The Board of Governors of the Law Commission of Ontario (“LCO”) approved this project on Vulnerable Workers and Precarious Work in July 2008. The project reviews the nature of precarious work, the identity of vulnerable workers, the existing protections for employees engaged in these forms of paid work, the limitations of the protective legislation, the challenges and difficulties of enforcing rights under existing legislation, the impact of precarious work on the daily lives of vulnerable workers and some of the potential responses.
The decline of manufacturing, rapid technological advances, changes in immigration policy and global migration of people and corporations have all affected the nature and extent of precarious work. There will be more change in the future and those contributing to this project are invited to help the LCO understand what these changes might be and the impact on vulnerable workers, including the opportunities these changes may provide for improving the conditions of vulnerable workers.
This Consultation Paper sets out the issues that the LCO is considering, along with questions on which the LCO would particularly like feedback, although submissions and comments on any aspect of this topic are welcome.
Precarious work refers to work that is short-term and low paid with few benefits; it might be dangerous; workers are also unlikely to have a voice in determining their working conditions. We are calling workers who perform precarious work “vulnerable workers” because of the conditions of work, the difficulty many have in enforcing their rights under employment-related statutes or because they may be excluded from bargaining collectively about their working conditions.
Precarious work takes the form of part-time, temporary or self-employed work. “Self-employed” in this project refers to workers who are treated as (in)dependant contractors, but whose working conditions more resemble an employment relationship. Workers may obtain temporary work through temporary help agencies or directly with an employer. Foreign workers programs are an important source of temporary workers. Depending on the program, the workers may be limited to staying in Canada for only six months or they may stay for two years. In most cases, they cannot seek permanent residency while in Canada (live-in caregivers are an exception). There are also programs addressed to highly skilled or well-educated workers or students in other countries who may be fast-tracked for permanent residence.
Racialized people, including recent (and increasingly long-term) immigrants, and white women make up a disproportionate number of vulnerable workers. For example, women are more likely to work part-time, live-in care-givers are primarily racialized women and migrant farm workers are predominantly racialized men. Non-status residents also often are forced into precarious work because they are not legally able to work.
The project considers legislation such as the Employment Standards Act, 2000, the Occupational Health and Safety Act, the Workplace Health and Safety Act, 1997 and other legislation to see the extent they are applicable to precarious work or vulnerable workers. Sometimes legislation that is applicable on its face has a different impact on vulnerable workers employed for short periods for the same employer because rights are conditional on a specific period of service, for example.
Two other aspects of legislation are important for this project. One is the method and extent of enforcement and the other is provisions addressing employer reprisals if workers attempt to enforce their rights. Complaint-based mechanisms may not be effective for workers who are isolated, do not speak English or are afraid the employer will repatriate them to their home country. In some cases, the Ministry of Labour is increasing targeted inspections of workplaces in certain sectors or otherwise engaging in pro-active forms of enforcement that do not rely on individual complaints.
The project notes that there have been changes in employment-related legislation that seek to address some of the problems facing workers performing precarious work. This is the case, for example, with recent changes to the Employment Standards Act, 2000 regarding workers assigned by temporary help agencies or legislation addressing some of the concerns of live-in-caregivers.
Collective bargaining has been an important tool for workers to have a voice in the workplace. Certain workers are excluded from the standard labour relations regime under the Labour Relations Act, 1995, including agricultural workers who are now subject to a separate statute that has been challenged under the equality provisions of the Canadian Charter of Rights and Freedoms and domestic workers.
Although the project focuses on provincial legislation and the LCO’s mandate relates to provincial law and policy, it is also necessary to consider federal law and policy. For example, federal foreign worker programs may affect the extent to which provincial legislation is effective for migrant workers.
The project also recognizes that precarious work can have a negative effect on workers’ daily lives and the lives of their families. They may be susceptible to ill health because of having to work multiple jobs or long hours; for the same reason, it may be hard to maintain a family life or participate in the community or obtain training that would enable them to find other more stable and better paid work. They may not take time off for illness for fear of losing their job. Without savings or a pension, they will enter old age facing poverty or a higher degree of poverty than they already experience.
The Consultation Paper identifies a number of suggested reforms to address the situation facing vulnerable works. These are not LCO recommendations. Rather, we would like your opinion about the value of these reforms and your suggestions for other reforms.
For those who would like to read more about these issues, the LCO has also released a Background Paper in this project. We will also be releasing a short handout in languages other than English and French that summarizes the issues and explains how to participate in the project.
The LCO seeks the views and experiences of workers, employers, service agency workers and government officials in relation to precarious work and vulnerable workers. There are many ways to contribute to this project. These are described, with contact information, in the last section of this Consultation Paper.
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