On October 25, 2021, the provincial government introduced the Working for Workers Act in the legislature, omnibus legislation which, if passed, would amend various pieces of legislation with implications for workers. Below, PooranLaw summarizes the key elements of the proposed legislation below:
1. Right to Disconnect
Bill 27 would amend the Employment Standards Act, 2000 by requiring employers that have 25 or more employees to have a written policy on disconnecting from work. The concept of “disconnecting” is vague but generally relates to after-hours communications (emails, calls, messages). The proposed changes do not dictate what must be in the policy – so this is a very light touch and does not actually proscribe any minimum time free from communications. That said, it is expected that that Ontario may introduce a Code of Practice through regulation to spell out clear requirements for policies.
For now, the idea is to turn employers mind to it and so that the employer communicates clearly set out expectations for employees in relation to their hours of work and off-duty communications. These workplace policies could include, for example, expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they aren’t working.
These policies must be implemented before March 1 of any year in which the employer employs 25 or more employees and communicated to existing employees within 30 days. New hires must receive a copy within Employees must be provided with a copy of the disconnecting from work policy within 30 days of hire.
As the Bill is expected to pass (as it is a government Bill) employers should begin turning their minds to these policies, particularly employers with 24-7 operations where supervisors, managers and executive staff are frequently expected to be “available” outside their regular working hours.
A grace period of 6-months from the date the legislation passes will be applied to give employers an opportunity to become compliant.
2. Prohibition of Non-Compete Provisions in Employment and Other Agreements
The Bill also includes a ban the use of non-compete agreements that prevent people from exploring other work opportunities. The objective appears to be to make it easier for workers to advance in their careers. Non-compete’s often restrict employees from taking new jobs with another business in the same field after they leave the employer. If this change is passed, Ontario would be the first jurisdiction in Canada, and one of the first in North America, to ban non-compete agreements in employment.
While most agencies in the broader public sector do not have such policies or contracts in place for front line staff, it can be tempting to require more senior employees that you’ve invested in to remain in your employ or prevent them from seeking employment elsewhere. With this new legal restriction, employers should think twice before relying on language that could be viewed as a non-compete.
3. Temporary Help Agencies and Recruiters
The Bill would require temporary help agencies (THAs) and recruiters to have a licence to operate in the province. Proposed changes would enable officers to levy penalties against an unlicensed THA or recruiter or a business who is using an unlicensed operator. As well, those who use deceitful recruiters could be required to repay workers for illegal fees charged. Ontario is also proposing to hire a dedicated team of officers to crack down on THAs and recruiters who are exploiting and trafficking domestic and foreign workers.
Inspections by ministry officers have shown that there are multiple temporary help agencies in Ontario that are illegally paying people below the minimum wage, treating them as “contractors” when they are actually employees, and denying other basic employment rights such as vacation, overtime and public holiday pay. They also frequently do not have WSIB as required by law. This can create risk for workers and the agencies that rely on THAs alike. In doing so, THAs gain an unfair advantage over law-abiding agencies by undercutting rates and distort the labour market by offering “contractors” gross “fees” without deductions and remittances, thereby dissuading them from accepting regular employment with employers.
Under the proposed legislation, THAs and recruiters would be vetted before being issued a licence to operate. Applicants would need to provide an irrevocable letter of credit, that could be used to repay owed wages to workers. Penalties could be issued against unlicensed agencies and recruiters as well as the companies who use them, with proactive inspection measures to ensure compliance with applicable requirements. If the legislation is passed, the government intends to require licences as early as 2024.
The proposal also comes with a verification tool that would allow clients of these agencies (such as DS agencies) to confirm that the staffing agency is licensed and in good standing.
Hopefully, this will drive operators who are currently skirting the law out of the market, making their workers more readily available to be hired lawfully and properly by staffing agencies that have appropriate protections in place, or even better, by broader public sector agencies that are currently experiencing severe labour shortages.
4. Occupational Health and Safety Act (OHSA)
Under the Bill, the OHSA would be amended to require that employers ensure delivery personnel have access to a washroom when they are making deliveries to or from that workplace. Fortunately, there are exemptions that would apply where the “workplace” is a place of residence or where the access could pose a health and safety risk.
5. Workplace Safety and Insurance Act, 1997 (WSIA)
The Bill would amend the WSIA to: i) allow for the distribution of surplus insurance fund amounts to Schedule 1 employers; ii) provide a determination by the Workplace Safety and Insurance Board (WSIB) under section 97.1 cannot be reconsidered by, or appealed to, the WSIB or the Workplace Safety and Insurance Appeals Tribunal; and iii) allow the WSIB to enter into an agreement with any person or entity for the purpose of administering Part VII of the WSIA, “Employers and their Obligations” (i.e. obligations related to, among other things, registration and information requirements, calculating payments, payment obligations for Schedule 1 and Schedule 2 employers, and employer obligations in special circumstances)
6. Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (Act)
The Bill would prohibit regulated professions from requiring “Canadian experience” as a qualification for registration with exemptions only being granted upon application for reasons of public health and safety. The Bill would also require regulated professions to comply with regulations related to English/French language proficiency.
PooranLaw will continue to monitor legal developments related to Bill 27. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
