Christian Labour Association of Canada

Brief Regarding Proposed ESA Changes

December 2001

Ministry of Skills Development and Labour
Policy and Legislation Branch
P.O. Box 9591, Stn. Provincial Government
Victoria, BC V8W 9K4

Re Employment Standards Act Review

Dear Madam/Sir:

While we have a number of comments and recommendations to make concerning proposed changes to the present Employment Standards Act (ESA), I want to begin with remarks of a general nature.

The Christian Labour Association of Canada does not assume that management and labour are, by definition, adversaries. To the contrary, we believe that the mutual interests of workers and managers/owners are best achieved through a relationship whereby the parties "grow companies together."

For that reason, we have emphasized both justice and reconciliation in the workplace. We take the position that the economic "pie" is best seen as something to mutually enlarge, not just to divide in the usual "zero sum" way.

With this unique approach (unique in Canada, at least), we have become one of the fastest growing unions in the country, with 25,000 members nation-wide and 7000 here in British Columbia. Both the present and past governments have solicited our suggestions regarding labour code changes. David Chesman, an important consultant to your government on labour matters, referred to us as a major player in the BC construction industry and invited us to comment on specific labour code articles relevant to that sector.

With that as context, we express our grave reservations about most of the proposed alterations to the present ESA. It is important for you to understand that the bases of our objections are not that:

1. We are suspicious of any proposal by the present government. In fact, we support a number of the changes made to the labour code thus far.
2. We believe that anything that makes companies more effective is really an attempt to break the union.
3. We are uncomfortable with change.
4. Solidarity requires that we support the "house of labour."

Rather, we feel that the proposed "flexibility" is self-defeating in the long run.

Firstly, the government's proposals appear to be a short-run, and with respect, short sighted response to the present skill shortage. In other words, given the enormous challenge of getting more skilled people into the system, the proposals appear to be based on getting more out of the present workers through taking away certain protections.

This does nothing to address long-term problems, but it does open the door widely to exploitation and labour unrest, neither of which commend themselves as sophisticated ways of improving BC's economy.

Secondly, the proposals are loaded on the management side. None of the suggestions demand anything of management by way of long-term improvements, Rather, in virtually every case, employees are to become "more flexible;" i.e., more vulnerable to whatever suggestions that management might make, however short-sighted. This reflects the same adversarial notions that unions are accused of having. One side must have more power (which is what 'flexibility' usually means) vis-?-vis the other.

And thirdly, the consensus of management practitioners and academics, economists and politicians, is that productivity gains are best achieved in ways that have long-run viability. Rather than buttressing power for one side in order to remove any obstacles that the other side might throw up as a defence, productivity gains are best achieved in the following ways:

1. Stronger business investment in machinery and equipment, production facilities, and research and development.
2. A significant increase in employee training, along with improved recruitment and motivation techniques.
3. Innovativeness in product development,
4. Taking advantage of freer trade.
5. Global business alliances.
6. Becoming more involved in the knowledge-based sector.

I realize that for any one company, only some of the above will apply. However, it is important to note that our major trading partners (and rivals) who have employed these approaches to productivity, rather than short-term solutions such as significant downsizing and greater 'flexibility', have prospered in ways that Canada has not, while providing similar wages and working conditions to ours.

It is with the above as background that I now turn to our specific comments regarding the ESA.

Part A: Who should be covered by the Act? What level of protection is needed?

A1. Do workers with higher incomes need the protection of minimum standards?

We advise that the provision remain unchanged. Workers who achieve incomes higher than $60,000 usually do so as a result of significant overtime. Once removed from the Act's protection, they would not receive overtime pay, and their income would fall below the $60,000 threshold. An example is our road-building members who work all kinds of hours in the summer season and thus earn over $60,000 per year. Exempting them from the Act would guarantee that they never earn this amount again.

A2. Should workers with a collective agreement under the Labour Relations Code be covered by the Act?

In the mid-1980s such an exemption was made. The result was a downward spiral in hours of work provisions; e.g., in the road building industry individuals were working 60 hours per week at straight time. In addition, there are unions in the low paying service sector and in some manufacturing sectors who need the ESA as a floor. To exempt such workers would strike at those who are often at the lowest levels of the pay scales. The ESA must be retained as a floor even in the unionized sector.

A4. Should managers be covered by the ACT?

There is many a seventeen year old at burger-flipping establishments who gets called a manager. In low-paying service sector jobs it is easy to call someone a manager and then exempt him/her from the Act. Such actions place undue hardship on those so classified. However, managers who are excluded by the Labour Relations Code could be excluded from the ESA.

A6. Should employment standards statutes provide that employers are in compliance if their workers agree to terms and conditions of employment different from that provided for in the Act?

This is the classic definition of the "yellow dog" contract, and loads the power even more on the management side. We are particularly concerned with option 2 relating to dependent contractors. They already have most of the risks downloaded to them as it is.

This part of the ESA should be strengthened, not weakened, with better enforcement provisions and penalties when the Act is violated.

Part B: How can we develop further flexibility in the workplace?

It is in this section particularly that we see so-called flexibility as a back door way of coping with the present skill shortage; i.e., getting more out of people in the system to compensate for a lack of skilled employees.

The overtime provisions in the Act are there to assure employees that they will not be exploited, and that they will be able to enjoy both a fair remuneration and a life outside of work.

Thus we submit that:

1. Overtime should be voluntary. Employees should have the right to refuse overtime except in cases of emergency (B1).
2. Allowance for the provision of time-limited and site-specific variances continues (B2).
3. There should be no changes to the standards referred to in B3. This section refers to notice time for shifts to be worked and notice time to be given in case there is to be a change in schedule.

Part C: How can economic competitiveness be achieved without compromising employee protection in the workplace?

C1. Is it necessary for wage statements to be in written format?

While many Canadians are well wired into the Internet, the majority still are not. Most workers in the low paying non-union service sector do not have access to the necessary equipment. It is too early in the electronic age to abandon written wage statements. In addition, these statements are often an employee's only proof that statutory deductions have been made and that vacation pay is accruing.

C2. Should the rate of overtime premiums be changed?

While we argue that reducing the overtime rate is unacceptable, we would allow for overtime to be banked at prevailing overtime rates and on a voluntary basis.

C3. Should statutory holiday pay overtime premiums be reduced as long as hours worked on a statutory holiday are recognized financially?

We find option 1 to be the only acceptable change to the current provisions.

C4 and C5 regarding the filing of complaints.

We agree that the time to file complaints could be shortened. Justice delayed is justice denied even in cases where the employee is the one being exploited. The complaint should be raised expeditiously and dealt with in the same way. Enforcement should continue for a period of up to two years. Should the employer be found to have violated the Act, there should be a serious penalty for such a breach.

C6. Is the payroll record keeping required of employers reasonable?

Three years is adequate.

C7. Are the termination provisions fair to both employers and employees?

We find the options being explored to be puzzling in that they appear to provide for no-fault type arrangements that would effectively reward the guilty at the expense of the innocent.

C8. What are other options for enforcement of employment standards?

Option 3 appears to simply encourage law breaking; option 7 does the opposite. We find options 6 and 7 to be worth considering. We suggest that the enforcement provisions of the ESA be strengthened to discourage violations. Upon a complaint being filed by any employee regarding her/his employer, the department should have the right to investigate the complete payroll of the employer. If any further violations of the Act are found, the officer must have the power to order that these matters be corrected, up to a period of two years retroactive. The ESA should further provide for penalties of an amount equal to the amounts owing as fines.

C9. Other ideas and concerns.

We draw to your attention the situation of the live-in care worker. Currently these individuals are excluded from the hours of work and overtime provisions under section 34 (1) q of the Employment Standards Regulations. Section 16 of the Regulations requires only a minimum wage of $80 per day or part of day rather than the normal minimum wage provisions accorded other workers. Although flexible work schedules work well for these employees, the working conditions tend to be very poor, given the lack of any hours of work or overtime provisions or protections. We request that you turn your attention to this matter of lack of protection for live-in support workers.

Thank you very much for the opportunity to voice our opinions and concerns. We are as anxious as anyone that the economy of the province be turned around. We simply encourage the government to emphasize methods that have long-term potential, rather than short-term and expedient changes that meet political deadlines and promises at the expense of the labour/management relationship and the worker's quality of life.

Sincerely,

John R. Sutherland
Public Affairs