On March 20, 2023, the Ontario government introduced a new bill that would amend several pieces of employment legislation in the province, including rules regarding employment standards, occupational health and safety, and the employment of foreign nationals.
In particular, Bill 79, the Working for Workers Act, 2023, would amend the Employment Standards Act, 2000 (the “ESA”), the Occupational Health and Safety Act (the “OHSA”), and the Employment Protection for Foreign Nationals Act, 2009 (the “EPFNA”), among other legislation. Currently, Bill 79 has passed first reading and is still being debated by the legislature, however, in all likelihood it will ultimately be passed by Premier Ford’s majority government.
Given the scope of the proposed changes, it is crucial for employers to determine whether their business or organization would be impacted by the new rules, in order to ensure they are prepared to be in compliance, should the proposed changes be implemented.
Proposed Changes to the ESA
If passed, Bill 79 would amend the rules under the ESA related to “mass terminations” of employment, such that these rules would also apply to employees who work from home.
Notably, the ESA has special rules which provide that employees have the right to enhanced termination entitlements where their employment was terminated as part of a “mass termination”, which is where 50 or more employees at the employer’s “establishment” are dismissed within the same four-week period.
Bill 79 would amend the ESA by changing the existing definition of “establishment”, which is currently defined as the “location at which the employer carries on business”, to also include employees’ private residences if the employees perform work for their employer at their private residence and not at any other location where the employer carries on business. In other words, employees who exclusively work from home would be considered to work at the employer’s “establishment”, such that the dismissal of such employees would count towards the threshold for triggering the mass termination rules.
The upshot of this is that the mass termination rules would be triggered where an employer terminates the employment of 50 or more employees within a four-week period, regardless of whether these employees work from home or at the office. As noted above, where these mass termination rules do apply, employers would be liable to provide the dismissed employees with greater notice of termination or termination pay, and they would be subject to other related requirements. Therefore, this proposed change could seriously impact employers who have a large work-from-home workforce that they may need to significantly downsize in the near future.
Additionally, Bill 79 would also expand the circumstances where employees who are reservists are entitled to Reservist Leave. For example, employees who are in treatment, recovery, or rehabilitation for physical or mental health reasons resulting from their participation in certain Canadian Forces operations and activities would also be entitled to reservist leave. Further, reservists would be eligible for reservist leave after only two months of employment, rather than after three months as currently required.
Moreover, Bill 79 would also enhance the licensing requirements that would apply to recruiters and those who engage or use their services to recruit foreign workers. In short, the proposed changes would expand these rules such that they would apply not only to recruiters who have charged foreign nationals fees in contravention of the EPFNA, but also to anyone who has collected such fees indirectly after they were charged by a third party.
Proposed Changes Related to Employing Foreign Nationals
Bill 79 would also amend other rules related to recruiting and employing foreign nationals under the EPFNA, including by strengthening the penalties for employers, recruiters, and those acting on their behalf who breach the EPFNA’s prohibitions against taking possession of a foreign national’s passport or work permit. Namely, the bill would increase the maximum penalties for employers and other persons convicted of this contravention, up to a maximum of $500,000 for individuals and $1,000,000 for corporations. However, where the Ontario Labour Relations Board finds that a person has contravened these prohibitions by taking possession of a foreign national’s passport or work permit, Bill 79 would also require the Board to determine whether the penalty for this contravention is excessive in all the circumstances and, if so, to reduce the penalty.
Proposed Changes to the OHSA
The Ontario government has also proposed increasing the maximum fines for corporations convicted of contravening the provisions of the OHSA and its regulations, as well as any related orders or requirements made by the Ministry of Labour or its inspectors. Specifically, Bill 79 would increase the maximum fine for corporations convicted under the OHSA from $1,500,000 up to $2,000,000. As a result, if Bill 79 is passed, it will be more important than ever for employers to ensure they are meeting their duties under the OHSA, including the duty to take every precaution reasonable in the circumstances for the protection of their workers.
The Bottom Line
Although Bill 79 has yet to be passed or come into effect, employers should begin considering the extent to which they may be impacted by the proposed changes, so that they can plan their affairs accordingly and ensure their business or organization is prepared to be in compliance.
In particular, employers with a large remote workforce who may wish to dismiss 50 or more employees in the coming months due to the current economic downturn and impending recession may be liable to provide remote employees with increased termination entitlements under the ESA’s mass termination rules if the downsizing takes place after Bill 79 comes into effect. Accordingly, such employers should carefully consider the extent to which they may need to downsize their workforce and the timing for doing so.
We will continue monitoring the progress of Bill 79 and all other proposed legislative changes impacting the workplace and, we will provide updates regarding any new developments relevant to employers. If you have any questions regarding the proposed changes under Bill 79 and how they may impact your business or organization, please do not hesitate to contact us for expert legal advice and guidance.