Canada: New Obligations Arriving For Ontario Employers – Is Your Company Ready?

Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014, will amend five different labour and employment-related statutes in Ontario, including the Employment Standards Act, 2000. This Bill (formerly Bill 146, which we wrote about in December 2013) passed third reading on November 6, 2014. It looks inevitable that Bill 18 will receive royal assent in the near future. In the meantime, employers have an opportunity to assess the impending changes and take steps to mitigate risk before the changes come into force.

NOTABLE CHANGES TO THE EMPLOYMENT STANDARDS ACT, 2000

Bill 18 will make a number of changes to the Employment Standards Act, 2000 at various times. The more significant and impending changes to the Employment Standards Act, 2000 are the following:

  • Removal of $10,000 "Cap" and New Two-Year Complaint Period. Currently, an employment standards officer can issue an order for an employer to pay an employee unpaid wages, up to a maximum of $10,000. Bill 18 will remove the $10,000 "cap", generally on a going-forward basis (with transitional rules). Also, the current six-month limitation period for bringing forward a complaint to the Ministry of Labour for non-payment of wages will generally be extended to two years on a going-forward basis (with transitional rules). These changes will come into force three months after Bill 18 receives royal assent.
  • New Obligations Relating to Assignment Employees. Currently, employers can benefit from the assistance of employees working for temporary help agencies (assignment employees) without assuming statutory liability for unpaid wages. Bill 18 will change this situation. If the agency fails to pay an assignment employee for some or all of his/her wages, the temporary help agencies' (respective employer) clients will be jointly and severally liable for certain unpaid wages (i.e. regular wages, overtime pay, public holiday pay, and premium pay) of such assignment employees for the relevant pay period. There will also be new record keeping requirements regarding assignment employees, including a requirement for clients of temporary help agencies to keep a record of the number of hours worked by each assignment employee in each day and each week and to retain such records for three years. These changes will come into force one year after Bill 18 receives royal assent.
  • Compelling Mandatory Self-Audits. Bill 18 will provide an employment standards officer the power to require an employer to conduct an examination/ self-audit of an employer's records, practices, or both to determine whether the employer is in compliance with the Employment Standards Act, 2000 or its regulations. Such employers will be required to conduct the self-audit and report the results to the employment standards officer. These changes will come into force six months after Bill 18 receives royal assent.
  • Provision of Informational Poster. Employers will be required to provide each employee with a copy of the most recent informational poster published by the Minister of Labour, and Ministry-prepared translations of such posters (if any), if requested by the employee. This change will come into force six months after Bill 18 receives royal assent.

The minimum wage will also be adjusted in accordance with an equation that relies on the consumer price index. The Minister of Labour will, no later than April 1 of every year after 2014, publish the minimum wages that are to apply starting on October 1 of that year.

OTHER NOTABLE CHANGES FOR EMPLOYERS

Bill 18 will also directly amend, or permit regulations to be made to effect changes to, other labour and employment-related legislation in notable ways, including:

  • Employment Protection for Foreign Nationals Act (Live-In Caregivers and Others), 2009. Bill 18 will expand the application of this Act (to be renamed) to (i) every foreign national who is employed in Ontario or attempting to find employment in Ontario pursuant to an immigration or foreign temporary employee program; (ii) every person who employs a foreign national in Ontario pursuant to an immigration or foreign temporary employee program; (iii) every person who acts as a recruiter in connection with the employment of a foreign national in Ontario pursuant to an immigration or foreign temporary employee program; and (iv) every person who acts on behalf of an employer or recruiter. Bill 18 will also promote outreach to foreign national workers by making the provision of literature outlining their rights mandatory. Employers may be required to provide notice to a board or person, to be specified in the regulations, if they employ or cease to employ a foreign national. These changes will come into force one year after Bill 18 receives royal assent .
  • Occupational Health and Safety Act. The definition of "worker" to whom the Occupational Health and Safety Act applies will be expanded to include individuals that are currently considered unpaid interns or volunteers not subject to such Act. These changes will come into force once Bill 18 receives royal assent.
  • Labour Relations Act, 1995. With respect to the construction industry, Bill 18 will establish two-month open periods during which (i) a trade union may apply to the Ontario Labour Relations Board for certification, and (ii) employees may apply to such Board for a declaration that a trade union no longer represents them. These changes will come into force six months after Bill 18 receives royal assent.
  • Workplace Safety and Insurance Act, 1997. The first version of Bill 18 presented in the Ontario legislature provided that injuries and costs arising from workplace injuries to assignment employees would be attributable to the applicable client of the temporary help agency. The version of Bill 18 that passed third reading has removed this absolute position and, instead, will permit the Lieutenant Governor in Council to make regulations attributing liability to such clients. It is unclear whether or when such regulations may be made.

PROACTIVELY PREPARING FOR BILL 18'S CHANGES

Bill 18 will increase Ontario employers' employment-related obligations but there are ways to mitigate some of its impact. Some new obligations will be relatively easier to comply with, such as providing employees with the most recent informational poster published by the Minister of Labour. Other new obligations may require more resources to effect or assess for risk of liability, such as the removal of the $10,000 "cap" and the new obligations for employers with respect to assignment employees.

Before Bill 18 comes into force, employers in Ontario have an opportunity to review their policies and practices, including conducting an employment practices audit if appropriate or reviewing documentation relating to assignment employees and temporary help agencies. The Labour and Employment Group at Borden Ladner Gervais LLP would be pleased to assist you with respect to the upcoming changes resulting from Bill 18.

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