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THE MANDATE economy itself, particularly in light Examples of the third category are other
of relevant trends and factors operating items included in the Minister of Labour’s
In February 2015, the Minister of Labour Mandate Letter: the gender wage gap,
initiated the Changing Workplaces on our society, including globalization,
issues specific to migrant workers, and
Review (Review) building on government trade liberalization, technological legislation dealing with compulsory
commitments in the 2014 Throne Speech change, the growth of the service interest arbitration for certain groups
and the Minister of Labour’s 2014 sector, and changes in the prevalence of workers.
Mandate Letter. We, C. Michael Mitchell
and characteristics of standard
and the Honourable John C. Murray, were We were tasked with examining academic
appointed to lead the Review, with the employment relationships. and inter-jurisdictional research, and
Minister stating that: soliciting input from the general public
The Review focuses on the Labour and stakeholders by holding consultation
Relations Act, 1995 (LRA) and the sessions and accepting written
The Changing Workplaces Review will
Employment Standards Act, 2000 (ESA). submissions.
consider the broader issues affecting The majority of sections under both Acts
the workplace and assess how the are in scope for the Review, with the We reported back to the Minister of
current labour and employment law following exceptions: Labour with our progress in February
2016 and released an Interim Report
framework addresses these trends and in July 2016. Our final report and
(1) construction industry provisions of
issues with a focus on the LRA and the the LRA; recommendations have now been
ESA. In particular, the Special Advisors (2) minimum wage; and submitted. This summary provides an
will seek to determine what changes, if overview of these recommendations.
(3) policy discussions for which
any, should be made to the legislation other independent processes have
in light of the changing nature of the been initiated.
workforce, the workplace, and the
Powers of Inspectors
In terms of administration and
enforcement, it is impractical to combine
the role of enforcement officers in
occupational health and safety and
employment standards immediately.
However, government should consider
some blending of the roles over time,
sharing of information between regulatory
programs and joint strategic approaches
to enforcement. A first step could be to
consider the necessary legislative and
program changes to authorize and require
officers to report any violation of labour
legislation that comes to their attention.
The creation of a “Workplace Rights Act” a) basic decent working conditions,
is an important step in creating a culture
of compliance. Currently, employee rights
in the workplace are established by three
b) a safe and healthy workplace,
c) the right to engage in unionization and “change,
To effect sustainable
it will be
meaningful collective bargaining.
pieces of legislation: the Employment critical to foster a culture of
Standards Act, 2000, the Labour The unification of the rights under the compliance where respect for
Relations Act, 1995, and Occupational single umbrella of a Workplace Rights minimum terms and conditions
Health and Safety Act. These Acts should Act should also assist in education, of employment and the rights
be consolidated into a single Act and interpretation, and enforcement.
should be more expressly focused on of employees to organize
workplace rights. Government, unions, employee advocates and to collectively bargain
The following principles are particularly breaches of the act do not occur. It is e) developing the capacity to link quickly
relevant to the ESA enforcement designed to address non-compliance to other sources of government data.
recommendations: at a systemic level and not only on the
basis of complaints. We recommend Law Enforcement Agency
yy increased awareness by employees a combination of existing and new
and employers of their ESA rights and As part of strategic management, the
measures for comprehensive strategic
obligations; Ministry must move closer to becoming a
enforcement that include:
yy increased protection for employees more traditional law enforcement agency
who exercise their ESA rights; a) allocating more resources to pro-active and less an agency involved in customer
enforcement initiatives (including spot service. There are several elements to
yy consistent and strategic enforcement; this change, including obtaining the
checks, audits, and inspections);
yy access to justice; and, capacity to mount public campaigns
b) increasing the use of targeted
yy stronger sanctions and deterrence. inspections particularly in sectors against systemic violations of the Act and
where there are large numbers of engaging in strategic litigation, but the
We commented on the extent of, and most important change is moving away
reasons for, non-compliance, and vulnerable and precariously employed
employees; from a complaint dominated system of
concluded that there are too many people enforcement.
in too many workplaces who do not c) increasing strategic capacity through
receive their basic rights. data collection and analysis of Campaigns to Counter
complaint data; Systemic Non-compliance
Strategic Enforcement – d) focusing at the top of industry
A Combination of Existing structures– the top of the supply chain New sector-based enforcement strategies
and New Approaches or franchisor for example – where need to be designed to change employer
decisions are made that influence behaviour and improve compliance with
Strategic enforcement involves a set of priority being given to those sectors where
policies and practices that have the goal compliance by those lower in the
chain; and, non-compliance is most problematic.
of changing employer conduct so that
”
a sectoral level. for assignment employees, all aspects secret ballot vote, if it is appropriate for
of the risk and liability, including the that sector.
responsibility for injuries suffered in the
workplace, should be with the client We also conclude that averaging overtime
employer, and not the agency. is a necessary and valuable tool for
In order to avoid impacting professional increasing employee flexibility in hours of
and higher skilled employees on longer work while not increasing employer costs,
assignments and projects, we have Hours of Work and Overtime
but that this ability to average should have
recommended an income cap on the Overall, we found that the existing system limits. For this reason, overtime averaging
operation of the recommendations of hours of work and overtime pay should only be permitted where it would
requiring equal treatment after six months. regulation work effectively, but we also allow for flexibilities like a compressed
note that the approach is complex and work week, continental shift or other
The termination pay provisions for
somewhat unconventional, and that some flexibilities in employee scheduling desired
assignment employees in the ESA are
provisions may pose difficult issues for by employees, or to provide for employer
very complex. It is doubtful if many
employers which could be addressed at a scheduling requirements where the
assignment employees fully understand
sectoral level. total number of hours worked does not
their entitlement, and this lack of
knowledge creates vulnerability. Under the exceed the threshold for overtime over the
averaging period.
The Labour Relations Act, 1995 (LRA) yy Members of the architectural, dental, approach must involve an integrated
is the primary statute regulating labour land surveying, legal or medical and comprehensive set of ideas, not
relations for most Ontario workplaces, in profession employed in a professional a hodgepodge of compromises and
the private and public sectors. capacity; and, cherry-picking. The most important
yy Agricultural and horticultural considerations are the criteria that lie at
Exclusions from employees. the heart of the constitutionally-protected
Collective Bargaining process of meaningful collective
In regard to agricultural and horticultural bargaining, namely employee choice and
The LRA does not apply to certain
employees, it is possible that a limited employee independence.
categories of employees. We recommend
exception might be warranted to exclude
that some of these exclusions be Freedom of choice by employees
some or all persons employed on a
removed. should be protected by a secret ballot
“family farm”. In addition, we recommend
that certain restrictions could be placed vote process that protects both choice
The review of current exclusions is
on strikes and lock-outs in respect of and secrecy, provided that the law also
informed by the recent jurisprudence from
agricultural workers. protects their independence to select
the Supreme Court of Canada finding
or reject a bargaining agent. Employer
that the right to meaningful collective
As with agricultural workers, we (or union) misconduct that undermines
bargaining is an essential component
recommend that certain restrictions on employee independence destroys the
of freedom of association, pursuant
strikes and lock-outs involving members reliability of the secret ballot process.
to section 2(d) of the Charter. On this
of these particular professions may be
basis, many of the exclusions in the LRA The current provisions of the LRA are
appropriate.
should be eliminated. In other words, not sufficiently responsive to the adverse
these employees should enjoy the rights impact that employer misconduct has
Acquisition of Bargaining Rights
and protections afforded by the Act. In on the rights of employees to free and
particular, we recommend that all of the In this controversial area of policy, there independent choice. The premise that
following groups of employees that are have been many changes to the rules steps can be taken to ensure a second
currently excluded should be covered: over the last 25 years by all political vote is sufficient to counter the effects
parties, without any independent or of employer misconduct is flawed. While
yy Domestics; outside assessment. The correct there may be rare cases where a union
yy Hunters and trappers;
In addition to the specific recommend In this regard, we recommend the creation INTRODUCTORY
ations about the legislative framework of a Workplace Forum to bring together RECOMMENDATIONS
and the administration of the programs, senior representatives of government,
we also make the following general business, organized labour and employee 1. We recommend that the Employment
recommendations: advocates on a regular basis. Standards Act, 2000, the Labour
Relations Act, 1995 and the
An Ontario Workplace Forum Institutionalizing Occupational Health and Safety
the Process of Review Act be consolidated under a single
There is a compelling case to be made for Workplace Rights Act and that the
bringing together government, business, Both Acts should be reviewed periodically three parts of this new Act be entitled:
labour and employee advocate leaders, to to consider their general effectiveness in Rights to Basic Terms and Conditions
discuss the broader trends and influences light of the changing economic, social, of Employment, Rights to Collective
affecting work and the workplace, to demographic and legal trends that affect Bargaining, and Rights to a Safe and
foster broader understanding of what work and the workplace. Healthy Workplace.
is occurring and potentially to find
consensus on possible solutions. We note the highly-politicized context in 2. We recommend that the government
which labour law reform has sometimes initiate a program of education for
Stakeholders often express their views occurred in past decades. The Changing employees and employers, both with
to government, but it is rare for senior Workplaces Review aimed to examine the respect to the Workplace Rights
government officials to engage with issues on an independent and apolitical Act and the rights and obligations of
business, labour, employee advocates in basis, with full and open consultation and employees and employers under each
the same forum. The lack of interaction a wide range of views were heard and part of the Act.
and ongoing discussion hinders the considered. This approach enables a
development of effective and balanced discussion and a range of possibilities that 3. We recommend that all Ministry of
public policy. Open dialogue may lead is superior to a process driven simply Labour inspectors and officials be
to a better appreciation of interests and by politics. authorized and required to report
perspectives, and on some issues, there any violation of labour legislation that
could be a convergence of interests. In this regard, Ontario should make an ongoing comes to their attention.
commitment to an independent review of
the legislation every five to seven years.
“should
including information from other online assistance for complainants
The Ministry of Labour
ministries of labour in other provinces, and employers in relation to
complaints that are not being be provided
which may help identify areas with a
investigated, which will provide both with additional funding
propensity towards non-compliance.
parties step-by-step guidance and sufficient to implement a
11. The Ministry of Labour should information regarding the available comprehensive strategic
be provided with additional procedure for processing and filing enforcement approach and to
funding sufficient to implement a complaints.
hire more officers to increase
comprehensive strategic enforcement
approach and to hire more officers to An Accessible Process for Complainants the capacity for conducting
increase the capacity for conducting to Have Claims, Not Investigated by the proactive and targeted
proactive and targeted inspections.
Ministry of Labour, Adjudicated
“consider
The government should
including basic
unjust dismissal for temporary foreign
workers prior to repatriation under the
her view.
Anonymous, Third Party, Whistleblower
terms of their work permit.
instruction on the rights and and Individual Complaints and
entitlements of employees Confidentiality of Identity of the
Access to Justice
Complainant
under the Employment Improving the Complaint and Review
Standards Act, 2000 in the Process – Assistance to Employee Anonymous Complaints
high school curriculum.
” Complainants
39. The Ministry of Labour should make
available, and widely publicize
35. Increase the resources and expand
the mandate of the Office of the on its website and elsewhere, an
32. Complaints of termination of Worker Advisor with a new funding Employment Standards Act, 2000
employment warranting speedy model developed to help employees hotline for the receipt of tips by
investigation should include cases with claims under the Employment telephone or online.
where an employer has refused to Standards Act, 2000.
allow an employee to return to work Confidentiality
after a leave of absence, pursuant to 36. The Ministry of Labour should,
40. In relation to education, awareness
the Employment Standards Act, 2000. in all judicial districts in Ontario,
programs and initiatives by the
develop and publish on its website
33. The Ministry of Labour should publish Ministry of Labour, it should
a list of lawyers in those districts
the policy and, in doing so, take steps be emphasized that good faith
who are prepared to provide pro
to clearly communicate the purpose whistleblower reportings of violations
bono assistance to employees and
and substance of the anti-reprisal are encouraged and protected under
employers.
protections of the Employment the Employment Standards Act, 2000.
Standards Act, 2000. 37. The Ministry of Labour should develop
41. The stated policy of the Employment
and publish a list of worker advocacy
Standards Program should be to
groups, trade unions, legal clinics and
protect against the disclosure to
others in Ontario who are prepared to
the employer of the identity of a
provide assistance to employees.
whistleblower complainant who
1. Note that the ability of an Employment Standards Officer to make an order under sections 81 (1) and 106 where insolvency proceedings have been
commenced will have to be adjusted once the insolvency requirement is removed.
“Labour
The Ministry of
should ensure
to the regulation of scheduling.
The government should include
the following:
Sick Days of its minimum requirements, but 122. Part X of the Employment Standards
employers can decide to add to Act, 2000 should be reviewed in its
117. An employer should be obligated the entitlements provided under entirety, revised, and replaced by
to pay for a doctor’s note if the that section. statutory provisions that are simpler
employer requires one. and easier to understand and apply.
d) Each franchisee would have franchisor, collective bargaining 160. The government should convene a
individual responsibility for with the franchisor employer consultation on whether the Labour
compliance with the resulting would be part of the franchisee Relations Act, 1995 should be
collective agreement and would central bargaining process. amended to include:
sign an agreement binding on f) In centralized bargaining, any
its location(s). In this model, strike or ratification vote would yy mandatory accreditation of
agreements by the parties to involve the entire constituency employer bargaining agencies;
distinct provisions applicable to of bargaining units and not the yy mandatory councils of unions;
some but not other franchisees individual bargaining units. and,
can be dealt with in collective yy mandatory certification for
bargaining. Publicly-Funded Home Care
multiple employers.
e) Multiple locations owned by the 158. The government should conduct
same franchisee, a common an expedited inquiry, in consultation
situation in the franchise industry, with the parties involved in the
RELATED AND JOINT
could be consolidated as a single government-funded home care EMPLOYER
bargaining unit by the Board industry, into whether and how
in appropriate circumstances Temporary Help Agencies
sectoral bargaining could be
pursuant to the recommendation established in the sector within a 161. Persons assigned by temporary help
on newly certified locations reasonable time frame. The inquiry agencies to perform work for clients
of a single employer, but that should include the issue of dispute of the agency, or persons assigned
employer would also participate resolution. by other suppliers of labour to
in central bargaining under perform work for a person, shall be
this recommendation as a Creative Sector deemed to be employees of the
franchisee of the same franchisor. client or of the person, respectively,
159. We recommend that Ontario
Similarly, if corporate stores for the purposes of the Labour
conduct an inquiry and consultation
owned by the franchisor of Relations Act, 1995.
with all affected interest groups to
the franchisees governed by
examine potential changes to the
central bargaining were certified,
laws, which affect how personal
Summary Report