Understanding The Working For Workers Act

Working For Workers Act (2021)

As of December 2nd, 2021 Bill-27, The Working for Workers Act officially received royal assent from the Ontario government.

The bill introduced new amendments to the Employment Standards Act (ESA), the Occupational Health and Safety Act (OHSA), as well as changes to the distribution of the WSIB Surplus. This surplus that we know has been gathered from cutting and denying injured workers their deserved benefits.

The main amendments that affect workers are those to the ESA. These include a “right to disconnect” from work, a non-compete clause in employment contracts, as well as new policies surrounding licensing requirements for temp agencies.

So, what does this mean for workers…

First, let’s get some definitions straight.

The right to disconnect from work is loosely defined as not engaging in work-related communication such as emails, text messages, and phone calls. The right to disconnect ultimately means that workers have the right to not engage in work-related activities outside of their regular working hours, or “to be free from the performance of work.”

Bill-27 would require employers with 25 or more employees to have a written policy with respect to disconnecting from work. What these disconnecting from work policies will look like is still under review.

However, it must…

Set out the date it was prepared
Note any dates on which it was amended,
Distributed to employees within 30 days of being created or amended, or when a new employee begins work.

Please note: If the employer’s policy on disconnecting from work does not create a greater right or benefit, the policy is not enforceable under the ESA.

Your employer has until June 2, 2022, to establish a policy for the 2022 year for workplaces with 25 or more employees.

If you have not received a written policy within 30 days of its amendment please do not hesitate to reach out with your questions and concerns.

A non-compete agreement came into effect on October 25, 2021. This is an agreement between an employer and an employee that prohibits the employee from engaging in other kinds of work, either independently or in another company, that would compete with the employer’s business.

Bill-27 would prohibit employers from making this kind of provision in employment contracts outside of certain exceptions.

These exceptions would pertain to the sale or purchase of a business or if a person held an executive position in the company such as CEO or CFO. You can read more here.

You can file a claim with the Ministry of Labour, if you believe that you may have entered into a prohibited non-compete agreement on or after October 25, 2021. Or do not hesitate to contact us with any questions.

The Bill also sets out standards for Temporary help agencies.

Traditionally, temporary help agencies could exploit workers without any fear of consequences because there were no policies regulating them. They were not legally obligated to pay wages fairly, or at all. There are predatory agencies that can lend out workers to companies for profit, and then completely disappear when it comes to paying wages. They did not have any obligation to the health and safety of their workers and have been largely linked to the further exploitation of migrant workers. The Ontario Government is requiring that temporary help agencies apply for a license.

Bill 27 attempts to rectify some of the mentioned issues.

This license would allow the government to shut down any agency that was breaching terms of the ESA or engaging in labour trafficking practices. It would also require that an agency put down a letter of credit so that if any situation occurred where a worker was not being paid fair wages, the bank and government could legally go after that agency.

If a company decides to use an unlicensed temporary help agency and the agency disappears, the company would be legally “holding the bag” and required to pay out unpaid wages as well as predatory recruitment fees. Companies using an unlicensed agency are a pretty big financial risk under these new requirements. Companies are financially motivated to go to reputable temporary help agencies because they do not want to have to pay out of pocket for unethical practices. In theory, this would make predatory agencies go out of business.

However, in practice, this could create an onset of problems.For example, this could turn into a jurisdiction nightmare. The bill says that health and safety should be the same for temporary workers or permanent workers, but fails to mention who is held accountable. The is also a clear lack of consideration of how vulnerable and migrant workers will be specifically protected in this, as they may already be scammed by illegitimate temp agencies.

What else changed?

The amendments to the OHSA allows The owner of a workplace to provide washroom access to workers who are delivering anything to the workplace or picking up a delivery. Providing access would not be required where:

○ it would not be reasonable or practical for reasons\relating to health or safety;

○ it would not be reasonable or practical having regard to all the circumstances (including the nature of the workplace, the type of work at the workplace, the conditions of work, the security of any person and the location of the washroom); or the washroom can only be accessed through a dwelling.

The amendments to the WSIB “permit the Workplace Safety and Insurance Board (“WSIB”) to distribute surpluses in its insurance fund (in excess of prescribed amounts) among certain employers…”

As we know from our protests in 2021 alongside ONIWG, these surpluses have been the result of ongoing cuts and benefit denials to deserving injured workers. Now, rather than giving back to workers the funds they need, the government has decided to return the surplus to employers, we have seen the recent rebates for employers since the beginning of 2022.

ONIWG and injured workers have called on the WSIB to return these funds for years and have been ignored.

Bill C-27 gives a “wait and see” attitude to see if the government will hold up their end of the deal to ensure these changes work positively for workers.

– Paul. G

Working For Workers Act (2022)

The Working for Workers Act, 2022 (Bill 88), received royal assent on April 11, 2022

The bill introduces new amendments and penalties to the Employment Standards Act (ESA), and the Occupational Health and Safety Act (OHSA), and enacts new legislation referred to as the Digital Platform Workers’ Rights Act, 2022.

The main proposed changes affecting workers are…

Changes to the ESA
Changes to the OHSA
Changes concerning Gig Workers

The new ESA Amendments…

Electronic Monitoring: As of January 1 of any year, employers with 25 employees or more must have a written policy in place with respect to electronic monitoring of employees by March 1 of that year (a “Policy”).
- The Policy must contain how, why and in what circumstances the employer may electronically monitor employees.

As of January, 2022 have until October 11, 2022, to put their Policy in place.
A copy of the Policy must be provided to ALL employees within 30 days from the day the policy is in place or within 30 days of a new hire’s start date.

While it is great to see policies of disclosure, that arguably would not be needed with the elimination of unethical practices, such as monitoring electronic devices. Also, it’s important to note that it does nothing to address any of the problematic issues that already go along with electronic monitoring. Violations such as wage chiselling, disincentivizing breaks, and discrimination.

Please reach out if a policy has not been provided to you within the 30 days.

ESA Exemptions: As of January 1, 2023, the ESA will not apply to certain business and information technology consultants, defined as:
- “business consultant” means an individual who provides advice or services to a business or organization in respect of its performance… and “information technology consultant” means an individual who provides advice or services to a business or organization in respect of its information technology systems…
  - To be exempt from the ESA, a Consultant must meet the following criteria:
    - provide services through (i) a corporation of which they are a director or a shareholder party to a unanimous shareholder agreement or (ii) a sole proprietorship of which the Consultant is the sole proprietor;
    - be subject to an agreement for services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be greater than $60 per hour (excluding bonuses, commissions, expenses and travelling allowances and benefits) and must be expressed as an hourly rate; and

Learn more about independent contractors and ESA exemptions through our factsheets.

The Amendments to the OHSA are as follows…

Opioid Protections: Require employers to provide naloxone kits in
the workplace. The Ontario government has identified high-risk settings which are most impacted by the opioid epidemic. Requirements regarding training and the use and maintenance of naloxone kits are also listed, see more here.
Penalty Increase: Effective July 1, 2022, For health‐and‐safety offences
- Maximum fine under OHSA for individuals who fail to comply with the act has increased from $100,000 to $500,000; and
- New penalty for directors and officers who fail to comply with their duty. Now liable for a max fine of $1,500,000, imprisonment for up to 12 months, or both.
Lengthening Periods: for charges under the OHSA from 1 to 2 years from the date of the order.
- OHSA now also includes a list of aggravating factors which must be considered by the Ministry of Labour when determining a penalty, see the list here.

Ensure your health and safety training is up to date and you are knowledgeable of workplace occupational health and safety policies, check out our factsheets or request a workshop.

The Proposed Digital Act:

Created to provide minimum rights for workers who perform digital platform work. Gig workers are commonly misclassified as independent contractors and do not enjoy the same rights and protections as other employees under the ESA.
Digital platform work is defined as “the provision of payment rideshare, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform”, commonly referred to as “gig work.”

The new rights for gig workers established under the Act include:

Rather than labelling gig workers as employees this legislation allows them to be excluded from other protections under the ESA.

In addition, the proposed minimum wage of $15/hour when on shift doesn’t actually cover the time that gig-workers are actually ‘at work’.

For example, Imagine paying a cashier only for time spent while interacting with the public…aside from the additional direct labour done it also undermines the extra work such as cleaning, getting to the situation, etc.

It’s ironic that this announcement was made on the same day that the MOL also ruled that UberEats in Toronto was in fact, misclassifying their workers, and has ordered Uber to meet the minimum employment standards. These new changes undermine this choice and create an open season for the exploitation of gig workers.

Other Amendments…

Reduce barriers in the provision of traditional Chinese medicine while ensuring consumer protection in the delivery of traditional Chinese medicine and acupuncture services.

Tackle Ontario’s historic labour shortage by ensuring out-of-province workers can register in their regulated profession or trade within 30 days. Learn more.
Expand military reservist leave to cover time spent training and reduce the amount of time they need to hold a job before they have it protected from six to three months.

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