The nature of employment is evolving and the standard employment relationship based on full-time, continuous employment, where the worker has access to good wages and benefits, is no longer the predominant form of employment, to the extent it ever was. Today more work is precarious, with less job security, few if any benefits and minimal control over working conditions. Precarious work may be contract, part-time, self-employment or temporary work. While this change has affected all groups of workers, women and recent immigrants are more likely to be “vulnerable workers” engaged in precarious work. In particular, certain workers under foreign worker programs undertake precarious work.
The LCO’s Vulnerable Workers/Precarious Work Project assesses the protections available to these workers in Ontario and coverage of this type of work under provincial legislation designed to protect workers, such as the Employment Standards Act and the Occupational Health and Safety Act.
The draft recommendations made in this Interim Report may change as a result of feedback to the Interim Report and any final recommendations are subject to approval by the LCO’s Board of Governors.
II. IDENTIFYING VULNERABLE WORKERS AND PRECARIOUS WORK
This Chapter discusses the rise of precarious work, the economic backdrop, as well as forms of precarious work and the disproportionate impact on particular groups. Factors such as increased reliance by employers on self-employed contract workers, the decline of the manufacturing industry, the information revolution, dramatic technological advances and the demand for higher educational levels have all played a part in the increased precariousness of work.
Precarious work is characterized by job instability, lack of benefits, low wages and degree of control over the process. It may also involve greater potential for injury. This Chapter provides more detailed information about the kinds of precarious work being considered in this Project, including the forms this work takes (such as contract work) and the types of work that can often be described as precarious (such as agricultural activity).
It is important to appreciate that “vulnerability” refers not to the workers themselves, but to the situation facing them because they are engaged in precarious work and because of other disadvantages arising from gender, immigration, racial status and other characteristics. The increased movement of “guest workers” from other countries, a global phenomenon, is a factor in increasing the part vulnerable workers play in the economy. The Chapter explains why women and single parents, racialized persons, newcomers and established immigrants, temporary migrant workers, persons with disabilities, youth and non-status workers may all be more likely than others to hold precarious positions.
This Chapter also emphasizes the impact of precarious work on areas of vulnerable workers’ lives other than employment itself. This work leads to a greater risk of injury and illness, stress and lack of access to medical care. It may affect family relationships and degree of community engagement. It may be difficult to find the time and energy to increase educational attainment or take training. Older persons who have undertaken this type of work all their lives will not have pensions and will not have been able to save. More generally, these workers and their families are likely to experience the intergenerational costs of poverty. Furthermore, it is not only vulnerable workers themselves and their families who are affected, but society at large.
Chapter II provides an overview of the law with respect to precarious work and the impact of the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, domestic statutes and international law and policy initiatives in this area.
III. EMPLOYMENT STANDARDS POLICY AND LEGISLATIVE REFORM: THE EMPLOYMENT STANDARDS ACT AND RELATED LEGISLATION
This Chapter discusses possible reforms to the Employment Standards Act (ESA) and related legislation, including policy considerations, establishing a broader floor of basic minimum rights and expanding knowledge of employee rights and employer obligations. It also addresses issues related to enforcement.
After reviewing reforms to the ESA, we recommend that the Ontario government in consultation with affected persons update, review and streamline the exemptions within the ESA and related regulations, including occupational specific exemptions and that the review develop and use principles with a view to ensuring that justifications for exemptions be balanced against the need to reduce precarious work and provide basic minimum standards to a broader sector of the working population. (Recommendation 1)
We further recommend that the ESA contain a broad policy statement relating to the commitment to basic minimum employment rights, supporting compliance and fostering public, employer and employee awareness and education. (Recommendation 2)
Other recommendations include a review of minimum wage issues, creation of a process for making future adjustments to the minimum wage, equal pay for workers in equivalent positions, and an exploration of options for providing benefits for persons engaged in non-standard work. (Recommendations 3, 4 and 5) We also recommended a review of personal emergency leave provisions in the ESA with the objective of extending the benefits to workplaces with fewer than 50 employees. (Recommendation 6)
We stress the importance of ensuring that both workers and employers are aware of their rights and obligations and make a recommendation towards that goal. (Recommendation 7) This includes a recommendation that employers provide the ESA information poster in document format to all new employees (in the language of the employees, if possible) and provide all employees of written notice of their employment status and terms of their employment contract and education for employers. (Recommendations 8, 9 and 18)
This Chapter also considers issues arising from enforcement of the ESA, including concerns with the existing primarily complaint-based and voluntary compliance model; there is also some proactive enforcement. We recommend continuation of various methods of enforcement, with an increased emphasis on proactive enforcement, particularly in high risk industries. (Recommendations 10 and 16) One particular issue is the extent to which employees must approach the employer to resolve concerns prior to making a claim under the ESA and the application of exemptions to the requirement; we recommend a review of this policy and process to determine whether there are negative effects and, if so, whether the policy should be reversed and greater communication about available exemptions. (Recommendations 11 and 12) We also recommend ways of providing assistance to workers to assist them in the claims process. (Recommendation 13) We encourage the involvement of companies that are leaders in compliance in addressing non-compliance issues and the creation of an Innovative Solutions for Precarious Work Advisory Council that would include all relevant stakeholders to develop initiatives to improve the enforcement process. (Recommendation 21 and 28)
Other recommendations in relation to enforcement include expanding the time limits and increasing the monetary cap, providing for third party complaints in a way that ensures unfounded complaints do not trigger inspections and providing that employers in violation of the ESA be responsible for covering the costs of investigations and inspections. (Recommendations 14, 15 and 17)
We discuss work councils and recommend that the Ministry of Labour create a joint labour-management employment standards work council as a pilot in non-unionized workplaces. (Recommendation 20)
The Chapter also discusses the specific concerns facing many temporary foreign workers, in particular fear of repatriation. We recommend expediting hearing complaints of reprisals and that they be heard prior to repatriation, as well as other changes that might help reduce the fear of repatriation or help workers in making claims. (Recommendations 22, 23, 24 and 25)
Agricultural workers are exempted from the Ontario Labour Relations Act and their right to organize and make representations to their employer is covered instead by the Agricultural Employees Protection Act, 2002 which has been held by the Supreme Court of Canada to be constitutional. In doing so, the Supreme Court read bargaining in good faith into the statute and we recommend that the Ontario government explicitly amend the AEPA by including the elements of bargaining in good faith identified by the Supreme Court of Canada. (Recommendation 26) We also suggest that it would be helpful if academics and relevant stakeholders undertake a review of alternative means to traditional unionization for vulnerable workers. (Recommendation 27)
Ontario has enacted the Employment Protection for Foreign Nationals Act but so far has applied it only to live-in caregivers, even though it contemplates coverage of other temporary foreign workers. We recommend it be extended to all temporary foreign workers. (Recommendation 29) We also recommend that the Ontario government negotiate an information-sharing agreement with Human Resources and Skills Development Canada and Citizenship and Immigration Canada with the goal of increasing protections for temporary foreign workers. (Recommendation 30)
About 15 per cent of Ontario’s workforce is self-employed. This group includes both those who operate businesses and may employ others and those called “own-account” self-employed workers” who may resemble employees more than self-employed entrepreneurs, for example. Women and members of visible minorities are more likely to be in the own-account category than in other forms of self-employment and part-time employment rates for own-account self-employed workers are high, particularly for women. Self-employed workers are not covered by the ESA and therefore the challenge is to determine whether a worker is self-employed or an employee. We recommend that the Ministry of Labour undertake efforts (which we specify) to reduce misclassification and the Ontario government consider extending some ESA protections to highly vulnerable low-wage self-employed persons or identifying other forms of protection or requiring employers or contractors to provide information about the status of their employment to workers. (Recommendations 31, 32 and 33)
V. HEALTH AND SAFETY
In Chapter V, we discuss the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA) and their application to vulnerable workers. The OHSA requires either the creation of a joint health and safety committee or the designation of an individual to address workplace safety concerns. We believe that it would be helpful if enforcement of the OHSA includes proactive inspection to ensure that the joint committees or individuals have been put in place. (Recommendation 34)
We note that a number of the recommendations in the Dean Report resulting from the Advisory Panel on Occupational Health and Safety have been implemented or that implementation is underway. We recommend that the Ontario government implement a number of Dean Report recommendations that do not appear to have been made subject to implementation (Recommendation 39). While we agree with the intent of the Dean Report Recommendation to increase proactive inspection and enforcement campaigns at workplaces and sectors where vulnerable workers are concentrated, we refine the recommendation to provide that sectors where vulnerable workers are concentrated be identified as agriculture, hospitality and cleaning and workplaces with temporary staffing agency workers and that temporary for