Approved December 7, 2021

Fair Wage Policy and Fair Wage Schedule

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

This Policy shall apply to Contractors and Sub-Contractors engaged in work for the City of Sarnia.

“Benefits” means employer contributions to such items as a pension plan, medical benefits, and vacation.

“Council” means City of Sarnia Council members.

“City” means the City of Sarnia, its officers, officials, employees, and agents.

“Construction Contract” means a legal business agreement entered into between the City and the Contractor to perform construction work.

“Construction” shall include erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, tunnel work, and any work or undertaking in connection with a project.

“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.

“Director of Economic Development” means the Director of Economic Development or designate.

“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” stipulates the Total Hourly Compensation for Employees.

“General Manager of Corporate Services” means the General Manager of Corporate Services or designate.

“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.

“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” means the Manager of Procurement and Risk Management 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, but excludes contributions to employer association fees, union dues, industry promotion, funds, etc.

“Treasurer” means the City Treasurer or designate.

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

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, rules, procedure or regulation shall be deemed to include a reference to any substitution or amendment thereof;
d) Any reference to any officer of the City shall be construed to mean the person holding that office, the designate or delegate of that person.
e) Construction Contracts which were initially tendered and awarded under the fifty thousand dollar ($50,000.00) threshold, but exceeded this upset limit due to City-requested changes, or other unknown change orders after the award of the contract, are exempt from this policy.

Fair Wage Committee

The City shall participate in the Fair Wage Committee to discuss issues, and provide a forum for consultation regarding issues related to the Fair Wage Policy and Fair Wage Schedule. The Committee will meet bi-annually to achieve this purpose. The Committee will prepare and review the Fair Wage Schedule annually or as needed and recommend to the appropriate Standing Committee of Council those amendments to the Fair Wage Schedule. The Committee, as determined by the City, shall be comprised, as a minimum, of the following members:

a) Treasurer;

b) Purchasing and Risk Manager;

c) Director of Economic Development;

d) General Manager of Corporate Services; and

e) A representative from:

• Sarnia Lambton Workforce Development Board;
• Sarnia & District Labour Council; and
• International Brotherhood of Electrical Workers Local 530.

Compliance

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.

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.

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

Records

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.

The Contractor and Sub-Contractor shall provide these records to the Purchasing and Risk Manager within ten business days of substantial performance of the related Construction Contract and prior to the release of any holdback.

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, benefit, 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.

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.

Inspection and Audits

The City retains the right to inspect and audit the records of the Contractor or Sub Contractor at any time during the period of the Construction Contract and at any time thereafter as deemed by the City.

Consequences of Non-Compliance

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

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;

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;

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.

In addition to above fee, where a Contractor or Sub-Contractor has been determined to be non-compliant with this Policy and the Fair Wage Schedule for the first time in a five-year period, the Purchasing and Risk Manager may require the Contractor to pay for and submit a licensed Public Accountant assurance report, acceptable to the City. The assurance report shall verify compliance with this Policy and the Fair Wage Schedule on the next three City Construction Contracts to which the Contractor is awarded. The assurance report shall also provide sufficient information and detail to demonstrate compliance with this 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.

Where a Contractor or Sub-Contractor has been determined to be non-compliant with this 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 Purchasing and Risk Manager, the City, as approved by 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 this Policy and Fair Wage Schedule on any City contract for a period of two years from the date of Council approval, save and except any Construction Contract the Contractor may currently have with the City.

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 this Policy and Fair Wage Schedule.

Complaints

Any person may submit a complaint to the City, alleging non-compliance with this 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.

The complaint may be initiated at any time during the Construction Contract, and must be forwarded to the City’s Purchasing and Risk Manager no later than twenty-one calendar days following substantial performance of the related Construction Contract.

Upon receipt of a complaint, the Purchasing and Risk Manager 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.

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

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 this Policy and Fair Wage Schedule. Such action deemed necessary by the City shall commence within thirty calendar days of receipt of a completed Fair Wage Complaint Form submitted to the Purchasing and Risk Manager.

Once such action to determine compliance or non-compliance is completed to the City’s satisfaction, the Purchasing and Risk Manager 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 this Policy and Fair Wage Schedule. If the Contractor or Sub-Contractor is found to be noncompliant, then the City may impose on said Contractor or Sub-Contractor the investigation fee charged to the Initiator and the Initiator may be reimbursed said fee.

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 this 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.

For the purposes of the City not accepting any additional complaints from the Initiator, 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).

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.

Appeals Process

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 Purchasing and Risk Manager 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 Purchasing and Risk Manager.

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 Purchasing and Risk Manager to make a formal written request to meet with the General Manager of Corporate Services and Treasurer. The General Manager of Corporate Services will make the final decision regarding the outcome of the Fair Wage complaint process.

Fair Wage Schedule Update

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 four year’s preceding the date of the last Fair Wage Schedule update;

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

c)frozen for one year.

City

• The General Manager of Corporate Services shall periodically review this Policy and recommend to the appropriate standing committee of Council any required amendments to this Policy.
• The Purchasing and Risk Manager shall reference this Policy and Fair Wage Schedule in all City Construction Contracts. This Policy, Fair Wage Schedule and Fair Wage Complaint Form will be posted on the City’s website.
• The Purchasing and Risk Manager shall maintain update a list on an annual basis of the Contractors and Subcontractors determined to be non-compliant with this Policy and the Fair Wage Schedule, and this list shall be made available to the Committee for discussion purposes.
• The Purchasing and Risk Manager will co-ordinate the preparation of an annual report for the appropriate standing committee of Council regarding Construction Contracts awarded to the successful Contractors, complaints investigated, and resulting audits performed/enforcement measures taken pursuant to this Policy and Fair Wage Schedule.
• The City shall address a written objection to the administration of this Policy and Fair Wage Schedule.
• 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 this 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 this Policy and Fair Wage Schedule.

Contractor and Sub-contractor

• A Contractor shall ultimately be responsible for any violation or non-compliance of Sub-Contractors on its City Construction Contracts.
• A Contractor is fully responsible for ensuring that all Sub-Contractors comply with this Policy and Fair Wage Schedule.
• 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.
• At the commencement of the work, the Contractor shall post a copy of this 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.
• 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 in an acceptable form to the City, a statutory declaration confirming that the Contractor and its Sub-Contractors complied with this 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 satisfactory by the City.

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