A. Constitutional Jurisdiction
In the Canadian system of complex federalism, the regulation of employment mostly falls under provincial jurisdiction over “property and civil rights”.[71] 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.[72] 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”.[73] 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[74] 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.[75] The International Labour Organization has enacted eight fundamental conventions that address the rights of workers,[76] of which Canada has ratified five.[77] 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.[78] 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.[79] 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.[80] 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.[81] 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.[82] 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,[83] but is most evident where the terms of a contract are unreasonably one-sided or unconscionable.[84]
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.[85]
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.[86] Other standards followed[87] 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.[88]
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.[89] 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.[90] 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.[91] That compromise has translated into key features reflected in the current Ontario Labour Relations Act, 1995 (LRA, 1995):[92] 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;[93] 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.[94]
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 to specialized expertise in high demand in the labour market, may have the opportunity to pursue litigation or even negotiation. For most other workers, enforcement through common law courts is cost prohibitive. The relatively high economic costs of pursuing judicial enforcement, in addition to other “access to justice” limitations, tend to preclude vulnerable employees.
Further, the common law contract of employment puts workers in an inherent position of insecurity. This is most evident in the common law understanding of dismissal within the employment relationship. The legal issue surrounding dismissal is whether an employer owes obligations in the form of reasonable notice or pay in lieu of notice.[95] The common law does not provide a dismissed employee with the remedy of reinstatement. With respect to precarious employment, there have been few, if any, relevant innovations in the common law interpretation of the contract of employment.
b) Minimum Standards
By imposing minimum standards on workplaces, these statutory protections function to construct a floor of rights to solidify the bargain between the parties in the employment relationship. In this way, employment statutes contain important protective elements in the form of entitlements and obligations.
Employment Standards
The current Ontario Employment Standards Act, 2000 (“ESA, 2000”) establishes employee entitlements to minimum wage rates, the payment of wages, overtime pay, vacation pay, statutory holidays and maternity, parental and emergency leave protections.[96] The 2000 Act reflects a significant overhaul of the previous statute, most notably in the areas of hours of work and anti-reprisal provisions.
Hours of work are an important aspect of precarious employment. While some workers cannot get enough hours at any one job, and are forced to patch together a living by holding multiple jobs, other workers are obliged to work longer days and more hours in a week than they would otherwise choose. Limited access to leaves is another important aspect of precariousness. For example, the ESA, 2000 provision for a ten-day unpaid emergency leave in situations of family emergencies and personal illness is available only to those employed in workplaces with fifty or more employees.[97]
The ESA, 2000 has been strengthened with respect to temporary agency work.[98] A temporary help agency under the ESA, 2000 generally had been deemed to be the employer of persons it sends to client businesses; however, section 74.3 of the ESA, 2000 now explicitly provides that the agency is the employer. Temporary agency employees are also eligible for new protections. The Act prohibits temporary help agencies from charging fees to workers for the completion of job preparation tasks such as writing resumés and imposes a requirement on agencies to provide employees with information about their new rights under the ESA, 2000. The Act also ensures temporary help agency workers are not prevented from accessing permanent jobs when employers want to hire them from agencies and guarantees that they are provided with information about their job assignments, such as pay schedules and job descriptions. These workers are now entitled to termination and severance pay, as well as holiday pay (a previous change under the Employment Standards Regulations).
The Ontario government has also enacted legislation to provide protections to live-in caregivers with respect to their employers and recruitment agencies and potentially to other foreign workers.[99] Inspectors will target employers to enforce these laws.[100]
Health and Safety Protections
The Ontario Occupational Health and Safety Act (“OHSA”)[101] emphasizes prevention of workplace accidents, injuries and diseases. Adopting an approach termed the “internal responsibility system”, the OHSA holds all parties in the workplace jointly responsible for ensuring health and safety. Workers receive the right to participate in the resolution of health and safety issues, either through a health and safety representative or a committee, depending on the number of employees beyond five. Workers are permitted the right to refuse work they deem unsafe or dangerous. Workers also have the right to know about potential hazards to which they may be exposed.
In June 2006, the Ontario government extended the OHSA to include coverage for paid farm workers in specified types of provincial farming operations, although not all the regulations under the statute apply.[102] However, the OHSA does not apply to workers performing work in a private residence or lands connected to it.[103]
Compensation for Illness and Injury
The Ontario Workplace Safety and Insurance Act, 1997 (“WSIA, 1997”)[104] regulates provision of compensation and rehabilitation for work-related injuries and illnesses, through a no-fault insurance scheme paid for by employers, based on a system of industrial classification that accounts for rates of injury and risks specific to the industry. The Workers Safety and Insurance Board (“WSIB”) administers the workers’ compensation system, adjudicating compensation claims, paying benefits and overseeing rehabilitation and re-employment. WSIA, 1997 imposes a requirement on an employer to report to the WSIB immediately following a work-related injury or illness.
While most workers in the province receive automatic protection under the statute, certain workers, such as independent contractors, do not. Independent contractors may opt into the scheme but they must cover their own premiums.
While the statistics relating to lost time injuries and non-lost time injuries allowed by the Workplace Safety and Insurance Board (the statistics are released jointly by the Ministry of Labour and the WSIB) have gone up and down since 1999, there has been a decrease since 1999 overall.[105]
Pay Equity
Striving to “redress systemic gender discrimination in compensation”, the Pay Equity Act (“PEA”) obligates public sector employers and private sector employers with more than ten employees to provide equal pay for work performed by employees in female dominated job classes of equal value to work performed by persons in male dominated job classes.[106] The actual extent of the obligation depends on the size of the employer. The PEA provides a complaint mechanism for individual employees, group of employees or their bargaining agent, if any, with respect to the implementation of the plan or that changed circumstances make the plan inappropriate.[107]
The idea of pay equity does not attempt to address why certain jobs are male or female dominated in the first place, including the underlying stereotypes and social relations, such as the de-valuing of unpaid domestic work, and the fact that much of female-dominated work is in the nurturing or support occupations, considered to rely on “natural” female qualities.
Prohibition on Discrimination in Employment
The Ontario Human Rights Code (“HRC”) prohibits discrimination in employment along fifteen grounds, including race, colour, place of origin, ethnic origin, citizenship and sex.[108] The prohibition applies to all aspects of employment from recruitment to termination. The Code also imposes on employers a duty to accommodate workers with a disability to the point of undue hardship.[109]
c) Approaches to Enforcement
Enforcement forms a key aspect of the statutory floor of rights. Most employment statutes in Ontario adopt approaches to enforcement driven by individual employee complaints, although certain statutes go beyond the complaints-based approach to provide additional ways to trigger enforcement.
The ESA, 2000’s complaints-based approach is administered through the Employment Standards Branch of the Ministry of Labour. The process is initiated when an employee files a complaint against an employer alleging a violation of one or more of the standards set out in the statute. Once a complaint is filed, an Employment Standards Officer is charged with investigation and adjudication of relevant disputes. With respect to proactive enforcement, Ministry of Labour officials initiate targeted workplace inspections, especially of high-risk sectors and repeat violators.[110] Between 2003 and 2007, individual complaints investigations averaged over 15,000 per fiscal year.[111] In 2007-2008 and 2008-2009, complaint-driven investigations rose to 18,533 and 21,304 respectively. In contrast, targeted inspections between 2003 and 2009 ranged from a low of 151 (the 2003-2004 fiscal year) to a high of 2,713 (the 2006-2007 fiscal year), with 2,135 in 2008-2009. The top reason for complaints and for violations resulting from the targeted inspections in 2007-2008 was unpaid wages.[112] In 2008, the Ministry prosecuted 480 persons, including corporations, for offences under the ESA, 2000. This had increased from five in 2003 and reflected a steady increase except for 2007.[113] The Employment Standards Branch also began an employer education program in April 2009 to advise employers about their obligations under the ESA, 2000[114] and in August 2010 established an Employment Standards Task Force to deal with the backlog of employment standards complaints.[115]
Certain employment statutes use proactive enforcement measures more explicitly. The Pay Equity Act combines a complaints-based approach with a proactive approach, imposing obligations on medium and large employers to redress discrimination in compensation even before an employee files a complaint.[116] Under the OHSA, the Ministry of Labour has approximately 430 full time health and safety inspectors, double the number in 2005, and has announced that “[s]ince the launch of the Safe at Work Ontario in 2008, ministry inspectors have conducted over 130,000 proactive field visits, issued more than 200,000 compliance orders and conducted 18 proactive enforcement blitzes.” [117] “Blitzes” focus on different industries and particular hazards.[118]
The OHSA’s internal responsibility system incorporates elements of proactive enforcement. Grounded in the idea of individual responsibility, the internal responsibility system requires workers, supervisors and the employer to anticipate and address all foreseeable health and safety issues in a workplace, including the recently added harassment and violence in the workplace provisions.[119] In addition, the OHSA devotes attention to proactive inspections to supplement the largely complaints-driven right of refusal of unsafe work.
One of the most “notorious” instances of recent health and safety-related accidents occurred in December 2009 when four migrant workers were killed and one seriously injured when they fell from scaffolding as they were working on the balcony of an apartment building. In May 2010, the Ontario government announced an increased review of construction sites and enforcement of the health and safety requirements on construction sites.[120] In August 2010, the Ministry of Labour pressed charges under the OHSA against two companies and against individuals[121] and criminal charges were laid in October 2010.[122]
In the context of anti-discrimination, the regime largely is complaints based. The new Human Rights Tribunal of Ontario receives and decides all relevant complaints, while the newly created Human Rights Legal Support Centre provides legal advice, support or representation for individual complainants, including temporary and casual workers.[123] However, since the changes introduced in 2008, the province’s human rights regime now also includes an active educational component.[124] The Human Rights Commission develops public education and other proactive measures such as policy research, analysis and development.
Complaints-based enforcement of minimum standards can only be effective for workers if they do not fear reprisals from employers. There are specific provisions which protect workers against reprisals for exercising statutory rights contained in all of these statutes. For instance, the current ESA, 2000 incorporates a robust anti-reprisal provision to prohibit employers from intimidating, dismissing or imposing other penalties on employees for inquiring about or exercising rights under the statute.[125] Anti-reprisal provisions also exist in other statutes (see section 50 of the OHSA, for example). Despite the existence of these provisions, however, workers continue to face reprisals.[126] The threat of reprisals affects workers more broadly than those in precarious employment and yet the ESA, 2000’s anti-reprisal provision rarely has been used since it was introduced in 2001.[127]
3. Collective Bargaining
The mechanisms of collective bargaining impose a general obligation on employers to recognize a union that has achieved certification. And while a duty to bargain in good faith exists, the substance of the bargain is open to the parties to determine within the boundaries of the statutory regime, with the exception of first contract arbitration.[128]
A key dimension of precarious employment is the lack of control within the labour process. A key indicator of this lack of control is union coverage. With unionization rates in Ontario hovering below thirty percent, most workers do not receive the protection of statutory collective bargaining.[129] Further, the revision of the trade union certification process in 1995 perhaps has made it more difficult for workers in precarious employment to organize and bargain collectively. Card-check certification, a process in which it was sufficient that fifty plus one percent of workers within a workplace had signed union membership cards to certify the union to receive formal coverage under the LRA, 1995, introduced in 1950, was ended in 1995. This was changed to require that at least forty percent of prospective union members sign cards and then, after a period of time, the holding of a supervised vote in which fifty plus one percent of workers had to agree to support the union. Although card-based certification was restored in construction in 2005, workers covered by the Labour Relations Act, 1995 continue to face the possibility of intimidation and coercion by employers in the certification process.[130]
4. Other Regimes
This section of the Paper has reviewed the legal framework governing paid work in Ontario. That said, other provincial and federal laws influence precarious employment. For example, social assistance benefits available through the provincial welfare system and, similarly, employment insurance benefits available federally, are key supports for workers. Further, as discussed briefly in this Background Paper, federal immigration law and policies play a significant role in shaping precarious employment for temporary migrant workers, new immigrant workers and non-status workers. In these respects, the analysis is not a comprehensive review of all sources of law and policy that influence precarious employment, but is intended to provide the backdrop for Ontario law.
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