 |
| Inna Koldorf |
In the first instalment of this two-part series I outlined the changes which were introduced by Bill 27 – Working for Workers Act, 2021, which received royal assent on Dec. 2, 2021. A short three months later, on Feb. 28, 2022, the Ontario government introduced Bill 88, Working for Workers Act, 2022 (WFWA 2022) which, if passed, will make further changes to various employment-related legislation. The following is a summary of the proposed changes:
1. Gig economy workers’ rights
The big ticket item in Bill 88 is the creation of the Digital Platform Workers’ Rights Act, 2022. This new Act will provide new protections for workers engaged in “digital platform work,” which is defined as “the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” These workers are often referred to as gig economy workers.
An “operator” is defined as a person that is not a temporary help agency, and who “facilitiates, through the use of a digital platform, the performance of digital platform work by workers.” “Digital platform” is defined as “an online platform that allows workers to choose to accept or decline digital platform work.”
A worker does not have to be an employee to be entitled to the protections of the new Act. A worker and an operator also cannot contract out of the rights included in the new Act.
If the bill is passed, operators will have to establish a recurring pay period and pay day for gig economy workers, and ensure that the workers receive at least the applicable minimum wage set out in the Employment Standards Act, 2000 (ESA). Operators must also provide workers with information on how their pay is calculated, how much they will be paid for each work assignment that is offered, how tips are collected and paid, how work is allocated, and whether the digital platform uses a performance rating system.
The most controversial prohibition in the new Act is the prohibition on operators from removing a gig economy worker’s access to the digital platform without providing the worker with a written explanation of the reasons, unless the worker is guilty of willful misconduct. If the removal is for 24 hours or longer, the worker must be given two weeks’ written notice.
Lastly, all disputes between workers and operators must be resolved in Ontario, a nod to the Supreme Court of Canada’s decision in Uber Technologies Inc. v. Heller 2020 SCC 16. For a summary of the Supreme Court of Canada’s decision, please refer to my article on Significant 2020 Ontario employment law decisions.
2. Electronic monitoring policy
The WFWA 2022 will amend the ESA to require employers with 25 or more employees to have a written policy with respect to electronic monitoring. The policy must indicate whether the employer electronically monitors employees and provide a description of how and when the employer does so. The policy must also provide the purpose for the monitoring and the date the policy was prepared and amended. As with the right to disconnect policy, there will be no enforcement mechanism in the ESA.
3. IT and business consultants excluded from the ESA
The ESA will be amended to exclude business consultants and information technology consultants from the protections of the ESA, if the consultant:
a. provides services through a corporation or a sole proprietorship;
b. there is an agreement for services which sets out the hourly rate at $60 or higher excluding bonuses, expenses, travelling allowances and benefits; and
c. the consultant is paid the amount set out in the agreement.
4. Reservist leave
The WFWA 2022 will amend the ESA to provide entitlement to reservist leave after three months of employment rather than the current six months, and will extend entitlement to the leave to employees participating in Canadian Armed Forces military skills training.
5. Naloxone kits
The Occupational Health and Safety Act (OHSA) will be amended to require employers who are aware (or ought reasonably to be aware) that there may be a risk of a worker having an opioid overdose in the workplace, to provide a naloxone kit, maintain it in good condition, and ensure that a worker is trained on the use of the kit and is able to administer it after recognizing an opioid overdose. Naloxone is a medication that can temporarily reverse the effects of an opioid overdose to allow time for emergency medical help to arrive.
6. Increased penalties under OHSA
If passed, the WFWA 2022 will increase the limitation period for commencing prosecutions under the OHSA from the current one year, to two years. The maximum fines for contravention of the OHSA will be increased to $500,000 for individuals, and $1.5 million and up to 12 months’ imprisonment for directors or officers of a corporation. While fines in the OHSA are not new, the amendment will also add a list of aggravating factors to be considered for the purposes of sentencing under the OHSA, including the following:
- an element of moral blameworthiness in the defendant’s conduct;
- the defendant was motivated by a desire to increase revenue or decrease costs; or
- the defendant attempted to conceal the offence from or failed to co-operate with the Ministry of Labour or other public authorities.
The list of changes to date is long, though with 2.5 months to go before the election, it is a running list rather than a finalized one. Practically, however, the new amendments announced to date should have little effect on most Ontario workplaces (drafting of two additional policies aside). The question remains whether some or all of these amendments will still be in place a year from now.
This is the second half of a two-part series. Part one: Ontario’s Working for Workers Act: A summary
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.
Photo credit / -ELIKA- ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.