IX. List of Draft Recommendations

The Law Commission of Ontario recommends that:

 

1. a) The Ontario government, in consultation with labour and owner/management stakeholders, update, review and streamline the exemptions within the ESA and related regulations including a review of existing occupational specific exemptions, with the objective of ensuring any exemptions are justified on current public policy and industry considerations; and
b) the review develop and use principles that aim to promote a broadly available minimum floor of basic workers’ rights, including that justifications for exemptions be balanced against the need to reduce precarious work and provide basic minimum standards to a broader sector of the working population.

2. The Ontario government consider codifying within the ESA a broad policy statement highlighting its commitment to protecting basic minimum employment rights, supporting compliance and fostering public, employer and employee awareness and education.

 

 

 3. The Ontario government convene the minimum wage Committee, or similar body, to review minimum wage issues and recommend a transparent and fair process for determining future adjustments to minimum wage that balances business, economic, labour and poverty issues.

 

 4. The Ontario government consider amendments to the ESA to require all workers in equivalent positions to be paid at least at the same rate as their permanent full-time equivalents.

 

 5. The Ontario government, in consultation with labour, management and insurance representatives, explore options for the provision of benefits for non-standard and other workers without benefits coverage, with consideration given to the concepts of a benefits bank and mandatory short-term contract premium for temporary workers, among other options.

 

6. The Ontario government review personal emergency leave provisions in the ESA to determine ways to extend the benefit to workers in workplaces with fewer than 50 employees (including part-time, casual and temporary employees).

 

 7. The Ministry of Labour:

 

 a) launch a public awareness campaign on Employment Standards Act rights and responsibilities;
b) to support workers’ and employers’ needs for additional information about the ESA, continue to offer and to expand capacity for providing outreach through ESA informational/educational sessions including but not limited to those in high risk sectors and groups; and
c) develop partnerships with employer, employee and community organizations to enhance worker and employer knowledge of ESA rights and responsibilities.

 

 8. The Ontario government amend the ESA to require employers to provide the ESA poster in document format to all new employees in English and, to the extent possible, in the language of the employee.

 

9. a) The Ontario government amend the ESA to require employers to provide all employees with written notice of their employment status and terms of their employment contract; and
b) the Ministry of Labour develop standard forms to support employers in this task.

 

 10. The Ministry of Labour’s ESA enforcement continue to use a range of strategies including voluntary compliance, proactive inspections and responding to individual complaints. However, there should be greater emphasis on proactive enforcement processes.

 

 11. The Ministry of Labour:

a) engage in data collection and evaluation to determine the impact of the policy requiring employees to approach employers prior to initiating an ESA claim; and
b) consider reversal of policy if evaluation reveals negative impacts such as declines in claims attributable to the policy changes.

 

 

12. The Ministry of Labour improve communication about the vulnerable worker exemptions to approaching employers at the outset of an ESA claim.

13. The Ontario government facilitate and expedite the ESA claims-making process, by providing a mechanism for workers and employers to obtain person-to-person assistance in the claims process through additional support services such as Legal Aid Ontario clinics, Office of the Employment Standards Advisor and/or other types of worker and employer support services.

 

 

 14. The Ontario government:

a) expand time limitations to two years for all ESA remedies; and
b) raise the ESA monetary cap to $25,000.

 

 

15. The Ministry of Labour:

a) develop a mechanism ­- such as a hotline - for ESOs to receive third-party and/or anonymous complaints which could trigger proactive inspections; and
b) develop corresponding policy criteria to ensure that unfounded complaints did not trigger unwarranted inspections.

 

 

16. The Ministry of Labour:

 

 a) substantially increase proactive inspections particularly in higher risk industries based on established benchmarks;
b
) develop strategic, proactive enforcement initiatives that target high-risk for violation workplaces, including those comprised of concentrations of temporary foreign workers, temporary agency workers, recent immigrants, racialized workers, youth, the disabled and Aboriginal people, as well as areas known for high-rates of substandard practices;
c) conduct expanded investigations when violations are detected; and
d) ensure enforcement activities include follow-up on previous violations.

 

17. The Ontario government consider amending the ESA to allow for orders requiring employers found in violation of the ESA to cover the costs of investigations and inspections.

 

18. The Ministry of Labour strengthen ESO policy direction with supporting education to emphasize deterrence in terms of prosecution, penalties and sanctions for repeat violators and those who wilfully fail to comply with payment orders.

 

19. The Ontario government ensure adequate resources for ESA compliance and enforcement, with a particular emphasis on proactive enforcement.

 

20. The Ministry of Labour:

 

a) implement a joint labour-management employment standards work council as a pilot in a number of select non-unionized workplaces with high concentrations of vulnerable workers;
b) evaluate the pilot; and
c) if successful, implement ESA work councils in non-unionized workplaces.

 

21. The Ministry of Labour:

 

a) explore processes of reaching out to and focusing on the top echelon of industry to address ESA non-compliance among workers affiliated with the company particularly those subcontracted to small enterprises and temporary agency workers; and
b) identify and provide recognition and incentives for companies that are leaders in extending employment standards compliance to external workers particularly those subcontracted to small enterprises and temporary agency workers.

 

22. The Ontario government amend the ESA to include a process for expediting complaints of reprisals and, in the case of migrant workers, ensure that such complaints are heard before repatriation.

 

 

23. In coordination with the federal government, the Ontario government:

 

 a) institute a process for independent decision-making to review decisions to repatriate temporary foreign workers prior to the repatriation to ensure dismissal is not a reprisal for accessing workers’ rights under federal or provincial legislation or contract;
b) for reprisals, the independent-decision making body have the authority to order interim reinstatement for appropriate circumstances pending decisions and appeals; and
c) where there is a finding of reprisal, provision be made for transfer to another employer or, where appropriate, reinstatement.

 

 

24. The Ontario government support the establishment of greater legal and other supports for temporary migrant workers asserting rights and making claims through expanded legal services or other such mechanisms.

 

25. Unions and community groups continue to develop and expand innovative services to support migrant workers to assert their legal rights and make claims.

 

26. The Ontario government amend the AEPA by explicitly including the elements of bargaining in good faith protected by s.2(d) of the Charter as identified by the Supreme Court of Canada in Health Services and affirmed in Fraser.

 

27. Academics and/or a policy think tank in consultation with relevant stakeholders undertake a review of possible alternative models to traditional unionization and the Wagner model of collective bargaining to support and assist vulnerable workers in the workplace, including consideration of emerging models for representing worker interests in various forms of precarious work in Ontario, including agricultural work, domestic work, temporary agency work and others.

 

28. The Ministry of Labour convene an Innovative Solutions for Precarious Work Advisory Council of representatives of relevant ministries, experts, and labour and employer organizations to obtain advice and to develop initiatives for improved and expedited ESA compliance and enforcement with a view to recommending best practices for responding to the existing and emerging needs of vulnerable employees/precarious work in the changing workplace.

 

29. The Ontario government extend the Employment Protection for Foreign Nationals Act to all temporary migrant workers in Ontario.

 

 

30. The Ontario government negotiate an information-sharing agreement with Human Resources and Skills Development Canada and Citizenship and Immigration Canada to permit information to flow between Ontario and the federal government for the purpose of increasing protections for temporary foreign workers by:

 

a) strengthening federal-provincial oversight over temporary foreign worker contracts;
b) increasing enforcement of temporary migrant workers’ rights under provincial legislation; and
c) imposing consequences upon employers who violate provincial legislation or breach contractual agreements with temporary foreign workers.

 

 

31. The Ministry of Labour act to reduce misclassification of employees as self-employed by:

 

a) engaging in proactive compliance and enforcement processes directed at industries with known high incidences of misclassification;
b) increasing transparency in decision-making through policy guidance and training for employment standards officers on the definition of employee and the common law tests; and
c) launching a public education campaign to raise awareness of the issue of misclassification of employees under the Employment Standards Act.

 

32. The Ontario government consider extending some ESA protections to highly vulnerable low wage self-employed persons in dependent working relationships with one client and/or identifying other options for responding to their need for employment standards protection.

33. a) The Ontario government amend the ESA to require employers and contractors to provide all workers, including independent contractors, with written notice of their work or employment status and terms of their employment or work contract; and
b) The Ministry of Labour develop standard forms to support employers and contractors in this task.

 

 

34. OHSA enforcement activity include proactive inspections to ensure joint health and safety committees and representatives are in place where required and are effectively operational.

35. The Ontario government ensure that stakeholder discussions between industry and government regarding health and safety include workers or their representatives.

 

 

36. a) The Ministry of Labour conduct more proactive inspections in industries employing vulnerable workers at high risk for workplace injuries including agriculture, hospitality and cleaning and workplaces with temporary staffing agency workers; and
b) temporary foreign workers in all sectors be a priority for Ministry of Labour’s proactive OHSA enforcement activities.

 

37. The Ontario Labour Relations Board, the Ministry of Labour and the Office of the Worker Advisor ensure that systems are in place for temporary foreign workers to access the expedited OLRB processes when pursuing s.50 complaints.

38. a) The Ontario government implement the section 21 Vulnerable Workers Committee as recommended by the Dean Report;
b) Among other issues, the Committee address the following:  i. prioritizing health and safety training, both basic and hazard specific, for migrant workers and their supervisors;
ii. determining ways to provide access to basic rights training and hazard specific training to migrant workers either prior to arrival in Canada through consulates or immediately upon arrival; and
iii. identifying sectors where there are concentrations of vulnerable workers so that proactive enforcement activities are directed at these sectors.

 

 

 

 

 

 

39. The Ontario government implement recommendations 10, 14, 15, 16, 17, 29, 30, 31 and 32 of the Dean Report.

 

 

 

 

 

 

40. The Ontario government assess the impacts of WSIB/OHSA policies and practices on temporary agency workers that contribute to increasing the vulnerability of these workers, particularly the practice of not recording health and safety incidents on the client employer’s records.

 

 

 

 

 

 

41. The Ontario government:

 

 

 

a) explore health and safety supply-chain mechanisms to address the issue of subcontracting to small enterprises and particularly to temporary agency work; and
b) implement the Dean Report recommendations relating to supply chain regulation through government procurement policies and WSIB financial incentives for employers that qualify suppliers based on health and safety performance.

 

 

42. The Ontario government implement:

 

 

 

 

 

 

a) a pilot mobile medical clinic service for migrant workers in rural areas where they reside providing access to medical care and corresponding support to facilitate WSIB claims, where appropriate; and
b) direct service or translation in the language of migrant worker.

 

 

 

 

 

 

43. Employers, F.A.R.M.S., local governments and community and worker advocacy organizations, work together to continue to find ways to fund and implement medical, legal, spiritual and social supports to migrant workers.

 

 

 

 

 

44. The Ontario government engage the College of Trades (perhaps in partnership with sectoral councils, colleges and unions) to develop skills recognition criteria for a broader range of workers, including workers employed through a series of short-term contracts with different employers.

 

 

 

 

 

 

45. Ontario work with the federal government to utilize the expertise of sectoral councils operating in Ontario to develop:

 

 

 

a) a system of accreditation for industry skills learned on-the- job; and
b) greater capacity as employment agencies through electronic bulletin boards and job fairs.

 

 

 

 

 

46. a) Second Career and other training programs be assessed for their ability to reduce precarity through increased credentials that translate into increased wages, benefits, hours, duration of employment and other key measures of employment security; and
b) programs that demonstrate measures of success based on these criteria should be expanded.

 

 

 

 

 

 

 

 

47. The Ontario government develop ways to more closely track present and emerging labour market needs linking these with employment and training initiatives.

48. The Ontario government should implement Recommendation 9-3 of the Drummond Report by negotiating with the federal government for a comprehensive training agreement not tied to Employment Insurance.

 

 

 

49. The Ontario government:

 

 

 

 

 

 

a) develop employer-government partnerships for on-the-job training in real jobs for individuals working in lower skilled positions that facilitate placement into better, more secure jobs;
b) continue to support self-funded education initiatives including those that provide upskilling for certification; and
c) increase bursary and loan programs for self-funded education, where possible.

 

 

50. The Ontario government:

a) prioritize the provision of education and training programs for targeted communities of vulnerable workers including women, racialized persons and recent immigrants;
b) focus its training and education programs for immigrants on individual investment in continuing education leading to certification; employer supported on-the-job training; and English-language competence prioritizing entry into programs within the first months after arrival; and
c) focus literacy skills education on providing a high degree of literacy skills that are transferable to the Ontario labour market.

 

 

 

 

 

 

 

 

51. The Ontario government improve coordination and integration of integration and settlement programs for newcomers with other Ontario programs including Employment Ontario’s employment and training programs.

 

 

 

52. The Ontario government:

a) build upon principles of the Poverty Reduction Strategy to develop and implement a multi-sectoral/cross-ministerial employment strategy coordinated by an identified lead Ministry with the objective of improving support to vulnerable workers and reducing employment precarity among the most disproportionately affected; and
b) measure initiatives on the basis of whether programs create or enable participants to engage in secure and sustainable work.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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