Feedback on Law Commission of Ontario Vulnerable Workers and Precarious Work: Interim Report

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1 Feedback on Law Commission of Ontario Vulnerable Workers and Precarious Work: Interim Report Workers Action Centre Parkdale Community Legal Services September 25, 2012

2 2 Workers Action Centre and Parkdale Community Legal Services Workers Action Centre The Workers Action Centre (WAC) is a worker-based organization that strives to improve wages, working conditions and labour legislation for people in low-wage and precarious work. WAC works with thousands of workers a year that are predominantly recent immigrants, racialized workers and women workers in precarious jobs that face problems at work. The Workers Action Centre provides information about workplace rights, and strategies to enforce those rights. Parkdale Community Legal Services Parkdale Community Legal Services (PCLS) is a poverty law clinic providing assistance and legal representation concerning employment standards, employment insurance, human rights, and occupational health and safety matters. In addition, PCLS works with communities in low-wage and precarious work to improve labour standards. For information contact: Mary Gellatly , ext 246 gellatlm@lao.on.ca Parkdale Community Legal Services 1266 Queen Street West Toronto, ON M6K 1L3

3 3 Workers Action Centre and Parkdale Community Legal Services Feedback on the Law Commission of Ontario s Vulnerable Workers and Precarious Work Interim Report 1 The Law Commission of Ontario s (LCO) interim report confirms what the Workers Action Centre has been saying; that work today has become less secure, lower paid, has fewer benefits, if any, and provides little protection against workplace abuses and injury. The report also demonstrates that it is women, immigrants and racialized workers that are most in precarious work. After receiving feedback on the interim report, the Law Commission will give its final report and recommendations to the Ontario government. The interim report focuses on important improvements to employment standards and health and safety protections, including recommendations such as: Review exemptions to the Employment Standards Act (ESA) that allow lower standards in some types of work (for example no minimum wage in farming, no overtime for information technology workers) balancing employer needs with the need to reduce precarious work and provide basic minimum standards; Review of minimum wage and create process for future increases to the minimum wage; Equal pay for workers in equivalent positions (e.g., part time and full time); Explore providing benefits (such as health and dental) to workers in nonstandard work; Employers provide ESA information to all new workers in language of employees if possible, and written notice of employment status and terms of employment; Substantially increase proactive enforcement of both employment standards and health and safety, especially in sectors that are at high risk for violations; Expand the time limits and increase the monetary cap for workers trying to recover unpaid wages; Provide a process for third party complaints to trigger inspections of workplaces to protect workers; The Ministry of Labour act to reduce misclassification of employees as self employed or independent contractors (which employers do to reduce wages and entitlements); Providing person-to-person support for workers making a claim for unpaid wages through the Ministry of Labour; and, Review the requirement that workers first try to enforce their ESA rights with their employer before being allowed to file a claim at the Ministry of Labour. 1

4 4 Workers Action Centre and Parkdale Community Legal Services The report makes some specific recommendations to protect temporary foreign workers: hear complaints of reprisals before a worker is repatriated or deported; help workers make claims of violations; federal and provincial sharing of information about temporary foreign employment to increase protections of workers; extend protections currently given to live-in caregivers against fees for work and seizure of passports to all temporary foreign workers; Ministry of Labour increase proactive inspections and enforcement campaigns at workplaces and sectors with temporary foreign workers; and, Pilot mobile medical clinic for migrant workers to provide care or help filing claims (ESA, workers compensation). We urge the LCO to carry forward the above recommendations and the many other strong recommendations in its Interim Report to protect people in precarious work in its report to the Ontario Government. However, there are some key issues that still need to be addressed to more fully address precarious work and better protect those made vulnerable. Set out below are some recommendations for addition to the final LCO report. Purpose Clause: We support the LCO s call for a broad policy statement in a preamble to the ESA (recommendation 2). However, such a statement should turn to the purposes of the Act rather than its administration of the Act. The ESA is remedial legislation meant to address power imbalances between employers and employees, setting out minimal standards of work that society expects. Following on the International Labour Organization (ILO) concept of decent work, the purpose of the ESA should ensure jobs that provide income, employment security, equity and human dignity. 2 Similarly, Arthurs, in his Federal Labour Standards Review, concluded that a principle of decency at work must be treated as pre-eminent in labour standards legislation. 3 Shifting employer liabilities: The Law Commission recognizes the role of fissuring of employment in creating precarious work. However, the Interim Report does not address how the employment relationship is being fissured as employers externalize employment liabilities on to intermediaries such as temporary help agencies, contractors, and, in the case of misclassified independent contractors, on to workers themselves. The report recommends exploring processes of reaching out to the top echelon of industry to 2 International Labour Organization (ILO), Towards a Policy Framework for Decent Work (2002) 141:1-2 International Labour Review, Harry Arthurs, (2006) Fairness at Work: Federal Labour Standards for the 21 st Century. Ottawa: Human Resources and Skills Development Canada.

5 5 Workers Action Centre and Parkdale Community Legal Services address ESA non-compliance among workers subcontracted to small enterprises and temp agency workers. While a step in the right direction, the gap must be closed on employers ability to shift liability for employment standards and safety on to other entities. Companies that engage subcontractors should be jointly liable for monetary obligations and other ESA entitlements. 4 Joint labour-management employment standards work council pilot project The LCO rightly recognizes that employees need voice in ensuring labour standards. In non-unionized workplaces, such councils risk transferring responsibility for enforcing the ESA to workers who have least power to do so. Such councils would not have the same economic imperative on the employer that Health and Safety committees have due to WSIB premiums and Health and Safety Act enforcement and penalties. Councils in nonunionized workplaces would need to confer power on worker members to enforce minimum standards given the power imbalances that the ESA seeks to remedy. Further, they would require externally provided ESA training, allow an employee complaints procedure with the Ministry of Labour where reprisals or violations of the Council mandate takes place. Non status workers The LCO report recognizes that workers without regularized status to work in Ontario are highly vulnerable to exploitation by employers. And, even while the Ministry of Labour does enforce ES for non-status workers, the LCO felt the complexities facing this group of vulnerable workers fell beyond the scope of its project. There are indeed many factors contributing to having or losing status to work in Canada; in our experience, it is often employers who determine whether a worker will have status (e.g., renewal of labour market opinion and termination of temporary foreign workers). To comprehensively address precarious work and vulnerable workers as the report recommends in recommendation 52, consideration must be given to non-status workers. Temporary Foreign Workers There is a disjuncture between federal administration of the temporary foreign work program and the regulation of work done under that program in Ontario. The LCO recommendations do not go far enough to improve regulation and protect migrant workers. Ontario should adopt a proactive system of employer registration, recruiter licensing (including the mandatory provision of an irrevocable letter of credit or deposit), mandatory filing of information about recruitment and employment contracts, and proactive government inspection and investigation in line with the best practices adopted under Manitoba s Worker Recruitment and Protection Act and Regulations. 5 4 This would bring Ontario in line with Quebec s Act Respecting Labour Standards that makes companies that engage subcontractors jointly liable for monetary obligations. 5 Fay Faraday (2012) Summary Report, Made in Canada: How the Law Constructs Migrant Workers Insecurity. Metcalf Foundation. P. 34

6 6 Workers Action Centre and Parkdale Community Legal Services In addition, we support the recommendations of the Industrial Accident Victim s Group of Ontario and the Migrant Workers Alliance for Change, including: Eliminate the exclusion of domestic workers from the OHSA; The Ontario Government must develop a comprehensive strategy that addresses prevention of pesticide/chemical exposure among migrant farm workers, including regular and unannounced inspections by the Ministry of Labour; End the practice of deeming migrant workers by the WSIB and devise a system to pay for healthcare-related transportation costs upfront so that injured migrant workers are not financially barred from obtaining healthcare; Leadership from the Ontario government in seeking expanded protection for migrant workers through inter-jurisdictional cooperation with the federal government, including issuing open work permits in cases where workers make complaints about labour law violations; and, Following the recent Metcalf Foundation report, ensure that migrant workers can immigrate to Canada and arrive with status. 6 6 Fay Faraday (2012) Summary Report, Made in Canada: How the Law Constructs Migrant Workers Insecurity. Metcalf Foundation. P. 7