Ontario’s labour ministry has been warned that holes in provincial labour law leave young workers particularly vulnerable, the Star has learned.

Unpaid interns aren’t protected by health and safety laws. Apprentices may not be fully protected by the Employment Standards Act. And many unpaid “internships” could be illegal.

According to a confidential internal ministerial briefing note obtained by the Star, the Occupational Health and Safety Act — the “cornerstone legislation” for workplace health and safety — may not apply to workers if they don’t get a paycheque.

That especially affects those who are part of the growing phenomenon of unpaid interns.

“The Occupational Health and Safety Act (OHSA) defines ‘worker’ as a person who performs work or supplies services for monetary compensation. This definition would exclude unpaid interns (students, trainees, volunteers) from OHSA coverage,” states the briefing to the minister’s office dated March 27, 2013.

“Although the rights conferred upon workers by the OHSA do not apply to unpaid interns, these individuals would still have the benefit of a safe workplace where the employer complies with its duties under the OHSA.”

That aspect of the law is now being reconsidered, said Labour Minister Yasir Naqvi. No specific timeline was available for the policy review.

“We are currently looking at bringing co-op students under the Occupational Health and Safety Act to ensure they have all the same rights and protections as all other workers,” he said.

Interns, trainees and co-op students are referred to interchangeably by the ministry, but those terms generally refer to people who do work for free as part of a college or university program. Unpaid interns are legal in Ontario through certain exemptions in the Employment Standards Act, which sets out the minimum wage, vacation pay and hours of work, among other protections.

The exemption allowing students to work without pay is not being reconsidered because students receive a course credit instead of money, Naqvi said.

Naqvi said he had not seen the memo, which was prepared for the Ministry of Labour and included internal records relating to unpaid interns from July 1, 2012 to June 30, 2013.

Many students have reported doing menial labour as part of their college internship, and critics have called on the government to close the loophole.

Ontario Federation of Labour president Sid Ryan said he was “floored” to learn some people are not covered by provincial workplace safety laws.

“When you talk about an intern or a young worker coming into the workplace, and they are not covered by the Occupational Health and Safety Act, it means the employer doesn’t even have to tell them they have the right to refuse unsafe work. That’s a huge flaw in the system,” Ryan said.

In a surprising development, the internal briefing, obtained through a Freedom of Information request, also suggests it is possible that apprentices might not be covered by the Employment Standards Act if their apprenticeship is part of a college or university program.

“Work performed under an apprenticeship program may be covered by this exemption, since such programs can form part of a program approved by a college or university,” the memo states.

That interpretation is a radical one, said Toronto labour lawyer Andrew Langille. It could also contravene the Ontario College of Trades and Apprenticeship Act, which sets out wages for apprentices, as well as an Ontario Labour Relations Board ruling that apprentices are employees.

“If the (ministry) thinks apprentices might not be covered under the Employment Standards Act, that could influence enforcement decisions at the operational level and leave apprentices without critical protections.”

Naqvi said he was not aware of this interpretation and he believes apprentices are currently protected by labour laws.

Apprentices typically start at $15 to $20 per hour and move up the pay grid as they gain experience, said Pat Blackwood, director of skilled trades for the Unifor (former Canadian Auto Workers union).



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Apprenticeships can last as many as 9,000 hours for a construction-electrician or pipefitter, he said, adding that industry and unions would not allow unpaid apprenticeships.

“Never going to happen,” he said. “I’ve been looking after trades for 41 years and my apprentices have always been covered by the Employment Standards Act. No ifs, ands or buts about it.”

The ministerial briefing was prompted by several media stories last spring, including those published by the Star about a city councillor looking for an unpaid intern , and about the now pervasive use of unpaid interns in the job market.

Statistics Canada does not keep data on unpaid interns, and neither does the Ministry of Labour, but complaints have been filed at the provincial and federal level. The ministry document noted that many unpaid internships breach the Employment Standards Act.

There has been a growing interest in the topic of unpaid internships, and “it appears that many internship opportunities, as advertised in job postings, are not in compliance with the (Employment Standards Act),” it states.

Some unpaid internships are permitted outside the academic environment under a set of six criteria set out in the law, all of which must be met to be considered legal. That includes, crucially, that the internship is for the benefit of the trainee, and that the employer must derive little if any benefit from the labour. Critics have often complained this is rarely the case.

Announcing the Ontario government’s new program to subsidize wages to encourage companies to hire young people, Premier Kathleen Wynne said some unpaid internships should be allowed, but not if they lack educational merit.

“In terms of unpaid internships, those kinds of experiences — because there is an exemption — there are opportunities for some of those,” Wynne said Wednesday at Conestoga College in Cambridge, Ont.

“They are meant to be opportunities for students to get valuable experience. If that’s not happening, then that program should not be in place. But it is up to the colleges and universities to monitor the quality,” she said.

With files from Robert Benzie