On March 20, 2023, the Ontario government tabled Bill 79, Working for Workers Act, 2023, which, if passed, would provide further protections for remote and precarious employees under various employment statutes, including the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA). Below are some of the key proposed changes of interest for employers and payroll.
Inclusion of remote workers in the definition of establishment
The ESA currently defines an employer’s “establishment” as a location at which the employer carries on business. However, if the employer has multiple locations, all locations within the same municipality are considered one establishment. Similarly, if employees at a location have seniority rights under an employment contract or collective agreement that permits them to displace other employees at another location, those locations are together considered one establishment.
If passed, Bill 79 will expand the definition of “location at which the employer carries on business.”
New section 53.2 provides that in Part XV of the Act, in certain circumstances, a “location at which an employer carries on business” includes an employee’s private residence. In this Part, except for clause 58 (2) (b) and subsection 58 (5), and for the purposes of Part XVIII (Reprisal), section 74.12, Part XXI (Who Enforces this Act and What They Can Do), Part XXII (Complaints and Enforcement), Part XXIII (Reviews by the Board), Part XXIV (Collection), Part XXV (Offences and Prosecutions), Part XXVI (Miscellaneous Evidentiary Provisions) and Part XXVII (Regulations) insofar as matters concerning this Part are concerned, “establishment” means an establishment as defined in subsection 1 (1) subject to the following modification:
1. The phrase “location at which the employer carries on business” includes a private residence of the employer’s employee if the employee performs work in the private residence and the employee does not perform work at any other location where the employer carries on business.
This amendment ensures that an employee who works exclusively from home is not denied mass termination entitlements simply because they do not work at an employer’s physical work location. This will require an employer to be mindful of where in Ontario their remote employees work when evaluating if the mass termination provisions of the ESA are triggered by a large workforce reduction.
Currently, if an employee terminates 50 or more employees at the employer’s “establishment” in a four-week period, it must provide notice or pay in lieu, in accordance with the O.Reg 288/01 (Termination and Severance of Employment). This regulation provides enhanced “mass termination” notice obligations not based on an individual employee’s length of service but rather the number of employees terminated within the four-week period. If an employee terminates 50–199 employees in an establishment in a four-week period, eligible employees are entitled to eight weeks’ notice or pay in lieu. This increases to 12 weeks if the termination impacts 200–499 employees and to 16 weeks if 500 or more employees are terminated.
In addition, if the mass termination obligations are engaged, an employer must provide notice to the Director of Employment Standards in the prescribed Form 1 and post Form 1 in the employer’s establishment on the first day of the notice period. Any statutory working notice is not effective until Form 1 is received by the Director of Employment Standards. Bill 79 also amends an employer’s obligations with respect to Form 1. In addition to providing Form 1 to the Director of Employment Standards and posting a copy in the establishment, an employer must provide Form 1 to each affected employee on the first day of the notice period.
Information for new employees
Bill 79 grants the government discretion to enact new regulations requiring an employer to provide certain information to an employee or prospective employee. The Government of Ontario has indicated it will introduce regulatory changes requiring an employer to provide new employees with information about their pay, work location and work hours.
Also, amendments are made to licence application provisions in Part XVIII.1 of the ESA, including references to subsection 7 (3) of the Employment Protection for Foreign Nationals Act, 2009.
Amending reservist leave
Bill 79 will make Ontario’s job-protected leave for military reservists the most flexible and comprehensive in all of Canada. This will allow reservists to have their job protected when they are deployed to emergency operations inside Canada, even if it’s their first day at a new job, reduce the length of employment required for all other reasons from three months to two months and expand the reasons for taking reservist leave to include where the employee may need additional time off to recover from physical or mental injuries.
Specifically, if passed, the Bill would do the following:
- Guarantee that military reservists can return to their civilian jobs after deployment, even if they need additional time off to recover from physical or mental injuries. Nearly one in seven of the 40,000 Canadian soldiers deployed in Afghanistan developed a mental injury attributed to trauma from their mission. This change would amend Section 50.2 of the Employment Standards Act, 2000, to expand reservist leave to include where the employee is in physical or mental treatment, recovery or rehabilitation related to participation in a military operation or specified activity.
- Make Ontario among the first in Canada to allow reservists to respond and deploy to domestic emergencies—including search and rescue operations, recovery from national disasters such as flood relief, and military aid following ice storms—even if they just started a new job. Similarly, reservists would be eligible for job-protected leave when deployed abroad or upgrading their military skills after just two months as opposed to the current three.
The Canadian Forces have about 27,000 Reserve Force members. Of these members, about 11,000 live in Ontario. According to the Ontario government, the Canadian Armed Forces is still experiencing shortages of reservists and troops, with one in 10 of the military’s 100,000 positions unfilled. This legislation, if passed, will help to ease that shortage.
Higher OHS fines and fines to protect vulnerable workers
Bill 79 amends the Occupational Health and Safety Act to increase the maximum fine for a corporation for a conviction under the Act and amend the Employment Protection for Foreign Nationals Act, 2009, relating to contraventions of the Act in respect of a passport or work permit.
Specifically, the Bill would strengthen protections for vulnerable and migrant workers by establishing the highest maximum fines in Canada for businesses and people who are convicted of withholding a foreign national’s passport or work permit. Offenders could face a $100,000 to $200,000 penalty for every worker whose rights are violated.
Ministry officers have the power to levy penalties for each passport or work permit a business or person withholds. Legislation introduced would allow for these penalties to be increased, meaning these bad actors could quickly face millions in fines for their illegal actions. In addition to the per-passport penalties, individuals convicted of withholding passports would be liable to either a fine of up to $500,000, up to 12 months imprisonment or both. Corporations convicted would be liable to a fine of up to $1 million.
The government is also proposing amendments to the Occupational Health and Safety Act (OHSA), which, if passed, would increase the maximum fine for corporations convicted of an offence under the OHSA from $1.5 million to $2 million. This would give Ontario the highest maximum corporate fine under Canada’s workplace health and safety legislation. Last spring, the government raised fines to a maximum of $500,000 for individuals and up to a maximum of $1.5 million for corporate directors.
Amendments to fair registration practices
Bill 79 makes various amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, to require a regulated profession to work with its responsible Minister (or such other Minister as may be identified) to ensure public access to an adequate number of qualified, skilled and competent regulated professionals.
(a) amendments to the definition of “registration”;
(b) an amendment respecting the powers under the Act that the Minister may delegate to the Fairness Commissioner or any person employed in the Ministry;
(c) an amendment establishing the duty of regulated professions to ensure that the people of Ontario have access to adequate numbers of qualified, skilled and competent regulated professionals; and
(d) an amendment providing that Canadian experience may be accepted in satisfaction of qualification for registration only if alternatives to such experience are also accepted.
In addition, section 15 of the Ministry of Training, Colleges and Universities Act, which governs the collection, disclosure and use of personal information, is amended to permit the collection, disclosure and use of personal information for purposes related to certain employment programs and services.
What comes next?
As of March 23, 2023, Bill 79 is in the second reading debate in the Ontario Legislature. Most of the changes found in Bill 79 will come into force when the Bill receives royal assent. We will keep you updated on the progress of the Bill and any new developments.
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