In the spring of 2015, the Government of Ontario initiated its Changing Workplaces Review to determine what changes, if any, should be made to the province’s labour laws in light of the fact that, in the government’s own words, “non-standard employment (which includes involuntary part-time, temporary, self-employment without help and multiple job holders) has grown almost twice as fast as standard employment since 1997”.
The specific focus of the Review is on possible changes to the Ontario Employment Standards Act (ESA) and Labour Relations Act (LRA). The ESA provides a minimum set of workplace standards that apply to all Ontario workers (albeit with many exemptions) while the LRA governs union-employer relations.
On July 27, 2016, Changing Workplaces released an interim report. The report canvassed a large number of issues affecting Ontario’s workplaces and provided a broad array of options to address each issue. For the majority of workplace issues canvassed, options presented included both maintaining the generally inadequate “status quo” as well as options that would significantly increase the protections provided to the province’s workers through fundamental and far reaching changes to the ESA and LRA.
In broad terms, the Interim Report:
- concluded that there are “too many people in too many workplaces” not receiving their basic rights guaranteed under the ESA and LRA.
- came to two general ESA conclusions: the administration and enforcement of the ESA should be strengthened; and there should be a comprehensive review and reform of exemptions from ESA protections. An example of the kinds of exemptions that the report is concerned about are the many occupations (liquor servers, etc.) that are exempted from ESA provisions related to minimum wage and hours of work.
- reviewed what it deems a growing problem of employer misclassification of employees as independent contractors (and therefore not covered by the protections provided by the ESA or LRA), and the use of temporary workers (deployed through temporary help agencies, etc.) who are also not covered by many provisions in Ontario labour law. The potential options identified to address these problems include: expanding the definitions of what constitutes an “employee” and an “employer”; extending the ESA’s minimum standards to “dependent” contractors (a category of worker somewhere between an employee and an independent contractor); and reviewing existing ESA exceptions and special rules (including exemptions to overtime and hours of work).
- examined a range of options that would support the enhancement of union rights, including the potential expansion of successor rights provisions to the contracting out of services, card certification (i.e. no vote required for union certification above a designated threshold of signed union cards), automatic access to first contract arbitration, and a possible prohibition on replacement workers (i.e. a ban on strike breakers); and
- surveyed a number of issues related to termination of employment and severance pay. Significantly, one of the issues under consideration is whether the ESA should adopt “unjust dismissal” provisions, similar to those already in federal and Quebec legislation.
Although almost all the above interim report sections include options that would significantly change the rules governing Ontario’s labour market, perhaps the most surprising feature of the report was the prominence given to various options related to what the report calls “Broader-based Bargaining Structures”. This post will explore the debate on broader-based bargaining options that the interim report has kicked off.
First, some background on Ontario’s current labour relations framework. Continue reading