Important Supreme Court Ruling on Employment Status
The UK's Supreme Court has held that for a contract to be deemed a 'sham', it is not necessary to show that the parties intended to deceive. It is enough that the reality of the situation is very different from the written terms and conditions.
The case, Autoclenz Ltd v Belcher and others [2011] UKSC 41 (PDF), concerned 20 car valeters. They claimed that they were 'workers' within the meaning of the National Minimum Wage Regulations 1999 and the Working Time Regulations 1998 and so entitled to the minimum wage and statutory paid annual leave.
The valeters had each signed a written contract describing them as "a self-employed independent contractor" with an express acknowledgement that they were not an employee. They paid their own tax (and indemnified Autoclenz for any liability to tax and/or national insurance) and were required to purchase their own overalls from Autoclenz.
Continue Reading...Equal Treatment of Contractors
According to the Act of 3 December 2010 "on implementation of certain European Union regulations regarding equal treatment," the prohibition of discrimination has been extended to contractors engaged on the basis of civil contracts. An entity engaging contractors on such basis must not differentiate their situation on the basis of sex, race, ethnic origin, nationality, religion, belief, philosophy of life, disability, age or sexual orientation. Contractors who establish facts from which it may be presumed that they have been treated unequally on the basis of one of the criteria listed above may claim compensation. In such a case the employer will have to prove that there has been no breach of the principle of equal treatment. Unlike in employment relations, the catalogue of protected categories is exhaustive.
Independent Contractors Count in Determining if Joint Health and Safety Committee Required
The Ontario Court of Appeal has ruled that independent contractors must be counted when determining if an employer has met the threshold number of employees required to establish a Joint Health and Safety Committee ("JHSC") under the Ontario Occupational Health and Safety Act ("OHSA").
In Ontario (Labour) v. United Independent Operators Limited (pdf), United Independent Operators Limited ("United") was charged with failing to ensure that a JHSC was established and maintained at its workplace. United operated as a load broker and retained independent truck drivers to perform work. It argued that it was not required to establish a JHSC because its independent contractors were not "regularly employed" and section 9 of the OHSA only required an employer to establish a JHSC where 20 or more employees are "regularly employed". The Court of Appeal rejected this argument and found that independent contractors are "regularly employed". The Court noted that making a distinction between traditional and non-traditional employment relationships would deprive workers in non-traditional relationships of the protections afforded by a JHSC and would be contrary to the purposes of the OHSA.
Does a Lack of Professional Knowledge Exclude the Possibility for a Worker to Have a Self-Employed Status?
The Employment Relations Act of 27 December 2006 establishes four criteria for assessing whether an employment relation is to be qualified as subordinate employment or independent self-employment. These criteria are:
- the will of the parties as expressed in their agreement;
- the freedom in the organization of working time;
- the freedom in the organization of work;
- the opportunity to exercise hierarchical control.
In its judgment of 6 December 2010, the Supreme Court made for the very first time a comprehensive interpretation of the 'freedom in the organization of work' criterion.
Continue Reading...Federal Government Changes Temporary Foreign Workers Program
The federal government has announced changes to the Temporary Foreign Workers Program to enhance the protection of temporary foreign workers. The program, which allows employers to hire foreign workers to deal with temporary labour shortages, will be changed to:
- Require the government to conduct a more rigorous assessment of job offers;
- Impose a two year hiring prohibition on employers who fail to meet the wage, working conditions, and occupation commitments they make to workers; and
- Limit the length of a temporary foreign worker's employment to four years, after which he or she will be required to return home and re-qualify.
The changes, which do not apply to temporary foreign workers hired under NAFTA or other treaties, will take effect on April 1, 2011.
Restrictions on Temporary Work Discontinued
As of 24 January 2010 employers who conducted collective redundancies will not be restricted in the use of temporary work. However, it is still not allowed to use temporary work in the positions from which employees were dismissed for economic reasons. Also the company will be able to use a temporary worker for up to 18 months instead of 12 months.
Ontario Court of Appeal Clarifies "Dependent Contractor" Status
In McKee v. Reid's Heritage Homes Ltd., the Ontario Court of Appeal confirmed that the law recognizes "dependent contractor" as an intermediate status between employee and independent contractor and that dependent contractors are entitled to reasonable notice of termination.
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