In recent weeks, the Ontario government has announced proposed changes to labour and employment laws and regulations – including some that affect the legal profession.
Bill 149, the Working for Workers Four Act, 2023, is currently at second reading. If passed, it will affect the Digital Platform Workers’ Rights Act, 2022, the Employment Standards Act, 2000, the Workplace Safety and Insurance Act, 1997, and the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, and it is this last piece of legislation that will affect members of the legal profession, says labour lawyer Alexandra Monkhouse, a partner at Monkhouse Law in Toronto.
“Essentially, the amendments allow the government to prescribe requirements for the assessment of qualifications,” she explains. “Realistically, regulated professions can assess [members’] qualifications, but they have to do it in an objective, fair and transparent way. They can do it directly or they can have a third party do it. But now the legislators have put in a provision saying that they can make regulations to define objective fairness and transparency. And I think that could raise a lot of questions.
While this provision may raise questions, Monkhouse says other aspects of the bill provide helpful clarifications for employment situations. Among this group of changes is one dealing with vacation pay, which states that “any deviation from the rule that vacation pay must be paid before the vacation commences must be made pursuant to an agreement between the employee and the employer,” she says, adding that since there are a number of class action lawsuits against banks in Ontario and Canada regarding vacation pay, “this could be a useful clarification for everyone.”
Monkhouse notes that another clarification relates to the payment of candidates who are required to work a probationary period as part of the hiring process. Under the proposed changes, the applicants would be classed as employees.
The government used the example of restaurant waiters, who are typically required to work trial shifts, when it introduced this change to the legislation. There is another update that is also aimed squarely at the hospitality industry. If the bill is passed, restaurants will have to post their tip policy in a way that is visible to all employees. There are also updates on how tips are paid out to staff.
While tipping is a problem faced by waiters and waitresses, customers not paying for their food and drink isn’t limited to the hospitality industry. Under the updated legislation, Monkhouse says employers will no longer be able to deduct money from employees’ wages to cover cash shortages or property losses.
When it comes to paying employees, Monkhouse notes that one important change is that direct deposits must now be paid into an account of the employee’s choice. “Before, the rule was that it had to be in the employee’s name,” she says, meaning that an employer, such as a bank, could insist that money be paid into an account at that particular bank. Now those employees have the right to have their money deposited elsewhere.
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Another profession is specifically targeted in the proposed legislation. The bill states that firefighters and fire investigators who have worked for 15 years and develop oesophageal cancer will be presumed to have developed an occupational disease unless the contrary is proven.
Other proposed changes depend on regulations and rules to be determined at a later date. One of these is the payment of a minimum wage to digital platform workers, such as Uber drivers.
“Originally, the law said that for the purpose of determining the minimum wage, you shouldn’t include gratuities, you should only include them for that particular job. Now they’re saying that you shouldn’t take tips into account at all when setting the minimum wage,” she explains.
In relation to this change, Monkhouse says the government still needs to put in place some regulations to govern the profession. For example, it has to decide at what point the driver starts to get paid. At the moment, she says, it starts when the driver is hired to pick up a customer, but there is likely to be further clarification on what happens while a driver is waiting for a job after logging into the app.
In addition to changes that affect people who are already employed, several of the updated laws will apply to the job search process. The government intends to require job postings to include a salary range for the position and whether AI is used to screen, assess or select applicants. In addition, employers will no longer be able to require only Canadian experience.
But again, these changes will be subject to regulations that have yet to be written. When it comes to AI, Monkhouse says the government will have to define what AI means.
“Sometimes you don’t necessarily know what the benefits are of a regulation that has these provisions in it until it’s actually tested in real life,” she says. “There may be a way to say that if artificial intelligence is used, there are certain codes and best practices that need to be followed, and that would give more protection to workers. I think that’s the benefit of having that information out there.”
Similarly, there are provisions for exemptions to the salary range posting rules, but the government hasn’t yet defined what these are. When it comes to posting salary ranges, Monkhouse explains that companies will be required to keep copies of job advertisements and applications, but there will be no audit process to see whether posting salary ranges helps to close the gender pay gap, which is one of the reasons the government cited for introducing the change.
“I suppose in certain circumstances the fact that this information would be retained could give ammunition to anyone who claimed there was some sort of discrimination,” says Monkhouse.
The sheer volume of proposed changes will take some time for the legal profession to fully absorb, says Monkhouse.
“To be honest, I want to see what happens with all the new legislation and how it’s going to play out. I wouldn’t expect any other changes. I wouldn’t want any other changes right away [in 2024]. We need a bit of time to figure out how all this stuff works.