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‘Patchwork’ OHS laws leave co-op students, unpaid learners vulnerable

By Mallory Hendry

In 2014, Ontario lost two unpaid workers to on-the-job accidents — a university campus security guard and a co-op student at a recycling plant.

Part of the problem, experts say, is Ontario’s Occupational Health and Safety Act (OHSA) specifically defined workers as receiving “monetary compensation.” That meant it was unclear if the students were legally entitled to receive the same training and protections as paid employees.

But on Nov. 6, the Ontario legislature passed the Stronger Workplaces for a Stronger Economy Act, which extends coverage under the OHSA to co-op students and other unpaid learners. This will give them the same protections as paid employees, such as the right to know about workplace hazards and the right to refuse unsafe work.

Legislation on what kinds of workers are protected varies across the country, said Claire Seaborn, president of the Canadian Intern Association, who refers to it as a “patchwork.”

Andrew Langille, a Toronto-based labour lawyer, believes the gaps in the law boil down to an oversight when the legislation was drafted because common methods of experiential learning seen today were mostly unheard of at the time.

“The laws are simply not designed for the realities of the 21st century labour market in Canada,” he said. “We’re only starting to see some legislative and policy responses to the exponential growth in the last year or so.”

There has been a push — and recent tangible movement — towards more clear and inclusive language in legislation so there is less ambiguity when it comes to experiential learning on the job.  

Earlier this year, Saskatchewan made changes to its workplace laws, including health and safety, and amendments include more protections for interns and learners in the workplace. Other jurisdictions see unpaid workers fall somewhere within a range of protections, which can include capturing them under the statutory definition of “employee” or “worker” or through a broad interpretation of the legislation.

For example, in Quebec, “worker” means a person, including a student, who carries out work for an employer — with or without pay. In British Columbia, the definition of worker is broad enough that it covers unpaid workers and learners on the job. Nova Scotia’s OHS legislation puts a general duty on employers to ensure the safety of all people in the workplace, and any OHS complaints are followed up on, regardless of whether the worker is paid or not.

On Nov. 25, a private member’s bill was re-introduced in the House of Commons that would amend the definition of “employee” in the Canada Labour Code to include those receiving training, with or without remuneration, and would apply to all federally regulated industries. The bill, An Act to Amend the Canada Labour Code (Unpaid Training), was originally introduced in June, but stakeholders had said it wasn’t clear enough on protections for co-op students.

Another encouraging sign, Seaborn said, is the latest report on youth employment from the Standing Committee on Finance, where the federal government adopted a recommendation to work with the provinces to amend each jurisdiction’s relevant labour codes to ensure protections for unpaid interns.

For employers across all jurisdictions, the ambiguity of the legislation can be dangerous, said Langille. If an unpaid worker is injured or dies on the job, there’s always going to be recourse to the courts, he said. Langille suggests companies begin treating unpaid workers as future talent they are developing, and consider the programs they come from as a recruitment or onboarding tool. Ultimately, they would be simply considered new employees, said Langille.

“Which is what they would be in a country that was actively looking out for the rights of young workers.”

This article originally appeared in the December 2014/January 2015 issue of COS.

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