Bill 88, Working for Workers Act, 2022

On February 28, 2022 the Ontario government introduced Bill 88 in the legislature. If passed, the Bill will enact a new statute called the Digital Platform Workers’ Rights Act, 2022 and will also make some significant changes to existing workplace legislation.

This article is intended to provide an overview of the proposed legislation. The full Bill can be reviewed here.

Digital Platform Workers Rights Act, 2022

The proposed legislation would create a set of minimum standards which would apply to digital platform workers. Digital platform workers are those who provide services such as ride share, delivery and courier services and who are offered work assignments by an operator through the use of an online platform that lets workers choose to accept or decline the digital platform work.

The proposed legislation is similar in many respects to the Employment Standards Act, 2000. For example, it prohibits contracting out in the legislation but permits a contract to provide greater rights or benefits to workers.

The legislation establishes certain basic rights for digital platform workers including:

  • The right to receive information related to pay, offered work assignments and completed work assignments.
  • The right to a recurring pay period and pay day.
  • The right to be paid minimum wage for each work assignment (tips are not included in the calculation).
  • The right to receive amounts earned and tips without deduction unless the deduction is authorized by a statute or court order.
  • The right not to be removed from the operator’s digital platform unless the operator has given the worker a written explanation as to why access is being removed and, if the removal is for 24 hours or longer, two (2) weeks’ written notice of the removal (there is an exemption if the worker has been guilty of willful misconduct).
  • The right to have digital platform work related disputes resolved in Ontario which will mean that an operator cannot impose a clause compelling a worker to pursue a relatively small claim in a foreign jurisdiction.
  • The right not to suffer reprisal because a worker asks for compliance with the act or otherwise exercises rights under the act.

Some other key features the act would introduce are:

  • Record keeping requirements.
  • Provision for director liability for amounts owing to workers.
  • Appointment of compliance officers to investigate non-compliance.
  • A complaint process.
  • Adjudication, enforcement and collection processes.

Employment Standards Amendments

The Bill would make several amendments to the Employment Standards Act, 2000.

Electronic Monitoring Policy

The most significant amendment is the new requirement that employers with 25 employees or more have and provide employees with a written policy concerning electronic monitoring. The Policy must disclose whether the employer electronically monitors employees and if so, describe how and in what circumstances it may do so and the purposes for which the information obtained by monitoring may be used.

Employers must keep or arrange for their policies to be kept for three (3) years after the policy ceases to be in effect.

Employers will have six months from the enactment of the Bill to comply with these requirements.

Exemption for Certain Business and Information Technology Consultants from the Employment Standards Act

Under the Bill, Business and Information Technology Consultants would be exempt from the application of the Employment Standards Act if they meet the following criteria:

  • They provide services through a corporation of which they are either a director or a shareholder who is party to a unanimous shareholder agreement, or
  • through a sole proprietorship of which the consultant who is the sole proprietor, and which is registered under the business names act, and
  • There is an agreement specifying when the consultant will be paid, and
  • The amount that the consultant is paid is at least $60/per hour including bonuses, commission, expenses and travel allowances or benefits and the amount to be paid must be expressed as an hourly rate, and
  • The consultant must be paid the amount set out in the agreement.

Reservist Leave

The Bill would allow an employee to take reservist leave to participate in Canadian Armed Forces military skills training.

Currently the act requires an employee to have been employed for six (6) consecutive months to take reservist leave. The Bill would reduce that requirement to three (3) months of consecutive employment.

Occupational Health and Safety Act Amendments

NALOXONE Kits

The proposed legislation will require employers to provide and maintain a Naloxone kit in the workplace where an employer becomes aware or ought reasonably to be aware that there may be a risk of a worker having an opioid overdose at a workplace where the worker performs work for the employer. Employers will also be required to ensure that the Naloxone kit is in the charge of a worker who works in the vicinity of the kit and who has received the required training on it at any time there are workers in the workplace. In its March 1st news release concerning the new legislation, the Minister of Labour referred to construction sites, bars and nightclubs as high-risk settings. The press release also advised that of the persons who died from opioid related causes between March 2020 and January 2021, of those who were employed, 30 % were construction workers. While the risk may be heightened in some industries, employers would be well advised to err on the side of caution and have the kits available in their workplace, along with personnel who are trained in their use.

Penalties

Tougher maximum penalties for contravention of the act are a part of the Bill. The individual maximum fine would rise from $100,000 to $500,000. Directors or officers of corporations who fail to take a reasonable care and to ensure that the company complies with the act would face maximum fines of $1,500,000, imprisonment of as much as 12 months, or both.

The proposed law would add a list of ten (10) aggravating factors that a court would be required to consider in delivering a penalty on conviction of an offense under the act. The aggravating factors listed are:

  • The offense resulted in the death, serious injury or illness of one or more workers.
  • The Defendant committed the offense recklessly.
  • The Defendant disregarded an order of an inspector.
  • The Defendant was previously convicted of an offence under the Occupational Health and Safety Act or another act.
  • The Defendant has a record of non-compliance with the Occupational Health and Safety Act or regulations.
  • The Defendant lacks remorse.
  • There is an element of moral blameworthiness to the Defendant’s conduct.
  • In committing the offence, the Defendant was motivated by a desire to increase revenue or decrease costs.
  • After the commission of the offense the Defendant either attempted to conceal the commission of the offense from the Ministry or other public authorities or failed to cooperate with the Ministry or other public authorities.
  • Any other circumstance that might be prescribed an aggravated factor by regulation.

Summary

For the most part, the proposed changes in this Bill appear to reflect a desire to address workplace issues that have emerged in recent times, and to update the law to address changing workplace realities. They also clearly reflect a “get tough” approach to non-compliance with occupational health and safety requirements and suggest that providing a safe and healthy workplace must be a high priority for Ontario employers.

We will provide further updates on the progress of this Bill in due course. If you have questions about the impact of these changes on your workplace, please contact one of our lawyers.

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Frances Gallop