Overview of Ontario's Recent Employment Law Changes: Bill 79 and 149
**Written by Zura Nakiwoga, Articling Student at Lee Workplace Law
Introduction
Ontario is in the process of undergoing significant changes in its employment laws. In October 2023, Bill 79, the Working for Workers Act, 2023, was passed into law. Within weeks, the Ontario government announced more changes, with the introduction of Bill 149, the Working for Workers Four Act, 2023. Bill 149 is currently in its Second Reading in the legislature and has not yet come into force.
This blog provides an overview of the amendments introduced by each bill, covering a spectrum of statutes such as the Employment Standards Act, 2000 (ESA), the Occupational Health and Safety Act (OHSA), the Employment Protection for Foreign Nationals Act, 2009 (EPFNA), the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPCTA), and more.
OVERVIEW OF BILL 79: WORKING FOR WORKERS ACT, 2023
Bill 79 received Royal Assent on October 26, 2023. The Bill introduces a number of new and enhanced rights for workers in the province, part of the ongoing shift towards prioritizing the protection of workers. In this overview, we break down some of the changes brought by Bill 79, exploring how it affects important laws.
Amendments to the Employment Standards Act (ESA):
1. Mass Terminations:
Bill 79 brings significant changes to the ESA, including by ensuring that remote workers are now entitled to the same enhanced termination benefits in cases of mass terminations. A mass termination, defined as the termination of 50 or more employees within a four-week period, now explicitly includes remote workers. The definition of "establishment" under the ESA has been expanded to encompass an employee's private residence if they work there exclusively and not at any other location where the employer operates. This means remote workers in Ontario, whether working from home full-time or under a hybrid arrangement, will be considered in the 50-employee count for mass terminations and may be eligible for enhanced notice periods or pay in lieu of notice.
Additionally, under Bill 79, employers must provide each affected Ontario employee, on the first day of the notice period, with a prescribed Form 1 summarizing specific details about the mass termination. This requirement is in addition to the existing obligation to submit Form 1 to the Director of Employment Standards and display it conspicuously in the workplace. These changes aim to ensure transparency and timely information dissemination during mass terminations, enhancing the rights of affected employees.
2. Reservist Leave:
The legislation expands Reservist Leave eligibility, allowing individuals to claim this leave for recovery from military operations-related physical or mental health issues. Further, the eligibility period for Reservist Leave is reduced from three to two consecutive months of employment.
3. License Application Provisions:
Bill 79 introduces amendments to license application rules for recruiters, reinforcing regulations which prohibit charging fees for recruitment services provided to foreign nationals.
4. Authority to Make Regulations:
The legislation grants the government the authority to establish regulations specifying the information employers must provide to employees and prospective employees concerning rates of pay, work location, and hours of work.
Amendments to the Occupational Health and Safety Act (OHSA):
5. Increased Fines:
In a notable change, Bill 79 raises the maximum fine for corporations convicted under the OHSA from $1.5 million to $2 million, aligning with the ongoing trend of increasing fines for health and safety violations in Ontario.
Amendments to the Employment Protection for Foreign Nationals Act, 2009 (EPFNA):
6. Stricter Protections:
Bill 79 strengthens protections for foreign nationals by increasing licensing requirements for recruiters and temporary help agencies. Simultaneously, it raises maximum fines for individuals and corporations convicted of withholding property belonging to foreign nationals.
Other Amendments:
7. Fair Access to Regulated Professions and Compulsory Trades Act, 2006 (FARPCTA):
Bill 79 removes barriers for internationally trained professionals by amending the duty of regulated professions under FARPCTA. The amendment emphasizes the obligation of regulated professions to consult with the government to ensure that there is a sufficient number of qualified, skilled, and competent professionals in Ontario, aligning with the public interest.
Further, a new provision, Section 10.2, is introduced, making it mandatory for regulated professions that require "Canadian experience" as a qualification criterion to also offer alternatives to Canadian experience. This change promotes fairness and inclusivity by providing individuals with different pathways to meet registration requirements, recognizing a diverse range of qualifications and experiences.
Conclusion for Bill 79:
Bill 79 brings important changes, emphasizing inclusivity in mass terminations, strengthening protections for reservists and foreign nationals, and increasing penalties for OHSA violations. Employers are urged to stay informed and adapt to these legislative shifts to ensure compliance with evolving employment and health and safety laws in the province.
OVERVIEW OF BILL 149: WORKING FOR WORKERS FOUR ACT, 2023
The Ontario government has unveiled Bill 149, titled the Working for Workers Four Act, 2023. As of now, it has not been passed and is currently in the legislative process. Tabled on November 14, 2023, this proposed legislation signifies a substantial effort to strengthen employee protections and promote transparency in hiring practices. Below, we highlight some of the key amendments proposed by Bill 149.
Proposed Amendments to the Employment Standards Act, 2000 (ESA):
1. Trial Periods:
Under this Bill, the definition of "employee" would be expanded to expressly include individuals in trial periods, making them subject to ESA minimum standards. This encompasses provisions such as minimum wage, overtime entitlements, and restrictions on working hours. This change will confirm that employees undergoing trial periods will be afforded the same protections and entitlements as regular employees.
2. Job Postings:
Bill 149 introduces significant changes to publicly advertised job postings, compelling employers to provide detailed information. This includes disclosing the expected compensation or a range, acknowledging the use of AI in applicant selection, and refraining from including "Canadian experience" requirements. Moreover, the legislation would mandate the retention of copies of these postings and associated application forms for three years after public access removal. These proposed changes aim to enhance pay transparency, discourage discriminatory hiring practices, and establish accountability in the utilization of AI in recruitment processes.
3. Wage Deductions for Customer Theft:
The proposed amendment explicitly prohibits employers from making deductions from an employee's pay in cases where a customer leaves an establishment without paying for goods or services. This provision is designed to address situations commonly referred to as "dine and dash" in restaurants, or similar occurrences in other establishments.
4. Tips:
The Bill establishes clear rules on payment methods for tips and would place an obligation on employers that share tips or gratuities to conspicuously post their policies in the workplace. Additionally, employers must retain a copy of the policy for three years after it ceases to be in effect. These provisions aim to regulate and bring transparency to the handling of tips.
Digital Platform Workers' Rights Act, 2022:
5. Regulation-Making Authority:
The Digital Platform Workers' Rights Act is still pending implementation. Once enacted, it will also provide expanded regulatory authority to create specific rules for digital platform workers. These regulations may cover aspects like pay period length, pay day delays, and compliance with minimum wage requirements.
Workplace Safety and Insurance Act, 1997:
6. Presumption for Firefighters:
Noteworthy amendments include designating primary-site esophageal cancer as an occupational disease for firefighters. Additionally, the required employment duration for presumed compensation for esophageal cancer is reduced from 25 to 15 years. This change aims to provide enhanced protection and support for firefighters facing occupational hazards.
7. Indexing Factors:
The Bill will empower authorities to prescribe additional indexing factors for Workplace Safety and Insurance Board (WSIB) benefits, surpassing the annual inflation rate. This would enable a more dynamic adjustment of benefits to address changing economic conditions.
Consultations and Further Changes:
8. The Bill anticipates future consultations on issues such as the potential restriction of non-disclosure agreements (NDAs) in cases of workplace sexual harassment, misconduct, or violence. Additionally, there is a proposal for a new, job-protected leave for critical illnesses to align with the 26-week federal Employment Insurance sickness benefits.
Conclusion for Bill 149:
As Bill 149 progresses through Ontario's Legislative Assembly, employers and employees alike should stay informed about the potential impact on their workplaces. The proposed amendments would continue the trend of increased transparency and greater protection for employees in the workplace.
Employers and employees are advised to stay tuned for updates on the bill's passage and subsequent implementation and should consider consulting with legal professionals for more tailored advice.
Note:
For specific legal advice related to these changes, individuals and businesses are encouraged to consult with a qualified legal professional familiar with Ontario employment laws.
