An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Wednesday, 3 December 2014

Unpaid Interns Become "Workers" Under OHSA

On November 20, 2014, unpaid interns in Ontario gained a modicum of protection under some of Ontario’s employment laws. No, the government did not make any changes to minimum wage provisions relevant to unpaid labour (although the government did change the minimum wage law to make the same reflective of the Consumer Price Index, effective October 1, 2015), the government amended the Occupational Health and Safety Act to make that law applicable to unpaid labourers.

Changes to the Law

On November 20, 2014, the Stronger Workplaces for a Stronger Economy Act, 2014, S.O. 2014, c. 10, received royal assent ushering in a number of changes to Ontario’s employment laws.

Among the changes made by the law are changes to the Occupational Health and Safety Act. Specifically, the definition of “worker” in subsection 1 (1) of the Occupational Health and Safety Act was replaced.

Prior to the change, the definition of “worker” in the Occupational Health and Safety Act was as follows:

a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program

However, pursuant to Schedule 4, section 1 of the Stronger Workplaces for a Stronger Economy Act, 2014, the previous definition of “worker” contained within the OHSA was repealed and the following substituted:

“worker” means any of the following, but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program:

1. A person who performs work or supplies services for monetary compensation.

2. A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled.

3. A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university or other post-secondary institution.

4. A person who receives training from an employer, but who, under the Employment Standards Act, 2000, is not an employee for the purposes of that Act because the conditions set out in subsection 1 (2) of that Act have been met.

5. Such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation.

To Whom Do These Changes Apply?

Who are those persons prescribed by subsection 1 (2) of the Employment Standards Act, 2000 to specifically not be “employees” for the purposes of that Act? Interns!

As was canvassed in the post Unpaid Internships, subsection 1(2) of the Employment Standards Act, 2000 provides as follows:

For the purposes of clause (c) of the definition of “employee” in subsection (1), an individual receiving training from a person who is an employer is an employee of that person if the skill in which the individual is being trained is a skill used by the person’s employees, unless all of the following conditions are met:

1. The training is similar to that which is given in a vocational school.

2. The training is for the benefit of the individual.

3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.

4. The individual does not displace employees of the person providing the training.

5. The individual is not accorded a right to become an employee of the person providing the training.

6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.

Commentary

Very recently this blog looked at the issue of unpaid articling positions in the post, Unpaid Articling Positions: Opportunity or Exploitation?, that post, as does any mention of unpaid labour, set off a flurry of discussion, including a debate about whether law school is too academic and not vocational enough. It is clear from that debate, and indeed the debate that was spawned when this blog first looked at the issue of unpaid internships (see: Unpaid Internships published in October 2012) that the issue of unpaid internships is a hot issue for some people. Put another way: employment standards matter.

While the government of the day has not gone so far as to prohibit unpaid internships, they have taken a positive step.

Did I Call It?

In 2013, I was asked by the Toronto Star what I thought about unpaid internships, and in an article published March 15, 2013, NDP calls on Ontario Liberals to regulate unpaid internships, I commented that:

If the government of the day is not prepared to mandate that intern work be paid work, these workers should at least be afforded other basic rights of employment, such as a maximum on the hours of work, the ability to refuse unsafe work, etc.

Speaking in support of the Bill at its third reading on October 27, 2014, the Honourable Yasir Naqvi commented:

...as the CBC and the Toronto Star have both highlighted, changes to the Occupational Health and Safety Act are necessary to ensure that unpaid co-op students and other unpaid workers are covered under the occupational health and safety rules. Most importantly, this bill provides vulnerable workers with the right to refuse unsafe work.

Can I take credit for the change to the Occupational Health and Safety Act? Probably not legitimately; but it’s nice to see a suggestion actually come to fruition. By the same token, it would hardly lie in my mouth to criticize the government for doing exactly what I suggested they do.

So, the change is a positive first step. It will likely not be the last step necessary, but it’s a positive first step.

Thoughts?

What do you think? Do you agree that this incremental step is a positive development or is the same nothing more than lip service to an important issue. Comments can be entered below.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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