See also: The Changing Workplaces Review
Our chief purpose in issuing this Interim Report is to advise Ontarians of the range of issues that have been identified and the options for change that we are being asked to consider.
The Changing Workplaces Review has generated much interest. In 12 days of public hearings around the province we have heard from over 200 organizations and individuals and received more than 300 written submissions. We have also met with a variety of stakeholder representatives, ordinary citizens and experts. Before making final recommendations to the government, we felt it advisable to report on the issues identified and the proposals for change that have been suggested so that interested parties will have a chance to make further submissions.
This Review is the first independent review commissioned by the Ontario Government seeking recommendations for legislative change of the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA) in more than a generation. It is the first independent review of the two Acts undertaken together, focusing on changes in the workplace as an integrated problem in both the unionized and the non-unionized workplaces.
This Review is occurring after a lengthy period of significant changes in the economy of Ontario and in its workplaces. Not surprisingly, because of the breadth of the Review, combined with the scope of change, there is a very large number of issues for us to canvass. Of necessity, we must prioritize and be selective with respect to the issues that we examine in depth.
The scope of our Review is very broad and, while we intend to deal with a variety of matters, in keeping with our mandate, our key focus will be on vulnerable workers in precarious jobs and the need for legislative amendments to address some of the issues facing these workers. At the same time, we will be mindful of the interests of employers and the potential impact of any proposed change and will carefully consider changes being sought by employers that could impact employees.
The Interim Report is comprised of 5 Chapters: Chapter 1 (Introduction), Chapter 2 (Guiding Principles, Values and Objectives), Chapter 3 (Changing Pressures and Trends), Chapter 4 (Labour Relations) and Chapter 5 (Employment Standards).
We invite the constructive views of Ontarians on the issues and the options set out in the Interim Report. We expect that submissions will be thoughtful, constructive and informative. We encourage interested parties to provide comments in writing as soon as is practicable, in line with the consultation period as posted on the Ontario Ministry of Labour website. We will continue to accept written submissions until the deadline but, practically speaking, the earlier we receive them the better. We strongly encourage stakeholders not to wait until the last minute to make their submissions.
Some caution should be exercised before jumping to any conclusions about the options canvassed in the Interim Report. With perhaps one exception in Chapter 5 – in the section on exemptions to the ESA – we have not yet come to any conclusions about our recommendations and we have an open mind on all issues. The options canvassed are purposively inclusive and sometimes contain proposals that are conflicting or contradictory. In almost every case, the status quo is an option.
While we have made an effort to be expansive in the listing of options, we cannot be limited in the end result to only the listed options. We may receive new good ideas in the balance of our consultation process, or we may think of additional options ourselves. Having said that, we certainly wish to avoid, to the extent possible, anyone being taken by surprise by the substance of the recommendations we ultimately will make.
In the “Guide to Consultations” paper, we asked for the views of the community as to the values and principles we should employ in coming to our recommendations, and we received comments and ideas from many sources. We take this opportunity to advise the community as to our views of the appropriate principles and objectives as well as some of the considerations that will guide our recommendations.
In addition, we have heard and read much, some of it contradictory and controversial, about the nature of the changes in the Ontario economy – in the workforce and workplace – that have occasioned this Review. As best we can, we have summarized some of the most important changes and who has been affected.
In order to assist us in our work, we have commissioned research from independent researchers, some of whom have reported on the academic literature on subjects that concern us. Others have researched specific areas. A list of research papers that we have commissioned will be made available to the public concurrently with this Interim Report. Opinions or conclusions expressed by the researchers are theirs and, at this stage, are part of a broad range of facts and opinion that that we need to consider in coming to our recommendations.
Employers, unions, employees and social commentators have joined this discussion with strong, diverse perspectives. In our report, we endeavour to summarize and report what we heard about specific issues and the options for change that we have been asked to consider.
The fact that this Review is taking place is strong evidence of a broad societal concern over the changes that have taken place in the workplace and the fact that for many there has been a long-standing trend of deteriorating working conditions for a growing number of workers. At the same time, the mandate from the Minister of Labour to recommend changes that will support business (also reflected in our Terms of Reference) is recognition that change cannot take place without taking into account its impact on business and that keeping the economy strong is a priority for everyone.
We have found that stakeholders are generally well aware of the legitimate competing interests of others. However, the fundamental starting points of each side are rooted in their own experience and perspectives and these are important to understand.
Employers come to this discussion having to compete in a new, highly competitive, dynamic, and changing economy. This economy and the changes in it move at lightning speed, and in this environment, employers have to adapt and be flexible.
There are many employers in Ontario who provide “good jobs”, with decent wages, benefits, and reasonable hours of work for their employees where there is an opportunity for self-fulfillment and participation in the workplace. These employers know that there are vulnerable workers and precarious “bad jobs” in parts of the economy, but they are concerned that changes designed to address those workers if applied to all employers will negatively impact their businesses and undermine their competitive position.
There are also employers who operate in very competitive markets who feel that they cannot afford to provide higher wages or benefits and still remain competitive. They are required to serve the demands of their customers by providing good value and competitive pricing and they need flexibility in deploying their workforce. Some tend to see legislative change as a threat that may interfere with their competitiveness and profitability and therefore the number of jobs they provide and/or their ability or willingness to create new jobs.
Moreover, among employers in the non-unionized private and public sector, there is little appreciation of – and perhaps little sympathy for – the constitutional right of Canadians to: freedom of association, the right to join a union, the right to engage in meaningful collective bargaining, and the right to strike. There is little enthusiasm for changes to the law that may make it easier for employees to organize a union or to bargain effectively. The employer community has suggested no change to the LRA and, indeed, all the options for change to the LRA canvassed in this report will likely be seen as changes supporting unions even if some are employer friendly or if their purpose is to remove obstacles to unionization and give effect to constitutional rights.
Employers generally would like to have as much independence as possible to operate their business in a responsible, fair and efficient manner. Although they are very supportive of government enforcing the law and pursuing employers who contravene the rules, they would strongly urge a minimum of statutory or regulatory interference in the operation of their enterprises. In a world of intense competition, business needs to be in a position to operate with maximum flexibility to meet the challenges of the marketplace. Flexibility in a global economy includes the ability to decide the terms and conditions of employment and the working conditions for employees that enable employers to attract and retain the workforce they need in order to succeed. This concern about the need for flexibility informs a general concern about the adverse impact of some of the proposals for change that we have been asked to consider.
Probably the most significant employer concern expressed to us relates to hours of work and the limitations on scheduling that are currently in the ESA. Employers have also expressed concern about the complexity of the ESA and the difficulty in understanding and in applying it. Some, mostly larger, employers have raised concerns about the personal emergency leave provisions of the ESA, asserting that they are unfairly additive to generous leave and benefit packages provided to their employees and that they get insufficient credit for them. Furthermore, they believe that personal emergency leave provisions are often abused, causing excessive absenteeism that impairs productivity and efficiency.
On the other hand, worker advocates, unions, many non-government organizations, policy institutes, academics and individuals see in the current situation of vulnerable and precarious workers an urgent and serious threat to the well-being, not only of a significant number of workers in Ontario, but also to their families and to Ontario society. There is widespread agreement in this group that significant and growing numbers of workers – particularly women (but also increasing numbers of men), members of racial and ethnic minorities, immigrants, youth – are working in low wage jobs, many of them temporary, many of them unstable with little or no security, and mostly without benefits. They argue this is occurring in many retail businesses and in service industries such as food service, home care, child-care, and custodial services as well as in agriculture and for the increasing number of workers working through temporary help agencies in manufacturing.
This group of vulnerable employees is seen largely as being unable to control their work schedules and being at the mercy of the scheduling whims of their employers where too little account is taken of the employee need for predictability in their lives. The argument is made that there is a greater degree of social isolation in this vulnerable population and that the uncertainty and anxiety over their situation interferes with their personal lives and their ability to make commitments to relationships and to having children. The combination of low income, uncertainty, lack of control over scheduling, lack of benefits such as sick leave, and stress, is said to create great anxiety in many workers and their families. Many assert that this results in a disproportionately high level of mental health issues in this population as well as a deterioration in their overall physical health.
A common perception among this group of stakeholders – reinforced by a series of studies, articles and publications – is that precarious work is a major and growing problem. In addition, the growth in numbers of so-called “self- employed” individuals is seen as reflecting not only the lack of availability of good jobs but also the misclassification of employees as independent contractors by employers in order to save money and avoid contributions to basic government programs like the Canada Pension Plan and Employment Insurance.
In Ontario, 86% of the private sector workforce is now non-union. The decline in unionization and the absence of any credible threat of unionization is said by these stakeholders to contribute to a deterioration in wages and benefits and to a great imbalance in bargaining power where employees have little, if any, voice. Employees are said to be fearful of complaining about violations of the law and certainly fearful of engaging in any attempts to organize. Labour laws are criticized as putting obstacles in the path of possible unionization and as not being severe enough on employers who commit illegal unfair labour practices that interfere with the constitutional right of employees to organize.
For these stakeholders the ESA is often seen as ineffective for the most vulnerable employees and does not provide sufficient enforcement tools to deal with non-compliant employers. In very broad brush strokes – without the nuance that would likely be a fairer characterization of the views of some of the stakeholders – this is the attitudinal backdrop which we have discerned.
We are grateful for the constructive advice and comments we have received and we look forward to hearing more from stakeholders.