The Ontario House of Commons has passed new legislation affecting workers’ rights. The new legislation (Working for Workers Act, 2021) strengthens regulations concerning
- Licensing Recruiting and Temporary Help Agencies
- Removing Canadian experience requirements
- Collecting Information About Agricultural Workplaces
- Requirement for a “Disconnecting from Work” Policy
- Prohibiting Non-Compete Agreements
- Delivery Worker Access to Washrooms
- Changes to the Workers’ Safety and Insurance Board
Licensing recruiting and temporary help agencies
The new legislation, Working for Workers Act, 2021 requires recruiters and temporary help agencies to have a licence to operate in the province. Licenses would be issued by the Director of Employment Standards, and would be for a term of one-year at a time. Bill 27 proposes a regime for license suspension, revocation, and review for any suspension or revocation, including by way of proceeding before the Ontario Labour Relations Board. Employers engaging the services of recruiters/temporary help agencies will be prohibited from knowingly using the services of unlicensed recruiters and temporary help agencies. The new Bill also requires recruiters and temporary help agencies to document work assignments and hours of work, which will assist workers in proving when they have been underpaid or had other rights violated. As all THA and Recruiters will need to apply and be investigated and vetted by the Ministry of Labour, the government intends to require licenses as early as 2024.
Removing Canadian experience requirements
Bill 27 removes barriers, such as Canadian experience requirements, for internationally trained individuals to get licenced in certain regulated professions and get access to jobs that match their qualifications and skills, through amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. However, regulated professions would still be required to ensure they comply with any regulations respecting English or French language proficiency testing requirements.
Collecting Information about Agricultural Workplaces
Schedule 4 of the Bill allows the Minister of Agriculture to collect information related to the agri-food workforce to ensure that the government can enhance the coordination of services such as vaccination and testing, and respond to issues that may arise.
Requirement for a “Disconnecting from Work” Policy
Employers with 25 or more employees will be required to have a written policy with respect to disconnecting from work. The Bill defines “Disconnecting from work” to mean “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” The Policy must include the date it was prepared and the date any changes were made to it. An employer would be required to provide a copy of the Policy to each of its employees within 30 days of preparing it or, if an existing written Policy is changed, within 30 days of such change. Such polices could include expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they are not working. For initial compliance purposes, the employer would have six months from November 30th (May 30, 2022) to put a Policy in place.
Prohibiting Non-Compete Agreements
Bill 27 amends the Employment Standards Act, 2000 and prohibits employers from entering into employment contracts with employees that are or include a non-compete agreement. These are agreements that prevent employees from leaving their job to work for a competitor or to start their own competing business within a specified timeframe and/or geographic area. Notably, employers would be able to protect their intellectual property through narrower clauses.
Delivery Worker Access to Washrooms
Bill 27 amends the Occupational Health and Safety Act requiring business owners to allow delivery workers to use a company’s washroom if they are delivering or picking up items.
In 2010, in response to concerns about its unfunded liability, the WSIB embarked on a transformation of its business model to reduce its costs. The transformation dramatically reduced the WSIB’s unfunded liability. With the Board now in good financial health, Bill 27 will make several changes to the Workplace Safety and Insurance Act including;
- Using WSIB surpluses to assist in COVID-19 recovery: Allowing surpluses in the Workplace Safety and Insurance Board’s (“WSIB”) Insurance Fund to be distributed over certain levels to businesses, which will help businesses cope with the impacts of COVID-19. Bill 27 provides that in certain circumstances, the WSIB is permitted or required to distribute amounts in the insurance fund in excess of prescribed amounts to qualifying “safe” employers. The Ministry estimates that a significant portion of the Board’s $6.1 billion reserve would be distributed to employers. This would be on top of the $168 million premium cut in 2022.
- Streamlining employer remittances:Enabling the WSIB to work with entities, like the Canada Revenue Agency, to streamline remittances for businesses, enabling an efficient one-stop-shop for submitting premiums and payroll deductions.
In Our View
Bill 27 aims to put in place a number of labour-friendly legislative changes.
The prohibition of non-competition agreements may have significant consequences for employers. Employers who have entered into non-competition agreements or negotiated non-competition provisions into their employment agreements with employees will no longer benefit from the protection of such clauses. Employers should also be aware that the legislation makes reference to employment contracts or “other agreements.” This broad wording will therefore capture other contracts or agreements that constitute a non-competition agreement, or contain non-competition clauses.
The Bill brings in significant changes for recruiters, temporary help agencies, and their customers, who will be subject to licensing requirements in order to operate.
However, the details of other changes, such as the right to disconnect, are still subject to regulation. As such, employers may not yet know the extent of their obligations in respect of some of Bill 27’s proposed changes.
We will continue to monitor the progress of Bill 27 and provide updates as the new Legislation and its impact on other employment regulations becomes clearer.