The Law Commission of Ontario (LCO) has initiated a project to consider the degree of regulatory protection afforded to persons in various forms of “precarious” employment. We refer to people engaged in precarious employment as “vulnerable workers”. The Project examines the rise in precarious work in recent years in Canada and the increasing shift away from the standard employment relationship (SER), which has typically been associated with full-time, permanent work, with benefits, by one employer over the long term. Precarious employment, on the other hand, typically has the following characteristics:
• a lack of stability or control over income, hours worked, scheduling;
• low wages;
• lack of benefits;
• weak to non-existent regulatory protection;
• difficulty enforcing legal protections that do exist;
• often a non-unionized work setting; and
• increased risk of injury and ill health.
Regulatory protections for workers were designed on the basis of the SER, and access to other social benefits such as EI and CPP entitlements are also based primarily on the SER. With a shift away from the SER, many of these protections or entitlements are not available to those with precarious jobs.
The Project will considers the impact of precarious work on the daily lives of vulnerable workers and will make recommendations to ameliorate the situation of vulnerable workers, while taking into account the needs of employers and the benefits to Ontario society at large.
The literature identifies temporary, part-time and own-account self-employment (self-employed persons where the contract relationship is very similar to an employment relationship) as primary areas of precarious employment. However, we are also interested in other forms of work or work relationships that might create precarity in employment.
A key focus of the Project is the impact of precarious employment on diverse communities, particularly immigrants, migrant workers, racialized workers and women. Although we recognize that older adults and persons with disabilities could often be categorized as vulnerable workers as well, we have separate projects dealing with those subgroups so have chosen not to consider them in this Project.
On February 17, 2011, a Background Paper and Consultation Paper for this Project were released to over 200 groups and individuals on our stakeholder list, and both documents are posted on the LCO’s website. We have invited written submissions by April 1, 2011. We will also be attending consultation meetings with interested groups of workers, employers, advocates, government officials, and academics.
The LCO is now commencing the second stage of the Project with this Call for Research Papers. The LCO intends to fund relevant research that explores issues, reform options, and principles that arise in relation to vulnerable workers and precarious employment. Completed papers will be posted on the LCO’s website and will be considered in drafting the Interim and Final Reports for this Project.
2. PAPERS TO BE FUNDED
The objective of this Call for Research Papers is to obtain expert input on issues relating to vulnerable workers and precarious employment to allow the LCO to make reasoned and practical reform recommendations that would, if adopted, ameliorate the situation of vulnerable workers while taking into account the needs of employers and the benefits to Ontario society at large. A further objective is to create critical debate about law reform and promote scholarly research in this area of the law.
b. General Criteria
Proposals for papers should consider, as applicable:
1. the impact of precarious employment on the daily lives of vulnerable workers,
2. systemic issues that might contribute to the rise in precarious employment in Ontario,
3. the Charter of Rights and Freedoms, Ontario Human Rights Code, Ontario labour statutes and relevant international legal documents;
4. relevant law reforms, operational or non-legal initiatives and best practices in jurisdictions outside Ontario,
5. the practical feasibility of any proposed reform options, including case studies that may lend support to law reform options that are advanced, and
6. the needs and interests of employers and the business community and how they are to be balanced with the needs and interests of vulnerable workers.
In selecting proposals, the LCO is particularly interested in different theoretical approaches, new and innovative law reform options, an analysis that explores the various subgroups of vulnerable workers and an intersectional approach. The LCO takes a holistic approach to law reform and encourages multi-disciplinary research and applications from interdisciplinary research teams. The LCO invites applicants not only with legal backgrounds but also those with expertise in other disciplines to make proposals on the topics identified below.
c. Paper Topics
The LCO has identified three potential Research Paper topics for this Project and will fund a maximum of two, after considering all proposals received:
1. Costs of Non-Compliance or of Failing to Adequately Protect Vulnerable Workers
If additional legal protections are to be afforded to vulnerable workers, we must consider the cost to employers and businesses. However, if nothing is done to improve enforcement of existing rights or advance greater protection, other and potentially more detrimental risks and costs may arise. Those risks and costs must be canvassed to assess the potential impact of doing nothing to ameliorate the situation of vulnerable workers.
Some of these risks may include aggravating the looming labour shortage expected in Ontario in the upcoming decades. If labour protections are insufficient or not enforced, it creates disincentives for workers to come to Ontario. Also, if low-skilled workers face barriers to elevate to more stable and higher-skilled positions, they will not be able to supply the demand for those positions in the future.
There are also direct and indirect economic costs. Employers who classify workers as independent contractors will not contribute to the Canada Pension Plan or Employment Insurance program. There may be a loss of tax revenue if income tax is not deducted from the source. Workers who cannot find full-time work or who are not sufficiently paid may have to rely on tax-funded social and housing support programs. Also, those with limited incomes will not have significant consumer expenditures which would otherwise spur on greater economic activity that will stimulate GDP. There may also be health costs associated with some precarious work that may weigh on our publicly funded health care system.
Non-compliance with regulatory standards by some employers also creates unfair competition for those employers who do comply. One employer will enjoy reduced labour costs, while the compliant employer will be at an unfair disadvantage with higher labour costs. Therefore, a consequence of non-compliance may be that compliant businesses will face greater economic challenges than those who do not.
With this background, the LCO seeks a Research Paper that will offer a broadly conceived economic analysis of the “costs” to employers, businesses, and Ontario society at large in the following two situations:
(1) If nothing is done. That is, if existing labour protections are not better enforced and if no further protections are afforded to vulnerable workers.
(2) If improved protections for vulnerable workers are legislated and are more vigorously enforced.
The approach to “costs” should be broad in scope and should include direct costs to businesses, and broader economic costs associated with lost tax revenue, losses arising from reduced consumer expenditures and lost productivity or investment in Ontario businesses from labour shortages. To the greatest extent possible, costs should be estimated.
2. New Approaches to Enforcement & Compliance with Labour Regulatory Standards
Several employment-related statutes, such as the Employment Standards Act (ESA), Occupational Health and Safety Act (OHSA), and Workplace Safety and Insurance Act (WSIA) prescribe enforcement mechanisms. Many of these enforcement mechanisms are primarily complaint-driven, relying on the individual whose rights have been infringed to bring forward a complaint. This type of enforcement mechanism may place vulnerable workers in a difficult situation due to fear of reprisal or lack of information about their rights and about how to enforce such rights. Complaints, however, may not be the exclusive method used to promote compliance. The Ministry of Labour may offer basic information about employment rights and obligations through brochures and telephone hotlines for employers and workers. Other businesses and business organizations may offer other ways to promote compliance among employers.
Enforcing employment rights can also become difficult when the “employer” is not clearly identifiable. With the growth of supply chains and sub-contracting, a legal distance between the worker and the entities that benefit from the worker’s labour may create challenges to enforcing rights. Also, the ability to fully enforce a worker’s rights may be most effective when the worker has a form of representation, for example, through a union.
In other regulatory contexts, new enforcement and compliance mechanisms are being used: administrative monetary penalties, licence suspensions and revocations are some examples. Some workers’ advocates have proposed greater use of the traditional but harsher enforcement tools, such as hefty fines and imprisonment for breaches of minimum employment standards. There are also arguments in favour of employers and the business community taking an active role in enforcing labour standards so that those who are non-compliant do not enjoy an unfair competitive advantage.
Employers and government may find ways to promote best practices among employer groups that further promote compliance.
With this background, the LCO seeks a Research Paper that will:
(1) Provide an overview of existing enforcement and compliance mechanisms under Ontario’s labour and employment statutes. Programs offered by the Ministry of Labour or other groups of businesses or employers to promote compliance should also be identified;
(2) Using available statistics, reports and studies, assess the effectiveness of these existing enforcement and compliance mechanisms;
(3) Research enforcement and compliance mechanisms that exist in other regulatory contexts in Ontario and in other Canadian jurisdictions and relevant non-Canadian jurisdictions to develop a list of potential reform options. Reform options should expressly consider new and innovative ways in which workers, employers and government can promote greater compliance with regulatory standards; and,
(4) Critically assess the proposed reform options with a view to promoting greater compliance with Ontario’s labour regulatory statutes and regulations.
3. Data On Vulnerable Workers In Ontario
Statistical reports on vulnerable workers are available from various sources (e.g., Statistics Canada, Labour Force Survey, Census, and other sources). These reports cover different periods of time, different groups of workers, and different geographic regions of Canada. There does not appear to be available a comprehensive statistical report for Ontario alone that examines historical trends, classifications of vulnerable workers, and the most current data from the 2006 census.
With this background, the LCO seeks a statistical report that is focused on Ontario, but references key jurisdictions outside of Ontario for comparison purposes, that:
(1) Identifies trends in employment over the preceding 30 years and in particular, work that is part-time, temporary, and own-account self-employment, as well as work governed by the standard employment relationship;
(2) Identifies industries in which these types of positions have either significantly increased or decreased;
(3) Identifies groups of workers, based on gender, membership in racialized communities, immigrant status, migrant worker status and other groups who are disproportionately represented in precarious jobs;
(4) Identifies income differentials among any of the groups or types of job held;
(5) Identifies other factors that would be relevant to assessing the impact of precarious jobs on the lives of those who hold these positions; and
(6) Draws statistical conclusions that would inform our analysis and development of reform options to improve the situation of vulnerable workers.
3. SUBMISSION PROCESS
a. Selection Criteria
Proposal will be evaluated on the degree to which they:
1. Would support the objectives of the LCO’s Vulnerable Workers and Precarious Work Project;
2. Are coherent with the mission of the LCO;
3. Demonstrate professional qualifications and expertise on the topic to be studied; and
4. Demonstrate a sound analytic framework and research methodology.
b. Format of Proposals
Submitted research proposals must contain the following materials:
1. A statement outlining the proposed research, how the research would support the objectives of the Project as outlined in this Call for Proposals and the Background Documents, and the scope and the type of work envisioned;
2. A workplan that outlines:
• the proposed research methodology;
• the steps required to complete the assignment on the dates listed below;
• an estimate of the resources required to complete the assignment.
3. A cover letter detailing the applicant’s qualifications and the reasons why the applicant is interested in undertaking this research;
4. A Curriculum Vitae for each principal researcher.
Incomplete proposals may not be considered.
c. Proposal Deadlines
Research proposals must be submitted by midnight on April 18, 2011. Proposals received after this date will not be considered. Authors of successful proposals will be notified by April 29, 2011.
d. Contact Information
Please forward your proposals to:
MAG LCO Counsel in Residence
Law Commission of Ontario
276 York Lanes, York University,
4700 Keele St., Toronto, ON M3J 1P3
Questions should be addressed to Mohan Sharma, at MSharma@lco-cdo.org or (416) 650-8401.
4. TERMS OF THE CALL FOR RESEARCH PAPERS
The Terms of the Call for Research Papers will be as follows:
a. Budget Guidelines
The selected Applicants will be paid a total of $15,000 (including GST) for the paper when completed in accordance with the agreement as determined by the LCO.
b. Deliverables and Timetable
Applicants who are successful in contracting to provide a research paper set out above will be required to complete a Detailed Outline, an Interim Research Paper and a Final Research Paper (the “Deliverables”). The Interim Research Paper must be a substantially complete version of the Final Research Paper and subject only to slight revisions. The Interim Research Paper must be formatted and footnoted in accordance with the LCO’s formatting policy. The Interim Research Paper and the Final Research Paper must assess and analyze all of the issues described under the appropriate paper topic in Section 2(c) above, “Papers to be Funded – Paper Topics”.
A selected applicant must provide the LCO with the Deliverables in accordance with the agreement by these dates:
May 16, 2011 – Detailed Outline – $2,500
Aug 8, 2011 – Interim Research Paper – $5,000
Sept 6, 2011 – Final Paper – $7,500
Compliance with the above due dates is of critical importance to the LCO. In the event that a due date is not met, the LCO may choose to terminate the agreement. Where the agreement is terminated, the LCO is not obligated to provide payment for any Deliverable that has not been provided to the LCO at the time of termination.
Contract researchers are expected to assign copyright to the LCO, but will retain moral rights to their work. Contract researchers will be given credit for their work when the LCO publishes materials resulting from their work in any format. Contract researchers may write separate materials, such as articles, arising out of their research for the LCO, with acknowledgement that the work was originally carried out for the LCO. Applicants are encouraged to review the LCO’s Policy on Copyright & Attribution.