In our previous article published on March 10, 2022, we discussed the introduction of Bill 88, the Working for Workers Act, 2022, in the Ontario Legislative Assembly. At the time, we speculated that Bill 88 would move quickly through the legislature, as was the case with Bill 27, the Working for Workers Act, 2021.
That is indeed what happened: Bill 88 received Royal Assent, on April 11, 2022.
One of the changes Bill 88 implements is the introduction of a new requirement under the Employment Standards Act, 2000 (the "ESA") for employers with 25 or more employees in Ontario to implement an electronic monitoring policy. You can read about this new requirement in our article published on April 13, 2022.
Did the contents of Bill 88 change from our past article?
When Bill 88 was first tabled in the Ontario Legislative Assembly on 28 Feb 2022, it consisted of 5 schedules that would change 4 statutes and introduce 1 entirely new statue, the Digital Platform Workers' Rights Act, 2022 (the "DPWRA").
Despite the broad scope of Bill 88, it received relatively few revisions as it moved through the legislature. The version of Bill 88 that received Royal Assent has the following substantive changes:
- schedule 1, the DPWRA, received a revision with respect to performance ratings that operators must provide to workers; and
- schedule 5, the Traditional Chinese Medicine Repeal Act, 2022 was removed entirely.
Considerable changes for workers performing digital platform work
The DPWRA will come into force on a day to be named by proclamation of the Lieutenant Governor.
As of the time of this article, the DPWRA has not been proclaimed into force, giving companies whose operations involve individuals performing "digital platform work" in Ontario some much needed time to conduct a considerable review of their existing practices.
"Digital platform work" means "subject to the regulations, the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform." A "digital platform" means, "subject to the regulations, an online platform that allows workers to choose to accept or decline digital platform work." Note here that the DPWRA does not specifically limit the scope of digital platform work to just mobile apps.
The DPWRA creates several new rights for those defined as workers under the Act. Most importantly for companies to which the act will apply (defined as "operators"), the DPWRA introduces the following workers' rights, which act as a minimum standard that operators and workers cannot contract out of:
- a right to minimum wage;
- a right to amounts earned by the worker and to tips and other gratuities;
- a right to information, including a description of how pay for digital platform work is calculated and factors used to determine how work assignments are offered to workers;
- a right to receive information about performance ratings;
- a right to a recurring pay period and pay day;
- a right to notice of removal from the digital platform;
- a right to resolve digital platform work-related disputes in Ontario; and
- a right of freedom from reprisal.
Since many sections in the DPWRA include references to "other information as may be prescribed," further changes may follow with the creation of regulations. The DPWRA also contains several sections specifying rules, processes and requirements for recordkeeping, director liability, complaints and inspections by compliance officers, enforcement, collections, and offences and prosecutions.
Interested persons can review proclamations online to determine when the DPWRA will come into effect.
Other changes for Ontario employers
In our previous article, we explained how Bill 88 also proposed several other changes under the ESA and the Occupational Health and Safety Act (the "OHSA").
Effective Jan. 1, 2023, the ESA will include new definitions for business consultants and information technology consultants, who will now only be exempt from the application of the ESA where very specific criteria are met. Employers are strongly encouraged to review their existing agreements with business and information technology consultants to determine whether such persons may become subject to the ESA.
Effective April 11, 2022, reservist leave under the ESA will extend to employees participating in Canadian Armed Forces military skills training, and all employees will be entitled to reservist leave after being employed for 3 consecutive months (previously 6 consecutive months).
Effective Oct. 11, 2022, employers with 25 or more employees will be required to have an electronic monitoring policy in place. You can read about these requirements in our article published on 13 April 2022 .
Effective July 1, 2022, the OHSA will include increased penalties for corporations that are convicted of offences under the OHSA (up to $1.5 million) plus increased penalties for officers, directors and other individuals. The limitation period for prosecutions under the OHSA will be increased from one year to two years after the later of (a) the occurrence of the last act or default upon which the prosecution is based, and (b) the day upon which an inspector becomes aware of the alleged offence.
On a date to be named by proclamation, employers will be required to provide naloxone kits in the workplace where they become aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace. Changes to the OHSA in this regard will also include requirements for training and limits on disclosure of personal information.
Bill 88 also implements amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006. This includes requirements for regulated professions to provide timely decisions, responses and reasons to domestic labour mobility applicants in respect of their applications for registration in Ontario, which will come into force upon proclamation. Other changes under this statute came into effect upon receiving Royal Assent.
If you have any questions about Bill 88, please contact the author or a member of the Employment, Labour & Equalities Group.