On November 6, 2009, amendments to Ontario’s Employment Standards Act (ESA) will come into force. Temporary help agencies and their employees will have new rights and obligations. The new requirements only cover assignment employees working for agencies, but not employees who work for the agency and are not sent out on assignments with clients.
Temporary help agencies provide employees to client businesses that require staff on temporary assignments. According to the Ontario Ministry of Labour, this could be for short-term jobs that last for a few days or weeks, or long-term assignments that can last for several months or years. It is clear now; the temporary help agency is the employer. According to the CAW, between 70% and 90% of advertised job postings are now through temporary help agencies.
As the employer, the agency has a responsibility to ensure that the assignment employee’s rights under the ESA are protected. With the amendments to the ESA, they will have generally the same employment rights as other employees. The ESA sets minimum standards for: hours of work; overtime pay; vacation; public holidays; termination of employment; statutory severance pay and statutory leaves of absence.
If those rights are being violated, the employee may file a claim with the Ontario Ministry of Labour against the agency, not the client businesses that require staff on temporary assignments.
Among the obligations imposed on temporary help agencies is the requirement to provide certain information to its assignment employees such as contact information for the agency, information about work assignments, including the client’s contact information, hours of work and hourly wages associated with the assignment and a general description of the work to be performed. In addition, an agency cannot prevent the employee from taking a permanent job with a client, and cannot charge a fee for taking that position.
There is much more, but temporary help agencies and client businesses should familiarize themselves with the new provisions of the ESA and ensure that they review the terms of their contracts for compliance with the new requirements. Legal experts have indicated the amendments stipulate that any term of an agreement that is inconsistent with the new provisions is void and that this applies even where the agreement was entered into prior to the amendments coming into force.
The Employment Standards branch of the Ministry of Labour has created a web page that will be regularly updated with links to new information that explains these changes. This information can be found at http://www.labour.gov.on.ca/english/es/ib_tha.html.
It has been reported that the temporary employment sector has changed dramatically from one which provided generally short-term clerical employment, to a highly diversified sector involved in both short- and longer-term employment. Now, nearly one-in-four new hires is hired on a temporary basis, and many are working alongside permanent employees doing the same type of work.
It has been argued that the use of temporary workers allows businesses staffing flexibility only provided through staffing agencies to respond to changes in the market or demand for their product.
Thus, do you agree with the government and the unions that this industry needed greater regulatory framework and enforcement?
Yosie Saint-Cyr
Human Resources and Compliance Managing Editor
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