Bill 66, Restoring Ontario’s Competitiveness: Competing for What?

Bill 66, called the Restoring Ontario’s Competitiveness Act, 2018, introduces further changes to the Employment Standards Act, 2000 (the “ESA”) and the Labour Relations Act, 1995 (the “LRA”). Like Bill 47, covered in my October blog post and passed in November, Bill 66 brings in a broad range of changes. Time will tell, but the biggest of the workplace changes to be ushered in when Bill 66 passes appear to be changes to the Labour Relations Act.

One major change is an amendment that would make it impossible for certain public employers to be considered “construction employers” by the Labour Relations Board. This would include municipalities, school boards, hospitals,colleges, universities and other employers.

 A BRIEF HISTORY OF CONSTRUCTION EMPLOYERS AND NON-CONSTRUCTION EMPLOYERS UNDER THE LRA

Ontario labour law divides unionized workers up into 2 groups: construction and industrial (aka “non-construction”). The non-construction category includes basically everything but construction: from unionized factory workers and restaurant staff to drivers and personal support workers. Construction includes carpenters, plumbers, electricians, labourers etc working on construction projects across the province.

Without this distinction, it would be very difficult to unionize a construction company. In contrast with the non-construction sector where unionization requires that employees share a “community of interest”, generally based on things like doing similar work, on similar employment terms, in the same geographic location, construction work is often short-term, project-based and seasonal. Companies often incorporate just for a specific project, only to wind down when its done – reducing their long-term liabilities. And, construction projects may involve multiple subcontractors performing different services. So, Ontario law has created alternatives for unionizing construction sites and for union-membership as a construction worker.

One major legal difference is province-wide/industry-wide bargaining.In the non-construction sector, most bargaining units bargain a new collective agreement with their own employer, one-on-one. There are some exceptions in the health care field or in education, for example. In the construction sector, the law requires a group of employers to bargain together with a union or unions instead.These province- or industry-wide terms apply to all similar employers. In other words, when a construction company gets unionized, it automatically falls into an existing collective agreement and doesn’t get to participate in bargaining until the next round. By contrast, each newly unionized non-construction employer gets the chance to bargain its own terms- and failure to reach an agreement within a year can be a ground for de-certification.

While many construction employers complain about this system today, it was construction employers who brought about the current system. Historically,construction employers groups complained that they were overpowered by strong construction unions. A mandate to bargain with a group of employers was designed to balance the perceived strength of the construction unions.

WHAT DOES BILL 66 CHANGE FOR CONSTRUCTION EMPLOYERS?

Right now, it’s not always clear which employers are construction and which aren’t. The LRA doesn’t limit the “construction employer” label to construction companies or contractors. Employers like school boards,universities or hospitals might be construction employers during renovations or new builds. Municipalities may be construction employers because of their infrastructure work.

Bill 66 would amend the LRA to automatically deem these employers non-construction. This would terminate their existing collective agreements with the construction trade unions. And, the employers and unions would need to bargain one-on-one just like in the non-construction sector. Notably, this means that unionization at these employers wouldn’t mean that a province-wide agreement applies: they’d have to bargain individual collective agreements.

While bargaining time varies from workplace to workplace, it can be a long process. Especially for a first collective agreement at a newly unionized employer. Or in the public sector. Bargaining a collective agreement may take longer than it takes to complete a construction project.

WHAT ELSE DOES BILL 66 CHANGE?

Bill 66 doesn’t stop with exclusions from construction sector bargaining. Other workplace-related change that will be ushered in if this law passes (which it likely will, give the PC majority) include:

• Excluding ornamental horticultural workers from the right to unionize just like farm workers, unless they work for a municipality or in silviculture
• Freeing employers from the requirement that they get approval from the Director of employment Standards before “overtime averaging”and that “overtime averaging” agreements in unionized workplace expire after 1 year (What is Overtime Averaging?)
• Deleting the rule that employers need to display a poster with information about the ESA in the workplace

Doug Ford and his supporters say that these changes to Ontarioworkplace laws make our province more competitive. But, I’m skeptical that introducing uncertainty into the construction sector, excluding a small subset of employees (i.e ornamental horticulture workers) from exercising their right to unionize if they choose or letting employers tear down a single informational poster gives us a competitive advantage. Instead, what these changes do is chip away at union membership numbers and employees’ ability to assert their rights. 

Since unionized workplaces and workplaces where employees know their rights are safer and more fair, this doesn’t look like a competition I want to be a part of.