Bill 66 proposes changes to, among other things, Ontario’s Employment Standards Act, 2000 (ESA). Bill 66, Restoring Ontario’s Competitiveness Act, 2018, has received royal assent on April 3, 2019, and is now law. Below is an overview of the changes that Bill 66 makes to the Employment Standards Act, 2000 (ESA).
Need for Approval of the Director of Employment Standard Eliminated
Bill 66 removed the requirement for employers to obtain approval from the Director of Employment Standards in order to:
- Enter into agreements to allow employees to work weekly hours in excess of 48 hours, and
- Enter into overtime averaging agreements.
Amendment to Section 17(3) and 17(4): Hours in a Workweek – Substituted with below paragraph
An employee’s hours of work may exceed the limit if 48 hours, if the employee has made an agreement with the employer that he or she will work up to a specified number of hours in a workweek in excess of the limit and his or her hours of work in a workweek, do not exceed the number of hours specified in the agreement. Bill 66 allows employers to enter into agreements with employees to average hours of work for periods of up to four weeks in order to determine entitlement to overtime pay.
Averaging Agreement – Amendment to Section 22(2), (2.1), 22(3), (3.1) and 22(4)
An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if:
- The employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks; and
- The averaging period does not exceed four weeks or the number of weeks specified in the agreement, whichever is lower.
An averaging agreement is not valid unless it provides for a start date and an expiry date. If the employee is not represented by a trade union, the averaging agreement’s expiry date will not be more than two years after the start date. If the employee is represented by a trade union and a collective agreement applies to the employee, an averaging agreement will expire no later than the day a subsequent collective agreement that applies to the employee comes into operation.
The Validity of Existing Averaging Agreement
Any averaging agreement that was made before the day the Restoring Ontario’s Competitiveness Act, 2019 received Royal Assent and that was approved by the Director, as it read at the time, is deemed to have met the requirements set out and will continue to be valid until the earlier of:
- The day the agreement is revoked;
- The day the Director’s approval expires; or
- The day the Director’s approval is revoked.
Employment Standard Act Poster
Bill 66 removes the obligation for employers to post in the workplace a poster setting out information about the ESA and its Regulations. Employers will continue to be required to provide a copy of the poster with this information to each of their employees.