A. Constitutional Law
Most employment and labour law is within the authority of the province. There are, however, some federal laws and policies that affect the status of workers and which have an impact on the province’s capacity to affect these vulnerable workers through provincial legislation and policy.
The LCO’s mandate applies only to provincial law. Immigration is an area of concurrent jurisdiction under section 95 of the Constitution Act, 1867; however, the federal government is generally responsible for immigration into Canada, as least as far as it affects Ontario, although increasingly in partnership with the province. As indicated, many vulnerable workers are in Canada, including Ontario, because of federal worker programs. These programs have some rules that affect how the province may address vulnerable workers’ concerns. This project will look at the relationship between federal laws and policies and provincial laws and policies in order to understand the province’s capacity to act.
The Canadian Charter of Rights and Freedoms may also have relevance for addressing the situation of vulnerable workers: between freedom of association and exclusions from collective bargaining and equality and the impact of employment standards on the experience of (white) women and racialized men and women in precarious work.
B. Provincial Law
The most significant Ontario statutes for this project are the Employment Standards Act, 2000, the Employment Standards Amendment Act (Temporary Help Agencies), the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, 1997, the Pay Equity Act, the Labour Relations Act, 1995 and the Ontario Human Rights Code. We are also looking at enforcement of these statutes.
· Employment Standards Act, 2000, S.O. 2000, c.41 (ESA, 2000): it establishes minimum standards applying to most employees in relation to most working conditions.
· Employment Standards Amendment Act (Temporary Help Agencies), (Bill 139): among other provisions extending protections to this group of workers, this statute, enacted in May 2009 and now part of the ESA, 2000, clarifies that the temp agency is the employer of the worker, regardless of whether the worker is temporarily working for a temp agency client to which he or she has been assigned or is merely on the agency’s books. A summary of the provisions of this Act can be found at http://www.labour.gov.on.ca/english/es/pubs/guide/tempagencies.php.
· Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA): it establishes employee involvement in health and safety in most workplaces.
· Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A (WSIA, 1997): it establishes a no-fault insurance scheme paid for by employers for accidents suffered by employees in the workplace.
· Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (LRA, 1995): it establishes the scheme of collective bargaining for most employees, along with related provisions designed to maintain the integrity of the scheme.
· Pay Equity Act, R.S.O. 1990, c. P.7 (PEA): it requires public sector and private employers to pay equal pay for work of equal value as a remedy for sex discrimination in pay.
· Human Rights Code, R.S.O. 1990 , c. H.19 (HRC): it prohibits discrimination in employment on the basis of 15 grounds, including race, place of origin, ethnic origin, citizenship, disability and sex and requires accommodation of employees with a disability to the point of undue hardship. Information about accommodation can be found on the Ontario Human Rights Commission’s website at http://www.ohrc.on.ca/en.
Other provincial and federal laws affect vulnerable workers, sometimes by omission. For example, section 5(b) of the Ontario Residential Tenancies Act, 2006, S.O. 2006, c.17, exempts “living accommodation whose occupancy is conditional upon the occupant continuing to be employed on a farm, whether or not the accommodation is located on that farm”, an exception which would mean that migrant workers have no recourse under the Act if their accommodation is below expected standards. Other forms of support for workers are social assistance benefits available through the provincial welfare system and employment insurance benefits available federally.
2. Enforcement Mechanisms
Enforcement processes are important to whether an Act can be effective. Under many statutes, the primary form of enforcement is an individual complaint system, although sometimes this is reinforced by pro-active monitoring by government agencies. The ESA, 2000, the PEA, the OHSA and the HRC all have complaint-based systems. In addition, there are pro-active obligations under the PEA for employers and bargaining agents to develop and implement pay equity plans and under the OHSA for employers, unions and bargaining agents to provide a safe workplace. Workers can refuse to work under the OHSA if they believe the work is unsafe.
In some cases, the government monitors the implementation of legislation. For example, under the ESA, 2000, the Ministry of Labour targets employers in high-risk sectors and repeat violators. Between 2003 and 2007, individual complaints averaged over 15,000 a year and rose to 21,304 in 2009. Investigations by the Ministry of Labour of targeted employers ranged from 151 in 2003 to 2,713 in 2006. In the 15,000 investigations of individual complaints in 2006, the Ministry of Labour found violations in 11,358 complaints, resulting in four prosecutions of companies and two directors.
3. Protections for Workers Who Complain
Workers may not complain because they are afraid of reprisals. Although statutes may contain anti-reprisal provisions, they may not be effective.
Migrant workers face difficulties in making a complaint, stemming from lack of language skills or knowledge of the system. Furthermore, employers are able to repatriate migrant workers – terminate their employment and send them back to their originating country – without reason and this may serve to discourage workers from filing complaints.
Domestic workers may find it difficult to complain about their conditions because of their isolation, immigration status, language and sex. Homeworkers, who work out of their own homes for a business or agency, are also protected under the ESA, 2000, but they may find making a complaint difficulty because of their isolation.
The new provisions affecting temp agency workers under the ESA, 2000 mean that both the temp agency and the agency’s client are both subject to anti-reprisal provisions.
4. Collective Bargaining
Collective bargaining and the grievance procedure are intended to give employees a voice in the workplace. Employers may also file grievances against the union and to a limited extent individual employees may file a complaint under the LRA, 1995 that the union has acted in an arbitrary or discriminatory way.
The public sector is highly organized; however, the overall rate of unionization is lower than 30% of employees in Ontario. Rates for men, particularly younger men, have decreased (almost 20% between 1981 and 2004), while rates for women between 45 and 64 have increased 8%, primarily because of an increase of women in the public service. The work we have called “precarious work” has low rates of unionization and workers in some forms of precarious work, such as domestic work, do not have the right to form a union or bargain collectively. Agricultural workers are excluded from the LRA, 1995 and are subject to the Agricultural Employees Protection Act, 2002, S.O. 2000, c. 16. This statute has been challenged under the Canadian Charter of Rights and Freedoms and the issue is now before the Supreme Court of Canada.
C. Federal-Provincial Agreements
As have some other provinces, Ontario has entered into agreements with Canada with respect to temporary foreign workers. It signed the first Canada-provincial immigration agreement in November 2005 with the goal of a transfer of federal monies to the province to assist with the integration of newcomers. A subsequent agreement specifically covered temporary foreign workers “whose presence will promote economic development priorities in Ontario”. Ontario participates in the Provincial Nominee Program which allows the province to identify immigrants for a fast-track to permanent resident status. The program is employer driven and focused on skilled or highly educated individuals.
Ontario, Toronto and the federal government have also entered into a Memorandum of Understanding relating to immigrants that has the purpose of “improving outcomes for immigrants through several areas of interest to all governments, including citizenship and civic engagement, and facilitating access to employment, services, and educational and training opportunities”.
D. International Law
While Canada is not a signatory to all international conventions that address the situation of workers, these conventions do provide a standard against which the treatment of vulnerable workers may be considered. One example is the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, to which Canada is not a signatory. The International Labour Organization has enacted eight fundamental conventions that address the rights of workers, of which Canada has ratified five. The 1998 ILO Declaration on Fundamental Principles and Rights at Work provides that all ILO members have an obligation “to respect, to promote and to realize…the principles concerning the fundamental rights which are the subject of those Conventions”, even if they have not ratified them. Among the categories of rights are freedom of association and the effective recognition of the right to collective bargaining and the elimination of discrimination in respect of employment and occupation.