A. The Rise of Precarious Work
Over the past several decades there has been a significant increase in part-time, temporary and casual forms of work. This type of work lacks security and provides workers with limited benefits. The phenomenon has been a contributing factor in the rising rates of income inequality in many OECD countries, as well as a contributor to social unrest in some.7 On the one hand, businesses are advantaged by the ability to increase or decrease workforces with ease. This, some argue, has allowed the Canadian economy to respond to the financial crises more favourably than more regulated European economies. Furthermore, some workers undoubtedly choose this type of work for the flexibility it offers.8 On the other hand, many workers at the lower end of the wage and skill spectrum are losing ground in insecure employment they do not choose and struggling to make a decent wage.9 The nature of precarious work has also been affected by the global migration of workers that provides challenges to many countries including Canada.10
Although the changing nature of work and related migration of workers have been developing for several decades, the global economic crisis has brought it into sharper focus. Canada’s economic position may have weathered the economic downturn better than many other countries. Nevertheless, Canada faces large deficits, lower revenues, high unemployment and low economic projections.11 The current state of the economy is affecting businesses and therefore jobs.12 Governments are seeking to reduce deficits while at the same time continuing to stimulate business and create jobs. Against this backdrop, initiatives to improve supports for vulnerable workers are not only imperative but must be feasible and cost-effective.
In this project, the LCO has considered the impact of the law on workers engaged in precarious forms of work (“vulnerable workers”). Both “precarious work” and “vulnerable worker” are defined in the LCO’s Background Paper:
Precarious work is characterized by lack of continuity, low wages, lack of benefits and possibly greater risk of injury and ill health…Measures of precariousness are level of earnings, level of employer-provided benefits, degree of regulatory protection and degree of control or influence within the labour process…The major types of precarious work are self-employment, part-time (steady and intermittent) and temporary.
It has been said that “the sector in which workers are employed, the size of the enterprise in which they work, the non-standard nature of their employment contract and their demographic circumstances are markers that help to identify them as ‘vulnerable’”. In this paper, vulnerable workers are those whose work can be described as “precarious” and whose vulnerability is underlined by their “social location” (that is, by their ethnicity, sex, ability and immigration status).13
Therefore, vulnerability in this context refers not to the workers themselves but to the situation facing them, both in their work environment and in other aspects of their lives such as their health, their families, their ability to participate in their community and their integration into Ontario life.
Among the characteristics of precarity identified in the description above, earning low income is key. For example, a high income self-employed person working contract to contract (such as a consultant) would not be considered a “vulnerable worker”. We should note that our definition does include part-time or casual workers who may earn a good hourly rate but, in total, earn a low income due to insufficient hours. The project is concerned with the increasing numbers of working poor in Canada, many of whom work in precarious conditions.14 Low income jobs often have few, if any, benefits, such as extended medical benefits.
When coupled with low income, job insecurity is also one of the important features of precarious employment. The fear of losing one’s job may arise from industry-wide phenomena such as automation of the workforce or economic pressures. Temporary foreign workers are precariously employed where their fear of being sent back to their home country prevents them from exercising legal protections to which they are entitled; they are afraid that their job is not “secure” even within the limited work period of foreign worker programs.
This group of workers experiencing low income combined with other measures of precarity has been labelled the “precariat” by Guy Standing who describes them as a growing social-economic class:
…in many countries, at least a quarter of the adult population is in the precariat. This is not just a matter of having insecure employment, of being in jobs of limited duration and with minimal labour protection, although all this is widespread. It is being in a status that offers no sense of career, no sense of secure occupational identity and few, if any, entitlements to the state and enterprise benefits that several generations of those who saw themselves as belonging to the industrial proletariat or the salariat had come to expect as their due.15
Although we have focussed on women, as well as recent immigrants and racialized persons, we recognize that precarious employment is not limited to these particular groups, a point we discuss further below. This was graphically illustrated in a response we received to the Interim Report from the wife of a man who “has been unable to secure a full-time permanent job for 4 years, despite having valuable skills and excellent work history.” She discusses how he was asked to perform work for which he was untrained and that he considered dangerous, and he was offered temporary work for barely more than minimum wage where the collective agreement provided a much higher rate. As she observes, “[t]he situation has become desperate for many people, and has put a tremendous strain on individuals and their families….It is not just stressful, it is demoralizing.”16
The LCO’s consultation process in this project reinforced themes surrounding vulnerable workers and precarious work, as identified by many commentators, including: i) a lack of knowledge by both employers and employees of employee rights and employer responsibilities; ii) the lack of an expeditious method of complaint resolution; iii) barriers to the enforcement of workers’ rights; and iv) the need for more broadly applicable basic minimum employment rights. There is significant concern, in particular, about the lack of representation for workers or workers’ “voice” among those in precarious work.17 There is awareness of the changing nature of work, but some question as to whether the existing regulatory regime is responsive to this change. For employers, the standard employment relationship may no longer be the normative model for jobs, but many workers are still searching for stable, well-paid, permanent jobs with benefits.
The transformation that is taking place in the world of work is dynamic and even experts are uncertain where it will land. Governments, businesses, community agencies and unions each have a role to play to reach out to vulnerable workers who are finding themselves left behind. This Report will outline the extent of the problem, who it affects and how, and will suggest steps for the short and long-term that can be taken to respond to the needs of vulnerable workers.
B. The Economic Backdrop
As western economies transitioned away from reliance on manufacturing and agriculture toward reliance on service and knowledge-based industries in the 1970s, a trend began across the labour markets in those economies – including Canada – towards increased levels of part-time and temporary work at the expense of full-time positions.18 This shift was further amplified as women, who work in a disproportionate share of part-time and temporary positions, continued to enter the labour force in significant numbers. Analyzing data from 1999-2009, Noack and Vosko found a stable condition of what they called “persistent precarity” in the overall structure of the Ontario labour force in terms of the proportion of full-time, part-time and self-employed workers.19 However, using data extended further out from the recent recession (2000-2011), the Ministry of Labour indicates that temporary work, in particular, continued to increase gradually but significantly into the 2000s. In 2000, 8.9 percent of employed workers in Ontario were temporary and by 2011, this figure was 10.9 percent.20
Furthermore, the recent economic recession has impacted the growth of more precarious forms of employment. The Canadian Labour Congress, for instance, has argued that “while the total number of employed Canadians has returned to prerecession levels, there has been a change in the quality of jobs. There are more part-timers than before the recession, and more self-employed workers. Most importantly, there has been a significant increase in temporary work.”21 This conclusion appears borne out by OECD statistics indicating across all OECD economies the percentage of workers engaged in part-time work increased from 12 percent in 2001 to 16.5 percent in 2011, while the percentage of those engaged in temporary work increased from 11 percent in 2001 to 12 percent in 2011. For Canada specifically, the percentage of part-time workers increased from 18.1 percent to 19.9 percent and the percentage of temporary workers increased from 12.8 percent to 13.7 percent across the same time frame.22
This suggests then, that despite the relatively stable structure of the Canadian labour market in the early twenty-first century, it is beginning to undergo another transition that is likely to increase the numbers of Canadians involved in precarious forms of employment.
This section describes some of the pressures being experienced in the economy and labour market that contribute to this rise in precarious employment. Ontario’s labour market is influenced by economic trends which have transformed the way business is carried out. Globalization and free trade have resulted in the creation of global markets. Increasingly, many Ontario businesses must compete with emerging economies which have the advantage of lower wage labour and relatively few regulatory controls. The technological revolution that has occurred over the past three decades has resulted in sharply reduced communications and transportation costs for those importing from elsewhere. For example, in the LCO’s consultations, Ontario vegetable farmers reported competing with producers in Central and South American countries in addition to their traditional competitors in California.23 This may be less of an influence, however, where local services do not compete beyond local markets.
These trends, accompanied by the global recession that commenced in 2008, have exerted a heavy pressure on businesses to set lower consumer prices which, in turn, have caused businesses to restructure their workforce as a cost-cutting strategy. Maintaining a flexible workforce allows businesses to quickly respond to competitive pressures. Flexibility is achieved by relying on more temporary or part-time employees and hiring fewer full-time permanent employees. In some cases, employers may offer job-sharing arrangements to existing employees in order to prevent lay-offs.24 Or businesses may outsource some functions altogether, thereby reducing the overall size of their workforce but increasing their reliance on contract workers (often former employees).25 The result has been the fissuring of the labour market.26 The increase in smaller, fragmented workplaces means that there are fewer in-house opportunities for employees to advance, leaving many to stagnate in entry-level positions.27 While workers’ advocates often regard flexibility in purely negative terms, it should be noted that businesses consider it to be a legitimate business choice permitting them to organize in ways that are responsive to economic turmoil. Some workers appreciate the advantages of flexibility though not its disadvantages but are sometimes willing to accept the trade-off. The legitimacy of both flexibility and security has been recognized in the European concept of “flexicurity” which combines enabling businesses to hire and shed workers flexibly with government funded income security and retraining programs.
The information revolution and dramatic technological advances of the last 30 years, as well as the gradual shift from a manufacturing-based economy to one that is servicesbased, have also affected the labour market. Automation in the workplace has reduced the overall demand for workers and the remaining demand is increasingly for more highly-educated/highly-skilled workers. According to Harry Arthurs in Fairness at Work, more than 70 percent of new jobs require post-secondary education, 25 percent require a university degree and only 6 percent of jobs do not require a high school certificate.28 The result is a relatively smaller pool of jobs available to vulnerable workers and decreased job security for unskilled workers. Canadian immigration policy has reacted to this development by prioritizing the immigration of high skilled workers.29
The mix of workers in Canada’s labour market has also been affected by the global trend in international migration. Part of this trend is the increased movement of “guest workers”. While temporary foreign workers often enter the country to perform high skilled work, there is also a significant portion of unskilled workers from developing countries who migrate in search of work that pays a higher wage than is available domestically. In addition to our need for highly skilled labour, Canada is also grappling with an aging population and a workforce no longer willing to undertake difficult and often low-paying jobs such as agricultural work and care-giving. In order to fill these labour needs, Canada permits temporary entry to low skilled guest workers. We discuss this further in the section on Temporary Migrant Workers.30
The increased proportions of entry-level jobs at one end of Ontario’s labour market spectrum and knowledge jobs at the other end of the spectrum have tended to squeeze out the middle-level jobs. This phenomenon has been labelled the “hourglass economy” and it has contributed to a polarization not only of occupations and incomes but, also, to a social polarization.31
These developments have also impacted unionization rates. Managerial and professional jobs make up a growing proportion of the labour market and these jobs are less frequently unionized. It is also speculated that the smaller size of firms resulting from the fissuring of the labour market has made it more difficult to organize workers.32
Labour market conditions, the changing workforce and the increase in precarious work have all contributed to a significant rise in income inequality in Canada over the past 20 years.33 Over this period, the richest group of Canadians increased their share of total national income relative to that of poor and middle-income Canadians. Part of the problem is a growing disparity in wages paid to the top 10 percent of earners relative to those paid to the bottom 10 percent of earners. However, earnings inequality also depends upon the type of jobs that people hold and their work arrangements. For example, women workers represent a larger percentage of the workforce than they did 20 years ago. But women are more likely to work part-time and earn a lower income as compared to men.34 Similarly, increases in self-employment relative to standard employment relationships may play some role in rising inequality because although some self-employed entrepreneurs may be very successful, the self-employed tend to be concentrated in the lower income groups.35 Although globalization and technological advancements have brought increased productivity and opportunities, these benefits have been disproportionately enjoyed by high skilled workers rather than those in low or unskilled work.
Although it is clear that income inequality has been rising in Canada, the broad implications of this phenomenon for society are less clear. Some argue that inequality affects the well-being of all levels of society, not only the poor.36 According to Richard Wilkinson, more equal societies have better social relations. Communities are stronger and there are higher levels of trust and lower levels of homicide, hostility and discrimination.37 In addition, less equal societies have lower than average health standards and shorter life expectancy.38 Others such as the Fraser Institute, argue that economic freedom (defined as personal choice, voluntary exchange coordinated by markets, freedom to enter and compete in markets, and protection of persons and their property from aggression by others) is key to higher levels of prosperity, well-being and longer life expectancy, as well as improved well-being for women.39 There is wide consensus, however, that the growth in precarious employment in Ontario over the past 30 years requires a careful legislative and policy response; one that protects the interests of workers while ensuring that Ontario businesses remain competitive in the new global economy.
C. What Does Precarious Work Look Like?
Noack and Vosko have assessed the prevalence of precarious work in Ontario in relation to certain dimensions of labour market insecurity including low income, little control over the labour process and limited access to regulatory protections. The authors adopt four indicators from the available data as measures of precarity: low income (defined as less than 1.5 times the minimum wage), no pension plan, small-sized firm and no union coverage.40 Although other significant indicators of precarious work exist, including a lack of extended health, vision and dental benefits, there are insufficient data to allow these to be measured.41
Taken separately, each of the four indicators affects a significant portion of Ontario workers. Approximately 75 percent of workers lack union coverage. Just under 50 percent of workers lack an employee-sponsored pension plan. Approximately 33 percent of workers consistently earn a low wage, and 20 percent of workers work in a small firm.42 However, it is the combination of these circumstances that amounts to precarious employment. The authors consider workers to be precariously employed where they are subject to at least three of the four criteria. Based on this measure, their study found that approximately 33 percent of jobs in the Ontario workforce are precarious. But this figure reflects jobs combining any three of the four criteria, including almost 11 percent of jobs that do not have low wages (but combine the other three criteria). While this latter category of jobs may be precarious in the sense that the jobs are less secure, discontinuous, or do not have pensions or unions, these workers are not vulnerable in the framework set out by the LCO. For the purposes of this Report, it is more relevant to consider the approximately 22 percent of jobs in Ontario that are characterized by low wages plus two of the other three indicators of precariousness: no pension, no union and/or small firm size. It is important to be aware that this is only one way to view the extent of precarious work in Ontario and, while helpful, it has limitations. Individually these factors may or may not signal precarity depending on the circumstances. In any event, this way of defining precarious work does not account for all of the factors as enunciated by the LCO’s definition.
Noack and Vosko take the position that form of employment is linked to precariousness. For example, full-time employees are less likely to be in precarious work than part-time employees. About 33 percent of part-time workers are in positions with low wages, no union and no pension, as compared to almost 9 percent of full-time employees.43 Although jobs may be described as part-time, in some cases workers may be working at more than one part-time job and so not properly described as part-time workers.44 People may choose part-time or casual work for many reasons, including family responsibilities, personal reasons or study or they have left full-time work but need a part-time income. According to a recent Statistics Canada report, however, in 2012, 36.6 percent of part time workers aged 25-44 were in such work for other reasons that included market conditions and the inability to find full-time work.45
Similarly, temporary workers are more likely to be in precarious work than permanent workers.46 This is significant because, at present, temporary employees may not fully benefit from Ontario employment standards provisions requiring a minimum length of tenure (such as vacation, termination notice and severance pay)47. Furthermore, once a worker accepts a temporary job, it becomes more difficult to advance and the worker is likely to earn reduced income for many years.48 The uncertainty associated with temporary employment makes these jobs precarious by definition. However, different forms of temporary work also have unique characteristics that add to their precarious nature.49 One example is work performed by temporary migrant workers as discussed in the next section of this Report. Another example is work performed by temporary agency workers.
Temporary agency workers are a growing phenomenon in the labour market. According to the Ministry of Labour, there are over 1,000 temporary work agencies, employing a portion of the approximately 735,000 temporary employees in Ontario.50 Temporary agency workers tend to have lower wages and less union coverage than permanent employees.51 Workers may seek work through temporary agencies in order to maintain a flexible work life or in order to find work quickly. These agencies are also an option for workers such as recent immigrants who have qualifications that are not recognized by regular employers. At one time, employers hired temporary agency workers in order to temporarily fill positions while regular employees were ill or away. Increasingly, however, it appears that at least some employers view temporary agency work as a permanent strategy for maintaining a flexible labour force.52
The three-way relationship between worker, temporary work agency and client may leave workers unaware of their legal rights and more vulnerable to dangerous work or unsafe working conditions. Temporary agency workers have less control over their workplace and, as a result, are less likely to complain about safety conditions. They are disproportionately subject to other risk factors for workplace injuries such as poor supervision, inadequate training and experience, youth and few qualifications, and exposure to high risk tasks. These employees tend to be less integrated into the workplace community. This may have health and safety consequences, in cases where they are not given the same safety training provided to regular employees.53 In some cases, temporary agency workers are hired for the express purpose of carrying out dangerous work so that regular employees need not do so.54 Although the temporary agency is legally the employer in this scenario, the agency is not on-site and has limited ability to ensure safe work conditions.55
The regulatory environment is currently structured such that the temporary agency as employer pays the premiums for workers’ workplace safety insurance. Some employers are shifting the cost of high-risk work by hiring temporary agency workers and thereby avoiding the increased premiums for injuries occurring at the workplace. Temporary agency workers may also be disadvantaged by Ontario’s workplace safety reemployment policy. In certain circumstances, employers have an obligation to re-employ injured workers and they are given financial incentives to comply.56 However, temporary employment agencies meet this obligation simply by placing the worker back on the employment placement roster. Thereafter, there is no protection to ensure that workers are actually offered jobs suitable for their skill set.57
Another growing trend is for companies to outsource specialized functions to external companies that provide workers directly or subcontract with a third organization for workers. This results in a contracting chain where client employees, contract employees and subcontract employees may all work in the client’s workplace. Outsourcing is associated with decreased employment in large companies, increased employment in small or medium companies and an increase in non-standard employment such as selfemployment and temporary work.58
As is the case with temporary agency workers, contract and subcontract employees are vulnerable in a number of respects. First, outsourcing work often allows a company to distance itself from regulatory responsibility for these workers, resulting in fewer workplace protections. Contract chains tend to create fragmented responsibilities and confusion that undermines accountability for occupational health and safety.59 Second, the decision to contract out work is often adopted as a cost-savings measure.60 By treating labour as a commodity, companies are more competitive. However, the result for workers is lower income and reduced benefits.
Self-employment also has the potential to be precarious. While many enter selfemployment attracted by the flexibility and control it offers, others are pushed into it by labour market forces.61 Although self-employment is traditionally associated with small businesses, many self-employed workers do not employ others. These “own-account self-employed” sell their own services in a wide spectrum of circumstances. For example, own-account self-employed professionals such as accountants and doctors have a high degree of control over their work and typically earn a high income. On the other hand, own-account self-employment also includes workers such as personal care workers who may rely on one or a few clients, work in their clients’ homes and earn a subsistence level income. In 2000, 30 percent of own-account self-employed workers worked in client locations and 18 percent reported that a previous employer was among their clients.62 In such circumstances, particularly where there is only one client, the level of dependence may create precarity or, alternatively, what a client characterizes as self-employment may, in fact, be an employment relationship.
Self-employed women tend to be concentrated in more precarious forms of selfemployment. 63 In these circumstances they often “choose” self-employment for the flexibility it allows balancing work and family. While this may suggest control over their work life, the fact is that women remain primarily responsible for unpaid labour in the home. The decision to adopt precarious work in order to meet that responsibility is not really a choice but a practical necessity for many.64
Self-employed immigrants are also disproportionately engaged in more precarious forms of self-employment. They are more likely than Canadian-born workers to be selfemployed involuntarily, that is, due to difficulty finding paid employment.65
In spite of the wide continuum of own-account self-employment, the average income of own-account self-employed workers is significantly less than that of self-employed employers. For women, visible minorities and immigrants who are own-account selfemployed, average income is lower still.66 Furthermore, self-employed workers generally work longer hours than employees and they are less likely to have access to training or benefits.67 For all these reasons, own-account self-employed workers are at risk of being precariously employed.68 And those in a relationship of dependence are even more likely to be precariously employed.69
According to Noack and Vosko, certain types of jobs are also more likely to be precarious. In the food services and accommodation industries, in 2008, for example, their research indicated that about three-quarters of jobs were precarious. These industries typically employ women with a high school diploma or less, many of whom are racialized or are newcomers to Canada. Many of these jobs are part-time.70 Similarly, the agricultural industry, on Noack and Vosko’s measures showed a high proportion of precarious jobs (80.5 percent in 1999; 64.7 percent in 2008). Here, though, the typical worker is male and almost two in five are temporary or seasonal employees.71 Service industries such as repair, maintenance services, laundry, personal care, and business and building support services were also disproportionately made up of precarious jobs.72
In contrast, jobs in the public sector are the least likely to be precarious. Many of these jobs are unionized and employers are more likely to be large organizations, such as governments or universities, and subject to stringent employment standards.73 However, creeping privatization throughout several sectors has reduced the number of such jobs that are available to Ontario workers.
Lack of access to education and skills training is another factor linked to precarious employment. On Noack and Vosko’s definition, just over 60 percent of Ontarians without a high school diploma were in precarious jobs in 2008. This is reduced to 43 percent for those with a high school diploma but no post-secondary education, and is further reduced to 17 percent for those with university degrees.74 The trend is partly explained by the fact that the types of jobs more likely to be precarious (services and agricultural, for example) are also those that do not require advanced educational credentials. However, Noack and Vosko found that even within the category of full-time permanent jobs, those with lower levels of education are more likely to be precariously employed.75
The link between precarity and temporary and part-time work, as well as work in certain low skill job categories, also illustrates the gendered and racialized nature of precarious work. Women, immigrants and racialized persons are each over-represented in these forms and types of jobs.76
D. Identifying Vulnerable Workers
Although anyone may be precariously employed, precarity is more likely to affect workers in “already marginalized social locations”.77 This includes women, single parents (who are disproportionately women), racialized groups, new immigrants, temporary foreign workers, Aboriginal persons, persons with disabilities, older adults and youth. The link between marginalized workers and precarious employment is partly explained by their difficulty accessing higher education and skills training.78 It is also significant that they are more often employed in temporary and/or part-time jobs. However, even among those in full-time permanent positions, women, visible minorities and recent immigrants are more likely to hold precarious jobs than others.79
This Project cannot hope to do justice to the unique experiences and circumstances of all vulnerable groups of workers. While the LCO has chosen to focus this Report on the experiences of women, immigrants and racialized persons in the workforce, there is a brief discussion below of a number of groups that experience labour market disadvantages. In A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice, the LCO has examined some of the work-related issues facing older adults. The circumstances of persons with disabilities are considered in the LCO’s A Framework for the Law as It Affects Persons with Disabilities: Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice.80
1. Women and Single Parents
Canadian studies show that women are more likely to be engaged in precarious work than men.81 For example, women are over-represented in part-time and temporary work.82 Although 50 percent of Ontario workers are women, 72 percent of permanent part-time workers are women.83 They are also over-represented in the lowest incomeearning groups such as minimum wage earners.84 Even in full-time work, women are more likely to earn less than their male counterparts and this general wage disparity exacerbates the problem of women in precarious work.85
As noted, Noack and Vosko identified food and accommodation as the most highly precarious industry in the context of Ontario, which typically employs women with a high-school diploma or less. Both racialized and recently immigrated women are overrepresented in this industry. The industry also employs the highest proportion of part-time workers, of whom about a third are temporary.86
In some cases, women choose part-time or temporary jobs since it allows them the flexibility to fulfill home and care-giving responsibilities—although this choice is illusory where it is made necessary by employers’ or society’s failure to accommodate these responsibilities.87 Others make this choice for study, or other voluntary personal reasons. Some work part-time only because they are unable to find full-time employment.88
The high numbers of women in precarious work are, in some measure, the result of their traditional social role as caregivers.89 Under the “gender contract” that typified the 1950s middle class, men were primarily responsible for financial support and women stayed home to care for the family. (Women in many working-class families have always worked outside the home, caring for other women’s children, cleaning homes and working in factories and shops, for example.) Today, under current social and economic conditions, two incomes are often necessary to support a family and women’s choices and involvement in many spheres of life have expanded. The majority of women have joined the workforce. The family unit is also more varied with increasing numbers of single parents. And yet women continue to bear primary responsibility for care-giving.90 In 2010 Canadian women spent an average total of 50 hours per week caring for household children, double that spent by men (24 hours).91 In 2008, just over 9 percent of women reported working part-time because of childcare responsibilities as compared to less than 1 percent of men.92 As a result, the precarity of women’s jobs is partly influenced by public policy on maternity benefits and childcare.93
2. Racialized Persons
Racialized workers also suffer a disproportionate degree of hardship in the labour market.94 Racialized workers experience higher unemployment rates and the work they are able to get is “much more likely to be insecure, temporary and low paying.”95 In general, racialized men and women earn less than non-racialized men and women respectively.96 Gender also plays a role here with racialized women forming one of the most vulnerable groups.97 Further, racialized families were three times more likely to live in poverty in 2005 than non-racialized families.98 In workplaces, temporary migrant workers often work only with other migrant workers, often those from their own country, rather than alongside Canadians.99
3. Newcomers to Canada and Established Immigrants
Newcomers to Canada are also disproportionately found in precarious employment. Once again, form of employment is significant here. While recent immigrants make up approximately 10 percent of Ontario workers, they make up almost 16 percent of temporary part-time workers.100
Recent immigrants “have borne the brunt of the recession’s impact” and have been “disproportionately affected by rising unemployment, reductions in full time work, and a declining manufacturing base.”101 One might expect recent immigrants to find themselves temporarily in less stable and lower paid jobs upon their arrival to Canada but to progress to better jobs with the passage of time, particularly if they are educated. While this may have been the case in the past, a Statistics Canada report reveals that, between 1991 and 2006, the percentage of university-educated immigrants in jobs with low educational requirements increased for both recent and established immigrants.102 For recent immigrants, the percentage increased from 22 percent to 28 percent for men and from 36 percent to 44 percent for women. For established immigrants, the percentage increased from 12 percent to 21 percent for men and from 24 percent to 29 percent for women. In contrast, the percentage of university educated Canadian-born workers in jobs with low educational requirements remained stable at 10 percent over the same time period. The report concludes that
the increases for established immigrants suggest that the difficulties, which have long plagued recent immigrants, are today affecting established immigrants, which also suggests that difficulties experienced by recent immigrants are not necessarily temporary.103
Similarly, another study compared the incomes of university-educated racialized immigrants and university-educated non-racialized immigrants based on their immigrational generation status. The study found that a significant income gap existed between first-generation racialized and non-racialized workers and that this gap persisted into the second generation.104 For the first generation, this income gap may be partially due to a phenomenon called “deskilling” occurring when immigrants have limited English skills or lack Canadian work experience, or employers fail to recognize non-Canadian credentials or engage in discrimination.105 Deskilling is also gendered. Jobs not requiring Canadian experience often involve manual labour more suitable for male rather than female workers.106 In Made in Canada, Faraday points out that live-in caregivers trained as nurses or other health care professionals, are particularly impacted by deskilling due to the fact that temporary foreign workers’ work permits restrict participation in education and training programs.107
In its response to the Interim Report, the Ontario Council of Agencies Serving Immigrants pointed out that having insecure immigration status, such as that experienced by refugee claimants and temporary foreign workers contributes significantly to precariousness.108 A recent study indicates that those who enter Canada by means of precarious immigration status are more likely to be found in precarious work even after their status is regularized.109
For individual workers and their families, deskilling has both financial and emotional consequences.110 In particular, workers express frustration about their inability to provide their children with the standard of living enjoyed by Canadian children.111 In some cases, workers may gradually internalize a lower sense of self-worth and secondclass status.112 Most studies show that unskilled workers or those with lower levels of education are among the most vulnerable, whether born in Canada or not.
Having an education does provide immigrants with some protection against precarious employment. While a Statistics Canada report in 2012 found that immigrants with university degrees, and especially recent immigrants, had significantly higher unemployment rates than those of Canadian-born university graduates, universityeducated immigrants fared better than less-educated immigrants and slightly better than average for the total population in Canada.113 This report also showed improvements over time for immigrants.
Poor working conditions experienced by recent immigrants are often exacerbated by language barriers. For example, workers may be unable to read safety notices posted in the workplace and they may be unaware of their rights under the Occupational Health and Safety Act.114
4. Temporary Migrant Workers
Workers may legally enter Canada and work in lower skilled jobs for limited periods of time through three federally-administered temporary foreign worker programs. According to 2011 statistics, there were more than 106,000 temporary foreign workers in Ontario on December 1, 2011 and more than 67,000 entries of such workers in 2011.115 A breakdown of categories of these 67,000 workers indicates that close to 25,000 are managerial/professional or skilled and technical (National Occupational Classification [NOC] levels O, A and B) while about 20,500 are lower skilled (NOC level C), many of whom include seasonal agricultural workers (including the Seasonal Agricultural Workers Program [SAWP] described below) and live-in caregivers, and about 800 are level D lower skilled workers. For approximately 4,600, the workers’ levels are not indicated and close to 17,000 are “classified as having a synthetic code occupation which includes open work authorizations. This indicates that they may be authorized to work as the spouse/partner/child of a foreign worker, awaiting permanent residency or in an international experience Canada program.”116 These individuals are not included in NOC categories.117 The numbers of temporary foreign workers that have entered Canada have risen in recent years, in both high and low skilled categories. In this Project, we are mainly concerned with those in lower skilled closed work permit situations: NOC levels C and D, including SAWP and live-in caregivers. While much higher than 10 years ago, the number of workers entering in the low skilled pilot program were at about the same levels in 2011 as they were in 2007. SAWP numbers are also relatively steady and live-in caregivers have decreased.118
The Seasonal Agricultural Workers Program (SAWP) allows workers from Mexico, Jamaica and other Caribbean countries, to stay and work up to eight months each year for a single designated employer (unless transferred).119 Administered by the Foreign Agricultural Resource Management Services (F.A.R.M.S.), SAWP allows approximately 1,400 Ontario farmers to employ from 15,000 to 20,000 workers each year – more than any other Canadian jurisdiction.120 SAWP provides for liaison officers from the workers’ home country to maintain oversight and liaison services between the workers and employers while in Canada. In 2011, while 18,783 vacancies were approved, fewer than 16,000 workers arrived in Ontario for periods of work varying from a few weeks to eight months.121
The Live-in Caregiver Program permits caregivers to serve as domestic workers for two years with the option to apply for permanent residence after the qualifying period.122 The Pilot Project for Occupations Requiring a Lower Level of Formal Training for jobs within the federal National Occupational Classification systems C and D (NOC C and D) allows qualified foreign workers to obtain work permits for 24 months renewable to a maximum of 4 years to work in occupations such as clerical, health, sales and service, transportation and manufacturing and agriculture.123
Canada’s immigration policy is being revised to respond more nimbly to employers’ needs and immigrants’ capacity to integrate into Canadian society.124 This has resulted in an increased focus on high skilled immigrants. Temporary foreign worker programs have experienced recent changes as well. In recognition of their heightened vulnerability, the most vulnerable categories of temporary foreign workers, live-in caregivers and NOC C and D workers, were provided with additional federal protections in April, 2011 with the introduction of more rigorous scrutiny including, for NOC C and D (and live-in caregivers), standard form contracts and more in-depth assessments of the genuineness of the employer’s offer of employment.125 Contracts for NOC C and D agricultural workers and live-in caregivers have been strengthened and now include stricter protections than those for other NOC C and D workers; SAWP has always had a high degree of regulation and oversight, which is reflected in its contract terms.126 These protections are discussed more fully in Chapter III in the segment on “Employment Legislation Protecting Temporary Foreign Workers”.
Other federal changes announced in April, 2012 have impacted the wages of Temporary Foreign Workers. Under the previous structure, employers were required to pay temporary foreign workers the median wage for occupations in a specific region. The government maintained that this sometimes resulted in foreign workers being paid more than Canadian workers for the same work, and that there was inconsistency in determining the median wage from region to region. Under the new system, employers may pay highly skilled temporary foreign workers at a rate 15 percent less than the median wage, as determined by Statistics Canada. They may pay low skilled workers 5 percent less than the median wage. However, the employer is still required to demonstrate that the proposed salary is the same as the salary they are paying to their Canadian employees in the same job and at the same location. Under no circumstances can a temporary foreign worker be paid less than a Canadian employed in the same position at the same employer. The new policy therefore appears to be aimed only at protecting employers who have hired Canadians at wages lower than the median for that job and wish to hire temporary foreign workers at the same rate. Wages cannot fall below minimum wage. Moreover, the new policy does not apply to the seasonal agricultural workers or live-in caregivers.127
Workers’ advocates have been critical of this initiative and critical of temporary migrant worker programs in general due to the vulnerability that low skilled workers experience as a result of their temporary work and immigration status. One area of debate has been SAWP’s provision for “naming” workers, that is, allowing farmers to identify specific workers to return to the same farm, a common practice occurring in up to 80 percent of cases.128 F.A.R.M.S. considers the practice to be a major advantage for employers who wish to re-hire good workers, and for the named employees themselves. On the other hand, the Agricultural Workers Alliance and Faraday in Made in Canada are critical of naming, arguing that the power it gives to employers contributes to workers’ reluctance to complain about substandard conditions.129
Although some workers’ advocates advocate for the discontinuance of temporary worker programs, arguing that only permanent residency upon arrival will be able to fully reduce the vulnerability created by temporary foreign worker programs for low skilled workers, internationally, SAWP has been regarded favourably and as a standard for some best practices.130 In fact, when the federal government strengthened contract terms for NOC C and D agricultural workers, it seemed to be moving toward bringing the program in line with SAWP terms. Philip Martin for the International Labour Organization has taken the position that:
Guest worker programs are here to stay … In considering how to make the current system better, three widely shared principles need to be kept in mind. First, government policies, even if they do not work perfectly, do make a difference in the how and how many migrants arrive, how they are treated within the country, and whether they return or stay. Second, the overall economic benefits of moving workers over borders are positive, as individual migrants and their employers are better off and world GDP rises as more workers have higher wage jobs. Third, in a world of laws and rights,  it is best for everyone if labor migration is legal and orderly.131
In the LCO’s consultations, workers themselves described the long term benefits of these programs. They reported that SAWP provides them with a much higher source of income than is available in their home countries, allowing them to better support their families and educate their children.132 Workers reported returning year after year and many enjoyed positive and mutually beneficial relationships with their employers. They were paid in accordance with their contractual terms and hours worked, health and safety laws were respected, housing conditions were comfortable and they enjoyed a productive working relationship with their employer. Many workers also commented on long-standing friendships and personal connections they had made with their employer and people in the communities where they worked. They consistently expressed gratitude for the opportunity to earn an income in Canada.
However, migrant farm workers have been found to be at higher risk for occupational injuries, diseases and death, and they sometimes experience challenges in accessing their entitlements to health care and compensation for injuries. Low skilled migrant workers are vulnerable to exploitive recruiting and other practices and female workers are at risk for workplace sexual harassment.133
In our consultations, we heard from some workers about their fear of repatriation, employer reprisals in response to complaints, health and safety concerns, insufficient hours, not enough time off, substandard housing and inadequate transportation. Many of these complaints are repeated in research studies.134 Under the SAWP contracts, employers are responsible for providing SAWP workers with “clean adequate living accommodations” without cost and are subject to health standards and oversight by liaison officers.135 Under the NOC C and D agricultural program, the standard contract terms require that employers arrange for housing that has been inspected and meets National Minimum Standards for Agricultural Accommodations. Employers may deduct payment for accommodation. Workers’ advocates raised issues during our consultations regarding farm workers such as overcrowding, inadequate kitchen facilities, bedbugs, leaks, mould and lack of heat.136 In some cases we were advised that local housing inspectors would only inspect one bunkhouse at a farm, and not the remaining ones, allowing for inadequate facilities to go undetected.137
For low skilled temporary migrant workers, keeping their job is essential to their limited immigration status in Canada. There are high stakes associated with job loss – their ejection from Canada, the need to find a job in their home country (which will pay a fraction of what they were earning in Ontario), the consequences for their family income, and the likelihood that they will not be accepted back into Canada. One recent study has found that precarious legal residency is linked to precarious work even after the individual becomes a permanent resident.138 Therefore, these workers experience a particular brand of job insecurity that may discourage them from exercising their legal rights. This has led the Metcalf Foundation and the Migrant Workers Alliance for Change to argue that the provision of permanent residency is the only complete solution to reduce the vulnerabilities facing temporary foreign workers, while Goldring and Landolt suggest that “the mix between permanent and temporary entry should favour the former”.139 While federally governed decisions regarding immigration are outside the purview of this Report, we do provide commentary and recommendations in areas within Ontario’s jurisdiction that could strengthen protections for migrant workers in low skilled programs while these programs are in effect.
5. Aboriginal Persons
The Aboriginal population has faced particular challenges in the labour market which have worsened following the recession. There are approximately 300,000 Aboriginal people living in Ontario; approximately 80 percent live off reserve.140 In 2008, the Ontario unemployment rate for Aboriginals aged 25-54 living off reserve was 9.2 percent while it was 5.2 percent among the non-Aboriginal population. By 2010, the gap had widened with a 12.6 percent unemployment rate among the Aboriginal population and a 7.2 percent rate among non-Aboriginals. This follows a general trend nationally in recent years of a widening of the unemployment gap between Aboriginal and non-Aboriginal populations. Employment losses between 2008 and 2010 impacted all age groups with Aboriginal youth being particularly affected. Among the core working-aged Aboriginal population (aged 25-54), full-time private sector employment showed significant declines.141
In his 2012 Report on Ontario’s public services, Drummond highlighted the particular labour market challenges facing Aboriginal people, especially Aboriginal youth.142 Drummond pointed to the “alarming gap” in educational performance between on-reserve First Nations and the non-Aboriginal population. To respond to the situation, one of his recommendations was for major investment in education to increase economic, health and social outcomes.143
6. Persons with Disabilities
Persons with disabilities have long been disadvantaged in the labour market.144 In 2006, only 51 percent of persons with disabilities aged 15 to 64 were employed as compared to 75 percent of persons without disabilities. Put another way, the unemployment rate for working age persons with disabilities was over 10 percent whereas it was under 7 percent for persons without disabilities.145
Even when persons with disabilities are employed, they are more likely to have temporary or part-time jobs with characteristics of precarity.146 These jobs tend to pay lower salaries than average, even after taking into account fewer hours worked.147 In 2006, the average income in Ontario for persons with disabilities was $25,304 as compared to $38,358 for those without disabilities.148 The low income available in employment can be a disincentive for persons with disabilities to enter the workforce, particularly where they are eligible for income support through the Ontario Disability Support Program (ODSP). Furthermore, these jobs often do not offer extended health benefits which may be an important consideration for those who require ongoing medication or treatment.149
For persons with disabilities, precarity may be closely linked to systemic discrimination in the workforce. Persons with disabilities may “choose” non-standard employment only because appropriate accommodation of their disability is not available to them in a permanent, full-time position.150
Ontario’s innovative Accessibility for Ontarians with Disabilities Act contributes to the identification and removal of barriers to equality for persons with disabilities by setting proactive standards. In the area of employment, for example, employers in both the public and private sector must notify applicants about accommodations available in the recruitment process, develop processes for creating individual accommodation plans for employees with disabilities, and create return-to-work processes for employees who have been absent due to disability.151
In responding to the Interim Report, the Ontario government noted that
The Ministry of Community and Social Services funds employment supports to help individuals including people with disabilities. The Ontario Disability Support Program (ODSP) and Ontario Works’ employment support services are funded based on successful client outcomes and ODSP provides a transitional supplementary health benefit for recipients exiting the program for employment until comparable coverage is available from the employer.152
Ontario youth (aged 15 to 24) have a significantly higher unemployment rate than older workers.153 In August 2012, this rate was 17.7 percent as compared to 6.3 percent for workers 25 years and over with the total rate of summer employment for Ontario students aged 15-24 falling to 43.3 percent. In April 2012, this rate was 16.4 percent as compared to 6.3 percent for workers 25 years and over.154 The difficulty youth experience entering the labour force has caused many youth to accept non-standard forms of employment such as temporary, seasonal or part-time employment and unpaid internships.155 In 2011, over 50 percent of young workers were in part-time employment in comparison to just under 14 percent of workers aged 25 and over.156 Youth are also over-represented in temporary forms of employment.157 Of course, many youth continue to pursue education in addition to working and this partly explains their tendency to accept non-standard employment.158
One respondent to our Interim Report provided an extensive analysis of the inappropriate application of unpaid internships that are not part of an academic program. The misuse of unpaid internships exploits the inexperience of young workers, takes advantage of their need to gain experience and contributes to their precarity. By reducing youth employment, these practices create broader and longer term negative impacts on the Ontario economy.159 In its response to the Interim Report, the CAW raised concerns about the lower minimum wage rate for students.160
Health and safety issues contribute to the precarious employment of young workers. Young workers consistently have higher than average rates of workplace injuries. The Ontario Workplace Safety Insurance Board reports that, each year, 10,000 young workers are injured such that they are unable to return to work the following day.161 There are several reasons for this. Youth are more likely to be inexperienced and those in temporary or part-time jobs are less likely to receive safety training.162 Since they are just beginning their working lives, they may also be intent on impressing their employer and be unwilling to report safety concerns.163
The Ontario Ministry of Labour has identified workplace safety for young workers as a priority.164 Education initiatives, public awareness campaigns and targeted enforcement through workplace inspection blitzes have been successful in reducing injury rates.165
8. Non-Status Workers
Non-status or undocumented workers do not have immigration status to be in Canada. These workers are highly vulnerable to exploitation by employers since they are often unable or unwilling to enforce employment standards or health and safety protections.166 The issues surrounding workplace protections for non-status workers are complex and fall beyond the scope of the LCO’s project which addresses vulnerable workers and precarious work more generally. Nevertheless, many of the LCO’s recommendations for improving conditions for vulnerable workers will also assist nonstatus workers.
Having identified a range of vulnerable workers in the Ontario labour market, the next section considers how women, immigrants and racialized persons, in particular, are impacted by precarious work.
E. The Negative Effects of Precarious Work on Vulnerable Workers
1. Physical and Mental Health
Studies consistently link precarious employment to negative physical and mental health outcomes.167 In fact, the World Health Organization has identified the global dominance of precarious work as a significant contributor to “poor health and health inequities.”168 This heightened health risk is the result of several factors, some of which are briefly described here.
RISK OF INJURY AND ILLNESS
Precarious work is more likely to be physically demanding work and is more likely to involve health and safety risks.169 This is particularly the case for newcomers to Canada who are more likely than Canadian-born workers to be engaged in physically demanding work.170 According to Ontario’s Expert Advisory Panel on Occupational Health and Safety (“Dean Report”), this increased risk may be due, in part, to a lack of experience or training that is job or hazard-specific; a lack of knowledge about occupational health and safety rights; and the fear of losing one’s job or, in some cases, being deported.171 In its 2010 Report, the Advisory Panel made several recommendations for addressing these concerns, including mandatory health and safety awareness training for new workers and supervisors and improved protections from reprisals when vulnerable workers speak up about health and safety concerns.172 These recommendations are discussed further in this Report’s Chapter on Health and Safety.
EFFECT OF LOW INCOME
Precarious workers may also suffer health consequences as a result of their lower income. Low pay often means that workers must work at more than one job or must work long hours. In turn, long hours mean that they are more susceptible to illness or injury. Low wages may also affect workers’ access to “safe transportation and sufficient nutritious food.”173 Without safe transportation, workers expose themselves to riskier forms of transportation or are unable to travel to access health care.174
JOB INSECURITY AND STRESS
The job insecurity associated with precarious work may cause workers to experience significant stress. Although the flexibility afforded by self-employment and temporary and part-time employment may allow some vulnerable workers to juggle family responsibilities, quite often these arrangements are unpredictable. Workers are often not given advance notice of their work schedule, they are required to work split shifts or they are chronically “on call”.175 The heightened insecurity of precarious employment means that workers may live day-to-day not knowing whether they will work enough hours in a day or week to meet basic needs. This job strain, the pressure of holding multiple jobs, irregular or long hours, insecure visa status and a lack of legal protections all may contribute to stress.176 For temporary migrant workers, this may be exacerbated by loneliness due to family separation, social and geographic isolation, and few leisure activities.177 In the LCO’s consultations, there were reports of workers experiencing mental health problems including tension, exhaustion and depression.178 Job strain has also been found to have consequences for one’s physical health.179
In some cases, the fragmented and isolated nature of precarious work prevents workers from experiencing a sense of job satisfaction and from developing rewarding work relationships. For example, temporary or part-time employees may not be given sufficient hours to fully integrate into the workplace or the continuity of employment to see the results of their work.180 This may lead to a decline in mental health. Similarly, the trend of recent immigrants working in jobs for which they are over-qualified has also been associated with mental health decline.181
BARRIERS TO ACCESS TO MEDICAL TREATMENT AND MEDICINE
In its consultations, the LCO heard that precarious workers have difficulty accessing medicine, particularly prescription medicine. They generally do not have benefits and, because their wages are low, drugs are relatively costly.182 For example, less than 10 percent of temporary workers receive extended health care and only 2 percent receive dental benefits.183 This lack of access to health benefits and paid sick days encourages vulnerable employees to ignore injuries and illnesses rather than seek medical treatment. For newcomer workers and temporary foreign workers, there are often language and other cultural barriers to accessing health care.184 Particular concerns were expressed that a lack of health benefits may compromise the health of pregnant women. According to one advocate, pregnant women without immigration status do not have health coverage and must save their money in order to receive check-ups and assistance in the delivery of their child. These women may miss check-ups where they do not have adequate funds or they cannot afford to lose hours at work.185 Also, pregnant women in workplaces with fewer than 50 people are not covered by the personal emergency leave provisions in the Employment Standards Act and these women may not be given enough time off to attend necessary medical appointments.186 The Ontario government response to the Interim Report pointed out that those without coverage may be able to attend a Community Health Care Centre for basic care and that “Ontario hospitals cannot refuse to treat or admit an individual if the refusal would thereby endanger the person’s life, regardless of the individual’s residency or insurance status.”187
Finally, the lack of supplementary health benefits associated with precarious work may make it unfeasible for vulnerable persons receiving social assistance to take a job in the first place. The Commission for the Review of Social Assistance in Ontario (CRSAO) noted in its Discussion Paper, “with the growth in part-time and low paid work, it is increasingly difficult for people to obtain sufficient earnings and health benefits through employment to replace social assistance benefits.”188
2. Family and Community Relationships
Precarious employment is also likely to have a negative effect on the individual’s personal, family and community relationships. The effect of working multiple jobs, long hours or having to search for additional work will limit the time a person can spend on these relationships, or even time spent in forming such relationships. This can lead to negative feelings of self-worth and can erode personal integrity. Over time, the individual may lose the informal support network of family and friends.189
Unpredictable work hours can also play havoc with the worker’s family life and social life, making it more difficult to arrange stable childcare and leaving workers unable to commit to other socially beneficial activities such as becoming involved in their community.
3. Training and Education
Precarious workers have limited opportunities to access training or education allowing them to upgrade their skills. Without training, they are less likely to find more stable and better paid work. This contributes to long term economic vulnerability and perpetuates the cycle of precarious work.190
Employment support programs currently available in Ontario are not well designed to target the needs of the most vulnerable workers. Many Employment Ontario programs are available only to those receiving federal employment insurance (EI) benefits. Yet workers in non-standard employment relationships are less likely to meet the eligibility requirements for EI.191 Dependent self-employed workers are excluded from the program altogether and temporary and part-time workers may not be able to accrue the minimum hours of insurable employment necessary for eligibility.192 According to a recent report, only 25 percent of unemployed workers in the City of Toronto are eligible for EI.193
Even those with the means to pay for training must find enough time to attend training sessions. Some workers attempt to train while working multiple jobs – a practice which has negative health consequences and contributes to employment strain. Temporary foreign workers are frequently prohibited or highly restricted in terms of taking vocational training as a condition of their work permit.194
The impact of a lifetime of precarious employment increases with age. Without access to sufficient savings or a private pension, vulnerable workers may continue to work when others would retire, or they may face poverty in retirement. This contributes to negative health impacts and it increases reliance and cost pressures on state-funded assistance in retirement, such as the Old Age Security Program and the Guaranteed Income Supplement for low-income older adults. This will affect more women than men, due to both the higher numbers of women in precarious work and the longer-life expectancy of women. For a broader discussion of some of the challenges facing older adults in Ontario, and particularly those with low income, see the LCO’s A Framework for the Law as It Affects Older Adults: Advancing Substantive Equality for Older Persons through Law, Policy and Practice.195
5. Intergenerational Costs
Finally, the nature of precarious work is also likely to have intergenerational costs. There do not appear to be studies that specifically examine the consequences to children when a parent is precariously employed. However, there are studies that show that poverty has high intergenerational costs.196 Growing up in a low income household appears to affect a child’s educational achievements and chances in life.197 Although this transmission of poverty is not well-understood, low income does impose limits on the amount parents can spend on “nutritional food, educational fees, fitness and other extra-curricular activities.”198 Furthermore, precarious work is likely to limit family time and the stress of this type of employment is likely to have a negative effect on family life.199 If parents also have precarious legal status in Canada, this will likely disadvantage their children, even where the children have been born in Canada.200 Nevertheless, Canada has a relatively high rate of intergenerational mobility. Only about 20-25 percent of Canadian children growing up in poverty will remain poor in adulthood as compared to 40-60 percent in the United States.201
F. Contemporary Debate about Precarious Work
The increase in precarious work has led to increased attention to and debate on the need to protect vulnerable workers.202 There have been a wide variety of studies and reports including the following:203
1. Law Commission of Canada Review
Of particular note is the project commenced by the Law Commission of Canada (LCC) on vulnerable workers in 2004 which addressed the issue more broadly than circumstances in Ontario and included consideration of federally-regulated matters.204 This project was not yet complete when the LCC ceased operations. Nevertheless, its Discussion Paper offers insights into the ways in which the current regulatory framework fails to protect and support vulnerable workers, noting the following problems:
the regulatory framework has not kept up with the rise in precarious work and the more flexible forms of work being offered by employers;
enforcement of existing laws and regulations is not adequate to protect vulnerable workers;
supports provided to vulnerable workers are inadequate to enable them to transition to more stable and higher paying employment; and
existing laws and policies do not accommodate unpaid work obligations adequately.205
The Discussion Paper goes on to identify several possible directions for reform including increasing the incomes of low-paid workers, expanding labour laws to provide more protection for vulnerable workers, and connecting eligibility for benefits (such as Employment Insurance or Canada Pension Plan) to factors other than the employment relationship.206
2. The Arthurs Report
The 2006 Arthurs Report, Fairness at Work, also provides invaluable insight into the issues of the changing nature of work. Arthurs was commissioned by the federal government to review the labour standards contained in Part III of the Canada Labour Code.207 Many federally-regulated workplaces in Canada are large organizations such as banks, telecommunications firms, transportation and pipeline companies. As a result,there are relatively fewer low-paid and otherwise vulnerable workers under federal jurisdiction than under provincial jurisdiction.208 This fact, paired with the different regulatory regime governing federal workplaces, limits the degree to which Arthurs’ recommendations inform the LCO’s project. However, the Report does provide a comprehensive picture of the modern workplace and the social and economic trends influencing it.
Just as this Report considers the changing demographics of the Ontarian workforce over the past several decades, the Arthurs Report conducts a similar review in the federal context. It notes that the workforce is more diverse with women working in increased numbers such that “the two-income household has become the norm.” In 1961, both partners worked in only 19 percent of households, whereas in 2001 that was the case in 62 percent of households. Family structures have become more diverse and “immigration has transformed the ethnic, racial, cultural and religious make-up of Canadian…workplaces.”209 Groups that were historically under-represented in the workforce, such as Aboriginal persons and persons with disabilities, are increasingly present in significant numbers. In general, the workforce is better educated and there has been a shift towards knowledge-based occupations. As a result, both workers and employers have placed increasing emphasis on education and training. More people are opting for self-employment – whether by choice, by necessity due to other obligations or because they have not been able to find traditional forms of employment. This has resulted in “increasingly ambiguous relationships between these workers and the people they work with and the enterprises they serve.”210
The Arthurs Report also notes the difficulty of addressing the needs of vulnerable workers solely from a labour standards perspective and in isolation from broader social supports such as income support, affordable housing and affordable childcare.211
CANADIAN CHAMBER OF COMMERCE RESPONSE TO THE ARTHURS REPORT, 2009
The Canadian Chamber of Commerce represents “more than 300 local chambers of commerce speaking for 175,000 businesses of all sizes.”212 In responding to the Arthurs’ Report, the Canadian Chamber of Commerce indicated that overall the Report maintained a balance between workers’ and employers’ views; however, it enunciated concerns with some of the recommendations. Moreover, it made the important point, and one that we recognize, that the economy had changed since 2006.
The world has changed since the Federal Labour Standards Review Commission issued its report in 2006…The result is lower demand for products and services coupled with tighter credit access. This constrains businesses’ ability to survive, let alone grow. If ever Canadian employers needed flexibility in managing their relationships with employees, it is now. In these grave economic times, it is vital that the government not add any additional cost and/or administrative burden to businesses through additional regulations that do not address a real problem in a practical way and result in improvements for employees or employers.213
As we have said previously, we recognize these economic complexities and we agree that new regulations impacting employers must constructively address real problems. Accordingly, we have proceeded with care when suggesting new regulatory mechanisms and we have done so only where we perceive it is necessary to respond to concrete issues. There are many examples that illustrate our approach. Our response to proposals to extend the ESA claims limitation period, to harmonize the definition of employee across legislation and to implement a registry of employers of temporary foreign workers are just a few examples of our approach.
3. The Dean Report
In January 2010, the Ontario Minister of Labour appointed an Advisory Panel on Occupational Health and Safety to conduct a review of Ontario’s occupational health and safety system. The panel, chaired by Tony Dean, was composed of academics and representatives of labour and employers with expertise in health and safety issues. The Dean Report was released in December 2010. The Report’s recommendations focused on enhanced training, resources and support, protections against reprisal, and an OHSA structure for prevention that is aligned with enforcement.
As a result of the Panel’s recommendations, amendments were made to the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997 establishing the Ministry of Labour as the lead for prevention of illness and injury.214 The changes resulted in the appointment of Ontario’s first Chief Prevention Officer to coordinate the prevention system and the appointment of a new Prevention Council and will permit the establishment of standards for health and safety associations, workplace education and training, and the promotion of workplace safety. Some of the Dean Report’s recommendations are directed at vulnerable workers, and others, while more general, would have specific benefits for this segment of the working population. The Ontario government has committed to implement the Dean Report recommendations and, to date, much work has been accomplished.
G. Precarious Work and the Law
In the Chapters that follow, the LCO examines the Employment Standards Act and the Occupational Health and Safety Act, the two legislative schemes which play a central role in addressing the problem of precarious employment in Ontario.215 This section provides context for the discussion by briefly identifying some of the other laws, regulations and policies which may affect precarious employment in Ontario.216
1. The Charter and Human Rights Law
The constitutional rights enshrined in the Charter apply only in relation to the exercise of government power and to activities engaged in by organizations if there is a sufficient nexus with government.217 Therefore, the Charter is generally not engaged in relation to private sector employers or trade unions. However, Charter rights may affect private actors indirectly, such as where a law fails to provide certain employees with the same protection or benefits provided to others.218 For example, the exclusion of agricultural workers from the collective bargaining regime in Ontario’s Labour Relations Act (LRA) and the specific regime covering agricultural workers have been the subject of important Charter challenges.219
The Ontario Human Rights Code does extend to private sector employers and trade unions. It prohibits employment discrimination on the basis of a number of personal characteristics: “race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability”.220 As discussed above, workers who are socially marginalized as a result of one or more of these characteristics are more likely to be engaged in precarious work. The Code does not define “employment” but, according to the Human Rights Commission, this term would include most forms of precarious work including contract work and temporary agency work.221 The Code does recognize that some jobs have bona fide occupational requirements and employers may make distinctions on this basis but these qualifications will only be considered reasonable and bona fide where the needs of the employee cannot be accommodated without undue hardship to persons responsible for the accommodation.222 The Code also recognizes the right to enforce one’s rights under the Code (i.e. the right to be free from discrimination) without fear of reprisal.223 This is analogous to the Occupational Health and Safety Act and the Employment Standards Act, which similarly prohibit reprisals for enforcing one’s rights under those Acts.224
2. International Law
Internationally, there are several conventions that address vulnerable workers and precarious employment. A number of these have been ratified by Canada and, accordingly, are binding on Ontario. These reflect international standards on the treatment of workers and they have proved to be important tools in interpreting domestic law including the Charter and the Human Rights Code.225
International law has been particularly influential in recent jurisprudence interpreting freedom of association under subsection 2(d) of the Charter. In Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, the majority of the Supreme Court of Canada looked to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR) and the International Labour Organization’s (ILO) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organise (Convention No. 87) in holding that the right to bargain collectively is protected as part of freedom of association in subsection 2(d).226 McLachlin C.J. and LeBel J. observed that:
…Canada’s current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter.227
More recently, the Supreme Court reaffirmed its commitment to international law as an interpretive tool in Ontario (Attorney General) v. Fraser.228
Canada acceded to the ICESCR in 1976. This Convention recognizes a right to work and a corresponding state obligation to create programmes and policies that will “achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”229 It further recognizes rights to “just and favourable conditions of work,” including fair wages, equal pay for equal work, “a decent living”, safe and healthy working conditions and rights to rest periods, limited work hours and holiday pay.230 Trade unionization and the right to strike are also provided for in the ICESCR.231 These principles are binding on both the federal and provincial governments, although there are limited means for enforcing them.232 In particular, the “decent living” principle has gained traction in the literature and was relied on by Arthurs in his Fairness at Work report. It has similarly informed the LCO’s own inquiry into precarious work by importing into our analysis of Ontario legislation a concern for basic fairness and health and safety in the workplace, as well as the recognition of the importance for workers of engaging fully in work, family and community life.233
The ILO has also enacted a number of fundamental conventions addressing the rights of workers, including Convention No. 87. This Convention gives workers and employers the right “without distinction whatsoever…to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”234 It further requires that nations “take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”235 In Health Services, the Supreme Court of Canada noted that Canada’s ratification of Convention No. 87 indicated “not only international consensus, but also principles that Canada has committed itself to uphold.”236 The Court relied on Convention No. 87 in interpreting freedom of association in the Charter to include the right of union members to bargain collectively.
There are, however, several ILO Conventions that Canada has not ratified, including another freedom of association convention, Convention (No. 98) Concerning the Application of the Principles of the Right to Organise and Bargain Collectively.237 Nor has Canada ratified several ILO and UN conventions protecting the rights of migrant workers.238 There is debate over the extent to which these conventions are binding on Canada simply by virtue of its membership in the ILO. Whether binding or not, the Supreme Court has relied on un-ratified conventions as providing “a normative foundation” for interpreting domestic law.239
3. Domestic Law and Policy Initiatives
A legislative initiative with potential to impact many vulnerable workers is Ontario’s Poverty Reduction Strategy, launched in 2008.240 The preamble to the Poverty Reduction Act, 2009 recognizes that the “reduction of poverty supports the social, economic and cultural development of Ontario”.241 It also explains that
…The Government’s poverty reduction strategy is guided by the vision of a province where every person has the opportunity to achieve his or her full potential, and contribute to and participate in a prosperous and healthy Ontario.242
The principles of the Act recognise that poverty is connected to the labour market, stating that there is
…untapped potential in Ontario’s population that needs to be drawn upon by building and establishing supports for, and eliminating barriers to, full participation by all people in Ontario’s economy and society and, in particular, persons who face discrimination on the grounds of their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.243
The Strategy also recognises the heightened risk of poverty among groups such as immigrants, women, single mothers, people with disabilities, Aboriginal peoples and racialized groups.244
The Poverty Reduction Strategy includes initiatives regarding education, after school programs, the child tax benefit, the social assistance review, legislation to protect live-in caregivers and workers at temporary agencies and enhanced employment standards enforcement.245 These initiatives illustrate the government’s awareness and concern about tackling this issue. For example, the Social Assistance Review’s mandate was to determine how to improve Ontario’s social assistance system, in particular by improving job opportunities for those who rely on social assistance and are able to undertake paid employment. Ontario Social Assistance Review’s Final Report, Brighter Prospects: Transforming Social Assistance in Ontario, includes 108 recommendations.246 In these recommendations, there is an emphasis on a multidisciplinary approach between the Ontario government, municipalities and members of First Nations to integrate ODSP and Ontario Works into a single program, simplify the benefits structure, appoint a Provincial Commissioner for Social Assistance, address income inequality and encourage social assistance recipients to exit the system.247
Other Ontario government initiatives, such as increases to the minimum wage and its commitment to implementing the Dean Report on Occupational Health and Safety, are also significant developments responding to the needs of vulnerable workers. Ontario has also emphasized proactive enforcement of employment standards for certain groups of vulnerable workers. For example, when new standards for temporary help agencies were legislated in 2009, the government established a dedicated team to conduct targeted inspections to ensure compliance. In the summer of 2012, the Ministry of Labour engaged in compliance checks targeting the temporary agency sector that focussed proactive enforcement activities on agencies with vulnerable workers, prior history of violations, high numbers of complaints and represented a significant part of Ontario’s workforce.248
The Ontario government is also working to attract investment and create jobs in Ontario particularly in the face of the significant decline in Ontario’s core manufacturing sector.
The federal government has signalled its concern for workers in less secure forms of employment with initiatives aimed at developing ways for the self-employed to opt into special employment insurance benefits and for private sector employees to participate in self-funded group registered retirement plans. The federal government has also recently strengthened regulations relating to temporary foreign workers that will provide them with additional protections.249
Government responses to the rise of precarious employment must weigh the need to protect workers and the need to attract businesses providing employment and longer term economic benefits for all. This is a delicate balancing act, particularly in the face of the global economic situation at the time of the writing of this Report. However, this is precisely the time when the need for an effective response is greatest. In the following Chapters, the LCO assesses Ontario’s key legislative and policy responses to the problem of precarious employment and makes suggestions for ways to make improvements while taking into account implications for employers and resource implications for the Ontario government.
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