Interpretation of Subsection 123(3) of Part II of the Canada Labour Code (Interns) - IPG-088
On September 14, 2015, Part II of the Canada Labour Code (Code), was amended by adding the following subsection, “123.(3) This Part applies to any person who is not an employee but who performs for an employer activities whose primary purpose is to enable the person to acquire knowledge or experience, and to the employer, as if that person were an employee of the employer.”
For brevity, these persons will hereafter be referred to as “interns”.
Similar amendments were made to the following six regulations associated with the Code:
- Canada Occupational Health and Safety Regulations
- Aviation Occupational Health and Safety Regulations
- Maritime Occupational Health and Safety Regulations
- On Board Trains Occupational Safety and Health Regulations
- Oil and Gas Occupational Safety and Health Regulations
- Policy Committee, Work Place Committee and Health and Safety Representatives Regulations
The effect of these amendments is to provide full occupational health and safety protection under the Code to interns performing activities for federally regulated employers. As a result, whenever Part II of the Code and its associated regulations refer to “employees”, it should be read and interpreted to mean “employees…and interns”.
The purpose of this IPG is to provide assistance in determining who is an intern and to clarify the protections, rights and duties that apply to interns.
2. Determining who is an intern
In order to be considered an intern, the person must perform activities for an employer where the primary purpose is to enable the person to acquire knowledge or experience. For example, a co-op student completing a work semester as part of their program would be considered an intern, since the primary purpose of the co-op student’s activities is to gain knowledge or experience. These activities do not need to be performed as part of a formal educational program and there is no minimum or maximum period of time a person must perform these activities in order to be considered an intern. Interns can be recent graduates, new immigrants and individuals pursuing a mid-career change or returning to the workforce after a period of absence.
On the other hand, a contractor, training event guest speaker, or visiting member of the public would not be considered an intern, since the primary purpose of their activities in the work place is not to acquire knowledge or experience. Individuals who give their time, energy and skills for public benefit of their own free will, without monetary compensation are also not considered interns. However, it should be noted that the employer still has some responsibilities for the health and safety of all of the individuals listed above on the basis that they are “persons granted access to the work place” under paragraphs 125.(1)(l), (w), (y) and (z.14) of the Code.
When determining if a person is an intern, it does not matter if the person is being paid to perform the activities. As long as the primary purpose of the activities is to acquire knowledge or experience, the person would be considered an intern rather than an employee. However, since Part II of the Code now provides interns all the same rights, duties and protections as employees, from an occupational health and safety perspective it is unnecessary to distinguish between who is an intern and who is an employee.
3. Rights and duties of interns
The legislative amendments extend important protections to interns. Interns have the same rights and duties as employees with respect to occupational health and safety. These include the right to refuse dangerous work and to participate on policy and work place health and safety committees. If it is a paid internship, the intern is entitled to compensation for performing functions related to the policy and work place health and safety committee as described in the Code 135.1 (11). Interns can also file complaints with the employer alleging contraventions of Part II of the Code and request information from the employer on matters related to workplace hazards or other related issues. Interns have a duty to follow prescribed health and safety procedures, to cooperate with health and safety officials, and to report to the employer any potentially hazardous circumstances and all hazardous occurrences.
4. Duties of employers
Employers have all the same duties to interns as they have to employees under Part II of the Code. Specifically, the employer must: ensure the health and safety at work of interns are protected in the work place; provide prescribed instruction; train and supervise interns; and investigate and report any hazardous occurrence involving an intern as required by the Code. Employers must also provide interns any prescribed safety materials, equipment and clothing as would be required for employees, and ensure the intern is familiar with the equipment and uses it properly. Furthermore, employers must include the number of interns in their workplaces when assessing the need for policy and work place health and safety committees and representatives and first aid attendants.
Interns (individuals who are in the work place for the primary purpose of acquiring knowledge or experience) are afforded all the same occupational health and safety rights, duties and protections under Part II of the Code as employees. As a result, all references to “employees” in Part II of the Code and associated regulations should be read and interpreted to mean “employees…and interns” as described within this IPG.
Employment and Social Development Canada – Labour Program
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