What's 'super indexing'? New Working for Workers Act Four, 2023 rules explained

Working for Workers Act Four 2023 is on the table and heading for law – is HR prepared?

What's 'super indexing'? New Working for Workers Act Four, 2023 rules explained

Bill 149, the Working for Workers Four Act, 2023, was tabled November 14, 2023, with notable additions to job posting transparency around AI and pay standing out among a list of worker-friendly amendments to the evolving legislation. Also, a new WSIB rule around benefit indexing: “super indexing”, was introduced.

The bill is the fourth iteration of the Working for Workers Act  which was first adopted as law in 2021, to amend various aspects of the Ontario Employment Standards Act (ESA).

HRD spoke with Ontario legal experts to break down the most important aspects of the new bill for HR professionals.

Increased transparency during hiring

Several new requirements were introduced that apply to employers who posts a “publicly advertised job posting” for recruitment. It has not specifically stipulated what defines a “publicly advertised” posting; it does however add a clause for exceptions to this rule, for postings that meet “such criteria as may be prescribed.”

Employers must post expected pay ranges or expected compensation for a posted opening. They are also required to include a statement disclosing their use of AI technology to “screen, assess or select applicants for the position”.

Aside from the issues of privacy and bias which AI presents, there are also concerns for HR on the hiring side, said Jennifer Philpott, employment lawyer at Goulart Workplace Lawyers.

“Because the systems are learning so rapidly, and applicants may suspect that artificial intelligence is being used, the applicants might be inclined to use language or specific keywords that they think might trigger a green flag, or being tracked through the application process and maybe moved on to the next step,” Philpott said.

“So our concern when we're helping our clients, is for them to be mindful of the fact that perhaps from a recruitment function, someone might make it through the interview process, they might not actually have those skills. That's where we get concerned about losing the human element of that process … Because so many HR processes could be impacted by this kind of technology.”

Working for Workers Act: Super indexing

As part of its initiative to better support injured workers, the government announced additional allowances for injured workers in the form of what it calls “super indexing”, which will allow the Workplace Safety and Insurance Board (WSIB) to increase benefits above the annual rate of inflation.

“Our government has heard loud and clear that injured workers need more support, which is why we’re taking action,” David Piccini, Minister of Labour, Immigration, Training and Skills Development said in a press release. “Whether it is an injured worker struggling to get by, a firefighter who served their community with distinction, or a young parent fighting a sudden diagnosis, we have your back.”

The proposed legislation, while helpful for workers, does leave some questions for attorneys, said David Marchione, occupational health and safety consultant at Fasken Martineau DuMoulin.

“It seems like the Ontario government is trying to find a way to increase benefits without actually changing the benefit rate,” said Marchione. “Ontario pays out at 85% of net average earnings. So it's a way of increasing the benefits without changing the wage loss rate directly.”

A note for employers, Marchione pointed out, is that higher indexing will result in potential higher payouts to injured employees, which could lead to higher experience ratings on WSIB rating system.

“If more dollars are getting paid out, that could ultimately have an effect on an employer's experience rating, based on the number of claims they have, and their claim costs,” said Marchione. “Ultimately the main goal is to try and reduce the number of injuries that you have, to keep your costs down. So it's another reason to manage workplace injuries and illnesses as best you can.”

Working for Workers Act provides more clarity for employers and HR

The Act, while very worker-friendly, is also beneficial for employers and HR, Philpott said, as it clarifies and codifies what is already in practice. This will leave less room for gray areas in policy-making in the workplace.

For example, if accepted, the Bill will adds legislation around vacation pay requirements and tip payout requirements for restaurant workers.

“It's not just a one-sided thing. Anytime the government introduces legislation like this, where you're seeing these amendments to existing pieces of legislation, there is the benefit of employees getting additional protection, but employers now having clarification on what their obligations are,” she said. “When both parties can understand those obligations, it makes for a more well-rounded employment relationship.”

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