New Ontario law allows less pay for overtime

Thestar.com
April 3, 2019
Sara Mojtehedzadeh

Ontario employers’ duty to pay workers overtime just got a little lighter, following passage of a law that quietly reduces some protections around excess hours of work in the province.

Bill 66, which was passed Tuesday at Queen’s Park, lightens regulations around a practice called “overtime averaging” in a way that has significant implications for how much overtime pay workers receive.

Bill 66 is about “getting government out of the way of our job creators to help bring jobs and investment back to Ontario,” said Todd Smith, Ontario’s minister of economic development, job creation and trade.

Time-and-a-half pay in Ontario is usually mandatory when employees work more than 44 hours a week, unless an overtime-averaging agreement in place. Under Bill 66, employers will have expanded use of these agreements and will be able to average workers’ hours over the course of a month without Ministry of Labour approval, resulting in less overtime pay.

Bill 66 is about “getting government out of the way of our job creators to help bring jobs and investment back to Ontario,” said Todd Smith, Ontario’s minister of economic development, job creation and trade.

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.

“The removal of this oversight will inevitably result in the proliferation of overtime-averaging agreements in workplaces where no warranting circumstances are present, and employers are simply seeking to cut costs by denying their employees’ overtime entitlement.”

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 for in extraordinary circumstances. It said there was “no reason to undermine the requirement to pay overtime by permitting averaging.”

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.

The legislation also opens the door for non-unionized construction employers to bid for public-sector contracts, which the Progressive Contractors Association of Canada has called “giant step forward in treating taxpayers, workers and employers fairly.”

But that move will put “worker safety at greater risk,” the Ontario Federation of Labour (OFL) warns.

“By reducing safety standards to satisfy big business, the government is playing with the lives of Ontarians,” OFL president Chris Buckley said.

“With this bill, the government that claims to be ‘for the people’ is once again putting the almighty dollar ahead of the lives of Ontarians.”