Important Info for Businesses: Changing Workplaces Review

by Pauline James, owner of Anchor HR Services Inc & Vaughan Chamber Government Relations Committee Member

The Ministry of Labour has commissioned an independent ‘Changing Workplaces Review’ to identify updates needed to ensure Ontario’s Employment Legislation reflects today’s economy.
The government is particularly interested in introducing measures to address what are considered vulnerable workers in precarious jobs. The challenge, as noted in the study, is to effect positive change without comprising Ontario companies’ ability to compete nationally and internationally.
For each regulation contemplated a number of recommendations are presented as options, including maintaining the status quo. It is recognized that the purpose of the interim report is to promote discussion on the array of proposed options. Many of the recommendations are thoughtful and positive; it is in all parties’ best interest to have an effective infrastructure to promote decency at work and consistency in basic employee rights across Ontario workplaces. There are a number of recommendations, however, that could have a detrimental impact on employers, if implemented.

It has been noted that employer voices, for the most part, have been fairly quiet during the initial consultations. The Changing Workplaces Interim report, as well as instruction on how you can provide comments, ideas and suggestions can be found here:
https://www.labour.gov.on.ca/english/about/workplace/

The Ontario Chamber of Commerce has prepared the following “Keep Ontario Working” summary report for review and consideration:
http://www.occ.ca/media-release/13100/

The following summary is meant to highlight some key recommendations and potential concerns for employers. Given its length and the nuances that will impact employers differently, it is not a report that can be summarized easily. Companies are encouraged to review the interim report and the Ontario Chamber’s response carefully and submit their questions and concerns before October 14th, 2016 to ensure their important voices are heard.

Labour Relations Act (LRA) recommendations designed to promote an increase in union density in Ontario
The decline in unionization in Ontario is argued to be related to an increase in vulnerable workers who are fearful of complaining about violations of the law. As well, the report focuses on employer disinterest and opposition in employees unionizing as contributing to the lower levels of unionization in Ontario.
A number of recommendations regarding the LRA have been made for consideration, including:

  • Maintaining the status quo
  • Eliminate some or most of the current exclusions to provide broader access to collective bargaining, including members of architectural, dental, land surveying, legal or medical profession and domestic workers employed in a private home
  • Expanding requirements to require ‘Lead Employer’ to be at the bargaining table with subcontractors, outsourcers, franchises, temporary help agencies
  • Replacing secret ballot voting process with card based certification
  • Requiring employers to provide a list of employees, with their contact information to the union, once a certain level of interest is demonstrated
  • Offsite, Telephone or Internet Voting
  • Remove ability for employers to use ‘replacement workers’ during a labour dispute
  • Enact a model which supports some form of minority unionism and/or an institutional mechanism for expression of employee interests in the plans and policies of employers

 

The report states “…among employers in the non-unionized private and public sector, there is little appreciation of – and perhaps little sympathy for – the constitutional right of Canadians to… join a union… there is little enthusiasm for changes to the law that may make it easier to unionize.”
We would suggest that there is nothing nefarious with employers preferring to have a direct relationship with their employees. In any other aspect of life, we would recognize that only being comfortable speaking to another through a third party is a sure sign of a broken relationship. This preference, however, should not be confused with those who flaunt the law.
At present, there are regulations in place to address those who do not respect employees’ right to choose to be represented by a third party. Our current labour laws are crafted to address the power imbalance employers are considered to have in the employment relationship. Employers are restricted in what they can say and do during union organizing campaigns. Threatening employees and advising they may lose certain benefits if they unionize is already, rightfully, considered unlawful. Employers are not able to make promises about improving workplace benefits and conditions, but unions are. If unions overpromise, this has been found to be an acceptable form of ‘electioneering’.
The Ontario Labour Relations Board (OLRB) has a number of remedies at its disposal when employers engage in such improper activities, including ordering a second vote or remedial certification. This means, if an employer engages in egregious behaviour during a campaign, the Labour Board can grant the union certification, despite what the vote count was.
The threshold for a union to be awarded certification is only 50%+1, of those who vote. Is there evidence to support employees are not voting in line with their own preference? It would be helpful to see a current academic study similar to the 2013 Leger/LabourWatch Poll, which found the following when employees were asked:

It is notable that, in this study, that the majority of those who were formerly unionized also indicated they would prefer not to be. *http://www.labourwatch.com/docs/research/Leger_State_of_the_Unions_October_2013_Report.pdf

It would also be helpful to see data that considers whether employee engagement, that is surveys that measure the qualitative experience of employees, tends to be higher in unionized workplaces or non-union workplaces?
In order to preserve employees’ right to democratically decide if they want to unionize, it is important to preserve the right to confidential votes. We would never suggest that the candidate, at any level of government, who collects the most signatures win the right to represent a constituency. It is also important that certification votes are easy to access for all employees in the workplace and continue to be permitted to be on the employer’s site. Evidence of employer interference at the time of voting has not been provided; such votes are conducted by the OLRB and scrutinized by both a union and employer representative.
The report states that the Employment Standards Act (ESA), which sets out minimum standards in the workplace, is often viewed as ineffective without sufficient enforcement tools to deal with employer non-compliance. It seems there is an appetite to encourage and foster an environment that promotes an increase in unionization in Ontario to address this. Is it fair to imply that those who are more vulnerable need to unionize to achieve decency at work? Are there other opportunities to educate employers on their obligations as well as making employees aware of the protections our government rightfully provides without having to organize?

Employment Standards Act (ESA) recommendations to broaden protections and minimum entitlements for Ontario employees
The ESA sets out minimum entitlements for Ontario employees. It has been noted that “employers have expressed concern about the complexity of the ESA and the difficulty in understanding and applying it.”
A key priority for amendments contemplated is to improve the protections available to vulnerable workers and those working in precarious jobs. There is much discussion on the vulnerability of those who are working for low pay, with few or no benefits and for temporary help agencies as well as those who are contract, seasonal or casual workers, solo self-employed, or multiple job holders, with a low paying primary job. There is also concern for the expansion of employees reported as independent contractors, who may be more appropriately considered employees.
A number of recommendations regarding the LRA have been made for consideration including:

  • Status Quo for each article contemplated
  • Education and/or enforcement to address employees misclassified as independent contractors
  • Expanding definition of employee to include ‘dependent contractor’
  • Liability under ESA flowing up to ‘Lead Employer’ for subcontractors, outsource providers, temp agencies, and franchisees
  • Restrictions on use of temporary help agencies
  • Removal of exemptions for a number of sectors and professions including:
    • Managers and supervisors
    • Information technology professionals, pharmacists, residential care workers
    • Special minimum rates for students under 18 and liquor servers
  • Provisions to regulate the scheduling, such as requirements to provide advance notice, additional payment for late changes to schedule, increased minimum shift requirements
  • Increasing paid vacation requirements, entitlements at termination, and access to paid sick leave, based on thresholds
  • Expansion of entitlement of up to ten (10) unpaid Personal Emergency Leave days to employers with less than 50 employees
  • Requirement for an employer to have ‘just cause’ to terminate employment, after a certain period of employment

 

The recommendations proposed under the LRA and ESA regarding ‘Lead Employers’ are concerning. Many business models rely on the commercial relationships they have with service providers or franchisors/franchises. The interim report expresses concern that such relationships may be designed to thwart employment related liability. It is important to consider that most companies do not direct the terms of employment for sub-contractors or franchises. If a ‘Lead Employer’ crosses the line and exercises such control and direction, there are already legal tests to identify and remedies to address. To extend liability more broadly under the LRA and ESA could significantly disrupt current commercial structures and future investment in Ontario.
Rather than amend or remove the exemptions under the ESA for Managers and, it is suggested that education be provided on what entitlements currently exist. There is often a misunderstanding on who qualifies for overtime. Many employers and employees wrongly assume that to be a salary employee is to forgo the right to overtime. This is not the case; such employees must perform work that is supervisory or managerial in character and only perform non-supervisory or non-managerial tasks on an “irregular or exceptional basis”.
The implications and costs of any final recommendations need to be balanced with ensuring companies are able to run efficient and competitive organizations. Increasing the cost of labour, broad based regulations, imposing ‘just cause’ tests on all terminations, will impact the ability of Ontario companies to swiftly adapt to thrive and attract the talent needed in our fast paced economy.
In addition to providing appropriate and needed protections to vulnerable workers, we would like to see a legislative framework that enables workplaces to be competitive, high performing, innovative, and provide a positive employee experience. Many companies have been investing, on their own accord, in employee surveys and analysis for decades to drive employee engagement and performance. Promoting employer education on the ESA entitlements and equitable access to research on employee engagement would arguably do more for employers and their workforce than promoting rigid, administratively burdensome one size fits all solutions.

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