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 cov