Recently, Canadian media have been examining the experiences of people, often students or those at the very outset of their working careers, who work in unpaid positions as interns. It may come as no surprise but an unpaid position cannot be created simply by designating someone or a position as an intern. Nor can it be created by agreement.
Indeed, in Ontario, unpaid work is intended to be an exception rather than a common circumstance. This is because the Employment Standards Act, 2000 (ESA), which applies to and sets minimum standards for all provincially-regulated workplaces in Ontario (the vast majority of workplaces in the province), prohibits the parties from contracting out of its provisions. An agreement that does not comply with the minimum standards established by the ESA is invalid – regardless of how freely the agreement was made – unless the deviation from the minimum standard provides a greater right or benefit to the employee.
What is unpaid work?
The ESA sets out specific criteria that must be met before someone can work without being paid. It is common knowledge that the ESA requires an employer to pay its employees at least the minimum wage. However, the ESA exempts certain positions from this minimum requirement. Included in these exemptions is a person who is receiving training – which could include an intern. Such people do not have to be paid the minimum wage. That said, the ESA provides a rigid set of criteria that must be met before this trainee exemption will apply. Under the ESA, the exemption will apply only if all of the following criteria are met:
1. The training is similar to that which is given in a vocational school;
2. The training is for the benefit of the individual;
3. The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained;
4. The individual does not displace employees of the person providing the training;
5. The individual is not accorded a right to become an employee of the person providing the training; and
6. The individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
In addition, the ESA does not apply to certain other individuals who may be working as interns or in job placements associated with a cooperative education program.
How does the fact that a person is providing either paid or unpaid work engage the Ontario Occupational Health and Safety Act (OHSA)?
For the purposes of the OHSA, an “employer” is one who employs or contracts for the services of one or more “workers.” In that way, the role of an employer is based on a relationship with a “worker.” The OHSA defines a “worker” as “a person who performs work or supplies services for monetary compensation.” As such, the OHSA will apply to all circumstances in which a person is performing work for monetary compensation regardless of the position the person holds with the employer.
The corollary is that if someone is working in an unpaid position, such as an unpaid internship, that person is not a “worker” and the party they work for is not an “employer” for the purposes of the OHSA. On this basis, one might quickly conclude that the OHSA does not apply to an unpaid intern. That conclusion is not entirely misplaced as there is judicial support for that approach to the application of the OHSA.
One decision that clearly illustrates the near bright-line approach taken by the courts is the decision in R. v. Frank Wilson Grandview Services Ltd. that was rendered by the Ontario Court of Justice in July, 2000. In that case, the Company operated a service station in Picton, Ont., and had arranged to have a new garage constructed. The service station would be closed during the construction of the new garage and it was decided that a party should be held, after work, on the last day the service centre was open before construction began.
It was decided that, as part of the party, employees would be permitted to use a sledgehammer to bash parts of the old garage. During the party one employee struck an interior wall with the sledgehammer causing the wall to collapse and injure him. The incident resulted in the Company being charged under the OHSA. At trial, the Company established that attendance at the party was voluntary and that no one at the party was being paid. Consequently, the court held that none of the employees at the party were “workers” at the time of the incident and the Company was acquitted.
A similarly restrictive approach was taken in a civil case that began after the plaintiff was injured while performing unpaid work. The Ontario Court of Appeal did not disturb the finding of a trial court that the plaintiff was not a worker under the OHSA at the time that he had volunteered to assist his brother-in-law to paint an automotive showroom. The plaintiff, who was injured after falling from a scaffold, received a $100 gratuity after the accident but, prior to the accident, had no agreement to be paid and was found not do have done the work for monetary compensation (Hillis v. Boyko Rentals Ltd. (1988), 5 C.O.H.S.C. 48 (Ont. H.C.J.); affirmed 5 C.O.H.S.C. 64).
Is it a workplace?
Though these cases suggest that the OHSA will not apply directly to people performing unpaid work, if the unpaid work is being performed in a “workplace,” as defined by the OHSA, liability may still arise — though it may be indirect.
“Workplace” is defined in the OHSA. Like the definition of employer, the definition of “workplace” references a “worker.” Specifically, “workplace” is defined as “any land, premises, location or thing at, upon in or near which a worker works” and there are cases in which OHSA liability has attached to incidents or contraventions that relate to unpaid work. A recent example of that is the tragic case involving the Ottawa Catholic District School Board.
In that case, a high-school student was killed by an explosion that occurred while the student was using a hand grinder to cut a steel barrel as part of a class project to make a barbeque. Flammable vapours had accumulated inside the barrel and the explosion occurred when the vapours were ignited by a spark from the grinder. The Board was charged under the OHSA and, in August 2012, pleaded guilty to a charge, under paragraph 25(2)(a) of the OHSA, for failing to provide information, instruction and supervision to the teacher concerning safe work practices and recognition of the hazards associated with the class project. In the circumstances of this case, the teacher was a worker, meaning the school was a workplace as defined by the OHSA. A $275,000 fine was imposed.
As such, unpaid interns may be indirectly protected under the OHSA where their unpaid work is performed near or with paid workers. In addition to the indirect protection provided by the OHSA, there are other means by which the health and safety of a person performing unpaid work may be protected. The Workplace Safety and Insurance Act (WSIA) may or may not apply to the unpaid work.
If the WSIA applies to the work, then there may be an incentive to protect the health and safety of the intern because an injury to the intern could affect the experience rating of the principal or party who has placed the intern – depending on who has provided WSIA coverage to the intern. Alternatively, if the WSIA does not apply to the intern, the motivation to protect the health and safety of the intern may be driven by the desire to avoid a civil claim by the intern or their family which, if the WSIA does not apply, would not be statute barred.
Jeremy Warning practices occupational health and safety law in the Toronto office of Heenan Blaikie LLP.