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| Inna Koldorf |
Bill 27, Working for Workers Act, 2021 (WFWA 2021) was introduced on Oct. 25, 2021, and received royal assent on Dec. 2, 2021. It includes the following new requirements and amendments:
1. Non-competition clauses
The Employment Standards Act, 2000 (ESA) was amended to include a prohibition on non-competition clauses in employment agreements entered into after Oct. 25, 2021. A recent Ontario judgment concluded that non-competition clauses in employment agreements entered into prior to Oct. 25, 2021, remain enforceable under the ESA (Parekh et al. v. Schecter et al. 2022 ONSC 302). While this new prohibition seems groundbreaking, in reality Canadian courts have been unwilling to restrict an employee’s ability to find new employment, and have therefore generally found non-competition clauses to be unenforceable for many years prior to the introduction of the WFWA 2021.
2. Licensing recruiters and temporary help agencies
The ESA was also amended to introduce a licensing regime that requires temporary help agencies and recruiters to apply for a licence, as they are already required to do in a number of other provinces.
3. Washroom use by delivery workers
The Occupational Health and Safety Act (OHSA) was amended to require commercial businesses to permit washroom use by delivery workers. The new requirement does not apply to private residences.
4. Removing ‘Canadian experience’ requirement
The Fair Access to Regulated Professions and Compulsory Trades Act, 2006 was amended to prohibit the requirement that immigrants and new Canadians in certain regulated professions have Canadian work experience to qualify for Ontario registration in their profession.
5. Fee for foreign nationals
The Employment Protection for Foreign Nationals Act, 2009 was amended to prohibit recruiters (and employers using recruiters) from directly or indirectly charging a foreign national for any service, good or benefit provided to the foreign national. Recruiters and employers will be jointly and severally liable to repay the fees charged.
6. WSIB surplus distribution
The Workplace Safety and Insurance Act, 1997 was amended to distribute a significant portion of the Workplace Safety and Insurance Board’s surplus to Schedule 1 employers.
7. Policy on disconnecting from work
Employers with 25 or more employees are now required to develop a “disconnecting from work” policy on or before June 2, 2022. “Disconnecting from work” is defined as “not engaging in work-related communications, including e-mails, telephone calls, video calls or the sending or reviewing of other message, so as to be free from the performance of work.” Other than this definition, and a requirement to note the date that the policy and any changes to it were prepared, the Act does not provide guidance respecting the content that the policy is supposed to include.
Despite the fanfare around this issue when the WFWA 2021 was passed, the Act does not create a new right for employees to be free from work outside their working hours, and does not include an enforcement mechanism. In fact, in its website materials on Written Policy on Disconnecting From Work, the Ministry of Labour notes that the contents of the policy employers are required to create is not enforceable under the ESA.
A short three months after the WFWA 2021 was passed, the government introduced the Working for Workers Act, 2022 with an additional list of potential changes to employment-related laws. These additional changes will be addressed in the second part of our series which will follow shortly.
This is the first of a two-part series.
Inna Koldorf is a partner in Miller Thomson LLP’s labour and employment law group, where she advises employers on labour, employment and human rights issues.
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