[1] Adrian Smith, Independent Researcher, prepared the initial draft of this Background Paper for the Law Commission of Ontario.
[2] Economic Council of Canada, Good Jobs, Bad Jobs: Employment in the Service Economy (Ottawa: 1990).
[3] Ron Saunders, Making Work Pay: Findings and Recommendations from CPRN’s Vulnerable Workers Series, Research Highlights, Number 6 (May 2006); Law Commission of Canada, Is Work Working?: Work Laws That Do A Better Job: Discussion Paper (Ottawa: Law Commission of Canada, 2004); Kerry Rittich, Vulnerable Workers: Legal and Policy Issues in the New Economy (Ottawa: Law Commission of Canada, 2004); Judy Fudge, Eric Tucker and Leah Vosko, The Legal Concept of Employment: Marginalizing Workers (Ottawa: Law Commission of Canada, 2002).
[4] J. Bernier, G. Vallée and C. Jobin, Social Protection Needs of Individuals in Non-Standard Work Situations, Synopsis of Final Report (Quebec, Ministry of Labour, 2003).
[5] Leah Vosko ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal & Kingston: McGill-Queen’s, 2006).
[6] Judy Fudge, “Beyond Vulnerable Workers: Towards a New Standard Employment Relationship” (2005) 12:2 Canadian Labour & Employment Law Journal 151, 159.
[7] Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 [Dunmore].
[8] For example, the Ministry uses the term to refer to young workers entering the employment market for the first time, particularly in the context of training, and workers who have greater health and safety risks.
[9] Jason DeParle, “A World on the Move” New York Times (Week in Review) (June 27, 2010) 1, 4. Also see United Nations, International Migration Report 2006: A Global Assessment (New York: UN, 2009), online: http://www.un.org/esa/population/publications/2006_MigrationRep/report.htm. This Report shows that international migrants constituted 19% of the population in Canada (second only to Australia with 20% among countries with at least 20 million people): xv. Canada ranked 9th in 1990 and 7th in 2005 in the percentage of international migrants of the total numbers of international migrants worldwide among the top 20 countries: xvi. For an extensive description of the situation of migrant workers in a number of countries, see International Labour Office, International labour migration: A rights-based approach (Geneva: ILO, 2010).
[10] This situation is not uncomplicated, since many early retirees obtain other employment.
[11] Ray Barton Associates Ltd., Final Report: Trends and Patterns in Skills and Labour Shortages, prepared for the Council of Deputy Ministers [Responsible for Transportation and Highway Safety] Secretariat (Ottawa, 2008), 7, online: http://www.comt.ca/english/LabourSkills.pdf.
[12] Ray Barton Associates, note 11, 19.
[13] Julie Ann McMullin and Martin Cooke, Labour Force Ageing and Skill Shortages in Canada and Ontario (Ottawa: Canadian Policy Research Networks, August 2004), online: http://www.cprn.org/documents/31517_en.pdf.
[14] Ray Barton Associates, note 11, 19.
[15] This Paper emphasizes private sector employment, but should not preclude interventions and feedback relevant to public and quasi-public sector employment. For instance, the impact of “contracting out” on employment is a discussion which has been shown to have detrimental effects on the precariousness of employment. See, for example, Pat Armstrong and Kate Laxer, “Precarious Work, Privatization, and the Health-Care Industry: The Case of Ancillary Workers” in Leah F. Vosko ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal & Kingston: McGill-Queen’s, 2006) 115.
[16] Vosko, note 5, 3-4.
[17] Vosko note 5, 7.
[18] Vosko note 5, 6-7.
[19] After persistent social pressure, social benefits became supported by employers and reinforced by the post-World War II emergence of a social welfare scheme, the social safety net, which provided a robust regime of protections and entitlements. Two major examples of these social benefits are unemployment insurance (now employment insurance) and public pensions.
[20] Costa Kapsalis and Pierre Tourigny, Duration of Non-standard Employment (Statistics Canada, Ottawa, 2004), online: http://www.statcan.ca/english/freepub/75-001-XIE/11204/high-1.htm. See also Leah F. Vosko, “Temporary Work in Transnational Labour Regulation: SER Centrism and the Risk of Exacerbating Gendered Precariousness” (2008) 88 Social Indicators Research 131.
[21] The general erosion of the standard employment relationship also imposes a greater burden on the breadwinner to sustain employment and to avoid workplace absences whether due to sickness or speaking out against work injustices.
[22] Mark Thomas, Regulating Flexibility: The Political Economy of Employment Standards (Montreal & Kingston: McGill-Queen’s, 2009) 22.
[23] An important distinction exists between “work” and “employment”. Whereas the idea of work captures in broad terms all productive activities, the idea of employment or paid work refers to a specific way of organizing work. A central feature of employment is the contract of employment which facilitates the sale of labour or labour power in exchange for wages (and other inducements) in a labour market. Employment therefore is a subset of work. Work captures historical shifts from different systems of organization of productive activities. A defining – if deeply problematic – feature of employment is the distinction upheld between unpaid duties and responsibilities performed in households and paid tasks performed within the labour market.
[24] Katherine Stone, “The New Psychological Contract: Implications of the Changing Workplace for Labour and Employment Law” (2001) 48 UCLA Law Review 519. Also see Judy Fudge, “The New Workplace: Surveying the Landscape” (2009) 33 Manitoba L.J. 131.
[25] This is not the case with the current recession in countries where long-term unemployment among previously relatively secure employees has been high.
[26] See, for example, Thomas note 22, chapter 1.
[27] Vosko, note 5, 15-16. For a variation on the multidimensional approach see also Gerry Rodgers, “Precarious Employment in Western Europe: The State of the Debate” in G. Rogers and J. Rogers, eds., Precarious Jobs in Labour Market Regulation: The Growth of Atypical Employment in Western Europe (Geneva: International Institute for Labour Studies, 1989) 1.
[28] Jamie Baxter, “Federal-Provincial Gaps Affecting Precarious Workers in Ontario” (December 2009) (on file with the LCO).
[29] Cynthia J. Cranford and Leah Vosko, “Conceptualizing Precarious Employment: Mapping Wage Work Across Social Location and Occupational Context” in Vosko, note 5, 49.
[30] For instance, one approach is to emphasize the main source of income, but this raises the issue of the relevance of multiple job holding. How an individual is paid, and in what form they receive payment, also may prove relevant to an assessment of precariousness. For instance, how do we account for people who, contrary to the Employment Standards Act, receive cash payment for work performed? For an assessment of precarious employment accounting for varying forms of pay see Luin Goldring and Patricia Landolt, “Immigrants and Precarious Employment: Brief One”, online: http://www.arts.yorku.ca/research/ine/research/publications.html.
[31] Cranford and Vosko, note 29, 49-50.
[32] Vosko note 5, 49-50.
[33] Vosko note 5.
[34] Vosko note 5.
[35] Cynthia Cranford, Judy Fudge, Eric Tucker and Leah Vosko, Self-Employed Workers Organize: Law, Policy, and Unions (Montreal & Kingston: McGill-Queen’s, 2005).
[36] Workers’ Action Centre, Working on the Edge (Toronto: Workers Action Centre, 2007), 27-34.
[37] Cranford and Vosko, note 29.
[38] Non-Status workers refers to people who, for a variety of reasons discussed below, work and live in Canada without proper immigration approval (work visas).
[39] Sylvia Fuller and Leah F. Vosko, “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race and Immigration Status” (2008) 88:1 Social Indicators Research 31, 31-32.
[40] Fuller and Vosko, note 39, 34; Law Commission of Canada, note 3.
[41] See, for example, Maria Deanna P. Santos, Human Rights and Migrant Domestic Work (The Netherlands: Martinus Nijhoff, 2005); Daiva K. Stasiulis and Abigail B. Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (Toronto: University of Toronto, 2005); Agnes Calliste, “Canada’s Immigration Policy and Domestics From the Caribbean: The Second Domestic Scheme” in Jesse Vorst et al. eds., Race, Class, Gender: Bonds and Barriers (2nd rev.ed., (Canada: Between the Lines, 1991) 136. There have recently been changes to the requirements live-in caregivers must meet to apply for permanent residence status: see the Citizenship and Immigration Canada website: http://www.cic.gc.ca/english/work/caregiver/index.asp. The live-in caregiver program’s permanent residence/citizenship track has been called “good practice” by the ILO in its report on a rights-based approach to labour migration: note 9, 93.
[42] See, for example, Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm labour Migration to Canada Since 1945 (New York: Routledge, 1991); Irving Andre, “The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program in Canada” (1990) 28 Osgoode Hall Law Journal 244; Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters (Montreal & Kingston: McGill-Queen’s University Press, 2002); Kerry Preibisch, “Foreign Workers in Canadian Agriculture: Not an All-Male Cast” FocalPoint (May-June 2007) 8; Ellen Wall, “Personal Labour Relations and Ethnicity in Ontario Agriculture,” in V. Satzewich ed., Deconstructing the Nation: Immigration, Multiculturalism and Racism in 90s Canada (Toronto: Garamond, 1992) 261.
[43] The Economist, “Canada’s Guest Workers: Not Such A Warm Welcome” The Economist (November 22, 2007), online: http://www.economist.com; “Welcome to Canada: hope you aren’t planning on staying” Report on Business (October 2007) 66; Nicholas Keung, “Guest labour program raises troubling questions”, Toronto Star (March 15, 2008a), online: http://www.torontostar.com; Nicholas Keung, “Ottawa expands work program”, Toronto Star (February 12, 2008b) A15.
[44] Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers), SOR/2010-172, P.C. 2010-959, s.2(1) (August 4, 2010), online: http://www.gazette.gc.ca/rp-pr/p2/2010/2010-08-18/html/sor-dors172-eng.html. Other aspects of the changes are designed to ensure the genuineness of offers to work under the TFWP and to encourage employers to meet the conditions of employment as offered. For the federal government’s explanation, see the Regulatory Impact Analysis Statement, online: http://canadagazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html.
[45] Workers’ Action Centre, note 36, 5.
[46] Dunmore, note 7.
[47] Federal Labour Standards Review, Fairness at Work: Federal Labour Standards for the 21st Century (Canada, October 2006) 232, online: http://www.hrsdc.gc.ca/eng/labour/employment_standards/fls/pdf/final_report.pdf (Commissioner, Harry W. Arthurs) [Arthurs].
[48] Vosko note 5, 59.
[49] Vosko note 5, 45.
[50] The dimensions of social location should be regarded not as independent or compounding, and not in isolation, but rather in intersecting relationship to each other (For a rationale for this, see Fuller and Vosko, note 39, 48).
[51] Both these projects recognize the diversity among these “cohorts”: see http://www.lco-cdo.org/projects.
[52] See, for example, Gail Fawcett, Bringing Down the Barriers: The Labour Market and Women with Disabilities In Ontario (Ottawa: Canadian Council on Social Development, 2000); The Roeher Institute, Labour Force Participation and Persons with Disabilities Who Are Severely Disadvantaged in the Ontario Labour Market: Background Papers for the Working Group on Employment Equity and Persons with Severe Disabilities (North York, Ont.: The Roeher Institute, 1993).
[53] Ministry of Community and Social Services, “Don’t Waste Talent”, online: http://www.mcss.gov.on.ca/talent/.
[54] Human Resources and Skills Development Canada, “Targeted Initiatives for Older Workers”, online: http://www.rhdcc-hrsdc.gc.ca/eng/cs/sp/hrsd/eppd/tiow.shtml. The program is cost-shared with the provinces and territories. Ontario is a participant with programs targeting workers between 55 and 64 who live in areas “hard hit by the recession”, specifically communities “with high unemployment, largely dependent on a single employer or industry and [with] a population of 250,000 or less”: Ministry of Training, Colleges and Universities, “The Targeted Initiative for Older Workers”, online: http://www.edu.gov.on.ca/eng/tcu/employmentontario/olderworkers.html.
[55] The relationship between precarious employment and precarious old age is an area of particular concern considering the aging Canadian population. The next 20 years are expected to result in a significant demographic shift where the number of Canadians over the age of 65 is expected to almost double from 13.2% to 24.5%. Just as younger workers are entering the workforce in precarious employment, older workers increasingly are maintaining paid work through precarious employment: Martin Turcote and Grant Schellenberg, Portrait of Seniors in Canada (Ottawa: Statistics Canada, 2006), online: http://www.statcan.gc.ca/pub/89-519-x/89-519-x2006001-eng.pdf.
[56] Cranford and Vosko, note 29, 48.
[57] In particular, domestic work performed within the household, ranging from child care to elder care to grocery shopping to other aspects of social reproduction. With respect to unpaid work doing housework, caring for children and caring for seniors, see Statistics Canada, “Data on unpaid work by sex for Canada”, online: http://www12.statcan.gc.ca/census-recensement/2006/dp-pd/tbt/Rp-eng.cfm?LANG=E&APATH=3&DETAIL=0&DIM=0&FL=A&FREE=0&GC=0&GID=0&GK=0&GRP=1&PID=92100&PRID=0&PTYPE=88971,97154&S=0&SHOWALL=0&SUB=0&Temporal=2006&THEME=74&VID=0&VNAMEE=&VNAMEF=. This has consequences for health, leisure time and other aspects of life. For example, more women provide informal health care for a long-term condition than do men and women spend less time on social activities, more often cancel holiday plans, spend less time with their spouse, spend less time with children and postpone their education plans. Men and women in different age groups have additional expenses. See Statistics Canada, 2007 General Social Care Tables, Table 5-4 (Population of caregivers by selected consequences of providing informal care for a long-term health condition or physical limitation, by sex and age — Ontario), online: http://www.statcan.gc.ca/pub/89-633-x/2008001/t043-eng.pdf.
[58] Cranford and Vosko, note 29, 64.
[59] Cranford and Vosko, note 29, 64.
[60] In this respect, disparities in experiences and treatment of women and men within the employment relationship are important as systemic gender discrimination exacerbates precarious employment: Judy Fudge and Leah Vosko, “Gender, Segmentation and the Standard Employment Relationship in Canadian Labour Law and Policy” (2001) 22:2 Economic and Industrial Democracy 271.
[61] Grace-Edward Galabuzi, Canada’s Economic Apartheid: The Social Exclusion of Racialized Groups in the New Century (Toronto: Canadian Scholars’ Press, 2006); Gillian Creese, “Racializing Work/Reproducing White Privilege” in Vivian Shalla and Wallace Clement eds., Work in Tumultuous Times: Critical Perspectives (Montreal & Kingston: McGill-Queen’s, 2007) 192.
[62] The prevailing social scientific view is that “race” is socially, not biologically, real. Race relates to racialization in that it is used as the basis through which people are slotted into categories corresponding to perceived racial identity. Racialization, then, attempts to capture this process of categorization without reference to, or reinforcement of, the notion of race understood in the biological sense. Racism refers to a specific form of racialization, that is institutionalized, in which the process of categorization is done in a negative and deleterious way. There has been a tendency within dominant discourse to perceive racism quite narrowly: as conscious and isolated beliefs in racial hierarchy held by lone individuals, which only rarely lead to aggressive acts or provocations. If acknowledged as a past problem, racism is perceived as one that in contemporary times exists infrequently, if at all. Beliefs in racial hierarchy, however, do still exist and these inform behaviour in overt and covert ways. For a recent example of overtly racist practices and policies in employment see Québec (Commission des droits de la personne et des droits de la jeunesse) v. Centre maraîcher Eugène Guinois JR inc., 2005 CanLII 11754 (QC T.D.P.) in which farm workers of Haitian origin, referred to informally as the “Longueuil workers”, faced countless examples of racial discrimination on the job, including being forced to eat in a segregated lunch space separate from other workers.
[63] For an elaboration on these ideas, see Vic Satzewich, “The Political Economy of Race and Ethnicity” in Peter S. Li ed., Race and Ethnic Relations in Canada (2d ed.) (New York: Oxford University Press, 1999); Galabuzi, note 61, especially chapter 2.
[64] Creese, note 61, 193.
[65] Statistics Canada data showed that immigrants in “economic families” (a group of two or more related people living in the same location) arriving in the preceding five years had a low-income rate of 32.6% in 2005, compared to the rate of 6.9% for their non-immigration counterparts, with a low-income rate of over 58% for unattached individuals compared to over 26% for non-immigration unattached individuals: Chantal Collin and Hilary Jensen, A Statistical Profile of Poverty in Canada (Ottawa: Library of Parliament, 2009) 22, online: http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0917-e.pdf. The authors also refer at 24 to studies showing that “individuals who belong to visible minority groups are more likely to experience poverty than those who do not”; for example, “[i]n 2004, 86% of recent immigrants with low incomes were members of a visible minority”, citing Dominique Fleury, A Study of Poverty and Working Poverty Among Recent Immigrants to Canada, Final Report (Human Resources and Skills Development Canada, 2007).
[66] Creese, note 61, 194.
[67] See, for example, Richard Spaulding, “Peoples as National Minorities: A Review of Will Kymlicka’s Arguments for Aboriginal Rights from a Self-Determination Perspective”(1997), 47 University of Toronto Law Journal 35.
[68] Citizenship and Immigration Canada (CIC), “Facts and Figures: Immigration Overview – Permanent and Temporary Residents” (2008): Citizenship and Immigration Canada, online: http://www.cic.gc.ca/english/pdf/research-stats/facts2008.pdf [CIC, “Facts and Figures 2008”], 62: cited in Jamie Baxter, “Precarious Pathways: Evaluating the Provincial Nominee Programs in Canada” (March 2010 ) (unpublished paper on file with LCO).
[69] Brazil-Angola Community Information Centre, The Many Faces of Brazilian Immigrants in Ontario (Toronto, 2009) 40, online: https://tspace.library.utoronto.ca/bitstream/1807/24744/1/The%20Many%20Faces%20of%20Brazilian%20Immigrants%20in%20ON_English_2009.pdf.
[70] Cranford and Vosko, note 29, 64-65.
[71] Toronto Electric Commissioners v. Snider, [1925] AC 396. The exception to this are federally regulated industries which fall under the Canada Labour Code. Employment is subject to federal or provincial and territorial jurisdiction depending upon the type/character of productive activity.
[72] The Canada-Ontario Immigration Agreement (Original signed November 21, 2005), online: http://www.cic.gc.ca/english/department/laws-policy/agreements/ontario/ont-2005-agree.asp; the agreement was extended in May 2010. More recently, more immigrants have been settling elsewhere in Canada. As a result, the federal government has reduced funding for Toronto settlement groups: Jennifer Pagliaro and Jill Mahoney, “Funding cuts threaten immigrant agencies,” The Globe and Mail (December 23, 2010), online: http://www.theglobeandmail.com/news/politics/ottawa-cuts-funding-for-immigrant-settlement-groups/article1848219/. The Agreement now has a specific part applying to temporary foreign workers: Annex G (Temporary Foreign Workers) of Appendix “A” of The Canada-Ontario Immigration Agreement, online: http://www.cic.gc.ca/english/department/laws-policy/agreements/ontario/can-ont-amend_agree.asp. Temporary foreign workers may shift their work status to one leading to permanent residency through the Canadian Experience Class program. The requirements for the Canadian Experience Class program conform to the interest in “skilled work”, that is, managerial, professional or technical and skilled trades: Citizenship and Immigration Canada, “Canadian Experience Class: Who Can Apply”, online: http://www.cic.gc.ca/english/immigrate/cec/apply-who.asp.
[73] Canada-Ontario-Toronto Memorandum of Understanding on Immigration and Settlement (Original signed September 29, 2006), online: http://www.cic.gc.ca/english/department/laws-policy/agreements/ontario/can-ont-toronto-mou.asp.
[74] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11 (“Charter”).
[75] Adopted by General Assembly resolution 45/158 of 18 December 1990, online: http://www2.ohchr.org/english/law/cmw.htm. For a list of signatories, see United Nations Treaty Collection, online: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en.
[76] See a list of conventions at International Labour Organization, online: http://actrav.itcilo.org/actrav-english/telearn/global/ilo/law/lablaw.htm. The fundamental conventions relate to forced labour, freedom of association, discrimination and child labour.
[77] Ratifications of the ILO Fundamental Conventions (as of September 29, 2010), online: (http://webfusion.ilo.org/public/db/standards/normes/appl/appl-ratif8conv.cfm?lang=EN.
[78] ILO Declaration on Fundamental Principles and Rights at Work (June 1998), online: http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.htm.
[79] For a discussions of dominant approaches to the study of labour law in Canada, see Harry Arthurs, “National Traditions in Labour Law Scholarship: The Canadian Case” (2005) 23 Comp. Labour Law & Pol’y J. 645, online: http://www.law.uiuc.edu/publications/cll%26pj/archive/vol%5F23/; Eric Tucker, “Locating Labour Law: The Regulation of Occupational Health and Safety” in Elizabeth Comack ed., Locating Law: Race/Class/Gender/Sexuality Connections, 2nd ed., (Halifax: Fernwood, 2006) 152.
[80] Cranford and Vosko, note 29, 48.
[81] Eric Tucker, “Shareholder and Director Liability for Unpaid Workers’ Wages in Canada: From Condition of Granting Limited Liability to Exceptional Remedy” (2008) 26 Law and History Review, np, online: http://www.historycooperative.org/journals/lhr/26.1/tucker.html.
[82] For context, see Geoffrey England, Individual Employment Law (Toronto: Irwin Law, 2000); Brian Langille, “Labour Law’s Back Pages” in Guy Davidov & Langille, eds., Boundaries and Frontiers of Labour Law (Oxford & Portland: Hart, 2006) 13.
[83] See Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.
[84] England, note 82, 33.
[85] Paul Craven, “Canada, 1670-1935: Symbolic and Instrumental Enforcement in Loyalist North America” in Douglas Hay and Paul Craven eds., Masters, Servants, and Magistrates in Britain & the Empire, 1562-1955 (Chapel Hill & London: University of North Carolina, 2006) 175, 177.
[86] For historical background, see Thomas, note 22, especially chapter 2.
[87] These included the Minimum Wage Act (1920), which set hourly minimum wage and overtime standards, and the Hours of Work and Vacations with Pay Act (1944). The various minimum standards were amalgamated under the Ontario Employment Standards Act (ESA), which was first enacted in 1968 and took force the following year.
[88] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A [WSIA, 1997].
[89] For an argument which puts the industrial pluralist regime in Canada into historical perspective, see Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948 (Toronto: Oxford, 2001).
[90] Judy Fudge and Eric Tucker, “Pluralism or Fragmentation?: The Twentieth-Century Employment Law Regime in Canada” (2000) 46 Labour/Le Travail 251.
[91] The Wartime Labour Relations Regulations or PC 1003, an executive order passed in 1944 by the Mackenzie King-led Federal government, served as the framework for post-war labour relations legislation throughout Canada. Modeled in part on the United States’ Wagner Act of 1935, PC 1003 remained an exceptional wartime measure until 1948 when it was made permanent through the enactment of the Industrial Disputes Investigation Act. This latter statute laid the groundwork for a new legal regime of labour regulation of industrial legality in Canada. Earlier in the same year the Ontario government of Leslie Frost enacted the Labour Relations Act, designed to defer to the (soon-to-be enacted) federal Industrial Disputes Investigation Act. This was followed by the “home-made” Labour Relations Act in 1950. See, for example, Fudge and Tucker note 90; Thomas, note 22, especially chapter 2.
[92] Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A [LRA, 1995].
[93] This is referred to as the Rand Formula or compulsory checkoff and emerged following a 1946 arbitration decision settling a Ford automotive strike in Windsor. The Rand Formula provided an important level of financial security for unions.
[94] On the changing composition of unions, see Jacques Rouillard, “Union Structure and Strategy in Australia and Canada” Labour/Le Travail (September 22, 1996), online: http://www.allbusiness.com/services/religious-grantmaking-civic-professional/598159-1.html. The complexity of unionization (by sex, age, public and private sectors and type of industry) and the decline in unionization from 1981 to 2004 are described in René Morissette, Grant Schellenberg and Anick Johnson in “Diverging Trends in unionization”, Statistics Canada, 6 (April 2005) Perspectives, online: http://www.statcan.gc.ca/pub/75-001-x/10405/7827-eng.htm Also see Human Resources and Skills Development Canada, “Indicators of Well-being in Canada: Work-Unionization Rates [in 2008]”, online: http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=17 and Human Resources and Skills Development Canada, “Union Membership in Canada-2009”, online: http://www.hrsdc.gc.ca/eng/labour/labour_relations/info_analysis/union_membership/index2009.shtml.
[95] The common law also requires employees to mitigate damages caused by an employer’s fundamental breach of the employment contract.
[96] Employment Standards Act, 2000, S.O. 2000, c.41 [ESA, 2000].
[97] ESA, 2000, note 96, s.50(1).
[98] Employment Standards Amendment Act (Temporary Help Agencies), 2009, S.O. 2009,c.9.
[99] Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009, S.O. 2009, c.32. The Act has not yet been extended to other workers under federal migrant workers programs. Manitoba’s Worker Recruitment and Protection Act, S.M. 2008, c.23, addresses the recruitment of a broad range of foreign workers (and child performers).
[100] Ministry of Labour, “Dedicated Team to Enforce New Laws that Protect Ontario’s Vulnerable Workers”, online: http://www.labour.gov.on.ca/english/es/pubs/es_det.php.
[101] Occupational Health and Safety Act, R.S.O. 1990, c. O.1 [OHSA].
[102] Ontario Regulation 414/05, ss.3 and 4. For a critique of the extension of the OHSA to agricultural workers, see Eric Tucker, “Will the Vicious Circle of Precariousness Be Unbroken? The Exclusion of Ontario Farm Workers from the Occupational Health and Safety Act” in Vosko, ed., note 5, 256.
[103] OHSA, note 101, s.3(1). The Ontario Ministry of Labour website sets out the protections available to live-caregivers: “Your Employment Standards Rights: Foreign National Live-in Caregivers”, online: http://www.labour.gov.on.ca/english/es/pubs/is_fn_esa.php.
[104] WSIAWSIA, 1997, note 88.
[105] WSIB, “Health and Safety Statistics for Ontario”, online: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/CurrentStatistics. The information and process for reporting injuries is available in “several” languages, online: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/MultilingualServices. The information on this website is provided in 11 languages in addition to English and French.
[106] Pay Equity Act, R.S.O. 1990, c. P.7, ss. 3(1) and 4(1) [PEA].
[107] PEA, note 106, s.22(2).
[108] Human Rights Code, R.S.O. 1990, c. H.19, s. 1 [HRC].
[109] HRC, note 108, s.17(2). The Ontario Human Rights Commission has issued guidelines on the duty to accommodate persons with disabilities: “Disabilities and the Duty to Accommodate: Your Rights and Responsibilities”, online: http://www.ohrc.on.ca/en/issues/disability.
[110] Ministry of Labour, “Enforcement Activities: Investigations and Inspection Statistics” (2009), online: http://www.labour.gov.on.ca/english/es/report_card/rc_1.html.
[111] Ministry of Labour, note 110.
[112] Ministry of Labour, note 110. For historical inspections data, see Thomas note 22, 103. In 2003, there were 15,000 claims against employers and only one prosecution initiated. Richard Mackie, “Ontario To Get Tough on ‘Bad Employers’” The Globe and Mail (27 April 2004). In 2005-2006, the Ministry of Labour found that employers violated worker rights in 11,358 claims totaling almost $37million in unpaid wages. It prosecuted four companies and two directors.
[113] Ministry of Labour, “Prosecution and Conviction Statistics” [to October 2010], online, http://www.labour.gov.on.ca/english/es/pubs/enforcement/convictions.php.
[114] Ontario Ministry of Labour, “Education, Outreach and Partnership”, online: http://www.labor.gov.on.ca/english/es/eop/index.php. There were 318 prosecutions in 2005, 456 in 2006 and 345 in 2007. The website lists the convictions for April and May 2010 under the Provincial Offences Act.
[115] Ontario Ministry of Labour, Employment Standards Task Force, online: http://www.labour.gov.on.ca/english/es/pubs/is_estf.php. The Task Force is the first step in the Employment Standards Modernization Strategy to address all outstanding claims, shorten wait times for new claims and “better assist employers to comply with their obligations through education and awareness”.
[116] The ESA, 2000 also contains provisions dealing with equity, requiring employers to pay women and men equal pay for equal (or substantially the same) work: ESA, 2000, note 96 , s.42. The HRC addresses equal treatment with respect to employment. Pay equity (equal pay for work of substantially equal value) remains the subject of heavy criticism. See, for, example Tom Flanagan, “Another Bad Idea: Equal Pay for Work of Equal Value” The Globe and Mail (February 24, 2009), A15.
[117] Ministry of Labour, “Making Construction Sites Safer”, online: http://news.ontario.ca/mol/en/2010/05/making-construction-sites-safer.html.
[118] Ministry of Labour, “Inspection Blitzes”, online: http://www.labour.gov.on.ca/english/hs/sawo/blitzes/index.php.
[119] Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, S.O. 2009 C.23.
[120] Ministry of Labour, “Making Construction Sites Safer”, note 117.
[121] “Christmas Eve scaffolding collapse leads to charges,” CBCnews (August 14, 2010), online: http://www.cbc.ca/canada/toronto/story/2010/08/14/toronto-scaffold-accident-charges.html.
[122] Anthony Reinhart, “Three charged in deaths of migrant workers who fell 13 storeys from scaffold”, The Globe and Mail (October 14, 2010) A12. This is the first prosecution in Ontario under the amendments to the Criminal Code enacted as Bill 45 six years ago. Since the substantial completion of this Background Paper, Ontario has announced that it will appoint a single person to oversee workplace health and safety training (a”Chief Prevention Officer”), now the responsibility of several different agencies: Ari Altstedter, “Ontario acts to prevent worker deaths”, The Globe and Mail (December 17, 2010) A16; Ontario, “New Chief Prevention Officer to Oversee Workplace Safety” (December 16, 2010), online: http://news.ontario.ca/mol/en/2010/12/new-chief-prevention-officer-to-oversee-workplace-safety.html.
[123] See information about the Human Rights Legal Support Centre at http://www.hrlsc.on.ca/.
[124] The Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30.
[125] ESA, 2000, note 96, s. 74.
[126] Workers’ Action Centre, note 36.
[127] Workers’ Action Centre, note 36, 73.
[128] LRA, 1995, note 92, s. 43.
[129] Statistics Canada, “Unionization” Perspectives on Labour and Income (August 2007), online http://www.statcan.gc.ca/pub/75-001-x/commun/4211933-eng.pdf.
[130] Section 11(2) of the LRA, 1995 provides that the Labour Relations Board may certify a trade union without a vote or if the vote is not likely to represent the wishes of the employees as a result of employer contraventions of the Act.
[131] Fuller and Vosko, note 39, 31.
[132] Laurie Monsebraaten, “Fighting for dignity on the job” The Toronto Star (11 July 2009), online: http://www.thestar.com/article/664487
[133] Ontario Federation of Labour, Temporary Work in Ontario (2002).
[134] Fuller and Vosko, note 39, 32.
[135] Government of Canada, Seasonal Agricultural Workers Program, online: http://www.canadainternational.gc.ca/mexico-mexique/work-travail/sawp-ptag.aspx?lang=en.
[136] Naomi Alboim and Maytree, Adjusting the Balance (Maytree, 2009) 18, online: http://www.maytree.com/wp-content/uploads/2009/07/adjustingthebalance-final.pdf.
[137] Workers’ Action Centre, note 36, 18.
[138] Further, people employed in temporary work find it more difficult to satisfy the qualifying hours of work threshold in order to receive employment insurance. For instance, workers in Toronto need 595 hours of work in the previous 26 weeks to qualify for EI. First-time applicants need 910 hours – roughly six months of full-time work. See Noor Javed, “’Outdated’ EI traps temp workers”, The Toronto Star (13 June 2009), online: http://www.thestar.com/article/650314.
[139] Pension Benefits Act, R.S.O. 1990, c. P.8 [PBA].
[140] ESA, 2000, note 96, s. 54. It should be noted that workers who are now employees of a temporary employment agency are in a different position with respect to many rights from workers who obtain their own temporary employment.
[141] ESA 2000, note 96, s. 64(1). It should be noted that while length of employment for purposes of the right to notice is generally based on continuous service, it is cumulative service that is relevant for severance pay purposes ESA, 2000, note 96, s. 65(2).
[142] See ESA 2000, note 96, ss. 46(1) and 48(1). There is one other ESA, 2000 entitlement that is sometimes cited as one dependent on meeting a length of service qualification, that being the right to an annual vacation with pay. Under section 33, an employee is entitled to two weeks’ vacation after each year of employment, which means that an employee who leaves his employment before a year is completed will not receive vacation. However, in such circumstances, s. 38 entitles the employee to the vacation pay that accrued during the part year; s.35.2 provides that the amount of vacation pay is equal to 4 % of the wages earned by the employee.
[143] WSIA, 1997, note 88, s. 41(1).
[144] PBA, note 139, s. 31.
[145] ESA, 2000, note 96, s. 33.
[146] Guylaine Vallée, Towards Enhancing the Employment Conditions of Vulnerable Workers: A Public Policy Perspective (Canadian Policy Research Network, Ottawa, 2005), 17 n. 21, 12.
[147] United Steelworkers of American and Cominco Ltd., [1997] C.L.R.B.D. No. 11, 35 CLRBR (2d) 187.
[148] See Graphic Communications International Union, Local 500M v. Quebecor World Islington, Quebecor World Inc. [2001] O.L.R.D. No. 4732 and Communications, Energy and Paperworkers Union of Canada, Local 87-M Southern Ontario Newspaper Guild v. Metroland Printing, Publishing and Distributing Ltd. [2003] O.L.R.D. No. 514, 90 C.L.R.B.R. (2d) 97, [2003] CLLC para. 220-060. It should be noted, however, that the recently-enacted Colleges Collective Bargaining Act, 2008, S.O. 2008, c. 15. (CCBA), which governs labour relations in the community college system and which grants sessional teachers access to a collective bargaining regime denied to them under the predecessor statute, requires sessionals and permanent teachers to be placed (initially at least) in different bargaining units.
[149] Cranford, Fudge, Tucker and Vosko, note 35, 9.
[150] Cranford, Fudge, Tucker and Vosko, note 35, 8.
[151] OECD, Partial Renaissance of Self-Employment, OECD Employment Outlook, 2000, online: http://www.oecd.org/dataoecd/10/44/2079593.pdf; Cranford, Fudge, Tucker and Vosko, note 35.
[152] Alice de Wolff, Breaking the Myth of Flexible Work: Contingent Work in Toronto (Contingent Workers Project, 2000).
[153] Immigrant Women’s Center, “Women and Self Employment”, online: http://www.stjosephwomen.on.ca/index.php?page=self.
[154] Marcia Almey, Women in Canada: Work Chapter Updates (Statistics Canada, 2006), online: http://www.statcan.gc.ca/pub/89f0133x/89f0133x2006000-eng.htm#8.
[155] Jeffrey Sack, C. Michael Mitchell and Sandy Price, Ontario Labour Relations Board Law and Practice, 3rd ed., (Markham: LexisNexis,, 1997) §3.305. Nowadays, the Board takes a more flexible approach to the question and in fact as a general matter does not consider that there is any reason not to place part-time workers and full-time workers them in the same bargaining unit; see the Board’s statements to that effect in, for example, International Union of Operating Engineers, Local 793 v. TWD Roads Management Inc., [2008] O.L.R.D. No. 2995, [2008] OLRB Rep. July /August 582. The Board determined in the TWD Roads case that the bargaining unit should consist only of full-time employees because both the union and the employer had agreed to that configuration.
[156] Katherine Marshall, “Part-time by choice”, (2000) 1:2 Perspectives on Labour and Income, online: http://www.statcan.gc.ca/pub/75-001-x/00200/5608-eng.html#SrcDef.
[157] For a statistical breakdown, see Vosko, note 5, 23, table 1.2. Also see Almey, note 154. According to Almey, “[i]n 2006, more than 2 million employed women, 26% of all women in the paid workforce, worked less than 30 hours per week at their main job, compared with just 11% of employed men. In fact, women have accounted for about seven in 10 of all part-time employees since the late 1970s.”
[158] 2008 figures provided by Statistics Canada show that over 73% of part-timers gave as their reasons for wanting part-time work caring for children, other family responsibilities, attending school or personal preference: Statistics Canada, Reasons for part-time work by sex and age group, 1, online: http://www40.statcan.gc.ca/l01/cst01/labor63a-eng.htm.) Of course, some of the reasons given suggests reasons that are not entirely voluntary from the employee’s perspective; the point, however, is that the individuals concerned were not in the position of wanting to be in full-time employment, but being unable to find it.
[159] Geoffrey England and Roderick Wood, Employment Law in Canada, 4th ed. (Markham: LexisNexis, 2005) 8-135; Dave Broad, Hollow Work, Hollow Society? (Halifax: Fernwood Publishing, 2000), 20 n. 129.
[160] The PEA has a provision that is anti-discriminatory in nature but subject to some qualification. Subsection 8(3) states that an employer can designate a position as one that “provides employment on a casual basis” and such positions may be excluded from a job class in determining whether the job class is male or female. Further, incumbents to the position are not entitled to any compensation adjustments that may be required in order to achieve pay equity. Subsection 8(4) limits the potentially discriminatory impact by providing that a position cannot be designated if the work requirements amount to at least one-third of the work involved in a full-time position or if the work in question is performed on a “regular and continuing” basis.
[161] The former Employment Standards Act provided for a right to a public holiday off with pay only to employees who worked at least twelve days in the four work weeks preceding the public holiday.
[162] ESA, 2000, note 96, s.24(1)(a) provides that an employee’s public holiday pay entitlement is equal to the wages earned in the four work weeks preceding the holiday divided by twenty. The calculation is based on an employee who works a five-day work week, and who has not been absent in the four weeks in question. Following the calculation, the employee will receive pay equivalent to one eight-hour day of work for the public holiday. However, in the case of a part-time employee the effect of the calculation is to pro-rate the entitlement.
[163] Statutory limits on hours of work are perhaps more helpful to part-time employees, in that there are daily as well as weekly maxima (eight per day and forty-eight per week in the case of the ESA, 2000). These limits, however, apply only in respect of working time for a given employer: ESA, 2000, s.17(1). The employee working in two or more part-time jobs for different employers could find herself working more than eight hours per day or even forty-eight hours per week in total without bumping up against the limits. If the employer establishes a regular work day of more than eight hours, the daily limit becomes the number of hours in that regular work day. The daily limit can be exceeded if the employee agrees in writing and the weekly limit can be exceeded if agreed to in writing and with the approval of the Director: ESA, 2000, note 96, ss. 17(2) and (3)).
[164] ESA, 2000, note 96, s. 22(1).
[165] Jean Bernier, The Scope of Federal Labour Standards and Nontraditional Work Situations (Submission to the Federal Labour Standards Review) (Quebec City, 2005), 24 n. 5.
[166] Labour Relations Act, R.S.O. 1990, c. L.2, s.6(2.1), added by the Labour Relations and Employment Statute Law Amendment Act, 1992, S.O. 1992, c. 21, s. 7(1). The Labour Relations Act was repealed by the Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, subsection 1(2), which replaced it with the current LRA, 1995, note 92, which does not contain any corresponding provision.
[167] O. Reg 285/02 under the ESA, 2000, note 96.
[168] Existing exclusions from protective coverage under the LRA, 1995 include agricultural workers, horticultural workers, and domestic workers employed in private homes. Agricultural workers are covered under the Agricultural Employees Protection Act, S.O. 2002, c. 16 [AEPA, 2002], the constitutionality of which is currently under reserve at the Supreme Court of Canada.
[169] LRA, 1995, note 92, s.3(a).
[170] O. Reg. 285/01, s.11(1) under the ESA, 2000, note 96.
[171] Ontario Ministry of Labour, “Homeworkers”, online: http://www.labour.gov.on.ca/english/es/pubs/factsheets/fs_homeworkers.php. Their statutory minimum rate of pay is 110% of the minimum wage: O. Reg. 285/01, s.5(1)4, under the ESA, 2000, note 96.
[172] Workers’ Action Centre, note 36, 19.
[173] Evelyn Encalada Grez, “Migrant Workers Reap Bitter Harvest In Ontario”, The Toronto Star (28 October 2008), online: http://www.thestar.com/article/525483; Vik Kirsch, “Migrant Workers to Address Firing”, Guelph Mercury (10 December 2008), online: http://news.guelphmercury.com/printArticle/414262.
[174] The ILO takes the position that the sending and destination countries both have responsibility for ensuring that migrant workers’ rights are enforced: International Labour Organization, Protecting the Rights of Migrant Workers: A Shared Responsibility (Geneva: ILO, 2009), online: http://www.ilo.org/public/english/protection/migrant/download/brochure_migrant_rights.pdf. As the ILO says, “Virtually all countries are countries of origin, transit, and destination”.
[175] Cranford and Vosko, note 29, 64-65.
[176] Workers’ Action Centre, note 36.
[177] One study showed that employment rates of persons with disabilities ranged from about 23.5% for persons with a memory-related disability to nearly 46% for persons with a hearing related disability (noting that the employment rate for those with a severe or total loss of hearing was 32%): Canadian Centre for Disability Studies, CCSD’s Disability Sheet No. 19 (2005): http://www.ccsd.ca/drip/research/drip19/index.htm. The data were based on the 2001 Participation and Activity Limitation Survey (PALS).
[178] Human Resources and Skills Development Canada, Indicators of Well-being in Canada, Work – Employment Rate, online: http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=13.
[179] Statistics Canada, Report on the Demographic Situation in Canada: 2005 and 2006
Edition (Ottawa: Statistics Canada, 2008), online: http://www.statcan.ca/english/freepub/91-209-XIE/91-209-XIE2004000.pdf.
[180] Anthony Reinhart, “A nation of newcomers”, The Globe and Mail (December 5, 2007) A1.
[181] Tina Chui, Kelly Tran and Hélène Maheux, Statistics Canada, 2006 Census: Immigration in Canada: A Portrait of the Foreign-born Population, 2006 Census: Findings, online: http://www12.statcan.ca/census-recensement/2006/as-sa/97-557/index-eng.cfm.
[182] Many of these workers take up residence in Ontario. In 2008, 66,875 temporary foreign workers alone arrived in Ontario: Citizenship and Immigration Canada, “Facts and Figures: 2008 Immigration Overview” RDM 4th Quarter (2008), online: http://www.cic.gc.ca/english/resources/statistics/facts2008/temporary/01.asp.
[183] Marina Jiménez, “Immigrants battle chronic low income”, The Globe and Mail (January 31, 2007) A5.
[184] Jiménez note 183.
[185] Kapsalis and Tourigny, note 20.
[186] Wayne Lewchuk, Alice De Wolff, Andy King and Michael Polanyi, “The Hidden Costs of Precarious Employment: Health and the Employment Relationship” in Vosko, ed., note 5, 141. For a brief statement of some of the health concerns associated with migrant workers, see Kerry Preibisch, “The Second Generation of Permanently Temporary Workers,” Presentation at Permanently Temporary: Temporary Foreign Workers and Canada’s Changing Attitude to Citizenship and Immigration Community Research Symposium (February 4, 2010) 14, online: http://ceris.metropolis.net/research-policy/CommunityResearchSymposium2010/PermanentlyTemporary.pdf. For the impact on hotel housekeepers, primarily immigrant women of colour, see Serena Liladrie, “Do Not Disturb/Please Clean the Room: The Invisible Work and Real Pain of Hotel Housekeepers in the GTA”, Policy Matters (January 2010), online: http://ceris.metropolis.net/frameset_e.html.
[187] Lewchuk, De Wolff, King and Polanyi, note 186.
[188] Galabuzi, note 61. Nursing provides an example of a highly gendered and racialized occupation in Canada in which its workers face significant negative health effects. Nursing in Canada is an occupation overwhelmingly (ninty-five percent) held by women and with a high concentration of racialized women. According to the National Survey of the Work and Health of Nurses, the first national study of its kind, nurses experience higher rates of work-related injuries and illnesses than workers in other occupations: André Picard, “Nurses’ Jobs Bad for their Health”, The Globe and Mail (December 12, 2006), A7.
[189] Institute for Work & Health, “New Canadian immigrants face less than ideal working conditions”(July 2008), online: http://www.iwh.on.ca/media/2008-jul-09. The death of seasonal agricultural worker Ned Peart is one of numerous stories reflecting the dangers faced by temporary migrant workers in Canada. The Jamaican-born Peart died on a Brantford Ontario tobacco farm after being crushed by a kiln in August 2002: Damion Mitchell, “Farm Worker Danger – Canadian Lobby Group Wants Enquiry Into Death of Jamaican” Jamaica Gleaner (December 20, 2004), online: http://www.jamaica-gleaner.com/gleaner/20041220/lead/lead1.html.
[190] Recent research has used a framework of “employment strain” to analyze the relationship between health and precarious employment. The employment strain framework allows for a broad analysis of experiences related to employment uncertainty, workload (effort to find work, balancing multiple employer demands), relational support (union presence, workplace support) and household insecurity (low income, health benefits and gender dependency). Research using this framework is particularly useful because it recognizes that the precarious nature of employment relationships can often have an impact beyond just the individual worker, and can extend to personal and community relationships: Lewchuk, De Wolff, King and Polanyi, note 186.
[191] de Wolff, note 152.
[192] Janet McLaughlin, “Challenges and Considerations: Providing Accessible Health Care for TFW”, Permanently Temporary: Temporary Foreign Workers and Canada’s Changing Attitude to Citizenship and Immigration Community Research Symposium (Toronto, February 4, 2010) 32, online: http://ceris.metropolis.net/research-policy/CommunityResearchSymposium2010/PermanentlyTemporary.pdf.
[193] Wayne Lewchuk, Alice de Wolff, Andy King and Michael Polanyi, “From Job Strain to Employment Strain: Health Effects of Precarious Employment” (2003) 3 Just Labour 23.
[194] Workers’ Action Centre, note 36, 17.
[195] Workers’ Action Centre note 36.
[196] Saunders, note 3.
[197] See, for example, the persons eligible to take English or French language classes under the services sponsored by the Ontario government: Ontario Ministry of Citizenship and Immigration, “Learn English or French”, online: http://www.citizenship.gov.on.ca/english/keyinitiatives/language.shtml.
[198] Workers’ Action Centre, note 36.
[199] Workers’ Action Centre, note 36.
[200] Law Commission of Ontario, The Law as it Affects Older Adults, Consultation Project: Shaping the Project (May 2008), online: www.lco-cdo.org.
[201] Arthurs, note 47, 47.
[202] On the application of “decent work” to the study of Caribbean and Latin American newcomers to Canada in precarious employment,see Luin Goldring and Patricia Landolt, “Immigrants and Precarious Employment: Brief One”, online: http://www.arts.yorku.ca/research/ine/research/publications.html.
[203] In 1965, for instance, the Ministry of Labour (then the Department of Labour) issued a report entitled Labour Standards and Poverty. According to the report, “labour standards legislation attempts to deal with various aspects of poverty by raising wages, improving working conditions, and opening up employment opportunities”: Ontario Department of Labour, Labour Standards and Poverty in Ontario (November 22, 1965), cited in Mark P. Thomas, “Setting the Minimum: Ontario’s Employment Standards in the Postwar Years, 1944-1968” (2004) 54 Labour/Le Travail 49.
[204] See Government of Ontario, Breaking the Cycle: Ontario’s Poverty Reduction Strategy (December 2008), online: http://www.growingstronger.ca/english/default.asp.
[205] Poverty Reduction Act, S.O. 2009 c.10 (“PRA”).
[206] PRA, note 205, s. 3.
[207] See Susan Sachs, “Liberty, equality, paternity”, The Globe and Mail (November 4, 2010) A16, explaining the difference in father leave take up in a number of countries, including Canada (low, but increasing) and Sweden (high), as a result of financial other incentives.
[208] For a very recent review of the range of meanings attributed to the concept of flexibility in employment see Thomas, note 22, 13-16. The fundamental question, as Thomas, among many others, notes, is: flexibility for whom?
[209] Stephanie Bernstein, Katherine Lippel, Eric Tucker and Leah F. Vosko, “Precarious Employment and the Law’s Flaws: Identifying Regulatory Failure and Securing Effective Protection for Workers” in Vosko, ed., note 5, 203, 211.
[210] Arthurs, note 47, 49. For a more extended discussion of “flexicurity”, see Arthurs, note 47, 254-256.
[211] On the changes, see Ontario Ministry of Labour, Complying with Employment Standards: What Temporary Help Agencies and Client Businesses Need to Know, online: http://www.labour.gov.on.ca/english/es/pubs/brochures/br_tempagencies.php and Your Employment Standards Rights: Temporary Help Agency Assignment Employees, online: http://www.labour.gov.on.ca/english/es/pubs/is_tha.php.
[212] One suggestion for a legal test to to distinguish own-account self-employed workers and entrepreneurs calls for the examination of the amount of capital invested, amount of income or number of workers the person in question employs: Judy Fudge, Eric Tucker and Leah F. Vosko, “Changing Boundaries in Employment: Developing a New Platform for Labour Law” (2003) 10 Canadian Labour and Employment Law Journal 361, 396. Other suggestions include borrowing concepts from competition law, such as product differentiation and barriers to entry, to draw the distinction.
[213] Workers’ Action Centre, note 36, 64-65. Quebec’s An Act Respecting Labour Standards, R.S.Q. c. N-1.1, art. 95 provides for joint liability of companies engaging subcontractors.
[214] In other provinces, statutory protections have been extended to certain vulnerable workers. For instance, the Employment Standards Code, C.C.S.M. c. E110, of Manitoba, as of June 2008, extends to agricultural workers protections such as proper termination notice, vacation pay, days off, work breaks, unpaid leaves and overtime and statutory holiday pay for workers at indoor factory farms: Manitoba Labour and Immigration. “Changes to Employment Standards in Agriculture” (June 2009), online: http://www.gov.mb.ca/labour/standards/doc,changes-agriculture,factsheet.html#q760.
[215] Bernier, Vallée and Jobin, note 4, 15.
[216] Code du travail, Première Partie, Livre II, Titre IV, Ch. III, art. L1243-8, online: Legifrance.gouv.fr, http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006901219&cidTexte=LEGITEXT000006072050&dateTexte=20100929&oldAction=rechCodeArticle. The treatment of temporary workers in France can be discerned from the conditions imposed on foreign employers who second their employees to France: Ministère du Travail, de la Solidarité et de la Fonction Publique: http://www.travail-solidarite.gouv.fr/informations-pratiques,89/fiches-pratiques,91/detachement-de-salaries,407/temporary-posting-of-workers-in,8988.htmle. In light of recent efforts to change French working conditions to respond to the impact of the recession, the French example is complicated. At least some changes would be to what might be called “standard” employment, such as the raise in the retirement age from 60 to 62 which has passed the lower house: CBCnews, “French retirement age inches to 62”, online: http://www.cbc.ca/world/story/2010/09/15/france-retirement-age.html. As this story indicates, the age at which a worker could obtain a full pension even if he or she has not paid in for the full required period would rise from 65 to 67 and Germany also plans to increase its retirement age from 65 to 67.
[217] Workers’ Action Centre, note 36, 51-52.
[218] See statistics as of June 2009 on the Ministry of Labour’s website: “Investigations and Inspections”, online, http://www.labour.gov.on.ca/english/es/pubs/enforcement/investigations.php.
[219] Ministry of Labour “Prosecution and Conviction Statistics”, online: http://www.labour.gov.on.ca/english/es/pubs/enforcement/convictions.php.
[220] Employment Standards Act, R.S.B.C 1996, c. 113, s. 79(1)(f); Employment Standards Code, R.S.A. 2000, c. E-9 and Employment Standards Regulation, Alta. Reg. 14/1997, Part 7. The Ontario ESA, 2000, note 96, provides for the imposition of administrative costs under some circumstances: see, for example, s.103(2) which provides for administrative fees when the employer pays the Director in trust for wages owing to an employee (rather than directly to the employee).
[221] Canada Labour Code, R.S.C. 1985, c. L-2, ss.240-242.
[222] In addition, the authority granted to employers to “name” employees whom they desire to return the following year, also represents a source of vulnerability rendering anti-reprisal provisions ineffective.
[223] LRA, 1995, note 92, C. 1, Schedule A, s.3(a). Agriculture workers are excluded by s.3(b.1).
[224] AEPA, 2002, note 168.
[225] The Supreme Court of Canada has reserved its judgement in Attorney General of Ontario v. Fraser (32968), on appeal from the Ontario Court of Appeal which held that the Agricultural Employees Protection Act, 2002 was unconstitutional: Fraser v. Attorney General (Ontario) 2008 ONCA 760, (2008), 92 O.R. (3d) 481. For a summary of the case before the SCC, see the Supreme Court of Canada website: http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=32968.
[226] For the Interim Report of the ILO Committee on Freedom of Association, see online: http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_146695.pdf.
[227] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, para. 82 [BC Health Services].
[228] BC Health Services, note 227, para. 82.
[229] A group of scholars argue that “there is no single form of workplace representation or collective bargaining that meets the needs of the wide range of types of self-employed workers”: Cranford, Fudge, Tucker and Vosko, note 35, 28.
[230] Unionization of agricultural workers has occurred in two provinces where they are permitted to bargain collectively, Manitoba and British Columbia. For example, the UFCW was successful in negotiating a collective agreement to cover seasonal migrant workers at a farm in Manitoba: UFCW Canada, “Ratification of UFCW Canada first-contract at Manitoba farm historic breakthrough for migrant workers” (June 23, 2008): http://www.ufcw.ca/Default.aspx?SectionId=af80f8cf-ddd2-4b12-9f41-641ea94d4fa4&LanguageId=1&ItemId=7a46affd-9f50-40a4-9ccf-d3b917af6fa0. The workers subsequently voted to decertify the union, however, although there were reports of threats of repatriation for supporting the union: for two different reports, see Jennifer deGroot, “How clean are your carrots?” Winnipeg Free Press (August 14, 2009), posted on the website of the National Union of Public and General Employees, online: http://www.nupge.ca/node/2490 and Aldo Santin, “Manitoba farm workers vote to leave union”, Winnipeg Free Press (August 8, 2009), online: canada.com: http://www.canada.com/business/Manitoba+migrant+farm+workers+vote+leave+union/1871739/story.html.
[231] See, for example, Roy J. Adams, “Fraser v. Ontario and International Human Rights: A Comment” (2009) 14 Canadian Labour and Employment Law Journal 377.
[232] Bernstein, Lippel, Tucker and Vosko, note 209, 211. Similarly, a prominent international law scholar asserts: “There is no labour market without rules…the critical issue is not whether to have rules but what kinds of rules and who creates them”: W. Sengenberger, “International Labour Standards in a Globalized Economy: The Issues” in Sengenberger and D. Campbell, eds., International Labour Standards and Economic Interdependence (Geneva: International Labour Office, 1994) 3,11, cited in Judy Fudge, “Beyond Vulnerable Workers: Towards a New Standard Employment Relationship” (2005) 12:2 Canadian Labour & Employment Law Journal 151. For an historical perspective, see Fudge and Tucker, note 89.
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