Category Archives: Labour

The Latest Ontario Labour Initiative: Bill 18 Stronger Workplaces for a Stronger Economy Act, 2014 Reintroduced

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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’)

Commentary:

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.

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Filed under Employment, Employment Standards Act, Labour, Occupational Health & Safety, Workplace Safety & Insurance

Are you an employee? The SCC has provided a compass to help you find out.

You may have come across news stories during the past week (see here, here and here) about the Supreme Court of Canada’s decision in McCormick v. Fasken Martineau DuMoulin LLP. This case involved a partner in a law firm who was being forced to retire from the partnership at the age of 65. The partner in question, Mr. McCormick, filed a complaint with the British Columbia Human Rights Tribunal alleging age discrimination. The case was being closely watched by law firms and accounting firms, as it dealt with the relationship between the partners who make up a partnership. Ultimately, the Court ruled that Mr. McCormick was not in an employment relationship with his law firm based on the particular facts of his case, while leaving open the possibility that such a relationship could exist in other cases.

The result in the McCormick case was fairly fact-specific and will not be relevant for most employers. However, in reaching its decision the Court provided some interesting commentary on how to define whether an individual is in an employment relationship. For example:

  1. The key factors for determining whether an employment relationship exists are control and dependency. The control / dependency approach to the definition of employment has been followed consistently in the context of “protective legislation” (i.e. human rights legislation and labour relations legislation) both in Canada and internationally.
  2. Tribunals have developed a multitude of tests for determining if an employment relationship exists. Often these tests refer to a list of factors. In most cases, these factors amount to a checklist that assists in exploring different aspects of the relationship. Ultimately, the essential character of the relationship will be defined by the underlying control and dependency of the relationship.
  3. The Court provided some general statements on the nature of the employment relationship that could be applied in a wide variety of circumstances:

“The test is: who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations? The more the work life of individuals is controlled, the greater their dependency and, consequently, their economic, social and psychological vulnerability in the workplace.”

“Control and dependency, in other words, are a function not only of whether the worker receives immediate direction from, or is affected by the decisions of others, but also whether he or she has the ability to influence decisions that critically affect his or her working life. The answers to these questions represent the compass for determining the true nature of the relationship.”

“Ultimately, the key is the degree of control, that is, the extent to which the worker is subject and subordinate to someone else’s decision-making over working conditions and remuneration.”

There is a strong possibility that tribunals in Canada will adjust their current tests for determining the existence of an employment relationship to align with the control / dependency analysis in McCormick.

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Filed under Employment, Labour

When a union’s representational rights and an employee’s privacy rights collide

The Supreme Court of Canada recently issued a decision confirming that there are limits on an employee’s right to privacy vis-à-vis his or her union.

In Bernard v. Canada (Attorney General), the Court held that a union was entitled to the home contact information of the employees it represented, and that individual employees did not have the right to opt-out of having their information shared with the union.

Elizabeth Bernard was a member of a bargaining unit in the federal public service, but was not a member of the union that represented her. Ms Bernard strongly objected to her employer providing the union with her home contact information. Ms Bernard challenged the union’s right to obtain that information all the way up to the Supreme Court of Canada.

The Supreme Court of Canada dismissed Ms Bernard’s appeal, and provided the following general commentary on the relationship between employers, employees and unions, and the impact of that relationship on employees’ privacy rights:

  • A union has the exclusive right to bargain on behalf of all employees in a given bargaining unit. While an employee is undoubtedly free not to join the union, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees.
  • The Court endorsed two basic rationales as to why it was an unfair labour practice for the employer to refuse to provide the union with employee home contact information.
    • A union needs an effective means of contacting employees in order to discharge its representational duties.
    • There is a special, tripartite relationship between the employee, the employer and the union, which means that the disclosure of the information to the union is not like disclosure of the information to the public.
  • Although section 2(d) of the Charter protects freedom from association as well as freedom of association, it does not provide protection from all forms of involuntary association. The compelled disclosure of an employee’s home contact information by an employer to a union is not a violation of that employee’s Charter rights.

There are some aspects of the Court’s analysis in Bernard that are very fact-specific. For example, the Court was interpreting specialized legislation that only applies to the federal public service (i.e. the Public Service Labour Relations Act and the Privacy Act). However, the Court did appear to endorse the decision of the Ontario Labour Relations Board in The Millcroft Inn Limited, the leading case on the issue in Ontario that also confirms the right of a union to obtain information from the employer about employees in the bargaining unit.

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Filed under Collective Bargaining, Duty of Fair Representation, Labour, Privacy