The Working for Workers Act, 2021 (Bill 27) has been a hot news topic throughout 2021, no doubt due to the controversial changes coming into law which some consider too forward thinking and generous to employees, yet others find refreshing and long overdue. No matter where you fall on the topic, the Act brings in several new requirements employers and businesses owners in Ontario must follow. Even still, the new guidelines are creating confusion as they amend various statutes* with respect to employment, labour, and other matters. So, let’s buckle down together and clear things up.
Bill 27, shortly titled the Working for Workers Act, 2021, received Royal Assent on December 2, 2021. The most significant changes are described in greater detail below. For further information on other amendments made by Bill 27 contact an expert from HR Covered Inc.
1. Right to Disconnect
It has become quite commonplace for employees to continue to work at home at the end of a workday, leaving many feeling they can never truly unplug or relax. This has been particularly evident since the pandemic, which has forced many employees to work from home full-time. HR Covered polled employees and found that 83% of respondents reported being contacted via email/phone after work hours for official matters. The resulting lack of work-life balance or downtime can lead to burnout and job dissatisfaction across time. It can also lead employers into hot water if they are challenged about whether they owe employees extra pay or overtime for time spent attending to work issues beyond what is contractually obligated.
The right to disconnect is one of the highlights of Bill 27 and brings revolutionary amendments to the Employment Standards Act, 2000 (“ESA”). Under the Working for Workers Act, employers will now have to think twice before reaching out to employees after work hours, and employees will have the legal right to disconnect from work after their usual working hours. The term “disconnecting from work” is defined to mean not engaging in work-related communications, like emails or calls, and not sending or reviewing any messages. This means employees can ultimately be free from work outside of regular working hours.
What does this mean for employers?
Employers with 25 or more employees must have a written policy on disconnecting from work. The policy must mention the date it was prepared and the date any changes were made to the policy. A copy of the written policy must be given to each employee within 30 days of preparing the policy or, if an existing written policy is changed, within 30 days of the changes being made. Similarly, every new employee must be provided with a copy of the written policy within 30 days of being hired.
What should employers do?
The policy will need to be in place by the 1st of March each year. However, employers have a grace period for 2022 and will not need to have policies in place until June 2, 2022.
What to include in the policy?
The government has not yet prescribed all content for the policy in the Working for Workers Act, 2021, such as which classes of employees are excluded from the scope of the new Act. Put your name on this list and we’ll send a complete policy template straight to your inbox as soon as possible:
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2. Prohibition of Non-compete Agreements
As per the new Act, no employer shall enter into an employment contract or other agreement with an employee that is or that includes a non-compete agreement.
A “non-compete agreement” is defined as an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.
The removal of the non-compete will make it easier for workers to advance in their careers and explore alternate work opportunities with ease.
What does it mean to employers?
Employers regulated under the ESA, can no longer implement an agreement or employment contract which prohibits an employee from joining a competitor upon leaving their employ. This applies to new contracts entered into since the Working for Workers Act came into force. How judges will apply the changes to contracts signed prior to the 2021 amendment is yet to be determined; however, the language reads as though previously signed non-competes may still be enforceable.
What should employers do?
- Adjust employment contract templates accordingly by removing NDA language (contact HR Covered for advice or a contract template) and use these with any new hires.
- Consider using a robust clause in your contracts regarding proprietary information as you may protect this contractually. In other words, you can no longer tell an employee they can’t leave to work for a competitor, but you can tell them they must keep confidential any proprietary information or trade secrets belonging to your organisation.
3. Licensing for Temporary Help Agencies and Recruiters
The Act is amended so that temporary help agencies must hold a valid licence to operate as an agency. Not only that, employers using these agencies are responsible to ensure they only work with licensed agencies.
Similarly, a valid license is mandatory for recruiters to operate as recruiters. Again, clients of recruiters (which includes other recruiters, employers and prospective employers) can’t knowingly use the services of non-licenced recruiters.
The changes will enable officers to levy penalties against an unlicensed Temporary Help Agency or recruiter, or a business that is using an unlicensed operator. Those who use deceitful recruiters may be required to repay workers for illegal fees charged.
What does it mean for NPOs?
If you are a Non-Profit-Organization (“NPO”), make sure your recruiter or temporary help agency has a valid license.
What individual recruiters/agencies must do?
You may apply to the Director of Employment Standards for a licence or a renewal of a licence by submitting a written or electronic form approved by the Director. You will have to pay the prescribed fee and provide the Director with the prescribed security and comply with any additional prescribed requirements.
4. Prohibition Against Using Recruiters that Charge Fees
The Employment Protection for Foreign Nationals Act, 2009 prohibits a recruiter from directly or indirectly charging a foreign national a fee for any service in connection with their employment. The Act is now amended to prohibit recruiters or employers from knowingly using the services of a recruiter who has charged a fee to a foreign national. There are penalties for individuals and corporations who do not abide by the amendments.
5. Workplace Washroom Access
The Occupational Health and Safety Act is amended to require owners of workplaces (not private residences) to provide washroom access to persons making deliveries to or from the workplace.
- If providing access is not reasonable for health and safety reasons.
- If providing access is not reasonable for reasons related to security, location, condition or nature of the workplace.
- If the washroom is in or can only be accessed through a dwelling.
6. Distribution of WSIB Insurance Fund Surplus
The Workplace Safety and Insurance Act is amended to require the Workplace Safety and Insurance Board (“WSIB”) to distribute surplus amounts in the insurance fund to Schedule 1 employers(include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades; and construction). As per the Act, if the amount of the insurance fund meets a sufficiency ratio that is equal to or greater than 115 percent and less than 125 percent, the Board may distribute any surplus amounts back to employers.
7. Removal of Canadian Experience as a Qualification
The Fair Access to Regulated Professions and Compulsory Trades Act, 2006 is amended to prohibit regulated professions from requiring “Canadian experience” as a qualification for registration unless an exemption from the prohibition is granted by the Minister of Citizenship and Immigration for the purposes of public health and safety in accordance with the regulations.
The removal of “Canadian Experience” will encourage more foreign nationals to take up job opportunities, solving the hiring challenges of employers like Non-Profit-Organizations.
Regulated professions, as outlined in Schedule one of the Act, are required to ensure they comply with any regulations respecting English or French language proficiency testing requirements. Compliance orders may be issued if a regulated profession imposes requirements that are prohibited under the Act.
Experts at HR Covered can help you navigate through the rough rapids of HR Compliance.
What employers must do?
Employers must review and revise applicable documents such as job postings or hiring procedures based on the new amendments.
5 Ways the Working for Workers Act, 2021 (Bill 27) Helps Employers
Although the Working for Workers Act amendments may seem favourable to employees, they are greatly beneficial to employers as well.
- A well-drafted right to disconnect policy will provide a win-win for employers and employees. Employees with a better work-life balance are more productive, motivated, and ready to pace up business activities and attain their goals.
- The prohibition of non-compete agreements has a bright side for employers. Businesses can attract potential resources from their competitors and hire them confidently.
- COVID-19 has forced aus to labour shortage like never before and the removal of Canadian experience criterion is a great step towards fighting it. It will remove a significant barrier faced by internationally-trained immigrants so they may work in Ontario, Not only will it assist foreign workers, international students, business owners or entrepreneurs from outside of Canada, it is a great opportunity for employers to access a wider talent pool and recruit international talents through the Immigrant Nominee Program.
- Licensing temporary help agencies and recruiters will provide better quality opportunities for workers, especially for foreign nationals. Clients of these agencies can now confidently recruit temporary workers and employees.
- The Working for Workers Act, 2021, is allowing a significant portion of the WSIB’s current reserve (currently valued at $6.1 billion) to be distributed to Schedule 1 employers. This may help employers recover from the impacts of COVID-19.
If you are an employer with questions about the Working for Workers Act, 2021, and need help complying with the amendments, book an appointment with our HR expert or call us at 647-372-0976.
Acts amended by the bill 27:
- Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
- Employment Standards Act, 2000
- Fair Access to Regulated Professions and Compulsory Trades Act, 2006
- Ministry of Agriculture, Food and Rural Affairs Act
- Occupational Health and Safety Act
- Workplace Safety and Insurance Act, 1997
For more information on how our Human Resources Experts can help with your HR needs, please view our website at www.hrcovered.com or email us at firstname.lastname@example.org.