Bill 189 2009

An Act to amend the Employment Standards Act, 2000

Note: This Act amends the Employment Standards Act, 2000.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History on www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  The definitions of "employee" and "employer" in subsection 1 (1) of the Employment Standards Act, 2000 are repealed and the following substituted:

"employee" includes any person who, on a personal basis, works for an employer or supplies services to an employer in an activity or enterprise, whether the person receives wages directly or indirectly from the employer and whether or not the person is employed under a contract of employment; ("employé")

"employer" includes,

  (a)  every entity or person involved in an activity or enterprise who is directly or indirectly responsible for the work of a person in the activity or enterprise, in particular an owner, proprietor, manager, superintendent, overseer, receiver or trustee of any work, trade, occupation, profession, project or undertaking that is part of the activity or enterprise, and

  (b)  any persons treated as one employer under section 4, and includes a person who was an employer; ("employeur")

   2.  Section 4 of the Act is repealed and the following substituted:

One employer

   4.  (1)  Subsection (2) applies if,

  (a)  associated or related activities or enterprises are or were carried on by or through an employer and one or more other persons; and

  (b)  the effect of their doing so is or has been to directly or indirectly defeat the intent and purpose of this Act.

Same

   (2)  The employer and the other person or persons described in subsection (1) shall all be treated as one employer for the purposes of this Act.

Same

   (3)  All employers of an employee are to be treated as one employer.

Activities or enterprises need not be carried on at same time

   (4)  Subsection (2) applies even if the activities or enterprises are not carried on at the same time.

Exception, individuals

   (5)  Subsection (2) does not apply with respect to a corporation or an individual who is a shareholder of the corporation unless the individual is a member of a partnership and the shares are held for the purposes of the partnership.

Joint and several liability

   (6)  Persons who are treated as one employer under this section are jointly and severally liable for any contravention of this Act and the regulations under it and for any wages owing to an employee of any of them.

   3.  (1)  Clause 13 (5) (b) of the Act is amended by striking out "and" at the end of subclause (ii) and by adding the following subclause:

      (ii.1)  because of fees charged by the employer that relate to,

                 (A)  training required by the employer,

                 (B)  obtaining access to projects, assignments, clients or obtaining access to work in any other way, or

                 (C)  obtaining a position or a promotion, or

   (2)  Section 13 of the Act is amended by adding the following subsection:

Unauthorized deductions are unpaid wages

   (6)  Any deductions made from an employee's wages that are not authorized under this section are deemed to be unpaid wages owing to the employee.

   4.  (1)  Subsection 14 (1) of the Act is amended by striking out "$10,000" and substituting "$25,000".

   (2)  Section 14 of the Act is amended by adding the following subsection:

Unpaid wages constitute a lien

   (1.1)  Despite any other Act, unpaid wages shall constitute a lien, charge and secured debt in favour of the Director, as of the date the wages were earned, against all the real and personal property of the employer or of any other person named in an order made under this Act.

   5.  Part V of the Act is amended by adding the following section:

Interest on wages

   14.1  (1)  Wages earned by an employee during a pay period that are not paid to him or her on the pay day for that pay period or, if his or her employment was terminated or severed, on the day determined under subsection 11 (5), shall earn pre-judgement and post-judgement interest on all damages and monetary awards at the rate allowed under the Courts of Justice Act.

Interest is unpaid wages

   (2)  Interest accrued under subsection (1) is deemed to be unpaid wages owing to the employee.

   6.  (1)  Section 42 of the Act is amended by adding the following subsections:

Equal pay and benefits for all workers

   (2.1)  No employer shall, based solely on factors listed in subsection (2.2), pay different employees at different rates of pay or provide different employment benefits, other than pension benefits, to different employees when,

  (a)  they perform substantially the same kind of work for the employer;

  (b)  their performance requires similar skill, effort and responsibility; and

   (c)  their work is performed under similar working conditions.

Factors

   (2.2)  The factors mentioned in subsection (2.1) are:

    1.  The number of hours that an employee works in a regular work week.

    2.  The term of the employment contract.

    3.  How frequently or regularly the employee works for or provides services to the employer.

Exception

   (2.3)  Subsection (2.1) does not apply when the difference in the rate of pay or in the benefits provided is made on the basis of,

  (a)  a seniority system;

  (b)  a merit system; or

   (c)  a system that measures earnings by quantity or quality of production.

Same

   (2.4)  Despite subsection (2.1), an employer may provide different benefits to different employees if the employer provides payment in lieu of the benefits.

   (2)  Subsection 42 (3) of the Act is amended by striking out "subsection (1)" at the end and substituting "subsection (1) or (2.1)".

   (3)  Subsection 42 (4) of the Act is amended by striking out "subsection (1)" at the end and substituting "subsection (1) or (2.1)".

   (4)  Subsection 42 (5) of the Act is amended by striking out "subsection (1)" and substituting "subsection (1) or (2.1)".

   7.  The Act is amended by adding the following Part:

PART Xv.1
UNJUST DISMISSAL

Who may file a claim for unjust dismissal

   67.1  (1)  Any person who has completed three consecutive months of continuous employment by an employer may file a claim if the person has been dismissed and considers the dismissal to be unjust.

Where unjust dismissal

   (2)  Where an employment standards officer decides that a person has been unjustly dismissed, the officer may, by order, require the employer who dismissed the person to,

  (a)  pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

  (b)  reinstate the person to the position the person most recently held with the employer, if it still exists, or to a comparable position, if it does not; and

   (c)  do anything else that is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

   8.  Section 74 of the Act is amended by adding the following subsection:

Expedited process investigation and reinstatement

   (3)  If an employee files a complaint under Part XXII alleging that his or her employment was terminated or severed for any reason listed under subsection (1),

  (a)  the complaint shall be dealt with under an expedited procedure determined by the Director; and

  (b)  the Director shall order the reinstatement of the employee to his or her position pending resolution of the complaint, if the employee requests it.

   9.  The Act is amended by adding the following Part:

Part XVIII.2
Employment Agencies

Employment agencies

   74.18  (1)  In this section,

"employment agency" includes a business that provides services for the purpose of finding workers employment with employers or supplying employers with workers.

No charge for hiring or providing information

   (2)  An employment agency shall not request, charge or receive, directly or indirectly, from a person seeking employment, a payment for,

  (a)  employing or obtaining employment for the person seeking employment; or

  (b)  providing information about employers seeking employees.

Exception

   (3)  A person does not contravene subsection (2) by requesting, charging or receiving payment for any form of advertisement from the person who placed the advertisement.

Recovery of payment

   (4)  A payment received by a person in contravention of subsection (2) is deemed to be wages owing and this Act applies to the recovery of the payment.

No fees to other persons

   (5)  An employment agency shall not make a payment, directly or indirectly, to a person for obtaining or assisting in obtaining employment for someone else.

Exception

   (6)  A person does not contravene subsection (5) by paying for any form of advertisement.

   10.  Subsection 96 (3) of the Act is amended by adding "unless the complaint alleges that the employee's employment was terminated or severed for any reason listed under subsection 74 (1)" at the end.

   11.  (1)  Subsection 103 (1) of the Act is repealed and the following substituted:

Order to pay wages

   (1)  If an employment standards officer finds that an employer owes wages to an employee, the officer shall issue an order to pay the wages and may,

  (a)  arrange with the employer that the employer pay the wages directly to the employee; or

  (b)  order the employer to pay the amount of wages to the Director in trust.

   (2)  Section 103 of the Act is amended by adding the following subsection:

Interest

   (2.1)  An order issued under subsection (1) shall also require the employer to pay interest on the wages at the rate allowed under the Courts of Justice Act.

   (3)  Subsection 103 (4) of the Act is amended by striking out "$10,000" and substituting "$25,000".

   12.  Subsection 104 (1) of the Act is amended by striking out "may" in the portion before paragraph 1 and substituting "shall".

   13.  Subsection 108 (1) of the Act is amended by striking out "may" in the portion before clause (a) and substituting "shall", by striking out "and" at the end of clause (b), by adding "and" at the end of clause (c) and by adding the following clause:

  (d)  order the employer to provide to the Director an irrevocable letter of credit or other security acceptable to the Director.

   14.  (1)  Subsection 111 (1) of the Act is amended by striking out "six months" and substituting "two years".

   (2)  Subsection 111 (2) of the Act is amended by striking out "six months" and substituting "two years".

   (3)  Subsection 111 (3) of the Act is amended by striking out "six months" and substituting "two years".

   (4)  Subsections 111 (3.1), (4) and (5) of the Act are repealed.

   15.  Clause 116 (1) (c) of the Act is amended by striking out "$10,000" and substituting "$25,000".

   16.  Section 141 of the Act is amended by adding the following subsection:

Regulations re Part XV.1

   (1.2)  The Lieutenant Governor in Council may make regulations respecting any matter or thing necessary or advisable to carry out the intent and purpose of Part XV.1 (Unjust Dismissal), and without restricting the generality of the foregoing, may make regulations governing the procedure to be followed in making, mediating, settling and adjudicating a claim for unjust dismissal.

Commencement

   17.  This Act comes into force on the day it receives Royal Assent.

Short title

   18.  The short title of this Act is the Employment Standards Amendment Act, 2009.

 

EXPLANATORY NOTE

The Bill re-enacts new definitions of employee and employer. An employee is defined to include anyone who works on a personal basis or supplies services on a personal basis in an activity or enterprise whether a person receives wages directly or indirectly from the employer. An employer includes every entity or person involved in an activity or enterprise who is directly or indirectly responsible for the work of a person in it.

A provision is added to the Act specifying that all employers of an employee are jointly and severally liable for any contravention of this Act and the regulations and for wages owing to any of their employees.

The Bill makes various amendments relating to unpaid wages. The Bill provides that any unauthorized deductions from an employee's wages are deemed to be unpaid wages owing to the employee, that unpaid wages earn interest and that unpaid wages constitute a lien, charge and secured debt against the employer.

A new Part respecting employment agencies is added to the Act. Employment agencies are prohibited from charging or receiving a fee for employing or obtaining employment for a person or providing information about employers seeking employees.

The Bill also adds a new Part allowing a person to file a claim for unjust dismissal in the specified circumstances. If an employment standards officer decides that a person has been unjustly dismissed, the officer may order the employer to pay compensation to the dismissed person, to reinstate the person to their previous position and may order any other thing that is equitable in the circumstances.

Currently, wages have priority over the claims of other unsecured creditors to a maximum of $10,000 per employee. The Bill amends the maximum to $25,000 per employee.

The Bill adds a provision prohibiting an employer from paying different employees at different rates of pay or providing different employment benefits to different employees solely on the basis of factors such as the number of hours that an employee works, where their work is otherwise similar.

A number of changes are made to the procedures regarding complaints and enforcement. Currently, an employment standards officer has the discretion to respond to complaints by making various types of orders. The Bill would require that orders must be made in the specified circumstances. Complaints regarding termination due to alleged reprisals are to be dealt with under an expedited procedure and the terminated person may, at their request, be reinstated to their position pending resolution of the complaint.