Chapter 9: Exclusions from basic standards
Generally speaking, the Employment Standards Act, 2000 (ESA) applies to an employee and his or her employer if the employee’s work is performed in Ontario. There are, however, exclusions from this rule of general application.
Section 1 (2) of the Act provides that trainees (referred to in the ESA as persons receiving training) are employees for purposes of the ESA and are entitled to the minimum standards set out therein, unless certain conditions are met. This subsection provides:
For the purposes of clause (c) of the definition ofemployeein [section 1(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:
- The training is similar to that which is given in a vocational school.
- The training is for the benefit of the individual.
- The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained.
- The individual does not displace employees of the person providing the training.
- The individual is not accorded a right to become an employee of the person providing the training.
- The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
The ESA was amended to reflect the jurisprudence of the OLRB as established in Hakimi v. Canadian Aesthetic Academy Inc.
Walling involved claims to be paid for time spent on the employer’s premises, under the employer’s direction, performing labour, in order to learn to qualify for jobs when the employer might need them. The facts in Walling reflected a
good faith understanding following a long-established custom of an industry whose labor relations have long been subject to collective bargaining. Even so, the court observed that
We have not ignored the argument that such a holding may open up a way for evasion of the law. But there are neither findings nor charges here that these arrangements were either conceived or carried out in such a way as to violate either the letter or the spirit of the minimum wage law.
The issue is whether section 1 (2) of the ESA, which creates an exclusion for a
person receiving training, should be retained or removed.
The section should be removed from the ESA.
The current provision is unclear and difficult to understand. For example, what is
training…similar to that which is given in a vocational school? What are the circumstances in which the person providing the training
derives little, if any, benefit from the activity of the individual while he or she is being trained? Will the average trainee or employer understand exactly what these conditions mean?
In our view, the current provision is not only difficult to understand but also almost impossible to monitor and enforce.
Individuals categorized as
persons receiving training are unlikely to understand their rights or to complain when the exclusion is misused. They may be anxious to obtain references and work experience that could lead to paid employment. They therefore become vulnerable to being misclassified by employers seeking to benefit from free labour.
The current provision thus
opens the door to evasion of the law.
In April 2014 and again in September 2015, the Ministry conducted proactive enforcement blitzes, focusing on interns at workplaces across the province. In the 2014 blitz, out of 31 employers who had internship positions, 13 employers were found in contravention of the Act. In the 2015 blitz, out of 77 workplaces with internships, 18 employers were found in contravention of the Act.
There is no good policy reason to maintain section 1 (2) of the ESA.
- Section 1 (2) of the Employment Standards Act, 2000, with respect to persons receiving training, should be removed.
9.2 Crown employees
Currently Crown Employees are exempt from certain provisions of the ESA. Section 3(4) of the Act provides that:
Only the following provisions of this Act apply with respect to an employee and his or her employer if the employer is the Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown:
- Part IV (Continuity of Employment).
- Section 14.
- Part XII (Equal Pay for Equal Work).
- Part XIII (Benefit Plans).
- Part XIV (Leaves of Absence).
- Part XV (Termination and Severance of Employment).
- Part XVI (Lie Detectors).
- Part XVIII (Reprisal), except for subclause 74 (1) (a) (vii) and clause 74 (1) (b).
- Part XIX (Building Services Providers).
We have had no submissions supporting the continuance of the partial exemption of ESA coverage for employees of the Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown.
- The provision of the Employment Standards Act, 2000 that provides a partial exemption for designated Crown employers should be eliminated.