The nature of employment is evolving. Evidence from Canada and other OECD countries indicates that 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 employment structure, to the extent it ever was.1 More precarious forms of work have increasingly taken its place. These changes in the nature of work and the characteristics of the emerging class of workers engaged in precarious work led to the Law Commission of Ontario’s (LCO) project on Vulnerable Workers and Precarious Work.
The objective of this project on Vulnerable Workers and Precarious Work is to make recommendations designed to respond to the challenges faced by vulnerable workers in precarious work. Vulnerable workers are those whose work is characterized by low wages or insufficient hours of work, few or no benefits, little job security and minimal control over their work conditions. They are disproportionately women, immigrants (both newcomers and those established in Canada) or racialized persons.2 The Project focuses, in particular, on the role of the Employment Standards Act and the Occupational Health and Safety Act in protecting these workers. However, it also reviews and makes recommendations about existing community and government supports and programs for workers’ advocacy, for employers and for training and education, as well as the role of labour organizations.
The idea for the Vulnerable Workers and Precarious Work Project arose from several sources including the Creative Symposium in November 2006 which led to the creation of the LCO, suggestions from the Labour and Feminist Legal Analysis sections of the Ontario Bar Association and the Racialization of Poverty Conference held in April 2008.3 The Project was approved by the LCO’s Board of Governors in June 2008.
The LCO engaged in an initial literature review and consultation prior to issuing its Background and Consultation papers at the beginning of 2011. The LCO commissioned two research papers on the extent of labour market insecurity and on approaches to enforcement and compliance.4 Over the course of the Project, the LCO consulted with and/or received submissions from numerous private individuals, experts, business, labour and community organizations including more than 100 workers. The LCO produced an Interim Report on August 15, 2012 that was posted on our website inviting public feedback and was disseminated to over 1,200 targeted organizations, individuals and media outlets. We are grateful for this feedback. It assists us in assessing the value of our recommendations and to understand potentially unanticipated implications. Not every issue raised in the feedback could be integrated into this Final Report but, where possible, we have done so. We wish to acknowledge that all responses were carefully considered. For their privacy, we have not named private respondents but a list of organizations and experts contributing to the Report are provided in Appendix B.
This Report is the product of extensive research, consultations with and submissions from a broad range of stakeholders and advice from a Project Advisory Group.5 The Project Advisory Group is comprised of employers’ and workers’ organizations, academics, government and others to provide feedback, advice and expertise. Project Advisory Group members participated in meetings and phone calls and their expertise was carefully considered in drafting this Report. The LCO wishes to thank and acknowledge the members of the Project Advisory Group for their time and ongoing valuable contributions. The views expressed in this Report are not necessarily the views of individual Project Advisory Group members. The diversity of perspectives they provided as well as those of the stakeholders we consulted has enabled the LCO to appreciate the delicate balance required to make effective and nuanced responses to the issues addressed in this Report.
One comment about the composition of the Project Advisory Group: despite very extensive efforts on our part, in contrast to union and worker-related organizations, there were significant challenges in engaging employer organizations. Over many months, and at all stages of the project process, we made extensive outreach efforts directing invitations to a broad range of employer organizations. This included making efforts to connect with the employer community with the assistance of the Ontario Bar Association and the Ministry of Labour and posting specific invitations on relevant websites. However, our efforts were not successful in obtaining input from the business community at that level. We had more success in obtaining employers’ views through our consultations. A number of organizations were willing to meet with us and several provided valuable written submissions to the Project. Our broad dissemination of the Interim Report included major employer-related organizations, some of which posted it on their websites urging readers to provide feedback to the LCO. However, with the exception of the agricultural sector, we received very little direct feedback on the Interim Report from the business community. Despite this, we have carefully considered the views expressed by those employer organizations that did participate either through the Project Advisory Group, the consultations and/or submissions and we have reviewed research and received feedback from other sources, including government, to identify the concerns of the business community on specific issues. We have made significant efforts to ensure that these concerns and perspectives are integrated into our discussions and recommendations. We understand very clearly the balancing of economic considerations required in implementing change within the labour context, particularly although not only, in challenging economic times. In areas that are highly contentious, where the appropriate response would require further review and discussion, we have provided a foundation for future discussion and action.
The LCO recognizes that small businesses are highly sensitive to administrative processes and additional regulatory requirements. Small businesses make up the majority of businesses in Ontario. In its response to the LCO, the Ontario government pointed out that 94 percent of Ontario businesses employ fewer than 50 people; 75 percent have fewer than 10. Many of these employ part-time, casual and seasonal workers, pay at or near minimum wage and have limited financial resources and narrow profit margins.6 The challenges these employers face in terms of health and safety compliance were recognized in the Dean Report. As a result, in our recommendations, we have made efforts to take into account the impacts on small businesses.
We also want to highlight our awareness of government resource implications. While some of the recommendations are relatively simple and low cost, the LCO recognizes that others will have significant resource implications for the Ontario government and there are limits, particularly in the short term, to what government is able to implement. This Report outlines the issues that are currently confronting Ontario. However, as the world of work is continuing to evolve, we also identify some issues as sign posts to guide discussions looking into the future. As a result, some of our suggested solutions can be implemented now and many of these will have minimal to moderate resource implications. Other recommendations can be considered as longer term initiatives. Accordingly, in Appendix A, we have arranged our recommendations in terms of resource implications as short, medium and long term initiatives.
In addressing some of the issues discussed in this Report, we have benefitted from prior reviews undertaken by others. This work has enriched and informed the LCO’s consultations, research and discussions. We have been able to draw from and, in many respects, build upon this foundational work to construct our analysis in order to move the consideration of these issues forward and, in the process, suggest new recommendations about how to address the circumstances facing vulnerable workers.
Policy development is, by its very nature, a balancing act. We acknowledge that there are costs and benefits associated with change. No new law or policy can be put into place without having impacts on workers, businesses and government. We have attempted, to the extent possible, to anticipate both the positive and negative effects of our recommendations. This task is not a precise science. It involves both reasoned consideration and educated guess-work. Taking into consideration these factors, we have attempted in this Report to select the ideas with the best chance of success that will produce the greatest benefit with the least negative impacts. In doing so, we hope that we have contributed to the development of a plan tailored for Ontario’s needs to move forward to respond to the needs of Vulnerable Workers and Precarious Work.
At the outset, this Report sets out the major issues and research on vulnerable workers and precarious work. This is followed by specific targeted chapters on employment standards, health and safety and training and education. Recommendations are made for specific statutory amendments as well as process and policy changes related to the theme of each chapter. We anticipate this way of organizing the material will enable ease of reference by government offices and other organizations which are similarly organized around these issues. As indicated above, however, we have also organized our recommendations to respond to considerations of time, human resources and costs.