Ontario’s ESA in need of overhaul: Report

Law commission’s 47 recommendations touch on foreign workers, health and safety
By Amanda Silliker
|Canadian HR Reporter|Last Updated: 05/22/2013

Updating ontario’s Employment Standards Act (ESA), offering more protections for foreign workers and increasing the number of health and safety inspections are some of the 47 recommendations for improving the lives of vulnerable workers in a report from the Law Commission of Ontario.

“In Ontario today, there are fewer full-time, well-paid jobs with good benefits and more precarious jobs with lower wages, poor job security, fewer benefits and little control over working conditions. Workers doing this kind of work are ‘vulnerable’ because of the job insecurity and other conditions,” according to the report Vulnerable Workers and Precarious Work.

Women, racialized persons, immigrants, temporary migrant workers, persons with disabilities, youth, Aboriginal persons and non-status workers are more likely than others to hold precarious jobs, including short contracts, part-time work and temporary employment, found the report.

About 22 per cent of Ontario’s workers are in precarious employment characterized by low wages and at least two of the following: no pension, no union and a small-sized firm, estimated the report.

“It’s a big issue. The labour market has changed dramatically but the law framework hasn’t and what we need is a new law framework that realizes the vast majority of people no longer have jobs at Stelco and Ford Motor Company where they start at 25 and stay until they’re 65,” said Wayne Lewchuk, professor at the School of Labour Studies at McMaster University in Hamilton.

“It’s a very different world now.”

The law commission’s report — based on submissions from and consultations with academics, workers, employers, unions and community organizations — recommended the exemptions in the ESA be updated, reviewed and streamlined, and the act should aim to promote a “broadly available minimum floor of basic workers’ rights.”

It also called for ensuring part-time workers are paid at proportionately the same rate as full-time workers in equivalent positions.

Benefits bank an option

The Ontario government is encouraged to explore benefits options for workers without coverage. The report mentioned a benefits bank as a possible option.

“If a worker were doing three jobs, who is supposed to pay benefits? We’re not saying one employer should pay, but we want the government to look at another mechanism to pool benefits and let people draw on that, so that it doesn’t become the responsibility of a single employer — and yet those workers are benefiting the same way many other workers are,” said Patricia Hughes, executive director of the Law Commission of Ontario in Toronto.

Greater protection for foreign workers

Foreign workers are a large focus of the report. One of the recommendations included extending the Employment Protection for Foreign Nationals Act to all temporary migrant workers in Ontario.

The act — currently applicable to live-in caregivers — relates to issues such as recruiting and related fees.

“(Migrant workers) are paying huge fees to recruiters to be able to get these jobs, then they’re coming here being massively in debt and that makes it even harder to address a health and safety problem or a workers’ rights issue,” said Sonia Singh, organizer at the Workers’ Action Centre in Toronto.

Employers and contractors should be required to provide all workers, including independent contractors, with written notices of their work or employment status and terms of employment or work contract, said the report.

The Ministry of Labour should increase proactive employment standards inspections that target workplaces with a high risk of violations, including those with a high concentration of temporary foreign workers and recent immigrants, said Vulnerable Workers and Precarious Work.

It also recommended looking at the penalties imposed.

“It’s very frustrating to know when a ticket is issued, it’s $295, and when it’s a first conviction, the penalty is $250,” said Singh. “Anyone who is following the law would think, ‘You can get away with not paying someone thousands of dollars and that’s the slap on the wrist you get?’”

The report also recommended the amount a worker can recover in unpaid wages be increased from $10,000 to $25,000.

The ministry is encouraged to provide recognition and incentives for companies that are leaders in employment standards compliance and extending higher-than-minimum standards to external workers, said the report.

Health and safety

The Ministry of Labour should conduct more proactive health and safety inspections in industries employing vulnerable workers at high risk for workplace injuries including agriculture, hospitality and cleaning, and workplaces with temporary staffing agency workers, said the report.

It also recommended prioritizing health and safety training, both basic and hazard-specific, for migrant workers.

“The work that many migrant workers do is difficult work and some of it is dangerous work and certainly there have been stories of situations where migrant workers had difficulty and it’s important workers themselves know… how to handle those situations. And it could be a preventive mechanism as well — which is good for everybody,” said Hughes.

A mobile medical clinic should be set up for migrant workers in rural areas to provide access to medical care and help facilitate Workplace Safety and Insurance Board (WSIB) claims, said the report.

Employer-government partnerships

Vulnerable Workers and Precarious Work called for employer-government partnerships for on-the-job training for individuals working in lower-skilled positions that facilitate job placement into higher-skilled positions.

“Training is a big one for precarious workers because employers just don’t train them,” said Lewchuk.

“If you’re on a three-month contract, the employer doesn’t want to spend a day or two providing training because they only have you for a short time.”

Developing skills criteria

The report also said the government should work with the Ontario College of Trades to develop skills recognition criteria for a broader range of workers.

“(For example), if you worked in auto manufacturing for five years, you’ve acquired certain skills about seeing your way around machinery, knowing what things are dangerous, understanding metals and electricity, and you should be given some credentials so if you need to find another job, the employer knows this person has achieved certain standards,” said Lewchuk.

It’s in the best interest of employers to try and reduce the number of vulnerable workers and those in precarious employment because it will contribute to a more productive, committed workforce, said Hughes.

“We recognize that employers need to organize their workplace — it’s not that we’re saying no part-time work or no casual work, people want that and employers need it,” she said.

“But employers, as a general rule, do want a stable workforce of people who want to do the jobs they’re doing and workers who feel they are being treated appropriately are more inclined to be committed to that employer.”

Employers also need to realize skills shortages are a natural byproduct of moving away from permanent, full-time employment, said Lewchuk.

“Employers are saying, ‘We cannot get skilled workers.’ Well, you cannot get skilled workers because we’ve changed the nature of the job market and people are not acquiring skills by spending 20 to 30 years at a company,” he said.

“The old story of starting in the mailroom and becoming president of the company doesn’t happen anymore because people in the mailroom are probably temp workers.”

Add Comment

  • *
  • *
  • *
  • *