The Changing Workplaces Review (Trillys)
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From: Richard Laurence [mailto:[email protected]] Sent: July-21-15 1:58 PM To: CWR Special Advisors (MOL) Cc: Rosenberg, Jesse (MOH); Lesley Holmes; Richard Laurence Subject: Consultation: The Changing Workplaces Review (Trillys) Reference: Consultation: The Changing Workplaces Review (Issued: May 14, 2015) This is an email providing feedback on the ESA. In November 2013, we met with Mr. Jesse Rosenberg Policy Advisor, Office of the Minister, Ministry of Labour. The attached emails explain in detail the background and the recommendations. In summary, following are the problems and recommendations: - A 12 permanent full time employee of the company used the 2009 amendment of the ESA relating to assignment workers and temporary help agency to bypass her employment agreement and steal a contract for professional service. Although the company is not a temporary help agency, the lack of definition of “Temporary Help Agency” and “Assignment Worker” is the cause of the problem. The Act is unclear about the fact that a permanent full time employee can also be an assignment worker. - As the company was trying to resolve this problem, it realized that in practice the Ministry of Labour provided support only for employees against abusive employers. As a small company, we were seeking help from the Ministry against abusive employee and we found the Ministry totally useless in that regards (other than lips service). The only recourse for the company against this abusive employee was the legal process. In contrast, the Ministry of Labour offers other mandated recourse to support employees against abusive employers. We recommend changes to the ESA to mandate the Ministry of Labour to re-balance its services and processes to support small and medium businesses against abusive employees. Thank you for providing me an opportunity to contribute to this consultation. Richard Laurence President – Trillys Systems 613-686-1975 -------------------------------------------------------------------- 1 From: Rosenberg, Jesse (MOL) [mailto:[email protected]] Sent: December-03-13 11:59 AM To: Lesley Holmes Cc: Richard Laurence Subject: RE: Meeting with Lesley Holmes and Richard Laurence - Ottawa Lesley and Richard, Please see attached – it’s lengthy. Jesse 416 326 7713 From: Lesley Holmes [mailto:[email protected]] Sent: November-11-13 3:26 PM To: Rosenberg, Jesse (MOL) Cc: Richard Laurence Subject: Meeting with Lesley Holmes and Richard Laurence - Ottawa Jesse, I would like to thank you for coming to our premises on Friday it was very much appreciated. Below you will find minutes of Friday’s meeting and it is our wish that you assist us as best you can in our quest to resolve our current dilemma. Again, thank you, Lesley Date and time: 2013-11-08 from 10:00 AM to 11:30 AM Location: Conference Room, Trillys Systems, 1645 Russell Rd, Unit 3, Ottawa, Ontario Attendees: Jesse Rosenberg, Policy Advisor, Office of the Minister, Ministry of Labour Lesley Holmes, Manager, Trillys Systems Richard Laurence, President Trillys Systems Agenda - Introduction - Situation - Request for assistance Minutes Lesley Holmes described the situation. - A long term permanent full time employee of Trillys sought and obtained employment for Trillys clients for which she delivered professional services as a Trillys employee. In her defense, she 2 invoked article 74 of the labour act to circumvent her obligations pertaining to the “non- solicitation” clause of her employment agreement. She claims that Trillys – a software development company providing professional services – is a Temporary Help Agency. Consequently, the non-solicitation clause is invalid according to the Act. - The Ministry does not offer any conflict resolution process to Ontario employers. Consequently, the only recourse is the legal route and the courts. Trillys started a lawsuit against the ex- employee. - If Trillys is deemed by the courts to be a Temporary Help Agency, all Ontario companies offering professional services using permanent full time employees would have their business model threatened. Consequently, chaos would result and companies would be discouraged to employ full time employee. This is a perverse side effect of the ambiguity (lack of definition) in the Act. Specifically, the Act fails to clearly define what is a Temporary Help Agency and what is an Assignment Worker. This ambiguity is exploited by our ex-employee. General Discussion There was a general discussion including clarifications. Mr. Rosenberg requested clarifications as necessary and provided an insight of the parliamentary process and the background of the Act. Trillys showed evidence that the ex-employee has been employed on a full time bases for the last 12 years without ANY gaps in the employment. We discussed the problems and the risk of our court proceedings. We described our social concerns and the “common good” objectives. We also described our immediate needs to support our court case. Requests and Action Items for Mr. Rosenberg Trillys requested the following from Mr. Rosenberg 1. An amendment to the Labour Act of Ontario to defined Temporary Help Agencies and Assignment Workers. 2. The Ministry of Labour should create a process for Employers to resolve conflicts with Employees. The Ministry Web site conflict resolution is entirely focused on Employees dealing with Employers’ abuse. We could not find anything to support Employers to deal with conflicts. 3. Trillys requests a formal audit from the Ministry of Labour and a formal written determination whether Trillys is or is not Temporary Help Agency as the intention of the Labour Act of Ontario. This determination will be used for our legal proceedings. 4. Trillys requests the name and contact information subject matter expert (s) that we can interview and use as witness in our court case (including mediation and court case). 5. The Ministry web sites refers to a Temporary Help Agency blitz that occurred prior to bill 139 and the amendment of the Labour Act in 2009. It also refers to the fact that there were 1000 Temporary Help Agencies in Ontario. We would like to have the name of the 1000 agencies, how the Ministry came to this number (what criteria were applied) and the list of Agencies that were blitz by the Ministry. This information will be part of the evidence we need for our legal proceedings. 3 6. We would like to obtain all the transcripts of the parliamentary debates or similar documents that would help us understand the intents of the 2009 Labour Act amendment pertaining to Temporary Help Agency. Lesley Holmes, LLB, MBA 613-686-1976 ATTACHMENTS – 2: 1) Bill 139, THA Debate 2) Bill 139, THA Oral Questions BILL 139 - THA DEBATE December 9, 2008 EMPLOYMENT STANDARDS AMENDMENT ACT (TEMPORARY HELP AGENCIES), 2008 / LOI DE 2008 MODIFIANT LA LOI SUR LES NORMES D’EMPLOI (AGENCES DE PLACEMENT TEMPORAIRE) Mr. Fonseca moved first reading of the following bill: Bill 139, An Act to amend the Employment Standards Act, 2000 in relation to temporary help agencies and certain other matters / Projet de loi 139, Loi modifiant la Loi de 2000 sur les normes d’emploi en ce qui concerne les agences de placement temporaire et certaines autres questions. The Speaker (Hon. Steve Peters): Is it the pleasure of the House that the motion carry? Carried. First reading agreed to. The Speaker (Hon. Steve Peters): The member for a short statement? Hon. Peter Fonseca: I’ll make a statement during ministerial statements. TEMPORARY EMPLOYMENT AGENCIES Hon. Peter Fonseca: I’m pleased to introduce legislation that would amend the Employment Standards Act to enhance protections for employees working for temporary help agencies and help create opportunities for more temp employees to move to sustainable employment. I would like to give special thanks to my parliamentary assistant, Vic Dhillon, for his hard work. A few decades ago, temporary help agencies provided workers for short-term clerical jobs. Today, agencies supply workers in a wide range of occupations, and an employee of an agency might be assigned to a single-client business for several months or even years. The nature of work may have changed, but our labour laws and regulations have lagged behind. Our intent is to ensure that Ontario’s employment legislation reflects the realities of today’s labour market in a balanced and fair way. 4 Before I outline the provisions of our proposed legislation, I’d like to inform the members of an amendment to a regulation under the Employment Standards Act. Our amended regulation has removed an exemption from public holiday pay that affected many temporary help agency employees. This will come into effect on January 2, 2009. Temp agency employees will have the same rights to public holiday entitlements as other employees in Ontario. If our proposed legislation passes, we intend to make another regulation on royal assent, this time removing the exemptions around termination and severance that affect many temp agency employees. I will now outline some of the major elements of our proposed legislation. Many people working for temp agencies face barriers to permanent employment. Our approach would remove some of the barriers they may face, allowing them to seize opportunities if they should arise. If our proposed legislation passes, temporary help agencies would be prohibited from preventing a client from hiring an agency’s assignment employee, charging the client a temporary to permanent fee after six months or more have passed since the employee was first assigned to the client; agencies would also be prohibited from charging assignment employees certain fees, including: a fee for taking permanent employment with a client, a fee for becoming an assignment employee, a fee for assistance in finding work with a client or a fee for assistance in preparing a resumé or preparing for job interviews. Since agencies are receiving fees from clients, there is no good reason for them to double-dip and also demand a fee from the employee.