Repeal of mandatory retirement raises new concerns
The controversy over the elimination of mandatory retirement continues to flare up in Ontario, most recently over workers’ compensation for older workers.
Compensation for lost wages in that province ends at 65, or after two years for injuries after the age of 63. The employer’s obligation to re-employ a worker after injury also ends at 65, and older workers are also not eligible for compensation for loss of retirement income.
“To say you can stay on and work past the age of 65, but say you’re not covered for workers’ compensation, is grossly unfair,” said Sid Ryan, president of the Ontario Federation of Labour (OFL). “I’m flabbergasted as to why this has not been challenged until now.”
The OFL is meeting with officials from the province’s Workplace Insurance and Safety Board (WSIB) later this month to discuss both health and safety, and workers’ compensation. Ryan hopes to use the conference as a platform to discuss many on-going issues, including the lack of compensation available to older workers.
“This is an income security issue — period,” he said. “Whether it’s pensions or workers’ compensation, we have to make sure these workers are looked after.”
One of the most serious issues to overcome, according to Ryan, is the notion that workers’ compensation is an underfunded liability. He said this argument is being used to both decrease benefits for all workers and deny full benefits to older workers.
“It’s a red herring,” he said. “[The WSIB] is not going to close its doors and even if it does, it’s backstopped by the provincial government anyway. We have to get out from under that mentality.”
The OFL has opposed the elimination of mandatory retirement in Ontario from the start. Among the reasons, according to Ryan, is the fact the provincial government has allowed exemptions that create age-based discrimination.
A Toronto lawyer, John McKinnon, agrees. In a recent paper, delivered at an elder law conference in the city, he argued that legislative reform is needed. Aside from the unfairness of not providing benefits to older workers, he said there is also no compensation for the loss of ability to contribute to the Canada Pension Plan or the related loss of CPP benefits.
“Workers’ compensation benefits are based on net earnings and there is no mechanism to maintain contributions or entitlement for those who are unable to work due to a workplace injury,” he said.
McKinnon makes several recommendations, including the adoption of the model used in B.C. for duration of benefits. While the B.C. legislation does contain age 63 and 65 age limitations, it does allow older workers to present their individual circumstances. Where the workers’ compensation board is satisfied that a worker would have retired later than 65 years of age, the Board is allowed to pay compensation benefits up to the date when the worker would have retired.
Ryan is hoping to see other recommendations come from the upcoming conference. He said although workers over the age of 65 are a minority in the workplace, they need recognition and protection. He said the argument that they could be more accident-prone and therefore more costly in the long-term isn’t valid.
“If they get hurt and lose their ability to earn an income and can’t collect benefits, they have to rely on the health care system or welfare,” he said. “Surely to goodness it should be the employer who picks up the cost, not the taxpayer.”
Ryan said although the issue has been raised in collective bargaining, it typically falls off the agenda.
“You’re still looking at a tiny number of people,” he said. “Are locals willing to go on strike for one or two people? Job security and wages must still trump.”
Ryan is hopeful, however, that the upcoming conference will at the very least generate discussion and move the issue of workers’ compensation for older workers into the public arena.
