Falling through the cracks

Gaps in Ontario’s labour laws, enforcement make labour market more precarious: Report
By Liz Bernier
|Canadian HR Reporter|Last Updated: 05/01/2015

Part-time, low-paid, “perma-temp” or contract jobs. Last-minute work schedules. Safety violations, bullying and harassment. Juggling two, even three, separate jobs to make ends meet. 


For many workers, these are the day-to-day realities. And Ontario — like other provinces — has seen an increase in the proportion of jobs economists deem “precarious,” according to Deena Ladd, co-ordinator at the Workers Action Centre in Toronto. 


 “When you look at national statistics, you’re looking at about 40 per cent of workers in precarious forms of work, so I would say that that’s absolutely very different from what it was 20 years ago. And I would say that precarious work has become more of the norm rather than the anomaly.”


In February, Ontario launched a Changing Workplace Review and public consultation on labour laws to examine the increase in non-standard work relationships, such as temporary jobs, part-time work and self-employment. It appointed two special advisors to lead the public consultations. 


“Our government agrees with business and workers who want our laws to recognize the realities of the modern economy,” said Kevin Flynn, provincial minister of labour.


“The special advisors will engage with Ontarians so we can ensure our workplace laws strike the right balance in the new world of work.”


ESA gaps

The review is timely since gaps in Ontario’s Employment Standards Act (ESA) laws and their enforcement are negatively contributing to the situation, according to a recent Workers Action Centre report, Still Working on the Edge. 


“When you fashion labour laws with the old-fashioned notions of one job in your lifetime, working directly for an employer in one workplace, obviously that’s not the norm anymore. But our labour laws reflect that norm. So, as a result, we find that there is a lot of gaps in terms of covering new forms of employment,” said Ladd.


Temp agency work and part-time jobs have always existed, but more for the purposes of filling a maternity leave or vacation period, said Ladd.


“That’s no longer the case. Companies are using temp agencies to replace their permanent workforce, so you have ‘perma-temps,’” she said.


Now, there are workplaces where the vast majority of employees are hired on contract through temp agencies or subcontractors.

“Which means that the employer, the client company, actually has very little responsibility in terms of employment standards, statutory benefits, for those workers. So the laws don’t adequately address that. So you have situations where workers are working alongside each other making differential rates of pay and benefits because of who’s hired them. You have situations where workers are afraid to speak up because their contracts can be let go at a moment’s notice,” said Ladd.


There is also a long list of formal exemptions in Ontario’s ESA, she said. 


“What we found in our research was that the lower your income, the more your likelihood was of being exempt from basic statutory benefits,” said Ladd.


“Employment standards… (are) supposed to establish a floor. So when you don’t have that floor, when you have such large gaps, it’s a real problem.”


There’s a growing number of people who might be legally classified as independent contractors, but the terms and conditions of their work are such that they’re actually falling below minimum standards, said Eric Tucker, professor at Osgoode Hall at York University in Toronto.


“The question the (Workers Action Centre) report is raising is whether the ESA protections should be extended to cover people who are legally independent contractors.”


If employment standards protections were extended to workers who currently fall through the cracks, it could make a big difference when it comes to access to equal pay, job-protected leaves, emergency leaves and paid sick days, said Ladd. 

“Some of our recommendations are really about restoring the floor of standards. And then a whole bunch of other recommendations are about, regardless of how you’re hired or how many hours you work, you’re not being differentially paid,” she said.


Fair scheduling, particularly in the service and retail sectors, is also an issue. 


“For instance, many workers we spoke to get their schedules on a Friday about whether or not they’re working for the next week — which starts the next day. So with less than 24 hours’ notice, you’re finding out (your schedule), although you’re expected to be fully available to work,” she said. “Workers are not able to find another job because they’re expected to be fully available.”


Enforcement issues

Even for workers who are covered by employment standards, there are challenges around enforcement, said Tucker. 


“The act primarily depends on workers making complaints about violations, and indeed there’s even a provision that normally before a worker can complain to the ministry about a violation, they first have to have attempted to resolve their complaint directly with their employer. That creates a situation that’s very difficult for many if not most workers who are dependent on the Employment Standards Act,” he said. 


“In fact, the evidence shows over many years that employees very rarely make complaints about violations by their current employer. And the reasons for that are fairly obvious — workers are very concerned that if they complain about the Employment Standards Act violations, then they will suffer some employment-related consequence.”


Of course, it’s against the law for an employer to retaliate against a worker for seeking to enforce his employment standards rights — but it can be very difficult to prove that retaliation is at play, he said. 


“For example, if you have a part-time worker who has shifts, they may not get fired but they may find that the shifts they’re being offered are worse shifts than they were getting before, that they’re getting fewer shifts, things like that which can be quite difficult to establish that the reason for the (change) is that the employee had sought to enforce their rights,” he said.


“So workers, understandably, and particularly vulnerable workers… really don’t want to rock the boat. And that’s why a very large majority of employment standards complaints are filed after a person has lost their job. It’s only then that the worker has nothing to lose by filing the complaint.”


The report and other studies recommend the Ministry of Labour engage in more proactive enforcement activities. They already do, to some extent, when it comes to enforcement blitzes — but those proactive efforts should be extended, said Tucker. 


Recommendations 

There are a number of recommendations put forward in the report, including broadening the scope of ESA protections to cover more workers.


Fair scheduling and equal pay for equal work are also two areas considered, said Ladd. 


“We’re looking at just basic provisions such as two weeks’ notice to get your schedule in advance,” she said. “Some of the other gaps that we’re looking at is making sure that no matter who is hired, that employers are held responsible if they are misclassifying workers as independent contractors.”


The onus should be on the employer to prove the worker is not an employee, instead of the current situation where a worker often has to prove she is a worker, she said. 


“The other area is, of course, enforcement because no matter how many changes you make to the law, if it’s not enforced… a lot of employers have said, ‘I’m trying to do the right thing, I’m trying to follow the law, but the employer down the street is not following the law and not being held responsible.’ 


“Having a regulated and enforced floor of protection means that employers who are following the law are respected, and those that are undercutting them by breaking the law are held accountable,” she said. 


“In some ways, it creates more stability for employers in not feeling like they have to compete in this race to the bottom.”

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