Canada: Big Changes In The Wind For Ontario Employers

Bill 146, (the Stronger Workplaces for a Stronger Economy Act, 2013), recently received its first reading. If enacted, Bill 146 will have significant implications for Ontario employers as a direct result of amendments it will make to the following employment legislation:

  • Employment Standards Act, 2000
  • Labour Relations Act, 1995
  • Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009
  • Occupational Health and Safety Act
  • Workplace Safety and Insurance Act, 1997

Among the potential changes, the amendments propose to increase the cost of administrative orders that may be made against employers; make more onerous the record-keeping and administrative obligations regarding individuals not directly employed by employers; enhance workplace health and safety obligations to include a broader category of worker; and reduce the opportunities for unionized construction employees to bring decertification applications to the Ontario Labour Relations Board.

The following summarizes the amendments proposed by Bill 146. We will continue to monitor Bill 146's status and provide updates on its progress.

Employment Standards Act, 2000 (ESA)

Currently, an employment standards officer may not issue an order to pay wages owed to an employee that exceeds $10,000. If Bill 146 is enacted, there will be no monetary limit on orders to pay wages.

In addition, Bill 146 will allow an employee to recover wages owed up to two years before the date of a complaint, an increase from the current ability to recover wages owed within six months of the date of a complaint.

Part XVIII.1 of the ESA sets out "Temporary Help Agencies" provisions (Provisions). The Provisions set out the rights and obligations of employees of temporary help agencies and the employers who hire them. Notable is section 74.3 and section 74.4(3) of the Provisions, which make clear that a temporary employee is the employee of the agency that assigns him or her work, and not of the employer to whom he or she is assigned.  

Despite this, Bill 146 will impose obligations on employers who retain temporary employees assigned by an agency. Ontario employers would now be required to record the number of hours performed by assignment employees on each day and week and would be required to retain those records for three years. Records must also be available for inspection by the Ministry of Labour, if requested. Enhanced record-keeping obligations for the temporary help agency are also contemplated by Bill 146.

In addition, Bill 146 will make the Ontario employer jointly and severally liable with the temporary help agency for any wages owed to the employee by the temporary help agency. Proceedings to recover those wages can run concurrently.

Bill 146 will require employers to perform "self-audits" of their ESA compliance and provide the results of those audits to the Ministry of Labour, if ordered to do so by an employment standards officer. Notice from the employment standards officer will set out the audit's parameters, including the period of review and any ESA provisions or employment practices at issue. Employers will be required to self-assess whether they have breached the ESA and whether any wages are owed to employees as a result of the audit. At the request of the employment standards officer, an employer would also be required to set out how they will prevent future contraventions of the legislation.

The ESA currently requires employers to post an employment standards poster titled, "What You Should Know About The Employment Standards Act" in a conspicuous location in the workplace. If the workplace's majority language is not English, an employer must ask the Ministry of Labour whether the poster has been produced in that other language. If enacted, Bill 146 will also require employers to provide a copy of the poster to its employees within 30 days of their date of hire. The poster must be provided in the language requested by the employee, if a translation of the poster in that language has been prepared by the Ministry of Labour. Employers will have to provide current employees with a copy of the poster within 30 days of the date Bill 146 is enacted.

Labour Relations Act, 1995 (LRA)

Bill 146 will only effect changes to the construction industry provisions of the LRA, by enabling a trade union to "raid" a bargaining unit represented by another union in the last two months of a collective agreement. The LRA currently contemplates the ability to undertake a raid, although only in the last three months of a collective agreement. The amendments will therefore shorten the window within which such an application could be made in the construction industry.

Similarly, Bill 146 will shorten the period in which a decertification application could be brought. Currently, any bargaining unit employee can bring a decertification application in the last three months of a collective agreement's term. The proposed amendments would impose a more limited ability to bring a decertification application, within the last two months of a collective agreement in the construction industry.

Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 (EPFNA)

Bill 146 will amend the title of the EPFNA to the Employment Protection for Foreign Nationals Act, 2009.

In tandem with the change to the legislation's title, Bill 146 will expand current EPFNA protections to "every foreign national" who is part of a foreign employee program and is, or is attempting to be, employed in Ontario. In effect, the legislation's application would be widened from live-in caregivers, to whom the legislation currently primarily applies, to any foreign national employed or attempting to become employed in Ontario. Current EPFNA protections include prohibitions on:

  • The ability of a recruiter to charge fees to a foreign national caregiver seeking employment;
  • The ability of an employer to recover fees or costs paid to obtain the services of a foreign national caregiver;
  • The ability of a recruiter or an employer to seize a foreign national caregiver's property, including a passport or work permit;
  • Reprisals by a recruiter or an employer against a foreign national caregiver who seeks to enforce his or her legal rights or who participates in a legal proceeding under the legislation or the ESA.

Record-keeping obligations and penalties for breaches of the legislation and the ESA are also set out in the current EPFNA.

Occupational Health and Safety Act (OHSA)

For OHSA purposes, a worker is defined as a person who "performs work or supplies services for monetary compensation." As a result, workers, for OHSA purposes, are only those individuals who are receiving monetary compensation. If enacted, Bill 146 will expand the definition of a worker to include some individuals who are performing work or providing services but not receiving monetary compensation. The exceptions to the existing definition of a worker will be limited, as follows:

  • A secondary school student performing work or supplying services under a work experience program authorized by the school board that operates the school in which the student is enrolled;
  • A person working or supplying services under a program approved by a post-secondary institution;
  • A person who receives training from an employer, even if he or she is not an employee for ESA purposes because he or she is receiving unpaid training in the circumstances described in section 1(2) of the ESA. Such training would generally arise in the course of an unpaid internship; and
  • Any other person who is prescribed (e.g., set out in a regulation to the OHSA) in the future.

Workplace Safety and Insurance Act, 1997 (WSIA)

Bill 146 will alter reporting obligations where a worker of a temporary employment agency is injured while performing work for an Ontario employer. An employer using a temporary employment agency's services will be required to report any injury that requires health care, or results in a worker not being able to earn full wages, within three days of the incident. This provision would apply despite the fact that the WSIA deems the worker to be an employee of the temporary help agency and not of the employer accessing their services.

Furthermore, an employer who uses the services of a temporary help agency will have its experience and merit rating programs affected by injuries sustained by workers dispatched by temporary employment agencies.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

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Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

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