Employment Standards Amendment Act, 2009 DiNovo, Cheri — Bill 189 (39th Parliament, 1st Session)

Bill 189, 39-1

Ontario — Bills

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Bill 189, Employment Standards Amendment Act, 2009

DiNovo, Cheri

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[39] Bill 189 Original (PDF)

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"employer" in subsection 1 (1) of the Employment Standards Act, 2000 are repealed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")

Section 4 of the Act is repealed and the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.

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.

(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.

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".

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

Document details

Collection	Ontario — Bills
Citation	Bill 189, 39-1
Type	bill
Volume / chapter	p39 s1 bill 189 html
Language	en
Format	html
Source	PROVINCIAL
Identifier	70d878f4156dafe174efd9846f77bb04c85f3019

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