Consultation on Employment Standards

ETFO's Response to the Consultation Paper on Ontario's Employment Standards Legislation

I. Introduction

On the east side of Queen's Park Cresent stands a plaque commemorating the 1872 printers' strike by members of the Toronto Typographical Union. Through this strike, and the public support the workers garnered, the TTU fought to achieve its principal goal - a nine-hour working day. In this, the union was part of a broadly-based movement of Nine-Hour Leagues, which fought across southern Ontario and in Montreal against an organized and powerful employers' movement bent on maintaining "flexibility" at all costs. "We want," as one labour leader stated, "to better our physical constitutions and increase our mental power…. We want not more money, but more brains; not richer serfs, but better men…." In the 130 years since then, Ontario's unions have continued to understand that when the mantra of "flexibility" is invoked, suspicion is in order.

The words "flexible" and "flexibility" occur 22 times in the government's brief consultation paper on proposed changes to the Employment Standards Act.

The 65,000 members of the Elementary Teachers' Federation of Ontario understand that workplace rights are always won, never given. "Unions," as one bumper sticker would have it - "Those Wonderful Folks Who Brought You the Weekend."

We are proud to be part of the tradition that has brought so many Ontario workers a defined working day, legislated rest periods, weekends and freedom from the kinds of exploitation that existed in the last century in this country, and exist today in many jurisdictions throughout the world. These rights are fundamental to the high level of productivity which Canadian workers sustain, and whose fruits Canadian employers enjoy. Any attack on the "floor" of labour standards is short-sighted and ultimately counterproductive, as we will demonstrate in the remainder of this document.

II. Proposed Changes in the Length of the Working Day

The government has proposed, in the name of flexibility, to eliminate the permit system which enables employers to apply to exceed the current limit on working hours. This would be replaced by raising the current weekly limit from 48 hours to 60 hours, though hours in excess of 48 "would require the employee's agreement."

While it is true that the present cap is, in some workplaces, honoured more in the breach than the observance, it is equally true that in others, these provisions are all that stand between an unscrupulous employer and a vulnerable employee. While the consultation paper refers to "leveling the playing field" for employers in order to enhance competitiveness, it is silent on the much bigger imbalance which exists on a daily basis between those who hire and those who are hired. To quote from a 1997 Supreme Court of Canada decision:

The contract of employment has many characteristics that set it apart from the ordinary commercial contract. Individual employees on the whole lack both the bargaining power and the information necessary to achieve more favourable contract provisions that those offered by the employer…. This power imbalance is not limited to the employment contract itself, but informs virtually all facets of the employment relationship.

Though the labour market is somewhat tighter than in the recent past (at least according to officially sanctioned statistics, and at least for the moment), many workers in this province still believe their jobs to be precarious. Under these circumstances, the notion that excess hours would only be worked "voluntarily" is a poor joke indeed. Even now, with the law on their side, many workers are reluctant to insist on their rights to a capped work day and work week. Removing the cap will make a bad situation worse, especially so for recent immigrants, young workers and other segments of the workforce who suffer high unemployment rates.

We need not delude ourselves that the proposed change will mean merely the potential for a longer work week; it will in fact mean a longer work week for a great many workers. Rather than take the trouble to recruit, hire and train new workers, many employers will simply stretch the capacities of the existing workforce. Thus one result of this initiative may well be to limit the number of new jobs - rather ironic in view of this government's obsession with job creation statistics.

Moreover, while employer competitiveness looms large in the consultation paper, readers will search in vain for similar attention to the potential health ramifications of such a move. Yet the negative consequences of increased working hours are well documented. In a study produced by Statistics Canada this spring, for example, the authors noted that:

• For men, moving from standard to long hours was associated with unhealthy weight gain.
• For women, moving from standard to long hours was associated with increased alcohol consumption. Moreover, women working long hours had 2.2 times the odds of noting a depressive incident, compared to those working standard hours.
• For both sexes, changing from standard to long hours was associated with increased smoking.

It is perhaps stating the obvious to point out the increased potential for fatigue-related industrial accidents. One need look no further than the current debate in the trucking industry to understand this concern.

ETFO is largely a union of teachers, an occupational group specifically denied the protections of that section of the Employment Standards Act governing working hours. Yet we are deeply concerned on a number of grounds.

First, a small but important segment of our membership - educational and professional support personnel - would be captured by the proposed provisions. These members perform services to the education system which are vital, as educational assistants providing direct assistance to special needs children, as school support counsellors, as computer lab assistants and in many other roles.

These members are fortunate enough to be covered by collective agreements. Two-thirds of Ontario workers, however, are not, which is the second reason for our concern. ETFO members are the friends, spouses, children, parents and siblings of workers who could soon find themselves pressured to work longer hours, and therefore suffer a diminished quality of life.

As teachers and education workers, we already deal on a daily basis with children whose parents work long hours to support their families. We know that a high level of parental involvement in a child's education is crucial to academic success. Parents are already scrambling to find the time to read to their children, to meet with teachers, and to be an integral part of the formal learning process. The government that further erodes a parent's ability to carry out this fundamental responsibility puts the future of Ontario's children at risk - a high price indeed to pay for "flexibility."

Finally, we are concerned precisely because, as a union composed primarily of teachers, we understand the vulnerability of workers who are not covered by basic labour standards. Under the terms of the recently passed, and partially enacted, Bill 74, teachers could be compelled some day to accept a work day that is virtually unlimited.

Rather than further eroding the basic rights of the most vulnerable workers in this province, we would favour better enforcement of existing provisions, and indeed a move to a shorter work week altogether. Such a move is well under way, as we know, in a number of European Community nations - nations whose economies, despite, or perhaps because of this, continue to thrive.

III. Vacation Time

A healthy workforce is a productive workforce, and any medical practitioner -- the consultation paper fails to mention whether any were consulted -- can tell you how important downtime is to basic health. Equally problematic, therefore, is the proposal to permit employers to fragment vacation time in such a way that it could be taken in daily increments, rather than a week at a time.

It is difficult to see how this would have anything other than a detrimental effect on occupational health, and therefore on productivity. The motive is given away, inadvertently or otherwise, in the consultation paper's observation that this would enable employers to save on replacement costs for vacationing workers, whose absence from the workplace would now be limited to short periods of time. Once again, it is unclear how this aids the government's stated intention of job creation.

Rather than further eroding the rights of Ontario workers to their minimal time off, we would propose extending the current two-week period to bring vacation time more in line with standards in many other industrialized jurisdictions. We would propose, at a minimum, that three weeks' paid vacation be permitted after three years of service.

IV. Public Holidays

With respect to the changes proposed for public holidays, we welcome the move to eliminate most of the qualifying restrictions for entitlement to paid holidays. Thanksgiving Day is still Thanksgiving Day, whether an employee meets the current "tests" in the Act or not, and all employees should have the opportunity to spend these small breaks in the working year with their families.

The proposal to permit employees and employers to "agree" that work should be performed on public holidays, albeit at premium rates, is, much like the plans for the length of the working week, not conducive to worker productivity or well-being. Once again, the framers of this notion have ignored the fact that for many workers "voluntary" simply means "compulsory."

V. Family Leave

Automatic leave for personal illness and for family reasons such as bereavement is a concept which is long overdue in this province. Ontario, as has been noted, has fallen behind other jurisdictions in this regard. We do have a number of suggestions for the implementation of such an initiative, however.

First, limiting entitlement to workplaces with at least 50 employees will mean, in many cases, little change to the status quo. Larger workplaces, and especially unionized ones, are more likely than smaller ones to have sick leave, family illness leave and bereavement leave plans already in place.

Second, many of these same larger workplaces have also seen the logic of providing such programs on a paid basis, rather than the unpaid one proposed by the consultation paper. While it may be arguable that very small employers would suffer undue hardship by having to offer paid leave, perhaps a system could be considered which mandated paid leave based on the size of an employer's aggregate payroll (as is currently the case with respect to severance provisions under the Act).

Third, we would hope that the drafters of the legislation will be sensitive to the changing nature of families in Ontario today. As teachers and education workers, we are particularly aware of this transition. The list of proposed family members "covered" for purposes of bereavement or family crisis does not, we believe, fully reflect the configuration of today's family structures. It is not unusual, for example, for a child to be raised by an aunt or uncle these days. It should be possible to frame language which is inclusive enough to capture such situations.

Finally, we would recommend that any definition of "family crisis" likewise be an inclusive one. A family crisis can arise from a health issue, or a marriage breakdown, or a death, to name a few. Crises can also be related to economic status. As teachers and education workers, we have seen too often the effects of homelessness and job loss on the stability of family units. We would hope that the eventual legislation takes into account the needs of all strata in our increasingly polarized society.

With respect to the pregnancy and parental leave sections of the Act, we support the proposal to allow pregnancy leave to start at the time of birth, even if that occurs more than 17 weeks prior to the expected birth date. We look forward as well to a revision of this section of the Act to accommodate the recently expanded Employment Insurance entitlements for new parents. We encourage the government to act quickly on this, since the new EI system will be in place very soon.

V. Miscellaneous Changes to the Act

The consultation paper devotes several pages to "modernizing and clarifying" the Employment Standards Act. While some of these modifications fall under the rubric of housekeeping, some are more substantive in nature. Our comments are directed to a couple of the latter.

Coverage of the Act

It is true that the Act is a difficult maze to follow, particularly with respect to its many exemptions and partial exemptions. However, in reviewing the general criteria which the government proposes to consider when determining exemptions from coverage, we wish to point out that the purpose of any employment standards legislation is to act as a floor for entitlements. This floor may have an impact on collective bargaining overall, but should be viewed as absolute minimum standards which no worker should be denied. Under the current system, as we know, some of the most powerless workers are exempted from some or all of the Act, including domestic servants, various kinds of agricultural workers and, of course, workfare participants.

It is dangerous to suggest that certain groups, by virtue of their alleged bargaining power, cannot fall through that floor under the right circumstances, and therefore may not need basic protections. Bargaining power, as we know, is the product of many forces, including labour supply, and is never static.

Generalizations about any occupational group can be problematic. For example, the consultation paper mentions lawyers as an occupation whose members are "not, nor likely to be, in a vulnerable position" because there is a "reasonable balance of power" in the employment relationship. For many lawyers, this is doubtless the case, and we should bear in mind that just over half of all lawyers are self-employed. However, there is also evidence that many lawyers work long hours and that some lawyers, particularly very young lawyers, enjoy relatively modest earnings - hardly indicators of excessive bargaining power.

Enforcement

We have watched as enforcement of basic rights in Ontario has become more difficult over the past few years. With Bill 49 four years ago, the mechanism for enforcing employment standards shifted in unionized workplaces from a straightforward public tribunal to the expensive and cumbersome grievance arbitration system. With human rights issues, the roadblocks come in the form of an underfunded and overworked Commission. The current employment standards consultation hints at a mechanism which would "encourage employers and employees to become more self-reliant and to seek to resolve disputes internally before involving the Minister of Labour."

We appreciate the need to conserve the Minister's time, but can only shudder at what this might mean. Once again, for workers who are especially vulnerable, particularly the young, those making minimum wage, those without unions, the inherent power imbalance in the workplace makes an internal dispute resolution mechanism a recipe for injustice.

VI. Conclusion

With the qualified exception of the provisions around family leave, the new direction proposed for employment standards in Ontario does little for the well-being of working people. The proposed regime will mean longer working hours, less time off and increased occupational stress. It could well mean fewer jobs, lower productivity and more WSIB and LTD claims. We have come a long way in this province since those days in the 1870s when a ten or eleven hour work day was common. It is unconscionable that this government would wish to turn back the clock in this fashion.

We thank you for the opportunity to present our views.

Recommendations:

1. That, rather than increasing the work week, the Ministry investigate bringing Ontario more in line with the trend to a shorter work week currently underway in parts of Europe.
2. That vacation be taken in increments of no less than one week at a time, and that three weeks' paid vacation be available after three years of employment.
3. That the Act be amended to incorporate ten days of personal illness leave and family leave, to cover all workplaces regardless of size. Except for workplaces with very small total payrolls, this leave would be paid.
4. That the Act be amended with respect to pregnancy and parental leave to protect workers who choose to access the expanded Employment Insurance provisions which will soon be in force.
5. That the government increase the resources available for enforcement of the Employment Standards Act.

Sources:

1. Karen Hall, "Hours Polarization at the End of the 1990s," Perspectives on Labour and Income, Statistics Canada, Spring 1999.
2. Craig Heron, The Canadian Labour Movement: A Short History, Toronto, 1989.
3. Abdul Rashid, "Earnings of Lawyers," Perspectives on Labour and Income, Statistics Canada, Spring 2000.
4. Margot Shields, "Long Working Hours and Health," Perspectives on Labour and Income, Statistics Canada, Spring 2000.
5. Wallace v. United Grain Growers Ltd., Supreme Court of Canada, [1997] 3 S.C.R. 701. September 8, 2000