But Pam Frache, co-ordinator of the Ontario Fight for $15 & Fairness campaign, said the new law gives “the green light to employers to demand that workers work more but get paid less.”
For example, an employee who works 30 hours in weeks one and two and 60 hours in weeks three and four would normally be entitled to 32 hours of overtime pay that month. With the month-long averaging agreements that Bill 66 allows, they would get just four hours of overtime pay.
Frache said the new measures will encourage employers to assign erratic schedules to workers in order to minimize overtime payments.
“It can really introduce precarity and uncertainty and fluctuating hours,” she said.
Previously, employers required permission from the Ministry of Labour to use an averaging agreement.
“Requiring Ministry of Labour approval of overtime-averaging agreements is an essential safeguard for employees’ basic overtime protections and ensuring there are bona fide reasons for overtime averaging,” said Joshua Mandryk, a lawyer with Toronto-based labour law firm Goldblatt Partners.
Proposed changes to the Employment Standards Act (“ESA”)
If Bill 66 is implemented in its current form, the ESA would be amended such that employers would no longer be required to obtain the Director of Employment Standards’s approval to make agreements to:
permit their employees to exceed 48 hours of work in a work week; or
allow averaging of an employee’s hours of work for the purpose of determining the employee’s entitlement to overtime pay.
Under Bill 66, the employer would be able to average the employee’s hours of work over a period not exceeding four weeks in accordance with the terms of an averaging agreement between the employer and the employee. Existing overtime averaging agreements in unionized workplaces would continue to be effective until a subsequent collective agreement comes into effect.
The current requirement to obtain the Director’s approval for excess hours and overtime averaging agreements came into effect in 2005 under the Liberal government. The provisions were controversial at the time due to the administrative burden placed on employers to obtain these approvals.
In addition, Bill 66 contemplates that employers would no longer be required to post a poster in their workplaces to provide information to employees about the ESA and its regulations.
“My research has suggested that it would be difficult to come to a definitive conclusion at this time as to how this new Bill 66 will affect the government procurement process.
On one hand, I have said that when you restrict bids, the price goes up.
I have also said that if too many contractors pick up bids (over seven for example), it is less likely that those contractors will take the time to compete with such a large pool of bidders.
I have not seen any undisputed, factual, information that the cost of using union contractors on large construction projects borders on a 40 per cent premium.
It has been my observation that the main reason for over-priced projects can be directly attributed to the procurement process, not labour rates.”