The purpose of this brief section is to compare and contrast ES and OHS enforcement in Ontario globally, as well as on the dimensions of proactive, reactive, and voluntary enforcement.
A. Global Assessment
At the most general level, it is clear that OHS regulation and enforcement is far more proactive and focused on preventing violations than ES enforcement. The latter is largely dominated by individual complaints about violations that have occurred with a much smaller role played by proactive inspections or other preventive measures. This difference is manifest not just in the allocation of enforcement resources between proactive and reactive inspections, but is also evident with respect to voluntary enforcement. Worker voice in the ES scheme is almost exclusively a reactive voice heard through complaints about violations that have occurred. This tendency has been furthered by recent changes that require, in most cases, that workers first contact the employer before an official complaint will be entertained by the MOL. The picture in OHS regulation is different insofar as employers are required to establish a system for managing OHS in order to prevent violations from occurring in the first instance and workers are given a voice in the detection and correction of problems before violations materialize or, failing that, before violations result in work injuries. Moreover, workers are not required to first exercise their voice internally before seeking enforcement action. They can always call an inspector.
While, on the one hand, these differences might seem to be perfectly understandable based on the difference between wage and hour violations that, in principle, can be corrected by financially compensating the worker, compared to health and safety hazards that might materialize in death and disablement for which financial compensation can never be adequate. On the other hand, the differences can also be overstated. Workers who experience ES violations, especially ones that persist over time, may suffer losses to the quality of their lives and the lives of those who depend on their incomes that are not fully redressed even if full compensation is paid retroactively. Enforcement of a minimum floor of ES standards is central to labour market regulation. Further, as the Ontario provincial government recognizes in its Poverty Reduction Strategy, ES are key to creating fair wages and working conditions and reducing poverty. For these and other reasons, including advancement of the broader principles of decent work, social minima, universality, and fairness, the prevention of ES violations is also an important public policy goal that currently is not being pursued to nearly the same extent that it is in OHS regulation.
Although the best practices section to follow returns to this theme, in a report for a project on vulnerable workers, it is also important to emphasize that this group of workers is most dependent on a strong, state-centred regime for the enforcement of their rights, whether it be in the realm of ES or OHS. Voluntary compliance is less likely to succeed in an environment in which workers are least likely to know their rights and most vulnerable to retaliation or its threat, even when retaliation is unlawful. For the same reasons, reactive enforcement in response to complaints is also less effective for vulnerable workers. Proactive enforcement, supplemented by meaningful participation by worker organizations so that workers’ voices can be heard in the regulatory regime, is essential.
B. Voluntary Compliance
Substantial reliance is placed on voluntary compliance in ES and OHS regulation in the sense that both systems are built around the assumption that most employers are motivated to obey the law and have the capacity to do so, especially if they are provided with a modest level of compliance assistance by the MOL or other agencies.
In the case of ES, the MOL provides information to both employers and employees through phone, email, and its website. The more important innovation, however, has been the addition of a requirement that workers who believe they have suffered an ES violation first attempt to resolve the matter with their employer before an ES complaint will be accepted by the MOL. Clearly, the objective is to encourage workers to become more self-reliant, give employers the chance to correct errors when they are pointed out to them, and to reduce the flow of complaints to employment standards officers.
In the context of OHS, voluntary compliance is not only a major goal, but it is one that is supported by a much broader range of institutional arrangement than is the case in ES. Not only does the MOL provide information, the law requires the establishment of internal responsibility systems that involve training, information sharing, worker participation, etc. As well, for many years the workers’ compensation system had a mandate to improve accident prevention which it did in a variety of ways, not the least of which was to fund safe workplace organizations that provided information, training and support around OHS issues. Recently, the prevention mandate was shifted to the MOL and is overseen by a Prevention Council and a Chief Prevention Officer.
Workers are also supposed to play a major role in the voluntary enforcement system, not only by working safely themselves, but by being given a voice in the internal responsibility system to participate in hazard identification and the development of firm-level OHS policies and practices. It is notable, however, that although in the early 1980s the MOL sought to force worker concerns to be run through the IRS before it would act, that policy has long since been abandoned so that it is no longer the case that the MOL will only initiate enforcement activities after it has been demonstrated that the worker cannot resolve the matter directly with the employer.
C. Reactive Enforcement
As has been noted, beyond supporting voluntary compliance, reactive enforcement is the principle strategy for addressing ES violations. Moreover, reactive enforcement is generally limited to responding to the specific complaint of the employee. Curiously, the MOL abandoned the strategy of treating a complaint as being good evidence of more systemic problems and launching a broader investigation of ES compliance at firms where employees were registering complaints. This has had the result of eliminating a good risk-based technique for identifying areas where the investment of enforcement resources is likely to produce significant benefit to at-risk workers. In general, the inspection process follows a pyramid-based approach in which the majority of complaints are settled without further administrative action, with a decreasing number being resolved by the use of stronger enforcement measures, including orders and prosecutions for non-compliance.
In the area of OHS, more resources are invested in proactive enforcement than in reactive measures and this trend has been growing for some time. Reactive enforcement results in a range of measures being taken when violations are detected, from the provision of advice to issuing compliance orders, issuing stop work orders, provincial offence prosecutions and, rarely, criminal charges. As in ES, there is an enforcement pyramid with the more serious sanctions being reserved for a smaller and smaller number of instances as the seriousness of the violation and resulting harms increases.
D. Proactive Enforcement
As noted above, OHS enforcement places a far greater emphasis on proactive measures than ES enforcement. This is true notwithstanding that in response to an auditor general’s report in 2004 the ES branch increased the number of proactive inspections. Both branches target proactive inspections using measures that identify areas where non-compliance is likely to be above the norm. Proactive inspections in both areas result in a range of enforcement actions, from providing advice and encouragement at the bottom of the pyramid to issuance of compliance orders and tickets. Interestingly, the pyramid of enforcement measures arising from a proactive ES inspection seems to be higher than in OHS inspections, which rarely go beyond orders and tickets.