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3rd Session, 40th Legislature

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Bill 50

THE PROTECTION FOR TEMPORARY HELP WORKERS ACT (WORKER RECRUITMENT AND PROTECTION ACT AND EMPLOYMENT STANDARDS CODE AMENDED)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

THE WORKER RECRUITMENT AND PROTECTION ACT

C.C.S.M. c. W197 amended

1           The Worker Recruitment and Protection Act is amended by this Part.

2           Section 1 is amended by adding the following definitions:

"client" means, in relation to a temporary help agency, a person who enters into an arrangement with the agency under which the agency agrees to assign or attempt to assign one or more of its temporary help employees to perform temporary work for the person. (« client »)

"temporary help agency" means an employer who employs one or more individuals for the purpose of assigning them to perform temporary work for clients of the employer. (« agence de placement temporaire »)

"temporary help employee" means an individual employed by a temporary help agency for the purpose of being assigned to perform temporary work for a client of the agency. (« employé temporaire » ou « employé »)

3(1)        The following is added after subsection 2(1):

Temporary help agency must be licensed

2(1.1)      No person shall act as a temporary help agency unless the person holds a licence under this Act that authorizes the person to do so.

3(2)        The following is added after clause 2(5)(c):

(c.1) an individual authorized to recruit a foreign worker under section 13.1, in respect of the individual recruiting a foreign worker on behalf of the employer who was issued the authorization;

4           The following is added after subsection 3(2):

Licence application: temporary help agency

3(3)        A person may apply, in a form approved by the director, for a licence authorizing the person to act as a temporary help agency.

5           The following is added after section 13 and before the centred heading that follows it:

Director may grant authorization

13.1(1)     The director may, by written authorization, authorize an employer to engage an individual in foreign worker recruitment on the employer's behalf, even though the individual does not hold a licence to do so, if the director is satisfied that

(a) the employer has applied to be registered to recruit a foreign worker and, except for the proposed use of the unlicensed individual to do the recruiting, the employer is qualified to be registered; and

(b) the wages to be paid by the employer in respect of the position to be filled by a foreign worker will be at least two times the Manitoba industrial average wage, as prescribed by regulation under The Employment Standards Code.

Effect of authorization

13.1(2)     Despite any other provision of this Act, an authorization issued to an employer under this section

(a) entitles the employer to be registered to recruit a foreign worker; and

(b) authorizes the employer to use the individual named in the authorization to recruit a foreign worker on the employer's behalf, despite the individual not being licensed to do so under this Act.

6           The following is added after section 15:

Prohibition re actions of temporary help agency

15.1(1)     A temporary help agency must not

(a) charge an individual a fee in connection with the individual becoming a temporary help employee of the agency;

(b) charge a temporary help employee a fee in connection with assigning or attempting to assign the employee to perform work for a client or potential client;

(c) charge a temporary help employee a fee in connection with the employee entering into an employment relationship with a client; or

(d) charge a temporary help employee a fee or impose a restriction on a temporary help employee that is prescribed in the regulations as being prohibited from being charged or imposed.

No restricting actions of clients

15.1(2)     A temporary help agency must not

(a) restrict any of its temporary help employees from becoming an employee of a client;

(b) restrict a client from employing any of its temporary help employees;

(c) restrict a client from providing a reference in respect of any of its temporary help employees;

(d) subject to the regulations, charge a client a fee as a result of one or more of its temporary help employees becoming employees of the client; or

(e) charge a fee to or impose a restriction on its client that is prescribed in the regulations as being prohibited from being charged or imposed.

Client may recover prohibited fees

15.1(3)     A client who pays a fee to a temporary help agency may recover the amount of the fee in a court of competent jurisdiction if the fee is prohibited from being charged under this section or the regulations.

Inconsistent provisions of agreements void

15.1(4)     A provision in an agreement between a temporary help agency and a temporary help employee or a client of the agency that is inconsistent with this section is void.

Application

15.1(5)     This section applies to any agreement between a temporary help agency and a client or temporary help employee of the agency, regardless of whether the agreement was entered into before or after October 1, 2014.

Expanded meaning of "temporary help employee"

15.1(6)     In this section, "temporary help employee" includes a prospective temporary help employee.

7           Section 18 is replaced with the following:

Duty to maintain records

18(1)       A licensee and an individual authorized to recruit a foreign worker under section 13.1 must

(a) in respect of the operations of the licensee or individual in Manitoba, prepare complete and accurate financial records, and maintain them for at least three years after the records are made; and

(b) prepare other records and documents described in the regulations, and maintain them for the period specified in the regulations.

Records available in Manitoba

18(2)       The following must make the records referred to in subsection (1) available for inspection by an officer at a time and place, in Manitoba, specified by the officer:

(a) a licensee;

(b) a former licensee or a person whose licence has been cancelled or suspended;

(c) an individual authorized to recruit a foreign worker under section 13.1.

8           Clause 20(1)(a) is replaced with the following:

(a) a licensee or an individual authorized to recruit a foreign worker under section 13.1 has collected a fee prohibited by section 15 or subsection 15.1(1); or

9           The following is added after clause 28(1)(a):

(a.1) contravenes a provision of a regulation made under clause 29(e.1) or (e.2);

10          Section 29 is amended

(a) by adding the following after clause (e):

(e.1) prohibiting fees or restrictions that a temporary help agency may charge to or impose on a temporary help employee or prospective temporary help employee;

(e.2) for the purpose of subsection 15.1(2), regulating or prohibiting

(i) fees that a temporary help agency may charge a client, including prescribing the maximum amount that may be charged in respect of one of its employees becoming employed by a client or the manner in which the maximum is to be calculated, and

(ii) restrictions that a temporary help agency may impose on a client;

(b) in clause (m), by adding "and individuals authorized to recruit foreign workers under section 13.1" after "licensees".

PART 2

THE EMPLOYMENT STANDARDS CODE

C.C.S.M. c. E110 amended

11          The Employment Standards Code is amended by this Part.

12          Subsection 1(1) is amended by adding the following definitions:

"client" means, in relation to a temporary help agency, a person who enters into an arrangement with the agency under which the agency agrees to assign or attempt to assign one or more of its temporary help employees to perform temporary work for the person; (« client »)

"temporary help agency" means an employer who employs one or more individuals for the purpose of assigning them to perform temporary work for clients of the employer; (« agence de placement temporaire »)

"temporary help employee" means an employee employed by a temporary help agency for the purpose of being assigned to perform temporary work for a client of the agency; (« employé temporaire » ou « employé »)

13          The following is added after section 5 as part of Part 1:

Interpretation: employment relationship between temporary help agency and temporary help employee

5.1(1)      If a temporary help agency and an individual agree that the agency will assign or attempt to assign the individual to perform temporary work for clients or potential clients of the agency, then under this Code,

(a) the individual is a temporary help employee of the temporary help agency; and

(b) the temporary help agency is the individual's employer.

Employment relationship continues

5.1(2)      A temporary help employee does not cease to be employed by a temporary help agency because he or she is assigned, or is not assigned, by the agency to perform temporary work for a client.

14          The following is added after subsection 62(1):

Application: temporary help employees

62(1.1)     Subject to the regulations, a temporary help employee is not subject to the exception described in clause (1)(e).

15          Clause 144(1)(o.3) is amended by striking out "and" at the end of subclause (iii), adding "and" at the end of subclause (iv) and adding the following after subclause (iv):

(v) for the purpose of subsection 62(1.1), prescribing temporary employees who are subject to the exception described in clause 62(1)(e);

PART 3

COMING INTO FORCE

Coming into force

16           This Act comes into force on October 1, 2014.

Explanatory Note

Part 1 of the Bill amends The Worker Recruitment and Protection Act to require temporary help agencies to be licensed. A temporary help agency is prohibited from charging its temporary employees fees for services that the agency provides and from taking actions that will restrict its employees from becoming employed by others.

The director is also given the ability to authorize an unlicensed individual to recruit a foreign worker on an employer's behalf, if the position to be filled pays at least double the Manitoba industrial average wage.

Part 2 of the Bill amends The Employment Standards Code to entitle a temporary help employee to notice of termination or wages in lieu of notice.