Bill 139, Employment Standards Amendment Act (Temporary Help Agencies), 2009

Fonseca, Hon Peter Minister of Labour

Current Status: Royal Assent received Chapter Number: S.O. 2009 C.9

Viewing: Royal Assent (current version) pdf

Bill 139                                                       2009

An Act to amend the Employment Standards Act, 2000 in relation to temporary help agencies and certain other matters

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.  Section 8 of the Employment Standards Act, 2000 is amended by adding the following subsections:

Service of notice

   (3)  The notice shall be served on the Director,

  (a)  by being delivered to the Director’s office on a day and at a time when it is open;

  (b)  by being mailed to the Director’s office using a method of mail delivery that allows delivery to be verified; or

   (c)  by being sent to the Director’s office by fax or email.

When service effective

   (4)  Service under subsection (3) shall be deemed to be effected,

  (a)  in the case of service under clause (3) (a), on the day shown on a receipt or acknowledgment provided to the employee by the Director or his or her representative;

  (b)  in the case of service under clause (3) (b), on the day shown in the verification;

   (c)  in the case of service under clause (3) (c), on the day on which the fax or email is sent, subject to subsection (5).

Same

   (5)  Service shall be deemed to be effected on the next day on which the Director’s office is not closed, if the fax or email is sent,

  (a)  on a day on which the Director’s office is closed; or

  (b)  after 5 p.m. on any day.

   2.  Section 68 of the Act is amended by striking out “Part XVIII (Reprisal), Part XXI (Who Enforces this Act and What They Can Do)” in the portion before the definitions and substituting “Part XVIII (Reprisal), section 74.12, Part XXI (Who Enforces this Act and What They Can Do)”.

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

Part XVIII.1
Temporary Help Agencies

Interpretation and Application

Interpretation

   74.1  (1)  In this Part,

“assignment employee” means an employee employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for clients of the agency; (“employé ponctuel”)

“client”, in relation to a temporary help agency, means a person or entity that enters into an arrangement with the agency under which the agency agrees to assign or attempt to assign one or more of its assignment employees to perform work for the person or entity on a temporary basis; (“client”)

“temporary help agency” means an employer that employs persons for the purpose of assigning them to perform work on a temporary basis for clients of the employer.  (“agence de placement temporaire”)

Same

   (2)  An assignment employee is assigned to perform work for a client of a temporary help agency if the employee is assigned to receive training from the client for the purpose of performing the work for the client.

Application

   74.2  This Part does not apply in relation to an individual who is an assignment employee assigned to provide professional services, personal support services or homemaking services as defined in the Long-Term Care Act, 1994 if the assignment is made under a contract between,

  (a)  the individual and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001; or

  (b)  an employer of the individual and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001.

Employment relationship

   74.3  Where a temporary help agency and a person agree, whether or not in writing, that the agency will assign or attempt to assign the person to perform work on a temporary basis for clients or potential clients of the agency,

  (a)  the temporary help agency is the person’s employer;

  (b)  the person is an employee of the temporary help agency.

Work assignment

   74.4  (1)  An assignment employee of a temporary help agency is assigned to perform work for a client if the agency arranges for the employee to perform work for a client on a temporary basis and the employee performs such work for the client.

Same

   (2) Where an assignment employee is assigned by a temporary help agency to perform work for a client of the agency, the assignment begins on the first day on which the assignment employee performs work under the assignment and ends at the end of the term of the assignment or when the assignment is ended by the agency, the employee or the client.

Same

   (3)  An assignment employee of a temporary help agency does not cease to be the agency’s assignment employee because,

  (a)  he or she is assigned by the agency to perform work for a client on a temporary basis; or

  (b)  he or she is not assigned by the agency to perform work for a client on a temporary basis.

Same

   (4)  An assignment employee of a temporary help agency is not assigned to perform work for a client because the agency has,

  (a)  provided the client with the employee’s resume;

  (b)  arranged for the client to interview the employee; or

   (c)  otherwise introduced the employee to the client.

Obligations and Prohibitions

Information re agency

   74.5  (1)  As soon as possible after a person becomes an assignment employee of a temporary help agency, the agency shall provide the following information, in writing, to the employee:

    1.  The legal name of the agency, as well as any operating or business name of the agency if different from the legal name.

    2.  Contact information for the agency, including address, telephone number and one or more contact names.

Transition

   (2)  Where a person is an assignment employee of a temporary help agency on the day this section comes into force, the agency shall, as soon as possible after that day, provide the information required by subsection (1), in writing, to the employee.

Information re assignment

   74.6  (1)  A temporary help agency shall provide the following information when offering a work assignment with a client to an assignment employee:

    1.  The legal name of the client, as well as any operating or business name of the client if different from the legal name.

    2.  Contact information for the client, including address, telephone number and one or more contact names.

    3.  The hourly or other wage rate or commission, as applicable, and benefits associated with the assignment.

    4.  The hours of work associated with the assignment.

    5.  A general description of the work to be performed on the assignment.

    6.  The pay period and pay day established by the agency in accordance with subsection 11 (1).

    7.  The estimated term of the assignment, if the information is available at the time of the offer.

Same

   (2)  If information required by subsection (1) is provided orally to the assignment employee, the temporary help agency shall also provide the information to the assignment employee in writing, as soon as possible after offering the work assignment.

Transition

   (3)  Where an assignment employee is on a work assignment with a client of a temporary help agency or has been offered such an assignment on the day this section comes into force, the agency shall, as soon as possible after that day, provide the information required by subsection (1), in writing, to the employee.

Information, rights under this Act

   74.7  (1)  The Director shall prepare and publish a document providing such information about the rights and obligations of assignment employees, temporary help agencies and clients under this Part as the Director considers appropriate.

Same

   (2)  If the Director believes that a document prepared under subsection (1) has become out of date, the Director shall prepare and publish a new document.

Same

   (3)  As soon as possible after a person becomes an assignment employee of a temporary help agency, the agency shall provide a copy of the most recent document published by the Director under this section to the employee.

Same

   (4)  If the language of an assignment employee is a language other than English, the temporary help agency shall make enquiries as to whether the Director has prepared a translation of the document into that language and, if the Director has done so, the agency shall also provide a copy of the translation to the employee.

Transition

   (5)  Where a person is an assignment employee of a temporary help agency on the day this section comes into force, the agency shall, as soon as possible after that day, provide the document required by subsection (3) and, where applicable, by subsection (4), to the employee.

Prohibitions

   74.8  (1)  A temporary help agency is prohibited from doing any of the following:

    1.  Charging a fee to an assignment employee in connection with him or her becoming an assignment employee of the agency.

    2.  Charging a fee to an assignment employee in connection with the agency assigning or attempting to assign him or her to perform work on a temporary basis for clients or potential clients of the agency.

    3.  Charging a fee to an assignment employee of the agency in connection with assisting or instructing him or her on preparing resumes or preparing for job interviews.

    4.  Restricting an assignment employee of the agency from entering into an employment relationship with a client.

    5.  Charging a fee to an assignment employee of the agency in connection with a client of the agency entering into an employment relationship with him or her.

    6.  Restricting a client from providing references in respect of an assignment employee of the agency.

    7.  Restricting a client from entering into an employment relationship with an assignment employee.

    8.  Charging a fee to a client in connection with the client entering into an employment relationship with an assignment employee, except as permitted by subsection (2).

    9.  Charging a fee that is prescribed as prohibited.

  10.  Imposing a restriction that is prescribed as prohibited.

Exception, par. 8 of subs. (1)

   (2)  Where an assignment employee has been assigned by a temporary help agency to perform work on a temporary basis for a client and the employee has begun to perform the work, the agency may charge a fee to the client in the event that the client enters into an employment relationship with the employee, but only during the six-month period beginning on the day on which the employee first began to perform work for the client of the agency.

Same

   (3)  For the purposes of subsection (2), the six-month period runs regardless of the duration of the assignment or assignments by the agency of the assignment employee to work for the client and regardless of the amount or timing of work performed by the assignment employee.

Interpretation

   (4)  In this section, “assignment employee” includes a prospective assignment employee.

Void provisions

   74.9  (1)  A provision in an agreement between a temporary help agency and an assignment employee of the agency that is inconsistent with section 74.8 is void.

Same

   (2)  A provision in an agreement between a temporary help agency and a client that is inconsistent with section 74.8 is void.

Transition

   (3)  Subsections (1) and (2) apply to provisions regardless of whether the agreement was entered into before or after the date on which section 74.8 comes into force.

Interpretation

   (4)  In this section, “assignment employee” includes a prospective assignment employee.

Public holiday pay

   74.10  (1)  For the purposes of determining entitlement to public holiday pay under subsection 29 (2.1), an assignment employee of a temporary help agency is on a layoff on a public holiday if the public holiday falls on a day on which the employee is not assigned by the agency to perform work for a client of the agency.

Same

   (2)  For the purposes of subsection 29 (2.2), the period of a temporary lay-off of an assignment employee by a temporary help agency shall be determined in accordance with section 56 as modified by section 74.11 for the purposes of Part XV.

Termination and severance

   74.11  For the purposes of the application of Part XV to temporary help agencies and their assignment employees, the following modifications apply:

    1.  A temporary help agency lays off an assignment employee for a week if the employee is not assigned by the agency to perform work for a client of the agency during the week.

    2.  For the purposes of paragraphs 3 and 10, “excluded week” means a week during which, for one or more days, the assignment employee is not able to work, is not available for work, refuses an offer by the agency that would not constitute constructive dismissal of the employee by the agency, is subject to a disciplinary suspension or is not assigned to perform work for a client of the agency because of a strike or lock-out occurring at the agency.

    3.  An excluded week shall not be counted as part of the 13 or 35 weeks referred to in subsection 56 (2) but shall be counted as part of the 20 or 52 consecutive week periods referred to in subsection 56 (2).

    4.  Subsections 56 (3) to (3.6) do not apply to temporary help agencies and their assignment employees.

    5.  A temporary help agency shall, in addition to meeting the posting requirements set out in clause 58 (2) (b) and subsection 58 (5), provide the information required to be provided to the Director under clause 58 (2) (a) to each of its assignment employees on the first day of the notice period or as soon after that as is reasonably possible.

    6.  Clauses 60 (1) (a) and (b) and subsection 60 (2) do not apply to temporary help agencies and their assignment employees.

    7.  A temporary help agency that gives notice of termination to an assignment employee in accordance with section 57 or 58 shall, during each week of the notice period, pay the assignment employee the wages he or she is entitled to receive, which in no case shall be less than,

            i.  in the case of any termination other than under clause 56 (1) (c), the total amount of the wages earned by the assignment employee for work performed for clients of the agency during the 12-week period ending on the last day on which the employee performed work for a client of the agency, divided by 12, or

           ii.  in the case of a termination under clause 56 (1) (c), the total amount of wages earned by the assignment employee for work performed for clients of the agency during the 12-week period immediately preceding the deemed termination date, divided by 12.

    8.  The lump sum that an assignment employee is entitled to be paid under clause 61 (1) (a) is a lump sum equal to the amount the employee would have been entitled to receive under paragraph 7 had notice been given in accordance with section 57 or 58.

    9.  Subsection 61 (1.1) does not apply to temporary help agencies and their assignment employees.

  10.  An excluded week shall not be counted as part of the 35 weeks referred to in clause 63 (1) (c) but shall be counted as part of the 52 consecutive week period referred to in clause 63 (1) (c).

  11.  Subsections 63 (2) to (2.4) do not apply to temporary help agencies and their assignment employees.

  12.  Subsections 65 (1), (5) and (6) do not apply to temporary help agencies and their assignment employees.

  13.  If a temporary help agency severs the employment of an assignment employee under clause 63 (1) (a), (b), (d) or (e), severance pay shall be calculated by,

            i.  dividing the total amount of wages earned by the assignment employee for work performed for clients of the agency during the 12-week period ending on the last day on which the employee performed work for a client of the agency by 12, and

           ii.  multiplying the result obtained under subparagraph i by the lesser of 26 and the sum of,

                  A.  the number of years of employment the employee has completed, and

                  B.  the number of months of employment not included in sub-subparagraph A that the employee has completed, divided by 12.

  14.  If a temporary help agency severs the employment of an assignment employee under clause 63 (1) (c), severance pay shall be calculated by,

            i.  dividing the total amount of wages earned by the assignment employee for work performed for clients of the agency during the 12-week period immediately preceding the first day of the lay-off by 12, and

           ii.  multiplying the result obtained under subparagraph i by the lesser of 26 and the sum of,

                  A.  the number of years of employment the employee has completed, and

                  B.  the number of months of employment not included in sub-subparagraph A that the employee has completed, divided by 12.

Reprisal by Client

Reprisal by client prohibited

   74.12  (1)  No client of a temporary help agency or person acting on behalf of a client of a temporary help agency shall intimidate an assignment employee, refuse to have an assignment employee perform work for the client, terminate the assignment of an assignment employee, or otherwise penalize an assignment employee or threaten to do so,

  (a)  because the assignment employee,

           (i)  asks the client or the temporary help agency to comply with their respective obligations under this Act and the regulations,

          (ii)  makes inquiries about his or her rights under this Act,

         (iii)  files a complaint with the Ministry under this Act,

         (iv)  exercises or attempts to exercise a right under this Act,

          (v)  gives information to an employment standards officer,

         (vi)  testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,

        (vii)  participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,

       (viii)  is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or

  (b)  because the client or temporary help agency is or may be required, because of a court order or garnishment, to pay to a third party an amount owing to the assignment employee.

Onus of proof

   (2)  Subject to subsection 122 (4), in any proceeding under this Act, the burden of proof that a client did not contravene a provision set out in this section lies upon the client.

Enforcement

Meeting under s. 102

   74.13  For the purposes of the application of section 102 in respect of this Part, the following modifications apply:

    1.  In addition to the circumstances set out in subsection 102 (1), the following are circumstances in which an employment standards officer may require persons to attend a meeting under that subsection:

            i.  The officer is investigating a complaint against a client.

           ii.  The officer, while inspecting a place under section 91 or 92, comes to have reasonable grounds to believe that a client has contravened this Act or the regulations with respect to an assignment employee.

    2.  In addition to the persons referred to in subsection 102 (2), the following persons may be required to attend the meeting:

            i.  The client.

           ii.  If the client is a corporation, a director or employee of the corporation.

          iii.  An assignment employee or prospective assignment employee.

Order to recover fees

   74.14  (1)  If an employment standards officer finds that a temporary help agency charged a fee to an assignment employee or prospective assignment employee in contravention of paragraph 1, 2, 3, 5 or 9 of subsection 74.8 (1), the officer may,

  (a)  arrange with the agency that it repay the amount of the fee directly to the assignment employee or prospective assignment employee; or

  (b)  order the agency to pay the amount of the fee to the Director in trust.

Administrative costs

   (2)  An order issued under clause (1) (b) shall also require the temporary help agency to pay to the Director in trust an amount for administrative costs equal to the greater of $100 and 10 per cent of the amount owing.

Contents of order

   (3)  The order shall state the paragraph of subsection 74.8 (1) that was contravened and the amount to be paid.

Application of s. 103 (3) and (6) to (9)

   (4)  Subsections 103 (3) and (6) to (9) apply with respect to an order issued under this section with necessary modifications and for the purpose, without limiting the generality of the foregoing, a reference to an employee is a reference to an assignment employee or prospective assignment employee.

Application of s. 105

   (5)  Section 105 applies with respect to repayment of fees by a temporary help agency to an assignment employee or prospective assignment employee with necessary modifications, including but not limited to the following:

    1.  The reference to clause 103 (1) (a) in subsection 105 (1) is a reference to clause (1) (a) of this section.

    2.  A reference to an employee is a reference to an assignment employee or prospective assignment employee to whom a fee is to be paid.

Recovery of prohibited fees by client

   74.15  If a temporary help agency charges a fee to a client in contravention of paragraph 8 or 9 of subsection 74.8 (1), the client may recover the amount of the fee in a court of competent jurisdiction.

Order for compensation, temporary help agency

   74.16  (1)  If an employment standards officer finds that a temporary help agency has contravened paragraph 4, 6, 7 or 10 of subsection 74.8 (1), the officer may order that the assignment employee or prospective assignment employee be compensated for any loss he or she incurred as a result of the contravention.

Terms of orders

   (2)  If an order issued under this section requires a temporary help agency to compensate an assignment employee or prospective assignment employee, it shall also require the agency to pay to the Director in trust,

  (a)  the amount of the compensation; and

  (b)  an amount for administration costs equal to the greater of $100 and 10 per cent of the amount of compensation.

Contents of order

   (3)  The order shall state the paragraph of subsection 74.8 (1) that was contravened and the amount to be paid.

Application of s. 103 (3) and (6) to (9)

   (4)  Subsections 103 (3) and (6) to (9) apply with respect to orders issued under this section with necessary modifications and for the purpose, without limiting the generality of the foregoing, a reference to an employee is a reference to an assignment employee or prospective assignment employee.

Order re client reprisal

   74.17  (1)  If an employment standards officer finds that section 74.12 has been contravened with respect to an assignment employee, the officer may order that the employee be compensated for any loss he or she incurred as a result of the contravention or that he or she be reinstated in the assignment or that he or she be both compensated and reinstated.

Terms of orders

   (2)  If an order issued under this section requires the client to compensate an assignment employee, it shall also require the client to pay to the Director in trust,

  (a)  the amount of the compensation; and

  (b)  an amount for administration costs equal to the greater of $100 and 10 per cent of the amount of compensation.

Application of s. 103 (3) and (5) to (9)

   (3)  Subsections 103 (3) and (5) to (9) apply with respect to orders issued under this section with necessary modifications, including but not limited to the following:

    1.  A reference to an employer is a reference to a client.

    2.  A reference to an employee is a reference to an assignment employee.

Agency obligation

   (4)  If an order is issued under this section requiring a client to reinstate an assignment employee in the assignment, the temporary help agency shall do whatever it can reasonably do in order to enable compliance by the client with the order.

   4.  Section 95 of the Act is repealed and the following substituted:

Service of documents

   95.  (1)  Except as otherwise provided in sections 8, 17.1 and 22.1, where service of a document on a person is required or permitted under this Act, it may be served,

  (a)  in the case of service on an individual, personally, by leaving a copy of the document with the individual;

  (b)  in the case of service on a corporation, personally, by leaving a copy of the document with an officer, director or agent of the corporation, or with an individual at any place of business of the corporation who appears to be in control or management of the place of business;

   (c)  by mail addressed to the person’s last known business or residential address using any method of mail delivery that permits the delivery to be verified;

  (d)  by fax or email if the person is equipped to receive the fax or email;

  (e)  by a courier service;

    (f)  by leaving the document, in a sealed envelope addressed to the person, with an individual who appears to be at least 16 years of age at the person’s last known business or residential address; or

  (g)  in a manner ordered by the Board under subsection (8).

Same

   (2)  Service of a document by means described in clause (1) (a), (b) or (f) is effective when it is left with the individual.

Same

   (3)  Subject to subsection (6), service of a document by mail is effective five days after the document is mailed.

Same

   (4)  Subject to subsection (6), service of a document by a fax or email sent on a Saturday, Sunday or a public holiday or on any other day after 5 p.m. is effective on the next day that is not a Saturday, Sunday or public holiday.

Same

   (5)  Subject to subsection (6), service of a document by courier is effective two days after the courier takes the document.

Same

   (6)  Subsections (3), (4) and (5) do not apply if the person establishes that the service was not effective at the time specified in those subsections because of an absence, accident, illness or cause beyond the person’s control.

Same

   (7)  If the Director considers that a manner of service other than one described in clauses (1) (a) to (f) is appropriate in the circumstances, the Director may direct the Board to consider the manner of service.

Same

   (8)  If the Board is directed to consider the manner of service, it may order that service be effected in the manner that the Board considers appropriate in the circumstances.

Same

   (9)  In an order for service, the Board shall specify when service in accordance with the order is effective.

Proof of issuance and service

   (10)  A certificate of service made by the employment standards officer who issued an order or notice under this Act is evidence of the issuance of the order or notice, the service of the order or notice on the person and its receipt by the person if, in the certificate, the officer,

  (a)  certifies that the copy of the order or notice is a true copy of it;

  (b)  certifies that the order or notice was served on the person; and

   (c)  sets out in it the method of service used.

Proof of service

   (11)  A certificate of service made by the person who served a document under this Act is evidence of the service of the document on the person served and its receipt by that person if, in the certificate, the person who served the document,

  (a)  certifies that the copy of the document is a true copy of it;

  (b)  certifies that the document was served on the person; and

   (c)  sets out in it the method of service used.

   5.  (1)  Subsections 102 (3), (4) and (5) of the Act are repealed and the following substituted:

Notice

   (3)  The notice referred to in subsection (1) shall specify the time and place at which the person is to attend and shall be served on the person in accordance with section 95.

Documents

   (4)  The employment standards officer may require the person to bring to the meeting or make available for the meeting any records or other documents specified in the notice.

Same

   (5)  The employment standards officer may give directions on how to make records or other documents available for the meeting.

   (2)  Section 102 of the Act is amended by adding the following subsections:

Use of technology

   (7)  The employment standards officer may direct that a meeting under this section be held using technology, including but not limited to teleconference and videoconference technology, that allows the persons participating in the meeting to participate concurrently.

Same

   (8)  Where an employment standards officer gives directions under subsection (7) respecting a meeting, he or she shall include in the notice referred to in subsection (1) such information additional to that required by subsection (3) as the officer considers appropriate.

Same

   (9)  Participation in a meeting by means described in subsection (7) is attendance at the meeting for the purposes of this section.

   6.  Subsections 103 (6), (7), (7.1), (7.2) and (8) of the Act are repealed and the following substituted:

Service of order

   (6)  The order shall be served on the employer in accordance with section 95.

Notice to employee

   (7)  An employment standards officer who issues an order with respect to an employee under this section shall advise the employee of its issuance by serving a letter, in accordance with section 95, on the employee.

Compliance

   (8)  Every employer against whom an order is issued under this section shall comply with it according to its terms.

   7.  Subsection 104 (1) of the Act is amended by striking out “finds that an employer has contravened any of the following” in the portion before paragraph 1 and substituting “finds a contravention of any of the following”.

   8.  (1)  Subsection 106 (1) of the Act is amended by striking out “may serve a copy of the order” and substituting “may serve a copy of the order in accordance with section 95”.

   (2)  Subsection 106 (3) of the Act is amended by adding “in accordance with section 95” at the end.

   (3)  Subsections 106 (7), (8) and (9) of the Act are repealed. 

   9.  (1)  Subsection 107 (1) of the Act is amended by striking out “may serve it on them” in the portion before clause (a) and substituting “may serve it on them in accordance with section 95”.

   (2)  Subsection 107 (3) of the Act is repealed.

   10.  Subsections 108 (2), (3) and (4) of the Act are repealed and the following substituted:

Payment may not be required

   (2)  No order under this section shall require the payment of wages, fees or compensation.

Other means not a bar

   (3)  Nothing in subsection (2) precludes an employment standards officer from issuing an order under section 74.14, 74.16, 74.17, 103, 104, 106 or 107 and an order under this section in respect of the same contravention.

Application of s. 103 (6) to (9)

   (4)  Subsections 103 (6) to (9) apply with respect to orders issued under this section with necessary modifications, including but not limited to the following:

    1.  A reference to an employer includes a reference to a client of a temporary help agency within the meaning of Part XVIII.1.

    2.  A reference to an employee includes a reference to an assignment employee or prospective assignment employee within the meaning of Part XVIII.1.

   11.  Subsections 109 (1) and (2) of the Act are repealed and the following substituted:

Money paid when no review

   (1)  Money paid to the Director under an order under section 74.14, 74.16, 74.17, 103, 104, 106 or 107 shall be paid to the person with respect to whom the order was issued unless an application for review is made under section 116 within the period required under that section.

Money distributed rateably

   (2)  If the money paid to the Director under one of those orders is not enough to pay all of the persons entitled to it under the order the full amount to which they are entitled, the Director shall distribute that money, including money received with respect to administrative costs, to the persons in proportion to their entitlement.

   12.  Section 110 of the Act is repealed and the following substituted:

Refusal to issue order

   110.  (1)  If, after a person files a complaint alleging a contravention of this Act in respect of which an order could be issued under section 74.14, 74.16, 74.17, 103, 104 or 108, an employment standards officer assigned to investigate the complaint refuses to issue such an order, the officer shall, in accordance with section 95, serve a letter on the person advising the person of the refusal.

Deemed refusal

   (2)  If no order is issued with respect to a complaint described in subsection (1) within two years after it was filed, an employment standards officer shall be deemed to have refused to issue an order and to have served a letter on the person advising the person of the refusal on the last day of the second year.

   13.  (1)  Subsection 112 (6) of the Act is amended by striking out “wages or compensation” and substituting “wages, fees or compensation”.

   (2)  Section 112 of the Act is amended by adding the following subsection:

Application to Part XVIII.1

   (9)  For the purposes of the application of this section in respect of Part XVIII.1, the following modifications apply:

    1.  A reference to an employer includes a reference to a client of a temporary help agency within the meaning of Part XVIII.1.

    2.  A reference to an employee includes a reference to an assignment employee or prospective assignment employee within the meaning of Part XVIII.1.

   14.  (1)  Subsections 113 (3) and (4) of the Act are repealed and the following substituted:

Service

   (3)  A notice issued under this section shall be served on the person in accordance with section 95.

   (2)  Subsection 113 (7) of the Act is amended by striking out “section 103, 104 or 108” and substituting “section 74.14, 74.16, 74.17, 103, 104 or 108”.

   15.  (1)  Subsection 114 (1) of the Act is amended by striking out “wages or compensation” in the portion before clause (a) and substituting “wages, fees or compensation”.

   (2)  Subsection 114 (4) of the Act is amended by striking out “wages or compensation” and substituting “wages, fees or compensation”.

   (3)  Section 114 of the Act is amended by adding the following subsection:

Application to Part XVIII.1

   (6)  For the purposes of the application of this section in respect of Part XVIII.1, the following modifications apply:

    1.  A reference to an employer includes a reference to a client of a temporary help agency within the meaning of Part XVIII.1.

    2.  A reference to an employee includes a reference to an assignment employee or prospective assignment employee within the meaning of Part XVIII.1.

   16.  Section 115 of the Act is amended by adding the following subsection:

Application to Part XVIII.1

   (1.1)  For the purposes of the application of subsection (1) in respect of Part XVIII.1, the following modifications apply:

    1.  A reference to an employer includes a reference to a client of a temporary help agency within the meaning of Part XVIII.1.

    2.  A reference to an employee includes a reference to an assignment employee or prospective assignment employee within the meaning of Part XVIII.1.

   17.  Part XXIII of the Act is amended by adding the following section:

Interpretation

   115.1  In this Part, a reference to an employee includes a reference to an assignment employee or a prospective assignment employee within the meaning of Part XVIII.1.

   18.  Section 116 of the Act is repealed and the following substituted:

Review

   116.  (1)  A person against whom an order has been issued under section 74.14, 74.16, 74.17, 103, 104, 106, 107 or 108 is entitled to a review of the order by the Board if, within the period set out in subsection (4), the person,

  (a)  applies to the Board in writing for a review;

  (b)  in the case of an order under section 74.14 or 103, pays the amount owing under the order to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director in that amount; and

   (c)  in the case of an order under section 74.16, 74.17 or 104, pays the lesser of the amount owing under the order and $10,000 to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director in that amount.

Employee seeks review of order

   (2)  If an order has been issued under section 74.14, 74.16, 74.17, 103 or 104 with respect to an employee, the employee is entitled to a review of the order by the Board if, within the period set out in subsection (4), the employee applies to the Board in writing for a review.

Employee seeks review of refusal

   (3)  If an employee has filed a complaint alleging a contravention of this Act or the regulations and an order could be issued under section 74.14, 74.16, 74.17, 103, 104 or 108 with respect to such a contravention, the employee is entitled to a review of an employment standards officer’s refusal to issue such an order if, within the period set out in subsection (4), the employee applies to the Board in writing for such a review.

Period for applying for review

   (4)  An application for a review under subsection (1), (2) or (3) shall be made within 30 days after the day on which the order, letter advising of the order or letter advising of the refusal to issue an order, as the case may be, is served.

Extension of time

   (5)  The Board may extend the time for applying for a review under this section if it considers it appropriate in the circumstances to do so and, in the case of an application under subsection (1),

  (a)  the Board has enquired of the Director whether the Director has paid to the employee the wages, fees or compensation that were the subject of the order and is satisfied that the Director has not done so; and

  (b)  the Board has enquired of the Director whether a collector’s fees or disbursements have been added to the amount of the order under subsection 128 (2) and, if so, the Board is satisfied that fees and disbursements were paid by the person against whom the order was issued.

Hearing

   (6)  Subject to subsection 118 (2), the Board shall hold a hearing for the purposes of the review.

Parties

   (7)  The following are parties to the review:

    1.  The applicant for the review of an order.

    2.  If the person against whom an order was issued applies for the review, the employee with respect to whom the order was issued.

    3.  If the employee applies for the review of an order, the person against whom the order was issued.

    4.  If the employee applies for a review of a refusal to issue an order under section 74.14, 74.16, 74.17, 103, 104 or 108, the person against whom such an order could be issued.

    5.  If a director of a corporation applies for the review, the applicant and each director, other than the applicant, on whom the order was served.

    6.  The Director.

    7.  Any other persons specified by the Board.

Parties given full opportunity

   (8)  The Board shall give the parties full opportunity to present their evidence and make their submissions.

Practice and procedure for review

   (9)  The Board shall determine its own practice and procedure with respect to a review under this section.

   19.  Subsection 117 (1) of the Act is repealed and the following substituted:

Money held in trust pending review

   (1)  This section applies if money with respect to an order to pay wages, fees or compensation is paid to the Director in trust and the person against whom the order was issued applies to the Board for a review of the order.

   20.  (1)  Subsection 119 (10) of the Act is amended by striking out “wages or compensation” wherever it appears in the portion before clause (a), in clause (a) and in clause (b) and substituting in each case “wages, fees or compensation”.

   (2)  Subsection 119 (12) of the Act is repealed and the following substituted:

Interest

   (12)  If the Board issues, amends or affirms an order or issues a new order requiring the payment of wages, fees or compensation, the Board may order the person against whom the order was issued to pay interest at the rate and calculated in the manner determined by the Director under subsection 88 (5).

   21.  Clauses 120 (6) (a) and (b) of the Act are amended by striking out “wages or compensation” wherever it appears and substituting in each case “wages, fees or compensation”.

   22.  Section 125 of the Act is repealed and the following substituted:

Third party demand

   125.  (1)  If the Director believes or suspects that a person owes money to or is holding money for an employer, a director or another person who is liable to make a payment under this Act, the Director may demand that the person pay all or part of the money otherwise payable to the employer, director or other person who is liable to make a payment under this Act to the Director in trust, on account of the liability under this Act.

Client of temporary help agency

   (2)  Without limiting the generality of subsection (1), that subsection applies where a client of a temporary help agency, within the meaning of Part XVIII.1, owes money to or is holding money for a temporary help agency.

Service

   (3)  The Director shall, in accordance with section 95, serve notice of the demand on the person to whom the demand is made.

Discharge

   (4)  A person who pays money to the Director in accordance with a demand under this section is relieved from liability for the amount owed to or held for the employer, director or other person who is liable to make a payment under this Act, to the extent of the payment.

Liability

   (5)  If a person who receives a demand under this section makes a payment to the employer, director or other person with respect to whom the demand was made without complying with the demand, the person shall pay to the Director an amount equal to the lesser of,

  (a)  the amount paid to the employer, director or other person; and

  (b)  the amount of the demand.

   23.  Clause 128 (3) (a) of the Act is repealed and the following substituted:

  (a)  shall pay any amount collected with respect to wages, fees or compensation,

           (i)  to the Director in trust, or

          (ii)  with the written consent of the Director, to the person entitled to the wages, fees or compensation;

   24.  (1)  Subsection 129 (3) of the Act is repealed and the following substituted:

Orders void where settlement

   (3)  If an order to pay has been made under section 74.14, 74.16, 74.17, 103, 104, 106 or 107 and a settlement respecting the money that was found to be owing is made under this section, the order is void and the settlement is binding if the person against whom the order was issued does what the person agreed to do under the settlement unless, on application to the Board, the individual to whom the money was ordered to be paid demonstrates that the settlement was entered into as a result of fraud or coercion.

   (2)  The French version of subsection 129 (4) of the Act is amended by striking out “visée par l’avis” and substituting “contre qui il a été délivré”.

   25.  Subsections 133 (1) and (2) of the Act are repealed and the following substituted:

Additional orders

   (1)  If an employer is convicted under section 132 of contravening section 74 or paragraph 4, 6, 7 or 10 of subsection 74.8 (1) or if a client, within the meaning of Part XVIII.1 is convicted under section 132 of contravening section 74.12, the court shall, in addition to any fine or term of imprisonment that is imposed, order that the employer or client, as the case may be, take specific action or refrain from taking specific action to remedy the contravention.

Same

   (2)  Without restricting the generality of subsection (1), the order made by the court may require one or more of the following:

    1.  A person be paid any wages that are owing to him or her.

    2.  In the case of a conviction under section 132 of contravening section 74 or 74.12, a person be reinstated.

    3.  A person be compensated for any loss incurred by him or her as a result of the contravention.

   26.  (1)  Section 134 of the Act is amended by striking out “An employer” in the portion before clause (a) and substituting “A person”.

   (2)  The English version of clauses 134 (a) and (b) of the Act is amended by striking out “the employer” wherever it appears and substituting in each case “the person”.

   27.  Subsection 135 (1) of the Act is amended by striking out “other than section 74” and substituting “other than section 74 or paragraph 4, 6, 7 or 10 of subsection 74.8 (1)”.

   28.  Subsection 140 (3) of the Act is amended by striking out “an employer has failed to make a payment required” and substituting “a person has failed to make the payment required”.

   29.  Subsection 142 (2) of the Act is repealed.

Commencement

   30.  This Act comes into force six months after the day it receives Royal Assent.

Short title

   31.  The short title of this Act is the Employment Standards Amendment Act (Temporary Help Agencies), 2009.

 

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 139 and does not form part of the law.  Bill 139 has been enacted as Chapter 9 of the Statutes of Ontario, 2009.

 

Section 3 of the Bill adds Part XVIII.1 (Temporary Help Agencies) to the Employment Standards Act, 2000.  Part XVIII.1 adds sections 74.1 to 74.17 to the Act.

Sections 74.1 to 74.4 of the Act provide for the interpretation and application of Part XVIII.1.  Section 74.1 defines temporary help agency (an agency that employs persons for the purpose of assigning them to perform work on a temporary basis for its clients) and assignment employee (persons employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for the agency’s clients).  Section 74.2 provides that the Part does not apply to certain kinds of work assignments made under certain contracts with community care access corporations.  Sections 74.3 and 74.4 elaborate on the nature of the employment relationship between temporary help agencies and assignment employees.

Sections 74.5 to 74.11 of the Act set out obligations and prohibitions relating to temporary help agencies. Sections 74.5, 74.6 and 74.7 require a temporary help agency to provide its assignment employees with information about the agency, about work assignments, and about the rights of assignment employees under the Act.  Section 74.8 restricts the fees that temporary help agencies may charge its assignment employees and, subject to limited exceptions, prohibits a temporary help agency from restricting its assignment employees from entering into employment relationships with clients of the agency.  Section 74.9 provides that a provision in an agreement with a temporary help agency that is inconsistent with section 74.8 is void.  Section 74.10 clarifies an aspect of assignment employees’ entitlement to public holiday pay.  Section 74.11 clarifies how termination and severance rights under the Act apply to assignment employees.

Section 74.12 of the Act prohibits a client of a temporary help agency from taking reprisals against assignment employees on a variety of grounds, such as asking the client or the temporary help agency to comply with the Act.

Sections 74.13 to 74.17 of the Act relate to enforcement of the new Part, including provisions for recovery of fees charged in contravention of the Part and compensation for loss incurred as a result of a contravention of the Part.

Other sections of the Bill deal with consequential and housekeeping matters.  Section 1 of the Bill amends section 8 of the Act with respect to service of certain notices on the Director of Employment Standards.  Section 2 of the Bill amends section 68 of the Act, which deals with rights respecting lie detector tests, to include a reference to the new section 74.12 of the Act.  Section 4 of the Bill remakes section 95 of the Act, respecting service of documents under the Act.  Section 5 of the Bill amends section 102 of the Act to allow for use of technology to facilitate the holding of meetings required by employment standards officers.  Sections 6 to 29 of the Bill make consequential and housekeeping amendments to various sections of the Act, in the main to permit enforcement of the new Part XVIII.1.

Section 30 of the Bill provides that the Act comes into force six months after the day it receives Royal Assent.

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