Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2014 News | May 2014 | CSR Unpaid interns often left out of safety legislation Ontario looking to broaden protections BY ZACHARY PEDERSEN ONTARIO'S MINISTER of La- bour introduced a bill late last year intended to broaden the definition of "worker" under the province's occupational health and safety legislation so unpaid interns could have the same health and safety protections as fully employed workers. Setting aside the legalities of unpaid work in the province, current legislation does not clearly include unpaid interns in basic health and safety laws, and co-op students and apprentices may not always be protected by the Employment Standards Act. "In Ontario, under the Occu- pational Health and Safety Act, 'worker' is defined as a person who performs work or supplies services for monetary compen- sation," says Claire Seaborn, an Ottawa-based law student and founder of the Canadian Intern Association. "Based on that def- inition, essentially any student or unpaid intern wouldn't fall within it and that's why they're excluded." If passed, Bill 146, the Stron- ger Workplaces for a Stronger Economy Act, 2013, would re- define worker to include pre- carious workers, such as unpaid interns. In Manitoba and Nova Scotia, interns are also left out of occu- pational health and safety legis- lation altogether, says Seaborn. "The problem is when these pieces of legislation were writ- ten, nobody had thought about this unpaid worker concept… as a result, we have all of these definitions of worker that just haven't considered this new type of worker that's developed," she says. "Essentially, all of these pieces of legislation need to keep up with the times and adapt to the fact that we have a whole new category of worker that has been created in Canada." Legislation in Alberta, New Brunswick, Newfoundland and Labrador and Prince Edward Island protects interns that are part of an academic program, but not unpaid interns outside of a school program. In British Columbia, the law states property owners are re- quired to maintain "premises that are being used as a work- place in a manner that ensures the health and safety of persons at or near the workplace." "So, an unpaid intern may not be a worker, but they're a person," says Lorna Pawluk, a lawyer at Vancouver-based law firm Bernard Barristers and So- licitors. "As an owner, you have obligations to everybody under this act." British Columbia's definition of a worker is also broader than most provinces, which may pro- vide more protection, says Sea- born. "The definition of worker is… anyone who becomes subject to the hazard of an industry, so it's a lot easier to say interns would fall within that definition," she says. Unpaid interns in vocational programs are covered by B.C.'s workers' compensation legisla- tion. "If WorkSafeBC determines that an individual is not a learn- er (someone who is doing work during a probationary period or undergoing training), not par- ticipating in a practicum with a post-secondary institute that has obtained voluntary coverage under the Workers Compensa- tion Act, we would consider that individual to be an intern who would not be eligible for com- pensation benefits (health care, vocational rehabilitation and wage loss)," according to Me- gan Johnston, communications officer with WorkSafeBC, the province's workers' compensa- tion board. Legislation in Saskatchewan is similar to that in B.C., offer- ing anyone who is subject to the hazards of an industry pro- tection under provincial safety laws, Seaborn says. Quebec Quebec is the only province that explic- itly states workers include apprentices, students and volun- teers. "It doesn't specifi- cally say 'unpaid in- terns' but the defini- tion is just so much clearer," says Seaborn. "Students without re- muneration fall under it, volunteer workers and people who can be deemed workers. So, Quebec has the clearest defi- nition, I would say, out of any- one." Seaborn recommends oth- er provinces follow Quebec in amending legislation to be clearer and more inclusive. "Similar to Quebec, other provinces should include a broader definition of worker and a definition of worker that includes unpaid work and stu- dent work," she says. Unpaid interns often misclassified employees There are an estimated 100,000 to 300,000 internship positions available across Canada in near- ly every sector, according to An- drew Langille, a Toronto lawyer who focuses on youth and work- place law. There are very few instances when those interns can go un- paid, he says. "Most provinces have a pro- hibition on unpaid labour and they don't have any exclusions to it — for the most part — and most that do have professional exclusions are student exclu- sions," he says, using Ontario as an example. "So, you really can't have a legal unpaid internship in most provinces." Interns that are not being paid are likely illegal and if an accident should occur, a court might deem that individual as an employee. This is commonly referred to as employee misclas- sification. "In many cases, where some- body has been misclassified as an unpaid intern, they're an employee in actuality and have protections under occupational health and safety laws," Lang- ille says, adding oftentimes lan- guage used in OHS legislation is written to be inferred. "The other thing you have to realize is that occupational health and safety laws are so- cially protected legislation and they're designed to be broadly and liberally interpreted," he says. "So, the courts are sup- posed to look for ways to protect people rather than not protect people — that would be one thing that I've discovered." Yet, Langille still believes change needs to happen be- cause interns should have the explicit right to refuse poten- tially dangerous work. "The interesting thing is that students currently aren't cov- ered under the Occupational Health and Safety Act, but if they're in a mandatory work- training program as part of a college or university program, they're entitled to WSIB cov- erage," he says. "So, they don't have any Occupational Health and Safety Act protections — which would ostensibly protect them from injury — but if they do get injured, they get benefits." Credit: auremar/Shutterstock.com

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