This week the government introduced Bill 88 the Working for Workers Act. This bill is the second slim omnibus bill the government is promoting as pro-worker, with a focus on minimum standards for app-based delivery drivers recognizing out-of-jurisdiction credentials of regulated trades, and repeals the Traditional Chinese Medicine Act.
Despite the rhetoric, Bill 88 falls well short of what we and workers are calling for, which is NDP Peggy Sattler’s Protect Gig and Contract Workers Act. Sattler’s bill would use the standard ABC test and put the onus on employers to prove that an employee is not an employee but an independent contract. If passed, this bill would require app-based companies to classify delivery drivers as employees, not independent contractors. As an employee, workers get basic rights and protections, like minimum wage, vacation days, and fair treatment at termination.
I have included a summary of the schedules in the bill, below, as well as our more detailed response.
I am speaking on this bill this afternoon. After second reading debate, the bill will then go to committee for proposed amendments. Then the bill will return for third reading. We will be updating stakeholders on the progress of this bill via our newsletter.
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What’s in Bill 88?
SCHEDULE 1 -- Digital Platform Workers’ Rights Act, 2022
Schedule 1 proposes changes to establish a $15/hr minimum wage for app-based workers. The schedule creates the new Digital Platform Workers' Rights Act, 2022. Workers would only receive the minimum wage guarantee when they were on the job. In the case of an Uber driver, this means they would not receive a minimum wage guarantee while waiting for a fare, or in the case of a food delivery app worker while they were waiting to pick up an order.
Given that app-based workers have to pay their own costs, some experts are estimating that this wage could potentially reduce the earnings of delivery drivers to as low as $9/hr.
Schedule 1, if passed, would also obligate digital app companies to provide information on how their algorithms impact workers on pay structure and performance ratings and would require that any employment disputes be settled within Ontario.
Importantly, Bill 88 does not establish that digital app-based workers are employees of the companies that employ them, with access to full rights under the Labour Code and Employment Standards Act, meanwhile a recent decision by an LRB arbitrator did find that an Uber Eats delivery worker was an employee of the company.
We are calling for measures outlined in NDP MPP Peggy Sattler’s Protect Gig Workers Bill which, if passed, would make Ontario the first province to legislate the gold standard ABC Test for worker classification, which puts the onus on employers to prove that a worker is not an employee.
Many app-based workers are classified as independent contractors under Ontario’s Employment Standards Act. They are not entitled to minimum wage, vacation days, or statutory holiday pay. The companies they work for do not have to pay employment insurance premiums or Canada Pension Plan contributions.
It is difficult to calculate how many gig workers are in Ontario, it has been estimated to be about seven to 10 per cent of the workforce. In Ontario that would mean about 800,000 workers.
SCHEDULE 2 -- Employment Standards Act, 2000
Schedule 2 introduces the limited duties of employers of 25 or more to inform employees of any electronic monitoring they may conduct through a written policy obligation and excludes some classes of “business consultant” and “information technology consultant” from the ESA.
To be clear, the provisions here do not prevent or really regulate the types of electronic data gathered, schedule 2 sets out the obligations of the employer to inform employees of the type of information gathered and the method, and has to retain any records for a period of three years.
Schedule 2 excludes and defines certain classes of Information Technology Consultant and Business Consultant, defined as being a sole proprietorship – essentially an independent contractor – from protections under the Employment Standards Act.
Schedule 2 enshrines the right of an employee to leave to train as a Canadian Armed Forces Reservist and reduces the amount of time an employee needs to be employed to qualify for this leave from 6 to 3 months.
SCHEDULE 3-- Fair Access to Regulated Professions and Compulsory Trades Act (FARPCTA), 2006
Schedule 3 of Bill 27 is also related to the Ministerial announcements regulated professions. This time the focus is on the acceleration of the process that would recognize the credentials of certain regulated trades under the Act from other Canadian jurisdictions.
Schedule 3 defines and condenses the qualifying time for “domestic labour mobility applicants” under the Fair Access to Regulated Professions and Compulsory Trades Act, 2006.
The intent here is likely to address skilled trade job shortages for the building and construction industry and reduce the total wait time to determine credential eligibility (of an applicant) to 50 days.
"Red seal" certifications for certain skilled trades (electricians, for example) from outside jurisdictions have been an issue in the past for some of the regulated trades, prior to the dissolution of the College of Trades. It's not clear, what if any issues may exist with these proposed changes, as staff continues to consult relevant stakeholders.
It’s also not clear if regulated Health professions are specifically excluded here, as they were in the schedule 3 changes to Bill 27.
SCHEDULE 4—Occupational Health and Safety Act
Schedule 4 amends the OHSA to require some businesses or workplaces where, "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 that worker performs work for the employer, or where the prescribed circumstances exist” to have naloxone kits available, in “good condition.”
The government announcement introducing the schedule lists “high risk” workplaces as the intended focus here, such as “construction sites, bars and nightclubs” and sets forth fines for non-compliance.
The fines proscribed here could run as high as $1.5M. Section 2.2 of the schedule lays out the “aggravating factors” that would determine the penalty for directors or employers in the case of an OSHA violation here.
According to the government’s own release, 2,500 people died from opioid-related causes between March 2020 and January 2021, 30 per cent of these were construction workers.
Schedule 4 appears to require impacted employers to provide training on how to, “recognize an opioid overdose, to administer naloxone and to acquaint the worker with any hazards related to the administration of naloxone, and shall meet such other requirements as may be prescribed.”
The schedule does specify that no employee shall disclose any more personal information, “than is reasonably necessary to comply with this section”. It is not at all clear here how that is to be determined.
SCHEDULE 5-- TRADITIONAL CHINESE MEDICINE REPEAL ACT, 2022
Schedule 5, Traditional Chinese Medicine Repeal Act, 2022 aka, Repeal Traditional Chinese Medicines Act, 2006.
Section 2 provides that the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario is continued as a corporation (not a college) without share capital under the same name. The Not-for-Profit Corporations Act, 2010 does not apply, except as provided for by regulation. The object of the Corporation is to wind up the affairs of that College.
Section 3 specifies that the Minister may order that the Corporation dissolve, in which case the Corporation is dissolved as of the date specified in the order.
Section 5, for greater certainty all certificates of registration and authorization issued by the College as it existed before its continuance are revoked as of the day this section comes into force.
Section 7 allows for the termination of all unresolved investigations, inquiries, and proceedings related to fitness to practice or discipline that were being conducted by the College.
The Corporation may continue to provide funding for therapy and counselling under section 85.7 of the Health Professions Procedural Code to persons who were receiving or could have received, funding before this section comes into force.
The Corporation has the same right as the College to recover money paid for therapy and counselling from an individual who was a member of the College. (take money back from alternative health care providers).
Sec 12 repeals drug dispensing authority and associated collection of fees.
Sec 13 allows traditional medicine practitioners to apply for different classes of registration under the Health and Supportive Care Providers Oversight Authority Act, 2021.
Sec 15 removes doctor designation for Traditional Chinese Medicine Practitioners and Acupuncturists.
Traditional Chinese medicine, its recognition, and regulation have been a galvanizing and important issue at times in Toronto, among the Chinese population. It is not clear yet if the Chinese community or TCM practitioners were expecting the TCM Act to be repealed, with the requirement that practitioners apply for new registration under the HSCPOAA. The College website still indicates a registration deadline of March 2022.