Occasionally, a government bill or act is introduced that brings up more questions than answers. Bill 27, Working for Workers Act 2021, does just that. The bill received royal assent in the Ontario Provincial government on December 2nd, 2021 and part one – Policy on Right to Disconnect – is due for implementation on June 2nd, 2022. Any organization employing 25 or more people will be included in the conditions applied within the Bill.
It concentrates on five major areas:
- Right to disconnect policy
- Recruitment of foreign workers
- Recruiters certified
- Non-compete employment contract clauses
- Health and safety
Bill 27 will also have an impact on several other acts, including:
- Employment Protection for Foreign Nationals Act 2009
- Employment Standards Act 2000
- Fair Access to Regulated Professionals and Compulsory Trades Act 2006
- Ministry of Agriculture, Food and Rural Affairs Act
- Occupational Health and Safety Act
- Workplace Safety and Insurance Act 1997
In reviewing the Bill, we are left with many unanswered questions. We have collaborated to provide you with some clarification on specific issues we have identified:
- Right to Disconnect – Bill 27 says that employees have the right to disconnect after business hours, but what does that truly mean? If there is a fire, an employee breach, a break-in, or other emergency, does that mean the CEO or HR can’t reach out to employees for assistance? Would that also include the senior leadership team? If an organization runs a 24/7 operation, what is the impact of this clause to their business? What would be their definition of “after hours”? What is their definition of a workday? Employees are encouraged to take 8 hours of rest after their workday. Does that mean the right to disconnect is 11pm to 7 am? If someone works the night shift, is their right to disconnect 8 am to 4 pm?
- Health and Safety – If a company does not have accessible washrooms for delivery people, they are obligated to provide one. While most offices have facilities that are accessible, what about warehouses? Where are washrooms located? As they need to be accessible, there should be facilities at the warehouse door or close by. At whose expense will the company have to build separate washroom facilities for delivery people. It is likely that any leasehold improvements made by the organization will be made without financial assistance from the provincial government.
- Recruitment firms/people acting as recruiters will need to be certified – There are different timelines for this – 2024 or earlier. How many recruitment firms will need to send their employees to be certified? At whose expense? Within what timeline? If someone refuses to be certified, what then? If the company is certified, does that cover all employees working there? If a consulting organization practices recruitment for their clients, will each consultant need to be certified.
There are six different companies that provide certification:
- Human Resources Certification Institute (HRCi)
- Society for Human Resource Management (SHRM)
- AIRS (powered by ADP)
- National Association of Personnel Services (NAPS)
- The Sourcing Institute
- LinkedIn Learning
There are numerous recognized certifications:
- CPHR – BC
- Non-compete clauses – The bill says companies should eliminate non-compete clauses from employment contracts for any new employee after October 25th, 2021 (MOL mandated). This clause is exempt for any “chief” titles. As non-compete clauses have mostly been unenforceable in the past, what difference will this make?
- Foreign workers – No recruiter or employer shall, in connection with the recruitment or employment of a foreign national, knowingly use the services of a recruiter who has charged a fee to a foreign national. Any fees that have been charged and paid by the foreign national must now be repaid to the foreign national. This became law when bill 27 received royal assent.
In reviewing the above, it’s clear that the government was short-sighted in giving royal assent to Bill 27. We are left with major holes facing organizations who, because of the effects of the pandemic, may not be able to afford to make necessary changes. We know that change is inevitable, but it is questionable whether these changes are helpful. For now, this Act is raising far too many questions without any answers.
Considering that we are in a provincial election year, we require answers about when the government will provide clarification. There is still so much to learn, and June 2nd is just around the corner. In the meantime, organizations should consider consulting an employment lawyer to ensure they are meeting the minimum requirements of the Act and that they have a Right to Disconnect policy that meets the needs of their employees and their organization.
Anne Bloom is a Principal with The Osborne Group (an interim and contract executive consulting practice) where she is a contributing member of the Human Resources practice.