Wednesday, 12 March 2014

Regulatory Round-Up #1: An overview of changes to Ontario’s Legislation and Regulations that employers need to be aware of

Ceaser Work Counsel strives to keep employers and HR professionals up-to-date on the ever-changing law of the workplace.  Here are three recent or upcoming changes to the legislative landscape that you need to be aware of.
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Stronger Workplaces for a Stronger Economy Act, 2013 (Bill 146)

Currently in second reading debate, the Stronger Workplaces for a Stronger Economy Act, 2013 (Bill 146), would make substantial changes to a number of employment-related statutes.

·         The Act extends protection to live-in caregivers under the Employment Protection for Foreign Nationals Act.

·         It extends the definition of “worker” under the Occupational Health and Safety Act (the “OHSA”) to include those who perform work for no pay, such as ‘unpaid interns’.  All of the protections afforded by the OHSA, including the right to refuse unsafe work, now apply to unpaid workers.

·         The Act reduces the “open period” under the Labour Relations Act, permitting decertification applications or union “raids” to occur within only the final two (2) months of construction industry collective agreements (instead of the current 3- month window).

·         The Workplace Safety and Insurance Act (the “WSIA”) would be amended to attribute the costs of workplace injuries to temporary agency workers to the “client” employer, rather than the agency.  Lost wages for temporary agency workers would be assessed on the basis of their income earned from the agency.

Most significant, however, are the changes the legislation would make to the Employment Standards Act (the ESA”). 
First, it would extend the time limit for recovery of unpaid wages to two (2) years, instead of the current 6-month limit.  The cap on recovery of wages of $10,000 would be eliminated, meaning that employers could be liable to the full amount of unpaid wages over a 2-year period.
Second, the amendments would create new responsibilities for temporary help agencies and the employers who utilize their services.  Agencies will now be responsible for tracking and maintaining records of all hours worked by agency workers for a period of three (3) years.  More importantly, the revisions to the ESA introduce “joint and several liability” for both the agency and the client employer with respect to the payment of wages.  This means that if the agency does not satisfy a claim for wages filed by a temporary worker, the client employer may be held responsible for any shortfall.

Third, the ESA is amended to create informational obligations for employers and the concept of the “self-audit”.  Employers would be required to provide all employees with a poster prepared by the Ministry of Labour setting out employee entitlements under the Act.  Employment Standards Officers (“ESOs”) are also now empowered to order an employer to conduct a self-audit of its records in order to determine whether it is compliant with the Act, and to provide the ESO with a report of its findings.  In its self-audit report, the employer must explain how it has determined that it is in compliance.
It should be observed that the amendments appear to focus on two vulnerable groups of workers:  temporary agency workers (so-called “temps”) and unpaid interns.  With respect to the former group, employers who rely on contingent labour will want to carefully review their contracts with the help agencies to ensure that the obligation to pay wages or other costs of the placement remain the responsibility of the agency.  Provisions that address responsibility for taxes and other statutory amounts will need to be reviewed and revised to ensure that the agency can be charged back for any amounts found due and owing by regulatory bodies, including any WSIB claims costs that are attributed to the “client” employer under the amendments to the WSIA.

By adding unpaid workers to the definition of “worker” in the OHSA, it appears that the Government is responding (at least in part) to claims that unpaid interns are becoming much more common and are prone to exploitation.  It may also be that the new “self-audit” mechanism in the ESA is intended to provide another enforcement tool to address those employers who inappropriately utilize unpaid interns, although the Government has not expressly called out this intention.  (Note:  In a future post, I’ll discuss the contentious issue of unpaid workers, such as students and interns.)

Regulation 297/13 under the Occupational Health and Safety Act

Not unlike the new informational obligations in the ESA created by the Stronger Workplaces for a Stronger Economy Act, a new regulation introduced by the Ministry of Labour looks to enhance workplace parties’ understanding of their responsibilities under the OHSA. 
Regulation 297/13 (Occupational Health and Safety Awareness Training) introduces new training requirements for workers and supervisors:

·         Employers are to ensure that all workers and supervisors receive “basic occupational health and safety awareness training” in the following areas:

o   The duties and rights of workers under the OHSA;

o   The duties of employers and supervisors under the OHSA;

o   The roles of health and safety representatives and joint health and safety committees under the Act;

o   The roles of the Ministry of Labour, the WSIB and designated health and safety entities under the Act;

o   Common workplace hazards;

o   The Workplace Hazardous Materials Information System (WHMIS) with respect to controlled products; and

o   Occupational illness, including latency.

·         Employers are to ensure that supervisors complete this basic training within one week of performing supervisory duties (unless the supervisor provides proof to the employer of having previously completed a materially similar training program).

·         The basic occupational health and safety awareness training program for supervisors should also cover how to recognize, assess and control workplace hazards, and to evaluate those controls, and sources of information on occupational health and safety.

·         The employer must maintain records of the training that it has provided, including records of any individuals who were exempt under the Regulation.  The employer must also provide workers and supervisors with written proof of their completion of the basic training program.

·         In workplaces requiring a joint health and safety committee, the employer must ensure that committee members receive the necessary training to become a “certified member”.

Employers will have until July 1, 2014 to become compliant with the new Regulation.

The Registered Human Resources Professionals Act, 2013 (Bill 32)

While not entirely new (Bill 32 was simply the reintroduction of Bill 28 that was originally introduced in the Legislature in 2010), the recently passed Registered Human Resources Professionals Act, 2013 (the “RHRPA”) does bring heightened regulation and oversight to the practice of human resources.  In a nutshell, the biggest changes are as follows:
·         Enhanced structure and authority for the Association to establish qualifications for membership by human resources professionals and students and to conduct practice inspections;

·         Prohibition against using specific HR designations by non-members or those not authorized to do so, and a complaints procedure which includes fines of up to $25,000 for those found to have contravened the Act;

·         The establishment of oversight committees for complaints, discipline, reviews, capacity and appeals;

·         Creation of a capacity review procedure to determine whether a member may be incapacitated from his or her HR practice; and

·         Establishment of inspection and investigation procedures, with broad powers granted to inspectors and investigators under the Act.

All HR professionals, and particularly members of the HRPAO will want to familiarize themselves with the Act to ensure that their HR practice is compliant.
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If you have any questions about these legislative changes or about Ontario's employment laws generally, please don't hesitate to contact Lance Ceaser at (519) 200-1611 or by email.

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