Working for Workers Act, 2021: Ontario Passes Legislation Affecting Workers’ Rights
On December 2, 2021, the Ontario government passed a new law affecting workers’ rights. Although not going nearly far enough to address abusive employer and recruiter conduct, the Working for Workers Act, 2021 responds to demands that workers have made for many years.
The legislation strengthens the regulation of migrant worker recruiters and temporary agencies, ends non-compete agreements, proposes to improve access to washrooms for delivery workers and requires employers to have policies about disconnecting during off-hours. While positive, there are significant gaps. As explained below, it is unlikely that the Working for Workers Act will do much to improve working conditions, particularly since there is no indication when most of the key reforms will actually come into effect.
The province has also introduced a Bill that, if passed, will increase the minimum wage to $15 on January 1, 2022, with annual increases. Notably missing in the announcements so far is a commitment to ensuring that workers have paid sick days.
The Working for Workers Act introduced reforms on the following topics, which are explained in more detail below:
- Regulating Recruiters and Temporary Agencies
- Eliminating Barriers to Non-Health Professions and Trades
- 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
Unless otherwise noted, the reforms described below came into effect on December 2, 2021.
Regulating Recruiters and Temporary Agencies
One of the most significant aspects of the Working for Workers Act is the introduction of new legal obligations for recruiters and temporary help agencies.
“Recruiters” are individuals or companies that offer to assist migrant workers to come to Canada for work. As groups like Migrant Workers Alliance for Change have documented, migrant workers can pay thousands of dollars in fees to unscrupulous recruiters and agencies, both overseas and in Canada. Often when the workers arrive, their working conditions and wages are not as promised or agreed to.
In 2009, the province passed the Employment Protection for Foreign Nationals Act, making it illegal for recruiters and employers to charge recruitment fees. But the Act has lacked the teeth needed to enforce it and abusive recruitment practices have continued. Recruitment agencies have established subcontracting relationships to shield themselves from liability.
Abusive conduct by temporary agencies is also well documented, including wage theft, unsafe work, and illegal recruitment fees. Many temporary agencies operate through a web of companies to protect their true owners from identification and liability.
The Working for Workers Act finally promises some accountability for recruitment and temporary help agencies, including:
- Recruiters and Employers are prohibited from knowingly using the services of a recruiter who has charged a foreign national an illegal fee.
- NOT IN FORCE: Mandatory licensing of recruiters and temporary help agencies. Employers engaging the services of recruiters/temporary help agencies will be prohibited from knowingly using the services of unlicensed recruiters and temporary help agencies (although there are no penalties or fines if they do so). The Director of Employment Standards will have the ability to deny a license to applicants who have ever charged an illegal fee; as well as the power to suspend or revoke licenses.
- NOT IN FORCE: A new requirement that recruiters and temporary help agencies disclose the identity of sub-contractors, which may address problems arising from the web of corporations that recruiters and temporary help agencies use to avoid legal liability. To be licensed, agencies will need to confirm that they are aware that they cannot charge illegal fees and that they have made inquiries to assure themselves that any sub-contractors are not charging illegal fees.
- NOT IN FORCE: New requirements for 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.
- NOT IN FORCE: Corporate directors of recruitment agencies will be jointly and severally liable for illegal recruitment fees of subcontractors.
- NOT IN FORCE: The Act will expand the prohibitions on reprisals to protect workers seeking to enforce rights involving recruiters. In a welcome move, the burden of proof will be on the recruiter to prove they did not engage in a reprisal is on the recruiter.
While a positive step, the Working for Workers Act has serious weaknesses. When it comes to illegal conduct by recruiters, the legislation does not make employers liable for recruitment fees. To really ensure workers can get back the illegal fees they paid, the employer must be held liable. If employers are responsible, they will have an incentive to make sure they use recruiters that do not charge illegal fees.
With respect to temporary agency workers, the Workers Action Centre and Parkdale Community Legal Services argue that effective protections for temporary agency workers will require steps such as: making companies financially responsible under the injured workers compensation regime for the death and injuries of temporary agency workers and ensuring all temporary agency workers earn the same wages as directly-hired workers when they do the same work.
And ultimately, the Working for Workers Act does nothing to address the serious barriers migrant and temporary workers face to unionizing. Without the collective power gained through unionization, it will be difficult for workers in such precarious situations to enforce what minimal rights they have.
Eliminating Barriers to Non-Health Professions and Trades
Migrants identify many barriers to finding jobs that correspond to their education, skills, and experience, including employers not recognizing their credentials and experience. Language proficiency and “Canadian experience” requirements are often irrelevant to the actual job and operate as thinly veiled racist exclusions. The Ontario Human Rights Commission has formally taken the position that a strict requirement for “Canadian experience” is prima facie discrimination.
The province has indicated that it will be considering amendments to the Fair Access to Regulated Health Professions Act, 2006. The Working for Workers Act gives government some tools to eliminate such discriminatory requirements for registration with the bodies that regulate professions and trades. Most significantly, the legislation prohibits a regulated profession from requiring “Canadian Experience” as a qualification for registration, subject to exemptions for health and safety reasons which may be determined by regulation. The government also proposes to implement rules about the level of language proficiency required to enter the professions and trades, although the details of these requirements remain to be determined in future regulations.
Collecting Information about Agricultural Workplaces
The provincial government claims that Schedule 4 of the Act enhances coordination of services such as vaccination and testing at agricultural workplaces. As the pandemic has highlighted, the working conditions for migrant agricultural workers place them at great risk of infectious diseases such as COVID-19. Indeed, the generally unsafe and exploitative working conditions for such workers have been well documented over many years.
The Working for Workers Act does nothing to change that reality. It simply allows the Minister of Agriculture to collect information related to temporary foreign agricultural workers to respond to publish health or public safety concerns; emergencies related to agriculture, food, or rural affairs (including human health).
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 by June 3, 2022. The legislation 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 Act does not set out any other requirements, such as setting minimum standards for how long in each workday workers have the right to disconnect. It leaves such details to be determined at some point in the future by regulation.
In a backgrounder, the Ministry of Labour suggested the polices could include expectations about response time for emails and encouraging employees to turn on out-of-office notifications when they are not working. Needless to say, such minimal “disconnection” requirements would not deliver the promise to “help employees spend more time with their families.”
Prohibiting Non-Compete Agreements
The Working for Workers Act amends the Employment Standards Act, effective October 25, 2021, to prohibit employers from entering 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.
The prohibition in the legislation does not apply to executives.
As most such non-competition agreements and contract clauses are not enforceable anyway, particularly for low wage workers, the legislation changes very little while giving the impression that the government is doing something to help workers. The province is aware that employers use these unenforceable clauses to “intimidate” workers. It is difficult to see how that the legislation will prevent such intimidation from continuing.
Delivery Worker Access to Washrooms
The Working for Workers Act amends, at some undefined future date, the Occupational Health and Safety Act to require business owners to allow delivery workers to use a company’s washroom if they are delivering or picking up items (with some exceptions, such as for health, safety, and security reasons).
The provincial government has pitched this reform as supporting “the delivery drivers, couriers and truck drivers who have kept our essential supplies and economy going through the pandemic.” Access to washroom is no doubt necessary for the health and safety of delivery workers. It should be noted, however, that the Act does not touch any of the demands made by delivery workers in the “Gig Workers’ Bill of Rights”, such as effective rights to unionize, full employment rights, payment for all hours of work, and coverage under injured workers compensation law.
In 2010, in response to concerns about its unfunded liability, the Workplace Safety and Insurance Board (WSIB) embarked on a transformation of its business model to reduce its costs. The transformation dramatically reduced the WSIB’s unfunded liability. But advocates and health care professionals have argued that reduction came at a cost to injured workers: by routinely disregarding medical evidence; forcing workers back to work before they were medically fit; cutting compensation benefits and denying entitlement to health care treatments.
With the Board now in good financial health, the Act will make several changes to the Workplace Safety and Insurance Act (although these reforms do not come into effect right away). However, rather then improving benefits and services to workers, the legislation allows the WSIB to redistribute money to employers if the insurance fund is over a target amount. 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.
These amendments will exacerbate the financial incentives that already exist for employers to challenge worker claims for entitlement, contributing further to undermining the workers’ compensation system.
The Act will also allow the Board to enter into an agreement with “any person or entity” for the purpose of administering certain employer obligations, such as remittances. A government backgrounder explains that this change will enable the Board “to work with entities, like the Canada Revenue Agency, to streamline remittances for businesses, and facilitating an efficient one-stop-shop for submitting premiums and payroll deductions.” Note, however, that the language of the Act is broad enough to allow for privatization of the administration of a great deal of the Board’s processes related to employer premium obligations and remittances.