Employers in Canada are advised to keep tabs on proposed legislation that would protect vulnerable workers, including temporary employees, students participating in co-operative education programs, trainees and unpaid interns.
The Ontario government introduced Bill 146, the Stronger Workplaces for a Stronger Economy Act, 2013 in December 2013. If the bill becomes law, employment lawyers say some of the bill’s amendments could have a significant impact on workplace regulation in the province.
“Our government is standing up for workers and increasing fairness for business with this bill,” Yasir Naqvi, Ontario’s Minister of Labor, said in a December 2013 statement. “It’s about taking action to protect the most vulnerable workers, and level the playing field for employers who play by the rules because we know that these are the building blocks of stronger workplaces, a stronger economy and a stronger Ontario.”
Proposed Changes to Employment Legislation
According to the Ontario Ministry of Labor, the province operates approximately 1,000 temporary agencies. Ontario’s temp agencies supply more than 600,000 workers with a range of skill sets to a number of industries, including construction, information technology, manufacturing and services.
Several employment-related statutes in Ontario may be revised, which would directly impact employers using temp agencies, including:
*The Employment Standards Act, 2000 (ESA): This legislation would render Ontario employers to assume responsibility for wages and overtime in case a temporary agency fails to pay hired staff.
“The changes proposed in Bill 146 appear to be focused on making it less attractive for [Canadian] companies to use temporary agencies,” Toronto-based lawyers Ryan Conlin and Jeremy Schwartz wrote in a news release on Stringer LLP’s website in December 2013.
Conlin added in an interview with SHRM Online that if Bill 146 becomes law, it could reduce competition within the temp-agency sector in Ontario, with the potential to hurt small businesses.
Heather Robson, a lawyer with Sherrard Kuzz LLP, a management-side employment and labor law firm in Toronto, explained to SHRM Online that in some cases, this new scenario could prejudice an employer that may have paid a temp agency’s invoice, and is then pursued directly by the worker for unpaid wages.
“To minimize this risk, employers that use temp agencies should consider amending their contracts with these agencies to include—or update—a tight indemnity clause should the employer be pursued directly,” she stated.
In addition, both a temp agency and the employer under Bill 146 are required to retain records of a temporary employee’s daily and weekly hours.
“If Bill 146 is passed, workplaces throughout Ontario will be subject to more regulation and bureaucratic red tape, as the bill would impose a number of additional administrative and record keeping requirements on employers,” said Matthew Demeo, an associate at McCarthy Tétrault’s labor and employment group in Toronto.
Carissa Tanzola, a lawyer with Sherrard Kuzz, advised that companies in Ontario should have a workplace protocol in place to track a temporary worker’s hours.
Bill 146 will require workplaces who utilize temp agencies to keep accurate and consistent records with respect to each temporary employee used for a period of three years, and ensure that those records are readily available for inspection, Demeo added.
*The Workplace Safety and Insurance Act, 1997: This legislation would require Ontario’s Workplace Safety and Insurance Board (WSIB) to assign workplace injury cost to client companies instead of temp agencies when an employee is injured at work.
“It is possible this amendment could act as a deterrent to using temp agency staff,” Robson and Tanzola explained in the Jan. 6, 2014, issue of Canadian Employment Law Today. “A poor experience rating can lead to costly surcharges, which could now be the responsibility of the employer. As well, employers may have difficulty coordinating with a temp agency in return-to-work programs for which employers would not otherwise be responsible.”
*The Occupational Health and Safety Act (OHSA): This legislation would change the definition of a “worker” to extend health and safety coverage to unpaid staff.
“HR departments will have to define who a worker is, and it should cover co-ops, interns and trainees under OHSA,” Conlin said. “It will be interesting to see if the Ministry of Labor’s new definition covers volunteers for nonprofit associations, like unpaid door-to-door charity canvassers.”
Tanzola added that employers should review and update health and safety policies, protocols and programs on a yearly basis, and that all workers should have access to training about OHSA laws, as well as potential workplace hazards.
How Canadian Employers Can Prepare
According to Workplace Safety and Prevention Services (WSPS), a safety training and compliance firm based in Mississauga, new employees are three times more likely to be injured on the job during the first month of employment than at any other time.
“HR departments should ensure that its workforce understands the risks and responsibilities of using temporary employees, and make sure they receive proper training to decrease the risk of workplace injuries,” Demeo added.
WSPS advises employers in Ontario how to protect workers and get ready for the proposed changes:
One aspect of the proposed legislation is to ensure that every employee receives a copy of Ontario’s Employment Standards Information poster, Demeo noted.
- Review health and safety management systems to improve protection for temporary and unpaid staff.
- Ensure all employees understand their roles and responsibilities under OHSA.
- Provide orientation training to unpaid and temporary workers.
- Assess hazard-specific training needs of unpaid and temporary workers, fill in training gaps and integrate workers into ongoing training and educational activities.
- Encourage unpaid and temporary workers to ask questions and express concerns.
- Create a buddy system that pairs them with seasoned employees.
“Since employees will be given more information with respect to their employment standards rights, it is very likely that front-line managers and supervisors will face increased questions from employees in this regard,” he continued.
“HR departments and managers should ensure that front-line managers and supervisors understand the essentials of workplace law and are ready to handle employee questions accurately, whether by answering themselves or directing the employee to the proper person in the organization,” Demeo concluded.
Catherine Skrzypinski is a freelance writer in Toronto.
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