Ontario government’s proposed changes reduces employers’ obligation to pay overtime, critics say

TheStar.com
December 10, 2018
Sara Mojtehedzadeh

A new bill aimed at eliminating “burdensome regulation” will reduce employers’ obligations to pay workers overtime, resulting in “crazy schedules and less pay in the pocket” for employees, critics say.

Bill 66, an omnibus bill that aims to “stimulate business investment, create good jobs, and make Ontario more competitive” loosens regulations around overtime, including scrapping a provision that requires employers to seek approval approval from the Ministry of Labour to exceed a 48-hour work week.

The Ontario government’s changes to labour laws inpact how overtime is paid and also open the door to non-union construction companies bidding on public infrastructure projects.

Most significantly, says Deena Ladd of the Toronto-based Workers Action Centre, the bill will remove regulations around the practice called overtime averaging, which has significant implications for how much overtime workers receive.

“Overtime averaging means less money in people’s pockets,” Ladd said. “The only purpose of it is that it helps employers avoid paying overtime, which is absolutely then eroding your basic floor of rights

Overtime in Ontario is usually mandatory when employees work more than 44 hours a week. However, employers can currently seek permission from the ministry to average workers’ overtime in order to minimize payments. Under existing laws, they can only do so over a two week period which limits employers’ ability to water down premium pay.

Here’s how averaging works: if an employee worked 30 hours one week and 60 the next, the hours could be added together and divided by two; instead of receiving 16 hours overtime pay for week two, the worker would get one hour of overtime for both weeks combined.

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Under Bill 66, it will be up to the employer and worker to decide over what time period overtime hours were averaged, which will allow employers to “manipulate hours of work over a month and try and avoid paying people overtime,” Ladd said.

“It also creates a lot of volatility of hours and shifts and has a huge impacts on peoples lives,” she said.

A two-year review of provincial labour laws known as the Changing Workplaces Review recommended to government in 2017 that overtime averaging be scrapped except in extraordinary circumstances or where it allowed workers to have a flexible work schedule.

“Our view is that as a general matter of principle, there is no reason to undermine the requirement to pay overtime by permitting averaging,” the two independent special advisers said.

Ladd said Bill 66’s overtime provisions go against the stated aims of the legislation.

“If this is about job creation shouldn’t employers be incentivized to create more jobs rather than overburdening workers with excessive hours of work?” she said.

Under Bill 66, employers will no longer be required to post information in their workplaces about employees basic rights. Instead, employers will be required to individually give employees posters, which “removes the duplication of having to do both” under the current legislation.

Currently, employers also need approval from the ministry to surpass a 48-hour work week, which Bill 66 intends to scrap.

The 48-hour approval threshold has attracted criticism: the workplaces review advisers found that regulation was “wasteful, unnecessary and misleading” and created “unnecessary paperwork and regulation.”

Ladd said Bill 66’s move to scrap the regulation would remove “external oversight” of overtime practices.

“How is (the ministry) supposed to monitor excessive hours and potential abuses of overtime pay if they don’t even know who is consistently asking their workers to average overtime?” she said.

Bill 66 also opens the door to non-union construction companies bidding on public infrastructure projects.

The Progressive Contractors Association of Canada, which describes itself as the “voice of progressive unionized employers” in the Canadian construction industry, applauded the move, which it called a “giant step forward in treating taxpayers, workers and employers fairly.”

“Research shows this restrictive bidding process increases construction costs by between 20 to 30 per cent,” the organization said in a statement.

Ontario Federation of Labour President Chris Buckley said the provision, as well is “putting Ontarians at risk and workers in greater danger by removing and amending important regulatory requirements”

“This bill is going to do nothing but replace red tape with yellow caution tape,” he said.