See also: The Changing Workplaces Review

  • [ 1 ]Terms of Reference – Changing Workplaces Review,” Ontario Ministry of Labour, last modified February 2015.

  • [ 2 ] Reference Re Public Service Employee Relations Act (Alta.), (1987) 1 SCR 313, para 91.

  • [ 3 ] Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, (2013) SCC 62, 3 SCR 733, para 32.

  • [ 4 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, para 70.

  • [ 5 ] Harry Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Gatineau: Human Resources and Skills Development Canada, 2006), 47.

  • [ 6 ] Advisory Committee on Class Action Reform, Report of the Attorney General’s Advisory Committee on Class Action Reform (Toronto: Ontario Ministry of the Attorney General, 1990), 16.

  • [ 7 ] Bourgoin v. Ouellette et al., (2009) 343 NBR (2d) 58.

  • [ 8 ] AIC Limited v. Fischer, (2013) 3 SCR 949.

  • [ 9 ] Arthurs, 53.

  • [ 10 ] Ibid., 53.

  • [ 11 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, para 49.

  • [ 12 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, para 68.

  • [ 13 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, paras 70-71.

  • [ 14 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, para 82.

  • [ 15 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, para 71.

  • [ 16 ] Ontario Ministry of Labour, Changing Workplaces Review: Guide to Consultations (Toronto: Ontario Ministry of Labour, 2015), 8.

  • [ 17 ] Human Resources Development Canada, Seeking a Balance: Canada Labour Code, Part I (Ottawa: Human Resources Development Canada, 1995), 6.

  • [ 18 ] Leah Vosko, Managing the Margins: Gender, Citizenship and the International Regulation of Precarious Employment (New York: Oxford University Press, 2010), 2.

  • [ 19 ] Anil Verma, Labour Regulation and Jurisdictional Competitiveness, Investment, and Business Formation: A Review of the Mechanisms and Evidence (Toronto: Ontario Ministry of Labour, 2016).

  • [ 20 ] Statistics Canada, CANSIM Table 282-0008 – Labour Force Survey Estimates, by North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on data from Statistics Canada’s Labour Force Survey.

  • [ 21 ] David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Cambridge, MA: Harvard University Press, 2014).

  • [ 22 ] Statistics Canada, CANSIM Table 279-0025 – Number of Unionized Workers, Employees and Union Density, by Sex and Province (Ottawa: Statistics Canada, 2016); Statistics Canada, CANSIM Table 282-0078 – Labour Force Survey Estimates, Employees by Union Coverage, North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016); Statistics Canada, CANSIM Table 282-0220 – Labour Force Survey Estimates, Employees by Union Status, Sex and Age Group, Canada and Provinces (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on data from Statistics Canada’s Labour Force Survey. Union density refers to the proportion of employed workers who are union members, whereas union coverage includes both employees who are union members and employees who are not members of a union but who are covered by a collective agreement or a union contract. Overall union coverage rates are about two percentage points higher than union density rates.

  • [ 23 ] Statistics Canada, CANSIM Table 282-0076 – Labour Force Survey Estimates, Employees by Establishment Size, North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016); Statistics Canada, CANSIM Table 552-0003 – Canadian Business Counts, Location Counts with Employees, by Employment Size and North American Industry Classification System, Canada and Provinces, December 2015 Semi-Annual (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on data from Statistics Canada’s Labour Force Survey. Note that the Statistics Canada Business Counts database does not differentiate between public and private workplaces and includes both sectors.

  • [ 24 ] Data on union coverage by establishment size was derived from Statistics Canada’s Labour Force Survey, upon special request by Ontario Ministry of Labour.

  • [ 25 ] These are calculations made by the Ontario Ministry of Finance based on data from Statistics Canada’s Labour Force Survey.

  • [ 26 ] Andrea Noack and Leah Vosko, Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context (Toronto: Law Commission of Ontario, 2011), 27.

  • [ 27 ] Ibid., 28.

  • [ 28 ] The distinction between voluntary and involuntary part-time work and whether it is meaningful is important in some contexts because involuntary part-time employment is often counted as part of non-standard work and voluntary part-time employment is often counted as part of standard employment. This distinction is not particularly relevant for us, however, since our conceptual approach to vulnerable workers in precarious jobs transcends that distinction.

    Take for example two “voluntary” regularly scheduled part-timers, both single mothers, with eldercare family responsibilities. One is a tenured professional of eight years of service working in a unionized workplace 28 hours a week at an hourly rate over $44.00 plus pay in lieu of benefits of 15%. The second mother in equivalent circumstances works regularly 28 hours a week at a minimum wage job with no benefits. Both are working voluntarily in their jobs because of their childcare and eldercare responsibilities, but one is clearly vulnerable while the other is not. In this example the voluntariness or involuntariness of the employment is not particularly relevant.

  • [ 29 ] These are calculations made by the Ontario Ministry of Finance based on data from Statistics Canada’s Labour Force Survey, unless otherwise stated.

  • [ 30 ] The distribution or share of non-standard employment refers to how non-standard employment is distributed across different industries. It reflects both the incidence of non-standard employment as well as the size of the industry. The arts, entertainment and recreation industry, for example, has the highest incidence of non-standard employment (57.7%) but because it is a small industry, it has a small share of non-standard employment (5%).

  • [ 31 ] These are calculations made by the Ontario Ministry of Finance based on data from Statistics Canada’s Labour Force Survey.

  • [ 32 ] Statistics Canada, CANSIM Table 282-0008 – Labour Force Survey Estimates, by North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on data from Statistics Canada’s Labour Force Survey.

  • [ 33 ] Statistics Canada, CANSIM Table 282-0152 – Labour Force Survey Estimates, Wages of Employees by Type of Work, National Occupation Classification, Sex and Age Group (Ottawa: Statistics Canada, 2016).

  • [ 34 ] Statistics Canada, CANSIM Table 282-0080 – Labour Force Survey Estimates, Employees by Job Permanency, North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on data from Statistics Canada’s Labour Force Survey. Additional calculations were made by the Ontario Ministry of Finance based on data from the General Social Survey of 1989.

  • [ 35 ] Statistics Canada, CANSIM Table 282-0080 – Labour Force Survey Estimates, Employees by Job Permanency, North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016).

  • [ 36 ] The available data does not enable separating out temporary agency assignment workers from temporary, casual, and seasonal workers in general.

  • [ 37 ] These are calculations made by the Ontario Ministry of Finance based on data from Statistics Canada’s Labour Force Survey for 2014.

  • [ 38 ] Statistics Canada, CANSIM Table 282-0012 – Labour Force Survey Estimates, Employment by Class of Worker, North American Industry Classification System and Sex (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on Statistics Canada’s Labour Force Survey. The self-employed without paid help category includes unpaid family workers.

  • [ 39 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) SCC 4, para 82.

  • [ 40 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) SCC 4, para 94.

  • [ 41 ] Donald D. Carter. Labour Law Reform: Radical Departure or Natural Evolution? (Kingston: Industrial Relations Centre, Queen’s University, 1992), 6.

  • [ 42 ] For example, amendments were introduced providing for expedited arbitration (1979), compulsory check-off of union dues and employer initiated last-offer votes (1980), the prohibition of professional strike breakers (1983), and first agreement arbitration (1986).

  • [ 43 ] Task Force on Labour Relations, Canadian Industrial Relations: The Report of Task Force on Labour Relations (Ottawa: Government of Canada, 1968).

  • [ 44 ] Note that dependent contractors are covered as employees under the LRA.

  • [ 45 ] With respect to doctors, the 1993 amendment did not apply to a physician subject to the Ontario Medical Association Dues Act, 1991 or to an intern or resident as defined in that Act.

  • [ 46 ] A. Macklin, “On the Inside Looking In: Foreign Domestic Workers in Canada,” in Maid in the Market: Women’s Paid Domestic Labour, eds. W. Giles & S. Arat-Koc (Halifax: Fernwood Publishing, 1994), 32.

  • [ 47 ] Legal professionals are excluded in Quebec. Alberta also excludes nurse practitioners.

  • [ 48 ] Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, paras 66-67.

  • [ 49 ] It is understood that for domestic workers, a collective bargaining model that is different than the Wagner Act model may have to be put in place to give them meaningful access to collective bargaining. There is some discussion of other models in the section below on broader-based bargaining.

  • [ 50 ] This exclusion does not capture horticultural employees who are employed by a municipality or who are employed in silviculture.

  • [ 51 ] Dunmore v. Ontario (Attorney General), (2001) 3 SCR 1016.

  • [ 52 ] Ontario (Attorney General) v. Fraser, (2011) 2 SCR 3, paras 102-106.

  • [ 53 ] Saskatchewan Federation of Labour v. Saskatchewan, (2015) SCC 4.

  • [ 54 ] Labourers’ International Union of North America, Local 183 v. York Condominium Corporation Number 46, (1977) CanLII 1008, ON LRB.

  • [ 55 ] Labourers’ International Union of North America, Ontario Provincial District Council v Rochon Building Corporation, (2015) CanLII 4680, ON LRB.

  • [ 56 ] Ibid.

  • [ 57 ] Pointe-Claire (City) v. Québec (Labour Court), (1997) 1 SCR 1015.

  • [ 58 ] Timothy Bartkiw, “Unions and Temporary Help Agency Employment,” Relations Industrielles 67, no. 3 (2012): 460-470; Gerard Notebaert, “The Impact of the Legislative Framework on Unionization Rates for Temporary Workers in Quebec and in France,” Relations Industrielles 61, no. 2 (2006): 223-246.

  • [ 59 ] UFCW, Local 1000A v. Nike Canada Ltd., (2006) CanLII 24724, para 94, ON LRB.

  • [ 60 ] UFCW Canada v. PPG Canada Inc., (2009) CanLII 15058, ON LRB; Teamsters Local Union No. 419 v. Metro Waste Paper Recovery Inc., (2009) CanLII 60617, ON LRB.

  • [ 61 ] Ironworkers’ District Council of Ontario v. Squire, (1980) CanLII 768, para 12, ON LRB.

  • [ 62 ] Carpenters and Allied Workers Local 27 v. Toronto (City), (2000) CanLII 7860, paras 19-20, ON LRB.

  • [ 63 ] PPG Canada Inc., supra note 60 at para 113; Metro Waste Paper Recovery Inc., supra note 60.

  • [ 64 ] United Brotherhood of Carpenters and Joiners of America, Local 785 v. Second Cup Ltd., (1993) CanLII 7903, ON LRB; The United Food and Commercial Workers’ International Union, Local 175 v. Sobeys Ontario Division of Sobeys Capital Inc., (2001) CanLII 10338, ON LRB.

  • [ 65 ] Browning-Ferris Industries of California, Inc., (2015) 362 NLRB 186.

  • [ 66 ] Sara Slinn, Collective Bargaining (Toronto: Ontario Ministry of Labour, 2015). Prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review.

  • [ 67 ] Ibid., 11.

  • [ 68 ] The LRA also includes a parallel provision for remedial dismissal to address cases where a union has contravened the LRA such that the true wishes of the employees are not likely to be ascertained. This last provision aimed at coercive actions by unions has rarely been the subject of proceedings.

  • [ 69 ] As, for example, after a sale of business pursuant to s. 68(6) of the LRA, or to remedy an unfair labour practice as suggested in Sunnylea Foods Ltd., (1981) CanLII 988, para 23.

  • [ 70 ] Human Resources Development Canada, Seeking a Balance: Canada Labour Code, Part I (Ottawa: Human Resources Development Canada, 1995).

  • [ 71 ] Human Resources Development Canada, Seeking a Balance.

  • [ 72 ] RJR MacDonald Inc. v. Canada (Attorney General), (1994) 1 SCR 311.

  • [ 73 ] B St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, (1986) 1 SCR 704, para 727; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., (1996) 2 SCR 495, para 5.

  • [ 74 ] R.S.O. 1990, c. S.22.

  • [ 75 ] Ontario Hospital Assn. v. Ontario Public Service Employees’ Union, (2004) CanLII 14343, ON LRB.

  • [ 76 ] Depending on the jurisdiction, consent may be required from a labour relations board, Minister of Labour (or equivalent) or Attorney General. In Prince Edward Island, Nova Scotia and Manitoba, consent is not required where the prosecution is instituted by the Minister or the Attorney General. In New Brunswick, consent is not required where the prosecution is instituted by the Attorney General. The procedures for private prosecutions also vary depending on the jurisdiction.

  • [ 77 ] The minimum fine for individuals is $100 and the minimum fine for employers, unions and employers’ organizations is $500.

  • [ 78 ] Leeke v. Timmerman, (1981) 454 US 83.

  • [ 79 ] S. 2042. Available online: www.congress.gov2.

  • [ 80 ] United Steelworkers of America v. Radio Shack, (1979) CanLII 817, para 94, ON LRB. [References omitted.]

  • [ 81 ] United Food and Commercial Workers International Union (UFCW Canada) Local 102 v. Quality Hotel and Conference Centre Niagara Falls, Ontario, (2013) CanLII 14707, para 25, ON LRB.

  • [ 82 ] Wilma B. Liebman, “Why Congress Should Pass the Wage Act,” CNBC, September 30, 2015. Available online: www.cnbc.com

  • [ 83 ] These criticisms are discussed in two background papers prepared for Ontario Ministry of Labour to support the Changing Workplaces Review: Sara Slinn, Collective Bargaining (2015); Rafael Gomez, Employee Voice and Representation in the New World of Work: Issues and Options for Ontario (2015).

  • [ 84 ] See trends discussed in Chapter 3, “Changing Pressures and Trends”.

  • [ 85 ] Union of Bank Employees (Ontario), Local 2104 v. National Trust, (1986) OLRB Rep. February 250; See also United Steelworkers of America v. TD Canada Trust in the City of Greater Sudbury, Ontario, (2005) CIRB No. 316, where the approach of the Canada Industrial Relations Board was reviewed.

  • [ 86 ] There are exceptions to this in regard to the construction industry, as well as separate public sector labour relations legislative regimes relating to bargaining structure for certain groups (e.g., college employees, school board employees) that engage in centralized bargaining.

  • [ 87 ] Quebec is the only province that has enacted similar legislation providing access to collective bargaining for artists. Note that the Status of Ontario’s Artists Act, 2007 does not address collective bargaining, and while this legislation does not fall within our review, the labour relations and employment issues concerning artists and performers do come within the terms of the review.

  • [ 88 ] In order to become certified an artists’ association must adopt by-laws and establish membership requirements, give its regular members the right to take part and vote in the meetings and to participate in ratification votes on any scale agreements that affect them, and provide their members with the right of access to a copy of a certified financial statement of affairs of the associations. After these prerequisites are met, the association is eligible to apply to the Board and have it determine eligibility for certification. The Board considers the “sector” and the “representativeness” of an association.

  • [ 89 ] Minimum terms and conditions of employment supplemented by individual agreements negotiated by individual employees are also common in faculty agreements, newspapers and other industries.

  • [ 90 ] Sub-committee of Special Advisors, Recommendations for Labour Law Reform, A Report to the Honourable Moe Sihota, Minister of Labour (Victoria: Ministry of Labour and Consumer Services, 1992), 30.

  • [ 91 ] Ibid., 31.

  • [ 92 ] Sub-committee of Special Advisors, Recommendations for Labour Law Reform, 31.

  • [ 93 ] Unifor, Building Balance, Fairness, and Opportunity in Ontario’s Labour Market: Submission by Unifor to the Ontario Changing Workplaces Consultation (Toronto: Unifor, 2015), 104.

  • [ 94 ] Ibid., 105.

  • [ 95 ] Browning-Ferris Industries of California, Inc. (2015), 362 NLRB No. 186.

  • [ 96 ] Unifor, Building Balance, Fairness, and Opportunity in Ontario’s Labour Market, 127.

  • [ 97 ] Coalition of B.C. Businesses, Labour Policies that Work, A New Vision for B.C. (Vancouver: Coalition of B.C. Businesses, 2001), 24.

  • [ 98 ] Unifor, Building Balance, Fairness, and Opportunity in Ontario’s Labour Market, 120.

  • [ 99 ] In most certification applications today there are status issues which the OLRB must resolve to determine if the union has met the threshold to entitle it to a vote. Keeping this requirement in a large multi-employer certification would bog the process down for years and make it impossible to determine.

  • [ 100 ] John W. Budd, Employment with a Human Face: Balancing Efficiency, Equity, and Voice (Ithaca: Cornell University Press, 2004), 13. See also: Stephen F. Befort and John W. Budd, Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy into Focus (Stanford: Stanford University Press, 2009).

  • [ 101 ] Dunmore v. Ontario (Attorney General), (2001) 3 SCR 1016; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, (2007) SCC 27; Ontario (Attorney General) v. Fraser, (2011) SCC 20; and Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3.

  • [ 102 ] Thomas Kochan, “Employee Voice in the Anglo-American World: Contours & Consequences” (proceedings of the 57th Annual Meeting of the Labor and Employment Relations Association, 2005).

  • [ 103 ] Richard Freeman and Joel Rogers, What Workers Want, rev. ed. (Ithaca: Cornell University Press, 2006). Known as the “Worker Representation and Participation Survey” (WRPS), the survey was conducted in the mid-1990s and updated in 2005. The authors surveyed 2,300 Americans and 1,100 Canadians, although their analysis is based primarily on the American results.

  • [ 104 ] Freeman and Rogers, 154.

  • [ 105 ] Rafael Gomez, Employee Voice and Representation in the New World of Work: Issues and Options for Ontario, (Toronto: Ontario Ministry of Labour, 2015). Prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review.

  • [ 106 ] Law Commission of Ontario, Vulnerable Workers and Precarious Work (PDF) (Toronto: Law Commission of Ontario, 2012), 66. Available online: www.lco-cdo.org.

  • [ 107 ] Harry Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (PDF) (Gatineau: Human Resources and Skills Development Canada, 2006). Available online: www.labour.gc.ca.

  • [ 108 ] Note however, that the “Mandate Letter” to the new Minister of Employment, Workforce Development and Labour directs the Minister “to contribute initiatives to promote good quality jobs and decent work in Canada in response to the federal report: Fairness at Work: Federal Labour Standards for the 21st Century.” Available online: pm.gc.ca.

  • [ 109 ] Daphne Taras and Bruce Kaufman, “Nonunion Employee Representation in North America: Diversity, Controversy and Uncertain Future,” Industrial Relations Journal 37, no. 5 (2006): 513-542.

  • [ 110 ] Daphne Taras and Jason Copping, “The Transition from Formal Nonunion Representation to Unionization: A Contemporary Case,” Industrial and Labor Relations Review 52, no. 1 (1998): 22-44.

  • [ 111 ] The Supreme Court discussed the issue of independence from management in the Mounted Police decision, noting (at para 88): “The function of collective bargaining is not served by a process which is dominated by or under the influence of management. This is why a meaningful process of collective bargaining protects the right of employees to form and join associations that are independent of management.” The court added (at para 95 and 97) that: “The Wagner Act model, however, is not the only model capable of accommodating choice and independence in a way that ensures meaningful collective bargaining. …The search is not for an “ideal” model of collective bargaining, but rather for a model which provides sufficient employee choice and independence to permit the formulation and pursuit of employee interests in the particular workplace context at issue.”

  • [ 112 ]White House Summit on Worker Voice: Celebrating Working Leaders,” The White House, www.whitehouse.gov.

  • [ 113 ] Jason Furman and Sandra Black, “The Evolution and Impact of Worker Voice over Time,” The White House, www.whitehouse.gov.

  • [ 114 ] Unifor, Building Balance, Fairness, and Opportunity in Ontario’s Labour Market, 103.

  • [ 115 ] Human Resources Professional Association, A New Deal for Ontario’s Changing Workplaces (Toronto: HRPA, 2015), 20.

  • [ 116 ] Changes regarding the process to set minimum wage and the minimum wage rate are outside the scope of this Review.

  • [ 117 ] The Employee Wage Protection Program compensated employees, to up $5,000, for wages, vacation pay, termination and severance pay claims in cases of employers’ bankruptcy, abandonment or failure to pay. In 1995, the maximum amount that could be recovered was lowered from $5,000 to $2,500, and the ability to recover unpaid termination or severance pay was eliminated. The program was discontinued in 1997.

  • [ 118 ] Leah Vosko, Andrea M. Noack, and Mark P. Thomas, How Far Does the Employment Standards Act, 2000 Extend and What Are the Gaps in Coverage (Toronto: Ontario Ministry of Labour, 2015). Prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review.

  • [ 119 ]Misclassification of Employees as Independent Contractors,” United States Department of Labor, www.dol.gov.

  • [ 120 ] Law Commission of Ontario, Vulnerable Workers and Precarious Work (Toronto: Law Commission of Ontario, 2012), 94.

  • [ 121 ] “Misclassification of Employees as Independent Contractors,” United States Department of Labor.

  • [ 122 ] Ibid.

  • [ 123 ] Ibid. The DOL is working with other state and federal agencies on misclassification issues. The Wage and Hour division notes on its website that “Employee misclassification generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds.” To build partnerships, the Wage and Hour Division has entered into a memorandum of understanding with the Internal Revenue Service and into partnerships with a number of states.

  • [ 124 ] McKee v. Reid’s Heritage Homes Ltd., (2009) ONCA 916.

  • [ 125 ] Judy Fudge, Eric Tucker, and Leah Vosko, The Legal Concept of Employment: Marginalizing Workers (Toronto: Law Commission of Ontario, 2002), 111.

  • [ 126 ] Law Commission of Ontario, Vulnerable Workers and Precarious Work, 94. The report states, “It is difficult to understand the justification for regulating the work of those who are legitimately self-employed. Furthermore, we are of the view that implementation of such a policy would have feasibility challenges. For example, should self-employed individuals be required to limit themselves to a certain number of hours per week or be required to pay themselves a certain wage? Such regulation would not only be unenforceable but also undesirable. Furthermore, how would the responsibility for a 2-week vacation be divided among an independent contractor’s multiple clients? In our view, the real issue is how to identify and remedy the situation of workers erroneously misclassified as self-employed when an employment relationship actually exists. A secondary issue is whether additional protections should be put in place to protect self-employed workers in dependent working relationships (i.e., low-wage workers with only one client), while allowing for other self-employed persons to benefit from flexibility and choice in self-determination of working conditions.”

  • [ 127 ]Administrator’s Interpretation No. 2015-1: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors,” United States Department of Labor, www.dol.gov.

  • [ 128 ] The recommendation essentially dealt with truck –drivers carrying on as owner-operators, and he recommended it in part for their protection and in part because omitting them would undermine others who were employees. However, many did not want to be covered by all of the statutory protections and he recommended sectoral exemption or special applications as required.

  • [ 129 ] Law Commission of Ontario, Vulnerable Workers and Precarious Work.

  • [ 130 ] Law Commission of Ontario, Vulnerable Workers and Precarious Work, 95. The report states, “Beyond considerations of consistency, extending protection to workers in relationships of dependency (i.e., low-wage contractors with one client) presents unique challenges. For example, a state of dependency may be fluid in that some such workers may be dependent upon one client at one point in time and have several clients at another time. Consideration of a definition of “employee” that extends itself to include such workers would need to take into account the needs of independent and/or self-employed persons who benefit from flexibility and control over their working arrangements. It would also have to respond to concerns expressed by employee representatives that have, in the past, suggested that such measures could cause employers “who already mislabel workers to do so with respect to newly-protected dependent contractors, i.e., labeling them as ‘independent’ contractors.” In other words, it could make things worse instead of better. These would have to be considered in carefully drafting any new standard and it should also leave room for the recognition of new and emerging forms of employment with a range of individual situations. Recognizing that such changes cannot anticipate all impacts, any such policy and legislation should be evaluated after a reasonable period of time to determine effectiveness and whether adjustments are required.”

  • [ 131 ] California Labor Code, Section 2810.

  • [ 132 ]Administrator’s Interpretation No. 2016-1: Joint Employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Workers Protection Act,” United States Department of Labor, www.dol.gov.

  • [ 133 ] Ibid.

  • [ 134 ] Vosko, Noack, and Thomas, How Far Does the Employment Standards Act, 2000 Extend and What Are the Gaps in Coverage.

  • [ 135 ] Unifor, Building Balance, Fairness, and Opportunity in Ontario’s Labour Market: Submission by Unifor to the Ontario Changing Workplaces Consultation (Toronto: Unifor, 2015), 119.

  • [ 136 ] For more detail, see Employment Standards Act, 2000 Policy & Interpretation Manual (Toronto: Carswell, 2001), section 31.5.1.

  • [ 137 ] Vosko, Noack, and Thomas, How Far Does the Employment Standards Act, 2000 Extend and What Are the Gaps in Coverage.

  • [ 138 ] Some jurisdictions do not have any rules in certain areas, for instance, maximum daily hours of work.

  • [ 139 ]Fact Sheet #17B: Exemption for Executive Employees Under the Fair Labor Standards Act (FLSA),” (PDF) United States Department of Labor, www.dol.gov.

  • [ 140 ] Fact Sheet #17C: Exemption for Administrative Employees Under the Fair Labor Standards Act (FLSA),” (PDF) United States Department of Labor, www.dol.gov.

  • [ 141 ] Mark Thomas, Leah Vosko et al., “The Employment Standards Enforcement Gap and the Overtime Pay Exemption in Ontario,” prepared for the ILO 4th Conference of the Regulating for Decent Work Network, Geneva, July 2015, 19.

  • [ 142 ] The Ontarians With Disabilities Act, 2001 amended the Ontario Human Rights Code by replacing the word “handicap” in the Code with the word “disability”. As Regulation 285/01 uses the word “handicap”, for consistency, we use this out-dated language.

  • [ 143 ] On October 1, 2016, the student minimum wage will increase to $10.70, while the general minimum wage will increase to $11.40.

  • [ 144 ] Vosko, Noack, and Thomas, How Far Does the Employment Standards Act, 2000 Extend and What Are the Gaps in Coverage.

  • [ 145 ] Nova Scotia has a lower minimum wage for “inexperienced employees” – employees who have done a kind of work for less than 3 calendar months and has worked for the same employer for less than 3 calendar months.

  • [ 146 ] Employment Standards Act, 2000 Policy & Interpretation Manual (Toronto: Carswell, 2001), section 13.5.1.

  • [ 147 ] On October 1, 2016, the liquor servers’ minimum wage will increase to $9.90, while the general minimum wage will increase to $11.40.

  • [ 148 ] Vosko, Noack, and Thomas, 20.

  • [ 149 ] Vosko, Noack, and Thomas, 24.

  • [ 150 ] Ibid., 21.

  • [ 151 ] Collins and Aikman Plastics, Ltd. v. United Steelworkers, Local 9042, 128 LAC (4th) 438.

  • [ 152 ] Employment Standards Act, 2000 Policy & Interpretation Manual (Toronto: Carswell, 2001), section 7.6.1.

  • [ 153 ] Subject to human rights considerations.

  • [ 154 ] Unless there is written agreement to exceed 48 weekly hours. Additionally, the daily hours must provide for 11 hours of rest.

  • [ 155 ] A work week made up of four 9-hour days and one 8-hour day is permissible as long as that is the regular schedule and does not vary from week to week. The employer would have to pay for regular hours of work up to 44 and overtime pay thereafter.

  • [ 156 ] The difference between 48 and 45 hours per week.

  • [ 157 ] Manitoba is the exception.

  • [ 158 ] In Saskatchewan, 1 of the 5 days would have to be an 8-hour day.

  • [ 159 ] In British Columbia, for instance, an employer must not require or allow an employee to work excessive hours or hours harmful to the employee’s health or safety.

  • [ 160 ] The rule does not apply in some cases where the cause of the employee not being able to work at least 3 hours was beyond the employer’s control (e.g., fire, power failure).

  • [ 161 ] The majority of provinces require employers to provide a minimum of 3 hours compensation to employees for on-call or regularly scheduled cancelled shifts. In British Columbia, for example, an employee scheduled for 8 hours or less must be paid for a minimum of 2 hours even if work less than 2 hours. An employee scheduled for more than 8 hours, must be paid for a minimum of 4 hours even if works less than 4 hours. Must be paid for if they report to work as scheduled, regardless of whether or not they start work. In addition to these reporting pay requirements, some American jurisdictions require that employees be scheduled for minimum shift lengths (i.e., a shift cannot be scheduled for less than 3 hours).

  • [ 162 ] “Minister of Employment, Workforce Development and Labour Mandate Letter,” Office of the Prime Minister, http://pm.gc.ca/eng/minister-employment-workforce-development-and-labour-mandate-letter.

  • [ 163 ] It comprises two separate pieces of legislation – the “Hours and Retention Protections for Formula Retail Employees” and the “Fair Scheduling and Treatment of Formula Retail Employees”. Together, the ordinances contain five major provisions to curb abusive scheduling practices at corporate retailers.

  • [ 164 ]Fact Sheet: Recent Introduced and Enacted State and Local Fair Scheduling Legislation,” (PDF) National Women’s Law Center, www.nwlc.org.

  • [ 165 ] An Act Relating to Equal Pay (PDF). Available online: www.leg.state.vt.us.

  • [ 166 ] Family Friendly Workplace Ordinance (FFWO). Available online: library.amlegal.com.

  • [ 167 ] The Flexibility for Working Families Act would give employees a right to request from their employer a change to part-time hours, flex-time schedule, telework, and a right to request minimum time of notice for schedule changes. Similarly, the Schedules That Work Act of 2014 would provide employees in all organizations with 15 or more employees not only a right to request more flexible, predictable or stable hours but a “right to receive” schedule changes for those employees with caregiving or education responsibilities, unless the employer has bona fide business reasons for not doing so. This Bill is aimed at redressing the problems of unpredictable and unstable schedules in retail sales, food preparation and service, and building cleaning occupations.

  • [ 168 ]The collective bargaining agreement with Macy’s negotiated by Local 1-S RWDSU enables workers to choose shifts 3 weeks in advance and select permanent shifts of up to 6 months ahead of time. Available online: Short Shifted (PDF), retailactionproject.org

  • [ 169 ]Irregular Work Scheduling and Its Consequences,” (PDF) Economic Policy Institute, s2.epi.org.

  • [ 170 ] Clause 5 of the Part-time Directive states that as far as possible, employers should give consideration to:

    1. requests by workers to transfer from full-time to part-time work that becomes available in the establishment;
    2. requests by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise;
    3. the provision of timely information on the availability of part-time and full-time positions in the establishment in order to facilitate transfers from full-time to part-time or vice versa;
    4. measures to facilitate access to part-time work at all levels of the enterprise, including skilled and managerial positions, and where appropriate, to facilitate access by part-time workers to vocational training to enhance career opportunities and occupational mobility;
    5. the provision of appropriate information to existing bodies representing workers about part-time working in the enterprise.
  • [ 171 ] If the employee has been with a company for at least half a year. An employer can still deny a request if it has a good business reason for doing so.

  • [ 172 ]The Right to Request Flexible Working Arrangements,” Fair Work Ombudsman, www.fairwork.gov.au.

  • [ 173 ] Under the General Retail Industry Award 2010.

  • [ 174 ] Harry Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (PDF) (Gatineau: Human Resources and Skills Development Canada, 2006). Available online: www.labour.gc.ca

  • [ 175 ] For example, 3.7% of regular wages reflects 5 days/week multiplied by 50 weeks/year, less 9 public holidays, or 241; 9 equals 3.7% of 241.

  • [ 176 ] Right now, employees generally qualify for the public holiday entitlement unless they fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday (this is called the “Last and First Rule”).

  • [ 177 ] Vosko, Noack, and Thomas, 27.

  • [ 178 ] Statistics Canada, CANSIM Table 552-0001 – Canadian Business Patterns, Location Counts with Employees, by Employment Size and North American Industry Classification System, Canada and Provinces (Ottawa: Statistics Canada, 2016). These are calculations made by the Ontario Ministry of Labour based on data from Statistics Canada’s Canadian Business Patterns. The data includes all active Canadian locations with employees in 2014.

  • [ 179 ]Fact Sheet: Helping Middle-Class Families Get Ahead by Expanding Paid Sick Leave,” The White House (Office of the Press Secretary), www.whitehouse.gov.

  • [ 180 ] Xenia Scheil-Adlung and Lydia Sandner, The Case for Paid Sick Leave: World Health Organization Report, (PDF) (Geneva: World Health Organization, 2010). Available online: www.who.int.

  • [ 181 ] One of these leaves is Declared Emergency Leave, which is available in certain circumstances where the Ontario government declares an emergency under the Emergency Management and Civil Protection Act. There has not been a declared emergency since this leave was introduced in 2006, and this leave is not discussed further in this report.

  • [ 182 ] Nova Scotia has already amended its Compassionate Care Leave to mirror the recent EI and CLC changes to compassionate care leave and Newfoundland and Labrador is making changes.

  • [ 183 ] A private member’s bill was recently introduced that would (if passed) create a new leave of absence if an employee or the employee’s child has experienced domestic or sexual violence (Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016).

  • [ 184 ] A private member’s bill was recently introduced that would (if passed) create a new leave of absence of up to 52 weeks if an employee’s child dies (Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016).

  • [ 185 ] Under Bill 40, the Labour Relations and Employment Statute Law Amendment Act, 1992 (proclaimed into effect on Jan. 1, 1993), the LRA was amended to direct the OLRB to certify part-time and full-time employees in the same unit where the union had more than 55% membership support overall.

  • [ 186 ] In 1995, Bill 7 repealed the Bill 40 amendments. Nevertheless, the Board continued to adopt in practice the Bill 40 practice of preferring combined over separate units in respect of full and part-time employees.

  • [ 187 ] Exceptions include where differences are due to seniority, merit or other criteria not based on gender (e.g., working night shifts).

  • [ 188 ] For example, when referring to benefits and age discrimination – “age” is defined as any age of 18 years or more and less than 65 years.

  • [ 189 ]Classification of Full-Time and Part-Time Work Hours,” Statistics Canada, www.statcan.gc.ca.

  • [ 190 ] Statistics Canada, CANSIM Table 282-0002 – Labour Force Survey Estimates, by Sex and Detailed Age Group (Ottawa: Statistics Canada, 2016).

  • [ 191 ] Statistics Canada, CANSIM Table 282-0002.

  • [ 192 ] Andrea M. Noack and Leah F. Vosko, Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context (PDF) (Toronto: Law Commission of Ontario, 2011). Available online: www.lco-cdo.org.

  • [ 193 ] Diane Galarneau and Eric Fecteau, “The Ups and Downs of Minimum Wage,” Statistics Canada, www.statcan.gc.ca.

  • [ 194 ] Statistics Canada, CANSIM Table 282-0080 – Labour Force Survey Estimates, Employees by Job Permanency, North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016).

  • [ 195 ] Statistics Canada, CANSIM Table 282-0074 – Labour Force Survey Estimates, Wages of Employees by Job Permanence, Union Coverage, Sex and Age Group (Ottawa: Statistics Canada, 2016).

  • [ 196 ] Statistics Canada, CANSIM Table 282-0152 – Labour Force Survey Estimates, Wages of Employees by Type of Work, National Occupation Classification, Sex, and Age Group (Ottawa: Statistics Canada, 2016).

  • [ 197 ] Statistics Canada, CANSIM Table 282-0074.

  • [ 198 ] Computed by the Ontario Ministry of Finance based on data from Statistics Canada’s Labour Force Survey. This was a special tabulation made for the Ontario Minimum Wage Advisory Panel.

  • [ 199 ] Noack and Vosko, Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context.

  • [ 200 ] McMaster University, Work and Health Survey (Hamilton: McMaster, 2006).

  • [ 201 ] Statistics Canada, CANSIM Table 282-0224 – Labour Force Survey Estimates, Employees by Union Status, Establishment Size, Job Tenure, Type of Work and Job Permanency (Ottawa: Statistics Canada, 2016).

  • [ 202 ] Statistics Canada, CANSIM Table 282-0074.

  • [ 203 ] Those who have no guaranteed hours of work, usually work irregular hours, do not get paid sick or annual leave, can end employment without notice, unless notice is required by a registered agreement, award or employment contract.

  • [ 204 ]Casual Employees,” Fair Work Ombudsman, www.fairwork.gov.au.

  • [ 205 ] For example, contract workers may be offered lower wages and benefits when compared to full-time employees. They also may have less access to pension plans or severance pay.

  • [ 206 ] Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century.

  • [ 207 ] Different rules apply for severance pay, where multiple periods of employment are added together regardless of the amount of time between those periods. See Section 5.3.8.2.

  • [ 208 ] Vosko, Noack, and Thomas, 4.

  • [ 209 ] Paquette c. Quadraspec Inc., (2014) ONCS 2431. A recent Ontario court decision ruled that, in determining whether the employer’s payroll is $2.5 million, the employer’s payroll outside Ontario should be included in the calculation. This outcome, however, does not align with the ministry’s long-standing operational policy of looking only at the employer’s payroll in Ontario.

  • [ 210 ] Although many adjudicators interpret the Canada Labour Code as providing authority for awarding whatever is needed to make the employee “whole”, there is a great deal of inconsistency and some just apply the common law rules of wrongful dismissal when measuring damages.

  • [ 211 ]Temporary Help Services (NAICS 56132): Establishments,” Innovation, Science and Economic Development Canada, www.ic.gc.ca.

  • [ 212 ] Under the North American Industry Classification System, employment services comprises establishments primarily engaged in listing employment vacancies and selecting, referring and placing applicants in employment, either on a permanent or temporary basis; and establishments primarily engaged in supplying workers for limited periods of time to supplement the workforce of the client.

  • [ 213 ] Statistics Canada, CANSIM Table 361-0042 – Employment Services, Summary Statistics (Ottawa: Statistics Canada, 2016).

  • [ 214 ] Statistics Canada, CANSIM Table 361-0066 – Employment Services, Sales by Type of Goods and Services (Ottawa: Statistics Canada, 2016).

  • [ 215 ] Cynthia Poole, “Steady Growth Continues,” (PDF) Staffing Success, September 2015, 5. Available online: americanstaffing.net.

  • [ 216 ] Ibid., 9.

  • [ 217 ] Steven Berchem, “Navigating the 1% Economy,” (PDF) Staffing Success, September 2013, 30. Available online: altstaffing.org.

  • [ 218 ] Ibid., 32.

  • [ 219 ] Erin Hatton, The Temp Economy: From Kelly Girls to Permatemps in Postwar America (Philadelphia: Temple University Press, 2012), 11.

  • [ 220 ] S. Fuller and L. F. Vosko, “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race and Immigration Status,” Social Indicators Research 88, no. 1 (2008).

  • [ 221 ] In Canada, definitions of temporary employment in standard statistical sources are not entirely consistent but normally include contract or term, agency, seasonal and casual (on-call) employment.

  • [ 222 ] European Foundation for the Improvement of Living and Working Conditions, European Working Conditions Survey (Dublin: European Foundation for the Improvement of Living and Working Conditions, 2007); N. Galais and K. Moser, “Organizational Commitment and the Well-Being of Temporary Agency Workers: A Longitudinal Study,” Human Relations 62, no. 4 (2009).

  • [ 223 ] Termination pay calculation is different for assignment workers than regular employees under the ESA (see Section 74.11.7).

  • [ 224 ] Or more than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks under specific circumstances (for complete list see Section 56(2) of ESA).

  • [ 225 ] Client is not allowed to: intimidate the employee, refuse to have the employee perform work, refuse to allow the employee to start an assignment, terminate the assignment of the employee, or otherwise penalize the employee.

  • [ 226 ] Name of client, contact information for client, hourly or other wage rate or commission and benefits associated with assignment, hours of work, general description of work, estimated term of assignment, and pay period/pay day.

  • [ 227 ] There are cases where in exercising its jurisdiction to determine the appropriate bargaining unit, at the request of the union, the Board has excluded the assignment workers from the bargaining unit while finding them to be employees of the client.

  • [ 228 ] UFCW Canada v. PPG Canada Inc., (2009) CanLII 15058, ON LRB; Teamsters Local Union No. 419 v. Metro Waste Paper Recovery Inc., (2009) CanLII 60617, ON LRB.

  • [ 229 ] Employees cannot be charged fees for: being hired by agency; working for a client; becoming an employee of the client; any other circumstances as described by regulations.

  • [ 230 ] Berchem, 22.

  • [ 231 ] Hatton, The Temp Economy: From Kelly Girls to Permatemps in Postwar America.

  • [ 232 ] See section 5.2.2.

  • [ 233 ] Browning-Ferris Industries of California, Inc., (2015) 362 NLRB 186.

  • [ 234 ] The Director (United States Occupational Safety and Health Administration) as quoted in the New York Times, August 31, 2014: “We’ve seen over and over again temporary workers killed or seriously injured on their first day at work,” Mr. Michaels said. “When we investigate, we see that most employers don’t treat temporary workers the way they treat their permanent employees — they don’t provide them with the training that is necessary.” Available online: "The Changing Face of Temporary Employment," www.nytimes.com.

  • [ 235 ] “Day and temporary labor” does not include work of a professional or clerical nature; thus, those occupations are exempt from this legislation.

  • [ 236 ] These are described in the NELP Report from pages 22-24.

  • [ 237 ] Katherine Gilchrist, Temporary Help Agencies (Toronto: Ontario Ministry of Labour, 2016). The material in this section on the EU was taken from a paper prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review.

  • [ 238 ] European Commission, Towards Common Principles of Flexicurity: More and Better Jobs through Flexibility and Security (Brussels: European Commission, 2007).The components of flexicurity are:

    • Flexible and reliable contractual arrangements (from the perspective of the employer and the employee, of "insiders" and "outsiders") through modern labour laws, collective agreements and work organisation;
    • Comprehensive lifelong learning (LLL) strategies to ensure the continual adaptability and employability of workers, particularly the most vulnerable;
    • Effective active labour market policies (ALMP) that help people cope with rapid change, reduce unemployment spells and ease transitions to new jobs;
    • Modern social security systems that provide adequate income support, encourage employment and facilitate labour market mobility. This includes broad coverage of social protection provisions (unemployment benefits, pensions and healthcare) that help people combine work with private and family responsibilities such as childcare.
  • [ 239 ] Apart from the UK, in all EU Member States the assignment worker is generally defined as an employee of the agency working under the managerial authority of the user company (i.e., client). In Czech legislation, both the agency and the client are employers.

  • [ 240 ] EU countries have interpreted the TAW Directive differently. Not all EU countries have embraced temporary agencies without certain restrictions on their use. Some countries, including Belgium continue to restrict the sectors in which temp agencies can operate while other have either loosened restrictions in line with the aim of the Directive, or else never had significant restrictions in the first place, such as in the UK.

  • [ 241 ] The comparability standard has been seen as potentially problematic or subject to abuse by the company, as it may in fact be a lesser standard where a “dummy comparator” is hired at the company, with considerably lower working conditions than other employees in order to use as the comparator for temporary agency workers.

  • [ 242 ]Temporary Work Agencies and Workplace Health and Safety,” Institute for Work and Health, www.iwh.on.ca.

  • [ 243 ] A private member’s bill (PMB) 143, Employment Standards Amendment Act (Temporary Help Agencies), 2015 was recently introduced on November 18, 2015 that would (if passed) require that agencies pay assignment workers 80% of the fee charged to clients.

  • [ 244 ] PMB 143 includes a similar provision (e.g., maximum 25% of total number of hours worked are by assignment workers).

  • [ 245 ] PMB 143 includes a provision whereby agencies are prohibited from operating without a licence.

  • [ 246 ] See Section 11 of the ESA.

  • [ 247 ] See Sections 22(1), 24(1)(a), 17(1)(b) and 18(4) of the ESA.

  • [ 248 ] See Section 1 of the ESA.

  • [ 249 ] See Section 28 of O. Reg. 285/01.

  • [ 250 ] Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (PDF), 53.

  • [ 251 ] Leah Vosko, Andrea M. Noack, and Eric Tucker, Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and Their Resolution under the Employment Standards Act, 2000 (Toronto: Ontario Ministry of Labour, 2016), 5. Prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review.

  • [ 252 ] Vosko, Noack, and Tucker, 5.

  • [ 253 ] Ibid., 21. Numerous scholarly and other works have suggested that fear of reprisals is widespread and the research study done for this Review confirms those facts.

  • [ 254 ] Kevin Banks, Employment Standards Complaint Resolution, Compliance and Enforcement: A Review of the Literature on Access and Effectiveness (Toronto: Ontario Ministry of Labour, 2015). Prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review.

  • [ 255 ] Vosko, Noack, and Tucker, Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and Their Resolution under the Employment Standards Act, 2000.

  • [ 256 ] Employees may choose to pursue their ESA rights through the civil courts rather than the ES Program. Employees who are covered by a collective agreement work through their union to enforce their ESA rights.

  • [ 257 ] Vosko, Noack, and Tucker, 6.

  • [ 258 ] The time limits on recovery through an order and the limit on the amount that can be the subject of an order were amended effective February 20, 2015: the $10,000 cap on an Order to pay wages for a single employee was removed, and the provision that limited Orders to covering only those wages that became due in the 6 months prior to the date the claim was filed (or 12 months in the case of vacation pay and repeat contraventions) was changed to two years. The previous limitations apply only with respect to wages that became due prior to February 20, 2015.

  • [ 259 ] Vosko, Noack, and Tucker, 6.

  • [ 260 ] For example, damages representing the loss of an employee’s reasonable expectation of continued employment with the former employer, expenses incurred in seeking new employment, and damages representing lost benefit plan entitlements that an employee was wrongfully deprived of.

  • [ 261 ] Vosko, Noack, and Tucker, Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and Their Resolution under the Employment Standards Act, 2000, 6.

  • [ 262 ] Employment Standards Officers, who are charged with enforcing the Act, are required to follow the Director’s policies. The Manual, which is written by ES Program staff, is currently published by a legal publishing firm and is available for purchase by external stakeholders such as clinics, law firms, unions, employers and human resource professionals. Effective summer 2016, the Ministry will publish the Manual electronically in-house. As of the date of writing the Ministry had not settled on whether the Manual will be publicly available.

  • [ 263 ] Vosko, Noack, and Tucker, 19.

  • [ 264 ] Cineplex Odeon Corporation v. Ministry of Labour, (1999) CanLII 20171, ON LRB.

  • [ 265 ] “Wage and Hour Division Fact Sheet #44: Visits to Employers,” United States Department of Labor, http://www.dol.gov/whd/regs/compliance/whdfs44.htm. The name of the complainant and the nature of the complaint are disclosed when it is necessary to reveal a complainant’s identity, with his or her permission, to pursue an allegation, and when the Wage and Hour Division is ordered to reveal information by a court. The Wage and Hour Division’s Frequently Asked Questions are available online: http://www.dol.gov/wecanhelp/howtofilecomplaint.htm.

  • [ 266 ] Vosko, Noack, and Tucker, Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and Their Resolution under the Employment Standards Act, 2000.

  • [ 267 ] This data is provided by the Ontario Ministry of Labour.

  • [ 268 ] Vosko, Noack, and Tucker, Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and Their Resolution under the Employment Standards Act, 2000.

  • [ 269 ] Vosko, Noack, and Tucker, 24.

  • [ 270 ] Ibid., 30.

  • [ 271 ] Inspections typically ensure compliance with these employment standards: poster requirements, wage statements, unauthorized deductions, record keeping, hours of work, eating periods, overtime pay, minimum wage, public holidays, vacation with pay, and the rules regarding temporary help agencies charging assignment employees fees and requiring agencies to provide assignment employees information. Inspections do not typically address termination and severance pay, reprisal, or leaves of absence issues. Misclassification issues where employers treat employees as independent contractors are typically not addressed during an inspection unless the issue is widespread in that workplace.

  • [ 272 ] See, for example, the 1991, 2004 and 2006 Annual Reports of the Office of the Provincial Auditor of Ontario.

  • [ 273 ] See, for example, the 1991, 2004 and 2006 Annual Reports of the Office of the Provincial Auditor of Ontario.

  • [ 274 ] David Weil, Improving Workplace Conditions through Strategic Enforcement, a Report to the Wage and Hour Division (Boston: Boston University, 2010), 1.

  • [ 275 ] Ibid., 1.

  • [ 276 ] Weil, 1.

  • [ 277 ] Settlements are void if the employee (or in the case of a settlement facilitated by an ESO, the employer) demonstrates that it was entered into as a result of fraud or coercion.

  • [ 278 ] Approximately 15% of claims were settled with the assistance of an ESO or by the parties themselves in the 2014/15 year. Even where a settlement occurs, the Ministry may still choose to continue prosecution proceedings against the employer if a violation was found.

  • [ 279 ] Banks, 30.

  • [ 280 ] Vosko, Noack, and Tucker, 5.

  • [ 281 ] “Employer” is used here to capture anyone who may be issued an enforcement tool, i.e., those who are not the “employer” but who have ESA liabilities (e.g., corporate directors, clients of temporary help agencies).

  • [ 282 ] The amount of the NOC for failing to post or provide the Ministry’s ESA poster, or to keep proper payroll records or make them readily available for an ESO are: $250 for a first contravention; $500 for a second contravention in a 3-year period; and $1000 for a third or subsequent contravention in a 3-year period. For contraventions of other provisions of the ESA, the penalties are: $250 for the first contravention multiplied by the number of employees affected; $500 for a second contravention in a 3-year period multiplied by the number of employees affected; and $1000 for a third or subsequent contravention in a 3-year period multiplied by the number of employees affected.

  • [ 283 ] Vosko, Noack, and Tucker, Table 4.1 and 4.2.

  • [ 284 ] Vosko, Noack, and Tucker, Table 4.4.

  • [ 285 ] See Section 88(5).

  • [ 286 ] See Sections 81(8), 119(12), 88(7), 117(3) and 117(4).

  • [ 287 ] Exception: the amount that has to be paid into trust to appeal a compensation order is limited to $10,000.

  • [ 288 ] Not including assessments where the employer is bankrupt, under receivership or subject to other formal insolvency proceedings.

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