Bill 49 2013

An Act to amend the Employment Standards Act, 2000 with respect to tips and other gratuities

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

   1.  The Employment Standards Act, 2000 is amended by adding the following Part:

part v.1
Tips and other gratuities

Tips and other gratuities

   14.1  An employer shall not take any portion of an employee's tips or other gratuities. 

Part v.1
employee tips and other gratuities

Employee tips and other gratuities

Definition

   14.1  (1)  Subject to subsection (2), in this Part,

"tip or other gratuity" means,

  (a)  a payment voluntarily made to or left for an employee by a customer of the employee's employer in such circumstances that a reasonable person would be likely to infer that the customer intended or assumed that the payment would be kept by the employee or shared by the employee with other employees,

  (b)  a payment voluntarily made to an employer by a customer in such circumstances that a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees,

   (c)  a payment of a service charge or similar charge imposed by an employer on a customer in such circumstances that a reasonable person would be likely to infer that the customer assumed that the payment would be redistributed to an employee or employees, and

  (d)  such other payments as may be prescribed.

Same

   (2)  "Tip or other gratuity" does not include such payments as may be prescribed. 

Prohibition re tips or other gratuities

   (3)  An employer shall not withhold tips or other gratuities from an employee, make a deduction from an employee's tips or other gratuities or cause the employee to return or give his or her tips or other gratuities to the employer unless authorized to do so under this section. 

Statute or court order

   (4)  An employer may withhold or make a deduction from an employee's tips or other gratuities or cause the employee to return or give them to the employer if a statute of Ontario or Canada or a court order authorizes it. 

Exception

   (5)  Subsection (4) does not apply if the statute or order requires the employer to remit the withheld, deducted, returned or given tips or other gratuities to a third person and the employer fails to do so. 

Pooling of tips or other gratuities

   (6)  An employer may withhold or make a deduction from an employee's tips or other gratuities or cause the employee to return or give them to the employer if the employer collects and redistributes tips or other gratuities among some or all of the employer's employees. 

Same – employee representative

   (6.1)  If an employer collects and redistributes tips or other gratuities under subsection (6), an employee representative chosen by the employees of the employer shall be present for and shall participate in the collection and redistribution. 

Same – exception

   (6.2)  An employer shall not redistribute tips or other gratuities under subsection (6) to such employees as may be prescribed. 

Employer etc. not to share in tips or other gratuities

   (7)  Subject to subsections (8) and (9), an employer or a director or shareholder of an employer may not share in tips or other gratuities redistributed under subsection (6). 

Exception - sole proprietor, partner

   (8)  An employer who is a sole proprietor or a partner in a partnership may share in tips or other gratuities redistributed under subsection (6) if he or she regularly performs to a substantial degree the same work performed by,

  (a)  some or all of the employees who share in the redistribution; or

  (b)  employees of other employers in the same industry who commonly receive or share tips or other gratuities. 

Same - director, shareholder

   (9)  A director or shareholder of an employer may share in tips or other gratuities redistributed under subsection (6) if he or she regularly performs to a substantial degree the same work performed by,

  (a)  some or all of the employees who share in the redistribution; or

  (b)  employees of other employers in the same industry who commonly receive or share tips or other gratuities. 

Transition - collective agreements

   (10)  If a collective agreement that is in effect on the day section 1 of the Protecting Employees' Tips Act, 2013 comes into force contains a provision that addresses the treatment of employee tips or other gratuities and there is a conflict between the provision of the collective agreement and this section, the provision of the collective agreement prevails. 

Same - expiry of agreement

   (11)  Following the expiry of a collective agreement described in subsection (10), if the provision that addresses the treatment of employee tips or other gratuities remains in effect, that subsection continues to apply to that provision, with necessary modifications, until a new or renewal agreement comes into effect. 

Same - renewed or new agreement

   (12)  Subsection (10) does not apply to a collective agreement that is made or renewed on or after the day section 1 of the Protecting Employees' Tips Act, 2013 comes into force. 

Enforcement

   (13)  If an employer contravenes subsection (3), the amount withheld, deducted, returned or given is a debt owing to the employee and is enforceable under this Act as if it were wages owing to the employee. 

Commencement

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

Commencement

   2.  This Act comes into force on the day that is six months after the day it receives Royal Assent.

Short title

   3.  The short title of this Act is the Protecting Employees' Tips Act, 2013.

 

This reprint of the Bill is marked to indicate the changes that were made in Committee.

The changes are indicated by underlines for new text and a strikethrough for deleted text.

 

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EXPLANATORY NOTE

The Bill prohibits employers from taking any portion of an employee's tips or other gratuities.

The Bill amends the Employment Standards Act, 2000.  The new Part V.1 prohibits employers from withholding tips or other gratuities from employees, from making deductions from an employee's tips or other gratuities, or from causing the employee to return or give his or her tips or other gratuities to the employer except as authorized under the Act.