The nature of employment is evolving and the standard employment relationship based on full-time, continuous employment, where the worker has access to good wages and benefits, is no longer the predominant form of employment, to the extent it ever was. Today more work is precarious, with less job security, few if any benefits and minimal control over working conditions. Precarious work may be contract, part-time, self-employment or temporary work. While this change has affected all groups of workers, women, racialized persons and recent immigrants are more likely to be “vulnerable workers” engaged in precarious work. The LCO’s Vulnerable Workers/Precarious Work Project assesses the protections available to these workers in Ontario and coverage of this type of work under provincial legislation designed to protect workers, such as the Employment Standards Act and the Occupational Health and Safety Act.
II. Identifying Vulnerable Workers And Precarious Work
Factors such as increased reliance by employers on contract workers, the decline of the manufacturing industry, the information revolution, dramatic technological advances and the demand for higher educational levels have all played a part in the increased precariousness of work.
Precarious work is characterized by job instability, lack of benefits, low wages and degree of control over the process. It may also involve greater potential for injury. This Chapter provides more detailed information about the kinds of precarious work being considered in this Project, including the forms this work takes and the types of work that can often be described as precarious; examples can include, temporary agency work, self-employment, part-time, casual or temporary migrant work.
It is important to appreciate that “vulnerability” refers not to the workers themselves, but to the situation facing them because they are engaged in precarious work and because of other disadvantages related to gender, immigration, racial status and other characteristics. The increased movement of “guest workers” from other countries, a global phenomenon, is a factor in increasing the part vulnerable workers play in the economy. The Chapter explains why women and single parents, racialized persons, newcomers and established immigrants, temporary migrant workers, persons with disabilities, youth, Aboriginal persons and non-status workers may all be more likely than others to hold precarious positions.
Precarious work has an impact on areas of vulnerable workers’ lives other than employment itself. This work leads to a greater risk of injury and illness, stress and challenges to accessing entitlements to health care. It may affect family relationships and degree of community engagement. It may be difficult to find the time and energy to increase educational attainment or take training. Older persons who have undertaken this type of work all their lives will not have pensions and will not have been able to save. More generally, these workers and their families are likely to experience the intergenerational costs of poverty. Furthermore, it is not only vulnerable workers themselves and their families who are affected, but society at large.
The Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, domestic statutes and international law and policy initiatives are all relevant in considering precarious work.
III. Employment Standards Policy And Legislative Reform: The Employment Standards Act And Related Legislation
The Employment Standards Act (ESA) and related legislation, is the major statute affecting minimum standards in Ontario. The primary issues considered are enforcement of the ESA, policy considerations, establishing a broader floor of basic minimum rights and expanding knowledge of employee rights and employer obligations.
After reviewing reforms to the ESA, we recommend that the Ontario government in consultation with stakeholders update, review and streamline the exemptions within the ESA and related regulations, including occupational specific exemptions and that the review develop and use principles with a view to ensuring that justifications for exemptions be balanced against the need to reduce precarious work and provide basic minimum standards to a broader sector of the working population. (Recommendation 1)
We further recommend that the ESA contain a broad policy statement relating to the commitment to basic minimum employment rights, supporting compliance and fostering public, employer and employee awareness and education. (Recommendation 2)
Other recommendations include a review of minimum wage issues, convening of the Committee to develop a process for reviewing minimum wage issues balancing the needs of business and employees, equal proportionate pay for parttime workers in equivalent positions, and an exploration of options for providing benefits for persons engaged in non-standard work. (Recommendations 3, 4 and 5) We also recommended a review of personal emergency leave provisions in the ESA with the objective of extending the benefits to workplaces with fewer than 50 employees. (Recommendation 6)
We stress the importance of ensuring that both workers and employers are aware of their rights and obligations and make a recommendation regarding public education, outreach and the development of partnerships towards that goal. (Recommendation 7) This includes a recommendation that employers provide the ESA information poster in handout format to all new employees (in the language of the employee, if possible) and provide all employees with written notice of their employment status and terms of their employment contract. (Recommendations 8 and 9) Major concerns have been raised relating to enforcement of the ESA, including concerns with the existing primarily complaint-based and voluntary compliance model which, in our view, should place much greater emphasis on proactive enforcement and expanded investigations. We recommend continuation of various methods of enforcement, with an increased emphasis on proactive enforcement and expanded investigations, particularly in high risk industries. (Recommendations 10 and 16) One particular issue of the self-enforcement model that has been questioned is the requirement for employees to approach the employer to attempt resolution prior to making an ESA claim and the application of exemptions to the requirement; we recommend a review of this policy and process to determine whether there are negative effects and, if so, whether the policy should be reversed. In any event, we recommend greater communication about available exemptions. (Recommendations 11 and 12) We also recommend ways of providing direct personal assistance to workers to assist them in the claims process. (Recommendation 13) ESA compliance can be improved through indirect means: we support top-down mechanisms that encourage companies to take a leadership role in addressing ESA compliance where subcontractors and temporary agency workers are associated with the company (Recommendation 20) and we recommend the creation of an Innovative Solutions for Precarious Work Advisory Council of relevant stakeholders to develop initiatives to improve compliance and the enforcement process. (Recommendation 26)
Other recommendations in relation to enforcement include providing for a discretionary time extension beyond the 6 month limit for making claims for wages under the ESA in special circumstances; an accessible third party complaints procedure with safeguards against unfounded complaints; and providing that employers in violation of the ESA be responsible for covering the costs of investigations and inspections. We also recommend strengthening policy guidance to Employment Standards Officers for more deterrence against repeat violators and wilful noncompliance. (Recommendations 14, 15, 17 and 18)
We discuss work councils and recommend that the Ministry of Labour explore the concept of utilizing the principles of work councils in non-unionized workplaces with high concentrations of vulnerable workers. (Recommendation 19)
Temporary foreign workers in low skilled categories face many challenges, particularly, fear of repatriation. We recommend changes that might help reduce the fear of repatriation or help workers in making claims such as additional education for migrant workers and employers, reprisal complaints hearings heard prior to repatriation, and an independent decision-making process for migrant workers prior to repatriation, as well as greater supports for migrant workers in making claims. We also recommend unions and community groups continue to develop and expand innovative services to support migrant workers to assert their legal rights. (Recommendations 21, 22, 23 and 24)
Agricultural workers are exempted from the Ontario Labour Relations Act and their right to organize and make representations to their employer is covered instead by the Agricultural Employees Protection Act, 2002 which has been held by the Supreme Court of Canada to be constitutional. In doing so, the Supreme Court read a requirement for bargaining in good faith into the statute and we recommend that the Ontario government explicitly amend the AEPA by including the elements of bargaining in good faith identified by the Supreme Court of Canada. (Recommendation 25)
Ontario has enacted the Employment Protection for Foreign Nationals Act but so far has applied it only to live-in caregivers, even though it contemplates coverage of other temporary foreign workers. We recommend it be extended to all temporary foreign workers. (Recommendation 27) We also recommend that the Ontario government negotiate an information-sharing agreement with Human Resources and Skills Development Canada and Citizenship and Immigration Canada and co-ordinate with the federal government on worker protection policies with the goal of increasing protections for temporary foreign workers. (Recommendation 28)
About 15 percent of Ontario’s workforce is self-employed. This group includes both those who operate businesses and may employ others and those called “own-account self-employed workers” who may resemble employees more than self-employed entrepreneurs, for example. Women and members of visible minorities are more likely to be in the own-account category than in other forms of self-employment and part-time employment rates for own-account self-employed workers are high, particularly for women. Self-employed workers are not covered by the ESA and therefore the challenge is to determine whether a worker is selfemployed or an employee. We recommend that the Ministry of Labour undertake efforts (proactive enforcement, public education, policy development) to reduce misclassification and that the Ontario government consider extending some ESA protections to self-employed persons or identifying other forms of protection. We also recommend requiring employers or contractors to provide information about the status of their employment to workers and that standard forms be developed to support this process. (Recommendations 29, 30 and 31)
IV. Health And Safety
In Chapter IV, we discuss the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act, 1997 (WSIA) and their application to vulnerable workers. The OHSA requires either the creation of a joint health and safety committee or the designation of an individual to address workplace safety concerns. We believe that it would be helpful if enforcement of the OHSA includes proactive inspections to ensure that the joint committees or individuals have been put in place. (Recommendation 32) We emphasize the importance of ensuring that stakeholder discussions between industry and government regarding health and safety include workers or their representatives. (Recommendation 33)
We note that a number of the recommendations in the Dean Report resulting from the Advisory Panel on Occupational Health and Safety have been implemented or that implementation is underway. We build upon the work of the Dean Report in providing guidance for its implementation in ways that would provide the greatest benefit for vulnerable workers. While we agree with the intent of the Dean Report recommendation to increase proactive inspection and enforcement campaigns at workplaces and sectors where vulnerable workers are concentrated, we refine the recommendation to provide that sectors where vulnerable workers are concentrated be identified as agriculture, hospitality and cleaning and that workplaces with temporary staffing agency workers and temporary foreign workers in all sectors be a priority for proactive OHSA enforcement activities. (Recommendation 34) To strengthen migrant workers