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Proposed Bill 146 Significantly Impacts Employers

Bill 146, titled “Stronger Workplaces for a Stronger Economy Act, 2013” was introduced and carried through first reading of the Ontario legislature on December 4^th, 2013. The Act, if passed, poses significant amendments to several key employment related statutes, including:

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

• Employment Standards Act, 2000

• Labour Relations Act, 1995

• Occupational Health and Safety Act

• Workplace Safety and Insurance Act, 1997

How the proposed amendments impact each piece of legislation, and also Ontario Employers, is summarized below:

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

Bill 146 proposes expanded employment protection for foreign persons working in Ontario. The expanded protection begins from the title of the EPFNA which, if passed, will eliminate the reference to “Live-in Caregivers and Others”. This change to expand protection to all Foreign Nationals is reflected throughout the proposed amendments. The amended EPFNA would apply to all foreign nationals working in Ontario pursuant to an immigration or foreign temporary employee program.

As part of the current regime, the Director of Employment Standards must publish, and employers must make available, documents that pertain to rights and obligations under the EPFNA. In light of the expansion of the types of workers covered by the EPFNA, the publishing of relevant documents pertaining to different categories of workers will also be expanded.

Lastly, the amendments will permit further regulation regarding an employer’s obligation to provide workers with written notice of the end of their employment.

Employment Standards Act

Information

Employers would now be required to provide individual copies of the Minister’s informational poster to each employee. This expands upon the current requirements of posting the information in the workplace. Additionally, the employer will bear the responsibility of obtaining translated posters from the Minster for workers who request them.

Action Required: 30 days from the date these provisions come into effect and 30 days from the start date of any new employee. These provisions come into effect 6 months after receiving Royal Assent.

Temporary Help Agencies

Temporary help agencies and Employers who utilize workers through temporary help agencies will now be required to record and retain information regarding daily and weekly hours of work for each supplied worker. These records must be retained for a minimum of 3 years and be available for inspection by an Employment Standards Officer.

These records support additional provisions that cause the employer and agency to be jointly and severally liable for any unpaid wages (including regular and overtime). Bill 146 identifies the agency as the primary responsible party for wages. However, the amendments through Bill 146 will permit workers to seek wages from the employer before exhausting all potential proceedings to recover from the agency. Also, despite the primary responsibility falling on the agency, the amendments deem the client of the agency to be the employer for the purposes of these wage recovery provisions.

Action Required: These provisions come into effect 1 year after the date of Royal Assent.

Enforcement

Bill 146 would introduce new self-audit provisions into the ESA. These provisions would empower Employment Standards Officers to order employers to examine their own records and provide reports of the investigation. The order provisions provide wide power to customize the self-audit and may delineate the scope of records, types of contraventions, method of investigation, and format of the report.

Action Required: These provisions come into effect 1 year after the Bill receives Royal Assent

New amendments will erase the previous $10,000 limit with respect to an order for wages to be paid to any one employee. There will be no monetary limit on Employment Standards Officer’s order for wages that become due after the date these provisions come into effect. Additionally, an employee’s window to file a complaint for unpaid wages will be extended from 6 months to 2 years (and 12 months to 2 years for previous offenders and claims for unpaid vacation pay).

Action Required: These provisions will come into effect 6 months after Royal Assent, but will include a 2 year transition period based on claims arising before the provisions take effect.

Labour Relations Act

Bill 146 will amend the Labour Relations Act by decreasing the open period for decertification or displacement application in the Construction period. The new open period would be 2-months in length as opposed to the previous 3-month open period.

Occupational Health and Safety Act

Bill 146 would amend the definition of “worker” under the OHSA and expressly include several positions with no monetary compensation. The new definition would include:

1. A person who performs work or supplies services for monetary compensation.
2. A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board
3. A person who performs work or supplies services for no monetary compensation under a program approved by a post-secondary institution.
4. A person who receives training from an employer, and meets the conditions set out in subsection 1 (2) of the ESA. 
5. Such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation

Action Required: This change would come into force on the day Bill 146 receives Royal Assent.

Workplace Safety and Insurance Act

Bill 146 proposes several amendments that focus on temporary help agencies. Bill 146 would introduce a definition of “temporary help agency” which includes businesses that lend or hire out the services of its workers to other employers on a temporary basis for a fee.

The “other employer”, along with the temporary help agency, will now also be responsible for reporting an injury to the WSIB within 3 days of the accident. These “other employers” will also bear the impact of workplace injury costs. Amendments will:

• Deem total wages paid in the current year to the worker by the temporary help agency to be paid by the “other employer”;
• Attribute the injury and the accident costs arising from the injury to the “other employer”; and
• Cause temporary agency worker injuries to affect the “other employer’s” WSIB premiums based upon the frequency of work injuries or the accident costs or both.

Bill 146 must pass through 2^nd and 3^rd Reading before receiving Royal Assent, but it is advisable that employers are aware of the pending changes to each piece of legislation. As the Bill progresses, CCP will provide updates regarding any developments relevant to employers. If Bill 146 passes the lawyers at CCP can advise how these provisions will affect the way you do business and ensure that you remain compliant with affected employment related legislation.