Legal protections governing the occupational safety and health and workers’ compensation of temporary employment agency workers in Canada: reflections on regulatory effectiveness

Abstract

This paper examines the effectiveness of occupational safety and health and workers’ compensation legislation in Ontario and Québec when temporary employment agencies (TEAs) are involved in the employment relationship. Relying on a comparative approach using classic legal analysis and interview data, the paper identifies specific mechanisms by which the legislation succeeds or fails to protect temporary employment agency employees. Issues of importance with regard to workers’ compensation stem in large part from the nature of the triangular employment relationship, but are also attributable to the specificities of working on-call in a variety of locations and the vulnerability of workers hired through temporary employment agencies. Accidents may be more likely to go unreported for a variety of reasons, while the cost of compensation may be lower because benefits depend solely on pre-injury earnings rather than on the impact of the injury on earning capacity. This, in turn, affects incentives for employer participation in return-to-work programmes and undermines the rationale for ‘experience rating’. The primary challenges regarding the prevention of injury and disease affecting workers placed by temporary employment agencies arise because of disorganisation associated with triangular and cascading employment relationships, which makes it difficult to ensure the adequate training of workers, the provision of appropriate safety equipment and adequate representation in joint health and safety committees. At best, temporary agencies inspect workplaces before placing workers, yet they are ill equipped to identify hazards and have little control over the work required of the worker. The use of temporary agency workers is attractive to client employers because they thus avoid the costs of compensation and the unpleasantness associated with the aggressive contesting of claims. In Ontario, prevention strategies are still required of client employers because both the client and the agency may be liable for occupational health and safety violations. This is less clear in Québec, although client employers may sometimes be held accountable through experience rating. The Ontario occupational safety and health legislative framework, as applied by the regulators and the courts, is more likely than the Québec framework to meet at least some of the occupational safety and health needs of workers employed by temporary employment agencies. However, the Québec workers’ compensation framework meets more of the workers’ compensation needs of temporary employment agency workers than that of Ontario. In both provinces, legislative reform could improve the scope and effectiveness of the legislation, and this paper includes detailed recommendations in this regard.