VI. Policy Recommendations2017-03-03T18:35:39+00:00

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] 

 

2.         Reactive Approaches

(i) Inspections & Investigations

14. Allow for third-party and anonymous complaints to initiate inspections in order to minimize threats to workers whose rights are being violated. Implementing this recommendation would mean that the most precariously employed workers, facing heightened threats of reprisal, are not obliged to take on their employers in fairness to their situation and the goal of securing social minima.

15. Streamline the complaints process and reduce the complaints backlog by providing, as a first step in the claims process, person-to-person assistance to workers to prepare their claim so that investigators can expeditiously adjudicate the matter. Administratively, this proposal, if implemented, would both deliver a fairer process for all workers to secure minimum protections, including those lacking access to the internet and/or the language proficiency to make claims and assist investigators in doing their jobs.

 

(ii) Penalties & Settlements

16. Update time limitations and monetary caps to reduce barriers to employment standards remedies: The increase in minimum wage and barriers to enforcing employment standards leaves many workers owed substantially more than the $10,000 cap on monies recoverable under the ESA. For this reason, in the interest of fairness and to ensure that social minima are up to date (i.e., reflect labour market realities), the Act’s limitation periods and amount of wages recoverable should be brought in line with Ontario’s small claims court. Specifically, the monetary limit on monies that can be recovered should be changed to $25,000 and the ESA time limit should be extended to 2 years to recover wages and entitlements.[241] 

 

(iii) Voice

17. Worker Representation in the claims-making process: To ensure that all workers have access to the claims process (i.e., universality) and in fairness, allow representation and provide funding for workers to have representation in reporting violations and the claims process as a whole.

 

3. Voluntary Approaches

18. Purely voluntary approaches to ES regulation and management are not recommended.

 

(i) Investigations & Inspections

19. Encourage the creation of a public procurement policy: The government of Ontario should require that its contractors adhere to not only minimum ES but industry norms so that the floor of social minima is elevated.  In its aim of improving social minima consistent with the costs of living in Ontario, this recommendation is consistent with the call for raising the wage levels, and augmenting the wage package, contained in another LCO report (Vosko and Noack, in this series), although it asks the government to take on a leadership role as a model employer.[242]

20. Support partnerships between state agencies and worker organizations in improving enforcement: The review of best practices illustrates the merits of creating initiatives aimed at enforcing labour standards where organizations of workers assist government agencies, including labour inspectorates, with spotting and documenting violations as well as assisting workers in making claims.  Such partnerships should be cultivated to ensure decent work for all.

 

B.        OHS Enforcement

1. Proactive Approaches

1.    Employ risk-based regulation: Use of risk-based regulation, which includes an assessment the OHS risks posed by an activity or by particular firms engaged in that activity based on their competence and commitment to control and manage those risks and is thus sensitive to ensuring that social minima and decent conditions of health and safety at work apply to all workers.  In pursuit of this approach to regulation, develop leading rather than lagging indicators for the purposes of making such assessments (as recommended by the Dean Report).

 

(i) Investigations & Inspections

2.    Engage in safety blitzes: Safety blitzes based on appropriate risk assessments, which aim to ensure the principle of universality in that all workers are protected regardless of the industry in which they are located, should continue.

3.    Enforce OHS from the bottom-up: Use of a “bottom-up” approach in enforcement, which requires that when officials detect a violation – whether in the context of a proactive or a reactive inspection – they should not treat it as a discrete event; rather, in fairness to all workers with a given firm, the violation should trigger a broader review of the employer’s OHS management system to determine why the violation occurred and was not detected and corrected by management.

4.    Prosecute before harm is done: To ensure social minima are in place, consider the use of Part III prosecutions as the result of proactive inspections that find significant departures from regulatory requirements notwithstanding that no harm has yet materialized.

5.    Avoid downward levelling through the use of tickets: Uphold decent conditions of work and social minima by using tickets appropriately; that is, tickets should be used, but not in a manner that allows responsibility for OHS to be pushed downwards.  A bottom-up approach (as above) requires that ticketed violations should be treated as a failure of the employer’s OHS management system that needs to be addressed at senior levels.

6.    Employ strategic enforcement practices in OHS enforcement: To ensure a fair and consistent approach to regulation, develop criteria for identifying sectors and firms in which employment fissuring has occurred so that they can be better targeted for proactive inspection.

7.    Sync budgets for inspections to the size of the labour force and the degree of fissuring in workplaces: In the interest of fairness, linking the budget for inspection both to the size of the labour force and to the degree of workplace fissuring is necessary because of the greater demand that it places on inspection resources.

8.    Develop supply chain regulation: To ensure universal treatment of all workers in a given chain of production, develop upstream approaches to supply chain regulation that increase the responsibility at the top end of the chain for OHS performance at the lower levels.[243]

9.    Improve procurement policies: Government contracts, as model contracts, should require contractors to commit to specified OHS management practices, which include monitoring OHS performance by sub-contractors.  Government must monitor this dimension of contract compliance in the interest of supporting social minima.

10. Enact a “hot cargo” provision to OHSA that would enable inspectors to impose an embargo on goods manufactured in violation of Act to ensure that social minima are respected and that all parties to production are penalized in a universal fashion.[244]

11. Monitor OHS performance by sub-contractors: Impose an obligation on private sector employers to monitor OHS performance by sub-contractors and to exercise due diligence to ensure that contract terms do not create undue pressure on contractors to engage in unsafe practices.  Joint liability for downstream violations should be considered to ensure that all parties are treated fairly and subjected to the same requirements for providing for social minima for all workers in the chain of production.[245]

 

(ii) Voice

12. Create an institution of regional health and safety representatives: The decline in private sector union density creates a challenge for effective worker voice, a critical vehicle for securing fairness at work as well as social minima and decent terms and conditions, as does the growth of precarious employment.  The creation of a functional equivalent to the Swedish institution of regional health and safety representatives should be considered, including the creation of the equivalent of an Office of the Worker Advisor or an expanded mandate for non-governmental groups like the Workers’ Health and Safety Legal Clinic or the Occupational Health Clinics for Ontario Workers.[246]

 

2. Reactive Approaches

(i) Investigations & Inspections

13. Retaliatory behaviour should be penalized appropriately: In recognition of the unequal relationship between workers and employers, and in fairness to workers who pursue complaints about their employers despite this power imbalance, in the context of inspections triggered by a complaint that a worker has experienced retaliation for exercising her rights under the Act, inspectors should consider recommending Part III prosecutions for violations of the Act when appropriate (See Dean Report).

14. Mandate follow-up inspections in cases of employer retaliation: Consistent with the bottom-up approach which aims to ensure that social minima extend to all workers, where there has been a finding that retaliation has occurred, this should trigger a follow-up inspection to determination whether the employer’s OHS management system has been reformed to insure that workers’ OHS rights are now better protected.

15. Inquire into the limited use of criminal prosecutions: OHS regulation is about protecting workers from bodily harm.  In the interest of universality through safety for all workers, investigate why criminal prosecutions have not been better integrated into the pyramid of enforcement.

16. Mandate follow-up inspections in cases of prosecutions under the OHSA or the Criminal Code:  To promote decent work by ensuring that all workers are safe in the workplaces of known violators, follow-up inspections should occur after a successful prosecution under the Criminal Code or the OHSA to insure that the employer has responded by correcting the deficiencies in its OHS management system.

17. Consider introducing enforceable undertakings: Investigate the use of enforceable undertakings where OHS contraventions occurred but for which a prosecution is not required so that the social minima for all workers in the workplaces in question are protected.[247]

 

3. Voluntary Approaches

18. Purely voluntary approaches to OHS regulation and management are not recommended.

19. Review current regulation of OHS management systems in Ontario, taking into account the changing world of work and the challenges this poses to OHS management and to the regulation of OHS management in fairness to workers and to ensure that these systems keep a pace with workplace realities.

20. Employ the selective and strategic use of voluntary codes of conduct to supplement, but not replace, public regulations: In the context of supply chains, voluntary codes of conduct may provide some amelioration under certain conditions, but the preferable and fairest approach is for public regulatory authorities to play a central role in imposing obligations on upstream duty holders, including the arrangements for monitoring downstream compliance, and in guaranteeing a role for worker voice.

 

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