July 2019 - Stacey R. Ball

Bill 66 is a new bill that was introduced in Ontario on December 6, 2018. Its official name is the “Restoring Ontario’s Competitiveness Act, 2018.” The bill, introduced by the Ford government, involved changes to the Employment Standards Act and the Labour Relations Act that would have a real impact on Ontario employers and employees.

As the name suggests, the government intended for these changes to make Ontario more competitive and attractive to businesses. The purpose was to cut red tape and reduce regulation in various industries, including the construction industry.

However, while less regulation may sound appealing to employers, it could end up hurting vulnerable workers by reducing their protections. Time will tell how these changes will be applied by employers and how they will impact workers.

Bill 66 recently received Royal Assent, on April 3, 2019 and the changes are now in effect. Several of these changes are explained below.

48+ hour workweek under the ESA

Before Bill 66, employers and employees could agree that the employee would work more than the 48 hour work week, if the arrangement was approved by the Ministry of Labour’s Director of Employment Standards.

After Bill 66, employers and employees do not need approval from the Ministry of Labour if they reach an agreement. On the one hand, it’s a positive that an employee has to agree to the arrangement for more than 48 hours/week. However, there may still be imbalances in bargaining power which make it challenging for an employee to decline.

It is important to note that employees are still protected from reprisal. Reprisal, in this context, is an act of retaliation for asserting your rights under the Employment Standards Act. An employer could not punish an employee for refusing to sign an agreement for a 48+ hour week.

Averaging overtime under the ESA

Similarly to above, before Bill 66, if an employer and employee wanted to enter an agreement to average an employee’s hours over x number of weeks in order to calculate entitlement to overtime, they needed approval from the Director of Employment Standards.

Bill 66 has removed that requirement. This means that an employer and employee can enter into a valid agreement to average hours for overtime purposes if they so choose.

Posting Employment Standards information in the workplace

Before Bill 66, employers were required to display a poster in the workplace with Employment Standards information. After the passing of Bill 66, employers must only provide a copy to employees. The potential downside of this is that workers may not realize or remember their rights if they are not exposed to them on a regular basis.

“Non-construction employers” in the Labour Relations Act

Bill 66 amends the definition of “non-construction employers” to include several large public sector organizations. This includes hospitals, universities and municipalities. What this means is that they would no longer be bound to the current construction industry collective bargaining agreements. Current agreements would be terminated.

Before Bill 66, these employers were restricted to accepting bids from workers affiliated with certain unions, with which they had collective agreements. After Bill 66, the process is opened up to allow for bids from more contractors, not just those who may affiliated with a particular trade union. Please note that employers did have a three month window from April 4, 2019 to opt-out of the application of this amendment.

The motivation for this change may be to allow employers (who are not typical construction employers) to find the most cost-effective contractor for the job. It could also help contractors who are not affiliated with a trade union, as they were previously prevented from bidding on these large public sector projects.

It will be important to monitor the reaction of trade unions and contractors in the upcoming months.

Bill 66 could have an impact on businesses of any size as it loosens the restrictions for excess hours and overtime averaging agreements. It will also impact trade unions, construction projects and the bottom line of those projects as they look for cost-effective services.

As an employer or employee, you may have questions about how this new legislation impacts your rights and obligations. Please reach out to the professionals at Ball Professional Corporation for help understanding this new Bill.

If you have recently been terminated from your job, there is no doubt you will have questions. For example, you may want to know about reasonable notice or what other rights you are entitled to.

What you may not know is that the answers will vary depending on your employment status: are you an employee, a dependent contractor or an independent contractor? These are particular terms with special meaning in employment law, and we can help you understand where you fall in the continuum. As a result, we can help you claim the rights that you are entitled to.

Employee or contractor?

The first major split to understand is between employees and contractors. In order to access the protections and rights of the Employment Standards Act, you typically need to be considered an “employee”. Employees’ rights include vacation pay, statutory holidays, overtime pay, notice upon termination and the right to collect EI (Employment Insurance) benefits.

This dividing line has been developed over many years, and it is still evolving today.

Questions that the courts will ask include the following:

Who supplies the equipment?
What degree of control does the employer have over the work?
How is the worker paid?
Can the worker subcontract out their work?
Who bears the benefit of profit and the risk of loss?
Is the relationship exclusive?
What did the parties intend?

If the above factors point towards being an employee, then that person will have the protections and rights of the Employment Standards Act. By contrast, contractors will not.

You can think of contractors as having more control over their operations. The more factors that point toward a worker keeping control over their own work (setting their own hours, setting the scope of work, owning their tools , negotiating fees, incurring expenses, etc.), the more likely that they are considered a contractor.

What about “dependent” contractors?

There is a special subset of contractors called “dependent contractors”, and they are treated a bit differently than both employees and independent contractors.

Although they are treated like independent contractors in many ways, dependent contractors are actually entitled to reasonable notice of termination for their services, just like employees. Dependent contractor status is considered a “carve out” from the contractor category, and it does not affect or reduce the scope and applicability of existing employment tests.

In determining whether an individual is a dependent contractor, and therefore entitled to reasonable notice of termination, the courts will first determine whether they are an employee or a contractor, as stated above. If the worker is a contractor, then the courts consider whether they are an independent or dependent contractor. Exclusivity is determinative is making this decision. This means that if the worker is only allowed to deal with one employer, they are dependent on that employer and therefore are owed reasonable notice. As with a typical employment relationship, if there is cause for dismissal there is no obligation to provide reasonable notice upon termination of the relationship.

See Mckee v. Reid’s Heritage Homes Ltd., 2009 ONCA 916 and Boettcher v. Stremecki (1980), 25 A.R. 372 (Q.B.) for relevant cases.

One important point to remember is that just because you sign a contract that states you are an independent contractor, it isn’t necessarily true. The courts and other agencies will look at the actual nature of your employment relationship, not just the title that you signed.

As you can see, there is no black and white definition of an employee or a contractor, and we recognize that everyone’s situation is different. This is why it’s important to contact a legal professional, and the experts at Ball Professional Corporation are happy to help. They can analyze your situation and assist you based on your employment status.

Month: July 2019

Review of most recent updates to Labour and Employment Law under BILL 66 in Ontario