Ontario looking to make changes to labour laws

Card-based certification, precarious work, better enforcement among concerns
By John Dujay
|Canadian HR Reporter|Last Updated: 09/23/2016

In a massive undertaking, the Ontario government is looking to update not one but two labour laws with its Changing Workplaces Review.

First proposed in 2015, the review would see the province’s 1995 Labour Relations Act and 2000 Employment Standards Act updated.

“It’s important our laws reflect the realities of the modern economy, and that’s why we’re consulting with people in communities across the province and reviewing our legislation,” said Minister of Labour Kevin Flynn.

Led by lawyer Michael Mitchell and former justice of the Ontario Superior Court  John Murray, the review received more than 300 written submissions and met with various labour and employer groups. The co-chairs released an interim report in July.

The 312-page report touches on a variety of issues relevant to employers and labour groups.

The Ontario Federation of Labour (OFL) has been waiting quite some time for the changes, said OFL president Chris Buckley.

“It’s a springboard for a once-in-a-generation opportunity to bring sweeping changes to Ontario’s employment laws and to make it fair for every worker across the province.”

If the exercise was to poke at as many of the issues as possible, it’s achieved that goal, said labour and employment lawyer Craig Rix at Hicks Morley in Toronto. 

“What I see mostly in the report is a longstanding list of like-to-have proposals that have largely come from organized labour.”

One of the most contentious issues is a possible return to card-based union certification, which was removed in the 1995 act (and restored for the construction industry in 2000). Some union groups are hoping to see the practice restored.

“Our first preference would be to have a card check. We’ve done it federally for the last number of years,” said Katha Fortier, Unifor’s Ontario director. “(Workers) can join a union without intimidation.”

But the Ontario Chamber of Commerce (OCC) opposes a return to card-based certification.

“We believe this actually diminishes employees’ rights and would prevent workers from having a real say about whether or not they wish to be part of a union. It would take away that transparency that we think is vital to such an important decision among any employee group,” said Karl Baldauf, vice-president of policy and government relations at the OCC.

Precarious work

Another issue concerns the growth of  “precarious workers,” meaning part-time, temporary or casual employees who don’t receive all of the benefits of a full-time worker. The interim report labels precarious work as “non-standard work” and said 26.6 per cent of workers in 2015 in Ontario were categorized as such.

Young people are encouraged to get an education but “far too often they are graduating to the unemployment line with huge student debt. They are forced to work in jobs that are paying very low wages, that are either contract or temporary agencies,” said Buckley. 

But the government should be careful as to which workers are called precarious, said Rix.

“Precarity is a loaded term in this debate,” he said. “There are a number of reasons why people choose to work part-time and there are a number of reasons why employers choose to use part-time staff, not least of which is coverage for full-time employees who are sick or who are on vacation.”

In some cases, self-employed doctors and lawyers, making six-figure salaries, could be considered precarious under the current definition, said Baldauf.

“We support the government’s efforts to address the challenge of precarious work. But, at the same time, we think it’s critical that there is a robust, evidence-based and common understanding of who Ontario’s precarious workers are and how we can best help them.”

But for workers who sit at home waiting to see if they will be offered shifts, it can be tough. 

“That’s a hell of a way for workers to live and that’s not the Ontario we want for workers and their families across the province,” said Buckley.

But forcing all employers to maintain fixed schedules wouldn’t work for some industries such as agriculture because, as an example, “produce and its availability is not predictable,” said Rix, adding employers are going to confront those proposals.

There shouldn’t be rigid and universal requirements related to the posting of employee work schedules, said Baldauf.

“We are encouraging the government to recognize that a one-size-fits-all approach to scheduling fails to recognize the diverse needs of Ontario’s workforce.” 

As an example, a shirt manufacturer that receives a just-in-time order for 200 shirts the next day would not be able to post schedules in the previous two-week period with a hard-and-fast rule about posting schedules, he said.

Part-time employees should also be offered benefits, and those may be pro-rated, said Fortier.

As an example, Unifor negotiated a collective agreement in 2015 with Metro’s 5,000 workers (some of whom were part-time) that “gave them rights to scheduled hours based on their years of service. They are guaranteed some hours of work, and some ability to earn a living,” she said. 

Enforcement

Another major topic is the enforcement of current laws and statutes. Seventy-eight per cent of employers were in violation of employment standards after a 2015 surprise inspection blitz, according to the Toronto Star.

More needs to be done on the government side to enhance enforcement for the “bad apples,” said Baldauf. And creating more laws wouldn’t solve the issue of non-compliance, especially for small businesses. 

“If the remedy to this problem is to only build in more regulations, then it is doing very little to help support these businesses, many of them small — the lifeblood of Ontario’s economy.”

Many employers wish to comply with all of the rules, but find it impossible, he said

“They are so busy working, they don’t have teams of lawyers or government relation people to help educate them about what their obligations are under the Ministry of Labour,” said Baldauf.

It’s important to first look at a mechanism that better enforces the existing rules, said Rix, “before we go change a myriad of rules that will still allow the bad actors to continue to not play by the rules.

“More evidence needs to be gathered and that comes with enforcement. If the enforcement story makes the case for change, then that’s a better approach to public policy than the classic partisan advocacy, the old left-right paradigm.”

The laws need a little more protection, said Fortier. 

“We’ve got to expect a little more from business. They’ve got to consider the lives of the people they employ.”

Because the current enforcement standard relies heavily on a worker contacting the ministry, it is troublesome, she said. 

“Ontario workers, if they are not covered by a union, are in fear of making that call: ‘Will my employer know it’s me that’s made the call? Will they find out? What will happen to me?’”

The ministry hasn’t kept up with the recent population growth in Ontario and needs to hire more inspectors, said Buckley.

“(The laws are) not being enforced the way they’re intended to.” 

Employers quiet

But employers have been very quiet so far, said Rix.

“I think this initial report comes out without the employer community having really actively engaged in it,” he said. “In the absence of any clear advocacy, I think the government may see silence as consent.”

It’s not surprising, said Buckley. 

“Employers were waiting for the interim report to come out,” he said. “I fully anticipate a degree of pushback from employers.”

The OCC recently launched the website Keep Ontario Working and a subsequent campaign to get the word out to employers to participate in the review, said Baldauf. 

“We recognized there had not been a good enough job on our part to educate employers across the province about this review and about the potential impact of these reforms.”

The chamber is also reaching out to politicians, labour ministry workers and the co-chairs for more consultation, he said.

“We’re certainly hoping to build upon this success and to insert ourselves into the conversation that we haven’t previously.” 

The OCC has received assurances the final report will be sent back to government around January and the Ministry of Labour will review it, said Baldauf, who wouldn’t be surprised to see legislation by the fall of 2017. But he said he hopes it won’t become “deeply politicized” with the next provincial election expected in the spring of 2018.

It is incumbent for labour and government to work together to achieve the goal of reforming the system for the benefit of workers, said Buckley, using the recent example of the enhanced Canada Pension Plan reform. 

“We all have to come together as labour and as government to make positive change,” he said.

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