This report has mapped and drawn out an analysis of the limitations of current enforcement practices in ES and OHS. It has observed that where unions are present in the OHS structures for workers’ voice, the self-regulatory model works better than when they are lacking. It has reviewed potential reform options based on best practices in Canadian and other jurisdictions. The report demonstrates that effective enforcement of labour standards to protect workers in precarious employment and regulate precarious labour markets will require multi-pronged proactive, reactive, and voluntary strategies. However, such strategies must be embedded in a strong public/government enforcement model. This model should be centered on proactive enforcement. Even though proactive approaches should be prioritized, as they offer the most promise of the three approaches in upholding the normative principles of providing for decent work, social minima, universality, and fairness, there is value in certain reactive and voluntary measures. Reactive enforcement must ensure effective voice and support for workers to enforce their ES and protection from reprisals. Voluntary strategies that rely on non-state parties (i.e., employers, employer associations, workers, union and workers organizations), must ensure meaningful penalties for employers in non-compliance, on the one hand, and meaningful institutionalized involvement of workers and their organizations in furthering enforcement effectiveness, on the other hand. Under no circumstances are purely voluntary approaches recommended; they should only be used to augment otherwise strong and binding (ideally proactive) approaches.
A number of recommendations for changes in policy and practice flow from the survey of best practices contained in Section V, considered in light of the deficiencies characterizing the current regimes of ES and OHS enforcement in Ontario documented in preceding sections. The recommendations are divided into these categories of proactive, reactive, and voluntary approaches, noting the connections between these proposals and such principles where relevant.
A. ES Enforcement[233]
1. Proactive Approaches
(i) Investigations & Inspections
1. Shift model of proactive enforcement to detecting violations and enforcement of ES for current employees in addition to the current focus of bringing employers into compliance. Routinely follow-up inspections with audits to ensure social minima are met through ongoing compliance.
2. Pursue strategic enforcement: Develop enforcement priorities and proactively target employers in high-violation industries and substandard practices. This involves mapping labour market practices (i.e., in the interest of the fairness principle, following up on previous cases of employer violations, new forms of work organization, sectors and industries comprised of concentrations of young workers, recent immigrants, women, racialized workers and other indicators of high rates of employer violations) to develop strategic plans for inspections and year by year targets. Develop benchmarking to evaluate strategic enforcement.
3. Support expanded investigations: Where an individual claim has confirmed violations, this should be used to trigger a broader investigation of other violations of the employer to protect current employees as is common in other jurisdictions. This recommendation too is consistent with the goal of fairness.
4. Pursue multi-agency investigations of employers and targeted sectors or practices: Initiate multi-agency investigations, possibly beginning with the introduction of a pilot project in which OHS and ES inspectorates engage in joint initiatives. Through such investigations, target practices such as misclassification of employees as ‘independent contractors’ and sub-contracting (in this process, a reverse onus in which a worker is presumed to be an employee unless the employer can provide proof to the contrary should be pursued). Such measures elevate the principles of both universality – that is, extending existing protections to the greatest number of workers – and fairness given the need to safeguard misclassified workers.
5. Introduce state-supported up the chain inspections and investigations: The MOL should consider making agreements with large firms engaging subcontractors that make them responsible for their subcontractors at lower levels of the chain, through the introduction of a regime of inspection supervised by the Ministry or a joint taskforce involving workers and their advocates, and simultaneously strengthen provisions for joint and several liability in the ESA.[234] Here again, fairness, universality and providing for social minima for all workers in the chain of production are key objects.
6. Introduce a ‘positive duty’ for employers to prevent violations of the ESA.[235] This recommendation is directed at achieving all four principles but elevates fairness in particular.
7. Enact a “hot cargo” provision to the ESA that would enable inspectors to impose an embargo on goods manufactured in violation of Act to ensure that, in fairness, penalties are felt by all parties to the chain of production.[236]
(ii) Penalties & Settlements
8. Create an effective presumption of employer retaliation: In the interest of fairness, universality and establishing social minima, prevent employer retaliation by protecting workers who assert their rights by establishing a set fine for confirmed reprisals and providing interim reinstatement during claims investigation for workers that have been fired for seeking entitlements (i.e., establish a fast-track process for reinstatement and, in cases where reinstatement is not feasible, fast-track compensation of workers who have been penalized for attempting to enforce their rights, including all lost wages and costs of employer retaliation).[237]
9. Shift the costs of ES enforcement on those that violate the ESA: Consistent with the notion of fairness, make employers pay the administrative costs of inspecting violations and enforcing ES where they are found in violation of the ESA.[238]
10. Establish set fines (rather than giving ESO discretion) for confirmed violations (even in settlement): The current use of Part I tickets ($360 or less) does not provide adequate incentives to comply with the law. Rather, in pursuit of just social minima and fairness, fines doubling or tripling the amount owed, such as provided for in the New York State Wage Theft Protection Act, would provide a better incentive. Further, workers should receive interest on all unpaid wages owing.[239]
11. Simplify and improve the transparency of prosecution policy: Each and every repeat violation or non-payment of orders should be prosecuted under Part III Provincial Offences so that employers are fined and ordered to pay unpaid wages in line with the notion of universality.
(iii) Voice
12. Encourage partnerships between the MOL and Community organizations to improve enforcement: The MOL should work with workers’ advocates and community organizations working directly with precariously employed workers to target companies and industries where wages go unpaid in order to promote both fairness and decent work. These organizations are most grounded in the experience of the workers in concern and thus it is only just to involve them in the administrative process as elsewhere.
13. Promote greater worker control over the labour standards through improved access to unionization and other workplace regulations fostering labour market security. The decline in union density, particularly in the private sector, coupled with the growth of precarious employment creates substantial challenges to workers voice and enforcing a floor of minimum standards. There is a need to not only redress continued de-collectivization and/or stagnation of labour relations in Ontario but to reverse this trend. In addition, introduce mechanisms of broader-based bargaining for self-employed and other workers in precarious paid employment who face challenges to unionizing and/or, at a minimum, to benefiting from collectively agreed social minima (see also Vosko and Noack, in this LCO working paper series).[240]