Endnotes2017-03-03T18:35:39+00:00

[1] Equal authorship

[2] International Labour Organization (ILO), “Towards a Policy Framework for Decent Work” (2002) 141:1-2 International Labour Review, 161.

[3] Leah F. Vosko, “‘Decent Work’: The Shifting Role of the ILO and the Struggle for Global Social Justice” (2002) 2:1 Global Social Policy, 19; and, Leah F. Vosko, Managing the Margins: Gender, Citizenship, and the International Regulation of Precarious Employment (Oxford, UK: Oxford University Press, 2010).

[4] ILO, Programme on Promoting the Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 2004).

[5] ILO, ILO Declaration on Social Justice For A Fair Globalization (Geneva: ILO, 2008).

[6] Lance Compa, “NAFTA’s Labour Side Agreement Five Years On: Progress and Prospects for the NAALC” (1999) 1:1 Can. Lab. & Emp. L.J., 1.

[7] Archives of Ontario (AO) Record Group 7-78. Initial Submission, Management by Results and Estimates, 1979/80. 12 July 1978, 6.

[8] Archives of Ontario, Record Group 7-78, Letter, John R. Scott, Director, Re: The Employment Standards Act, 1974 & The Automatic Car Wash Industry, 4 April 1975.

[9] Archives of Ontario Record Group 7-1, File 7-1-0-1532.1, box 54, Notice to Employers and Employees (1969).

[10] David Weil, “Crafting a progressive workplace regulatory policy: Why enforcement matters” (2007) 28 Comparative Labor.Law & Policy J., 125.

[11] A. Haviland, R. Burns, W. Gray, T. Ruder,  & J. Mendeloff, “What kinds of

injuries do OSHA inspections prevent?” (2010) 41 Journal of Safety Research,  339; K. Kilkon, J. Mendeloff, & W. Gray, “The role of inspection sequence in compliance with the US Occupational Safety and Health Administration’s (OSHA) standards: Interpretations and implications” (2010) 4 Regulation & Governance,  48; K. Purse, & J. Dorrian, “Deterrence and enforcement of occupational health and safety law” (2011) 27:1 The International Journal of Comparative Labour Law and Industrial Relations,  23; and, Weil note 10.

[12] Department for Business Enterprise and Regulatory Reform (DBERR) Vulnerable worker enforcement forum: Final report and government conclusions (London: Department for Business, Enterprise and Regulatory Reform, 2008); R. Saunders and P. Dutil,  New approaches in achieving compliance with statutory employment standards (Ottawa: Canadian Policy Research Networks Inc. & The Institute of Public Administration of Canada,2005); P.L. Gallina, New compliance strategies: ‘Hard law’ approach, A report prepared for the Federal Labour Standards Review/Examen des Normes du Travail Federales (Ottawa: Human Resources Development Canada, 2005); National Employment Law Project (NELP) Just pay: Improving wage and hour enforcement at the United States Department of Labour (New York: National Employment Law Project, 2010); and, David Weil, Improving workplace conditions through strategic enforcement: A report to the Wage and Hour Division. (Boston, Mass.: Boston University, 2009).

[13] A. Pollert, “The Unorganised Worker: The Decline in Collectivism and New Hurdles to Individual Employment Rights” (2005) 34:3 Industrial Law Journal,  217.

[14] David Weil, “Public enforcement/private monitoring: Evaluating a new approach to regulating the minimum wage” (2005) 58:2 Industrial and Labour Relations Review,  238.

[15] See for example J. Fine  & J. Gordon, “Strengthening labor standards enforcement through partnerships with workers’ organizations” (2010)  38 Politics & Society,  552.

[16] G. Maconachie,  & M. Goodwin, “Recouping wage underpayment: Increasingly less likely?” (2006) 41:3 Australian Journal of Social Issues,  327.

[17] Gallina, note 12 and NELP note 12.

[18] Saunders & Dutil note 12. 

[19] Kent Elson, “Taking workers’ rights seriously: Private prosecutions of employment standards violations” (2008) Windsor: University of Windsor Yearbook Access to Justice, 2008)need journal citation

[20] P. Macklem, & M.Trebilcock, (2006) New labour standards compliance strategies: Corporate codes of conduct and social labeling programs. (Ottawa: Federal Labour Standards Review, 2006).

[21] T. Hardy, & J. Howe, “Partners in enforcement? The new balance between

government and trade union enforcement of employment standards in Australia” (2009) 23:3

Australian Journal of Labour Law, 306; and, Maconachie & Goodwin note 16.

[22] Hardy & Howe note 21.

[23] D. Walters, & P. James, (2011) “What motivates employers to establish preventive management arrangements within supply chains?” (2011) 49 (7), Safety Science, 988.

[24] C. Estlund, “Rebuilding the law of the workplace in an era of self-regulation” (2005) 105 (2)

Columbia Law Review, 319.

[25] Macklem & Trebilcock, note 20; and, M. Thomas, “Regulating Labour Standards in the Global Economy: Emerging Forms of Global Governance” In G. Teeple and S. McBride (eds.), Relations of Global Power: Neoliberal Order and Disorder. (Toronto: University of Toronto Press, 2011) 95.

[26] Gallina note 12 and Department for Business Enterprise and Regulatory Reform (DBERR) note 12.

[27] Saunders & Dutil, note 12 and S. Tombs & D. Whyte, “A deadly consensus: Worker safety and regulatory degradation under New Labour” (2010) 50, British Journal of Criminology 46.

[28] L. Dickens, “Delivering fairer workplaces through statutory rights? Enforcing employment rights in Britain” (2009) Paper presented at the 15th World Congress of the International Industrial Relations Association, Sydney, Australia.

[29] Mark Thomas, Regulating Flexibility: The Political Economy of Employment Standards. (Montreal & Kingston: McGill-Queen’s University Press, 2009).

[30] Archives of Ontario, “Ontario Labour Minister Elgie Presents Ministry Year-End Review,” News Release, 11 January 1982 RG 7-186.

[31] Ontario Ministry of Labour Bill 85 Amendments to the Employment Standards Act. Employment Standards Bulletin. (Toronto: Ministry of Labour, 1987).

[32] Archives of Ontario , “Labour Minister Announces the Creation of the Employee Wage Protection Program”, News Release, 11 April 1991,RG 7-186,

[33] Eaton, J. (1996) “Province shifts employment standards responsibility. Changes put onus on unions to ensure rules are applied”, Toronto Star, Monday, 2 December 1996, C3.

[34] M. Gellatly, J. Grundy, K. Mirchandani, A. Perry, M. Thomas and L.F. Vosko  “’Modernizing’ Employment Standards? Administrative Efficiency, Market Regulation, and the Production of the Illegitimate Claimant in Ontario, Canada” (2011) 22(2), Economic and Labour Relations Review, 81; and, Leah Vosko, “A New Approach to Regulating Temporary Agency Work in Ontario or Back to the Future?” (2011) 65(4), Relations Industrielles/Industrial Relations, 632.

[35] Gellatly et el note 34.

[36] Ontario Ministry of Labour,  “Proposed Open for Business Act – What Others Are Saying”, News Release, 17 May 2010,online: http://news.ontario.ca/medt/en/2010/05/proposed-open-for-business-act—what-others-are-saying.html [ accessed 10 December 2010].

[37] Ontario Ministry of Labour, “New Legislation Modernizes Ontario’s Employment Standards” News Release, 25 October 2010, online: http://www.labour.gov.on.ca/english/news/bulletin_ofba.php [accessed 15 Nov 2010].
[38] Ontario Ministry of Labour, note 36.

[39] Ontario Ministry of Labour, “Employment Standards Task Force” (2010) online: http://www.labour.gov.on.ca/english/es/pubs/is_estf.php, [accessed 15 Nov 2010].
[40] The administration Manual for Employment Standards (AMES) sets out procedures for the administration and enforcement of the ESA, 2000. It documents the practices and procedures established by the Director and to be followed by ESOs and other program staff, whether conducting investigations or otherwise administering or enforcing provisions of the Act.  Ontario Ministry of Labour, Administration Manual for Employment Standards (AMES), Employment Standards Program, (2010). On file with authors.

[41] Employer Workbook, Public Holiday Pay Calculator, Severance Tool, and Termination Tool. See Ontario Ministry of Labour, online: http://www.labour.gov.on.ca/english/es/tools/index.php [accessed 23 August 2011]. 

[42] Ontario Ministry of Labour “Employment Standards Program Annual Report, 2009-2010” (2010). On file with authors.

[43] For example, exceptions are made for young workers, live-in caregivers, people with language barriers or a disability, workers that are afraid to contact the employer, workers with non-monetary complaints, workers approaching the 6 month time limit or when the employer has closed or gone bankrupt.

[44] Marion Lane Administration in Action: An Institutional Analysis of the Ontario Employment Standards Branch (Berkeley: University of California, 1977). On file with authors.

[45] Office of the Provincial Auditor of Ontario, 2004 Annual Report, at  239.  Online: http://www.auditor.on.ca/en/reports_en. [accessed 12 July 2011].

[46] Ontario Ministry of Labour, note 42.

[47] Gellatly et al, note 34.

[48] Ontario Ministry of Labour, note 40  Chapter 5,at 83. .

[49] Workers’ Action Centre (2007) Working on the Edge, online:  http://www.workersactioncentre.org/!docs/pb_WorkingOnTheEdge_eng.pdf (accessed July 12, 2011).

[50] Ontario Ministry of Labour, Meeting with Workers’ Action Centre & Parkdale Community Legal Services. ES Modernization Progress Update prepared by the Employment Practices Branch, (March 4, 2011). On file with authors. 

[51] Ontario Ministry of Labour, note 42.

[52] In 1996, the MOL privatized some of its collection activities. In cases where wages are not recovered through claims investigation or from the Trust Fund, collections are done by a private collection agency on contract with the Ministry.

[53] Employers seeking to appeal an Order to Pay must put the amount of monies owing into the Ministry of Labour Trust Fund to proceed at the Ontario Labour Board. These amounts are monies that workers received following the Labour Board Appeal.

[54] Ontario Ministry of Labour, note 40 at  Chapter 4 – Inspections  4.

[55] Lane at note 44.

[56]  Ontario Ministry of Labour, “New Legislation and beefed up enforcement reaches out to vulnerable workers,” 26 April 2004 Press Release. Online: http://news.ontario.ca/archive/en/2004/04/26/McGuinty-government-acts-to-protect-workers.html [accessed 9 June 2011].

[57] Ontario Ministry of Labour, “Dedicated Team to Enforce New Laws That Protect Ontario’s Vulnerable Workers”  (2011) ; online: http://www.labour.gov.on.ca/english/es/pubs/es_det.php; [accessed 28 August 2011].
[58] Ontario Ministry of Labour, Employment Standards Program Annual Report 2008-2009, (2009) at23. On file with authors.

[59] For a fuller discussion of racialized and gendered labour market segmentation, see Leah Vosko (ed) Precarious Employment: Understanding Labour Market Insecurity in Canada. (Montreal and Kingston: McGill-Queens University Press,2006) ; Mark Thomas, note 29 at 19 – 29; and Grace-Edward Galabuzi  Canada’s Economic Apartheid: The Social Exclusion of Racialized Groups in the New Century (Toronto: Canadian Scholars Press Inc., 2006).

[60] Leah Vosko, Temporary Work: The Gendered Rise of a Precarious Employment Relationship. (Toronto: University of Toronto Press, 2000) at.49.

[61] Annette Bernhardt, Heather Boushey, Laura Dresser and Chris Tilly (eds) The Gloves Off Economy: Workplace Standards at the Bottom of America’s Labor Market (Labor and Employment Relations Association Series, 2008) at 3.

[62] Law Commission of Canada Is Work Working? Work Laws that do a Better Job: Discussion Paper. (2003) Online: http://dalspace1.library.dal.ca/dspace/handle/10222/10307  [accessed 5 July 2011] at 34.

[63]  Thomas note 29 at 137.

[64] While the gap has lessoned with recent minimum wage increases, Ontario’s minimum wage is still below the poverty level. In 2008, a person working full time, all year in an urban centre would need $10.70 per hour to reach the Low Income Cut Off. Statistics Canada Low Income Cut-offs for 2008 and Low Income measures for 2007 (2009) Online: http://www.statcan.gc.ca/pub/75f0002m/2010005/tbl/tbl02-eng.htm [accessed 28 August 2011].

[65] Andrew Jackson, “Organizing Low Wage Workers: Performance and Prospects” Canadian Labour Congress, Thursday March 2, 2006. Online: http://www.canadianlabour.ca/news-room/publications/organizing-low-wage-workers-performance-and-prosects [last accessed 11 January, 2010].

[66] For fuller discussions of this in Ontario, see Workers’ Action Centre note 49 and Judy Fudge, “Reconceiving Employment Standards Legislation: Labour Law’s Little Sister and the feminization of Labour” (1991) 7,  Journal of Law and Social Policy, 73 and, in the United States, see Bernhardt et el note 61.

[67] See Fudge note 66,  Vosko note 59, Workers’ Action Centre note 49 and Saunders & Dutil, note 12

[68] Cynthia Cranford and Leah Vosko “Conceptualizing Precarious Employment: Mapping Wage Work Across Social Location and Occupational Context” in Leah Vosko note 59, 43-66.

[69] Workers’ Action Centre, note 49.

[70] Human Resources Development Canada, Evaluation of Federal Labour Standards (Phase I) Final Report (Ottawa: HRDC, 1997) at 41.  Online:  http://www.hrsdc.gc.ca/eng/cs/sp/hrsdc/edd/reports/1997-000439/page00.shtml [acessed: 21 August 2011]

[71] 2005 Statistics Canada Federal Jurisdiction Workplace survey of employment practices, cited in Harry Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century, (Ottawa: Federal Labour Standards Review, 2006) at 192.

[72] Workers’ Action Centre , note 49 at  46

[73] Workers’ Action Centre (2011) Unpaid Wages, Unprotected Workers: A Survey of Employment Standards Violations http://www.workersactioncentre.org/!docs/pb_unpaidwagesunprotectedworkers_eng.pdf.  [accessed 29 August 2011]

[74] These figures are not adjusted for inflation and therefore understate the decline in funding. Data derived from Ontario Ministry of Labour, “Historical Funding – Operations, 1997-98 to 2006-07,” Monday April 16, 2007. On file with authors; Ontario Ministry of Labour, “Annual Report of 2007-08”, July 8, 2008. On file with authors; and, Statistics Canada, Labour force survey, Table 282-0054, Online: http://www5.statcan.gc.ca/cansim/a05?lang=eng&id=2820054

[75] Ontario Ministry of Labour , note 42.    

[76] Saunders & Dutil  note 12 at 2.

[77] Ontario Ministry of Labour, note 42.

[78] The Ministry of Labour reports that in 2008 there were approximately 21,000 employees in Ontario working under the federal Live-in Caregiver Program.  As of December 2008, the number of migrant workers under the federal temporary foreign worker program topped 250,000, greater than the number of newcomers who were granted permanent residency status. Ontario Ministry of Labour, “Ontario Helping Live-In Caregivers” Press release, October 21, 2009. Online: http://news.ontario.ca/mol/en/2009/10/ontario-helping-live-in-caregivers.html [accessed 14 July 2011]

[79] Statistics Canada, Employment Insurance, June 2009 The Daily August 25, 2009.  Online: http://www.statcan.gc.ca/daily-quotidien/090825/dq090825a-eng.htm  [accessed 14 July 20111]

[80] Office of the Provincial Auditor of Ontario, note 45.

[81] Although those immigrants arriving in the last 10 yeas that live in urban centres are slightly more likely to use the internet than Canadians as a whole. Statistics Canada, “Canadian Internet Use Survey” The Daily, June 12, 2008. http://www.statcan.gc.ca/daily-quotidien/090612/dq080612b-eng.htm [accessed 12 July 2011]

[82] Data run by Soyini Barrington, Policy and Research, Legal Aid Ontario, July 8, 2009. On file with Authors.

[83] Cohl, Karen and George Thomson, Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services, (Toronto: The Law Foundation of Ontario, 2008), at 13. Online: http://www.lawfoundation.on.ca/pdf/linguistic_rural_report_dec2008_final.pdf [accessed 18 July 2011]

[84] Grenier, S., S. Jones, J. Strucker, T.S. Murray, G. Gervais, and S. Brink (2008) International Adult Literacy Survey Learning Literacy in Canada: Evidence from the International Survey of Reading Skills, Statistics Canada, Catalogue no. 89-552-MIE—No. 19., p. 37. Online: http://www.nald.ca/library/research/stats/llc/llc.pdf [accessed 18 July 2011].

[85] Statistics Canada, “Low Income Lines: 2008-2009” Online: http://www.statcan.gc.ca/pub/75f0002m/2010005/tbl/tbl02-eng.htm [accessed 13 July 2011].

[86] Sheila Block, Ontario’s Growing Gap: The Role of Race and Gender, Growing Gap Series, (Toronto: Canadian Centre for Policy Alternatives, 2010) at 5.

[87] Cheryl Teelucksingh & Grace-Edward Galabuzi, Working Precariously: The Impact of Race and Immigrant Status on Employment Opportunities and Outcomes in Canada (Toronto: The Canadian Race Relations Foundation, 2005) at 9.

[88] Arthurs note 72 at 71, 

[89] Ontario Ministry of Labour, “BACKGROUNDER: Employment Standards Ministry Success” (2011) Online: http://www.labour.gov.on.ca/english/news/nr_esenforcement110729.php  [accessed: 6 September 2011]

[90] Eric Tucker, “Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom,”  paper for Theo Nichols Conference, “Safety or Profit”, Cardiff University, January 11, 2011 [on file with authors].

[91] Ontario Ministry of Labour (2011) BACKGROUNDER: Employment Standards: Education and Enforcement. Online:  http://www.labour.gov.on.ca/english/news/bg_esenforcement110729.php. Accessed September 6, 2011

[92] Tucker note 90.

[93] Commonly referred to as the ‘Dean Report’. Tony Dean,  Expert Advisory Panel on Occupational Health and Safety: Report and Recommendations to the Ministry of Labour. (2010) Toronto: Ministry of Labour, Online: http://www.labour.gov.on.ca/english/hs/pdf/eap_report.pdf [last accessed: September 28, 2011].

[94] Ontario (Labour) v. United Independent Operators Limited [2011] ONCA 33.  I leave aside the question of when duties may be owed to members of the public who are present at a workplace.  For example, see Blue Mountain Resorts Ltd. v. Den Bok [2011] ONSC 1909 (upholding an OLRB decision that the requirement under s. 51(1) to report deaths or critical injuries to “persons” at a workplace extends to guests).

[95] R. v. Inco Ltd. [2001] 54 O.R. (3d) 495 (ONCA); OHSA, s. 56.

[96] G. Gray, G. “The Responsibilization Strategy of Health and Safety.” (2009) 49 British Journal of Criminology, 326 at 332.

[97] Ontario Court of Justice, Set Fines I of the Provincial Offences Act ,  online: http://www.ontariocourts.on.ca/ocj/en/setfines/one/ [last accessed 3 October 20111].

[98] H. Glasbeek, & S. Rowland, “Are Killing and Injuring at Work Crimes?” (1979)  17 Osgoode Hall Law Journal. 506; Eric Tucker  “The Westray Mine Disaster and its Aftermath: The Politics of Causation.” (1995) 10:1 Canadian Journal of Law and Society.91.

[99] Eric Tucker, Administering Danger in the Workplace: The Law and Politics of Occupational Health and Safety Regulation in Ontario 1850-1914 (Toronto: University of Toronto Press, 1990).

[100] G.G. Mackenzie & J.I. Laskin, Report on the Administration of the Occupational Health and Safety Act (Toronto: Ontario Ministry of Labour, 1987) and, D. Smith, Consulted to Death. (Manitoba: Arbeiter Ring, 2000).

[101] Eric Tucker, “The Politics of Occupational Health and Safety in a Cold Climate: Diverging Trends in Worker Protection and Participation in Canada, 1985-2000.” (2003) 58, Relations Industrielles/Industrial Relations 395.

[102] Ontario Ministry of Labour “Safe At Work Ontario” ( 2011) online: http://www.labour.gov.on.ca/english/hs/sawo/about.php [accessed 5 August 2011].

[103] To my knowledge, the term is not defined so its meaning is ambiguous insofar as it could include young workers, new entrants to the labour market, self-employed workers, agency workers, etc.

[104] Ontario Ministry of Labour note 102.

[105] Gray note 96.

[106] Ontario Ministry of Labour, Legal Services Branch special data run, April 2011 (on file with authors).  

[107] Cheryl Edwards, “Where Are All the C-45 OHS Prosecutions?” Online: http://www.heenanblaikie.com/en/media/pdfs/pdf/Where_Are_All_the_Bill_C-45_Prosecutions.pdf;jsessionid=94884D7F485727D18FFBDE0ED30ABFCA [accessed: 8 August 2011].

[108] Canadian Employment Law Today, “C-45 Charges Against Ontario Crane Company Dropped” (4 January 2011) Online: http://www.employmentlawtoday.com/ArticleView.aspx?l=1&articleid=2450 [accessed 8 August 2011]..

[109] Norm Keith, “Regulators Gone Wild!” Canadian Occupational Health and Safety (27 January 2011) online: http://www.cos-mag.com/Legal/Legal-Columns/regulators-gone-wild.html [accessed 8 August 2011].

[110] R. v. Transpavé Inc. [2008] QCCQ 1598.

[111] R. v. Scrocca, [2010] QCCQ 8218.

[112] 2010 QCCQ 12364; Norman Keith & Anna Abbott, “Acquittal in Quebec Bill C-45 Charges” Online: http://www.gowlings.com/KnowledgeCentre/enewsletters/ohslaw/htmfiles/ohslaw20110427.en.html, [accessed 8 August 2011].

[113] Stefan Dubowski, “Complexity, Confusion Stymies C-45 Charges.” (2010) Canadian Occupational Health and Safety online:  http://www.cos-mag.com/Legal/Legal-Stories/Complexity-confusion-stymies-C-45-charges.html [accessed: 8 August 2011].

[114] “BC Court: Union’s Private Criminal Negligence Case Can Go Forward.” OHS Insider (8 March 2011) online: http://ohsinsider.com/search-by-index/c45/bc-court-union%E2%80%99s-private-criminal-negligence-prosecution-can-go-forward [accessed: 8 August 2011]; “Alert: Crown Dismisses Union Brought C-45 Case.” OHS Insider (25 August 2011).  Online http://ohsinsider.com/search-by-index/c45/aug-25-crown-dismisses-union-brought-c-45-case [accessed 5 September 2011].

[115] Ontario Ministry of Labour, Employment Rights and Responsibilities, “Protect Vulnerable Workers and Support Poverty Reduction” Ministry Activities: Results-based Plan Briefing Book 2010-11 (2010)    Online: http://www.labour.gov.on.ca/english/about/pubs/rbp/2010/rbp_2.php.[accessed: 15 September,2011].
[116] Bridget Hutter, “An Inspector Calls: The Importance of Proactive Enforcement in the

Regulatory Context” (1986) 26(2) British Journal of Criminology 114; and, Weil note 12.

[117] Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate. (New York: Oxford University Press, 1992); Charles Sabel, Daraand O’Rourke, and Archon Fung “Ratcheting Labor Standards: Regulation for Continuous Improvement in the Global Workplace”, (2000) Online: http://www.archonfung.net/papers/rls21.pdf [accessed 3 July 2011];  Estlund note 24; and, Macklem & Trebilcock, note 20.

[118] In this discussion, we use the term voice to refer to the ability of workers’ and their organizations to themselves shape the enforcement processes such that they are able to meaningfully realize their rights rather than in the sense it used by scholars of the new governance school, such as Lobel, who introduces a ‘voice principle’, in the case of OHS regulation, to denote workers’ participation in firms’ health and safety management regimes. Eric Tucker, Administering Danger. (Toronto: University of Toronto Press, 2001) at 11.

[119] Approximately seventy studies and reports were surveyed. Where OHS enforcement measures provide lessons for ES enforcement, these best practices are also identified.

[120] To this end, the Auditor General’s report noted that “during the 2003/04 fiscal year, the Ministry investigated more than 15,000 complaints from employees and carried out approximately 150 proactive inspections… the Ministry was focusing its efforts almost entirely on investigating complaints from individuals against their former employers. As a result, we concluded that the Ministry’s inspection activities relating to protecting the rights of currently employed workers was inadequate. Many of the concerns identified during this audit were also reported on in our 1991 audit of the then Employment Standards Program” Office of the Provincial Auditor of Ontario, note 45.

[121] In making this criticism, the Auditor General noted that although

[O]ne or more violations were found to exist in about 70% of complaints filed… the majority of workplace violations are reported by former employees as current employees are generally reluctant to file claims for fear of losing their jobs, despite the protection of employee rights that exists in the Act. In fact, 90% of complaints were filed by individuals no longer working for the employers against which they filed claims. To be effective in fulfilling its mandate, the Ministry has an obligation to protect the employment rights of currently employed workers who may be reluctant to file claims” Office of the Provincial Auditor note 45 at 242.

[122] Contending that this situation needed to be rectified, the Auditor General’s report described a complaint by a former employee against an employer in 2001, which found unpaid wage, vacation pay, and termination pay violations but was not extended to include other employees at the time. It reported, “however, [that] from 2001 to 2003, four subsequent investigations of complaints against the same employer determined similar violations with a total assessed amount of about $25,000 owing to those employees”. Office of the Provincial Auditor note 45 at 242

[123] Broadly, the report suggested that although the Act permits an ESO to negotiate the resolution to a claim,

“most claims [are] in fact settled without the necessity to issue a formal order to pay and without the imposition of a fine and administrative fee. This approach to resolving complaints could be justified in certain situations such as when violations are minor and the employer has no previous violations and acts expediently to deal with employee complaints. However, if not deployed prudently, this practice could convey to employers that there is a level of tolerance for employers who do not voluntarily adhere to requirements of the Act, as there is little likelihood of a fine or penalty even if they do violate the Act. Any increased non-compliance with the Act on the part of employers also puts an additional burden on employees to initiate complaints with the Ministry to ensure their rights are respected.” (italics added). Office of the Provincial Auditor, note 45 at 245.

[124] According to the Auditor General, “the collection agencies contracted by the Ministry were expected to have a successful collection rate of 35%. However, the rate achieved was much lower, about 15%”. Office of the Provincial Auditor note 45 at 239.

[125]  Michael Quinlan and Rosemary Sokas, “Community Campaigns, Supply Chains, and

Protecting the Health and Well-Being of Workers” (2009) 3,99 ( S3) American Journal of Public Health  Supplement  538; Phil James, Richard Johnstone, Michael Quinlan, and David Walters,  “Regulating Supply Chains to Improve Health and Safety”, Industrial Law Journal 36(2): (2007) at 163; and, David Weil,  Carlos Mallo, “Regulating Labor Standards via Supply Chains: Combining Public/Private Interventions to Improve Workplace Compliance” ,British Journal of Industrial Relations 45 (4): (2007) 791.

[126] Fine & Gordon note 15.  

[127] David Weil and Amanda Pyles, “Why Complain? Complaints, Compliance, and the

Problem of Enforcement in the U.S. Workplace” Comparative Labour Law and Policy Journal 27: (2005) 59; and, David Weil, “Rethinking the Regulation of Vulnerable Work in the USA: A Sector-based Approach”, The Journal of Industrial Relations 51(3) (2009) 411.

[128] UK Department for Business, Enterprise and Regulatory Reform Vulnerable Worker

Enforcement Forum – Final Report and Government Conclusions. (2008) Online: http://www.Berr.Gov.Uk/Files/File47317.Pdf [accessed 3 July 2011].

[129] See for example: David Fairey, (2005) Eroding Worker Protections: British Columbia’s New ‘Flexible’ Employment  Standards. British Columbia: Canadian Centre for Policy Alternatives (2005) Online: http://www.policyalternatives.ca/documents/BC_Office_Pubs/bc_2005/employment_standards.pdf [accessed 3 July 2011]; and, Saunders & Dutil note 12.

[130] see for e.g., Workers Action Centre and Employment Standards Work Group  Modernizing Part III of the Canada Labour Code Submission to the Federal Labour Standards Review, Workers Action Centre at 12. Online: http://www.workersactioncentre.org/!docs/pb_Modernizing_eng.pdf [accessed 25 July 2011].

[131] Fine & Gordon note 15; Hardy & Howe note 21; and John Howe, Nicole Yazbek and Sean Cooney,(2011) “Study on Labour Inspection Sanctions and Remedies: The Case of Australia.” International Labour Organization – Geneva.  Online: http://www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—lab_admin/documents/publication/wcms_154066.pdf [accessed 3 July 2011].

[132] David Weil, “A Strategic Approach to Labour Inspection”, International Labour Review 147(4):(2008) at 349-375; and Weil note 127.

[133] U.S. Department of Labor, “Strategic Plan Fiscal Years 2011-2016” (2011) at 104.Online:

http://www.dol.gov/_sec/stratplan/StrategicPlan.pdf [accessed 25 July 2011].

[134]  Weil note 12 at 25

[135] It should be emphasized from the outset that the weakness of this strategy is that it fails to reach up to firms at the top of the chain, which set terms that condition the employment relationships and standards in the most highly competitive parts of this labour market  (i.e., at the bottom).  This limitation calls for embedding the DOL strategy of sweeps in a strategy of liability between top and bottom.

[136] U.S. Department of Labor “US Labor Department’s Initiative in South Florida Results in Nearly $800,000 in Back Wage and Fines for Violations Affecting about 590 Farmworkers.” News Release 06/27/2011. Online: http://www.dol.gov/opa/media/press/whd/whd20110845.htm [accessed 25 July 2011]

[137] U.S. Department of Labour note 136 (emphasis added)

[138] Other more direct examples of measures targeted to industries in the United States include focused inspections, undertaken by the WHD, in industries beyond those mentioned in the plan/prevent/protect agenda, such as gas stations and restaurants.  For example, in 2011, after recovering $1.2 million in back wages for almost 400 employees at 100 New Jersey gas stations and finding “gas stations rife with violative pay practices such as paying workers a flat salary or ‘straight time’ wages for all hours,” the WHD launched a state-wide initiative involving investigations at randomly chosen gas stations to educate operators about their obligation to pay the minimum wage and overtime requirements under the FSLA (Ference as cited by Harold Brubaker, “Feds Target Wages at N.J. Gas Stations” Philly.com (April 23 2011).  Online: http://articles.philly.com/2011-04-23/business/29466702_1_minimum-wage-gas-stations-fair-labor-standards-act [accessed 3 July 2011].

A similar measure, known as a “neighbourhood sweep”, involving labour officials at the State level, and focussing geographically on restaurants in Ithaca New York, found 77 percent of those visited to be violating New York State Labour Laws in 2009. New York State Department of Labor, “Targeted Labor Department Investigation Finds Ithaca Restaurant Workers Victimized by Wage Theft” Press Release December 10 2009. Online:  http://www.labor.ny.gov/pressreleases/2009/December10_2009.htm. [accessed July 03 2011].

[139] Manitoba Employment Standards Code  (C.C.S.M. c. E110).

[140] New Brunswick Employment Standards Act (1982)  Chapter  E-7.2.

[141] Newfoundland and Labrador Labour Relations Agency, Labour Standards Statistics (2010).

Online: http://www.gov.nl.ca/lra/stats/standardsstats.html [accessed 3 July 2011].

[142] Dickens note 28.

[143] Safe Work Australia, Explanatory Memorandum – Model Work Health and Safety Bill. (2011) Online: http://www.safeworkaustralia.gov.au/ABOUTSAFEWORKAUSTRALIA/WHATWEDO/PUBLICATIONS/Pages/ExplanatoryMemorandum.aspx [accessed 25 July 2011].

[144]  Safe Work Australia note 143  at Part 2, Division 4, S. 27.

[145]  Weil & Mallo note 125 at 796.

[146] Vosko note 3 at 184-185. A similar best practice with regard to investigations in OHS regulation also exists in the Australian state of New South Wales. Through the Occupational Health and Safety Amendment Act (Long Distance Truck Driver Fatigue) 2005, New South Wales requires both trucking operators and those further up the chain (e.g., shippers, freight brokers etc.) to monitor the fatigue levels of the subcontractors they engage to ensure that the road transport firms or owners and drivers have systems in place to manage, and are managing, the fatigue of their employees, including the hours of drivers arriving at warehouses.

Although this regulation is state-based, from its inception it had nation-wide effects since almost 80% of trucking passes through New South Wales (James et al note 125 at 182-184; Quinlan & Sokas note 125 at S542).

[147]   Christopher Buscaglia, “Crafting a Legislative Solution to the Economic Harm Of Employee Misclassification” (2009) University of California Davis Business Law Journal 9:111-136 at 118.

[148]   Joint Enforcement Task Force on Employee Misclassification, Annual Report of The Joint

Enforcement Task Force on Employee Misclassification.(2011) Online:  http://www.labor.ny.gov/ui/PDFs/2011%202011%20Misclassification%20Report%20to%20the%20Governor%20(4)%20(2).pdf [accessed 9 July 2011] at 2.

[149] An individual is “considered an employee unless he or she is free from direction and control in performing the job, AND the work performed is not part of the usual work done by the business that hired the individual, AND the individual has an independently established business (Fair Play Act s. 861(c); see also Joint Enforcement Task Force on Employee Misclassification note 148.

[150] Twelve other U.S. States are also following the lead of New York and initiating similar taskforce. New York State Department of Labor, “Targeted Labor Department Investigation Finds

Ithaca Restaurant Workers Victimized by Wage Theft.” Press Release December 10 2009. Online: http://www.labor.ny.gov/pressreleases/2009/December10_2009.htm[accessed 3 July 2011].

In British Columbia, as well, cross agency collaboration in the detection of violations in the agricultural sector once existed through what was known as the Agricultural Compliance Team, although it was abandoned in the early 2000s. See Graeme Moore, Hand-Harvesters of Fraser Valley Berry Crops:  New Era Protection of Vulnerable  Employees.  A Report Prepared for the B.C. Federation of Labour. Online: http://www.bcfed.com/files/1000– 4rep_hand_harvesters_moore.pdf [Accessed 3 July 2011], and Fairey note 129 at 30.

[151] Fine & Gordon note 15 at 563-4.

[152]  Fine & Gordon note 15.

[153] Fine & Gordon note 15 at 560.

[154] Weil note 132.

[155]  Catherine Ruckelshaus, “Labor’s Wage War”(2008) Fordham Urban Law Journal XXXV,  373 at 391-94; and  Karina Muniz, “The Janitorial Industry and the Maintenance Cooperation Trust Fund” in Ruth Milkman, Joshua Bloom and Victor Narro (eds.) Working For Justice: The L.A. Model of Organizing and Advocacy, (Ithaca: Cornell University Press, 2010) 211.

[156] Ruckelhaus note 155 at 393..

[157] Fine & Gordon note 15 at 568-570.

[158] Fine & Gordon note 15 at 568-570. A further project making similar inroads in the State of New York is the Workplace Justice Project, led by Make the Road New York, which hosts two projects run by democratic committees of predominantly immigrant workers – Trabajadores en Acci´on (“Workers in Action”) and Trabajadores Unidos (“Workers United”) – based at the organization’s neighbourhood centres – that engage in employer-focused campaigns, collaboration with government enforcement agencies at the federal and state levels (principally involving tracking agencies’ complaints process and working with them to create larger enforcement initiatives), strategic targeting of industries with unions, and drafting, and working to pass, legislation to improve the workplace rights of low-wage workers. Andrew Friedman and Deborah Axt, “In Defense of Dignity” (2010) 45 Harvard Civil Rights-Civil Liberties Law Review. 577.

[159] Tucker note 90 at 17.

[160] Andrea M. Noack and Leah F. Vosko, “Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context” (2011) Paper for Law Commission of Ontario Vulnerable Workers and Precarious Work Project.

[161] Saskatchewan Ministry of Advanced Education, Employment and Labour, “Anonymous

Complaint Form” Labour Standards Division. (2010) Online: http://www.aeei.gov.sk.ca/anonymous-third-party-complaint-form [accessed 25 July 2010].

[162] National Employment Law Project “Winning Wage Justice: An Advocate’s Guide to State and City Policies to Fight Wage Theft” (2011) at 58.  Online: http://www.nelp.org/page/-/Justice/2011/WinningWageJustice2011.pdf?nocdn=1 [accessed 3 July 2011] .

[163]  See Timothy Glynn, “Taking the Employer out of Employment Law? Accountability for

Wage and Hour Violations in an Age of Enterprise Disaggregation”, (2011) 15 Employee Rights And Employment Policy Journal, 101 on duty-base regimes. See also Brishen Rogers, “Toward Third-Party Liability for Wage Theft”, (2010) 31 University of California Berkeley Journal of Employment and Labor Law, 1.

[164] California Labour Code § 2810 (2003) s.2810(a)

[165] Glynn note 163 at 123.

[166]  California Labour Code § 2810 (2003) s.2810(d). Notably, the law contains an escape clause which indicates that the manufacturer is not in violation if there is an agreement in writing that labour standards will be followed.

[167] See Vosko note 3.

[168] Guy Davidov describes a similar measure experimented with in Israel by the Tel–Aviv Regional Labour Court.  In this instance, the Labour Court placed direct responsibility for the violation of ES on a bank concerning its dealings with a janitor working on its premises through a contractor because the contract between the bank and the cleaning firm was “patently money-losing for a law-abiding contractor.” Guy Davidov, ‘The Enforcement Crisis in Labor Law and the Fallacy of Voluntarist Solutions’, (2010) 26(1) International Journal of Comparative Labour Law and Industrial Relations 61 at 81.

            He also offers another concrete example which prohibits public agencies from contracting with firms that have violated key ES in the past.  Known as The Public Entities Contracts Law of 1976, this measure “prohibits public sector employers from engaging with contractors convicted of violating Minimum Wage Law or the Migrant Workers Law more than twice, unless a year has passed since the last conviction” (at 61).The law is built on the principle that the government should not engage with repeater violators of labour law and should rather be a model employer; however, as he shows, the law is relatively meaningless in practices as ES enforcement is so weak.

[169]  National Employment Law Project note 62 at 12.

[170] National Employment Law Project note 162 at 20.

[171] on the content of these standards and the shift to the Fair Work Act, see Vosko note 3 at 115-117. 

[172] Howe, Yazbek, & Cooney note 131 at 32. There nevertheless remain significant barriers to union participation in enforcement in Australia under its Fair Work regime, including constraints on unions’ rights of entry to investigate suspected violations and/or hold meeting with employees for which they now require a permit, which was not the case under a previous regime (Vosko 3 at Chapters 4 and 6).  Furthermore, as Howe et al note 131 at 32-33) note, since the Fair Work Ombudsman under the Fair Work Act now has the responsibility for enforcing its terms, including its intention to control unlawful union activity, such as strikes, it is also unclear the extent to which unions are able to use their remaining powers effectively.

[173]  Weber v Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.) para 67.

[174]   Weber v Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.) para 68.

[175]  see for example, Tim Bartley, “Corporate Accountability and the Privatization of Labor Standards: Struggles Over Codes of Conduct in the Apparel Industry”, (2005) 14 Research in Political Sociology 211; James et el note 125; Simon Deakin & Richard Hobbs,  “False Dawn for CSR? Shifts in Regulatory Policy and the Response of the Corporate and Financial Sectors in Britain” (2007) 15(1) Corporate Governance,  68;  Macklem and Trebilcock note 20; and Walters and James 2011 note 23.

[176] see for example, Tombs & Whyte note 27; Weil note 12; and, Tucker note 90.

[177] Macklem and Trebilcock  note 20. 

[178] At the level of a vision, Estlund’s model of “monitored self-regulation” also provides helpful guideposts for taking into consideration the foremost weaknesses of such practices as she envisions “us[ing] targeted public enforcement and private litigation to back up [initiatives such as CSR], and to induce entry into a system of monitored, quasi-tripartite regulation.” Estlund note 24 at 61.

[179] Jacues Igalens and Martine Combemale, “Fair Labour Association Model” in Jan Jonker and Marinus Cornelis de Witte (eds.) Management Models for Corporate Social Responsibility (Berlin: Springer, 2006) 180-186.  A complementary example covering a smaller geographic area that does not target an industry in which subcontracting is common and involves a partnership between a state agency and employers, is the New York State Labor Bureau’s Greengrocer Code of Conduct requiring such employers to pay legally required minimum wages and overtime, provide for reasonable vacation and sick days as well as days of rest, attend labour law seminars hosted by the State, display a poster publicly with the terms of the Code and, most notably, maintain pay records that the State Attorney General can access Campaign to End Wage Theft, “Protecting New York’s Workers: How the State Department of Labor Can Improve Wage-and-Hour Enforcement”  Recommendations from New York’s Community Groups, Immigrant Advocates, and Legal Assistance Providers. (2006) Online: http://www.mfy.org/wp-content/uploads/reports/Protecting-Workers-Dept-of-Labor.pdf [accessed 3 July 2011] at 9.

[180] see for example, Dickens note 28; Australian Council of Trade Unions, “Government Procurement Policy: Australian Jobs, Industry and Decent Industrial Relations” (2009) Online: http://www.actu.org.au/Images/Dynamic/attachments/6562/Procurement%20Policy%20-%20final.pdf [accessed 3 July 2011]; and, Trade Union Congress, “Hard Work, Hidden Lives:  The Short Report of the Commission on Vulnerable Employment”. (2008) Online: http://www.fairpaynetwork.org/uploadedPDF/CoVE_report.pdf [accessed 3 July 2011]. 

[181] Eurofoundation, “Public Sector Procurement Policy” (2009) Ireland. Online: http://www.eurofound.europa.eu/areas/labourmarket/tackling/cases/ie002.htm [accessed 3 July 2011] at 1.

[182] Eurofoundation note 181 at 2.

[183] Eurofoundation, note 181 at 2. For a parallel and relatively successful further example of public procurement policy where a state, rather than national, government has used its contracting power to improve employment standards in the cleaning sector, see John Howe and Ingrid Landau, “’Light Touch’ Labour Regulation by State Governments in Australia”(2007) 31 Melbourne University Law Review  367, on the case of New South Wales Australia.

[184]  Sweatfree Purchasing Consortium, “Sweatfree Purchasing Guide” Version 1. (2011) Online: http://buysweatfree.org/image/File/Guide%20to%20Sweatfree%20Procurement.pdf [accessed 25 July2011] at 7.

[185] Sweatfree Purchasing Consortium note 184 at 11.

[186] Sweatfree Purchasing Consortium note 184 at 14.

[187] Fair Work Ombudsman “Horticulture Industry Shared Compliance Program” (2010)

Online: http://www.fairwork.gov.au/campaignresults/National/Horticulture-Industry-Shared-Compliance-Program-2010.pdf [accessed 4 July 2011].

[188] The program has also had limited success due to a lack of funding.

[189] Fair Work Ombudsman, “Pro-active Compliance Deed Between McDonald’s Australia

Limited and the Commonwealth of Australia” (2011) Online: http://www.fairwork.gov.au/Documents/Proactive-Compliance-Deed-McDonalds-Aust-and-FWO.PDF [accessed 3 July 2011].

[190] see especially Paul Teague, “Reforming the Anglo-Saxon Model of Labour Inspection: The Case of the Republic of Ireland”(2009) 15(2) European Journal of Industrial Relations, 207.   

[191]  Saunders and Dutil note 12 at 20.

[192] See for example, J. Black, and R. Balwin, “Really Responsive Regulation” (2010) 32 Law and Policy : 181-215.

[193] Such an approach requires that there will be occasions where some risk-creating activities should be prohibited and that there should be policies in place to encourage the reduction of risks.  However, because we are concerned here with enforcement, our focus is on ensuring that permissible activities are conducted lawfully.

[194] Weil note 132 and Weil note 127.

[195] See for example R. Cox and K. Lippel, “Falling Through the Legal Cracks: The Pitfalls of Using Workers’ Compensation Data as Indicators of Work-Related Injuries and Illnesses” (2008) 6:2 Policy and Practice in Health and Safety, 63.

[196] Dean Report note 93

[197]  D. Walters, R. Johnstone, K. Frick, M. Quinlan, G. Baril-Gingras and A.Thebaud-Mony,  Regulating Workplace Risks in Times of Change: A Comparative Study. (London: Edward Elgar, forthcoming).

[198] W. Von Richtofen, Labour Inspection: A Guide to the Profession. (Geneva: International Labour Office, 2002) at 205-07.

[199] Dean Report note 93 at 2.43.

[200] Inspectors face competing pressures to enforce or educate.  The issue of managerial control over inspection activity was contentious in the Bill 160 debates and resulted in the removal of a section from the original bill that authorized the Director to establish written policies respecting the interpretation, administration and enforcement of the OHSA and that required inspectors to follow such policies.  In regard to the latter issue, an agreement was reached with the union representing inspectors regarding the matter. See D. Birch, “A New View.” 2011 OHS Canada. June/July (forthcoming).

[201] N. Gunningham, “Prosecution for OHS Offences: Deterrent or Disincentive?” (2007) 29 Sydney Law Review, 359.

[202] Richard Johnstone, “From Fiction to Fact – Rethinking OHS Enforcement.” Working Paper No. 11, National Research Centre for Occupational Health and Safety Regulation. (Canberra: Australian National University, 2003). Online http://ohs.anu.edu.au/publications/pdf/wp%2011%20-%20Johnstone.pdf [accessed 12 August 2011].

[203] L. Bluff, “The Use of Infringement Notices in OHS Law Enforcement.” Working Paper No.231, National Research Centre for Occupational Health and Safety Regulation. (Canberra: Australian National University, 2004). Online http://ohs.anu.edu.au/publications/pdf/wp%2023%20-%20Bluff.pdf [accessed 12 August 2011].

[204] Gray note 96

[205] David Weil, “Enforcing Labor Standards in Fissured Workplaces: The US Experience.” (2011) 22:2 Economic and Labour Relations Review, 33.

[206] J. Eakin, D. Champoux, and E. McEachern, “Health and Safety in Small Workplaces: Refocusing Upstream” (2010) Canadian Journal of Public Health 101(Suppl. 1): S29-S33.

[207] J. McKinlay, “A Case for Refocusing Upstream: The Political Economy of Illness” in Jaco, EG (ed.), Patients, Physicians, and Illness: A Sourcebook in Behavioural Science and Health. (New York: Free Press, 1979) 9.

[208] James, Johnstone, Quinlan & Walters note 125.

[209] H. Jain, J. Lawler, B. Bai, and E. Lee, “Effectiveness of Canada’s Employment Equity Legislation for Women (1997-2004): Implications for Policy Makers.” (2010) 65 Relations Industrielles, 304.

[210] James note 125.

[211] The Dean Report (note 93),called for measures to address OHS concerns in the underground economy and this might provide a spur to the development of supply chain regulation as one means of reaching unregistered firms operating below the radar of enforcement authorities.

[212] A certified member is worker or employer representative on a JHSC who has received special training.  There must be one worker and one employer member on each JHSC who is certified.

[213]  D. Walters and T. Nichols, Worker Representation and Workplace Health and Safety. (Basingstoke: Palgrave Macmillan, 2007).

[214] A. Hall, et al. “Making a Difference: Knowledge Activism and Worker Representation in Joint OHS Committees”(2007) 61 Relations Industrielles, 408; and, B. Barnetson, The Political Economy of Workplace Injury in Canada. (Edmonton: Athabasca U.P., 2010) at 63-65.

[215] N. Gunningham, “Occupational Health and Safety, Worker Participation and the Mining Industry in a Changing World of Work.” (2008)  29 Economic and Industrial Democracy, 336 and, R. Storey and E. Tucker, “All that is Solid Melts into Air: Worker Participation and Occupational Health and Safety Regulation in Ontario, 1970-2000” in Morgenson, V., ed. Worker Safety Under Siege: Labor, Capital and Workplace Safety in a Deregulated World. (Armonk, NY: M.E. Sharpe, 2006)157.

[216]  Dean Report note 93.

[217] Kaj Frick, “Health and Safety Representation in Small Firms: A Swedish Success under Threat” in D. Walters and T. Nichols, (eds), International Perspectives on Worker Representation. (Basingstoke: Macmillan, 2009), 154 at 156.

[218] Weil and Pyles note 127 

[219] Dean Report note 93 at 50.

[220]  Ayres & Braithewaite note 117and, N. Gunningham and R. Johnstone, R., Regulating Workplace Safety: Systems and Sanctions. (Oxford: Oxford University Press1999).

[221] K. Carson and R. Johnstone, “The Dupes of Hazard: Occupational Health and Safety and the Victorian Sanctions Debate” (1990) 26 Australia New Zealand Journal of Sociology, 126.

[222] Gunningham & Johnstone, note 220.

[223]  T. Schofield, B. Reeve, and R. McCallum, “Deterrence and OHS Prosecutions: Prosecuted Employers’ Responses” (2009) 25:4 Journal of Occupational Health and Safety – Australia and New Zealand , 263.

[224]  W.G. Gray and J.T. Scholz, “Does Regulatory Enforcement Work? A Panel Analysis of OSHA Enforcement” (1993) 27 Law and Society Review,177.

[225]  R. Johnstone, and C. Parker, “Enforceable Undertakings in Action – Report of a Roundtable Discussion with Australian Regulators.” Working Paper No. 72, National Research Centre for Occupational Health and Safety Regulation (Canberra: Australian National University, 2010) Online http://ohs.anu.edu.au/publications/pdf/wp%2071%20-%20Parket%20Final%20EU%20Working%20Paper%2017%20Feb%202010.pdf [Accessed 16 August 2011].

[226] Kaj Frick and John Wren, “Reviewing Occupational Health and Safety Management – Multiple Roots, Diverse Perspectives and Ambiguous Outcomes” in K. Frick et al. eds., Systematic Occupational Health and Safety Management. (Amsterdam: Elsevier Science, 2000). 17 at 18.

[227] T. Nichols and E. Tucker, “OHS Management Systems in the United Kingdom and Ontario, Canada: A Political Economy Perspective” in K. Frick et al. eds., Systematic Occupational Health and Safety Management. (Amsterdam: Elsevier Science, 2000) 285; and, S.M. Hart, “Self-regulation, Corporate Social Responsibility, and the Business Case: Do they Work in Achieving Workplace Equality and Safety?” (2009) 92 Journal of Business Ethics, 585.

[228]  For example Walters et el note 197

[229] Walters et el note 197 at 443-44

[230]  For example, Michael Quinlan, “The Implications of Labour Market Restructuring in Industrialized Societies for Occupational Health and Safety” (1999) 20 Economic and Industrial Democracy, 427.

[231]  James et al. note 125  

[232] C. Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation (New Haven: Yale University Press, 2010).

[233] Some of the ideas discussed in this section were also discussed in “Good Idea: A new, improved and enforced Employment Standards Act” Talking About Jobs. Online http://doc-14-94-docsviewer.googleusercontent.com/viewer/securedownload/dsn1aovipa7l846lsfcf94nedj8q2p4u/r7ts3psl6ps9eqsp7hbv7fdeknc1ovqa/1320349500000/Ymw=/AGZ5hq8BgbJY1gwaOYx83cPOdNw6/QURHRUVTaWEyQzBZX0staDk4bDJ1ZVI1Q3VsRU50OHo5U2VfYlpBUEpkRGd5TE5TMXE1ZWRIVnM3VlBQRlYxdGlkQXM5NnU1QVRkbWhPSjNpdGY1OE9oWEFOdGUtanpLYjlMZ2JDbUJzLXVDY08zdDdUOTctS1NDZGxWVW1tZW80Sm5uT1kxUFNqV2c=?chan=EAAAAGZ/rnRSJD3XTL2o3fp9vSAiRBAXReo/1/aClWvsTHtX&docid=345cedc1a4eb6ab03f7583050849d57c&hash=7g7vqt6lruc3h3vsonfq3h0kv18v09dv&nonce=3801s37t2flom&sec=AHSqidZ0iC6aSVURoSsaoKqoH1IaOnGV22zzXq2NBZIONoZFhzgCDRHDYNyrxq_Qk7PVI0a94dEa&a=gp&filename=A-new-and-improved-employment-standards-act.pdf&user=AGZ5hq8BgbJY1gwaOYx83cPOdNw6 [accessed 3 November 2011].

[234] This may involve legislative change.

[235] This would involve legislative change.

[236] This would involve legislative change.

[237] This would involve legislative change.

[238] This would involve legislative change.

[239]  This would involve legislative change

[240] This would involve legislative change.

[241] This would involve legislative change.

[242] This may involve regulatory or legislative change.

[243] This may involve regulatory change.

[244] This would involve legislative change.

[245] This would involve legislative change.

[246] This would involve legislative change.

[247] This may involve legislative change.

 

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