April 8, 2019
by Israel Foulon LLP

On December 6, 2018, the Ontario government introduced omnibus legislation entitled Restoring Ontario’s Competitiveness Act, 2018 (Bill 66) that would amend multiple statutes, including the Employment Standards Act, 2000 (“ESA”). The Bill received royal assent on April 3, 2019 and the changes to the ESA are now in effect.

The changes to the ESA (details below) include:

• Abolishing the requirement that employers post the ESA poster in the workplace,
• Removing the requirement for the Director’s approval for employers to make agreements that allow their employees to exceed 48 hours of work in a work week, and
• Allowing employees’ hours to be averaged in accordance with the terms of an averaging agreement between the employee and the employer (without the Director’s approval) over a period that does not exceed four weeks.

Posting Requirements

• The Director, not the Minister, is now responsible for preparing and publishing a poster providing information about the ESA and its regulations (“ESA poster”).
• Employers are no longer required to post and keep posted in at least one conspicuous place in every workplace a copy of the ESA poster.
• Employers are still required to provide all employees with a copy of the ESA poster within 30 days of employment.

Hours of Work and Overtime Averaging

• The previous requirement to obtain approval from the Director of Employment Standards to have employees work excess hours or engage in overtime averaging was eliminated. A written agreement between the employer and the affected employees (or union) now suffices.
• Previously, the maximum an employee could work without the Director’s approval was 48 hours per week. The new rules allow an employee to work greater than 48 hours in a work week 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 work week in excess of the limit and his or her hours of work in a work week do not exceed the number of hours specified in the agreement.
• The period over which hours of work can be averaged is limited to a maximum four week period.
• An averaging agreement will continue to be valid only if it provides for a start date and an expiry date, with the expiry date being no more than two years after the start date (unless the employee is represented by a trade union and a collective agreement applies to the employee).
• Existing overtime averaging agreements that were previously approved continue to be in effect until their expiry or the agreement/approval is revoked.