Time For Change
Response to Ministry of Labour Consultation Paper
Time for Change: Ontario’s Employment Standards Legislation
submitted on behalf of
Christian Labour Association of Canada (CLAC)
and affiliated locals
by
Ray Pennings, Public Affairs Director
Hank Beekhuis, Ontario Representative
August 23, 2000
Introduction
Thank you for the opportunity provided to us to make this presentation on behalf of the Christian Labour Association of Canada (CLAC) and its affiliated locals. CLAC is a multi-craft independent trade union that represents workers through collective bargaining and workplace representation on the basis of Christian social principles.
Our 25,000 members are covered by over 500 collective agreements across Canada, almost half of whom live and work in the province of Ontario. In this province, CLAC has a particularly strong presence in the long-term health care, industrial construction, and service sectors, although we have some members working in almost every sector of the economy.
Given the limited time available to us, our presentation will involve two parts. We will start with an overview and discussion of some broader principles which we believe need to be considered as the government reviews the Employment Standards Act. We will then provide specific input on some of the suggestions and details contained in the Discussion Paper.
General Principles:
The purpose of this exercise, as outlined in the Discussion Paper, is to implement the Government’s objectives relating to family-crisis leave and allowing for more flexible work arrangements, as well as to clarify and modernize the legislation. We heartily support the focus on providing protection for workers who face challenges juggling their family and work commitments, and welcome legislated provisions for family-crisis leave.
While we can support the need for both clarifying and modernizing the Employment Standards Act, we do have some concerns about how this translates into practice.
- Providing for Local "Mutual Agreement" must recognize and protect those who are vulnerable and cannot provide genuine input.
It must be kept in mind that the Employment Standards Act has its primary application in a non-union environment, and establishes minimum levels of protection for employees. By definition, those for whom this legislation has the most direct relevance are those near the bottom of our socio-economic ladder.
We readily appreciate and understand that across-the-board rules that apply to all are not necessarily the most optimal way of dealing with a situation in a local circumstance. However, we must recognize that when we provide for increased local flexibility that requires "mutual agreement" between an employer and individual employee, the worker is often not in a position to honestly participate in that decision-making. When you are dependent on your near-minimum wage job to buy the groceries and pay the rent, and can’t afford to miss a single pay cheque, there is a huge imbalance in the relationship between the parties that are expected to "mutually agree."
Although the law applies to a much broader segment of society, the effects will be disproportionately felt by workers who are most vulnerable, and we must take care that in our attempts to increase local flexibility, we do not take away protection for workers who need it the most.
- Exemptions should be minimized and more workers protected by the Employment Standards Act.
A related principle that must be considered regards the applicability of the Act. The Discussion Paper recognizes that the various exemptions and definitions contained in the Act result in the exclusion of approximately 20% of the workforce. While we are not sufficiently involved in the women’s garment industry to make informed recommendations on transitional arrangements for this sector, we support bringing them under the ESA umbrella in a manner that the minimum standards (including minimum wages) are enforced in this sector. Although the ESA has applicability to many workers whose working conditions far exceed the minimum standards, we are especially concerned that those who are currently exempted but whose working conditions are near the bottom of our social-economic ladder be granted protection.
- Modernizing the Act requires protection for the religious practices and observances for people of different faiths, and must ensure that a weekly day of rest is meaningfully protected.
The Discussion Paper outlines various proposals designed to protect a weekly day of rest provision. These, combined with the existing protection for retail workers outlined in Section 50 of the ESA, at least in theory provide protection for workers who wish to observe a weekly religious day on Sunday. However, not enough is done to protect those who wish a religious day other than Sundays, or to provide effective protection for those who wish to exercise their right to observe their religious day of the week.
The current provisions allow that an employee can accept an assignment of work and "then refuse the assignment only upon giving the employer notice at least 48 hours before the first hour of work on that day." In practice, worker availability is a crucial hiring determinant, particularly for part-time retail employees, and many employees simply never get the opportunity to be hired if they wish to maintain a weekly day of religious observance. In order to take advantage of the protections outlined in the legislation, it is practically necessary for employees to mislead their employer in the hiring process, a practice that goes against the religious practices which the legislation is designed to protect, not to mention the legal issues involved in misleading an employer during an interview process. An abundance of anecdotal evidence (we are not aware of formal studies) exists to demonstrate that the current protections do not work.
We recommend that as part of the review process, the protection of religious observance days be reviewed. Changes should be implemented to both protect those who observe religious holidays or weekly religious days other than those listed in Section 50.2, as well as to ensure that the rights outlined in the Section can be meaningful to employees without requiring them to mislead their employers before exercising those rights.
Responses to Particular Proposals:
Hours of Work and Overtime:
We agree that the current permit system is not working effectively. However, if the government is to move in the directions outlined in the Discussion Paper, we strongly urge that the averaging of overtime be removed from the scheme. If there is no accountability to any outside body to protect an employee from an intimidating employer ("you will agree to these terms or I won’t hire/employ you"), employees will be unfairly exploited.
Under the current arrangements of averaging overtime, employees can work 88 hours (60 in week one; 28 in week two) without receiving any overtime pay. Revising it to three weeks could result in 132 hours (72 in week one; 30 in each of weeks two and three) without any overtime. If there is no permit system, then overtime pay is the only tool to prevent serious abuse – not only for the workers involved, but also inevitably in health and safety concerns.
In addition to the weekly rest periods outlined, there needs to be explicit provisions that the rest break and meal provisions apply in overtime circumstances.
Vacation With Pay:
Taking vacation by the day clearly responds to the desire of many workers who would welcome this measure. We fear that this may result, however, in some employees using all of their vacation to take care of personal and business needs, and never really achieving any sustained break from work. The consequences, not only to the individual, but also to co-workers and society when workers do not have any vacation are well documented. Perhaps the compromise is requiring one week to be taken as a block and allowing the remainder to be taken in day increments.
Public Holidays:
We support the suggestions to remove the complexity regarding holiday qualifiers. We have a concern that the choice provided to workers and employers regarding those who have to work on holidays is not an equal one. If you elect time-and-a-half for working plus holiday pay, you get a total of double-time-and-a-half. If you work for regular pay and take another day at regular pay, you get a total of double time. While the arguments for providing flexibility to meet personal and business needs are valid, they should not be clouded by a financial difference between the packages.
Family Leave:
The proposals regarding family leave are laudatory. The question is: "Why does this have to be restricted to workplaces with 50 or more employees?" While obviously smaller workplaces would be less able to bear the 10 absences per employee, perhaps a sliding scale (0-10 employees - 3 days; 11-20 employees - 5 days; etc.) could be put into place. Much of this absenteeism already exists, but the present system makes it difficult for everyone. There is merit to ensuring that the principle of protecting family crisis leave apply to all employees, with a sliding scale in place to make the implementation of this reasonable.
Regarding the discussion questions posed regarding pregnancy and parental leave, it seems abundantly clear that pregnancy leave should be allowed to start at the time of a live birth, even if that occurs more than 17 weeks before the expected date of birth. The timing of a premature birth is obviously beyond the control of any individual, and it only makes sense that the worker be protected according to the objective of pregnancy leave.
Definition of Employee:
As outlined in our introductory remarks, we believe that the Act should apply as broadly as possible. We are all aware of the various work "arrangements" which are being made, particularly in certain sectors of the economy, to avoid payroll-based costs by considering employees to be independent contractors. In addition to the considerations outlined in the Discussion Paper, we suggest that workers be considered employees, and the relationships be subject to the ESA, unless it can be shown that the employee derives income from one or more other independent employers (use LRA related employer provisions) doing a similar type of work. Although individual employers and workers may be able to gain competitive advantages and both be financially advantaged by framing the relationship as a contract rather than an employment relationship, these arrangements are really "freeloading" arrangements regarding various social programs, and the potential for abuse is significant.
Structure and Enforcement:
The complaints-based nature of enforcing the Employment Standards Act will always result in an inconsistent application. While the efficiency with which complaints are dealt with, and the effectiveness of the deterrents vary, depending on the economic environment as well as the resources available to the Employment Standards Branch, the enforcement structure works as well as could be expected. Suggested improvements include mandatory postings in every workplace to inform workers and ensure they are informed about their rights and who to contact in order to enforce these rights.
We strongly agree with the suggestion that anti-reprisal provisions would assist in ensuring compliance with the Act. We would suggest that the Ontario Labour Relations Board be given the powers to reinstate and/or compensate under these provisions.
Other Employment-Related Legislation
There is merit in the proposals to incorporate the various other employment-related legislation into the Employment Standards Act, for purposes of clarity and consistency. We have outlined our concerns regarding the One Day Rest in Seven Act in our opening comments.
Conclusion
It is easy for exercises of this sort to become politicized. One can easily read into some of the proposals contained in the document, as well as in some of the public responses to this document, partisan motives and agendas at work. We have chosen to take and respond to the Discussion Paper at face value.
In particular, we would like to commend the objectives of protecting family-crisis leave into legislation. This is a progressive step forward. We have highlighted our concerns regarding the direction of various provisions where the effects will be to take away protection from those who are most vulnerable. If these provisions are incorporated unamended, that would be a major regressive step. We have also highlighted protecting workers who desire to observe religious days, and urge the government to consider positive changes in this area.
We look forward to the next step of proposals as we work towards a clarified and updated Act. We commit to working constructively with you towards positive change and wish you well in your deliberations.