Fair Wage Policy & Fair Wage Schedule

1. Policy Statement

Every Contractor and Sub-Contractor shall compensate their Employees in accordance with the Fair Wage Policy and Fair Wage Schedule on all Construction Contracts with the City. The compensation requirements as set out in the Fair Wage Policy and Fair Wage Schedule are minimum requirements.

2. Interpretation

In this Fair Wage Policy and Fair Wage Schedule:

a. a word defined in or importing the singular number has the same meaning when used in the plural number, and vice versa;

b. the provisions shall be read with changes of gender or number as the context may require;

c. a reference to any Act, by-law, rule, procedure or regulation shall be deemed to include a reference to any substitution or amendment thereof;

d. any reference to an officer of the City shall be construed to mean the person holding that office, the designate or delegate of that person.

3. Definitions

Capitalized words and phrases used in this Fair Wage Policy and Fair Wage Schedule shall have the following meanings, unless expressly stated otherwise.

“Benefits” includes employer contributions to such items as a pension plan, Registered Retirement Savings Plan (RRSP), medical plan bonus, retention pay or the like and vacation;

“City Council” means the Council of the City of Hamilton;

“City” means the City of Hamilton, its officers, officials, employees and agents;

“Construction Contract” means any construction work awarded to a Contractor of a minimum of $500,000.00 excluding residential sectors;

“Contractor” means any person having a Construction Contract with the City but does not include any person that only supplies materials for the Construction Contract;

“Employees” mean those persons employed by the Contractor or Sub-Contractor who perform work identified in the Fair Wage Schedule, for a Construction Contract with the City;

“Fair Wage Policy” means the Fair Wage Policy approved by Council, as amended from time to time;

“Fair Wage Schedule” means the Fair Wage Schedule approved by Council, as amended from time to time. The Fair Wage Schedule stipulates the Total Hourly Compensation for Employees;

“Hours of Work” means the regular hours of work per day and week and shall include a provision for the payment of overtime beyond such regular hours, as per the Employment Standards Act, 2000, S.O. 2000, c.41, specifically Part VIII Overtime Pay;

“Initiator” means any person who submits a complaint to the City alleging non-compliance with the Fair Wage Policy and Fair Wage Schedule by any Contractor or Sub-Contractor performing construction work on a City Construction Contract.

“Manager of Procurement” shall mean the Manager of Procurement or designate.

“Sub-Contractor” means any person performing work on a City Construction Contract for a Contractor, or an agreement with another Sub-Contractor, but does not include any person that only supplies materials for the Construction Contract;

“Total Hourly Compensation” means the aggregate amount of Wages and Benefits as stated in the Fair Wage Schedule;

“Wages” means the Employees basic hourly rate, which is paid as earned at the time of undertaking the work.

4. City Responsibilities

4.1 The Director of Financial Services shall periodically review the Fair Wage Policy and recommend to the appropriate standing committee of Council any required amendments to the Fair Wage Policy.

4.2 The Director of Employee & Labour Relations will prepare and review the Fair Wage Schedule from time to time and recommend to the appropriate Standing Committee of Council those amendments to the Fair Wage Schedule.

4.3 The Manager of Procurement shall reference the Fair Wage Policy and Fair Wage Schedule in all City Construction Contracts. The City’s Procurement website will post the Fair Wage Policy and Fair Wage Schedule and Fair Wage Complaint Form at hamilton.ca/procurement.

4.4 The Manager of Procurement will co-ordinate the preparation of an annual report for the appropriate Standing Committee of Council regarding complaints investigated and resulting audits performed pursuant to the Fair Wage Policy and Fair Wage Schedule.

4.5 The City shall address a written objection to the administration of the Fair Wage Policy and Fair Wage Schedule.

4.6 The City is not in any way liable, obligated or responsible to any Employee, Sub Contractor, Contractor or any other person for the payment of any monies not paid by a Contractor or Sub-Contractor in accordance with the Fair Wage Policy and Fair Wage Schedule, and the City assumes no responsibility to such Employee, Sub-Contractor, Contractor or any other person for the administration and enforcement of the Fair Wage Policy and Fair Wage Schedule.

5. Ad Hoc Fair Wage Committee

5.1 The City shall participate in an ad hoc Fair Wage Committee to discuss issues, and provide a forum for consultation regarding issues related to the Fair Wage Policy and Fair Wage Schedule.

5.2 The Committee shall meet on an as required basis.

5.3 The Committee, as determined by the City, shall be comprised, as a minimum, of the following members:

a. Director of Financial Services or designate,

b. Director of Employee & Labour Relations or designate,

c. A representative from:

• Hamilton & District Heavy Construction Association,
• Hamilton-Brantford Ontario, Building and Construction Trades Council,
• Labourers' International Union of North America,
• Christian Labour Association of Canada, and
• Merit OpenShop Contractors Association of Ontario.

6. Contractor and Sub-contractor Responsibilities

6.1 A Contractor shall ultimately be responsible for any violation or non-compliance of Sub-Contractors on its City Construction Contracts.

6.2 A Contractor is fully responsible for ensuring that all Sub-Contractors comply with the Fair Wage Policy and Fair Wage Schedule.

6.3 The Contractor or Sub-Contractor shall not be responsible for any increase to the Fair Wage Schedule which occurs after the closing of the Request for Tenders or Request for Proposals for the City Construction Contract awarded to the Contractor.

6.4 At the commencement of the work, the Contractor shall post a copy of the Fair Wage Policy and Fair Wage Schedule in a prominent location at the City Construction Contract site to enable Employees of the Contractor and Sub Contractor to review. Alternate methods may be considered, and if approved by the Manager of Procurement, shall be in writing prior to the commencement of the Construction Contract.

6.5 After substantial performance (as defined in the Construction Lien Act, R.S.O. 1990, c. C.30) of the Construction Contract and prior to release of the holdback, for all Construction Contracts with the City, the Contractor shall provide to the City, in a form acceptable to the City, a statutory declaration confirming that the Contractor and its Sub-Contractors complied with the Fair Wage Policy and Fair Wage Schedule. The City reserves the right to not release part or all of the holdback on a Construction Contract until such Contractor's sworn statement of compliance is received and deemed to be satisfactory by the City.

7. Compliance

7.1 A Contractor or Sub-Contractors shall be in compliance with the Fair Wage Policy and Fair Wage Schedule when the Employee receives a minimum compensation package that includes Wages and Benefits, which aggregate amount is not less than the Total Hourly Compensation as set out in the Fair Wage Schedule.

7.2 Employees shall be paid on a “pay by pay basis” every pay period in accordance with Fair Wage Schedule. Alternate methods of payment may be considered, and if approved by the Manager of Procurement, shall be in writing prior to the commencement of the Construction Contract. For example any lump sum pay-out made to the Employee to reconcile money owed at the completion of the Construction Contract is not permitted.

7.3 Any lump sum payment approved is to be made no later than the date of substantial performance of the related Construction Contract.

8. Records

8.1 The Contractor and Sub-Contractor shall keep records of the names, addresses, Wages, Benefits, vacation paid or provided, and hours worked for all of its Employees to demonstrate compliance with the Fair Wage Policy and Fair Wage Schedule.

8.2 Unless otherwise approved by the City, the Contractor and Sub-Contractor shall make these records available for inspection upon request by the City within ten business days.
 

8.3 In any agreement with a Sub-Contractor, the Contractor shall require the Sub Contractor to:

a) provide written acknowledgment prior to the commencement of construction work that the Fair Wage Policy and Fair Wage Schedule applies;

b) keep records of the names, addresses, Wages, Benefits, vacation paid or provided, and hours worked for all of its Employees to demonstrate compliance with the Fair Wage Policy and Fair Wage Schedule; and

c) Unless otherwise approved by the City, make these records available for inspection upon request by the City within ten business days.

8.4 If a Contractor or Sub-Contractor enters into a contract for service with a self employed independent contractor to perform work identified in the Fair Wage Schedule, the Contractor or Sub-Contractor shall keep the following records to demonstrate that the self-employed independent contractor is not an Employee of the Contractor or Sub Contractor:

a) duties and responsibilities of both parties;

b) self-employed independent contractor invoices;

c) self-employed independent contractor HST registration number;

d) self-employed independent contractor Workplace Safety and Insurance Board and insurance certificates; and

e) self-employed independent contractor trade certificates or licences which relate to the Construction Contract.

Should there be concerns regarding the self-employed independent contractor’s degree of dependency from the Contractor or Sub-Contractor, further records shall be made available to demonstrate that an employer employee relationship does not exist between the Contractor or Sub-Contractor and a self-employed independent contractor. The guideline issued by Canada Revenue Agency RC4110 “Employee or Self-Employed” may be used to assist in making a final determination.

9. Inspection and Audits

The City retains the right to inspect and audit the records of the Contractor or Sub Contractor (as referred to in Section 8. Records) at any time during the period of the Construction Contract and at any time thereafter as deemed by the City.

10. Consequences of Non-compliance

10.1 Upon determining that a Contractor or Sub-Contractor is non compliant with the Fair Wage Policy and Fair Wage Schedule, the Manager of Procurement:

a) shall advise the Contractor, in writing, that it has been determined that the Contractor or Sub-Contractor is non-compliant and that the Contractor or Sub-Contractor is required to rectify the non-compliance(s) and provide written proof of the same, in a form satisfactory to the City, within ten business days; and

b) may withhold making payment, progress payment or release of holdback to the Contractor in an amount which is equal to the shortfall in Wages or Benefits, or may take any other remedies that are otherwise available at law or in equity. and

c) shall impose upon the Contractor a minimum cost of $5,000.00 (excluding taxes) for the City inspection, audit or other action as deemed necessary by the City, and may deduct such costs from any payment or payments (as appropriate) owed by the City to the Contractor, or may take any other remedies that are otherwise available at law or in equity. In addition, the Contractor shall be responsible for all the City’s costs beyond the minimum cost of $5,000.00(excluding taxes), which will be payable immediately upon request.

10.2 Where a Contractor or Sub-Contractor has been determined to be non-compliant with the Fair Wage Policy and Fair Wage Schedule for the first time in a five year period, the Manager of Procurement may require the Contractor to pay for and submit a licensed Public Accountant assurance report, acceptable to the City, which verifies compliance with the Fair Wage Policy and Fair Wage Schedule on the next three City Construction Contracts to which the Contractor is awarded. Such assurance report shall provide sufficient information and detail to demonstrate compliance with the Fair Wage Policy and Fair Wage Schedule and shall be submitted after substantial performance (as defined in the Construction Lien Act, R.S.O. 1990, c. C.30) of the Construction Contract and prior to the release of the holdback. The City reserves the right to not release part or all of the holdback on a Construction Contract until such assurance report is received and deemed to be satisfactory by the City.

The City reserves the right to treat a first non-compliance as a second or subsequent non-compliance.

10.3 Where a Contractor or Sub-Contractor has been determined to be non-compliant with the Fair Wage Policy and Fair Wage Schedule for a second or subsequent time within a five year period from the date of the first determination of non compliance by the Manager of Procurement, the City, as approved by City Council, may refuse:

a) to accept any bid, quotation or proposal from such Contractor or Sub Contractor, or;

b) the use of a Sub-Contractor where the Sub-Contractor was determined to be non-compliant with the Fair Wage Policy and Fair Wage Schedule

on any City contract for a period of two years from the date of City Council approval, save and except any Construction Contract the Contractor may currently have with the City.

10.4 If the Contractor or Sub-Contractor fails to keep accurate records, the Contractor or Sub-Contractor will pay a licensed Public Accountant to provide an assurance report, acceptable to the City, which clearly demonstrates compliance with the Fair Wage Policy and Fair Wage Schedule.

11. Complaints

11.1 Any person may submit a complaint to the City, alleging non-compliance with the Fair Wage Policy and Fair Wage Schedule, by any Contractor or Sub Contractor performing construction work on a City Construction Contract. All complaints must be submitted in writing and contain sufficient information in order to investigate the complaint. The Fair Wage Complaint Form may be completed for this purpose.

11.2 The complaint must be forwarded to the City’s Manager of Procurement via email ([email protected]), regular mail or in person to the Procurement Section, Corporate Services Department, 120 King Street West, Suite 900, Hamilton, Ontario L8P 4V2.

11.3 The complaint may be initiated at any time during the Construction Contract but shall be received by the City no later than 21 calendar days following substantial performance of the related Construction Contract.

11.4 Upon receipt of a complaint, the Manager of Procurement will conduct an initial review of the complaint submitted and advise the Initiator of the complaint of the investigation fee and what the likely cost of the investigation will be. The minimum cost of an investigation will be $5,000.00 (excluding taxes). The City, at its discretion, may waive the cost of an investigation if an Employee is the Initiator of the complaint.

11.5 The Initiator shall confirm to the City in a timely manner whether or not they would like to proceed with the complaint.

11.6 The City shall take such action as it deems is necessary to determine whether the Contractor or Sub-Contractor involved or named in the complaint is compliant with the Fair Wage Policy and Fair Wage Schedule. Such action deemed necessary by the City shall commence within 30 calendar days of receipt of a completed Fair Wage Complaint Form submitted to the Manager of Procurement.

11.7 Once such action to determine compliance or non-compliance is completed to the City’s satisfaction, the Manager of Procurement shall inform the Initiator and any Contractor or Sub-Contractor involved or named in the complaint of the City’s determination of the Contractor's or Sub-Contractor's compliance or non-compliance with the Fair Wage Policy and Fair Wage Schedule.

11.8 Whenever a complaint is initiated by a person other than an individual Employee of the Contractor or Sub-Contractor involved or named in the complaint, and said Contractor or Sub-Contractor is found to be compliant with the Fair Wage Policy and Fair Wage Schedule with respect to the complaint, the costs associated with the inspections, audits or other action deemed necessary regarding the investigation of the complaint will be borne solely by the Initiator. Until the Initiator has paid the associated costs to the City, the City will not accept any additional complaints from the Initiator.

11.9 For the purposes of the City not accepting any additional complaints from the Initiator under section 11.8 of this Fair Wage Policy, a reference to Initiator shall also include an officer, director, a majority or controlling shareholder, or a member of the Initiator, if a corporation; a partner of the Initiator, if a partnership; any corporation to which the Initiator is an affiliate of or successor to, or an officer, a director or a majority or controlling shareholder of such corporation; and any person with whom the Initiator is not at arm’s length within the meaning of the Income Tax Act (Canada).

11.10 The City shall make every effort to safeguard the confidentiality of each Initiator’s identity. However, this information is subject to the provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. For greater certainty and direction regarding how such issues of confidentiality will be handled and may affect an Initiator’s rights, the Initiator should reference the City’s policies related to Freedom of Information on the City’s website under the Office of the City Clerk at hamilton.ca.

12. Appeals Process

12.1 Contractors, Sub-Contractors or Initiators may feel aggrieved and may seek to dispute the outcome of a Fair Wage complaint process. If anyone wishes to appeal the outcome of a Fair Wage complaint, they shall write to the Manager of Procurement within five business days of being notified of the Fair Wage complaint outcome and provide a detailed statement outlining the grounds of the appeal and request a meeting with the Manager of Procurement.

12.2 If no resolution satisfactory to both parties has been achieved, the Contractor, Sub Contractor or Initiator will have three business days from the date of the meeting with the Manager of Procurement to make a formal written request with the Manager of Procurement to meet with the General Manager of the Client Department issuing the Construction Contract and the General Manager of Finance and Corporate Services regarding their complaint. The General Managers will make the final decision regarding the outcome of the Fair Wage complaint process.

13. Fair Wage Schedule Update

13.1 The Fair Wage Schedule shall be automatically updated every three years.

13.2 Unless otherwise approved by Council, the Total Hourly Compensation rates set out in the Fair Wage Schedule shall be:

a) based upon the collective hourly wage rates set out in the respective collective agreements from the three year’s preceding the date of the last Fair Wage Schedule update. For example, the hourly rates set in 2016 shall be updated in 2019 (three years after 2016). The updated rates in 2019 shall be based upon the 2016 hourly rates (three years preceding 2019);

b) calculated by increasing the respective collective agreement’s hourly wage rates by no more than 24%; and

c) frozen for the three year term.

Bricklayers, Masons, and Plasterers

Building and Construction Work

Drywall Finishers

Electrical

Elevator Constructors

Glaziers

Heat and Frost Insulators (Asbestos)

Iron Workers: Bridge, Structural, Ornamental and Reinforcing Iron Workers

Labourers - Bridge Building, Underpasses, Overpasses, Pedestrian retaining walls connected with dams etc.

Labourers - Mining and Tunneling Operation

Labourers - Sewer Watermain, Roads Building Paving, Parking Lots, Bridge Rehab

Marble, Tile, Terrazzo, Cement Masons, Resilient Floor Layers and Their Helpers

Millwrights

Open Cut Work for Sewer and Watermain Construction

Painters - Commercial

Painters - Industrial

Plumbers, Steamfitters and Pipefitters

Road Work

Road Work, Open Cut Work for Sewer and Watermain Construction

Rodmen: Bridge, Structural, Ornamental and Reinforcing Iron Workers

Roofers

Sheet Metal

Tunnel Work

Welders