This regulation supplements the building services providers provisions in the Employment Standards Act, 2000 by identifying prescribed services for a building and prescribed employees of building services providers. The regulation also sets out what information building services providers must give about their employees for the purposes of ESA Part XIX, s. 77(1).

Section 1 – Prescribed services for a building

Parking garages and parking lots - s. 1 subpara. 1(i)

Section 1 of O Reg 287/01 prescribes "services that are intended to relate only to the building and its occupants and visitors with respect to a parking garage or parking lot" as "building services". This would include, for example, an underground parking garage that is part of an office tower or a shopping centre parking lot.

Concession stands - s. 1 subpara. 1(ii)

Section 1 of O Reg 287/01 prescribes "services that are intended to relate only to the building and its occupants and visitors with respect to concession stands" as "building services". A concession stand is typically a variety, food or souvenir stand located inside premises such as a stadium, a museum, an arena or a public transportation facility. Persons using the premises may have to pay to enter and use the premises, such as in a stadium, a museum, a public transportation facility (e.g., the Toronto Transit Commission), or they may be able to enter and use the premises without paying admission, such as in the case of an airport. In contrast to food courts, virtually all of the persons using the concession stand services will be persons who are utilizing the building as a whole (rather than for the food services provided there) and as a result, such services will typically "relate only to the building and its occupants and visitors". For the most part, no one would pay to enter the Rogers Centre (formerly the Sky Dome) for example, for the sole purpose of purchasing a hot dog at one of the concession stands within the Rogers Centre. Similarly, the concession stand in a TTC subway station is intended for the use of persons using the subway facilities. Virtually no one would take an escalator down into a TTC subway station for the sole reason of buying a chocolate bar, regardless of whether the stand was located outside or inside the point at which one has to pay a fare to enter. Thus, the concession stand services are utilized by persons who invariably are also using the building as a whole, whereas a food court restaurant is typically used by member of the public at large, even though they have no other business to conduct in the building.

Property management services - s. 1 para. 2

Section 1 of O Reg 287/01 has prescribed "property management services that are intended to relate only to the building" as "building services". Property management companies are typically contracted by the owner of a building such as a condominium or apartment building to provide cleaning and security services, etc. The property management company will then often enter into sub-contracts with cleaning and security companies, whose employees will perform the necessary services. Pursuant to s. 1 of O Reg 287/01, although such services are provided indirectly by the property management company, they are included in the definition of "building services". This is consistent with the definition of "building services provider" in s. 1(1) of the Employment Standards Act, 2000, which includes any person who provides building services for a premises, including the owner or manager of the premises.

It is the Program’s view that under O Reg 287/01, "property management services that are intended to relate only to the building" must refer to managing the property rather than "working" it. As a result, "property management services" would not extend to the direct performance of manual services. More particularly, it would not extend to the direct performance of manual services such as maintenance (which services, in and of themselves, would not be considered "building services") although it would include supervising and paying for the provision of maintenance services.

On the other hand, the administrative services (e.g., payroll services, accounts payable) performed by the employees of the property management company may be considered to be "property management services" on the basis that they are integral to the provision of the property management services. However, as per O Reg 287/01, such services must "relate only to the building". This means that they must pertain only to the employer’s management of the building in question and not to other aspects of the employer’s operation (e.g., another building). For example, if a payroll clerk processed payroll only for those employees working at the building, they would be captured as employees providing property management services "that relate only to the building" whereas such an employee who also provided payroll services in respect of the employer’s employees working at other premises as well, would not.

Section 2 – Prescribed employees

Exemptions from Part XV - s. 2(1)

Section 2(1) sets out the exemptions in which a new provider is not required to comply with the termination and severance provisions in ESA Part XV.

Employees actively working before changeover date - s. 2(1) para. 1

This category of employees consists of those employees who actively worked for the replaced provider by providing building services at the premises prior to the changeover date but whose job duties were not performed primarily at the building premises affected by the change-over of providers during the 13-week period prior to the changeover date. This includes employees who were on lay-off, if they continued to perform job duties at the premises even though their hours and/or pay were reduced. In other words, this exemption will apply if the building premises affected by the change in providers is not the employee’s principal place of work with the replaced provider during the 13-week period prior to the changeover date.

It is important to note that the issue of whether the employee works for employers other than the replaced provider (either on a part-time or a full-time basis) is irrelevant in determining whether the employee’s job duties are performed primarily at the premises. In determining whether or not the site affected by the change in provider is the place where the employee’s job duties are primarily performed, the officer should look at the breakdown of the hours that the employee spends at each location working for the replaced provider.

It is not necessary that the majority of the hours spent working for the provider be at the premises in question in order for the "performed primarily at the premises" test to be met. What is necessary is that the premises be the main place of work with that provider in that the employee has a significant attachment to the premises in question in terms of the number of hours spent there every week (i.e., the employee spends significantly more time at that site than working at other sites for the replaced provider).

It should be noted that if the exemption applies, the employee may still be entitled to termination and severance pay from the replaced provider.

Example 1

In determining whether or not the site affected by the change is the place where the employee’s job duties were primarily performed for the replaced provider, the employment standards officer should look at the breakdown of the hours that the employee spent at each location working for that provider.

An employee who works for an office cleaning company has the following weekly schedule:

  • Building A: 24 hours
  • Building B: 10 hours
  • Building C: 10 hours

It is evident that Building A was the employee’s principal place of work with the replaced provider. The employee spent the majority (55 per cent) of their time at Building A. The exemption in O Reg 287/01, s. 2(1) paragraph 1 would therefore only apply if there were a change in contract at either Building B or Building C, as the employee did not perform their job duties primarily at those premises.

Example 2

An employee who works at a number of buildings for the same provider but does not spend the majority of their time working at any one of these buildings has the following weekly schedule:

  • Building A: 10 hours
  • Building B: 4 hours
  • Building C: 20 hours
  • Building D: 10 hours

In this case, the employee spent most of their time at Building C, but not the majority (i.e., less than 50 per cent) of their time there. However, Building C will be considered the employee’s primary place of work because the employee had a significant attachment to the site in question in terms of the number of hours spent there every week (i.e., they spent significantly more hours working there for the replaced provider than working at other sites for that provider). The exemption in O Reg 287/01, s. 2(1) paragraph 1 would therefore apply only if there were a change in contract at Building A, B or D as the employee did not perform their job duties primarily at those premises.

Example 3

Some employees may not have any premises as their principal place of work.

An employee has the following weekly schedule:

  • Building A: 10 hours
  • Building B: 8 hours
  • Building C: 10 hours
  • Building D: 6 hours
  • Building E: 10 hours

In this example, the employee does not work the majority of hours at any one building site (i.e., less than 50 per cent) and does not have any significant attachment to any one building site in particular (i.e., theydid not spend significantly more hours working at any one building for the provider than other buildings). Therefore, the exemption in O Reg 287/01, s. 2(1) paragraph 1 would apply if there were a change in contract at any of Buildings A, B, C, D or E as the employee did not perform their job duties primarily at any of those premises.

However, the exemption would not apply if, for example, Buildings A, B, and C were all part of one premises (e.g., an office complex consisting of three towers) and there was a change in contract with respect to the provision of building services at any of those three towers. In that case, the employee would be working 64 per cent of their hours at the premises and would be considered to perform their job duties primarily at the premises consisting of Buildings A, B and C.

Employees not actively at work before changeover date - s. 2(1) para. 2

This category is essentially an extension of category 1 to exempt those employees providing building services at the premises who were not actively at work with the replaced provider immediately before the changeover date, and whose job duties were not performed primarily at the site during their most recent 13 weeks of active employment.

Example
  • January 1, 2015, to March 30, 2015 - employee performed some job duties at premises A, but duties for the replaced provider were primarily performed at other premises
  • April 1, 2015, to June 1, 2015 - employee put on full lay-off (employee works 0 hours per week)
  • June 1, 2015 - changeover date for contract at Premises A (employee not hired by new provider)

The employee was not actively at work immediately before the changeover date of June 1, 2015. In addition, the employee had not been primarily providing services at premises A in their most recent 13 weeks of active employment from January 1 to March 30, 20015. As a result, the new provider is exempt under O Reg 287/01, s. 2(1) paragraph 2 from the requirement to comply with the termination and severance provisions of the Employment Standards Act, 2000 with respect to such employees.

As with category 1, if the exemption applies, the employee may still be entitled to termination and severance pay from the replaced provider.

Employees not working for at least 13 weeks - s. 2(1) para. 3

This is the third category of employees in regards to whom the new provider is exempt from the obligations set out in ESA Part XIX, s. 75(2). The exemption applies to those employees who have not worked at the premises for at least 13 weeks in the 26 weeks preceding the changeover date - the day on which the new provider begins to provide services at the premises.

One of the purposes of this category is to prevent replaced providers from transferring their less desirable and sometimes senior employees to the site in question upon learning that their contract will not be renewed. This may happen where the replaced provider is attempting to off-load responsibility for their termination and severance pay onto the new provider.

However, O Reg 287/01, s. 2(1) paragraph 3must be read with reference to ss. 2(3) and (4) which state as follows:

Section 2(3) states that in determining the employee’s services at the premises, the 26-week period in O Reg 287/01, s. 2(1) paragraph 3 shall be calculated without including any period during which the provision of building services at the premises was temporarily discontinued.

For example, where a university cafeteria service closes for the summer, the 26-week period prior to the changeover date may be extended by the number of weeks during which the cafeteria was closed.

Example 1
  • September 1, 2015 - Company A awarded contract for food services at cafeteria
  • June 1, 2016 - Cafeteria closed for 12 weeks (June 1 - September 1, 2015)
  • September 1, 2016 - Company B wins contract for food services (changeover date)

The 26-week period in O Reg 287/01, s. 2(1) paragraph 3 will begin 26 weeks prior to May 31, 2016, because it will not include the 12 weeks that the cafeteria was closed. The exemption in O Reg 287/01, s. 2(1) paragraph 3 would therefore apply to any of Company A's employees who did not work at the university cafeteria for at least 13 weeks during the 26-week period prior to May 31.

Section 2(4) states that in determining the employee’s services at the premises, the 26-week period in O Reg 287/01, s. 2(1) paragraph 301 shall be calculated without including any period during which the employee was on leave of absence under ESA Part XIV. Thus the 26-week period for such an employee may be extended by the time spent on leave.

Example 2
  • January 1, 2015 - employee commences employment with replaced provider
  • January 1, 2016 - employee commences 52-week combined pregnancy and parental leave (note that a combined pregnancy and parental leave may be longer than 52 weeks, up to a maximum entitlement of 78 weeks)
  • December 31, 2016 - employee returns to work
  • March 1, 2016 - changeover date to new provider (employee not hired)

The employee had technically worked only eight weeks in the 26 weeks prior to the changeover date. However, because the 52 weeks of leave are not included in the calculation of the 26-week period, it would be extended to 78 weeks prior to the changeover date (i.e., 18 weeks prior to the commencement of the employee’s leave under ESA Part XIV). Consequently, the exemption in O Reg 287/01, s. 2(1) paragraph 3 would apply if the employee had not worked at the premises for at least five of the 18 weeks prior to commencing her leave.

Despite the fact that ESA Part XIV, s. 53 provides that an employee who takes a leave under ESA Part XIV is entitled to be reinstated after the leave, the new provider is not the employer referred to in s. 53 if an employee was on leave as of the changeover date, unless the new provider hires that employee within 13 weeks of that date. It is the new provider’s choice whether it wishes to hire such an employee and, if so, what terms it wishes to offer. If the new provider does not hire the employee, the new provider must comply with the employee’s termination and severance entitlements under ESA Part XIX, s. 75(2)

As with the exemptions in O Reg 287/01, s. 2(1) paragraphs 1 and 2, if the exemption applies, the employee may still be entitled to termination and severance pay from the replaced provider.

Employee who refuses reasonable offer - s. 2(1) para. 4

This paragraph creates an exemption with respect to those employees of the replaced provider that refuse a reasonable offer of employment with the new provider. It must be read in conjunction with s. 2(2), discussed below.

What constitutes reasonable offer - s. 2(2)

This category consists of employees who refuse an offer of employment with the new provider that is reasonable in the circumstances. In accordance with s. 2(2), the terms and conditions of the employee’s employment with the replaced provider on the date of the request for information under ESA Part XIX, s. 77(1) are taken into consideration in determining whether the offer is reasonable. A comparison may therefore be made to such terms and conditions of the employment offered by the new provider to the remuneration, benefits, hours and schedule of work degree of responsibility, etc., with the replaced provider. See also O Reg 288/01, s. 2(1) para. 5 for a discussion of what constitutes reasonable alternate employment in the context of exemptions from the notice of termination provisions.

However, the terms and conditions of employment with the replaced provider as of the date the information is requested under ESA Part XIX, s. 77(1) are not the only circumstances to be considered in determining whether the offer is reasonable. For example, it may be appropriate to consider wage increases scheduled to take effect after the request date. On the other hand, the terms and conditions of employment of other employees of the new provider or the new provider’s ability to pay would clearly not be relevant in determining whether the offer was reasonable.

One question that may arise is whether the exemption regarding the refusal of a reasonable offer of employment applies if the new provider makes the offer some time after it begins to provide services at the premises. It is the Program’s view that the exemption will apply if a reasonable offer (having regard to the terms and conditions the employee had with the previous employer) is made within the 13 weeks after the changeover date (i.e. the day on which the new provider began servicing the premises) and is refused.

As with the exemptions in s. 2(1) paragraphs 1, 2 and 3, if the exemption in paragraph 4 applies, the employee is still entitled to termination and severance pay from the replaced provider.

26 week period - ss. 2(3), (4)

Sections 2(3) and (4) are discussed in detail above in s. 2(1).

Changeover date - s. 2(5)

The changeover date is accordingly not the date the new provider is advised that they are the successful bidder, unless the new provider also begins to provide services at the premises on that same date.

The changeover date is relevant to the exemptions in O Reg 287/01, s. 2 from a new provider’s obligations in ESA Part XIX, s. 75 to comply with the termination and severance provisions in ESA Part XV. The exemptions are discussed in further detail in s. 2(1) above.

Section 3 – Information about employees

Information request by possible new provider - s. 3(1)

The above information requirements are reasonably straightforward.

1. Job classification or job description

Job duties as well as indication of the person to whom the employee reports.

2. Wage rates actually paid to the employee

This is the employee’s "regular rate" as defined in s. 1(1) of the Employment Standards Act, 2000. The words "actually paid to the employee" are intended to prevent the replaced provider from attempting to intimidate potential bidders by inflating the amount of the potential Part XV (Termination and Severance of Employment) liability through such devices as a retroactive pay increase, which the employees did not receive prior to the information request.

3. Benefits

This information is required because Part XV (Termination and Severance of Employment) of the Act requires that the employer continue the employer’s share of the benefit plan contributions during the period of notice set out in s. 57 in accordance with s. 60(1)(c). If notice is not given, then the amount of the benefit plan contributions that would have been paid by the employer during the notice period is included in the pay in lieu of notice owing to the employee in accordance with s. 61(1)(b).

4. Hours worked in a "regular work day" and a "regular work week" as defined in s. 1(1) of the Act

See ESA Part I, s. 1 for a discussion of these terms.

As termination pay and severance pay are calculated based on the employee’s wages in a regular non-overtime work week, the information on hours worked in a "regular work day" and "regular work week" provides a potential new provider or the new provider with the necessary information to estimate the extent of the potential liability and subsequently, to determine the actual amount of the Part XV (Termination and Severance of Employment) entitlements for employees of the replaced provider. The daily hours information could also assist the new provider in determining whether contemplated offers of work would be considered reasonable (e.g., where the new provider will be establishing a different shift schedule).

Paragraph 4 of s. 3(1) of O Reg 287/01 must be read in conjunction with s. 3(3) of the regulation which states that paragraph 4 does not apply if the employee’s hours of work vary from week to week:

3(3) If the employee’s hours of work vary from week to week, paragraph 4 of subsection (1) does not apply and the owner or manager shall, instead, provide the number of the employee’s non-overtime hours for each week that the employee worked during the 13 weeks before the request date.

See the discussion of s. 3(3) below.

5. Date on which the previous provider hired the employee

This information will also assist a potential and actual new provider to determine the amount of termination and severance pay liability. (Note that this information will have to be read in conjunction with the information required under paragraph 6 regarding previous periods of employment attributed to the replaced provider.)

6. Any period of employment attributed to the replaced provider under s. 10 of the Act

This provides that information must be given concerning the periods of employment attributed to the replaced provider under s. 10 of the Act and the provisions of the former Employment Standards Act dealing with continuity of employment and building services providers. See ESA Part IV, s. 9(4) for more detailed information.

It is important to note, however, that this requirement is limited to information regarding those periods of employment attributed to the replaced provider by the s. 10 continuity of employment provisions in the Act and predecessors to that section. This provision does not require the building owner or manager to provide information regarding separate periods of employment with a replaced provider which are treated as one period of employment in accordance with s. 8 of O Reg 288/01 for the purposes of notice of termination/termination pay or information or information regarding separate periods of employment with the replaced provider which are added together for the purposes of calculating entitlements to severance pay. As a result, this information may not accurately reflect the employee’s "actual" period of employment with the replaced provider for the purposes of either notice of termination or severance obligations. In addition, the information required does not specify whether the employee falls into any of the exemptions from notice or severance set out in O Reg 288/01. Thus, to some extent, the entity bidding on the contract will have to estimate the extent of the potential termination and severance pay liability.

7. The number of weeks the employee worked at the premises with the previous provider during the 26 weeks before the "request date"

The "request date" is the date on which information is requested under s. 77(1) or (2) of the Act. This information is required so that the potential new provider may determine whether the successful new provider would be exempt from s. 75(1) of the Act by virtue of paragraph 3 of s. 2(1) of O Reg 287/01. See O Reg 287/01, s. 2 for further discussion of this exemption.

Paragraph 7 of s. 3(1) of O Reg 287/01 must be read in conjunction with ss. 3(4) and 3(5) of the regulation which state:

8. Statement regarding employees

The final piece of information required under paragraph 8 of ss. 3(1) of O Reg 287/01 is very similar to that which describes those categories of employees in respect of whom the new provider is not required to comply with Part XV of the Act. However, the information requirement in paragraph 8 of s. 3(1) concerns the work done by the employees in the 13 weeks prior to the request date whereas the exemptions in paragraphs 1 and 2 of s. 2(1) concern the work done by the employees in the 13 weeks preceding the changeover date. Therefore, the information provided under s. 3(1) may assist the bidder to identify employees in respect of whom it would have no termination and severance obligations, but it would not definitively identify those to whom the exemption would apply.

Information request by new provider - s. 3(2)

The new provider of services is consequently entitled to request additional and updated information regarding employees of the previous provider who are performing work at the premises. All information, including the information listed in paragraphs 1 to 8 of s. 3(1) which may have been provided at the time the new provider was bidding on the contract, must be accurate as of the date of the subsequent request under s. 77(2).

Paragraph 2 of s. 3(2) of O Reg 287/01 also allows the new provider to request the names, addresses and telephone numbers of the employees engaged in providing services at the premises on the date the request for information is made.

During the period from the time the new provider is awarded the contract to the "changeover date" of the contract, when the new provider begins to provide services at the building premises, the employees' names, residential addresses and telephone numbers can be used to:

  • Contact employees to make job offers; or
  • Arrange payment of termination pay and/or severance pay if applicable directly to the employees in question if they are terminated at the time of the "changeover date".

This subsection ensures that the new provider has access to the necessary information to determine the actual Part XV (Termination and Severance of Employment) entitlements for employees of the replaced provider. If an owner or manager of the premises fails to provide the required information, an employment standards officer could issue a compliance order under s. 108 and/or a notice of contravention under s. 113. There is no authority however for issuing a compensation order under s. 104 in favour of a new building services provider where the new provider suffers damages as a result of a failure on the part of the owner or manager to provide information under s. 77(2).

Non-overtime hours - s. 3(3)

Section 3(3) provides that if the employee’s hours of work vary from week to week, the owner or manager shall provide the employee’s non-overtime hours for each week worked in the 13 weeks before the "request date".

This requirement provides a potential new provider or the new provider with the necessary information to estimate the extent of the potential liability for Part XV (Termination and Severance of Employment) entitlements of replaced provider employees who do not have a regular work week, by averaging out each employee’s earnings over the 13 weeks prior to the request date.

Note that if such employees were not hired by the new provider, the new provider would subsequently be required to average the employee’s regular wages earned per week over the weeks worked in the twelve-week period prior to the changeover date in order to calculate the actual Part XV (Termination and Severance of Employment) entitlements pursuant to s. 61(1.1) and ss. 65(4) and (6) of the Act, if applicable

26-week period - s. 3(4)

Section 3(4) establishes what weeks are excluded in the 26-week period referred to in paragraph 7 of s. 3(1). For a further discussion of paragraph 7, see subsection (1) above.

26-week period - s. 3(5)

Section 3(5) establishes what weeks are excluded in the 26-week period referred to in paragraph 7 of s. 3(1). For a further discussion of paragraph 7, see subsection (1) above.

Request date - s. 3(6)

The information required to be given by the building owner or manager is set out in s. 3(1) and s. 3(3) to s. 3(5) of O Reg 287/01.