Building services providers
As well as the continuity of employment provisions already discussed, additional provisions of the Employment Standards Act, 2000 (ESA) apply only to employers and employees in the building services provider sector.
A building services provider is a person or company that provides cleaning, security, or food services for a premise. A provider can also offer property management, parking garage, parking lot and concession stand services related only to a building, its occupants and visitors.
The owner or manager of a building is considered a building services provider if that owner or manager provides these services to the building that they own or manage.
Termination and severance of employment
If a building services provider is replaced by a new provider, the new provider may choose not to hire the employees of the former provider. However, the new provider must then, in most cases, comply with the Termination and Severance of Employment sections (Part XV) of the ESA as if these employees had been terminated and/or severed by the new provider.
Jan has worked for ABC Foods for 10 years as a cook in a cafeteria. The company has a contract to provide food services in an office building. When the contract expires, ABC ends their employment relationship with Jan. DEF Foods is contracted to provide the food services, but because DEF Foods has its own staff it does not hire Jan.
DEF Foods is responsible for paying Jan’s termination pay and her severance pay (if applicable), even though she was never employed by DEF Foods. Jan is entitled to eight weeks' pay in lieu of notice and, if she is entitled to severance pay, 10 weeks of severance pay. These payments are based on the length of time she was employed with ABC Foods.
A new building services provider does not have to provide termination or severance pay to an employee:
- who continues to be employed by the previous provider;
- whose work with the previous provider included providing services at the premises but who did not perform his or her job primarily at those premises during the 13 weeks before the date the new provider began to provide services;
- whose work included providing services at the premises but who:
- was not actively at work immediately before the date the new provider began to provide services; and
- did not perform his or her job primarily at the premises during the most recent 13 weeks he or she was actively employed;
- who did not perform his or her job at the premises for at least 13 weeks during the 26-week period before the new provider began to provide services (this does not include any time the employee was on pregnancy, parental, personal emergency, family caregiver, family medical, critical illness, organ donor, reservist, or crime-related child death or disappearance leave, or time the building services were temporarily not being provided);
- who refuses an offer of employment with the new provider that is reasonable in the circumstances.
If exemptions 2, 3, 4 or 5 apply, the employee is still entitled to termination and/or severance pay from the previous provider.
When a building services provider is considering seeking a contract to become the new provider of services at a building, it can ask the building’s owner or manager for certain information about the employees who are working at the building for the current services provider. This information can help the potential new provider decide whether, and on what terms, to make a bid to take over the provision of the services, and the number of employees, if any, it will retain if it wins the contract.
A potential new provider can ask for information on:
- each employee’s job classification or job description;
- the wage rate actually paid to each employee;
- a description of any benefits provided to each employee, including the cost of each benefit and the benefit period to which the cost relates;
- the number of hours each employee works in a regular work day and in a regular work week or, if the employee’s hours of work vary from week to week, the number of non-overtime hours for each week worked by the employee during the 13 weeks prior to the date the request for information was made;
- the date each employee was hired by the provider;
- any period of employment attributed to the current provider because of the continuity of employment provisions of the ESA;
- the number of weeks each employee worked at the premises in the 26 weeks before the request for information was made. (The 26 weeks would not include any period during which the provision of services was temporarily discontinued or during which the employee was on a pregnancy, parental, family medical, family caregiver, critical illness, crime-related child death or disappearance, personal emergency, or reservist leave);
- a statement indicating whether either of the following paragraphs applies to each employee:
- the employee’s work, before the date of the request date, included providing services at the premises, but the employee did not perform his or her job primarily at those premises during the 13 weeks before the request was made;
- the employee’s work included providing services at the premises, but the employee was not actively at work immediately before the date the request was made, and the employee did not perform his or her job primarily at the premises during the most recent 13 weeks of active employment.
If a company becomes the new provider of the services at a building, it has the right to ask for the name, residential address, and telephone number of each employee.
If a building owner or manager receives a request for information from a new or potential new services provider, it has the right to get the necessary information from the current or former services provider.
Anyone who receives information about employees under this provision must use it only for the purposes of complying with the building services providers provisions of the ESA and determining their obligations or potential obligations under those provisions and shall not disclose the information except as required by those provisions.