EMPLOYMENT STANDARDS POLICY AND LEGISLATIVE REFORM
1. The Ontario government:
a) in consultation with labour and owner/management stakeholders, update, review and streamline the exemptions within the ESA and related regulations including a review of existing occupational specific exemptions, with the objective of ensuring any exemptions are justified on current public policy and industry considerations; and
b) ensure that the review develop and use principles that aim to promote a broadly available minimum floor of basic workers’ rights, including that justifications for exemptions be balanced against the need to reduce precarious work and provide basic minimum standards to a broader sector of the working population.
2. The Ontario government codify within the ESA a broad policy statement highlighting its commitment to protecting basic minimum employment rights, supporting compliance and fostering public, employer and employee awareness and education.
3. The Ontario government convene the minimum wage Committee, or similar body, to review minimum wage issues balancing the needs of business and employees.
4. The Ontario government, taking into account the complexities of the issue, consider what amendments could be made to the ESA to ensure part-time workers are paid at proportionately the same rate as full-time workers in equivalent positions where there is no justification for the difference based on skill, experience or job description.
5. The Ontario government, utilize the Innovative Solutions for Precarious Work Advisory Council (Recommendation 26) in consultation with labour, management and insurance representatives, to explore options for the provision of benefits for non-standard and other workers without benefits coverage, with consideration given to the concepts of a benefits bank and mandatory short term contract premium for temporary workers, among other options.
6. The Ontario government review personal emergency leave provisions in the ESA to ensure each provision is justified on current public policy grounds and to determine ways to extend the benefit to workers in workplaces with fewer than 50 employees (including part-time, casual and temporary employees of these small enterprises.)
7. The Ministry of Labour:
a) launch a public awareness campaign on Employment Standards Act rights and responsibilities;
b) to support workers’ and employers’ needs for additional information about the ESA, continue to offer and to expand capacity for providing outreach through ESA informational/educational sessions including but not limited to those in high risk sectors and groups; and
c) develop partnerships with employer, employee and community organizations to enhance worker and employer knowledge of ESA rights and responsibilities.
8. The Ontario government amend the ESA to require employers to provide the ESA poster in handout format to all new employees in English and, to the extent possible, in the language of the employee.
9. a) The Ontario government amend the ESA to require employers to provide all employees with written notice of their employment status and terms of their employment contract; and
b) the Ministry of Labour develop standard forms to support employers in this task.
10. The Ministry of Labour place a greater emphasis on ESA proactive enforcement processes while continuing to use a range of strategies including voluntary compliance, proactive inspections and responses to individual complaints.
11. The Ministry of Labour:
a) engage in data collection and evaluation to determine the impact of the policy requiring employees to approach employers prior to initiating an ESA claim; and
b) consider reversal of policy if evaluation reveals negative impacts such as declines in claims attributable to the policy changes.
12. The Ministry of Labour improve communication about the vulnerable worker exemptions to approaching employers at the outset of an ESA claim.
13. The Ontario government facilitate and expedite the ESA claims-making process, by providing a mechanism for workers and employers to obtain person-to-person assistance in the claims process through additional support services such as Legal Aid Ontario clinics, Office of the Employment Standards Advisor and/or other types of worker and employer support services.
14. The Ontario government:
a) amend the ESA to provide for a discretionary time extension for claims for wages in special circumstances; and
b) raise the ESA monetary cap to $25,000.
15. The Ministry of Labour:
a) develop an accessible and well communicated mechanism – such as a hotline – for ESOs to receive third-party and/or anonymous complaints which could trigger proactive inspections; and
b) develop corresponding policy criteria to ensure that unfounded complaints do not trigger unwarranted inspections.
16. The Ministry of Labour:
a) substantially increase proactive inspections, particularly in higher risk industries based on established benchmarks;
b) develop strategic, proactive enforcement initiatives that target high-risk for violation workplaces, including those comprised of concentrations of temporary foreign workers, temporary agency workers, recent immigrants, racialized workers, youth, the disabled and Aboriginal people, as well as areas known for high-rates of substandard practices;
c) conduct expanded investigations when violations are detected; and
d) ensure enforcement activities include follow-up on previous violations.
17. The Ontario government amend the ESA to permit orders requiring employers found in violation of the ESA to cover the costs of investigations and inspections, in appropriate cases.
18. The Ministry of Labour strengthen ESO policy direction supported by education to direct ESOs to select deterrent sanctions for appropriate cases, most particularly repeat violators and those who wilfully fail to comply with payment orders.
19. The Ministry of Labour explore, through stakeholder consultations, the concept of utilizing the principles of work councils in non-unionized workplaces with high concentrations of vulnerable workers.
20. The Ministry of Labour:
a) develop processes of reaching out to and focusing on the top echelon of industry to address ESA non-compliance where workers are affiliated with the company, particularly those subcontracted to small enterprises and temporary agency workers; and
b) identify and provide recognition and incentives for companies that are leaders in extending employment standards compliance and higher than minimum standards to external workers particularly those subcontracted to small enterprises and temporary agency workers.
21. The Ontario government:
a) amend the ESA to include a process for ensuring reprisal complaints are expedited and, in the case of migrant workers, that such complaints are heard before repatriation.
b) work together with F.A.R.M.S. and other organizations serving workers in low skilled temporary migrant worker programs to provide:
i) information to temporary migrant workers about the process and likelihood of premature repatriation,
ii) education to employees regarding how to approach employers and liaison agents with issues and
iii) education for employers on ensuring employees are comfortable raising issues and employers are receptive to employees’ concerns.
22. In coordination with the federal government, the Ontario government:
a) institute a process for independent decision-making to review decisions to repatriate temporary foreign workers prior to the repatriation to ensure dismissal is not a reprisal for accessing workers’ rights under federal or provincial legislation or contract;
b) for reprisals, the independent-decision making body have the authority to order interim reinstatement for appropriate circumstances pending decisions and appeals; and
c) where there is a finding of reprisal, provision be made for transfer to another employer or, where appropriate, reinstatement.
23. The Ontario government support the establishment of greater legal and other supports for temporary migrant workers asserting rights and making claims through expanded legal services or other such mechanisms.
24. Unions and community groups continue to develop and expand innovative services to support migrant workers to assert their legal rights.
25. The Ontario government amend the AEPA by explicitly including the elements of bargaining in good faith protected by section 2(d) of the Charter as identified by the Supreme Court of Canada in Health Services and affirmed in Fraser.
26. The Ministry of Labour convene an Innovative Solutions for Precarious Work Advisory Council of representatives of relevant ministries, experts, and labour and employer organizations to obtain advice and to develop initiatives for improved and expedited ESA compliance and enforcement with a view to recommending best practices for responding to the existing and emerging needs of vulnerable employees/precarious work in the changing workplace.
27. The Ontario government extend the Employment Protection for Foreign Nationals Act to all temporary migrant workers in Ontario.
28. a) The Ontario government negotiate an information-sharing agreement with Human Resources and Skills Development Canada and Citizenship and Immigration Canada to permit information to flow between Ontario and the federal government for the purpose of increasing protections for temporary foreign workers by:
i) strengthening federal-provincial oversight over temporary foreign worker contracts;
ii) increasing enforcement of temporary migrant workers’ rights under provincial legislation; and
iii) imposing consequences upon employers who violate provincial legislation or breach contractual agreements with temporary foreign workers.
b) The Ontario government initiate consultations with the federal government to bring about greater co-ordination of policies affecting worker protection for low skilled temporary foreign workers.
29. The Ministry of Labour act to reduce misclassification of employees as selfemployed by:
a) engaging in proactive compliance and enforcement processes directed at industries with known high incidences of misclassification;
b) increasing transparency in decision-making through policy guidance and training for employment standards officers on the definition of employee and the common law tests; and
c) launching a public education campaign to raise awareness of the issue of misclassification of employees under the Employment Standards Act.
30. The Ontario government consider extending some ESA protections to selfemployed persons in dependent working relationships with one client focussing on low wage earners, and/or identifying other options for responding to their need for employment standards protection.
31. a) The Ontario government amend the ESA to require employers and contractors to provide all workers, i