The Ontario Government has re-introduced this Bill. It was carried after first reading on July 16, 2014. The Bill seeks to amend several pieces of legislation all with the alleged purpose of helping the economy. A number of different pieces of employment and labour related legislation are affected.
Here are the main proposed changes:
- The Employment Protection for Foreign Nationals Act is amended in name and in scope to apply not just to ‘live in caregivers and others’, but to all temporary foreign workers in Ontario, people who employ them or recruit them, or who act on behalf of an employer or recruiter.
- The Act seeks to protect all foreign nationals who are temporarily employed in Ontario from:
- Charges for services or costs incurred by an employer or recruiter unless they are prescribed in the Regulations;
- Property, passport or work permit retention by an employer or recruiter;
- Any reprisals for exercising a right under the Act or the Employment Standards Act, 2000;
- Establishes a reverse onus in any such case; and
- Mandates the Director to prepare and publish information to be given by an employer or recruiter to any such temporary foreign worker, or person seeking to become one.
- The Employment Standards Act, 2000 is amended by requiring an employer to provide a copy of the now mandatory poster prepared by the Director to every employee. Currently there is only a requirement to post it conspicuously. In addition it:
- Sets new requirements for minimum wages commencing October 1, 2015 indexed by the CPI with a five year review process;
- Requires both temporary help agencies and their clients to record and keep an hourly work record for every employee for three years and makes both the agency and the client liable for any unpaid wages;
- Provides for an Employment Standards Officer to require an employer to conduct a self-audit and makes it an offence to knowingly provide a false report;
- Removes the $10,000 limit per employee on recovery under the Act (once the section is proclaimed); and
- Increases the period of time that an employee may claim wages from six months before the complaint to two years before the complaint.
- The open period in construction collective agreements under the Labour Relations Act is changed from the last three months of the agreement (or every year of operation commencing in the third year of operation) to an open period reduced to two months.
- Changes the definition of ‘worker’ in both the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997 to include unpaid students and other unpaid prescribed individuals (‘interns’)
The changes to the monetary limit on recovery and the period of recovery in the ESA are subject to phase in. Nevertheless, this will, in the future, provide a fast and probably cheap way for employees to claim everything due under the ESA and Regulations that they would be able to claim in a normal court action. This could, once the transition periods have passed, greatly increase the number of matters where relief is sought under the ESA as opposed to a law suit. Currently, once a complaint is commenced under the ESA for unpaid wages, including severance and/or termination pay, an action in the courts is blocked. Employees with longer than five years’ service will very often be owed substantially more than $10,000 under the Act, but currently would be limited to that recovery limit if they use the complaint procedures under the Act as opposed to a law suit.
The change to the open period in construction collective agreements is probably an attempt to reduce the tremendous amount of time and effort involved with the almost constant ‘raids’ in the construction industry, especially every three years in the ICI and GTA residential sectors. In the past few years, these raids have taken up more and more time and resources of the OLRB (not to mention the employers) to resolve. It is not clear to this author that these changes will have the desired effect.
The new provisions dealing with temporary workers are probably a reaction to the recent adverse publicity concerning how some of these workers have been taken advantage of by their employers and recruiters.
The Bill is only at first reading and some of these amendments may not survive.
We will keep you apprised.