Ontario to pass liability rules on temp agencies
(Canadian OH&S News) — The Government of Ontario plans to bring in new legislation that aims to protect vulnerable workers, including foreign workers, co-op students and temporary workers. Bill 18, or Stronger Workplaces for a Stronger Economy Act, 2014, passed its third reading on Nov. 6 and will be brought into force in three months after receiving royal assent.
It is the first bill that the new government has passed in this sitting, noted provincial Minister of Labour Kevin Flynn. “So that, I think, highlights the importance that we attribute to this bill, certainly at the Ministry of Labour, but throughout government as well,” said Flynn.
The Act encompasses the following: oh&s coverage for co-op students; the setting of minimum wage; time limits on the recovery of unpaid wages; recruitment fees and seizing of travel documents of temporary foreign workers; and liability in double-employer situations under temporary-help agencies for unpaid wages and Workplace Safety and Insurance Board (WSIB) experience ratings.
Currently, under the Workplace Safety and Insurance Act workers’ compensation experience-ratings system, temp agencies shoulder the costs of workplace injuries. Input from the Workers Action Centre and the Institute for Work and Health suggests that employers have been outsourcing the riskiest jobs to temporary-help agencies, the Minister added.
The WSIB is currently reviewing its experience-ratings system. As it stands, the bill would allow the government to make regulations that would require the WSIB to attribute experience costs to client employers after workplace injuries.
“So if an injury takes place, there’s still a joint liability that exists,” said Flynn.
The Act also introduces “joint and several liability” between temporary-help agencies and their client employers. “What we’ve said is, if an employee isn’t treated right by the agency in terms of vacation pay, in terms of back pay, in terms of statutory holidays, that if the agency does not fulfill its contract with the employees, then it falls to the employer themselves; they assume the liability,” said Flynn.
But Deena Ladd, coordinator at the Workers Action Centre in Toronto, said that the bill would not make any major changes in terms of addressing liability for workplace injuries in multiple-employer situations. She wanted to know what would happen if a temp-agency worker who had been working for the same client company for 15 years had an injury at that company.
“Even if you’ve been there for 15 years, your right to return to work, your right to accommodation at work, is not with that company; it’s with your temp agency,” she said. “And the temp agency has no ability to return you to work, because they have no appropriate assignments.”
The question of who is ultimately liable for workers employed by temporary-help agencies is one topic that not all sides have greeted with delight, and changes have been made to the initial wording of sections pertaining to temporary-help agencies in the bill.
“I think that a lot of the employer associations were freaking out about it, to be honest,” said Ladd, “and did not want to have the responsibility of the injury on them.”
“When it went through the public process, through our committee system, it came up under further scrutiny,” said Flynn. Referring to joint and several liability, he added, “The underlying theme is that we want employers to use reputable temporary-help agencies.”
Co-op students covered under OHSA
The new bill would amend the definition of “worker” in Ontario’s Occupational Health and Safety Act to include co-op students and others performing unpaid work for employers under school programs. In the past, co-op students have received basic safety training and had the right to raise health and safety concerns and to leave placements if they felt unsafe, Flynn said.
“Now that we’ve actually changed the terminology so that unpaid students, learners and trainees are all covered under the definition of worker, they’ve got exactly the same rights as other paid workers,” he added.
In the case of foreign workers, protections previously granted to live-in caregivers under the Employment Protection for Foreign Nationals Act would be expanded to include all foreign employees who come to Ontario under an immigration or foreign-temporary-employee program. Recruiters are prohibited from charging fees, and employers are prohibited from recovering placement costs from foreign workers. Employers and recruiters are also prohibited from seizing travel documents, such as passports and visas, from workers and from intimidating or penalizing workers for asserting these rights.
“I think that it’s good just as a basic foundation that the government has made it clear that migrant workers should not have their travel documents seized, that they shouldn’t be asked to pay recruitment fees and that that is illegal,” said Ladd. “I think the issue is, though, how does the government enforce that if recruitment fees are charged oversees, or if you have a system that is a complaint-based system, where it’s reliant on workers themselves to come forward with a complaint?”
Further provisions in the bill include tying minimum wage increases to the Consumer Price Index, lifting a $10,000 cap on the recovery of unpaid wages and increasing the period of recovery to two years.