Canada: Ontario Government Aims To Protect Vulnerable Workers With The Introduction Of Bill 146

On December 4, 2013, the Ontario government introduced the Strong Workplaces for a Stronger Economy Act, 2013 (Bill 146), aimed at increasing protection for workers the Ministry of Labour considers particularly vulnerable.

To accomplish this goal, Bill 146 proposes amendments to numerous employment-related pieces of legislation in Ontario, including the Employment Standards Act, 2000 (the ESA); the Workplace Safety and Insurance Act, 1997 (the WSIA); the Occupational Health and Safety Act (the OHSA); the Labour Relations Act, 1995 (the LRA); and the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others) (the EPFNA).

While the full breadth of Bill 146 is beyond the scope of this blog article, the following are some of the more notable amendments proposed in Bill 146:

Proposed Changes to the ESA:

  • The removal of the $10,000 cap on the wages that can be recovered by an employee under an order issued by an employment standards officer;
  • An extension of the time period in which an employee may claim for unpaid wages. While an employee may currently claim up to 6 months of unpaid wages and 12 months of unpaid vacation pay, Bill 146 aims to introduce a 2 year limitation period for both wages and vacation pay;
  • Increased powers for employment standards officers and in particular, the ability to order employers to conduct, at their own expense, self-audits in respect of ESA compliance. If any such audit determines that wages are owing to employees or that an employer is otherwise non-compliant with the ESA, such employer may be subject to wage or other compliance orders;
  • The imposition of joint and several liability with respect to employees of temporary help agencies. In particular, even where a client of a temporary help agency has paid such agency for the services of its workers, the client may still be liable for unpaid wages if such workers claim for the same as against their agency employer. Bill 146 would also require temporary help agencies and clients of such agencies to track and record hours worked by provided workers; and
  • Increased communication by employers to employees with respect to employee rights and employer obligations under the ESA. While employers are currently required to display a Ministry of Labour-published information poster in this regard, Bill 146 would require employers to provide employees with their own copy of this poster and to offer it in alternative languages.

Proposed Changes to the OHSA:

While the OHSA does not currently apply to unpaid employees, Bill 146 would expand OHSA protection to unpaid co-op students working as part of secondary school programs, programs authorized by post-secondary institutions, as well as other unpaid interns and trainees.

Proposed Changes to the WSIA:

In a marked departure from the current workers' compensation regime, workplace injury costs associated with injuries to temporary help agency employees would be assigned to clients of such agencies rather to the agencies themselves. In this respect, if an agency worker is injured while performing services for a client, such client may be subject to a surcharge or lower rebate at the end of the year based on such accident. Accident reporting obligations would also be imposed on clients of such agencies.

Proposed Changes to the LRA and the EPFNA:

Although less comprehensive than some of the proposals outlined above, Bill 146 would amend the LRA to reduce the "open period" for union displacement applications (which concern situations where employees or other unions attempt to eject an incumbent union) in the construction industry from 3 months to 2 months.

Finally, and with respect to the EPFNA, Bill 146 would extend such legislation's protection to all employees coming to Ontario under immigration or temporary foreign employee programs. The EPFNA currently only extends legislative protection to individuals working or seeking work as live-in caregivers.

Our Thoughts:

While Bill 146 has only passed the "first reading" stage of the legislative process, to the extent it becomes law it will certainly increase employer obligations, particularly as it relates to the ESA and the WSIA.

Proactive employers wishing to get in front of Bill 146 should consider conducting internal ESA and OHSA compliance audits and, to the extent any such employer contracts with temporary help agencies, assessing whether any contracts in this regard provide appropriate indemnity language to protect against having to pay wages earned by provided workers twice, once to the agency and then pursuant to an order. We will keep you informed of Bill 146's status.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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