Bill 139 – Employment Standards Act Update
Source: BrantHR Staff
On December 9, 2008, the Ontario government tabled Bill 139: The Employment Standards Amendments Act (Temporary Help Agencies) 2008. This Bill will amend the Employment Standards Act (ESA) to set out obligations and prohibitions relating to temporary help agencies. This measure will ensure that temporary help agency employees are being treated fairly and have better opportunities to move to sustainable employment.
Defined under the ESA
“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 (employee).
“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 attempts to assign one or more assignment employee to perform work for the organization (company).
“Temporary help agency” means an employer that employs persons for the purpose of assigning them to perform work on a temporary basis for clients (temp agency).
The new ESA legislation addresses:
- Establishes that temporary employees are covered by the Employment Standards Act
- When a temporary employee is assigned work by the temporary help agency, that agency is the persons employer and this person is an employee of that agency
- Ensures temporary workers are aware of their rights under the Employment Standards Act
- Stops temporary help agencies from charging workers for resume writing and interview preparation
- Ensures temporary workers have all the information they need about their assignments, especially pay schedules and job descriptions
- Enables the government to enact future regulations so temporary employees have notice to termination and severance pay rights that align with the rights of permanent employees
- When offering a work assignment with a client, temporary work agencies will have to provide the assignment employee, in writing:
- The legal operating or business name of the client
- Client contact information including address, telephone number and at least one contact name
- The hourly or other wage rate or commission and benefits associated with each assignment
- The hours of work for the assignment
- A description of the work to be performed
- The pay period and or pay date established by the temporary help agency
- The legal operating or business name of the client
One of the key elements of the ESA changes is the removal of barriers that prevent assignment employees from obtaining full time permanent employment with the client business. Temporary help agencies will be prohibited from restricting a client business from offering a permanent position to an assignment employee. They will also be prohibited from charging the client business a fee for hiring the assignment employee after the assignment employee has worked for a period of six months.
Bill 139 provides that the Act comes into force six months after the day it receives Royal Assent.
Holiday Pay and Entitlements
As of January 2, 2009 all “elect to work” employees in Ontario now have the same rights to public holiday entitlements as permanent employees under the general public holiday provisions of the Employment Standards Act, 2000.
Ontario has nine public holidays:
- New Year's Day
- Family Day
- Good Friday
- Victoria Day
- Canada Day
- Labour Day
- Thanksgiving Day
- Christmas Day
- Boxing Day
Most employees who qualify are entitled to take these days off work and be paid public holiday pay. Alternatively, they can agree in writing to work on the holiday and they will be paid:
- Public holiday pay plus premium pay for the hours worked on the public holiday;
or
- Their regular rate for hours worked on the holiday, and they will receive another day off (called a "substitute" holiday) with public holiday pay. If the employee has earned a substitute day off with public holiday pay, the public holiday pay calculation is done with respect to the four workweeks before the workweek in which the substitute day off falls.
The amount of public holiday pay to which an employee is entitled to:
- All of the regular wages earned by the employee in the four work weeks before the work week with the public holiday plus all of the vacation pay payable to the employee with respect to the four work weeks before the work week with the public holiday, divided by 20.
- “Regular wages” does not include any overtime or premium pay payable to an employee.