Chapter 1: The Changing Workplaces Review – Final Report: An Agenda for Workplace Rights

A Workplace Rights Act

What has been striking about this process to us is the consensus view of employers, employees and unions that, in most of our workplaces, there exists a profound lack of knowledge and understanding about fundamental rights under both the Employment Standards Act, 2000 and the Labour Relations Act. It is ironic that, in the workplaces where most of us spend the majority of our lives, and where terms and conditions of our employment are vital to our well-being, there is such a lack of understanding of the rights and responsibilities of employees and employers.

What needs to be communicated forcefully and effectively is that those who are employed in a workplace have basic rights and are entitled to have those rights observed and respected. As employees come to understand that they have important rights, they will expect them to be observed. In turn, the employers who do not comply with the law will also come to understand that they have to respect those rights and are at serious risk if they do not. Raising the level of knowledge will raise consciousness and, together with robust enforcement of the law, will raise the level of compliance and improve the quality of people’s lives in the workplace.

As we elaborate in our chapter on Employment Standards Act, 2000 enforcement, one of our goals in this process is to achieve a culture of compliance with employment standards and the rights of workers under the Labour Relations Act, while continuing to promote health and safety obligations. However, the goal is that both employers and employees are aware of their legal rights and responsibilities in the workplace and that the law is easy to access, to understand and to administer.

If a culture of compliance with the law existed in all of our workplaces, it would be unacceptable not to provide workers with the minimum requirements that the law demands, as employees would be aware of their rights and would feel safe in asserting them. Widespread abuse of basic rights would not only be legally impermissible but culturally and socially unacceptable. There would be a strong element of deterrence in the system as those who engaged in deliberate flouting of the law would be dealt with, not only by having to make restitution but also by being liable for significant administrative monetary penalties.

Accordingly, one of our main policy goals is to increase awareness, understanding and compliance with rights in the workplace by employers and employees. The imbalance in the power relationship between employers and employees leads many employees to be reluctant to pursue their rights. This lack of power, together with the lack of knowledge by employees of their rights, makes already vulnerable workers even more vulnerable. Ignorance of legal requirements and the complexity and obscurity of the law require that priority be given to the widespread communication of rights and responsibilities, the education of all concerned, and the simplification of the law. To this must be added robust enforcement strategies and penalties for non-compliance, which will give workers confidence that society takes their rights seriously and lets employers know there will be serious consequences if they fail to comply. As we reiterate, the goal over time is nothing less than the development of a culture of compliance with statutory norms and rights.

There are many ways this can be accomplished and it will take a variety of measures to make substantial progress towards that goal. In our enforcement section on employment standards, we address specific measures. An important recommendation designed to create a culture of compliance is that the critical components of workplace rights be packaged together under a common umbrella, to be communicated and marketed together as a comprehensive Workplace Rights Act.

In our judgement, in order to promote education and understanding of entitlements, and expectations and obligations in the workplace, the structure of the legislation in Ontario governing the workplace must be reformed. Just as the name Ontario Human Rights Code, gave rise to an understanding among the population that there are fundamental human rights that have to be respected, so too must we change the names of these laws to convey the fact that fundamental rights, entitlements and obligations arise in the workplace and must be respected.

Creating a culture of compliance requires increased awareness, understanding and compliance with basic rights in the workplace. The creation of a Workplace Rights Act is an important and necessary step in conveying to all Ontarians that being an employee in a workplace carries with it fundamental rights. It will serve as a constant reminder to employees of those rights and to employers of their obligations and the need to respect the rights of employees.

Currently, employee rights in the workplace are established by three pieces of legislation: the Employment Standards Act, 2000 the Labour Relations Act and the Occupational Health and Safety Act (the Acts).

Having three statutes – none of which refer to rights of employees in the title – does not contribute to a broad understanding of workplaces and the rights of people who work in them. These three statutes should be consolidated into a new Workplace Rights Act composed of three parts. The first part would consist of what is now the Employment Standards Act, 2000, which sets out minimum terms and conditions of employment for all workplaces and provisions for securing compliance and enforcement. It could be referred to as Rights to Basic Terms and Conditions of Employment. The second part of a new, consolidated Act would be the current Labour Relations Act, which governs the rules surrounding the formation of unions, the acquisition and termination of bargaining rights, collective bargaining in workplaces and unfair labour practices. It should be referred to as Rights to Collective Bargaining. The current Occupational Health and Safety Act (OHSA) would be the third part of a new Act. It deals with the creation, maintenance and enforcement of rules designed to make workplaces safe. It should be referred to as Rights to a Safe and Healthy Workplace.

The term employment standards fails to convey that there are statutorily mandated rights and obligations. This legislation establishes the right of employees to basic terms and conditions of employment in the workplace. The name of the Act should convey the message of rights.

Just as employment standards is an archaic term, the use of the term labour relations does not convey that the legislation is the codification of employees’ constitutional rights to freedom of association. Few understand what labour relations means.^{footnote 1[1]}

The same criticism applies to the title of the OHSA. This legislation deals with safety and health in the workplace; the title of the act should not obscure that. In short, nothing will be lost^{footnote 2[2]} and much can be gained from the elimination and disuse of these existing titles.

Employees should be educated that their status as an employee in a workplace entitles them to three basic pillars of rights, which are:

1. basic decent working conditions;
2. a safe and healthy workplace; and,
3. the right to engage in unionization^{footnote 3[3]} and meaningful collective bargaining.

A combined Act will help to educate everyone in our society to speak and to think in terms of the rights that go with workplaces as opposed to having a separate set of discrete rights spread among different statutes with different conceptual frameworks. It is crucial to develop a broadly-based public understanding that important rights derive from the status of being a worker in a workplace. To facilitate that goal, it is important to have fundamental rights contained within one Workplace Rights Act and to communicate to employees and to employers the three pillars upon which the new Act will stand.

Government should communicate clearly to both employees and employers that basic rights flow from the status of being an employee. Of course, the elements of all three pillars are also important to communicate, but a Workplace Rights Act will underscore that there are fundamental rights that inure to all those employed in the workplace and that those rights all need to be respected.

Unifying the most important rights that arise in a workplace under the single umbrella of a Workplace Rights Act may also assist in the many administrative areas of the different statutes, such as education, interpretation, and enforcement.

At present, the cost of administering OHSA is borne by employers covered by the Workplace Safety and Insurance Act, 1997^{footnote 4[4]} and OHSA training and education is extensive. However, the education and training of employees and employers as to their rights and obligations under the Employment Standards Act, 2000 is not as effective as it should be. The education of employees of their rights to unionize and to engage in collective bargaining is virtually non-existent, if not discouraged, in many non-unionized workplaces. This lack of education and understanding of the fundamental rights that attach to an employee in the workplace is a barrier to the creation of a culture of compliance in which the provision of basic decent working conditions, respect for the right to bargain collectively and a safe workplace, are all central components.

Government, unions, employee advocates and employers all need to invest in the education relating to all the rights and responsibilities of workers and employers. Charging the Ministry of Labour (MOL) with the responsibility to provide comprehensive education with respect to all three pillars of the Workplace Rights Act would be more efficient and effective than operating exclusively within silos. Education regarding the right to basic terms and conditions of employment and the constitutionally-guaranteed right to engage in collective bargaining will be significantly enhanced through a more active and centralized approach designed to educate and increase the awareness of all employees of their rights in the workplace.^{footnote 5[5]}

Greater education of employees, the communication of a commitment that government will enforce the law, the development of a role for MOL as law enforcement agency, and the knowledge that employees can easily notify government of employer failure to comply with the law, will put pressure on non-compliant employers and will enhance competition of all employers on a level playing field.

Administration and enforcement of a single Act, will also lead to efficiencies and more rational policy administration. The Ontario Labour Relations Board (OLRB) already has important responsibilities for interpretation and adjudication in aspects of all three Acts. One recommendation in this review, if accepted, would enlarge and strengthen the role and the powers of the OLRB to enforce employment standards. Over time, its role in adjudicating enforcement could be extended to a broader range of health and safety matters where the OLRB already has expertise. It ought to have a key oversight and adjudicative role in the interpretation and application of the new Act. Consolidating the Acts into one and expanding the role of the Board under the new Act would be efficient and leverage its experience and expertise in the law of the workplace.

In terms of administration and enforcement, we do not think it is practical at the moment to combine enforcement officer roles in occupational health and safety and employment standards. However, over time, there could be some blending of roles, sharing of information regarding non-compliant employers and joint approaches to enforcement strategies. As a first step, all MOL inspectors and officials should be authorized and required to report any violation of labour legislation that comes to their attention.

Improving security and opportunity for vulnerable workers in precarious work

Our mandate requires us to consider the needs of vulnerable workers in precarious work and the need to support business in the Ontario economy. We set out, below, how we have approached our mandate and some of our key findings.

We explained in our Interim Report that our mandate requires us to consider, not exclusively but primarily, all workers in Ontario whose employment:

• makes it difficult to earn a decent income;
• interferes with their opportunities to enjoy decent working conditions; and/or
• puts them at risk in material ways.

Our interest is not limited to those in non-standard employment,^{footnote 6[6]} which, as a category of employment, is not wholly comprised of vulnerable workers in precarious work. Although there is some strong correlation between non-standard employment and vulnerable workers in precarious jobs, we recognize that some who work in non-standard employment are not vulnerable, such as highly-paid contract workers or highly-paid self-employed contractors. Our mandate transcends the standard/non-standard classification of employment and requires a focus, not only on workers whose employment is contingent, uncertain or temporary, but also on workers in low-paid employment without pensions or benefits who are full-time, and on part-time employees in similar low-paid employment who often may not want to work more hours because they must take care of their families, or go to school, or are older. We do not think it makes public policy sense to limit our inquiry to only non-standard employment.

No one doubts that a temporary worker, or a part-time worker who wants a full-time job but is working in a minimum wage or low-aid job without a pension or benefits, is vulnerable and is employed in precarious work. But there is also a real vulnerability, for example, in a low- paid employee, earning somewhat above minimum wage in a full-time job without a pension or benefits. So, too, is there a real vulnerability for a single mother who works part-time for low wages without a pension or benefits because she cannot work full-time due to her child care responsibilities. Both are classified in what is described as standard employment, but the lack of security inherent in those jobs creates uncertainty and insecurity for the worker, which justifies regarding it as precarious employment and recognizing the vulnerability of these workers.

There is no doubt that there are many legitimate social and economic concerns regarding vulnerable employees in precarious employment. Their problems are widespread and significant. Indeed, in many respects their situation cries out to be addressed, and our report, in some important aspects, provides a variety of responses to issues facing vulnerable employees in precarious employment.^{footnote 7[7]}

We have considered the point of view of the Ontario Chamber of Commerce (OCC) and the Keep Ontario Working Coalition (KOWC) that the issue of precariousness in our society has been overstated. Respectfully, we do not agree and we have tried to quantify the number of vulnerable workers in precarious work in Ontario and to set out all the other relevant data in Chapter 4. Even if the number of affected workers had been significantly smaller than we have estimated, our conclusion is unaffected, as the issues arising out of the changed nature of workplaces present our society with serious policy concerns that should be addressed.

In our view, there are, across our economy, particularly in certain sectors, a significant number of vulnerable workers in precarious jobs. These sectors include: retail, restaurants, food services, child care, custodial services, some parts of the public sector, agriculture, and construction. Some are employed through temporary help agencies and some are contract employees. This group includes a disproportionate number of women but also increasing numbers of men, members of racial and ethnic minorities, immigrants, and youth who are working in low-wage jobs, many of them temporary, many of them in unstable employment with little or no security, and mostly without pensions and/or benefits.

Among this group of vulnerable employees is a large number who are subject to unpredictable and varied hours of work and subject to scheduling practices of their employers where too little account is taken of the employees’ needs for predictability in their lives.

In our hearings across Ontario and in our meetings, we found a great deal of uncertainty, anxiety and stress undermining the quality of life and the physical well-being of a wide swath of workers in our society. The combination of low income, uncertainty, lack of control over-scheduling, lack of benefits, such as pensions and health care, personal emergency leave or sick leave, all together or in various combinations, creates stress and many other difficulties which affect the quality of life, mental health and overall physical health of many employees. We have tried to address some of these concerns in our recommendations.

Supporting business in a changing economy

The mandate directed to us was to be supportive of business in a changing economy.

We recognize the importance of the role that businesses play in creating growth and jobs in the economy and how this contributes to the well-being of all Ontarians. With increased competitive pressures, it is necessary to consider the impact of any policy initiative on business costs. This means taking into account businesses’ need for flexibility and reduced administrative burdens. It also means encouraging a level playing field by supporting employers in understanding and meeting their obligations.

The Ontario Chamber of Commerce and the Keep Ontario Working Coalition have said: the goals of economic growth and improved employee rights are not mutually exclusive. We agree and, based on the mandate, it is apparent the MOL does also. While these two objectives are not mutually exclusive, they underscore the need for a balanced approach to change and, in the context of our mandate, we have endeavoured to strike a balance by taking the bona fide interests of all the stakeholders into account in making our recommendations. Others will assess whether the balance has been struck.

Recommendation 1: We recommend that the Employment Standards Act, Labour Relations Act and Occupational Health and Safety Act be consolidated under a single Workplace Rights Act^{footnote 8[8]} and that the three parts of this new Act be entitled: Rights to Basic Terms and Conditions of Employment, Rights to Collective Bargaining, and Rights to a Safe and Healthy Workplace.

Recommendation 2: We recommend that government initiate a program of education for employees and employers both with respect to the Workplace Rights Act and the rights and obligations of employees and employers under each part.

Recommendation 3: We recommend that all MOL inspectors and officials should be authorized and required to report any violation of labour legislation that comes to their attention.