A. Specific Forms of Precarious Employment
Ontario’s legal framework does not impose limits on the use of precarious forms of employment. Indeed, the framework provides considerable opportunity for labour flexibility. As discussed above, the legal regimes of employment have differential impacts on workers according to the form of employment, specifically temporary employment, own-account self-employment and part-time employment.
1. Temporary Employment
Temporary employment constitutes 12.5% of all employment in Canada[131] and there are about 700,000 temporary jobs in Ontario.[132] According to one account, workers engaged in temporary employment in clerical, manufacturing and high technology sectors receive around half the pay of permanent employees in those sectors. The percentage of temporary workers who have access to benefits is low, with less than ten percent receiving extended health care; that number drops to two percent for dental benefits. Moreover, temporary employment has one of the higher rates of workplace injury.[133]
Temporary employment can be broken down into different types including contract or term, agency, seasonal and casual or “on-call” employment.[134] The level of precariousness varies across these types and, therefore, the impact of temporary employment is not uniform. Temporary forms of employment associated with Canada’s temporary migration schemes may also be included. These include the Seasonal Agricultural Worker Program, the Temporary Foreign Worker Program and the Live-In Caregiver Program (even though the last is a vehicle for obtaining permanent residency, it is based on predetermined work arrangements). There have been increases in all these programs. For example, in 1974, the first year of the program, 264 workers came to Canada on the SAWP program; by 2009, the number of workers entering Canada under SAWP was 17,000, with the majority working in Quebec and Ontario.[135] The prominence of temporary labour migration to Canada has risen over the past few years: between 2004 and 2008, the number of temporary foreign workers entering Canada increased over 75%.[136]
Many temporary workers receive their employment through temporary help agencies. Increasingly, businesses are turning to these agencies to fulfill their human resource needs. In the 1990s some 1,300 temporary staffing and employment agencies were in operation in Canada generating revenues of $1.5 billion. By 2004, the number of agencies surpassed 4,200 with revenues in excess of $6 billion, sixty percent of which was generated in Ontario.[137]
Temporary help agency employees, like term contract employees, work on a transient basis; they might work for a period of a few days, weeks, months or, in a few cases, even years, but the work assignment is, ostensibly at least, provisional in character. The difference between the two types of employees is that the while the term contract employee performs work for her or his employer, the temporary help agency employee performs work for her or his employer’s (that is, the agency’s) client.
The protections offered through the legal framework often are unattainable for temporary workers. These workers often lack access to extended medical and other benefits, and paid sick leave.[138] Other statutes that grant employees rights or accord them protection, such as the Human Rights Code, OHSA, WSIA, 1997, the Pension Benefits Act (“PBA”)[139] and the PEA do not distinguish between temporary and permanent employees. Under certain provisions in some statutes, however, the fact that an employee is in a temporary position may have an impact on their statutory rights even if the provisions in question do not explicitly make such a distinction. Many rights under the ESA, 2000, for example, depend on the employee’s length of service. While such qualifying periods apply equally to permanent and temporary employees, temporary workers who are employed only for a short term often will have greater difficulty meeting them. For example, employees employed for fewer than three months are not entitled to notice of termination;[140] those employed for fewer than five years are not eligible for severance pay.[141] Pregnancy and parental leave entitlements are available after having been employed for thirteen weeks.[142]
Similarly, while neither WSIA, 1997 nor the PBA explicitly denies protection to temporary employees, access to certain rights under those statutes is dependent upon satisfying length of employment thresholds that may tend to exclude those working on short-term contracts. Thus a worker who has recovered from a workplace injury has no right to be reinstated in employment under WSIA, 1997 if she had not been continuously employed for at least one year as of the date of the injury,[143] and an employee has no right to join an employer-provided pension plan under the PBA until she has been continuously employed for at least twenty-four months.[144]
Just as several statutory rights and protections are dependent upon meeting a length of employment qualification, there may also be contractual entitlements that are available only to those employees who meet a specified service threshold, such as increased vacation time once certain employment milestones are crossed. Employers are, of course, under no obligation to offer employees more than is required by statute (which in the case of annual vacation time is two weeks, with no escalation based on length of service).[145] Therefore, these above-the-minimum contractual rights, where they are provided, will vary from employer to employer, and they may also vary according to whether an employee is temporary or permanent, since Ontario law does not require equal treatment between these employees and those hired on an indefinite basis.
Even where they are not excluded outright, temporary workers may find it difficult or impossible to meet eligibility requirements, particularly if these are based on continuous rather than total service. A long-serving “temporary” employee who experiences even brief interruptions in his work with an employer might thus never become entitled to more than the two weeks’ vacation required by the ESA, 2000, notwithstanding that his employer, like many, offers additional vacation time to all but the most junior staff. If he has had term contracts with a number of different employers over time, his right to vacation will be based on his service with his current employer only,[146] so that even if that employer does offer enhanced vacation entitlements to temporary employees, she may never qualify.
With respect to collective bargaining rights, the LRA, 1995 does not draw distinctions based on temporary status. Although arguments have sometimes been made that permanent and temporary employees do not have a sufficient community of interest to be placed in the same bargaining unit, and although such arguments have succeeded before the labour relations tribunals of some other Canadian jurisdictions,[147] the Ontario Labour Relations Board has not found it inappropriate to include both permanent and temporary employees in the same unit.[148]
2. Own-Account Self-Employment
In 2000, self-employment constituted 16% of employment in Canada.[149] There is a tendency to treat entrepreneurship and self-employment as synonymous. However, recent empirical data demonstrate that “[t]here is no generic category of self-employment”.[150] Across developed countries, rates of self-employment rose in the 1980s and escalated during the 1990s.[151] In the 1990s, over forty percent of new employment emerged in the form of own-account self-employment.[152] This growth in self-employment was accompanied by a deeper concentration of women in own-account self-employment, with perhaps a disproportionate number of immigrant women engaged in self-employment.[153] In 2006, 11% of women with jobs were self-employed, an increase of 2% since 1976 and “women accounted for 35% of all self-employed workers [in 2006], up from 31% in 1990 and 26% in 1976”.[154] Although self-employment is often equated with entrepreneurship, with control of the risks of the production process or the accumulation of capital, self-employment often resembles employment rather than entrepreneurship.
There is difficulty in determining the legal status of self-employed workers. In many employment statutes protections are available only for “employees” or “workers” and not for the self-employed or (in)dependent contractors. Workers who are not “employees” in the conventional legal sense are covered by some statutes in the legal framework, such as the LRA, 1995, but not others, such as the ESA, 2000 and the WSIA, 1997 (though they can opt in to the latter). Thus, the categorical exclusion of “the self-employed” from statutory protections denies workers who are not truly self-employed the benefits of those protections, which increases the precariousness of their employment.
3. Part-Time Employment
Although the idea of part-time employment is reasonably clear, the number of hours of work per week at which an employee would be considered a “part-time” as opposed to “full-time” employee vary significantly. In many instances, the term “part-time” is not defined within employment statutes. For example, the Ontario Labour Relations Board, which historically tended to put part-time and full-time employees in separate bargaining units on the view that there is a lack of community of interest between the two groups, has used twenty-four hours per week as the dividing line.[155] Statistics Canada considers anyone who is required to work fewer than thirty hours a week to be engaged in part-time employment.[156]
If views as to what constitutes part-time employment vary, so do the motivations of employees to take part-time employment and the motivations of employers to offer it. This is especially important as part-time employment is often performed by women.[157] Almost three-quarters of those who work part-time apparently do not want to work full-time; their reasons include family responsibilities, school attendance and simple preference for fewer hours of work.[158] Indeed, there may be some individuals in full-time positions who would rather be working part-time. In other cases, however, the part-time worker would prefer full-time employment (or at least more part-time hours) but be unable to get it. From the perspective of employers, offering part-time work may be a way of retaining a valued employee who no longer wishes to work full time; it may also be a means of handling demand at peak periods. However, the impetus may also lie in the fact that part-timers tend to be a relatively inexpensive option, as part-time workers, like certain temporary workers, typically receive lower wages and fewer benefits than full-time employees.[159]
Part-time workers do fare marginally better than temporary employees insofar as rights under Ontario’s legal regimes of employment are concerned.[160] There are no statutory entitlements denied to workers simply because of their part-time status. For example, while at one time some part-time workers were denied full public holiday rights,[161] the public holiday provisions in the current ESA, 2000 do not exclude any employees on the basis of the amount of working time they have completed.[162]
While part-time employees are in a stronger legal position than temporary employees, there is still a large scope for differential treatment.[163] The most obvious and important gap in protection against discrimination is that Ontario law does not require part-time workers be paid at the same wage rate as full-timers, nor, pensions aside, that they receive the same benefits as full-time employees. Further, some have argued that since overtime pay entitlements are based on a weekly threshold (forty-four hours in the case of the ESA, 2000),[164] they implicitly exclude part-time employees. The part-time worker who works very long hours over the course of only a few days each week is denied overtime pay because the threshold is never met. Similarly, if the same worker holds multiple part-time jobs with different employers, and the total number of hours worked exceeds the threshold, the worker still will be denied overtime pay as the number of hours worked for any one employer is not sufficient.[165]
The Ontario Labour Relations Board has reversed its historical position that part-time employees and full-time employees must generally be placed in separate bargaining units. Despite the repeal of short-lived statutory provisions deeming a unit that includes both as a unit appropriate for collective bargaining,[166] the Board allows them to be put in the same unit. There is an ongoing debate as to whether this is of benefit to part-time workers. On the one hand, a larger bargaining unit generally implies greater bargaining power for the union representing the employees concerned. On the other hand, there are questions about whether the two groups share a “community of interests” which has traditionally been offered as a reason for placing part-timers and full-timers in separate units.
B. Differential Treatment of Categories of Workers
Differential treatment under Ontario’s legal regimes of employment occurs not only around forms of employment. Certain categories of workers also are differently affected. For instance, agricultural workers receive limited coverage under employment statutes. Under the ESA, 2000, for example, the category of agricultural workers is divided into sub-categories which receive varying degrees of statutory coverage.[167]
With respect to collective representation, agricultural workers also are excluded from coverage under the LRA, 1995 and instead receive coverage under a separate regime of collective organization. That regime permits workers to form an association, but denies them the right to bargain collectively and to take collective action through strike activity.[168]
Domestic workers also receive differential treatment under the legal regimes of employment. Domestic workers, defined as individuals employed directly in private homes (not by a business or agency) performing housekeeping duties or providing child, elder or support care and assistance, are entitled to the broad range of protections under the ESA, 2000. However, for these workers, enforcing their rights under the ESA, 2000 and other applicable statutes, is complicated by their specific vulnerability vis-à-vis their employer. This vulnerability stems from their employment within the home. It also may arise from such factors as their immigration status, language and gender. Domestic workers are precluded from taking collective action as a result of their exclusion from coverage under the LRA, 1995.[169]
Homeworkers also receive differential treatment. Not to be confused with homemakers, who perform homemaking services in a householder’s private residence,[170] homeworkers are people who conduct paid work in their own homes for a business or agency. The work includes online research, telephone soliciting and sewing. While they receive many of the protections of the ESA, 2000,[171] their position of relative insecurity derives from their invisibility and isolation. Again, enforcement is a major obstacle.
C. The Threat of Reprisals and Ontario Workers
Reprisals represent another source of differential impact. The insecurity of precarious employment reduces the impact of anti-reprisal provisions in employment statutes. Reprisals (or the threat of them) act as a deterrent to the enforcement of rights through established legal channels. Temporary agency workers find it particularly difficult to prove they have faced reprisals for exercising a statutory right when a client company, which bears no formal responsibility for terminating the employment contract, can assert that an assignment has ended. Workers referred by temporary help agencies are vulnerable to not being referred again if they attempt to enforce their rights.[172]
The threat of reprisals is real for temporary migrant workers as well.[173] By virtue of the restrictions on labour market circulation and the authority granted to employers to repatriate workers without justification, seasonal agricultural workers are hard pressed to utilize statutory protections against reprisals.[174] In effect, therefore, specific federal migration policies interfere with provincial jurisdiction over employment by restricting the functioning of anti-reprisal provisions.
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