Question Period Note: IMPLEMENTATION OF CHANGES TO THE CANADA LABOUR CODE CONCERNING INTERNS

Implementation of recent changes to the Canada Labour Code through the Budget Implementation Act, 2017, No. 2 (Bill C-63), to limit unpaid internships.

• Internships are one of the important ways that young Canadians can develop the skills and practical, hands-on experience they need to transition to employment and find good quality jobs.

• To ensure interns have appropriate protections when they are in the workplace, the Government introduced amendments to Part III of the Canada Labour Code. These changes, and the accompanying Standards for Work-Integrated Learning Activities Regulations, came into force on September 1, 2020.

• As a result, unpaid internships are now prohibited in federally regulated workplaces unless the internship is part of a formal educational program.

• Although students who undertake an internship as part of an educational program can do so without pay, they are nevertheless covered by certain labour standard protections such as maximum hours of work, weekly days of rest, medical leave and general holidays. All occupational health and safety rules, including measures to prevent violence and harassment in the workplace, also apply to them.

• Interns whose internship is not tied to an educational program are entitled to the same labour standards protections as employees, including the right to be paid at least the minimum wage.

• Internships are short-term, workplace-based learning experiences. They can play an important role in complementing classroom training with real world learning, facilitating transition to paid employment and helping deepen the pool of talent that employers rely upon.

• Internships can raise concerns about the potential for abuse and exploitation, especially when they are unpaid:
 interns may be expected to work excessive hours or perform dangerous work that could lead to illness, injury or death, and they may encounter sexual or other forms of harassment; and
 unpaid interns may be doing work for which they should be paid.

• In 2015, amendments to Part II of the Code extended to interns the same occupational health and safety protections as employees. The amendments specified that Part II of the Code applies not only to employees, but also to any person who is not an employee but who performs activities “whose primary purpose is to enable the person to acquire knowledge or experience” (i.e., interns).

• The 2017 Federal Budget announced the federal government’s commitment to limit unpaid internships in federally regulated workplaces. The Budget stated that only internships that are part of an educational program may be unpaid and that these student interns would receive labour standards such as maximum hours of work, weekly days of rest and general holidays.

• Following the Budget 2017 announcement, the Budget Implementation Act, 2017, No. 2
(Bill C-63) introduced amendments to prohibit non-educational unpaid internship. As a result of this change, unpaid internships are now only allowed if they are part of the requirements of a formal educational program.

• These amendments responded to concerns raised by student and intern groups, as well as labour organizations. They also reflected the Government’s position that interns should be paid for the work that they do and that the only justifiable exception is if an intern earns academic credit for their internship—in which case the intern can be unpaid.

• The legislative amendments to the Code were brought into force on September 1, 2020, along with new supporting regulations entitled the Standards for Work-Integrated Learning Activities Regulations.

Supporting regulations — Standards for Work-Integrated Learning Activities Regulations (SWILAR)

• A serie of consultation sessions were held in September 2018 with representatives from business and labour groups representing federally regulated employers and employees, student and intern associations, educational institutions and associations, and other organizations. A total of 17 organizations participated and six written submissions were received. Labour Program officials responsible for the administration and enforcement of Part III of the Code (i.e., technical advisors and inspectors across the country) were also consulted.

• The proposed regulations were pre-published in the Canada Gazette, Part I on June 8, 2019, giving stakeholders and the general public until July 7, 2019, to provide feedback on the proposed regulations. The Labour Program received three stakeholder submissions; feedback was generally positive and did not lead to any significant changes to the Regulations.

• The final version of the SWILAR was published in the Canada Gazette, Part II on
July 8, 2020, and came into force on September 1, 2020, with the legislative amendments.

• The regulations list the labour standards protections under Part III that apply to student interns and specify how these provisions are to be adapted. The labour standards protections include:
– a limit on working hours of 40 hours/week and 8 hours/day, with at least one day of rest per week, although this may be subject to a modified work schedule with the consent of the intern;
– unpaid breaks for every period of 5 hours of work;
– unpaid breaks for medical reasons or nursing;
– 96 hours’ advance notice of a schedule;
– 24 hours’ advance notice of a shift change or addition of a shift;
– 8-hour rest period between shifts;
– 10 general holidays within a calendar year;
– maternity-related reassignment;
– protected leaves (i.e., personal leave, leave for victims of family violence, leave for traditional Aboriginal practices, bereavement leave, medical leave, and leave for work-related illness and injury, leave related to COVID-19); and
– protections against genetic discrimination and prohibited reprisals.

• The regulations also included protections against sexual harassment, although these were subsequently consolidated into a new framework under Part II of the Code. All occupational health and safety protections apply to interns, regardless of their status.

• To support the implementation of the new regulations, new guidance materials were developed to inform employers, student interns, and educational institutions and associations. They have been posted on the Internet.

• The 2017 mandate letter of the Minister of Employment, Workforce Development and Labour at the time included commitments to amend the Code to address emerging issues such as unpaid internships and ensure that Canadians continue to have a robust and modern set of federal employment standards.

• Previously, Part III (Labour Standards) of the Code expressly applied only to employees. Now that amendments contained in the Budget Implementation Act 2017, No. 2 (Bill C-63) are in force, interns in federally regulated workplaces also receive labour standards protections.

• Persons who undertake an internship that is not part of an educational program (for example, recent graduates, individuals engaged in learning activities due to a career change, or students who are not fulfilling the requirements of an educational program) are covered by the same labour standard protections as employees, including wage-related provisions (e.g., minimum wage, overtime compensation, paid leaves, recovery of unpaid wages).

• Student interns (i.e., those who fulfil the requirements of a valid educational program) may be unpaid but are entitled to certain labour standards protections, such as maximum hours of work, weekly days of rest, various leaves and general holidays. These provisions apply to students of secondary, post-secondary and vocational educational institutions, or their equivalents outside of Canada. The educational institution must provide a document to the employer that includes a description of activities whose performance, as part of an internship, fulfils the requirements of the student’s educational program.

• According to the Federal Jurisdiction Workplace Survey (FJWS), in 2015 there were 13,195 interns in federally regulated workplaces. Of these, 10,849 (82%) were paid while 2,346 (18%) were not paid. The majority of unpaid internships were in the telecommunications and road transportation industries. The FJWS did not identify whether or not these internships were associated with educational programs. Furthermore, about 30% of companies with unpaid interns reported offering some type of compensation, such as reimbursement of expenses, stipends or a combination thereof.

• It is estimated that approximately 1,250 to 1,350 unpaid student interns will perform activities in the federally regulated private sector annually.