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Health Sector Parterships Agreement Act Now In Effect; True Employer Test Under Health and Social Services Delivery Improvement Act (Bill 29) Enhanced
February 18, 2004

On February 2, 2004 the Health Sector Partnerships Agreement Act (“Bill 94″ or the “Act“) was brought into force by Regulation. Bill 94 was introduced in the Legislature in November, 2003 and received Royal Assent on December 2, 2003. The Act applies to designated private sector partners participating in health sector “public-private partnerships” (also known as “P3′s”), including private sector partners for the construction and operation of the Abbotsford Hospital and Cancer Centre, and any other private sector partners designated by regulation.

Under the Act, designated private sector partners, their contractors and sub-contractors enjoy the same protections regarding the contracting out of non-clinical services currently possessed by health sector employers under the Health and Social Services Delivery Improvement Act (“Bill 29″). Like Bill 29, the Act prohibits collective agreement restrictions on contracting out and restricts the application of common employer and successorship declarations in contracting out situations.

In addition, the Act sets out an enhanced true employer test. A health sector employer partner will not be declared the true employer of employees of a designated private sector partner unless the health sector employer intended the employees to be fully integrated with its operations and working under its direct supervision and control.

The enhanced true employer test applicable to P3′s is extended to all health sector employers by means of a consequential amendment to Section 6(3) of Bill 29 set out in Section 11 of the Act. Previously, Bill 29 protected a health sector employer from a declaration that it was the true employer of a contractor’s employees unless such employees were fully integrated into the health sector employer’s operations and worked under the health sector employer’s direct control. Section 11 of the Act amends Bill 29 to provide for the enhanced true employer test applicable to P3s. As a result, health sector employers will be found to be the true employer of contractor employees only if the health sector employer intends contractor employees to be fully integrated with the operation and working under its direct supervision and control.