The Law Commission of Ontario’s Board of Governors approved this project to consider the application of protective employment statutes to vulnerable workers in July 2008. The project emphasizes the disproportionate impact of precarious employment on diverse communities, particularly racialized men and women and women of majority communities, considers the impact of precarious work on vulnerable workers beyond their employment and has the objective of developing recommendations to ameliorate the situation of vulnerable workers, taking into account the needs of employers and the benefits to Ontario society at large.
Over the past twenty years, government, courts, workers’ organizations, policy and research centres and academics have addressed the issues related to precarious work and vulnerable workers. The Canadian experience cannot be isolated from the phenomenon of global migration. Although many vulnerable workers are Canadian born, many others have entered Canada under federal migrant worker schemes. Canada ranks among “higher growth nations”, in which there has been an increase of more than two per cent of foreign-born migrants from 1990 to 2010. The shift from so-called “standard” work to precarious work has increased with the decline of manufacturing, rapid technological advances and changes in immigration policy. The increase in this work needs to be addressed, not only in the interests of vulnerable workers, but also in the context of future labour challenges.
The situation facing vulnerable workers is reflected in their employment, but in other parts of their lives, including their health, community participation, families and integration into Ontario.
II. WHAT WE MEAN BY “PRECARIOUS WORK” AND “VULNERABLE WORKERS”
Precarious work is characterized by lack of continuity, low wages, lack of benefits and possibly greater risk of injury and ill health. It is often compared to “standard” employment which is long-term with one employer in a single location with good benefits during and after the working period, increasingly subject not only to minimum statutory protections but also to greater protections through collective bargaining or individual negotiation. This norm assumed a white able-bodied heterosexual male, a primary breadwinner married to a supportive wife, who did not work for pay or was the secondary earner. The social safety net was designed to address gaps in standard employment. Precarious work has always existed alongside standard work; today, however, nearly 40% of paid work is said to exist outside the standard pattern. Appreciating who was included in the norm also helps an appreciation of who was omitted and who is more likely to be engaged in precarious work.
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. One may also think of these indicia as “life/social security” (benefits, health care access and other social factors), job security (tenure in a particular job); employment security (capacity to move within and between different sectors); income security (during and after employment); and voice-representation and process-based security.
The major types of precarious work are self-employment, part-time (steady and intermittent) and temporary. Self-employment refers to workers who are treated as independent contractors, but whose relationship to the “contractor” is more akin to an employment relationship, and who bear the costs of employment. Temporary employment occurs through temporary agencies and federal migration schemes or may take the form of seasonal work. Flexibility may be important both to employers and workers; however, a proportion of workers who work part-time, for example, would prefer to work full-time.
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 characteristics 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).
III. THE LEGISLATIVE AND POLICY FRAMEWORK
Although labour and employment law falls primarily, although not exclusively, within provincial jurisdiction, federal law and policy affect work that is “precarious” and workers who are “vulnerable”. Thus provincial capacity to address the situation of vulnerable workers must take federal law and policy (in areas such as migrant workers) into account.
A review of the development of labour and employment law in Canada and particularly in Ontario leads to consideration of domestic regimes, including the common law, minimum standards (employment standards, health and safety, compensation for illness and injury, pay equity and anti-discrimination legislation), enforcement of statutory protections and collective representation. Not only employment and labour statutes are relevant to the analysis. The Canadian Charter of Rights and Freedoms may have relevance for challenging the law on the basis that it disproportionately affects women and members of particular ethnic groups, for example.
IV. HOW THE LEGAL REGIMES AFFECT VULNERABLE WORKERS
In some cases vulnerable workers (or forms of precarious work) are not subject to protective labour and employment provisions. More often, the law does not distinguish explicitly, but has preconditions before the protection takes effect and these preconditions may serve to exclude vulnerable workers or certain kinds of precarious work. Vulnerable workers may find enforcement difficult because of the conditions of work or for other reasons and may be reluctant to use reprisal provisions if they are penalized for filing a complaint.
V. WHO IS MOST AFFECTED?
While Part II focused on the conceptual and concrete meaning of precarious work and vulnerable workers, this Part focuses on the workers themselves to identify the people most affected by this phenomenon.
VI. THE IMPACT OF PRECARIOUS WORK ON WORKERS’ LIVES
Precarious work affects the workers and society at large. Workers suffer ill health and have less access to extended health care. The cost of health care may be borne by society at large. Workers often do not have time or energy to spend time with family, if they have a family, form extensive personal friendships, to engage with their community or integrate into society at large. They enter old age without a private pension or savings. Society may lose the benefit of skills these workers could have provided.
VII. A REVIEW OF PROPOSED POLICY AND LEGAL RESPONSES
This section sets out proposals made by academics and others to address the challenges proposed by precarious work and designed to better the situation of vulnerable workers. Proposals have included the enhancement of existing protections, the extension of protective legislation to those not currently covered or benefitting from it, enhancements in the social assistance system and improvements to enforcement processes. The LCO has not yet adopted any of these proposals.
IX. NEXT STEPS AND HOW TO PARTICIPATE
Stakeholders from all constituencies are invited to comment on this Paper, including but not only responding to the questions, and to advise the LCO of their interest in participating in the consultation process. See page 49 for further information.
The companion Consultation Paper can be read separately from or together with this Background Paper. It includes specific questions on which the LCO welcomes responses from workers, worker advocates, employers, representatives of government and the general public.