The Right to Disconnect from Work – Bill 27

ORFA Technical Director, Terry Piche discusses the history of staying connected at work.  Specifically, the evolution of recreation staff being a constant point of contact by phone or other electronic means during work or non-work hours.  This constant point of being connected appears to replace strong training programs or assists in meeting the required “supervising” provision requirement of the Occupational Health and Safety Act. The introduction of Bill-27 is governments attempt to get our attention to finding work/life balance and their role in supporting workers when this balance can not be achieved. It is best that a facility manager understands the issues and tries to get ahead of this common workplace situation before a Ministry of Labour, Training and Development inspector becomes involved. ORFA Resource

Transcript

Terry Piche: 0:10

Hello, and welcome. Thanks for joining me for another ORFA podcast. This time, we're going to be talking about Bill 27, a new piece of legislation that the Ontario government is looking at enacting in regards to the right to disconnect from work. So ultimately, this is going to reach into our industry. And we're going to have to try and figure out how we're going to use this both in a positive way and to understand the potential unfunded liabilities that are associated with not complying with this piece of legislation. So let's take a look at how we got to where we're at. So ultimately, when the fax machine came in, we started to talk about how the world was going to change and the sharing of information was going t o become more simplified. We've taken some quantum leaps since then and technology continues to outpace us in regards to our ability to understand it. So as an individual who grew up in the business in the late 70s, I've obviously seen a fair amount of change over the last little while. This one I have watched unfold over the last few years as members have discussed with me in regards to some of the challenges that they were facing as professionals and trying to balance, work and life together. So ultimately, when we first started out, there was the telephone and we often talk in basic arena refrigeration about getting the tour of the plant room and the senior staff member giving us a tour and basically saying take this reading this reading this reading, and if you've got any problems call me, there was an automatic insulation, that we didn't want to call our supervisor unless we're really really had to we didn't want to be seem to be incompetent or not able to do our job. So we balanced that and maybe we should have used the opportunity more but the lifeline of having a supervisor available by telephone was always a comfort. But we used it like I said with a lot of with a lot of respect. Today's technology has us instantaneously connected to other staff members and that's at every level. So I mean, ultimately, texts are probably flying through your phone as you're listening to this as a staffer, either seeking direction or looking for clarification, or possibly having some form of barrier in regards to if they can come into work or not. So there's that great communication. Now one of the things that I always say inside of the classroom, when I am in front of a group of new practitioners, and if they worked for me, they probably wouldn't like me and I probably wouldn't care. The first thing that I'm going to deal with is their personal communication devices, because it is a hydra meaning that it's got multiple heads on it, and it's got has some advantages and it also obviously has got some issues that are attached with it. So myself as a manager trying to balance that has got to be one of the first things that I need to deal with. So I got to figure out how I'm going to communicate with staff while they're at work and I also need to understand how I'm going to communicate with staff when they're not at work and what kind of barriers got to be put in place in regards to my decision to communicate with staff and exactly how important that is. Now, when you're in a union environments it's a little bit different and I suspect that unions have spent some trying time clarifying this. I mean, ultimately, anytime that I contacted a staff member, they had a right to put in for an overtime call out compensation as set out in the union contract. So there was a buffer that was there. What we've lost is that connection because they're not coming in work if I'm just quickly as flipping them attacks and saying, Look at where's the key for address room number three, and they go, Oh, geez, I forgot it's in the staff room. I mean, that's one level of communication. But if I'm going to be continually communicating back and forth with them in regards to day to day operations, then I have to figure out exactly what in fact is happening. Now in the beginning, t here was a feeling of being wanted, meaning that when a supervisor was communicating with frontlines Staff it gave them an a feeling that that, in fact, they were an important part of the operation. And that they, in fact, were were well connected. But, I mean, ultimately, the reality is, is I got to figure out why, why am I contacting a staff member, our other staff members not trained in the same in the same responsibilities is this person hoarding information. So this is one of the things that I'm going to have the balanced as, as staff. So as Tom Marsh long, organically, we've lost limits in regards to the way that we are communicating with staff. And so what's happened is, is that the lawmakers have decided that they need to get control of this and provide some general guidance. So at least that we start to have the conversation and hopefully come up with some parameters in regards to the way that we're going to interact with our staff when it's non working hours. So what we have to figure out is, are we supervising long distance, meaning that because I have an obligation under the Occupational Safety Act to make sure that staff are properly supervised, has technology become that nanny, meaning that we're telling staff that they can connect with us anytime they'd like if they've got any problems or issues. And so, by default, I am providing supervision. And I understand the gap that's trying to be filled. But on the same token, a supervisor or managers not being paid for the time that they are investing in ensuring that the operation, in fact, is operating as designed. So that's a balance that ultimately has got to come into play. Now, the pandemic has further blurred these lines, because many of us are working from home. And we are trying to get things done long distance. So we are regularly communicating with staff. And we usually do that in real time, when we get direction from senior management or changes happens with the government, then ultimately, we want to communicate with staff on how things in fact, are going to be changing over the next little while. So we're trying to balance how we're going to deal with issues and then ultimately communicate that information in the most timely manner as possible. Now, Bill 27, may be new for the province of Ontario, but other countries have taken a look at this long before we got to it. France has always had a very proactive work life balance philosophy. If you take a look at the way they handout their holidays, and the way that they take breaks during the day, most employees are allowed to go home for lunch. For example, they've always put family first and work second, North America hasn't completely adopted that philosophy. And so ultimately, we have a different attitude when it comes to the way that we conduct business. Now, what we need to appreciate is that the Employment Standard act is still at play here. So Bill 27, is going to be clarification to the Employment Standards Act. So you need to be very well in tune with the responsibilities of the ESA. So I mean, this is something that we talked about in length in Legal Awareness II, the importance of us not getting into a situation where we are abusing staff outside the Employment Standards Act. Now a takeaway from this so that if you are a supervisor or a manager and you're playing within the gray of the of the black and white of the employment standards, you need to understand that an employee just merely needs to go to the Ministry of Labor, Training and Development, even at the end of their employment and say, look at this as the way the things are happening in this workplace and the ministry will take a look at it and if you have been coloring outside the lines there, there's an financial responsibility that's going to reach back a long way and you're going to have to compensate these individuals. So that'll be an interesting way that the Bill 27 will play out in regards to our responsibility to compensate staff that are in fact being contacted outside regular working hours. Now, when it comes to managerial positions under the Employment Standards Act, there is a lot more flexibility meaning that if you are classified as a manager then they're the employer has a lot more latitude in regards to the way that they can compensate you for that level of a position. What you need to make sure is that we're not, again playing between the gray between the black and white, and trying to define a position as a managerial position when in fact, it is a working position. They're not, in fact managing and they're they're conducting work on a regular basis. And I can tell you that that again, the Ministry has taken a look at those situations and made decisions that have had some far reaching financial impact for some employers. So again, we can't be creative in regards to those misclassifications of these of these positions. So we don't want to put our employers in what's referred to as unfunded liability situation, meaning that if we don't color inside the lines, and there is an accountability, then there's money that needs to be paid out. And often that money is not in the budget. So that's referred to as an unfunded liability. Now, Bill 27, is beginning to roll out and we can expect it to be challenged and these challenges will then set the foundation blocks on how everybody else will respond. So it will, like most other pieces of legislation work its way through a review process and it'll become a lot more clear in regards to the way that things are to unfold in the application of this new piece of legislation. So what we're more concerned with as an industry is the high turnover of staff and if you follow the job postings in the ORFA E-News, you can see that every issue seems to have an abundance of employment opportunities around the province. This is what I'm referring to as a pandemic Fallout, those that were close to retirement age have taken retirement. And then ultimately, there has been a whole variety of new positions made available that were created by the pandemic be a security positions or housekeeping positions. So individuals that were in those positions are moving into a more permanent position, and it's opening up opportunities around the province than before. Now, one of the interesting things that we're tracking on scientifically is that we're noting there's about a 10 year life expectancy in recreation, that doesn't mean that the person is passing on but a boat at the 10 year mark, they're evaluating if they want to work nights and weekends, and if they haven't moved into a supervisory position that gives them a more positive work life balance, then they are finding other employment. So there's a fairly high turnover inside our industry, that is being prompted by a burnout. So being a Facility Manager, I mean, ultimately, we have to find that happy balance in regards to the way that we are going to be conducting business. And we got to make sure that we've got the right levels of staff in place to be able to perform the work that needs to be done. So if you're looking for more information, we just released A Guide to Ontario's Proposed Bill 27, working for workers act in 2021, which includes the right to disconnect from work, if you are in a supervisory or managerial position. We encourage you to become educated on this piece of legislation that you are not complacent in regards to its application. And you'll understand the importance to find that work life balance. If in fact you have not participated or taken the Legal Awareness II Managing in a Recreation Environment, then I'm going to encourage you to take a look at that one. We have revamped it. It's available online. It's a fairly comprehensive overview of all the other pieces of legislation beyond the core ones that you may be responsible for. And it's going to be available online in January of 2022. And as the pandemic subsides, we'll be going back to in class training. So if that's still the way that you would like to get your professional development then is going to be available at certain times of the year. So stay tuned for that. So thanks for listening. Hopefully this has provided you with some form of ongoing professional development. Stay safe out there.