A. Constitutional Jurisdiction
In the Canadian system of complex federalism, the regulation of employment mostly falls under provincial jurisdiction over “property and civil rights”. Nevertheless, there are outstanding jurisdictional questions and challenges for employment regulation and policy. For example, any consideration of Ontario’s capacity to address issues of precarious employment must consider the impact of federal policies and programs, such as those on temporary migrant workers, on the authority of the Ontario government to act. The satisfactory resolution of these jurisdictional conflicts over policy matters lies at the heart of addressing the problems of precarious employment.
It is therefore crucial that the federal and provincial levels work together in addressing the situation for workers who enter Canada under the various programs. As with other provinces, Ontario has entered into arrangements with Canada with respect to temporary foreign workers. Ontario 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 covering temporary foreign workers provides that “Ontario may recommend TFWs whose presence in Ontario will promote economic development priorities in Ontario”, including business or industrial investments and competitiveness and scientific and the commercialization of research, in other words highly skilled and/or financially well-off immigrants. In addition, Canada, Ontario and Toronto have entered into a Memorandum of Understanding with the goal of “improving outcomes for immigrants through several areas of interest to all three governments, including citizenship and civic engagement, and facilitating access to employment, services, and educational and training opportunities”. The MOU notes that in the previous five years, “up to 50% of all immigrants to Canada have arrived in the Toronto area alone each year”, a proportion that may be decreasing as more immigrants settle elsewhere in Canada.
Although federal immigration policies may be highly influential in creating the conditions or extent of “precarious work” and increasing the numbers of vulnerable workers, it should be noted that the LCO’s mandate is in relation to provincial law and policy. It can, however, consider the extent to which federal law and policy affect the province’s capacity to act and the ways in which the federal and provincial jurisdictions may work together to address the situation of vulnerable workers.
It should also be noted that the Canadian Charter of Rights and Freedoms may have relevance, not only in regard to exclusions from collective bargaining, but also to differential treatment by or effect of minimal employment standards, for example, where the workers involved are disproportionately women or of particular ethnic, national or racialized groups, or some combination thereof.
B. International Law
This Background Paper will not consider the application of international law, but an analysis of international law will form part of the interim report with recommendations to be prepared following the consultations and further research in this project. 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.
C. Domestic Regimes Governing Employment and Labour Relations
1. Historical Development
In North America, legal practitioners, scholars and others typically distinguish between “employment law” and “labour law”, with employment law referring to relations between employers and individual employees and labour law referring to the relations between employers and trade unions. Specifically, labour law addresses the circumstances leading to certification of a union as sole representative of a defined set of employees and the terms and conditions of employment under a collective agreement between the employer and the union. Thus the employment law-labour law distinction is often thought to produce distinct sets of legal rules of employment for non-unionized and unionized work settings, respectively. However, a more accurate understanding is that employment law statutes apply to both non-unionized and unionized employees, although in some cases, such as for minimum standards, they may have greater applicability to non-unionized employees than to those in unionized work settings. Taken together, these legal regimes of employment comprise a complex area with many applicable and interdependent statutes and an intricate regulatory framework.
A focus on precarious employment requires analysis that crosses the orthodox non-unionized/unionized workplace distinction. It also requires analytical engagement at various levels including those of the job, person, household and community. It is important not to regard the discussion of the legal regulation of the labour market as one divorced from the real or material circumstances of people. Relations of employment are of central importance to individual identity, the functioning of households and social and community life.
The common law contract of employment, the cornerstone of the standard employment norm, was codified in Ontario in the Master and Servant Act of 1847. In regulating the exchange of wages for labour power, the employment contract is premised on a consensual or voluntary agreement between formally equal and freely bargaining parties. It establishes mutual commitments and obligations enforceable through common law courts. In contrast, the most pressing criticism of the contract of employment, well established within labour market policy, is that an inequality of bargaining power exists between the contracting parties. By virtue of the dominant position held by employers, and the related asymmetrical flow of information within the employment relationship, most employees are at a disadvantage in the contractual bargaining process. This bargaining power inequality is understood to exist as a general proposition covering most employment relationships, but is most evident where the terms of a contract are unreasonably one-sided or unconscionable.
The inadequacies of the common law employment contract led to the enactment of statutory protections to guard against employer abuses. For example, in an early statutory intervention, Ontario’s mid-nineteenth century master and servant legislation included provisions for wage recovery claims against employers. These claims tended to lead to awards of damages with no guarantee of payment in contrast with more severe penalties of fines and imprisonment for employees found in breach of contract.
The province’s first explicit minimum standards employment statute emerged nearly four decades after the initial development of standards. The Ontario Factories Act, enacted in 1884, established minimum age and maximum hours of work for the employment of children and women in factories. Other standards followed and throughout the twentieth century, particularly during the decades following the first comprehensive employment standards legislation, additional statutory protections were added to address several important aspects of working conditions, such as workplace health and safety, discrimination in employment, and a particular form of discrimination, equal pay for work of equal value. For example, the precursor to the Workplace Safety and Insurance Act, introduced in 1914, structured compensation and rehabilitation for work-related injuries and illnesses.
A further series of statutory interventions in the area of labour relations occurred to offset the countervailing power of employers. Over time, and through often bitter contestation and negotiation, a specific legal regime termed “industrial pluralism” emerged. This regime incorporated freedom of association in the form of collective bargaining into a formally acceptable dispute resolution mechanism in the workplace. The trade union was now embedded as a legitimate institution within labour relations and, in exchange, stringent obligations were imposed on union officials to ensure the responsible actions of the rank and file. Within this context an associated model of collective worker organization and representation, industrial unionism, also emerged. The model of industrial unionism was grounded in collective organization of workers in an industry, as opposed to skill or occupational, basis.
The legal regime of industrial pluralism is said to have marked an historic compromise within labour relations. That compromise has translated into key features reflected in the current Ontario Labour Relations Act, 1995 (LRA, 1995): the requirement that an employer recognize and bargain in good faith with a union certified under the Act on the basis of majority support; the requirement that an employer deduct union dues from all employees within a bargaining unit and remit those dues to the union; limitations on strikes and lockouts; and the implementation of an internal grievance process.
Variations on this model have since occurred in, for instance, the construction sector and the public service. Generally speaking, however, these have not strayed far from this basic legal structure. As more or less the only model of unionization on offer, industrial unionism proved an all or nothing proposition. The legislation thus channels worker collective organization and representation into a certain, predictable form. What is essential to emphasize is that, just as the standard employment relationship did not apply universally to all workers, most workers have not benefitted from collective bargaining rights. Even at its peak, more than fifty percent of Canada’s labouring population fell outside the regime of industrial pluralism.
To recap, the post-war period saw increased access to minimum employment standards, compensation for certain industrial accidents and occupational diseases and the development of a formal collective bargaining regime. Of considerable significance in considering remedies to the situation of vulnerable workers, is the on-going evolution of protective and regulatory labour and employment standards to reflect changing circumstances and societal expectations.
2. Contemporary Legislative Regimes
The current regulation of employment is composed of three elements: the common law contract of employment, statutory minimum standards and statutorily-enacted collective bargaining. An overview of the existing structure of employment law in the province, including the recent statutory amendments, is necessary to appreciate the extent to which the current legal framework fails to address precarious employment and the extent to which it may be able to respond to future changes in the labour market or workforce.
a) Common Law Contract of Employment
Under the common law, there is a reliance on civil litigation to enforce the contract of employment. Employees who wield considerable control within the workplace, for example, due