Bill 139, which amends how the Employment Standards Act, 2000 (“ESA”) applies to temporary employees, as well as temporary help agencies and their clients, comes into force on November 6, 2009. Please refer to our earlier Alert here for more details on the amendments. The government recently announced transitional changes to address some of the implementation issues that became apparent after Bill 139 was passed in May 2009.

1. Elect to Work Exemption Removed

Elect to work employees are no longer exempt from notice of termination, termination pay and severance pay entitlements. The government has amended Regulation 288/01 to revoke the exemptions, effective November 6, 2009.

One specific category of employees remains exempt until October 1, 2012: any elect to work employees working through Community Care Access Centres.

2. “Mass Termination” of Assignment Employees

As part of a housekeeping bill introduced on October 27, 2009, the Good Government Act (Bill 212), the government signaled its intention to clarify how the requirements in a mass termination scenario would apply to temporary help agencies. Subsection 58(1) of the ESA will not apply to temporary help agencies. Instead, the ESA will be amended to include specific mass termination provisions that apply to temporary help agencies and their employees.

Notice of mass termination would be given only where “50 or more employees of the agency who were assigned to perform work for the same client of the agency at the same establishment of that client were terminated in the same four-week period” and if the “terminations resulted from the term of assignments ending or from the assignments being ended by the agency or the client.” The notice periods may be prescribed by future regulation, but for the time being the regular mass termination notice periods will apply.

These amendments will likely reduce the number of circumstances in which a mass termination will occur in the temporary employment market. The above amendments to the ESA are not yet law, but are expected to be passed during the current legislative session.

3. Regulatory Changes

Regulation 398/09 (Terms and Conditions of Employment in Defined Industries – Temporary Help Agency Industry) will be published on November 7, 2009. It addresses transitional issues created by Bill 139, particularly with regard to when the “deemed termination”, “mass termination” and severance provisions will apply. Generally, these provisions will apply prospectively, i.e. from November 6, 2009 forward.

  • Determination of a temporary lay-off
    • To determine if an employee has been laid off longer than a temporary layoff (i.e. more than 13 weeks in a period of 20 consecutive weeks), only a period of 20 consecutive weeks that begins after November 5, 2009 will be counted.
    • If a lay-off begins on or before November 5, 2009, only the part of the lay-off that occurs after November 5, 2009 will be counted.
  • Mass Termination  
    • Only four-week periods that end before November 6, 2009 or begin after November 5, 2009 shall be taken into account.
  • Severance
    • Where a temporary employee is otherwise eligible for severance pay, only 52 week periods beginning after November 5, 2009 will be counted for the purpose of determining whether they were laid off for 35 weeks or more, and therefore, are entitled to severance pay.
    • If a lay-off begins on or before November 5, 2009, only the part of the lay-off that occurs after November 5, 2009 will be counted.
  • Length of Service
    • Despite the Regulation’s largely prospective effect, an employee’s entitlements that are based on length of service will not exclude time employed by the agency before November 6, 2009, including references in the ESA and its regulations to:
      • Period of employment;
      • Continuous employment;
      • Employment whether or not continuous and whether or not active; and
      • Years or months of employment.

The above changes, once passed, answer some of the administrative and legal questions stemming from Bill 139. We will provide a further update in the event that the government issues further legislative or policy clarifications regarding temporary assignment employees, temporary help agencies and their clients.