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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