In the intricate and ever-changing landscape of the working world, temporary agency workers in Ontario have long been a point of contention and confusion. The question of their true employment status was fraught with legal ambiguity until the Ontario Employment Standards Act, 2000 received amendments in 2009. These and later amendments to the Act aimed to clarify the identity of the employer of temporary agency workers; however, the reality remains complex. In this article, we will explore the relationship between temporary help agencies in Ontario, their clients and the workers they provide, while shedding light on the rights and obligations of each party involved.
Temporary agencies in Ontario have long been under scrutiny due to concerns and criticisms regarding potential abuse of temporary workers. Media outlets have reported challenging working conditions, such as long hours, intense supervision and demanding tasks. The reliance on temporary help agency workers in the province sparked debates about limited company liability, reduced employee rights and cost-cutting measures. Additionally, the steady growth of temporary agencies in Ontario, particularly in the Toronto area, provoked concerns about the potential shift of corporate responsibility to third-party employment providers.
At the heart of this quandary lies the employer-employee relationship between temporary help agencies and their workers. In accordance with the amended Employment Standards Act, temporary workers are considered employees of the agency that supplies them, rather than the business to which they are assigned. Ontario law stipulates that when a person and a temporary help agency agree (either in writing or orally) that the agency will assign or attempt to assign the person to perform work on a temporary basis for its clients, the agency becomes the employer and the worker becomes its employee. This relationship remains intact regardless of whether the worker is on assignment or not, and only ends if the agency terminates the employment relationship or if the worker resigns.
Temporary workers are entitled to the same rights as regular employees, including termination pay, public holiday pay, overtime pay and hours of work protection. Furthermore, the temporary help agency is required to provide the worker with a copy of an Ontario Ministry of Labour publication outlining the rights and obligations of assignment employees, temporary help agencies and their clients. To ensure compliance with these obligations, temporary help agencies must maintain additional records, including the number of hours worked by each assignment employee for each client, for a period of three years after the relevant day or week.
“Temporary workers are entitled to the same rights as regular employees, including termination pay, public holiday pay, overtime pay and hours of work protection.”
Agencies are also responsible for disclosing specific information to the assigned worker, such as the client’s legal name, contact information, hourly wage rate or commission, benefits (if applicable), hours of work, general work description, estimated assignment duration, and pay period and payday established for the assignment. In addition, it is important to note that there are rules in place governing the relationship between temporary help agencies and their workers. These rules explicitly prohibit agencies from charging fees related to the worker’s employment or assignment to clients. Furthermore, agencies are also prohibited from charging the temporary help for assistance with resume preparation and job interview training.
Additionally, temporary help agencies are forbidden from restricting clients from entering into an employment relationship with a temporary worker, providing references for the worker, or charging the client a fee in connection with the worker’s employment with the client. Special rules may apply to the calculation of termination pay and severance pay for temporary help agencies, as outlined in the Terms and Conditions of Employment in Defined Industries – Temporary Help Agency Industry.
Later amendments to the Act sought to improve worker rights further. Bill 148, Fair Workplaces, Better Jobs Act, passed on November 22, 2017, made numerous amendments to the Employment Standards Act (as well as the Labour Relations Act and Occupational Health and Safety Act), including significant increases to the minimum wage, paid emergency leave, minimum notice requirements, a range of new scheduling requirements and a prohibition on misclassification of employees. While criticized as over-broad by many employers, the legislation marked a significant step toward addressing some of the concerns surrounding temporary agency labour in Ontario. Not surprisingly, a year later the Ontario government introduced Bill 47, the “Making Ontario Open for Business Act,” which repealed a lot of the Bill 148 workplace reforms. Therefore, it remains questionable whether Ontario law provides sufficient protection for temporary agency workers.
In conclusion, the amendments over the years to the Employment Standards Act, 2000 have sought to provide clarity and protection for temporary agency workers, but their employment status remains a nuanced and multifaceted issue. The relationship between temporary help agencies, their clients and workers involves a delicate balance of rights and obligations. As the working world continues to evolve, it is essential for all parties to be aware of their respective roles and responsibilities, as well as any updates to the legislation governing this intricate landscape. Consultation with an employment lawyer may provide valuable guidance in navigating these complexities.
