Monday 19 August 1996
Employment Standards Improvement Act, 1996, Bill 49, Mrs Witmer / Loi de 1996 sur l'amélioration des normes d'emploi, projet de loi 49, Mme Witmer
Ministry of Labour
Ontario Chamber of Commerce
Ontario Federation of Labour
Information Technology Association of Canada for Ontario
Parkdale Community Legal Services
Communist Party of Canada (Ontario)
Centre for Spanish Speaking Peoples
United Steelworkers of America, District 6
Canadian Auto Workers -- Canada
Alliance of Manufacturers and Exporters Canada, Ontario division
Ajax-Pickering Board of Trade
Ontario Public Service Employees Union
Labour Behind the Label Coalition
Canadian Union of Public Employees Library Workers Committee
Super Fitness Teleworkers Support Group
Canadian Union of Public Employees, Local 1750
Ontario Hotel and Motel Association
Union of Needletrades, Industrial and Textile Employees
Canadian Union of Public Employees, Local 815
Ontario Secondary School Teachers' Federation
Markham Board of Trade
Injured Workers' Consultants
Canadian Union of Postal Workers
Donnelly Communications & Community Development (Toronto)
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Président: Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Président: Mrs Barbara Fisher (Bruce PC)
*Mr John R. Baird (Nepean PC)
Mr JackCarroll (Chatham-Kent PC)
*Mr DavidChristopherson (Hamilton Centre / -Centre ND)
*Mr TedChudleigh (Halton North / -Nord PC)
Ms MarilynChurley (Riverdale ND)
*Mr DwightDuncan (Windsor-Walkerville L)
*Mrs BarbaraFisher (Bruce PC)
*Mr SteveGilchrist (Scarborough East / -Est PC)
*Mr PatHoy (Essex-Kent L)
Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)
Mr BartMaves (Niagara Falls PC)
Mr BillMurdoch (Grey-Owen Sound PC)
*Mr Jerry J. Ouellette (Oshawa PC)
*Mr Joseph N. Tascona (Simcoe Centre PC)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr John C. Cleary (Cornwall L) for Mr Lalonde
Mr John R. O'Toole (Durham East / -Est PC) for Mr Carroll
Mr DerwynShea (High Park-Swansea PC) for Mr Maves
Clerk / Greffièr: Mr Douglas Arnott
Staff / Personnel: Mr Ray McLellan, research officer, Legislative Research Service
The committee met at 0906 in committee room 1.
EMPLOYMENT STANDARDS IMPROVEMENT ACT / LOI DE 1996 SUR L'AMÉLIORATION DES NORMES D'EMPLOI
Consideration of Bill 49, An Act to improve the Employment Standards Act / Projet de loi 49, Loi visant à améliorer la Loi sur les normes d'emploi.
The Chair (Mr Steve Gilchrist): Good morning. This is the first day of hearings on Bill 49. The first order of business this morning will be the report of the subcommittee on committee business. I believe every member has a copy in front of them. I'd ask someone to move the adoption of the subcommittee report. Mr O'Toole. Any comments? Additions? Seeing none, I'll put the question. All those in favour of the subcommittee report being adopted? Contrary? That motion carries.
We'll start the proceedings this morning with a 20-minute statement by the minister and then 20-minute responses by each of the two opposition parties. Good morning, minister.
MINISTER OF LABOUR
Hon Elizabeth Witmer (Minister of Labour): Thank you very much, Mr Chair, members of the committee. I'm pleased to be here this morning at the opening of public hearings into Bill 49. Our goal is legislation that makes the act's administration and enforcement more efficient and cost-effective, makes it more relevant --
The Chair: Excuse me. I must direct all those people in the room that the same rules about using props apply here that apply in the House. I'm going to ask you once only to please take your posters down and refrain from using them again or leave the room. Mr Clerk, would you take the appropriate steps to have those people removed from the room.
Sorry for the interruption, Minister. Please proceed.
Hon Mrs Witmer: As I indicated, our goal is legislation that's going to make the act's administration and enforcement more efficient and cost-effective. It's going to make it more relevant to today's workplace, it's going to encourage self-reliance and it's actually going to focus the ministry's resources on Ontario's most vulnerable workers.
Bill 49 will be followed by a complete review of the Employment Standards Act this fall in order to address the dramatic changes we are seeing in the nature of the labour market and the workplace. It is critical that our employment regulations be responsive to these changes as we endeavour to provide appropriate protection for employees.
Some of the key labour market changes that we are seeing are:
The dramatic growth of computer-based technological change.
The decline in the share of employment accounted for by the traditional manufacturing industries, accompanied by the growth of the service sector.
Changes in the distribution of the patterns of work time.
Non-standard employment arrangements of all types are becoming more prevalent, and about one third of all workers are now in these jobs. This includes home workers, part-time workers and other temporary employment relationships.
We are seeing changes in the composition of the labour force, as we see the growth in the percentage of families with both parents working outside of the home and an aging workforce.
We are also seeing the globalization of competition, resulting in the need for business to ensure that productivity in the workplace is maximized.
We must ensure that our act is relevant to the changing workplace and meets the needs of employers and employees. We also need to make sure that we administer the act efficiently and effectively to provide the best value for the taxpayers.
What I envision emerging from our work to reform the act is an Ontario with workplaces where the rights and responsibilities of employees and employers are balanced, fair and easily understood by both parties, and support the growth of the economy upon which, ultimately, the wellbeing of the worker depends.
To achieve these outcomes, we need to ensure that employees have the protection they need while balancing their rights and responsibilities; encourage self-reliance by the workplace parties; enhance flexibility; help the workplace parties comply with the law by making it easier to understand and apply; and ensure effective enforcement.
We also need to eliminate unnecessary regulation. The Carr-Gordon report to the government's Red Tape Review Commission recently concluded that many employers, especially those that are small and medium businesses, see Ministry of Labour laws and regulations as an obstacle to growth and job creation. This reflects the fact that Ontario's approach to workplace regulation has not kept pace with the massive changes in the labour market that we have seen in the past 15 to 20 years.
In the case of the Employment Standards Act, as amendments have continued to be added, the act has become increasingly complex and very confusing for employers and employees. Patching up here and there, as previous governments have done since 1974, will no longer suffice. We need a full-scale, comprehensive debate about what type of Employment Standards Act will best serve the people of this province into the next century. Who should be covered and what standards should we have are two of the questions we need to answer. So we are going forward. Bill 49 is the first step, and then the full review and the release of a discussion paper in the fall.
Let us take a look at Bill 49. Bill 49 is primarily about improving the administration and enforcement of the act. It will also help us focus our resources where they are most needed; that is, to help the most vulnerable. The changes will result in fewer complaints, reduced duplication and increased flexibility in the resolution of complaints, and will promote self-reliance for the workplace parties to resolve their disputes. I believe that when people resolve their own differences and find solutions, they are more inclined to make the outcome work, and people will have a chance to do that.
One of the key elements of Bill 49 is our proposal to replace the current two-year limitation period for filing a claim with a six-month limitation. This new period is in line with other provinces such as Newfoundland, Nova Scotia, Manitoba, Alberta and British Columbia. In fact, almost 90% of claims today are already filed within six months. Change is necessary, because it is difficult to investigate claims that are brought forward long after the alleged violations occurred. Evidence is more difficult to obtain, witnesses become more unreliable and the effort expended to resolve these cases is out of proportion to the benefits received by the claimants in the end. Filing a claim within six months will result in speedier resolution of complaints and allow employees to receive the money owed to them more quickly. It will also improve compliance, since in many situations employers do not know that they are violating the act.
Bill 49 will also place a $10,000 ceiling on the value of orders that can be issued by an employment standards officer on behalf of an individual claimant. Employees who wish to make a claim for more than $10,000 will now be required to do so through the courts. However, this provision would not prevent them from pursuing claims for more than $10,000 through the employment standards branch, although the order would only be issued for up to $10,000. The bill does make an exception for large claims that arise out of violations where reinstatement is a remedy, since the courts will not usually provide for reinstatement.
Employees can be reinstated for violations of such standards as pregnancy and parental leave or the right to refuse Sunday work in the retail industry. Since the courts are reluctant to grant reinstatement, I believe it is important to allow such cases to continue to be pursued through the employment standards program.
I would remind committee members that until 1991 there was a $4,000 cap on claims, excluding termination and severance pay. I also think you need to know that the percentage of individual claims that exceed $10,000 is about 4% and usually involves individuals in executive positions. Unfortunately, removal of the limit on claims in 1991 had the effect of encouraging employees with large claims to file a complaint with the ministry as well as pursuing civil action. This is an unnecessary duplication of effort and waste of taxpayer money. Moreover, the 4% of the individual cases above the $10,000 limit have taken up a disproportionate amount of the ministry's resources because they are often very complex. We believe our resources should be devoted to helping those with smaller claims where an alternative remedy is not practical.
Another key feature of the bill is that employees will have to decide at the outset whether they wish to file an employment standards claim or take the matter to court. There will be a two-week grace period for all applicants to obtain legal advice and consider their options. In the past an employee may have tried to address a claim through both the ministry and the courts at the same time or in consecutive fashion. This meant that the taxpayers paid twice for these costly processes. This is consistent with other provinces where employees must also choose whether to pursue claims through the government process or the courts. Although the legislation enables us to set a minimum claim amount, I want to stress that we have no plans to do so.
Another key change involves giving our employment standards officers the power to mediate and resolve complaints upon the mutual agreement of the parties before conducting a time-consuming full-scale investigation. The authority to settle complaints at the outset is going to expedite dispute resolution and it's going to reduce costs and help the parties establish a stronger employment relationship and encourage self-reliance.
Bill 49 is also going to lengthen the period in which claimants or employers can appeal decisions on employment standards claims from 15 to 45 days. Both parties will benefit from the longer period of time to consult with legal counsel to consider whether an appeal is warranted. We get many requests presently for additional time.
We are also clarifying certain limitation periods to ensure greater certainty for employers and employees and to enhance compliance.
To eliminate the confusion associated with launching a proceeding or a prosecution under the ESA, the act will be changed to specify clearly that an employment standards officer must issue or refuse to issue an order to an employer to pay within two years of complaint. Where an investigation of a claim brings to light the violations affecting employees other than the complainant, an officer will be able to issue an order up to two years after these other violations are discovered.
We're also clarifying the need for launching a prosecution. The two-year time limit will remain.
Finally, we are ensuring that as a result of a successful prosecution a court can order the payment of money owed to an employee even if the time limitation has expired by the time the decision is made.
Bill 49 also clarifies employer rights under the pregnancy and parental leave provisions. The intent of these provisions was to ensure that any entitlement based upon length of service, such as vacation, termination and severance, would continue to accrue during pregnancy and parental leave. However, based upon the wording in the current act, adjudicators have interpreted these sections more narrowly. We want to make sure these provisions read as they are intended to, and this is going to reduce claims and litigation in this area.
In addition, the bill will change the act so that the parties to a collective agreement will be expected to manage the resolution of all of their disputes in the same manner; that is, they will be asked to resolve disputes through the grievance procedure set out in their collective agreement. Most employment standards complaints in unionized workplaces today already use that method. That is going to allow the ministry staff to devote more time to dealing with claims that are made by non-union employees who do not have access to formal grievance procedures and will help us provide better and faster service.
We are also proposing to utilize private collection agencies to recover money owed to employees by employers. This is a very time-consuming and expensive service which can be better provided through the specialized services available in the private sector. This will result in employees receiving money owed to them more often and more quickly. Currently, about two thirds of orders to pay are never collected. We expect that the more rigorous collection of orders will put more money into the hands of workers and result in increased employer compliance with the act and the orders to pay.
What this will do is allow our employment standards officers to concentrate on the work of enforcement. Unfortunately, since 1993, when the previous government disbanded the ministry's collection unit and discharged 10 employees, our ESOs have been expected to add collections to their workload.
We are also making a number of changes to modernize the system to provide for better enforcement of standards. Employees will be able to file their complaints with us by fax, investigating officers will have access to electronic records and the ministry will be able to serve notice on the parties by any form of verified delivery.
Other Bill 49 amendments clean up language in the act, simplifying some sections and making it easier to understand.
Lastly, members will recall that Bill 49 includes a provision intended to increase the flexibility of unions and management to negotiate certain employment standards as part of their collective agreements. We believe that freely negotiated terms and conditions of employment not only reflect the needs of the changing workplace and employer-employee relationship but that they encourage greater compliance with the act. Our proposal would therefore allow the workplace parties to negotiate a package of standards for hours of work, overtime pay, paid vacation, public holidays and severance pay so long as the overall package exceeds the standards set by the act.
We remain committed to providing this flexibility to the workplace parties and we have been asked for that flexibility. However, given that we are going to have a fuller discussion about the framework of employment standards during the upcoming fall review of the act, we believe this provision should be considered in the context of the future discussions and I am proposing to move that provision out of Bill 49 and into the comprehensive review.
That concludes my presentation on the content of Bill 49. However, I want to make a few comments regarding some of the criticism that I know is going to be levelled within the next few weeks. First of all, I want you to know that I agree with many of the problems that have been identified by the critics of the Employment Standards Act. They are not new problems. They have lingered without the attention of previous governments for years.
This government has decided that we are going to attempt a complete review of the act and we are going to change that. In fact, we have been vigorously dealing with the backlog, and I want you to know that the backlog is the smallest it has been in five years. Last year we had a backlog of 4,000. This year our backlog is down to 2,600.
We are concerned about employment standards. We are concerned about protection. We know the legislation is out of date; we know it cannot be properly enforced; we know it's been that way for years. As I said before, previous governments have not attempted to make any changes. They have simply amended it. They've made it more complex. We want to change that.
Unfortunately, the Employment Standards Act has stood still while the workforce and work itself have changed dramatically. That's why the act does not provide adequate protection for some emerging jobs, such as telemarketing, and the changing structure of work in the garment industry. The comprehensive review of the act that we are proposing to do is going to address those problems.
The purpose of the Employment Standards Act is to establish appropriate minimum standards for vulnerable employees and I intend to do exactly that. I intend to do it in a meaningful and an understandable way, and I'm going to do it in consultation with the employers, the employees and the trade unions.
This bill does not take minimum standards away from vulnerable employees. On the contrary, what Bill 49 is going to do is to allow for more effective enforcement and it's going to help us to focus our resources where they can be most helpful. So we, for the first time since 1974, are going to address the problems that the critics of the Employment Standards Act have identified for years. This is an opportunity for all of the critics to work with us, help us to understand how we can make the act better, how we can ensure that we have the basic protection that is necessary for employees and who should be covered by the act.
I welcome your input now on Bill 49. I look forward to your input as we review the entire act. When we are finished, Ontario's employers and employees will have an act which balances the rights and responsibilities of the workplace parties and which much better protects Ontario's most vulnerable employees. It will be an act that responds to the changing labour market, the changing workplace and employee-employer relationship. Ultimately, it is going to contribute to the economic growth of our province and mean more jobs for our people.
I look forward to your deliberations. I look forward to your constructive advice in order to help us make the act better and I thank you for your participation in the public hearings.
The Chair: Thank you, Minister.
The Chair: Sir, you're out of order.
The Chair: Take your seat, please, sir.
The Chair: Take your seat or leave the room, please, sir. Clerk, would you please direct security to remove the person. Mr Duncan.
The Chair: Sir, there was an advertisement --
The Chair: The sort of disrespect you're showing today, sir, certainly won't further your case.
Mr Duncan, 20 minutes for the official opposition.
Mr Dwight Duncan (Windsor-Walkerville): We in the official opposition welcome the opportunity to discuss the Employment Standards Act and discuss the reform of the Employment Standards Act. We believe, and I said in the House and a number of my colleagues have said, that the Employment Standards Act indeed merits a full and thorough review, both in terms of workplace conditions as well as recognizing the broad changes that are sweeping through the economy today.
The history of the Employment Standards Act in this province goes back well before the early 1970s to the mid-1930s, when it was introduced and originally designed to keep unions out of Ontario and to provide an opportunity for governments to hamper the efforts of the unorganized to organize themselves and those who were vulnerable in workplaces to be protected.
When the minister speaks of reform and suggests to us that the government's intention is to protect vulnerable workers, I don't think we should be surprised when people come to hearings and speak publicly in communities that they're angry and they don't believe it. The facts belie the minister's undertakings.
First, this bill is a major piece of legislation whose first priority, I think, is to implement the cuts in funding that the government has taken to the employment practices branch of the ministry. The minister did not mention in her remarks that her government has cut the money available for enforcement by 26.6%, or $16 million. The minister did not note that the number of officers available to enforce the act has been reduced by 45. We are all cognizant of the backlogs and the difficulty government has in enforcing statutes like the Employment Standards Act.
For a government that is intent on public hearings and public consultations, I guess in light of your record, Minister -- Bill 7 I remember vividly. A huge statute that amended every aspect of labour-employer relationships in this province was passed and became law without public hearings, without discussion to even look at the broad number of amendments your government brought forward at the last minute. I submit that this government has created a climate of labour market instability, one which ultimately will cost not only those vulnerable workers whom you have abandoned but the employer community through days lost to strikes, to work actions, to less productivity and less efficient workplaces.
I submit that if the government was serious in its approach to amendments to the Employment Standards Act -- the minister suggests on the one hand that we've had an ad hoc approach over the past 23 years. I would submit if it was the minister's intention to deal systematically with the act, she would not bring forward her changes in a piecemeal fashion. I would submit, as my colleagues opposite have said, that if we were intent on looking at modern workplaces and adopting our workplace protection legislation to reflect modern reality and also do it recognizing the financial constraints that any government would be placed under, we would be doing it all at once. We would be dealing with the real issues.
One of the reasons the Employment Standards Act hasn't been amended in a systematic and comprehensive fashion, quite frankly, is that the statute touches on more workplaces and employees than any other piece of legislation that we will deal with. Historically, the minister will be aware, both employers and workers get very nervous indeed whenever you put this statute on the table for discussion. That is not to suggest for one minute that we ought not to, because I concur with the minister that we ought to be paying a lot of attention to this statute today. But I would submit that if the government were serious in its approach to reforming how we protect workers in this province and how we enforce minimum standards and how we cope with employment practices in this province, the government would have held a royal commission on the Employment Standards Act prior to bringing forward legislation. They would have done their full discussion paper prior to cutting $16 million from the budget of the employment practices branch of the ministry.
I would submit further that the reality of the amendments contained in Bill 49 belie the minister's statement that this is not an assault on the minimum standards that employees in this province have enjoyed. The minister argues that the changes in some of what she would term more administrative issues to provide better enforcement really don't affect 90%. The problem, Minister, is that the Employment Standards Act is present to protect the 10%.
All of us in this room, I think, would acknowledge that the vast majority of employers in this province are good employers and all of us would acknowledge that the intent of government or the intent of an Employment Standards Act ought not be to penalize employers. But we also acknowledge and we have seen as recently as this spring, literally a week before you introduced your bill, that sweatshops still exist and people feel vulnerable.
I would submit, Minister, that this legislation puts the province on the slippery slope to a right-to-work jurisdiction. That doesn't surprise me, because the minister's actions to date and the statements of her colleagues in the House indicate unequivocally that that wouldn't be such a bad thing from their perspective.
When you provide an opportunity in a collective bargaining situation for certain minimum standards to be bargained away, as you have done in this legislation, in exchange for some undefined, comprehensive minimum standard, what you do is set up a condition whereby if ABC widget manufacturer that's unionized negotiates an agreement like that here, then XYZ widget manufacturer, who's not organized, will want the same flexibility. I would submit that this type of approach is wrong and that in fact the bill and the government's agenda with respect to employment standards have a lot more to do with saving money than protecting workers. The government's approach has not been balanced and has not been fair, I say with respect to the minister.
If the government were being balanced and attempting to be fair, we would have a comprehensive review of the statute now. We wouldn't be dealing with it in an ad hoc fashion as the minister is doing. The minister takes great pride in saying, "We're going to deal with it," and criticizing previous governments for dealing with the statute in an ad hoc fashion, and yet her first move in the area of employment standards is to bring in ad hoc amendments to the legislation.
We regret the course that the government has taken on this bill because it's going to further poison the ability to have a discussion around modernizing employment standards. We won't be able to discuss, I think, down the road issues around corporate responsibility. We won't be able to discuss, without the poison that's been put into this climate, the difficulties that both employers and employees have in the modern economy.
We would welcome a full-scale, comprehensive debate. We would like to talk about the statute in terms of its entirety, but we believe the government is continuing to pursue an agenda that is unbalanced and unfair and does not address the needs of all workplace parties. It is our view that the labour market instability that's been created by this government, first through Bill 7, through its WCB reforms, through its proposals with respect to occupational health and safety, will be further enhanced by this legislation.
While we recognize Ontario's place in a global economy, we don't believe Ontario ought to be a lowest-common-denominator province. We believe Ontario should lead. We believe our competitive advantages are in areas of high technology with a highly skilled, highly trained workforce, and we also believe that Ontario ought to be better than other jurisdictions. We ought to afford protections that aren't available in other jurisdictions. We believe the productivity gains that we've seen in our workforce in the last 15 years ought to be recognized with better wages and better protection for the most vulnerable.
We think the government's approach on employment standards looks backwards, shows no vision and is designed not to protect workers, not to provide more efficient enforcement of minimum standards, but rather to save money. That's not a bad thing in and of itself. I don't think anybody in this room would disagree, if we can do more for less, that we ought to, but we think that those savings and where we make our choices and where we set our priorities speak volumes about what the real intention is, both in this legislation and in other statutes and other initiatives the government has undertaken.
So we too welcome the opportunity to listen to what the people here and across the province have said. I have had the opportunity to meet with, as the minister and the critic for the third party have said, literally hundreds of people in the course of the last few months, and we welcome the opportunity to hear what people have to say, employers and employees.
I say to the minister, we would welcome and we would support her if she withdrew this bill and took its most controversial provisions and put it into the full discussion of the Employment Standards Act, which is going to start in four months in any event. But we know that this bill is not about protecting workers and about efficiencies.
Mr Duncan: Are you agreeing to it?
Mr John R. Baird (Nepean): She did. Didn't you listen to her opening remarks?
Mr Duncan: You're prepared to withdraw the bill and --
Mr Duncan: I would like you to withdraw the bill and put it all into one set of hearings and discussions and we could proceed. But the government's agenda here has nothing to do with employment standards. It has nothing to do with protecting injured workers. It has everything to do with cutting and with implementing the budget cuts that they talked about.
To conclude, while we would like to find a way to do more with less and we're prepared to listen to ideas that people have around enforcement, we don't think you begin by stripping minimum rights from vulnerable workers.
We look forward to the discussions that are going to go on over the next four weeks and we look forward to the minister joining us in those discussions as we travel Ontario.
The Chair: Thank you, Mr Duncan. We'll now have 20 minutes from the third party.
Mr David Christopherson (Hamilton Centre): The Employment Standards Act in the province of Ontario is very much the only real workers' bill of rights that exists, and Bill 49, entitled the Employment Standards Improvement Act, is an insult to the workers of this province and an insult to the bill of rights that they now have.
This government brought forward a bill into the House, having met with Ontario labour leaders, and said: "These are minor changes. They are of a housekeeping nature only. There's nothing here that anyone should be concerned about." Many of Ontario's labour leaders went off to a national labour conference. When the bill was dropped on the floor of the House, we saw very clearly that there were major changes here, that many rights that workers now have -- there's no improvement here. These are rights that are being taken away from workers and it was very clear in the legislation.
The only reason we're having these hearings is because the New Democrats stood up and said, "You're not going to get away with taking away these rights without at least giving the people of Ontario an opportunity to be heard." That's the only reason we're here today and everybody knows it.
I would say to you that given the fact that you're pulling back one of the more controversial issues, which is the flexible standards, you're already starting to cave in because you have no credibility on this issue. You said this was minor housekeeping and you've already said, "There's one in here that's so controversial, we're going to pull it back." We're going to suggest to you over the course of the next four weeks that there are a lot of changes in here that are major in nature and take away major rights, and this is only the beginning.
You've already said that you want to take a year to look at a major overhaul of the Employment Standards Act. Then why on earth would you bring forward a document, having told people these are minor changes, and say that you're going to take another year to look at the rest of the bill?
There's only one reason for that. You need to make these changes so that you can lay off the people in the Ministry of Labour who are necessary for you to reach your target figures for fiscal reduction, to slash the budget of the Ministry of Labour. The way you do that is by making sure there aren't rights to be enforced. If you take away the rights in the law that need to be enforced, you don't need as many people to enforce them. So you can lay those workers off, lay off those enforcement officers. That's how you're going to save your money. You're going to save money, as you have in every ministry in this government, on the backs of the most vulnerable people in our society, and this is no different.
We've said from the beginning that every time you suggest a change to labour laws in this province, you need at the very least to have public hearings. Minister, you talk about the fact that your government cares about workers and you care about injured workers and you care about what people have to say and you care about listening. Where were you listening on Bill 7?
Bill 7 went well beyond the mandate that you ran on. I grant you, you ran on a platform of revoking Bill 40, and when you brought in Bill 7, it went well beyond that. You took away and changed measures in that law that you did not talk about in the election campaign. They're not contained in the Common Sense Revolution. You tabled that document and you rammed it through the House without one day of hearings. Then you have the gall to say to the people of Ontario that you care about what they have to say about things.
It's an insult, Minister. It's an insult when you take a look at your track record. On top of Bill 7, we've already had Bill 15, where you took away workers' rights to have an equal say on the running of the Workers' Compensation Board. You've already done that. We've got Cam Jackson's report floating around, which is an attack on benefits to injured workers, when you ran on a platform of saying you would never do anything to hurt injured Ontarians; disabled Ontarians need not fear this government. Yet your intent on WCB reform is clearly to take away benefits and rights that injured workers deserve. That's your agenda. You've already killed the Workplace Health and Safety Agency; again, a proven entity that gave results and gave workers an equal say in planning and training around occupational workplace health and safety. You've killed it.
You've slashed the minimum training necessary for members of joint health and safety committees. People are active in plants and offices. You've already slashed the minimum required time for training there.
You're gutting your own ministry. There's not a chance in hell that you can take out the kind of money that you're going to take out of this ministry and lay off the number of workers in that ministry without affecting the ability of the most vulnerable workers in Ontario to have their rights protected.
You've stated that you're going to open up the Occupational Health and Safety Act. Nobody believes that you're going in there to make that better for workers. Oh, you'll probably put a title on it, as you did this. You'll probably say, "An improvement to the Occupational Health and Safety Act." More Orwellian doublespeak. And then inside the bill you'll take away one right after another right after another right, and when you add it up, this government has a track record that's there to be seen.
It's not rhetoric. Go look at the record. You have set out to change the balance of power in this province from one of saying that there needs to be fairness and balance to one of saying, "Workers and their powerful unions have far too much power and we've got to take some of that away and give it back to the employers because that's how we're going to be competitive with Mexico and other Third World nations." That's what your vision and future of this province is all about. This bill is a part of that. But it's only the beginning.
We know that when you take away the shorter complaint period -- you can throw all the stuff you want, Minister, on the floor as to why you're doing it, but the reality is there is no improvement in saying to workers: "You no longer have two years to file a claim. You only have six months." Even the Tories can't twist that enough to make it sound like an improvement.
You're lowering the maximum claim available from one right now that says, "Whatever you're owed, you're legally and legitimately entitled to go after, and our ministry will ensure that those rights that you have to go after that money are in place." You've said now there's a cap of $10,000. How on earth do you expect any worker to believe that this somehow benefits them? Before you had this bill, they could go for whatever they were owed. Now they can only go for $10,000. No matter what the circumstance, they can only go for $10,000. How is that an improvement?
Oh, you're going to talk about exceptions and I can hear John Baird, the wheels turning in his head already. All these arguments are going to come out. But the fact of the matter is, if you cared so much about making sure workers could collect that money, you wouldn't bring in the cap in the first place. You must think the people of Ontario are stupid, and that's what's so insulting, Minister, that you don't even have the decency to say, "Yes, we're going to slash the benefits and rights that workers have because we think that's the best way to go to help our business friends and because that's the vision we have of Ontario." At least then you'd be upfront and honest about what you're doing.
You're now going to bring in a minimum claim. In the bill you said there will be the allowance, enabling legislation to allow your cabinet to bring in a minimum level that one can go after. We don't know what that is right now. Unless you're prepared to tell us today what that is, we don't know. Quite frankly, whatever it is that you announce when the spotlight is on can be changed through another decision of cabinet at the very next cabinet meeting. So the fact is, you've decided that at some point, whether it's $250 or $150, those amounts aren't important enough for workers to have the right to go after. There can be no other explanation. You've decided that's not important. Well, that kind of money may not matter much to you and a lot of your very rich and powerful friends, but that means an awful lot to the most vulnerable people in our society. You remember them -- the poor people, the working poor, the ones who are paying the price for your 30% tax cut, because people making $250,000 a year aren't paying for your tax cut.
You haven't done anything to the people who already have in this province. There's no fairness in this agenda. It's all about taking from those who don't have and giving to those who already have. It is that simple. It's not that different from what Ralph Klein is doing out in the west; it's not that different from what Newt Gingrich and Bob Dole are talking about in the States. This must have been a big week for you, listening to all that hard, right-wing nonsense coming out of the States. All of you must have been huddled around your TVs drooling, listening to the message coming out of there, because that's what you want Ontario to be.
You're going to privatize the collection agency. If there's an argument to be made that there's a better way to do it, you would have a lot more credibility and have a lot more people willing to listen to you if you didn't have a constant mantra that says, "If it moves, privatize it." No matter what, you just so fundamentally believe that whatever it is, it's got to be better if it's privatized. So you have no credibility on this issue.
When we look at the procedures that are being put in place, you're denying workers options that they now legally have. Remember, the whole purpose of the bill is to help workers, protect workers. It's not supposed to be to go after them and punish them. They are the wronged party in these cases. That's why the ministry is there; that's why the enforcement branch is there. When you put in procedures that deny options to workers as to whether they can go through a civil suit or go through the ministry or go through a grievance procedure, you eliminate some of those procedures, you're denying workers options that allow them to maximize their rights, because all they're asking for in most cases is money that they're owed.
You're saying to them now in this bill: "We're no longer in the business in the Ministry of Labour of protecting your rights and going after the bad bosses. That's no longer our business. Maybe what you need to do is to go off to the courts." Again, courts cost money. Most of the people who need the Employment Standards Act are people who don't have good collective agreements, because in most cases good collective agreements go well beyond the basic, fundamental bill of rights.
You don't seem to have a concept of who's affected. These are workers. Many of them are immigrant workers. Many of them are women. Many of them are on the borderline of poverty. They can't just call up their buddy the lawyer or run up whatever a legal bill costs, because in most cases they don't have that kind of money, and perhaps the amount of money involved doesn't warrant it. In many cases, as a result of this bill money that workers are legitimately owed will be denied to them. Why doesn't that seem to bother you? Why do you feel so comfortable protecting the most powerful and giving the back of your hand to the most vulnerable?
You've already told us this is only the beginning. Doesn't that make everybody in the province feel good? More of this is to come. We still haven't seen the final review. Your discussion paper's not out yet. You've said you're going to open up the Occupational Health and Safety Act. We know you're going after injured workers under WCB. God knows what else you're dreaming up in the background that you're going to ram through while you still have power in this province.
I want to close my comments by again reinforcing the message that I opened with, and that is that the only reason we're having these hearings is because the NDP led the fight to force you to have public hearings. It's a minor victory that you're at least pulling the issue of flexible standards off the table. I think it's because you know that with that you have no credibility, no ability to say that these are only minor and housekeeping.
Let me say this: If you also think even for a moment that by pulling that clause out -- which in this case is the one that affects organized labour, unions the most, because not all but most of the other clauses in this bill relate to non-union employees -- the labour movement is going to back away because you've taken away one of the more controversial issues around it, you've got a surprise coming, because organized labour is linked with the unorganized in this province, community groups, legal clinics, organizations that are helping immigrant workers, all those most vulnerable, and there's a coalition developing around this. I assure you that the Ontario Federation of Labour and the rest of the organized labour movement are not going to back away because you've thrown some bone out here today. They're going to stay on you, stay on this issue and stay on this government all the way through these hearings. Every time you go after workers, they're going to be there defending the most vulnerable, because this government sure isn't.
ONTARIO CHAMBER OF COMMERCE
The Chair: We'll now have our first presentation of the day, the Ontario Chamber of Commerce. We're right on schedule. Good morning.
Mr Ian Cunningham: Good morning, Chairman and members of the committee. My name is Ian Cunningham. I'm the director of policy on the staff at the Ontario Chamber of Commerce. With me this morning is Jennifer Wootton-Regan, a member of our employer-employee relations committee. Jennifer is a lawyer who practises exclusively in the area of employment matters. She met with employers, other employer groups and many of her colleagues to facilitate the chamber's brief this morning, so I'll turn it over to Jennifer.
Ms Jennifer Wootton-Regan: Good morning. Let me just start by advising you that the Ontario Chamber of Commerce represents over 200 community chambers and boards and over 65,000 employers in this province. Our members include both large and small enterprises in all sectors of the economy. We welcome this opportunity to meet with you today and to address Bill 49, the proposed employment standards improvement legislation.
We wish to state at the outset that the Ontario Chamber of Commerce applauds the government's action in undertaking a two-stage reform of the Employment Standards Act, and we support Bill 49 as the first step in that process. The Employment Standards Act itself has become outdated, particularly in light of the ever-changing nature of work. It fails to take into account the realities of an evolving workplace. It also does not afford employers and employees the necessary flexibility that would benefit all workplace parties. Indeed, as legislation added to over the years without a complete inquiry into its underlying framework, the act has become cumbersome and distinctly non-user-friendly. With respect to the plethora of exemptions under the act, the 1987 Donner report stated, "The complete picture of exemptions is difficult to piece together from the act itself, since the exemptions appear in so many different sections." To these ends, the chamber enthusiastically awaits the second phase of reform and supports the stated goals of promoting greater self-reliance and flexibility among the workplace parties.
The government has stated, and the minister has reiterated today, that Bill 49 has three goals: to allow the Ministry of Labour to administer the Employment Standards Act more resource-efficiently; to promote self-reliance and flexibility among the workplace parties; and to simplify and improve some of the act's language. The chamber not only supports these goals but believes that Bill 49 meets them. In so doing, the bill continues to protect minimum employment standards for workers. Any claims that Bill 49 lowers minimum standards are not justifiable. On the contrary, for example, section 12 of the bill, dealing with the accrual of rights during pregnancy or parental leave, is an enhancement of the generally accepted interpretation of the current right in the act.
Now we'd like to comment on some particular provisions of Bill 49 which the chamber supports. The chamber is very supportive of those provisions which eliminate duplicate claims, limit recovery of money to a six-month period and extend the appeal period.
Employers are increasingly faced with defending claims of the same nature, or for the same remedy, in multiple forums. The problem is not restricted to employment standards complaints. It also spans a variety of employment-related statutes. However, in dealing strictly with the Employment Standards Act, non-unionized employees are able to have their employment standards disputes dealt with by the courts in wrongful dismissal actions as well as by the employment standards branch. Unionized employees are able to file grievances under a collective agreement to be dealt with in the grievance and arbitration process and may also file complaints with the employment standards branch. Employers are often left vulnerable to defending the same dispute in multiple forums and must bear the associated costs. The public purse is often also unfairly burdened. In the case of multiple claims in the courts and to the employment standards branch, duplicative public resources are spent. These resources would be more efficiently utilized in a single forum. Given these facts, the chamber supports those provisions of Bill 49 that would eliminate the ability to pursue duplicative claims in multiple forums.
The chamber is also very supportive of the proposed provision of Bill 49 which would limit the entitlement to recover money under the act to six months instead of the current two years. The proposed provision places, quite properly, an onus on employees to make complaints in a timely manner. Delays in making complaints often create an unfairness to the employer in providing a defence. In addition, the older the complaint, the longer and more difficult will be the investigation with its consequentially greater costs.
The chamber is also very supportive of the proposed change to increase the time limit to appeal employment standards officer orders from 15 to 45 days. The chamber believes that the increased appeal period provides a more reasonable time in which to do several things: allow the parties to negotiate a settlement in lieu of proceeding with an appeal; fully consider the merits of filing an appeal; and, given that the Employment Standards Act requires the employer to pay the amount of the order plus administration costs to the director in order to even apply for an appeal, make the payment. In many cases the current 15-day period causes a hardship to employers.
Notwithstanding the chamber's support of Bill 49, we believe there are some provisions of the bill that require some clarification and further thought. To that end, we're going to propose a series of questions, primarily dealing with section 20 of the bill regarding enforcement of the act through the grievance and arbitration procedure.
First, is it appropriate to grant arbitrators the power to make any order that an employment standards officer is able to make? Under the act, employment standards officers have the power to investigate complaints, require production of documents for inspection and make inquiries of any person relevant to the investigation. It is unclear from the proposed amendments whether arbitrators are also to be given these powers. The chamber believes that the arbitrators should not be taking on this role, as any arbitration hearing will only take place after the various steps of the grievance procedure. The arbitrators' authority should extend only to adjudicating the complaint, with the grievance procedure taking the place of the investigation.
We also ask whether it's appropriate to grant arbitrators the jurisdiction to enforce all provisions of the Employment Standards Act. The proposed amendments grant arbitrators the jurisdiction to enforce the entire act, and the chamber believes there are some provisions which should not be enforceable by an arbitrator under a collective agreement between an employer and a union. For example, under the proposed amendments an arbitrator would have the jurisdiction to make a related employer declaration. This would unnecessarily complicate and lengthen any hearing. The chamber believes that the related employer provisions of the act are unclear and need to be amended in any event.
We also ask, what is the process to appeal or review an arbitration decision enforcing the act? The bill is unclear about whether an arbitration decision may be appealed or if it is to be final and binding and therefore may only be judicially reviewed. The proposed provisions state that an arbitrator may make any order of an employment standards officer. Under the act, the officer's orders can be appealed to an adjudicator or referee. It is therefore arguable that an arbitrator's decision could be appealed to an adjudicator or referee. Whether or not the government intended that an arbitrator's ruling be an extra step in the employment standards adjudicative process or replace the referee/adjudicator decision is unclear.
We also ask whether the time lines in the Employment Standards Act or the collective agreement are to prevail. All collective agreements set out time lines in which grievances must be filed and processed. In many cases these time lines will be different from the act's. These facts necessarily raise the question of which time lines are to prevail. For example, most collective agreements require that grievances be filed within a particular time period following the events giving rise to the grievance. That time period is sometimes in the neighbourhood of five to 10 days. Under the bill, however, complaints may be filed in a six-month period. The chamber believes that collective agreement time lines should prevail in order to ensure consistency. Indeed, grievances will be filed which will allege both violations of the Employment Standards Act and violations of the collective agreement. In such cases, consistent time limits would be very important.
It is also unclear from the proposed amendments whether an arbitrator's ability to award damages will be restricted by the six-month recovery limit. The bill in not clear in this regard. However, the chamber believes that the remedial jurisdiction of arbitrators should also be restricted in order to provide equal rights to all employees.
The final question we ask is whether expedited arbitration pursuant to the Labour Relations Act is available for grievances seeking to enforce the Employment Standards Act. Again, the proposed amendments are unclear in this regard. However, the chamber would support the availability of expedited arbitration.
Finally, the chamber supports the minister's proposal this morning which would see the provisions of Bill 49, specifically section 3, that allow for a greater right or benefit assessment as a package to be moved to the second phase of reform. The chamber strongly believes that allowing a greater right or benefit as a package is a fundamentally important component of allowing workplace parties the freedom to mutually agree to arrangements which, if viewed separately, would not be in compliance with the act. As we've stated, the chamber supports the goal of promoting self-reliance and flexibility, and the ability to assess greater right or benefit as a package would help to achieve such a goal. The chamber believes that the current section 3 of the bill does require some clarification and expansion and raises concerns regarding the practical implementation. We support the proposal that it be moved to phase 2 and we would be enthusiastic to see this theme re-emerge in the second phase of reform.
In conclusion, the chamber supports the two-stage Employment Standards Act reform process and supports Bill 49 as the first step in the process. Notwithstanding this support, we would urge consideration of the various questions we've spoken about today in order to clarify certain of the proposed amendments.
We thank you for this opportunity to make our submission and welcome any questions you may have.
The Chair: Thank you both. Your timing is bang on, almost to the second. Thank you both for taking the time to make your presentation, a very detailed submission.
ONTARIO FEDERATION OF LABOUR
The Chair: Our next presentation will be the Ontario Federation of Labour. Good morning, gentlemen. Again, we have 15 minutes for you to use as you see fit. Divide it for your presentation. I recognize two people and not the third. For the benefit of Hansard I wonder if you'd introduce him too.
Mr Gordon Wilson: I have with me today Mr Ken Signoretti, executive vice-president of the federation, and Mr Chris Schenk, a research director of the Ontario Federation of Labour. My name is Gordon Wilson. I'm the president.
I thank the committee for the opportunity to make a presentation. In saying so, I want to register at the outset our disappointment that we only have 15 minutes. I understand that this change was made because of the overwhelming number of persons who have applied to make presentations before the committee, but obviously a fairer way to do things would have been to extend the hearings rather than cut the time on this extremely important issue, unless of course people don't consider it to be important. But I want to tell you that the majority of people this will impact certainly do.
We have submitted a brief which sets out our position. We commend it to your scrutiny and ask you to review it. Let me say at the outset that what is clear about this issue is that the government's intent, I think, can be found in the minister's statement this morning in which she said that the main thrust of the bill was to allow Ontario's workplaces to become more competitive.
What I find difficult about that statement is that intellectually, if you really want to make Ontario's workplaces competitive and you want to adopt the whole free market strategy, why don't we then impose legislation in this province or the lack of legislation one would find in countries like Indonesia or Guatemala or the maquiladora zones in Mexico? Why not like we have in the United States, where 1% of the population now controls 42% of the work?
I think the difficulty here is that the government is attempting to pretend to be doing one thing, and the reality on the other side is that it is not. You will find during the course of these hearings that on one side clearly will be employers, employer associations, members of the government in defence of these changes; and on the other side will be members of the opposition, workers, unions, community organizations, all those people who will be ravaged or impacted negatively by this legislation.
We ought not to kid ourselves about what the issue is here today. The issue is making changes that will strengthen the employer's ability to demand further concessions from workers who are in the workplace. This will simply erode the minimum standards that other societies and governments have understood to be necessary to protect the most vulnerable people in Ontario's workplaces. That vulnerability is vastly increased under the bill the government is currently proposing.
We are pleased, of course, to see the minister retreat from her position of putting the issue of flexibility in the bill. We would ask the minister, through Mr Baird, her parliamentary assistant, not to put it in the other bill that they're coming forward with. That will simply clog up the collective bargaining process. It will create a climate of more hostility and put another problem on the bargaining table. The law is the law. Put it in place, and let's not further compromise and make more difficult the collective bargaining process in a very difficult period of time.
The main thrust that's wrong with this bill, in our view, and we would urge the government simply to withdraw it except for a couple of parts I want to allude to, is that it makes a very basic assumption that is flawed. It assumes that employers in this province, when you remove certain basic rights, are going to put the interests of workers ahead of their own personal interests or those of their business when times get tough. The reality is that there are a lot of laws out there that protect employers now. Employers have all sorts of entitlements under common law. What workers have is enshrined basically as a minimum in the Employment Standards Act and of course some other pieces of legislation. To assume, as the government blithely seems to assume, that employers will now comply with the interests of the workers in the absence of some process -- the law -- which says that they have to comply, is a practice in naïveté.
Our hotline -- some government members may cringe about this; opposition members may think it's important -- the reality is that the hotline we've had at the federation the last few weeks has just been overloaded. Why? Because employers out there are taking advantage of the people who are most vulnerable: those at the low end. They're just saying that their employers are blatantly disobeying the law because they know the enforcement has been removed from the process, by and large, and that employers out there who want to be -- I don't include all employers in that category, but there is certainly a number of unscrupulous employers who are taking it off the hides of their workers.
This bill ignores the history of this province and the need for a law in the first place. We tried to make that case in the first part of our brief.
Second, I think another major flaw is that it assumes the relationship between employers and workers is somehow equal. I want to tell you it isn't. The chamber of commerce, which spoke before us, obviously applauds this bill because they see it as once again strengthening the position of their membership, their employers, as they move towards implementing what will be those parts of the law that have been removed. Let me, if I can, just give you a couple of examples.
The law under section 20 of the bill, section 64.5 of the act, says that unionized employees have considerable access now. They have access to considerable investigative and enforcement powers in the Ministry of Labour. The government passes the law, therefore it's assumed the government's responsibility is to enforce the law.
What Bill 49 is going to do, however, is eliminate recourse by unionized employees to this avenue, and workers will be forced to use the grievance procedure. Well, that's quite interesting. What if you are a number of workers in a small local union in an isolated community, there are 20, 30, 50 of you, and your employer happens to be a branch of a large multinational corporation and says: "We know how to put the grievance procedure under the ground. We'll just clog it up. We'll create all these violations under the now non-existent requirements of the Employment Standards Act, and if you don't like it you can take this to arbitration"? If you're 50 people, you probably have a bank account in a local union of about $1,000, and that would be worth about 20 minutes of an arbitrator's time in today's real world out there.
Second, the ministry is proposing to end any enforcement in situations where it considers violations may be resolved by other means, namely, the courts. You tell me what workers on minimum wage can go out there and afford to hire a lawyer to take forth their case to get some justice. There is such an imbalance of power between workers and employers here, it just boggles the mind. How do workers possibly compete with employers who have as their resources considerable power and finances?
The max of $10,000 is really quite curious to us. I always thought that a buck that's owed is a buck that's owed and somehow it should be collected. Is the government coming forth -- I'd like to see it -- with some other legislation which says we can now cap the bank's profits or ability to collect when somebody fails to make a mortgage payment? Are you doing anything about tuition fees? What about bus fares? Are you going to cap that so that people out there can get a break? What about capping child care costs so that people get a break? Why just workers? Why are you capping the ability of workers to collect what's owed them and yet blithely turning the eye in the other direction when there are areas where workers should be collecting?
Finally, the observation we make is around the privatization and collection function of the Minister of Labour's employment practices branch. This is simply government divesting itself of its responsibility. On the one hand government is going to say it has the right and the empowerment in which to pass legislation, but on the other hand it says, "However, having done that, we're going to farm that stuff out to other people to take care of."
Let me make a couple of other comments in the short time -- far too short, in my estimation -- we have available to us this morning.
I want to put on record that the federation is not totally negative about this whole process. On pages 14 and 15 of our brief -- and I haven't got time to go into it -- we do support the minister's efforts around vacation entitlements and certainly those provisions under pregnancy and parental leave. They are positive steps that a government can take in recognition of what people are facing out there.
It is absolute naïveté to assume that employers are going to act in any interest other than their own, and when you strip away basic -- and that's what we're talking about here. We're talking about basic minimum standards. This is not about two parties haggling over whether the lawyer's fee is going to be $150,000 or $110,000; we're talking about people who are currently out there trying to make a minimum wage because there isn't anything else they can make. I can tell you that if those of you who can read and have read the paper around our friend in Belleville and Port Hope and the Screaming Tale, he's indicative of far more employers out there than some people in this room would want to admit.
So we're asking, in the time that's available to us this morning, for this government to recognize the folly of attacking the most vulnerable. If you want to reduce the minimum wage, then why don't you have the courage of your convictions and come out and say you're going to reduce the minimum wage to $2 or $3 or $4 an hour, whatever it is you think it ought to be, because you can't pretend that you're protecting the interests of working people out there and then give employers the opportunity to circumvent, because of lack of enforcement and other reasons, that very basic minimum standard.
So at least be honest with us, at least say you think a worker out there is worth $3 an hour and that's what you're going to do in law. Don't come through the side door by saying that we're going to have a law which says they're entitled to $6.85 or $5.95 an hour and then strip away the enforcement that allows the employer to circumvent the legislation and do whatever the heck they want to do out there.
I notice my friend Mr Baird is smiling, but if he was a minimum wage worker maybe he wouldn't be smiling at that kind of a conclusion that I'm drawing here today, because I live in the real world, John. I know what people face out there because they come to me every day, and I can tell you, we've got hundreds and hundreds of calls in the last three weeks on our hotline where people are arguing that their employer is putting it to them.
So, two things: one, increase the current enforcement practices of the employment standards branch to allow it to police the 300,000 workplaces in the province of Ontario; and two, withdraw this legislation that's designed simply to assist employers into beating the heck out of the working people, with the exception of the two clarifications that are minor but important nevertheless that I mentioned earlier.
Mr Ken Signoretti: I'd just like to make a comment if I might. First of all, and I'm speaking to the parliamentary assistant, I would like for him to convey for me my sentiments. The minister is gone. I believe the minister to be a very decent and honourable person. I can recall when we came through these hearings many, many months ago, whether it was Bill 208 or Bill 165, her basic argument as the labour critic at the time was, "You don't represent all the workers out there; you just represent a small majority of people." She said, "We're concerned about unorganized workers."
If you're concerned about unorganized workers, I'm telling you, you're really sticking it to them. You'd better understand that. That's what you're doing, this change that you've made with respect to the bill with respect to trade unions, and we're going to show our mettle that in fact we do support these people out there and we're going to be out there tough for them. Gord is absolutely right. Get off the crap about being nice. If you want these people to work for $2 an hour, say it. Be honest about it, not flower this up about a whole bunch of things.
John, once again, I just close by saying to the minister, I expect her to do the honourable and decent thing as an honourable and decent person and withdraw the legislation.
The Chair: Thank you, gentlemen. We have three minutes remaining. We'll start with the official opposition.
Mr Duncan: Mr Wilson, just a brief question. At the conclusion of your document you indicate the two areas of the act, the amendments that you're prepared to support. Would it be the view of the federation that if there were to be a royal commission on the Employment Standards Act you would participate in that, if we were to look at the whole act in terms of trying to find areas that we could improve on or make work better?
Mr Wilson: I'm not going to hedge. Obviously a royal commission we would approach from the basis of attempting to find a way to improve the lot of those people who are being hammered out there. No question, what's happening in our society is that people are being ratcheted down further, and when you erode the minimum standards such as this, all you're doing is looking at a piece of it that assists those employers who want to ratchet it down even further.
A broader question -- we haven't had any full discussions around that question because that wasn't part of the equation -- but obviously if that were to happen, we would approach that with a view to increasing the protection of people at the low end. We're not talking about people who are doing well in our society. We're talking about people who are decent, hardworking folks who are trying hard to keep their families afloat, keep whatever they can on the table. It just turns my stomach to think that a government in the province of Ontario would want to make us look like Alabama. I just get absolutely incensed at that.
Mr Duncan: Just a quick supplementary. Would you say, then -- it's obvious that you haven't said this -- that this is the first step towards a right-to-work jurisdiction?
Mr Wilson: It's certainly the first step to making our economy far more competitive with some of those countries I mentioned earlier. If you really want to have a competitive, free-market economy, then get rid of all the regulation that protects working people. That's what they do in those countries. Let me make an example: You have Ford Motor Co which took some steps in Mexico in the maquiladora zone when workers struck there a few years ago, which had the army come in and kill some of those workers in that workplace. This is the same Ford Motor Co that's down the road in Oakville. What's the difference? The political and economic environment. That's what's different.
Mr Christopherson: Gord, the minister has characterized this bill as minor housekeeping. I think it's important that the people of Ontario hear on the record today the response from the president of the Ontario Federation of Labour to that characterization.
Mr Wilson: When you set the stage to erode already minimum standards for working people, as this bill will clearly do, then you're not acting in the interests of those people it will impact upon on the one hand, which is the workers. That's why I said at the beginning, Mr Christopherson, when you look at the people who will come before this committee in these public hearings, you will have employers, employer trade associations, chambers of commerce, boards of trade, all saying, "Hurray, hurray, hurray, we're glad you did this. We support the government," and on the other hand, those people who will be negatively impacted will say, "We don't want it." So you can't sit there in government and say, "We're taking an impartial act." The reality is, this is a partial act on behalf of the employers and they're going to be the winners.
Mr Signoretti: If I could just make one comment to that. We've always viewed the Employment Standards Act as a charter of rights for workers, where there are basic minimum standards, where there's a floor. When you erode that floor, you're basically eroding their charter of rights. Gord is absolutely correct. The fact of the matter is, once you do that, where is the floor? There is no more floor and it keeps going down and down and down and down.
Mr Christopherson: My supplementary, since you gave the official opposition one, would be, in what way do you see this as further polarizing society in Ontario?
Mr Wilson: The same way that you're seeing cuts to compensation, undermining the ability of people to protect themselves in the workplace, the ability of people to bargain freely. All of those things are undermining what can be a placid environment and turning it into something much more ugly. I'm not suggesting this is going to happen in Ontario, but if one looks at the news at what happened in Australia in the last day or so, it makes you wonder and you get quite concerned. A number of people stormed the federal government building there and it wasn't pretty. I hope that never comes to that here. I would work, as everyone in this room would work, to avoid that, but you don't avoid that by creating divisions and continuing to widen the gap between the haves and the have-nots. The people at the low end are the have-nots.
The Chair: Mr Baird.
Mr Wilson: So nice to talk to someone from the ministry.
Mr Baird: I want to thank you for coming personally. I should point out though, with respect, you mentioned in your opening comments the case of the Screaming Tale.
Mr Wilson: Yes.
Mr Baird: I think one of the first, if not the first complaint we received at the Ministry of Labour came from the member for Scarborough East, who is sitting to my right, on that issue. So it's something I think we were particularly concerned with.
I had just a quick question with respect to collections. The previous government disbanded the collections branch of the Ministry of Labour and discharged 10 employees. Do you support the idea of going to private collections, and in that answer, what would you think is an acceptable level for the amount of dollars that are ordered to be paid that should be paid?
Mr Wilson: I think, Mr Baird, there's a considerable difference between a lateral transfer of work from one area to the other and that of simply saying, "We're contracting it all out holus-bolus."
I have some difficulties with private collection agencies, which will act again, because they are in business, to the best hand that they can deal themselves, given the situation, as opposed to a government that I think every citizen has the right to assume acts in a dispassionate, unbiased fashion in trying to represent the interests of everyone. So what's the distinction? When you get into private collection, you're going to get the same kind of situation; people refer to them as ambulance chasers in other professions. You're going to get people who own those collection agencies taking the best haul.
By the way, the first time the Screaming Tale came to my attention was the two workers who had complaints in the labour council. I'm sorry I didn't read Mr Gilchrist's name in the Toronto Star, but maybe he doesn't buy it. I don't know.
Mr Baird: Just as a supplementary, I just think from government, our motivation is very much to see workers get more of their money, and today, only 25 cents on the dollar is being collected. Once someone has actually complained, an investigation substantiates the claim and an order is issued, only 25 cents on the dollar is ordered. It wasn't a lateral move under the previous government, though, with respect. They discharged 10 employees and put the responsibility on to employment standards officers, who were already overworked as it was. But I guess --
Mr Wilson: But not overpaid.
Mr Baird: I guess the idea behind this is to see more workers get more of their money. If the collection agencies have a motive, it's to earn their fee, which will be paid for by the delinquent employer, so that in the end, more workers would get more of their money. That's how they would make money, by delivering for workers who are owed money. They don't make any money if they don't get the worker the money.
Mr Wilson: But John, what we found out in the last three weeks through the hotline is there are all sorts of workers out there who find themselves in an imbalance of power. To assume the employer and the employee have an equality of power is an erroneous assumption. It's a bad starting point. It leads you to the wrong conclusion.
Mr Baird: Somebody's got to --
Mr Wilson: Let me finish my point. So what's happening out there is you're going to have fewer complaints, no doubt, because workers will be told, as they are in other jurisdictions, "You want to complain?" -- shoom. And in today's economy, with the unemployment level we have out there today, it's not hard to replace workers and so you're going to have employers, those who are unscrupulous, and as I said before that's not all but it is a significant number, who are going to say, "These are the rules that I am imposing."
We had one call that came in and a woman who said, "I'm making $6.85 an hour," or whatever it was; she was 10 cents under what she should have been paid to start with, "My employer has just told me my wages are $4 an hour, and he's a heavy-hitter in a small community and I know if I open my mouth, I'm gone." Well, that's the imbalance that exists in a lot of workplaces in the province of Ontario. When you strip the minimum standard away from people and when you strip the enforcement that enforces that standard, then you gravitate to that kind of situation I've just described to you. That's what's wrong with Bill 49.
The Chair: Thank you, gentlemen; we appreciate it. I gave you a few extra seconds there and then some.
INFORMATION TECHNOLOGY ASSOCIATION OF CANADA FOR ONTARIO
The Chair: Our next group up this morning is the Information Technology Association of Canada, Ontario branch. We have 15 minutes for you to use as you see fit, divided between presentation and question and answer. I wonder if I might get you to introduce yourselves for the benefit of Hansard, please.
Mr Bill Petrie: My name is Bill Petrie. I'm the president of Information Technology Association of Canada, Ontario. With me today is Laurie Harley of IBM. We're delighted to be here to express our views on Bill 49. We've prepared a written brief, so I'll limit my discussion to a few key points.
The Employment Standards Act is very important to ITAC Ontario. We represent the information technology industry in this province, hardware/software firms, telecommunications firms. We employ about a quarter-million people. We're growing at about 15% a year. We're adding jobs so fast, in fact, that P.J. Ward, one of our members, announced that there's actually a shortage of 20,000 skilled workers in the Metro Toronto area alone.
Our sector is a sector which everyone is talking about. It's the new economy sector. It's brutally competitive. We're talking about a sector racked by change. Our product life-cycle in our sector is about six months. I just heard that Chevrolet was discontinuing the Lumina, which hasn't changed in 12 years. When you introduce a new product in our sector, it's got a life of about six months. Thousands of companies in Ontario are successful, we're competing successfully internationally, but we're competing in an environment which is so dynamic that we measure years in terms of web years, which is three months.
What this means is that we employ highly skilled workers. We pay them very well. These workers are very mobile. These workers actually have skills which have a lifespan of about 24 months. That is, what you know today has to be completely replaced every two years.
What this means is that in our workplaces the hierarchical structures are gone. What we have are empowered employers and employees, dynamic teams working together. Skills are highly specialized. They're highly valued in the marketplace. Continuous learning has become a way of life. Our employees work hours that are flexible to meet the needs of customers. Work location is flexible so that we can work at home, on the road, or in our offices. Finally, organizational cultures are moving to high performance models where measurements and rewards are linked to overall results in the business and personal results.
There's a huge culture gap between the reality of our workplace and the rules in the Ontario Employment Standards Act, and that culture gap appears to be widening.
I'm going to ask Laurie now to comment more specifically on the Employment Standards Act and Bill 49.
Ms Laurie Harley: Thank you, Bill. As Bill points out, the rules of the Employment Standards Act clearly weren't designed with the information technology industry in mind and that's clearly understandable when, if you follow the roots of some of the provisions such as the hours of work, they really do go back to 1884 and the Factories Act and clearly to the Hours of Work and Vacation Pay Act of 1944. If you go back to 1944, just very briefly, when the eight-hour-a-day maximum was brought in, even in those days only half of the workplace actually worked those hours. So what you found was that in order to not create a significant problem for the vast majority of people in the workplace, the law introduced special treatments and those special treatments really became a way of putting flexibility into the act. But it was a complex set of exclusions, exemptions for some or for all parts of the provisions, special overtime provisions, and a very elaborate permit system. It may have worked then but it most clearly does not work today. It's the combination of these outdated standards and the complex special treatment provisions that are really a major irritant for our sector.
To illustrate how long these issues have been with us and to provide you some more specifics, in our written submission we've attached a brief that our company prepared for the Ontario Task Force on Hours of Work and Overtime which was commissioned back in 1986 by the Honourable William Wrye, who was then the Minister of Labour. It really expresses our concerns as well as we could express them today. The issues are exactly the same. The difference is that 10 years have gone by and the need for action has become even more urgent.
The report of that task force, which was tabled in 1987, found that the working hours regime in Ontario was complicated to the point of bewildering, and so complicated, and let me just make one quick quote, "that its totality is likely understood only by a handful of persons."
I don't know if any of the members of this committee have looked at the current guide to the Employment Standards Act but I brought it along. It's this little purple book and it's known affectionately as the purple peril. If you haven't read it, I recommend it as mandatory reading because I think if you read through that you will agree that the task force's description back in 1987 is as valid today as it was then.
Merely updating these rules isn't enough. We need a pragmatic analysis of the regulations that really gets back to basic questions. What's the objective of the regulation? What's the cost of compliance? And perhaps more importantly, are there other ways of achieving the same objectives but with some more innovative approaches? To us, if you go through that process and that pragmatic analysis, you'll come out with an Employment Standards Act that is transformed and to us must meet five goals.
The first of those is that minimum standards must be there. We are not advocating scrapping minimum standards or safety net provisions. They must give protection but they must also have flexibility. It must be plain language legislation that everyone can understand and work with. We'd like the application and the enforcement of the act targeted to those in need of protection. We're going to hear a lot about those, I'm sure, over the course of the hearings. Their issues are valid and they need to be addressed. We would like streamlined administrative systems that reduce costs and improve effectiveness, and perhaps the final goal is innovative alternative approaches that recognize and promote self-reliance in the workplace.
Let me just turn very briefly to Bill 49. The government has said it's step 1 and it's there to make the act more effective in terms of administration. If I keep that in mind, I'd just like to walk very quickly through those five goals and compare them to the current Bill 49 as proposed.
The first one is: Does Bill 49 change any minimum standards? To be honest, we look at the bill and to us the answer to that is categorically no. We think the debate on minimum standards, how they should be updated, is a phase 2 debate, and we obviously look forward to that. What it does do is try to introduce some improved flexibility in unionized workplaces in order to negotiate a greater right or benefit. However, that to us falls far short of the flexibility we would like to see and we would like to see that flexibility ideally built into the standards themselves. Given that, we would certainly support the minister's announcement this morning to move that into the phase 2 debate. We think it makes more sense in that context.
Does Bill 49 make it easier to understand the Employment Standards Act? We'd say yes, at least as far as clarifying some of the maternity and parental leave provisions, but again much, much more to be done. Plain language legislation to us is just essential. If you can't communicate it, you can't expect workers to understand their rights and you have a hard time, I think, expecting employers across the province to be able to comply with it.
Third and fourth goals: Does it help target enforcement and streamline administrative systems? I guess to us this is where it makes its major contribution and we do support the directions that are outlined in the bill that would use private collection agencies, that would require timely filing of claims and allow certainly electronic filing. That's one we can certainly endorse.
Finally, does it promote innovative approaches to self-reliance? Again we think yes, in the sense that it does introduce the concept of using internal systems, the grievance process in unionized workplaces to deal with the SA complaints, but again we think this is far short of what we need to do in the phase 2 debate because there are non-unionized workplaces in the province that have their own internal processes that allow effective resolution of complaints. We think that they should also be examined in terms of models of self-reliance.
So very quickly in summary, we think the Employment Standards Act is in desperate need of reform. We think it is particularly out of date for firms in our sector. We think Bill 49 represents a positive first step, but perhaps the most important thing it does is it launches the debate and we look forward to that phase 2 debate. We would urge the committee to focus on the facts that are in Bill 49 and to recognize that the critical issues are still ahead of us.
We would also remind you that change is never easy and that change to legislation that tries to provide basic protections is even more difficult than most. However, we think the greatest threat to an effective safety net in the workplace in our province is not Bill 49 but our inability to reinvent a regulatory environment that will work today and will stay us through to the 21st century.
The Chair: Thank you very much. That leaves us with five minutes of questioning. I think by consensus after that last round we agreed if it's five minutes or less, we'll divide it just into two questions and then we'll continue the rotation with subsequent groups. So we'll start this time for two and a half minutes with the official opposition, Mr Duncan.
Mr Duncan: Thank you very much for your presentation. Let me ask you this because, like you, I think our party's view is that the Employment Standards Act is due for a major overhaul, particularly in light of the changing economy and new industries that have come about.
Would it be the view of your association that given the complexity of employment standards and given frankly some of the divisions I've seen in the business community, you often see a division between smaller employers and larger employers around these questions, and given the sensitivity around the Employment Standards Act not only to vulnerable workers but to employers, would it be your view that prior to any kind of wholesale change to the act -- you referenced the Donner task force, for instance -- that the proper process to defining the new legislation would be through a series of public consultations, either in the form of a royal commission or a white paper prior to introduction, or would you be of the view that the government ought to proceed with legislation in the absence of those hearings before any kind of consultation would occur?
Ms Harley: The first comment I'd make, with all due respect to royal commissions, is I think we all know the problems with the act. I think what we need to do is put our heads around some innovative solutions to those problems. To me, that royal commission process sounds like a very lengthy one and I don't know that we've got the time to do that any longer.
In terms of the act, I think it's critical that we get on with phase 2. I guess what we see in Bill 49 is a message that says: Look. The act needs to be reformed. We've got some ideas on how we could try to make it more efficient in the next 12 to 18 months until those changes actually come about, and if that will save some money, if that will make the enforcement of the current act better, then I think we'd say fine, let's get on with that too, but let's keep our main focus on the comprehensive review. I do believe there should be, and will be is my understanding, consultations around that with all the stakeholders.
The Chair: That's your two and a half minutes.
Mr Christopherson: Thank you for your presentation. I'll ask the question directly. I think you commented on it, but I'd like to be clear. Do you think that the changes proposed are minor housekeeping?
Ms Harley: I think what we look for is minimum standard updates and, to be honest, I don't see anything in this bill that addresses minimum standards. We see some process changes. I think some of the issues that dealt with flexibility and the greater right or benefit, we're touching more on those, Mr Christopherson. So I do think they probably belong and will be more effective in a phase 2 debate. But to be honest, we have real difficulty understanding the concern about this bill as gutting minimum standards. We just don't see it.
Mr Christopherson: That's interesting. I was going to go on down a different road, but maybe I'll go down this one with you because I --
Ms Harley: Maybe you should tell me where you would have gone before. That might have been a better one for me.
Mr Christopherson: You would have liked the other one. If you've given me the answer I wanted on the first one, I think you would have enjoyed it. It would have been in areas of part-time work, contracting, teleworkers in terms of things that the law doesn't adequately address and things that it needs to, but I would obviously take exception and perhaps the difference is the type of work that you're in. It would seem like there aren't major changes, but I would just offer to you that for people who represent workers, either at legal clinics, in non-union shops or collective bargaining environments, the changes are significant and do make a big difference to them.
However, I think I will go down that second road simply because I do think it's important to hear from you what sorts of things -- I'd like to hear a couple of examples of what kind of minimum standards. If you accept that the Employment Standards Act is basically a workers' minimum bill of rights, it really is the only thing that says when you go out and offer up yourself for wages, here are the minimum conditions that someone can subject you to.
In terms of the new world of work that I think you're talking about, what way do you offer up the flexibility you need, but keeping in place the idea that there are minimum standards?
Ms Harley: Let me give you one example, and Bill might want to add to it. The eight-hour-a-day standard is the one that comes to mind most readily. I think we would all agree that prolonged long hours have relevance to health and safety. I don't know that there's particularly strong empirical evidence on that, but I think just logically everyone in this room knows that when you work a long time and long hours, you feel tired and you need a break.
It seems to us that if you take perhaps what's even already in the act today and broaden it so that it's a monthly cap or in some cases even an annual cap where people actually can balance that they work for certain periods, perhaps for prolonged hours, more than eight hours a day because you've got an urgent customer situation you have to deal with, but then you may take compensatory time off. So it's a balancing, but you take that narrow window of one day and you broaden that out to provide greater flexibility.
That's the kind of direction we're talking about in terms of standards that still keep, if you like, teeth in them in terms of the protecting of workers, but at the same time bring in some flexibility.
Mr Christopherson: Are there jurisdictions in the world that have those --
The Chair: Mr Christopherson, will you make it very, very brief?
Mr Christopherson: Oh, sorry. Are there jurisdictions in the world right now that have been able to do that?
Ms Harley: I think the eight-hour day one is one that a lot of jurisdictions have broadened to weekly, for example, but to us Ontario has an opportunity here to lead the way. We agree we want to be leaders. We agree that if we can come up with an innovative program of standards, we will have a jurisdiction that will say to all employers, "This is fair and balanced, but it's flexible and allows you to get on with your business."
Mr Christopherson: My concern would be it's so easily open to abuse. You'd have to have very imaginative-type legislation wording crafted to make sure that it's not abused because it could be subject to such easy abuse.
Ms Harley: I'd say today it's pretty abused and I think that we've got enough talent and skills in this province to come up with some innovative ideas.
The Chair: Thank you both. I appreciate your time, coming and making your presentation here this morning.
PARKDALE COMMUNITY LEGAL SERVICES
The Chair: Our next group up is Parkdale Community Legal Services, Gail Sax. Ms Sax, it's my understanding you have another individual who wishes to appear under a pseudonym; is that correct?
Ms Gail Sax: Yes. I have with me a client of mine who would like to testify before the committee anonymously and also with us is a Tamil interpreter.
The Chair: Thank you. It's been discussed within the subcommittee. Are there any concerns by any of the members? Seeing none, just for the witness's protection and just a clarification, there was a short statement that was prepared for eventualities such as this, a sort of good news-bad news, that "while members themselves enjoy parliamentary privileges and certain protection pursuant to the Legislative Assembly Act, it's unclear whether or not these privileges and protections extend to witnesses who appear before committees."
For example, it may very well be that the testimony you give or are about to give could be used against you. I caution you to take this into consideration in making your comments. However, on the other side there is parliamentary precedence that if anyone does anything arising, in this case, from testimony before a committee -- if an employer were to react -- that would be considered contempt of Parliament, and the committee would have the power to deal against the employer.
Mr Christopherson: On a point of order: With great respect, there has been no disagreement. Nobody has a problem. I think you're attempting to make this bigger than it is. Can we just get on with it?
The Chair: That's your considered opinion, Mr Christopherson, but I think it is somewhat precedent-setting to allow people to come to a public hearing and not use their names, so I want to make sure they have the full benefit of knowledge of how things work in this process.
None of that time has come out of your 15 minutes, Ms Sax.
Ms Sax: I'm Gail Sax, a staff lawyer responsible for workers' rights at Parkdale Community Legal Services. With me are a client of mine and Shyamala Shanmuganathan, a Tamil interpreter.
Parkdale Community Legal Services welcomes the opportunity to appear before the resources development committee on the review of Bill 49. Parkdale Community Legal Services is a community-based legal clinic in the southwest section of Toronto. Parkdale is a low-income, racially and ethnically diverse community. I am a staff lawyer at the clinic responsible for workers' rights.
The Employment Standards Act is the critical cornerstone of workers' rights in Ontario. It sets the minimum floor for workers' basic rights in Ontario. The importance of the act cannot be understated and, as our submissions will show, rather than amending the act to lower that floor, the government should be improving working conditions by raising that floor: the Employment Standards Act.
The workers' rights division at Parkdale Community Legal Services represents and works with unorganized or non-union workers. We represent workers on cases involving unemployment insurance, workers' compensation, human rights, Canada pension plan and employment standards. Employment standards cases represent approximately 50% of our caseload. Our clients reflect the community we work with. They come from the many employment sectors which are characterized by low wages and poor working conditions: manufacturing such as garments and textiles; warehouses; foodservices; cleaning; clerical work, including office work with temporary agencies; telemarketers; retail workers; domestic workers; and home workers. A large proportion of our clients is women and visible-minority workers.
Our employment standards caseload is high. In the past year and a half we have represented over 175 clients on employment standards matters alone. We have regular contact with over 2,500 workers a year through our public education work in the city of Toronto. The predominant issues faced by these workers are unpaid wages and vacation pay, overtime, termination pay and severance pay.
Based on our extensive experience, our submission outlines typical employment standards cases taken directly from our caseload and the impact of Bill 49 on these cases.
Workers protected by the ESA are vulnerable. They need the protection of the act. They are poor or working-class. They are often not aware of the protections of the act, and even when they are aware of their rights as workers, they may not be able to attempt to enforce those rights for fear of losing their livelihood and fear of the resulting poverty and the impact on their families.
From our experiences representing workers, Bill 49 is an assault on workers' rights. When Bill 49 was introduced in May, the Minister of Labour, Elizabeth Witmer, called the legislative changes simple administration and housekeeping. It is our position that the proposed amendments will have a significant negative impact on workers' substantive rights.
As the examples I will give shortly demonstrate, Bill 49 introduces very substantial changes. Bill 49 is a gift to employers who violate the Employment Standards Act. If enacted, employers will have an opportunity to routinely violate workers' rights and get away without paying workers what they are truly owed.
In the remaining time I will highlight our objections to the changes introduced in Bill 49. I will highlight a couple of cases of ours and the impact of Bill 49 on those cases, and we'll have [the witness] speak briefly about [the witness]'s particular case and at the end I will suggest some real improvements to the act.
Bill 49 introduces six major and significant changes to the act which are directly related to the enforcement of unorganized workers' rights. These are shorter limitation periods for filing a claim; a shorter investigation period; a new $10,000 cap on claims; a new, unannounced minimum; access to justice denied for low-income workers; and the privatization of the collection aspect.
With respect to the shorter limitation periods for filing a claim, currently workers have two years to file. Under Bill 49 this would be reduced to merely six months. Many workers stay in a job where their employment standards rights are being violated and endure great hardship just to have a job, any job. In periods of high unemployment, workers often need to be able to find a new job before they will make a claim against a former employer. They cannot risk the possible repercussions of a negative reference by an employer who has filed a claim against them. Workers need the two-year limitation period to safely file a claim. Bill 49 further pushes workers to choose between their rights and their jobs.
This is further impacted on by the shorter investigation period. The bill proposes that investigations can only go back six months of a worker's history from the time a claim is made. Where employers may have been violating the act for two years or more, they will only be accountable for the last six months of violations.
As a number of the case stories in our submissions illustrate, the $10,000 cap on claims will have a significant impact on many of the people we represent. The minister mentioned 4% as a figure with claims over $10,000; we find that number is much higher for our clients. Therefore, people with claims over $10,000 literally will be giving that money to their employer.
With respect to the issue of access denied to justice for low-income workers, currently workers may pursue their statutory entitlement under the act or civil remedies in the court system. Under Bill 49, workers will be told at the start of the investigation to use either the ministry or go to court. They will have to make this decision possibly before having had the opportunity to obtain independent legal advice. Of particular note, those workers with claims over $10,000 will be forced to go through the court system. The current government has already provided that legal aid certificates are not available for employment-related matters. This amendment will force low-income workers who are owed more than $10,000 to pursue claims through the Employment Standards Act and forgive the balance owed to them.
With respect to private collection agencies, I would just like to highlight something that I believe has not been mentioned: that collection agencies will be empowered to push for settlement once an order has already been made. The idea that collection agencies will be able to amend an order made by the employment standards branch of the ministry undermines the authority of both the act and the Ministry of Labour.
Our brief outlines the stories of six workers with employment standards claims. The total amount owed by employers to these six workers is $129,000. The total amount which Bill 49 would leave in the hands of employers at the expense of workers is $84,500. The workers would actually receive only $44,500.
Before I introduce [the witness], I would just like to tell you about two of my other clients. Mrs F is a cashier who worked in a major grocery store for 13 years, was terminated from her employment without cause and did not receive any notice of termination or termination pay in lieu of notice. She was entitled to over eight weeks of termination pay as well as severance pay. She filed an employment standards claim for approximately $5,000, which she was awarded and received. However, this worker filed her claim approximately one year after she was terminated. Under Bill 49 her claim would not have been allowed, as a six-month time limit for filing claims would have been imposed.
Ms X was a retail sales associate who worked for a retail clothing store for approximately two years. When she notified her employer that she was pregnant and would be taking maternity leave some six months later, her employer reduced her hours, her rate of commission and drastically changed her hours and duties. She tried to negotiate with her employer to return to her regular duties and wages. However, this was refused. The employment relationship had deteriorated to such a degree that reinstatement was not an option. She has filed an employment standards claim for compensation for the penalties imposed on her due to her intention to take maternity leave, including the loss of her job. The amount of her claim is over $35,000. This woman, under Bill 49, would not be able to pursue her claim for more than $10,000 or would be forced to pursue it through the courts without access to a legal aid certificate.
I would now like to introduce [the witness] to talk briefly about [the witness]'s story. [The witness] immigrated to Canada from Sri Lanka approximately eight years ago. [The witness] is a Canadian citizen. [The witness] does speak English; however, for the purposes of this hearing [the witness] feels more comfortable speaking through a Tamil interpreter.
Witness (Interpretation): I came to Canada eight years ago and I have been working in a firm for the past four years. I was not even given four days' notice and I was suddenly asked to leave my job. Because I was not given enough time or notice to look for another job, I found it very difficult and at the moment I am unemployed.
Even while working there, if I wanted just to take a day off I had to give one week's notice so that I could get one day's leave the following week.
They didn't give me any time or notice and suddenly they came to me and asked me to stop work.
In the beginning I was asked to work 56 hours a week. After a year they told me, "If you want this job to be permanent and if you want to continue, you have to put in 76 hours a week." Because I wanted this job very badly, I agreed to that and I put in 76 hours a week.
Without this new law and the enforcement itself, when the employer can be so harsh to me, once this new law has been in effect, can you imagine how it is going to affect employees like me?
It's important to develop the economy. Employers should also work and employers also should pay equally the employees' work. That's all.
Ms Sax: You'll find [the witness]'s story in our submissions. [The witness]'s claim is for over $40,000 in wages owed just for the last two years, which is the only portion of the four years [the witness] actually worked that is covered by the act presently.
To conclude, we submit that the changes proposed in Bill 49 are not merely housekeeping improvements but rather directly undermine and remove significant substantive rights for workers. We propose that in the alternative the act be amended so that it is a strong, efficient and effective piece of legislation.
We have two demands for change for a truly effective Employment Standards Act. You will find these detailed in our written submissions: first, a stronger enforcement of the law -- tough, proactive enforcement of employment standards, including inspections and spot checks of company payrolls and audits; and real protection for workers against employer reprisals, including workers' anonymous complaints initiating a company audit.
Secondly, we would like to see new, improved working standards which meet the real demands of the changes in the workplace. We need stronger laws, not weaker ones. An example would be removing exemptions so that every worker is entitled to the same employment rights and protection, no matter their job or their age.
Those are our submissions. Thank you.
The Chair: Thank you, Ms Sax. Actually, I don't think any of my colleagues could ask a question in 30 seconds and ask you to do it justice, so for all intents and purposes we'll say it was 15 minutes. Thank you very much. We appreciate your coming in and telling us about your case as well.
Mr Christopherson: A point of privilege, Mr Chair: In the 15 seconds left, can I take a part of that and just say one thing?
The Chair: The rotation would have been to the government members. If the government members wish to ask a question in those few seconds, it --
Mr Christopherson: If I'd gotten the point of privilege then I would have acknowledged the courage it took for [this witness] to come here today, but since I don't have time I won't say it.
The Chair: Thank you. That's in fact what you interrupted the Chair in saying. Thank you again for coming in and making your presentation to us today.
Ms Sax: Thank you.
COMMUNIST PARTY OF CANADA (ONTARIO)
The Chair: Our next group up will be the Communist Party of Canada, Ontario branch. Is it Mr Rigby?
Mr David Rigby: Should I come up there?
The Chair: Yes, please come forward and just sit at the table there. Any of those seats at the end. Thank you for coming this morning. We have 15 minutes for your presentation, for you to divide as you see fit between a presentation or question-and-answer period. I wonder if I might get you both to introduce yourselves for the benefit of Hansard.
Mr Rigby: My name is David Rigby, of the Communist Party of Canada, and my partner is Liz Rowley, Communist Party of Canada.
Thank you for this opportunity to present our views on the proposed changes to the Employment Standards Act contained in Bill 49. Because of the profound and negative impact that these amendments will have on labour and democratic rights in the province, we begin by urging the committee to extend these hearings to ensure that all those who wish to be heard are heard and their views given due consideration before the bill proceeds further. Full public discussion and input is a requirement in any event, but it is also vital, given that this particular piece of legislation will directly affect the wages, standards and working conditions of every worker in Ontario, with the potential to impact on workers across Canada.
We are here to express our opposition to Bill 49 and to join with others in the labour movement and democratic movement who will urge its rejection in the arena of public opinion and its defeat in the Legislature. In our view, Bill 49 is not amendable. The single useful proposal to include maternity leave in the calculation of seniority and length of employment is far outweighed by Bill 49's dangerous ballast, which is to eliminate the minimum rights and standards won by working people in struggle and then enshrined by governments in law over the course of the last 60 years. These rights and standards include collective and individual rights to a legislated minimum wage, the rights to legislated maximum hours of work per day and per week, the rights to statutory holidays and vacations with pay, the rights to refuse overtime or to work at legislated rates for fixed amounts of overtime, the rights to severance pay, all of which are negated under the new subsection 4(2), becoming negotiable "when those matters are assessed together" in a contract of employment.
Long-standing legal rights to access and exercise all forms of redress deemed by a worker or workers to be collectively or individually necessary, without restriction, are sharply curtailed under the new subsections 64.3 and 64.4. These sections oblige a worker to choose between a complaint under the Employment Standards Act and a civil action in a court of law, notwithstanding that the complainant may wish to seek damages in a civil suit as well as recover lost wages or severance etc under the act and notwithstanding that the complainant may be facing financial hardship and may be thus forced by circumstance to file a complaint under the act rather than initiate a civil action, despite the fact that the new subsection 65(1) of the act will cap every payout at a maximum $10,000, while a civil action could pay out considerably more and is completely uncapped by legislation.
Further, the new section 64.5 prohibits trade unions and any union member who is covered by a collective agreement from laying a complaint under the act against an employer who is covered by the same collective agreement. By deeming the act "enforceable against the employer...as if it were part of the collective agreement," Bill 49 makes enforcement of the act itself negotiable. In other words, the only enforcement mechanism is might and muscle, which makes the legislation itself confrontational. This will no doubt concern Moody's and others who regard fractious labour relations as a bad climate for investment.
In this respect, the proposal in the new sections 73.0.1, 73.0.2 and 73.0.3 to privatize law enforcement and contract out the ministry's collection functions is anathema to the public interest and is widely seen to be so in our view. The public expect the government to enforce the laws of the land directly through public enforcement agencies and not to hand over enforcement to private, for-profit corporations, whose main interest is the bottom line, not the public interest.
Moreover, contracting collection agencies to negotiate, for a fee, "a compromise or settlement" between employers and employees is like letting the fox loose in the hen-house. Collection agencies are employed by corporations year-round to recover moneys owed them, primarily by people who have lost their jobs or lost their income. Collecting bad debts for corporations is the daily bread of collection agencies. It is simply not credible to propose that this symbiotic relationship between corporations and collection agencies should or could be ignored by a ministry that is charged to defend and enforce the law, most often the individual and collective rights of workers who have been cheated by employers, many of whom use these same collection agencies.
Workers' rights are also sharply curtailed under the new sections 82, 82.1 and 82.3, which reduce a worker's ability to recoup wages or other moneys owed to him or her by an employer by limiting the period of employer liability from two years to only six months prior to the laying of a complaint under the act. At the same time, the investigation time is extended to two years, with prosecution extended a further two years. In other words, workers can only claim a maximum of six months, while employers are not obliged to pay even that until four years later.
It is no surprise that employers are lauding this bill. It will go a long way to deregulate the workplace, removing many of the legal barriers that for decades have prevented employers in Canada from driving wages, working conditions and unions into the ground in the way that employers in the United States were able to do, to the detriment of living standards and labour and democratic rights, in the same period and in the absence of equivalent restraining labour legislation.
The enactment of Bill 49 would constitute a giant step in the harmonization and Americanization of Canada's employment standards laws, negatively affecting the largest proportion of unionized and non-union workers in the industrial and manufacturing sectors of the economy, including steel and auto, which is widely recognized as the engine of the Canadian economy. Workers in primary resource industries, including mining, forestry and hydro-electric, in construction, in the retail and food service sectors, in the public sector, including education, health and social services, among many others, will all be negatively affected by the harmonization and Americanization of labour laws implicit in Bill 49.
Canada will not be strengthened by ripping up our minimum wage laws. The American Sunbelt states, which have done that, are some of the poorest, most backward parts of the USA. They also have some of the highest rates of unemployment and social chaos and disorder, largely caused by the race to the bottom. The USA is no model for Canada, and levelling down is not the way to go.
The kind of improvements to the Employment Standards Act that would benefit Ontario, creating jobs and spurring consumer spending throughout Canada's industrial heartland and beyond, would include cutting the hours of work to 32 hours per week, with no loss in take-home pay; expanding statutory vacations to four weeks annually, matching the minimums in Europe already; abolishing overtime and workfare; reducing the retirement age to 60; raising the minimum wage to $12 an hour; requiring companies to give two years' notice of layoff and to show just cause before a public tribunal in the event of shutdowns and closures, and strict enforcement by ministry staff. Together with a bill of rights for labour guaranteeing the unfettered right to strike, organize and picket, these are amendments that are urgently needed to Ontario's labour legislation.
Combined with policies to put Ontario back to work, raise living standards, redistribute wealth through tax reform based on ability to pay and, not least, redeem Canadian sovereignty and independence by withdrawing from NAFTA and the Canada-US free trade deal, these are the measures that will help Canada and Ontario to pull out of a deep economic and political crisis and into a real recovery based on job creation and security, increased purchasing power, expanded labour and democratic rights and a full employment policy that recognizes the right of every human being to a secure and meaningful job at decent rates of pay with decent standards and working conditions.
These proposals are respectfully submitted for your consideration. Thank you for you attention.
The Chair: Thank you, Mr Rigby. That leaves us one and a half minutes. Again, following the convention we've started, the questioning this time will start with the government.
Mr Joseph N. Tascona (Simcoe Centre): Thank you for your presentation. I just want to address the issue of collection. The fact is that two thirds of the orders to pay that are issued against employers are never collected. That is obviously a problem with respect to maintaining the standards and rights of employees out there. What would you suggest the government can do to try to redress this problem, because it's just basically a problem of employers not willing to pay or not able to pay and disappearing? How do we address this?
Ms Elizabeth Rowley: It seems to me the problem you've identified is the same problem that we've identified: the lack of teeth in the legislation that would allow the government to pursue --
Mr Tascona: I'm looking for a solution. We've all identified the problem. What's the solution?
Ms Rowley: Strict enforcement. Not contracting out enforcement but for the government to strictly enforce.
Mr Tascona: But even if we enforce it, we're enforcing it by putting an order to pay out there. The problem is that it's not getting collected because employers, for whatever reasons, aren't there to pay it. We've enforced the act but we can't collect. What's the solution?
Ms Rowley: The solution is that if you put teeth in the legislation that would put big fines against employers that do this kind of thing, including jail terms, and if you refuse to allow them to close their operations without first settling their debts with the employees and other creditors, then you wouldn't have this problem. The problem lies with the government. In short, that's my answer.
Mr Tascona: I would say the problem is that the company may not exist and the directors out there are the ones who may have to be looked at. Would you agree that if the company doesn't exist, how can we collect, so whom should we go after if we haven't got the company to collect from?
Ms Rowley: I would suggest that other changes in labour legislation need to be made that would allow workers not to be last on the list when it comes to companies being responsible for paying their debts. Everybody is a secured creditor except employees.
Mr Tascona: That's bankruptcy law and that's in the hands of our federal friends. We don't have any responsibility for bankruptcy.
Ms Rowley: Most of the cases that are before the Employment Standards Act don't have to do with bankrupt employers; they have to do with employers who refuse to pay. You can enforce that and you should enforce, in our view.
Mr Tascona: They are being enforced. The problem is to get the money.
Ms Rowley: I thought you said that they were not enforceable, that you were unable to secure payment.
Mr Tascona: No, I didn't say that. I say they were being enforced but you can't get the money. I'm asking you for a solution.
Ms Rowley: Is this government so powerless? It seems to me that on other occasions the government has shown that it's very powerful, particularly when it comes to workers trying to express their views in this House.
Mr Tascona: We're looking for solutions. That's why you're here.
The Chair: With that, I'll have to cut this dialogue off. We're over our 15 minutes. Thank you both for coming to make a presentation before us here today. We appreciate your taking the time.
Mr Rigby: I apologize. We didn't have more than four copies of our presentation to pass out. We'll send the other copies on.
The Chair: That won't be necessary. The clerk has already photocopied them. Thank you very much.
CENTRE FOR SPANISH SPEAKING PEOPLES
The Chair: Our next group up will be the Centre for Spanish Speaking Peoples, Miss Consuelo Rubio. Good morning. There are 15 minutes for you to divide between your presentation and question-and-answer time.
Ms Consuelo Rubio: Thank you very much. I'm a community legal worker at the Centre for Spanish Speaking Peoples, which is a community organization proving services to the Spanish-speaking population in Metro Toronto and surrounding areas. We have a variety of programs for our community, including the service I provide, which is representing people who have employment-related problems. We also do a variety of educational programs with our community.
We don't have a written brief to give you today. My community has very few resources, and instead of preparing a brief with a lot of legal analyses we are endorsing a brief that will be submitted to you this afternoon by Professor Fudge. This morning I'll talk a little bit about the impact the changes will have on my community and give you some examples of people we've represented and what would happen to them if these changes were to pass.
A number of people we represent are domestic workers. Domestic workers, as you might know, are admitted to Canada without permanent resident status. They come to Canada on the condition that they will work for a number of months, and after that time has elapsed, if they have a good record, they're given permanent resident status.
The six-month limitation period to file a complaint concerns us greatly. I will give you examples of two cases in which we've acted on behalf of our domestic employees, one where the domestic was unlawfully confined by the employer for 16 months. That meant she couldn't go anywhere; she couldn't contact anybody. She was 18 years old and spoke no English, and the final order for her was about $23,000. It was paid out of the wage protection fund when the employer disappeared.
We had another domestic, as an example -- and these are not exceptions; these seem to be the rule, particularly with domestics because of how vulnerable they are -- where we went to the branch to get some overtime for this woman. The original claim was for $13,000, and we ended up settling it for about $8,000. When we went to the branch for enforcement, the branch said to us, "Oh, not this guy again." So this guy does it again and again.
We have right now a man who approached us recently. He came to Canada as a refugee brought in by the Canadian government and worked in a recycling plant for one and a half years. His employer only paid overtime after 50 hours. My client is not landed yet, so he hasn't done anything about this. We figure he's owed probably close to $20,000 in overtime.
The minister said it's only executives who have these big claims. Far be it from me to accuse her of lying to this committee, but you know she's only been the minister for one year. I've been a legal worker in this area for 17 years and I can tell you that is not my experience at all. In fact, it's a lot of these workers who wait until they have a more secure position in Canada to file these complaints whom we often file huge claims for.
The word I have heard most often this morning is "flexibility," and it really irks me, to tell you the truth, because my community has absolutely no flexibility. What flexibility did these workers I mentioned to you have in their employment? The only flexibility they have is, if they don't like it, "You leave, you go away," which is what happens.
I'm also concerned about the minimum. We don't know what it's going to be yet. Many of you in government were elected or are supporters of big law-and-order platforms. I wonder whether you're going to do the same thing with theft. Are you going to press for changes in the law so that theft charges are only laid when someone steals over $500, over $2,000? What's a minimum? I really feel it is important to keep in perspective that $500, for instance, is the monthly entitlement someone who is on welfare gets, and $500 may seem like a petty little amount to many of us, but it's not for the people we represent who have incomes, I can tell you, between $14,000 and $18,000 for a family of four.
I heard a number of people, particularly government members in the committee, ask questions about collection, what the government could do in terms of improving collection and actually assisting those vulnerable workers. I think I have an answer.
Under the previous government, when the wage protection fund was created, we recommended that it be employer-funded and that there be experience ratings. Basically what we're saying is, let's be proactive about it. Let's not forget that many investigations end up with employers being found in default; they haven't paid what they should. I as a taxpayer object to having to foot the bill for negligent employers, for their blatant breach of the law. I would prefer a system that is funded by them and supported by them since they're the ones who are breaching the law.
I heard the minister this morning -- I'll go to her comments now -- talk about how taxpayers have to pay twice because employees choose both routes, the administrative route and civil court route. That's not the way I analyse this. We have to pay twice because employers have shown a reckless disregard for the law and that is why we're paying. I'm suggesting you do something with the employers. They're the ones at fault.
What I would like to do now is make just a few comments about the minister's comments this morning. Then maybe we'll have a little time for questions. Other than her comments about flexibility, the minister mentioned that the act is very confusing, that nobody understands it etc. Again, for years we've been telling the ministry, "If you think the problem is that employers don't understand the act, why don't you have some education for the employers?" That's pretty easy. If it's ignorance only, that can be solved. We have education for our community. Let me tell you that when I say "we," I mean "I," because I'm the one dealing with this problem. We don't have a lot of resources and still manage to disseminate some information and answer some questions.
The minister also talked a little about certain administrative procedures and how the two-year limitation period is too cumbersome since 9% of all claims are filed within six months. But that leaves 91% that are not. If that is the way the ministry is going to streamline the process, I have a big problem with that.
The minister also said that the two-year period is being reduced to six months because witnesses are not as reliable if you wait too long. In the 17 years I've been involved with employment standards, most of the cases were resolved by looking at records. Very few times do you have to resort to witnesses. Employers are required by law to keep records. That is what the employment standards officer is going to be looking at when investigating a claim.
I just want to reiterate, before I end my remarks and wait for your questions, the impact this is going to have on our community that is very new in Canada, that has very few financial resources and that I think is second on the list of incomes in terms of poverty and resources. Many of you who come from the faith community, like Mr Shea, who's actually my rep, should really show some more concern about the most vulnerable in our society. I don't want to hear more about, "We care about the most vulnerable." I want to see some action from this government if they really mean it and are not trying to sell us another bag of goods that many of us aren't buying. Those are my remarks.
The Chair: Thank you. That leaves us five minutes, so we'll divide that between two parties.
Mr Pat Hoy (Essex-Kent): I enjoyed listening to your presentation. I was particularly interested in the claim amount that you talked about of $23,000. I was going to ask you some questions about that but you answered them for me as you went on. This person is not an executive at all. Would they be earning under $10 an hour?
Ms Rubio: No. We calculated that this money was based on the minimum wage. I don't think it was $6.85 at the time; it was less than $6.85. That was about a year and a half ago. This was considering overtime, and this woman literally worked day and night for her employers. The employers ran a restaurant, and she was also taken to the restaurant and brought home at 1:30, 2 in the morning. She had to get up at 6 to get the kids ready for school and so on. They didn't pay her a penny for the 16 months. They told her they were sending the money back home, but they weren't. She was a domestic, basically.
Mr Hoy: Would it be difficult for this person to pursue this through the courts with the resources that they have?
Ms Rubio: This is something I didn't touch. I mentioned that most families with four members have incomes of between $14,000 and $18,000. You can really appreciate that people do not have any pennies for frills like litigation. Doing it cheaply, we're talking $200 an hour for any lawyer. It's unrealistic to expect that these people will have the resources and energy to take this thing through the courts. It's just sweeping them out of sight, basically, if you expect people to pursue civil remedies for employment standards claims.
Mr Christopherson: Thank you for your presentation. I'm particularly pleased that you're here on the opening day. In my own community, the riding of Hamilton Centre, one of the fastest-growing populations in downtown Hamilton is Spanish-speaking. We in the NDP have suggested, not only with this legislation but in virtually everything this government has done, that the most vulnerable, those who are either in poverty or close to poverty in many cases -- visible minorities, new Canadians, women -- are affected the most. I suggest to government members that what they're hearing today and will hear over the next three weeks is further evidence that this is the case. To give you the benefit of the doubt, if it's just that you didn't know, then you're hearing from people who represent the very Ontarians we've been talking on behalf of.
I was struck by the fact that you said you've been doing this for 17 years. I suggest then that you're very well placed to give expert testimony as to whether or not this is just minor housekeeping, which the government is suggesting.
Ms Rubio: No, this is not minor housekeeping. I've read the bill in some detail and I can tell you that particularly the six-month limitation period is a major, huge change that will affect a lot of people. Most people, in my community at least, the community I can speak with more authority about, wait before making the decision. There are a number of considerations. In my community a lot of people have come to Canada as refugees from oppressive countries and they have a certain fear of the government, which I must say I've seen reinforced in the last few months. I get a lot of calls from people who have problems at work. I see more and more reluctance to enforce their rights. That is something that concerns me greatly.
We've had some experience with collection agencies at the federal level, and I'm not impressed. All they want is a deal and out of sight, out of mind. "If I close this file I get some payment." That's really our concern. This is again talking about what kind of power the people in my community actually have to negotiate and bargain with these guys who will say: "Okay, take 200 bucks and run. You can get them right now." These people are making very little money. That is of great concern to us. This isn't minor housekeeping.
Mr Baird: On a point of order, Mr Chair: It was suggested that the Minister of Labour lied to the committee, saying that all individual claims that exceed $10,000 involve executive positions. What she said was "often." I think that should be reflected in Hansard. She did not say "all" under any circumstances. She said "often," not "all," because certainly we know that not to be the case.
Ms Rubio: I actually said, "Far be it from me to suggest that she was lying."
Mr Baird: That's fine, but your intent was clear. Your intent was very clear.
Ms Rubio: No, but that's not what I said.
The Chair: Okay, thank you. Mr Baird, you've clarified it for the record.
Ms Rubio: And it's too bad she didn't stay. She claims she wants to hear what we have to say. Well, we've requested meetings with her. We haven't heard from her. She's not here this morning. So she says one thing and does something else.
The Chair: Thank you, Ms Rubio, for taking the time to make your presentation here this morning. We appreciate it.
Ms Rubio: Thank you.
UNITED STEELWORKERS OF AMERICA, DISTRICT 6
The Chair: Our next presenters, they haven't introduced themselves. The Vaughan Chamber of Commerce is not here. So the United Steelworkers of America, District 6. Good morning, folks. I take it you're Mr Hynd. We have 15 minutes for you to use as you see fit, divided between a presentation and question-and-answer period. We appreciate you coming to see us here this morning.
Mr Henry Hynd: Thank you for the 15 minutes, which is, quite frankly, a very short time to really have an analysis of these small housekeeping amendments that in fact will create a great deal of concern and injustice in our province of Ontario. My brief outlines something about my union, the size and the diversity of our membership, but that can be read at any time.
I would like to begin, and I will only touch on several parts of my brief and hope that the committee members will take time to read it. We feel that it points out many of the legal implications of this bill.
We believe that Bill 49 will seriously jeopardize the rights of workers to basic employment protection in Ontario. Premier Harris and Labour Minister Elizabeth Witmer have publicly proclaimed Bill 49 amendments to be "minor changes" which amount to mere "housekeeping." That is so sad, that the government of the day would consider this to be housekeeping if they really analysed the implications of this bill.
This bill will strip unionized workers of legislated minimum workplace standards which resulted from hard-fought struggles of the Steelworkers as well as many other trade unions, and privatizing the government's responsibility for arbitrating, regulating and enforcing minimum workplace standards, thereby placing this burden on the backs of workers.
These amendments will make it easier for employers to deny their employees the minimum wages and benefits set out in the Employment Standards Act. More simply put, Bill 49 is a gift to unscrupulous Ontario employers who will view the amendments as an opportunity to gut minimum workplace standards. Employers will realize that the costs and pressures of self-regulation of this new system will force employees to agree to a settlement or compromise of an outstanding claim against the employer even where the employer has clearly and unconscionably violated this act.
The United Steelworkers asks this government to consider the effects of Bill 49 on working people and the labour relations environment in this province. We urge this government to have regard to the implications of Bill 49 and withdraw this proposed legislation.
Section 3 of the bill allows employers to negotiate lower standards for hours of work, overtime pay, public holidays and paid vacation in organized workplaces. Until now these basic standards were untouchable. Furthermore, no other jurisdiction in Canada allows employers to contract out of legislated minimum standards protections afforded to workers. This amendment is enough to make the USWA stand in opposition to the bill as a whole.
The intent of the act has always been to impose minimum workplace rules and standards which society deems necessary for all of its members. While parties are free to contract for higher benefits than those contained in the legislation, they are not able to undercut the statutory minima, often referred to as the floor of rights. This amendment will eliminate the floor. There is no justification for the elimination of basic standards for working people in a society which values the universality of at least minimum basic rights.
We believe that the introduction of this legislation will create greater conflicts in the workplace where in fact employees are fortunate enough to have a union that will help them carry through to ensure that employers pay the minimum standards and whatever is due employees, whatever wages have been denied to employees, vacation pay, whatever, and this is something that we feel is an onus on unions that need not be there. It will create heightened tensions in the workplace and certainly won't be a conducive element to adding any harmony in the workplace.
The proposed amendment requires unions, employers and arbitrators to undertake the difficult task of comparing apples and oranges and determining whether collective agreements comply with subsection 4(3) of the amended act and provides greater rights in total for hours of work, overtime pay, public holidays, vacation with pay and severance pay when assessed together. This accounting mess is compounded as the parties are being asked to value and compare purely monetary rights (overtime pay, severance pay), non-monetary rights (hours of work) and mixed rights (vacation pay and public holidays).
The fact that there has been no attempt in Bill 49 to address how a negotiated package is to be evaluated suggests that the purpose of this provision is to allow employers to waive minimum standards rather than negotiate greater flexibility in achieving minimum standards.
This government is abdicating the historic function of government in enforcing the act and forcing it on the shoulders of organized labour. Bill 49 eliminates recourse by workers to the considerable investigative and enforcement powers of the Ministry of Labour. Bill 49 contemplates that an arbitrator, whose costs will be shared by the union and the employer, will have all the powers now exercised by employment standards officers, referees and adjudicators. This places an undue hardship, a financial hardship, a legal hardship, on human resources' burden of managing every employment standards complaint. We consider this as staggering.
The change from an individual to a union-driven procedure poses a tremendous hardship on unions, which will now bear the burden of investigation and enforcement and their accompanying costs. As well, Bill 49 will require unions to become familiar with the pre-existing and complex jurisprudence under the act, because unions and not individual complainants will be responsible for determining whether to proceed with a complaint.
There is also some ambiguity about when unions will first begin to assume responsibility for administering employment standards complaints. As the proposed legislation presently stands, a union is responsible for enforcing the act after certification and the issuance of notice to bargain a first collective agreement if an employer subsequently enters into a collective agreement. How is it possible for the union, without a collective agreement grievance procedure and arbitration provision in place, to process an employment standards complaint?
It is possible that these complaints will need to be held in abeyance until a first collective agreement is achieved. If a first collective agreement is never achieved and complaints that had been held in abeyance are subsequently referred to the employment standards branch, the delay in filing the complaint with the branch may result in an employee being unable to recover money due to the proposed six-month limitation period for filing complaints.
The government's minor changes to the act allow it to unfairly pass off the obligation and associated liability involved with administering a public statute on to employees and their unions when it is the employers who have violated its provisions.
The absence of an investigation stage will be extremely problematic in dealing with successor employer and common employer complaints under the act where pre-hearing production is essential. The information necessary to succeed on such a claim is often solely within the knowledge of the employer. Unions will be forced to file and then proceed to litigate these complaints before an arbitrator in order to compel production and disclosure. Disclosure at this stage may result in the union finding that there was little basis for the complaint. Surely it makes sense for the employer who has violated the law to provide the necessary materials to the union, and yet we will be forced to go to arbitration to receive this.
Bill 49 is a bad act for all workers, and especially for unorganized workers in terms of its limitations, the time limits that are imposed on workers who may have few resources, little knowledge, little access to information. What will really grow as a result of this in the unorganized field is the number of people who will become complainants, and they will take cases forward in the private sector and make claims for employees and look for a settlement of the claim, because a settlement of the claim will usually result in their payment. They won't pursue the claim in the same way that any justified system would proceed. How they will proceed is on the basis of receiving some of their money, and therefore this ensures that unorganized workers will never, ever be able to collect what is due them under the law.
This is a sad comment on this government and its housecleaning. This will cause major problems in the workplace. Most unorganized workers will just be denied justice. This is an attempt, in my view, to allow unscrupulous employers to get off the hook, not to pay moneys that workers are entitled to, and I can't understand how any government would consider this to be mere housekeeping changes.
I ask you to look at this brief in detail, as I said at the beginning. It points out some of the legal implications for both organized and unorganized workers and the heavy burden it will place on workers and their representatives to pursue what should be their right under law.
The Chair: Thank you. That leaves us with just under two and a half minutes, so there'll be only one question in the rotation this time. A government question, Mr O'Toole.
Mr John O'Toole (Durham East): Thank you, Mr Hynd. Just a quick question. I hear from my constituents who have concerns with the employment standards that the current system, although there may be judgements, doesn't work. That's a pretty broad statement. Without particular reference to this, do you think it's time to review the legislation?
Mr Hynd: I can only tell you, Mr O'Toole, that in our experience we have been able to bring justice to workers even although it has taken some considerable time. We have judgements against employers who have decided to run away from their employees and from their obligations to their employees, who have virtually stolen money from their employees, and we've ensured that these employees have received that money. I can only say to you that the employment standards branch was a very effective tool for workers. I can't imagine the difficulty that unorganized workers would have without the help of the employment standards branch. I can only say to you that the new system may be very expedient. What will happen is nobody will make a claim or claims will be settled fast for 10 cents on the buck, and workers will be denied what they really should get. Employers who are stealing money from employees are being let off the hook by this system, by the introduction of these so-called housekeeping changes.
Mr O'Toole: I guess I would suggest, in any changes that may be necessary, do you endorse the idea of more self-reliance, specifically in collective bargaining where there is a prevailing, negotiated-between-the-parties --
Mr Hynd: Actually, there is a very simple way for this government to expedite claims. If the government really wished to bring about speedy justice, all it has to do is move workers -- who have worked for their money and have been denied payment -- to the top of the list instead of the banks and the rest of the creditors. Workers are at the end of the list. They have actually put in physical labour and they are owed the money. The owner has taken that money away from them, money they were entitled to. The banks and creditors, when they make loans, make them taking a risk. They're investing in a business. Workers don't invest in a business; they work for their employer. So if you want an expeditious system, there's a simple solution. And it's not a simple housekeeping matter. We'd still need employment standards and we'd need the branch.
Mr O'Toole: I repeat the same question: Do you believe that amendments of that magnitude need to be discussed and that the minister is doing the right thing by giving you and others, and us, the opportunity to listen and to amend the act so that it addresses those vulnerable workers?
Mr Hynd: For the minister to take away minimum rights --
Mr O'Toole: She isn't, though.
Mr Hynd: I think she is. What the minister is doing is denying the fact that minimum rights should be protected by government. What they're saying is they expect the employers to self-police, and we know how many employers self-police. There's a litany of employers who have denied employees their wages that they have already worked for, their vacation pay that they have already earned, their severance pay that they paid for. Their employer denies them that. I can only say to you that that's certainly no way to straighten things out for employees. That's not housekeeping; that's a destruction of the minimum standards in this province.
The Chair: Thank you, Mr O'Toole. I'm afraid we've exceeded our time. Thank you both for coming before us here this morning. We appreciate your taking the time to make your submission.
That concludes our morning session. The committee stands recessed until 1:15 this afternoon back in this room.
The committee recessed from 1158 to 1315.
CANADIAN AUTO WORKERS -- CANADA
The Chair: I call the meeting back to order for our afternoon session. Our first group making a presentation this afternoon will be the Canadian Auto Workers. Good afternoon, gentlemen. I wonder if you might introduce yourself for Hansard, and of course, just to remind everyone, we have 15 minutes for each group today and it's up to you to divide as you see fit between presentation time and question and answer.
Mr Jim O'Neil: My name is Jim O'Neil. I'm the national secretary-treasurer of the CAW. On my far right is Jim Stanford, who is an economist with the CAW, and Lewis Gottheil, who is the director of our legal department.
For those who don't know about our union, we are the largest private sector union in the country. We represent some 210,000 members -- 143,000 are here in Ontario -- in a broad range of different services and industries. As you notice, we have a brief submission that's before you, but I'm going to go from the one page highlighting some of the issues within that brief and I would hope that at a later date you would go through the brief as it's been put together.
While the CAW - Canada welcomes the opportunity to appear before the committee to address our very serious concerns about Bill 49, we underline our clear opposition to the manner in which the current provincial government continues its regressive rewrite of labour laws such as the Employment Standards Act without consulting the trade unions and workers of Ontario. Providing a very limited number of persons and/or organizations 15 or 20 minutes to debate the purported merits of another attack on workers' rights is unacceptable and a shameful mockery of the democratic process.
The brief of the CAW -- Canada submits:
The strong opposition of Canada's largest and leading private sector trade union to Bill 49;
That all workers in Ontario have an interest in improving, not diminishing, the workplace standards found in the Employment Standards Act by reducing the acceptable work week to a maximum of 40 hours, increasing minimum vacations with pay, the minimum hourly wage and intensifying the prosecution of delinquent employers;
That Bill 49 seriously limits and in some circumstances denies worker access to justice and the proper enforcement of the standards in the statute by imposing a minimum floor and maximum ceiling for an acceptable claim to the Ministry of Labour, reducing the time period during which a worker may make a claim to six months, and privatizing the collection of outstanding wages in a way which will coerce workers to take less than 100 cents on the dollar with respect to their minimum legal entitlement;
That Bill 49 privatizes for a third of Ontario's workforce the entire administration and enforcement of the Employment Standards Act and makes workers pay half of the cost of the arbitrator who will hear claims under the Employment Standards Act. Corporations don't have to pay for a judge's time when a case pursuant to the Ontario Business Corporations Act is heard in the Ontario Court. Why should workers or unions have to pay the cost with respect to an arbitrator's time regarding a claim under a public statute like the Employment Standards Act?
It is and has been widely recognized that the purpose and intent of the Employment Standards Act is to protect workers who are in a radically unequal bargaining position in relation to their employers. Workers are not calling for the amendments found in Bill 49. The only voice supporting these changes is the voice of corporate Ontario, and one thing is certain about their agenda: It is not about the protection of workers and their communities.
With that, I'll turn it over to Lewis Gottheil for some comments.
Mr Lewis Gottheil: The brief goes into some detail with respect to the points listed here and I would ask you to consider that brief carefully. We're particularly concerned at this time about the proposals in the bill that deal with a minimum floor and maximum ceiling with respect to claims.
With respect to a minimum floor, as we state in the brief, if the bill passes as proposed, workers will be disinclined, discouraged and even intimidated in a sense from pursuing their claims, the reason being that the only forum they will have to pursue a claim under the minimum floor is the Small Claims Court of Ontario. In our view, it would simply be counter-productive for the worker involved, for the community at large, to oblige workers to go to the Small Claims Court to pursue a claim that falls under the minimum floor. You will be using up Small Claims Court time, which is also funded by the taxpayers of Ontario. You'll be forcing workers to engage in procedures which are technical and with which many workers, particularly vulnerable workers with unfortunately limited educational opportunities, are simply not familiar with. They will be discouraged, if not intimidated, from using that procedure. It's simply counter-productive and we, as we state in the brief, see no savings to the public purse in that respect.
With respect to claims over the maximum ceiling, which we understand is proposed in the amount of $10,000, the first point I would make in that regard is that many workers, including many members of the CAW, will have down the road, and have had in the past, claims in excess of $10,000.
So while you may think, while considering this bill, that you're not affecting a great number of workers, if that proposal passes, you will affect a great number of workers. For example, members of our union will make $400, $500 a week, will have between 10 and 20 years of service when a plant closes. If you include in that severance pay calculation vacation pay owing, quite soon you'll find you're over the $10,000 mark. It's simply unacceptable in our submission that one would force an individual worker, again, to engage in court proceedings to recover that which is guaranteed by the Employment Standards Act.
The purpose of the act is to protect workers. Historically, governments of all stripes have recognized that purpose. Furthermore, the purpose of the act is to give a worker a simple means of recovering his or her entitlement. That's been a purpose of the act for many years and should remain a purpose of the act. As well, the act has recognized that workers, particularly vulnerable workers, either by way of limited educational opportunity or by way of not having English as their first language, and any other worker, should have the assistance of the Ministry of Labour in pursuing a claim. That's why including all claims of whatever amount of money, all entitlements for whatever amount of money, should be handled within the Ministry of Labour enforcement procedures and framework. Employment standards officers have the power to inspect documents, interview witnesses, collect the information to assert a claim, and the workers of Ontario rely on that procedure to assist them in getting their entitlement.
So while we understand the minister this morning announced a withdrawal of the provision regarding contracting out of workplace standards, we are not confident and we are not assured that this government won't introduce that again. We take from the minister's withdrawal a decision that the government will not proceed with that particular proposal down the road and we trust that the government will make that clear in the days to come, that that's what the withdrawal of that particular proposal means.
There are unfortunately so many other ramifications dealing with other issues pertaining to, for example, the collection proposals, privatizing collections etc. Regrettably, we have a limited amount of time and it really is an unfortunate and wrong decision of the government to limit our time because of the enormous impact this has on workers, not only in organized industries but in unorganized industries.
I'll stop there because we hope you may have some questions that we can answer with respect to your concerns.
The Chair: Thank you, gentlemen. We do indeed have two and a half minutes per caucus, and questioning will start with the official opposition.
Mr Duncan: The notion that this is the first step towards a right-to-work jurisdiction, would you concur and would that be your overall view, that this is a slippery slope in terms of where we go as a province in terms of workplace regulation?
Mr O'Neil: The Employment Standards Act didn't evolve overnight. It evolved over issues that workers and unions believed were something that had to be put in place to make the improvements. For the minister now to say she's going to take one section out and review it, I would suggest that the whole Employment Standards Act is so important, it all should be reviewed and these hearings should stop immediately. There is no question in my mind that what this government's driving for is lower standards for workers.
Mr Duncan: That was my next question. You would not be opposed to a complete review of the act itself, provided there was fair opportunity to debate it publicly?
Mr O'Neil: We're not opposed to debating any issue, if there's fair debate and there's some kind of a forum where you can -- again, the Employment Standards Act is the minimum where you can improve workers' rights and working conditions within this province.
Mr Gottheil: If I might add one brief point to that. In our brief we make reference to a case decided by the Supreme Court of Canada, called Machtinger and HOJ Industries, and it's in there to say one particular point: that there's been a consensus in the community and a consensus reflected in the Supreme Court of Canada that the purpose and intent and spirit of the Employment Standards Act of Ontario has been to protect workers, to advance those who are in a vulnerable bargaining position. So, yes, we would encourage a review of the act with respect to updating the act, improving the act, dealing with issues such as teleworkers, workers who are forced to work at home, dealing with issues pertaining to hours of work and the increased polarization of hours, those working too much overtime, those who don't have any work.
Mr Duncan: To make sure I understood you, you would prefer that these hearings cease and that we wait until we have a more complete understanding of what the government's entire agenda is before we have public hearings?
Mr O'Neil: Again, as Lewis just said and I repeat it, if you're going to have hearings and the government is going to say to us they want to review it, then they should review it, not ram it down our throats.
Mr Christopherson: Thank you very much for the presentation. A couple of questions: One is, at the outset of Bill 49 being dropped on the floor of the Legislature, the government characterized these changes as minor housekeeping. Do you agree with the minister that's what this is, and if not, why not?
Mr O'Neil: No, I don't agree that they're minor housekeeping. I haven't seen anything that's been dropped that is looking at making improvements towards the workers' rights and vacations and pay or anything else. It just seems to me that they're going in the opposite direction.
Mr Gottheil: And it can't be qualified as minor housekeeping when you in effect, as we say in the brief, privatize the enforcement of a public statute by putting the entire load and cost burden on trade unions. It can't be qualified as minor housekeeping when the government reveals an intent to have a minimum floor and a maximum ceiling with respect to access to the public enforcement of a very crucial statute. These are not minor housekeeping issues. These are justice issues and workers are being denied access to justice in an important way.
Mr Christopherson: One last question. The minister announced this morning the withdrawal out of 49 of the flexible standards portion. We know that this government, both now and when they were in opposition, believes that trade unions only represent a very small part of the workforce and have a very narrow interest only in themselves and they constantly project that image when they speak about the labour movement.
I'd like to ask you very directly, as I did Gord Wilson this morning: What is your intent vis-à-vis Bill 49 in terms of your seeing this as an important issue and what you plan to do about it, even though arguably the largest piece that affects organized labour has been set aside for the time being? How do you see the rest of this in terms of a justice issue?
Mr O'Neil: It's not a justice issue -- I mean, there's no question. We're in bargaining right now that'll have a major impact on this province and if anybody doesn't understand that, they don't understand the importance of GM, Ford and Chrysler to not only Ontario but to this country. We're not going to leave the bargaining table until we fix within the agreement what this government is trying to take away. Whether it's the Employment Standards Act, whether it's changes to the health and safety legislation, we are going to fix it at the bargaining table. That's going to, I suggest to you, wreak havoc within this province. If that means a strike with GM, Ford or Chrysler until we get what we believe is at least the minimum that we have, we're not walking away from the bargaining table. So it's going to create havoc and that's with the big employers. With the smaller employers, it'll be much tougher, but that same fight's going to go on.
Mr Jerry J. Ouellette (Oshawa): Just one quick question before I pass it off to Mr Shea. Thank you for your presentation. I'm a little bit confused in that your summary, the second bullet there, states that you want a 40-hour work week maximum. Yet constituents who come into my office from Local 222 tell me that you had bargained for a 48-hour work week and the reason they're coming in now is they're concerned that you're currently going to be bargaining for a 56-hour work week. I wonder if you might be able to explain this. First of all, is it true? I haven't seen your contract, so I don't know. You negotiated for a 48-hour work week during your last negotiations?
Mr O'Neil: No, 48 hours is a requirement under the Employment Standards Act. Then the employers we bargain with use 48 hours as the yardstick.
Mr Ouellette: Okay. And then the 56, there's no truth to the 56 at all.
Mr O'Neil: Fifty-six what?
Mr Ouellette: A 56-hour workweek.
Mr O'Neil: If you give GM the right, the corporation the right, they want the right to unlimited overtime. It's not coming from the workers; it's coming from the corporations that are lobbying this government to increase 48 to 52 to 56.
Mr Ouellette: But this is something that you have the ability to bargain for, the number of hours you're able to work within the plants?
Mr O'Neil: We have the right to bargain, but if you know GM, if people are coming into your workplace and those are your constituents, you know how tough GM is going to be on the issue. We're not going away from 48 hours. You can be assured of that.
Mr Derwyn Shea (High Park-Swansea): Before I pass this over to Mr Tascona, just a quick question which picks up on a question raised earlier this morning by another member of the committee. It deals with the issue of bankruptcy and the protection of employee rights and so forth. In the last several years, at least, has the auto workers' union done any deputization with the federal government in terms of the Bankruptcy Act?
Mr O'Neil: Yes, I believe it was when the federal government under Mr Mulroney was taking a look at the revisions to the Bankruptcy Act, which ultimately occurred, that the union made very strong representations with respect to a fund or program akin to what the NDP passed in Bill 70. That was a way of satisfying first, among a variety of listed persons, unpaid claims, be it in terms of severance, termination or otherwise. Unfortunately the Progressive Conservative government at that time didn't see fit to pass what would have been a very progressive and forward-looking amendment, and the workers were left out in the cold. It took the NDP government to pass that bill. Unfortunately this government has seen fit to leave workers out in the cold by gutting that program under Bill 70.
Mr Shea: Instead of mixing up levels of government, could you perhaps just carry on? Since the change of federal government, what has happened with the current federal government to redress what you would perceive as grievances?
Mr O'Neil: My understanding is that revisions to the Bankruptcy and Insolvency Act are not at the top of the federal government's agenda right now.
Mr Shea: Not even yet?
Mr O'Neil: We don't have any active efforts right now in making representations to the government. If it appears that bill will be on the agenda we'll certainly be there pushing the issue for workers.
Mr Shea: So you've made no effort to have it changed in the last four years?
Mr O'Neil: We continue to present our views with respect to the need for a program to help workers. The first place to go, however, is under provincial jurisdiction. We've made our views very clear on Bill 70 and the revisions to Bill 70. That's the first place. The backup place is to the federal government, and we've made our views very clear on that. The thing is, the federal government hasn't put forward a bill in the last little while dealing with that issue so that we can concretely grab a hold of a proposed statute and work with it.
The Chair: I'm afraid we've exceeded our time. Thank you, gentlemen. We appreciate your taking the time to come before us this afternoon and make your presentation.
ALLIANCE OF MANUFACTURERS AND EXPORTERS CANADA, ONTARIO DIVISION
The Chair: Our next group up is the Alliance of Manufacturers and Exporters Canada. Good afternoon. We have 15 minutes for you to use as you see fit, divided between presentation, questions and answers. I wonder if you might introduce yourselves for Hansard.
Mr Ian Howcroft: Sure, glad to. My name is Ian Howcroft and I'm director of human resources policy with the Alliance of Manufacturers and Exporters Canada, Ontario division. With me this afternoon is Susan Houston. Susan is manager, employment issues, with Dow Chemical and a long-standing member of our human resources committee. We appreciate the opportunity to provide our comments and recommendations on Bill 49, the Employment Standards Improvement Act, to the standing committee.
Before we provide substantive comments with regard to Bill 49, I'd like to highlight a few aspects about the alliance. The Alliance of Manufacturers and Exporters Canada was created earlier this year between a merger of the Canadian Manufacturers' Association and the Canadian Exporters' Association. We are a national voluntary organization and we have offices in all provinces. The alliance's member companies produce approximately 75% of Ontario's and Canada's manufactured output. Exports and manufacturing have driven economic growth in Canada over the last four years. Manufacturing directly accounts for 18.5% of the country's GDP. If one takes into account the indirect contribution to economic activity, the value generated by manufacturers and our suppliers is about 55% of the GDP. The value of our national exports amounts to more than 40% of GDP. These figures clearly indicate the clout and importance our members have in the economy of both Ontario and Canada.
In today's global marketplace the government must do all it can to ensure that Ontario is as competitive as possible. We must all work towards cutting costs, removing inefficiencies and creating an environment that allows our economy to grow in order to promote and support our social programs.
The alliance has been, and currently is, supportive of this government's direction and its efforts to reduce overall regulatory burdens in order to create that competitive environment that will attract investment and ultimately lead to job growth.
Consequently we support the direction of Bill 49. This bill recognizes that the role, functions and activities of government must change and take into account current economic realities. Bill 49 reduces the role of government while at the same time it protects the rights and interests of those who need the services of the employment practices branch. Overall, Bill 49 will allow the government to more effectively utilize its limited resources.
We are very pleased that the government has recognized that broader reform and a more fulsome review of the Employment Standards Act is necessary. Our members have long dealt with the problems, frustrations and waste of resources that result from the current Employment Standards Act. We therefore look forward to participating in the phase 2 review of the act which we expect will commence this fall. Bill 49 is a positive first step, but it is only a first step.
The current Employment Standards Act is extremely rigid and affords neither employers nor employees the necessary flexibility. While intended to set basic standards, the Employment Standards Act is often a disincentive to attracting investment. There is a need to reduce the onerous regulatory burdens that exist within the current act. To illustrate this, I would cite the complicated and onerous permit system that pertains to hours of work and overtime. It's clear that the current system is in need of dramatic change and reform. The current act does not take the realities of an evolving workplace into account.
There are very few people within the Ministry of Labour who understand the complete permit system and who would be able to explain it with any degree of confidence or competence. It's little wonder that the majority of employers and employees are unsure as to the specifics of the hours-of-work and overtime permit system. It would therefore be advantageous to Ontario's competitive position if the archaic, cumbersome and arcane permit system was removed. There is a great need and a great opportunity to simplify and improve the system. It is time for the Employment Standards Act and the regulations to be significantly amended to make them more relevant to today's workplace. The alliance will be providing the government ongoing input into how to positively improve our employment standards and the other workplace legislation and regulatory systems. We have provided more detail to this point in our appendix to the written submission.
At this point I'd like to provide some specific comments on the substantive aspects of Bill 49. While we are supportive of the overall direction and intent of the act, we will highlight some of our concerns and recommend that some changes be made.
The alliance supports the changes that will simplify some of the administrative aspects of the Employment Standards Act. For example, we support changes that would allow service by regular mail and those that would allow for the electronic filing of claims. In fact, we would like to have seen another administrative change included in this bill that would allow for wages to be paid or transferred by way of direct deposit into an employee's bank account. Section 7 of the current Employment Standards Act requires that an employer pay wages to an employee in cash or by cheque. The act should be amended to reflect the reality that a great number of employees receive their wages this way.
We also support the decision to use private collection agencies to pursue moneys that are due under the Employment Standards Act. Collection agencies are in the business of collecting unpaid moneys, whereas this is not a core business of the government. We support letting a private organization do what it can do better than government. Let the government do what it can do best.
We are also pleased to see that the government has taken a positive first step in reducing the possibility of a multiplicity of proceedings or duplicate proceedings taking place on the same issue or facts. Consequently, we support the proposed section that will require an individual to select whether he or she proceeds under the Employment Standards Act. It is unfair for an employer to face an employment standards claim and then face a civil action on the same facts. Also, this will reduce the number of complaints the employment practices branch has to deal with, thereby freeing up its limited resources.
On a related topic, we also support the $10,000 cap or limit on the amount that an employment standards officer can award. It is our understanding that very few claims exceed $10,000. Those that do exceed $10,000 require or involve an inordinate amount of the employment practices branch resource time. Again, this will allow for the most effective use of their limited resources. We also note that until 1991 there was a cap of $4,000 within the Employment Standards Act, excluding severance pay.
At this point I'd like to ask Susan Houston to provide some additional comments.
Ms Susan Houston: As was stated above, the alliance supports the government's direction and that of Bill 49 to increase flexibility and promote self-reliance. We do, however, have some concerns with the practical implementation of section 3 of the bill. We're pleased to hear that this morning it's been announced this will be deferred until the full review of the act. We want to emphasize our support for increasing flexibility. However, we feel this aspect can best be addressed within the context of the overall review of the Employment Standards Act. This will allow more time to ensure that all dimensions of this issue have been fully canvassed and addressed. It's quite a complex issue.
The alliance would also like to raise some questions and concerns with respect to section 20 of Bill 49. While this section encourages and promotes self-reliance, we note that there could be unintended results without changes to this area. For example, we have concerns that an arbitrator, under this provision of the Employment Standards Act, could have greater powers than an arbitrator would have traditionally to apply and interpret legislation. These powers are broader than they need to be to ensure that the requirements of the act are available to those covered by collective agreements. It should be clear in the legislation that an arbitrator has no investigative powers. He or she could only have the ability to apply the Employment Standards Act provisions and adjudicate the complaint.
Furthermore, we have concerns with regard to how an arbitrator's decision would or could be appealed and as to the standard that would be necessary in order to allow an appeal. Under arbitral jurisprudence, the decision must be appealed by way of judicial review and the standard to successfully overturn a decision requires the decision be "patently unreasonable." The judicial review process is extremely expensive and the burden is extremely onerous to meet. It may be beneficial if there were some other more accessible and affordable appeal mechanism in place for these situations. Also, the decision should be one of correctness. The standard should not be that the decision is "patently unreasonable."
It's also important to ensure that this section does not result in abuses of the act or uses of the act to pursue other agendas. Arbitrators should only be allowed to deal with substantive standards such as vacation pay, public holidays, termination pay, severance pay, pregnancy or parental leaves, minimum wage, hours of work and overtime. Excluded from this section should be such things as benefit plans, sale of a business, related employers and policy issues, as these add a dimension or complexity that could lead to unexpected results. If limits are not provided for, this section could be used to further a bargaining agenda which is not the intent of the Employment Standards Act. Consequently, we strongly recommend that changes be made in this area.
The alliance supports the changes with regard to the general time limits. We concur that the two-year time limit is too long, and a six-month limit would be a great improvement. It will allow the employment practices branch to deal expeditiously with claims filed in a timely manner, again allowing it to better focus its limited resources. We note the director will maintain discretion to extend time limits in cases where necessary conditions and circumstances warrant an extension.
We also support the extension of the time limit to apply for a review from 15 to 45 days. However, we're concerned with the limited discretion that would be afforded the director in these cases. We suggest that the director be given wider discretion, similar to that which currently exists, ie, special conditions. There have been cases involving large sums of money where it has been advantageous to allow the parties to negotiate and hopefully resolve the issue on their own. The negotiations continued with the knowledge that if they were unsuccessful, the director could use his or her discretion to extend the time. This reduced discretion may force one of the parties to quickly apply for a review, which would negatively impact the ongoing negotiations.
To summarize, the alliance supports the direction and intent of Bill 49. We feel that Bill 49 will remove some of the regulatory and administrative problems from the current Employments Standards Act. It recognizes that with declining resources the government must do all it can to effectively handle claims and ensure that those who most need the services of the employment practices branch receive that assistance. Bill 49 will allow for such allocation of resources by removing aspects that can be better dealt with in other ways. While we fully support the intent of increasing flexibility and promoting self-reliance, we feel that the provisions dealing with the greater right or benefit aspects are best deferred for full review. Bill 49 is a good first step.
This concludes the formal presentation, and we'd be pleased to answer any questions you might have.
The Chair: Thank you very much. We have just over two minutes per caucus each. We'll start with the official opposition.
Mr Duncan: Thank you for your presentation. Just one question. The minister has withdrawn section 3 of the bill, probably one of the more controversial parts of the bill, and you have indicated that you have a number of concerns that you would like to see addressed and other things that you would like to see deferred to the major study and review of the bill.
Given your comments about limited resources that governments have today, and given what the minister did this morning, do you think it's really a prudent use of taxpayers' money to go through this exercise now and start it up again in January?
Mr Howcroft: To understand your question, you mean start the second phase of the review in January?
Mr Duncan: Your organization expressed concern about making the best use of our resources. A major part of the bill was withdrawn today. You have advocated that the changes that the government has proposed are not all that significant from your perspective in terms of employment standards. Do you not think, given your comments about limited government resources, that maybe we ought to do this all at once and maybe we ought to consider the entire agenda instead of going through this exercise twice?
Mr Howcroft: We supported the government's initiative to deal with this in two phases, the first phase to deal with the more technical administrative aspects and the second phase to deal with the substantive issues where we felt flexibility could be better addressed. So we don't see this as a waste of resources at all. We're still seeing the administrative and technical aspects dealt with at this time while giving us more time and a full opportunity --
Mr Duncan: So you advocate two rounds of full public hearings and spending the money to do that when we're going to be back at this again in January? You're going to use taxpayers' --
Mr Howcroft: What we're advocating is enough time to fully consider and discuss the full dimensions of the substantive reform of the Employment Standards Act and that's going to take more time --
Mr Duncan: That's what I'm saying is because you put it on the table --
Mr Shea: Let him answer.
Mr Duncan: No, he's not answering, with all due respect.
Mr Shea: Let him finish the words.
Mr Duncan: He's not answering. You said -- I didn't put this on the table -- you're concerned about the use of taxpayers' dollars.
Mr Howcroft: That is a main concern, yes.
Mr Duncan: Given what you've said in your own presentation around the nature of the amendments, that they're purely administrative, that they don't affect workplace standards -- which we don't agree with, by the way -- and given what you said about the appropriate use of taxpayers' dollars, do you think this is an appropriate use of significant public resources, given that you yourself and your organization have now advocated that the amendments that are there are only administrative in nature?
Mr Howcroft: These administrative and technical aspects will enable the government to save more money more quickly. It will allow the government to focus resources now as opposed to waiting for some time in 1997. So yes, we view that as an effective use of resources. Allowing employment standards or employment practices officers to best focus on implementing these administrative changes, yes, I think that is an effective use of resources.
Mr Tascona: Would you be in favour of the electronic filing of appeals or electronic payment of orders?
Mr Howcroft: We haven't given that full consideration, but I think that's a direction that should be considered to see if it could work. I think technology is providing a lot of opportunities to save resources and moneys and we should be exploring new ways of doing things. So yes, I think that's something we should be looking at and will be looking at perhaps under phase 2.
Mr Tascona: Up until 1991, there was a $4,000 limitation that existed on employment standards claims and that excluded severance pay. Do you feel the limiting of ministry-investigated claims to a maximum of $10,000 to be a reasonable reform given that the previous limit and the fact that people now have to make a choice to go to court and not use government resources?
I'll give you the example of an individual, we'll say a non-union employee, a manager who receives a severance payment and termination payment that would exceed $10,000 and this legislation would require them to make a decision for the $10,000 or opt to go to court. Do you think that that's reasonable?
Mr Howcroft: I think you have to have a balance in the system and you have to have a cutoff at some point. Ten thousand dollars would address 96% to 97% of the claims currently filed. You're only dealing with very few numbers of claims over that $10,000 limit. Many of those that are already part of a civil action will be dealt with. So just ensuring that the employment practices branch can best use its limited resources to help those who perhaps need the most assistance, this $10,000 cap will assist in that regard.
The Chair: A brief supplementary, any government member? Mr Shea.
Mr Shea: Just a very quick one. In terms of questions raised earlier about the collection agencies, and you referred to this as you went by, saying you favoured the privatization, there was some concern raised earlier today in the hearings, and you may want to respond to it, about the possibility that by privatizing the collection agencies it would in fact put into place a mechanism that might put excessive pressure upon employees to settle prematurely. Have you any comment in that regard?
Mr Howcroft: Not really. I think it's best left to those who professionally go after moneys to let them do that. I saw this from the inside. I was an employment standards officer at one point and I saw cases where people didn't get anything because the ministry wasn't able to effectively go after those resources. They were not able to work quickly enough and follow the moneys around. Collection agencies would be able to provide for that kind of coverage.
The Chair: With that, thank you. We've reached our 15 minutes. Thank you both for taking the time to come and make a presentation before us here today.
Ms Houston: Thank you for your time.
The Chair: The next presentation will come from Ms Judy Fudge. Good afternoon. You've heard my litany about the 15 minutes, so I won't repeat myself. You've been with us so far for the whole day.
Ms Judy Fudge: I'm pleased to be able to present, though as a law professor, speaking for only 15 minutes is very difficult to do. Since 1987, I've been teaching at Osgoode Hall Law School at York University and my area of specialty is labour law. I've concentrated a lot of my research on employment standards and I was quite interested to see changes to the Employment Standards Act.
I'm particularly pleased to see Bill 49 called An Act to improve the Employment Standards Act because I've been long advocating improvements in the Employment Standards Act. But being a lawyer I looked through the fine print and I think it's false advertising to call it An Act to improve the Employment Standards Act. I think it also may be false advertising to talk about flexibility as if flexibility means the same thing to everyone. People should be flexible. It's good for their bones; they live longer.
What employers seem to mean when they say flexibility is that people should work whenever they want them to for whatever wages they want them to. When workers want flexibility, they want working times that meet their needs, they want family responsibility leaves and they want wages that they can live on. It seems to me that when we are talking about flexibility in this context, we mean that we're helping business to procure labour cheaper and to make workers work harder.
Today, I want to concentrate my remarks on the unorganized. The union movement is very good at representing its members, so I'm going to focus on that.
The Employment Standards Act in its various manifestations has a long history in Ontario. In 1920, we got our first minimum wages for women workers. We had maximum hours of work, vacation pays in the 1940s. In 1968, we got our first omnibus employment standards legislation.
The Employment Standards Act provides basic rights to all workers. It provides basic floors of maximum hours of work, overtime, minimum wages, pregnancy, parental leaves. It's particularly important for the most vulnerable workers, workers who work in the tertiary sector, in the service sectors, unorganized workers, new Canadians, women workers, but in fact it's a basic floor for all workers and the union movement has long been at the forefront of demanding basic floors because where you start helps to set off where you can end. So if you lower the floors, of course, we all get lowered off.
When I was looking through this legislation, one of the things I did was to look at the press release accompanying Bill 49. According to Labour Minister Witmer, these changes embodied in Bill 49 represent the first of a two-phase reform of the act that will cut through years of accumulated red tape, encourage the workplace parties to be more self-reliant in resolving disputes and make the act more relevant to the needs of today's workplace. They will also focus attention on helping the most vulnerable workers.
If any of my students had described this bill in this way, I would have said it was negligent misrepresentation and advised them that they would be potentially running a suit. It's not going to protect the most vulnerable workers. What this act will do is make it harder for people to enforce their rights. There's no point in talking about improving standards if people can't enjoy the basic standards that already exist. Right now we would all agree that the enforcement record of the Minister of Labour, under all the different governments, has been appalling, under Liberals, under New Democrats and under Tories. This legislation will not help these workers to get their rights and enjoy their rights; what it will do is create deterrence and barriers to seeking to enforce them.
It's easy enough to cut down claims if you make it really hard for people to pursue them, but how that can be considered as helping vulnerable people I don't really understand. So we're looking at improving the act through placing limitation periods for claims, proceedings, prosecutions and appeals. This will not improve.
I want to look at three basic areas: the time limitation periods, the monetary cap and the privatization of collections. Currently, people have two years from when the violation arose to make a claim. The minister claims that by moving it down to six months that brings it in line with other jurisdictions. That is not accurate. In British Columbia, you have six months from the termination of your employment to bring a claim, not from the fact of violation, and you have up to two years of money that you can claim. So this statement today was perhaps misleading. So she should talk to her staff about getting proper training to read legislation in other jurisdictions. It's simply untrue.
What this is, a six-month limitation period, is the lowest in Canada. In certain jurisdictions, there's no limitation period. In the federal jurisdiction, there's three years; in BC, there's two years; in Ontario, there's been two years.
The reason why a two-year period is an absolute, necessary minimum is that if you're working for an employer, the employer is not supposed to retaliate against you if you bring a claim. But we know that 90% of all claims are brought by employees who have left their place of employment. That's because they don't believe if they bring a claim that they're not going to be retaliated against. So you're forcing workers -- it seems the government wants people to work and not to rely on social assistance -- to decide to either bring a claim and suffer retaliation while still employed, because they've only got the six-month period, or they could wait, deal with the violation, accept it, which is really unacceptable, and then bring a claim once they've found another job. You're forcing them, by lowering this limitation period, to either decide to forgo it or suffer retaliation. Six months is simply too short. People need two years.
The $10,000 claim: Everyone points to the fact that up until 1991 there was a $4,000 max on claims, excluding severance and termination pay. That had been universally condemned by every independent commentator who ever wrote about this stuff. So we're saying, "Well, $10,000 is better than the $4,000," but the $4,000 was really, really bad. The only jurisdiction that has a monetary maximum is Prince Edward Island, at $5,000.
Why should people have to bring an action in court? Now, this is very good for my law students; several of them are unemployed. But why would you say to someone -- and it may be a domestic worker, because you can have up to $20,000 or $30,000 worth of claims owing as a domestic worker -- "You have two weeks. You must seek legal advice. You can make your decision. Now, if you decide to go through the Employment Standards Act, if you're owed more than $10,000, kiss the money goodbye. If you decide to go to your lawyer, seek your legal advice, pay your $150 or $200 an hour for your lawyer" -- but maybe with the unemployment they'll be charging less, so who knows? Maybe it'll be cheaper if things continue on the way they are. Then you say to them, "Okay, you bring a claim."
Does anyone here know how long it takes to bring a civil action for wrongful dismissal for complainants? Six years. If someone has more than $10,000, they have to wait six years? It seems to me that's the old adage, "Justice delayed is justice denied," in this case.
If it's true that this system is so terribly backlogged and it's also true that only 4% of claims are for over $10,000, how is that going to deal with the problem? I just don't simply see how it figures out.
There is a problem of all sorts of different legal actions happening in multiple fora, but I think there's been a slight bit of misrepresentation of how the law actually works. If I bring a wrongful dismissal action for termination which is in excess of what I could get under the Employment Standards Act and an employment standards claim at the same time, the resolution of the dispute in the employment standards case is the resolution for the purposes of the court except for quantum. The courts have a very nice legal doctrine called issue estoppel that resolves this problem. How does it make sense to Ontario taxpayers to shift vulnerable workers, and maybe not so vulnerable workers, maybe people like you, to make them go to an expensive litigation mode and wait years when it costs more to go to court? It costs more for us to pay for judges. They seem to get paid more than employment standards officers and adjudicators. Why does that save money? I just don't understand. The air of unreality is hard to understand.
Privatizing collections: Something has to be done about collections because, as every academic commentator has ever said, the Employment Standards Act doesn't prevent violations; it doesn't stop people from abusing the law; it works as a collection agency -- and a not very good collection agency. Two thirds of claims are not fully recovered. It's an appalling record.
Why would a private collection agency be any better than the government services when, according to the government's own internal reviews, the government's internal services are better at collecting debts owed to the government than private collection agencies? This is according to an article by Martin Mittelstaedt in the Globe and Mail, July 20, the two internal reviews.
On the basis of the only evidence we have, private collection agencies aren't as good as government services. It seems to me that if I'm a collection agency, what I want to do is to be able to make a profit. Under Bill 49, it's proposed that the collection agency could make a settlement as long as it had the written consent of the complainant, the employee who is complaining, and the settlement could be up to 75%.
Why wouldn't I just write to every employee and say, "Hey, I'll make a settlement," and then I go to the employer and I say: "Hey, I could pursue you for the full amount, and then I have to collect my fee and the government's 10% administrative charge, but if you don't give me any bother, I'll tell the employee, get his or her written consent, downgrade them to 75%. It'll cost you less, I'll get my money, we'll all be happier"?
The act specifically contemplates that this could happen, and it says that there shall be no coercion or fraud in the settlement. It specifically contemplates it but provides no mechanism of redress. You acknowledge the problem and then don't do anything to solve the problem.
It seems to me the most important thing around the Employment Standards Act is to stop the violations, not to improve collections. You're tolerating breaches of the law. I thought there were snitch lines to stop all sorts of welfare abuse; why aren't there snitch lines that you're running to stop all sorts of employer abuse?
Basically, if you are unscrupulous about abiding by the law and you're an employer who is prepared to make profits by breaching the law, you would be advised to breach this law. Your chances of a complaint are small. If there is a complaint, the chances of getting collection against an employer are small. Thirty-four per cent of the employers who do not pay up don't pay up because they refuse to -- not because they're bankrupt, not because they don't have the money. They simply refuse.
It seems to me that you should be looking at ways of ensuring the effective enforcement of the legislation, and that could be done very, very easily: audits of company books to find out. In various industries and sectors where we know there are lots of violations, you go in and you do a sweep. In 1981, there used to be about 1,200 audits a year. Now there are only 21. What's happened? We know there are all sorts of violations, but there were only 27 prosecutions last year. The most penalty that you have to pay is 10%. Why would you adhere to this legislation? What's it doing for scrupulous employers to have all of these unscrupulous ones let off the hook? I'm not even so concerned about them. I'm concerned about the people who actually work. If I work for free, I like to do it for something I support, not because I don't have a government that will help me enforce my law.
It seems to me also that there should be posting in all workplaces of your basic rights and entitlements. We do that under the Occupational Health and Safety Act; we required it under pay equity. There should be aggressive prosecution and enforcement. We shouldn't think of collection and then we shouldn't shift collection to the courts and to the private collection services.
If I have any time, I'd be happy to answer any questions.
The Chair: Actually, you've timed it extraordinarily well. There are 14 seconds left in our 15 minutes. None of us around this table could give our name in that time. I think we'll beg off. Thank you very much for coming in and making a presentation and being part of our proceedings here today.
AJAX-PICKERING BOARD OF TRADE
The Chair: Our next group up will be the Ajax-Pickering Board of Trade. Good afternoon to you both. Just a reminder we have 15 minutes for you to use as you see fit, divided between presentation and question-and-answer. I wonder if you'd be kind enough to introduce yourselves for Hansard.
Mr John Wiersma: Thank you very much, Mr Chairman and members of the committee. My name is John Wiersma. I'm the president of the Ajax-Pickering Board of Trade. With me today is Lesley Whyte, our board administrator.
Our board represents some 400 businesses in the towns of Ajax and Pickering, and these businesses vary in size from approximately five employees to over 500. Our board also represents a broad cross-section of the business community, which includes the retail, the service and the manufacturing sectors.
We appreciate this opportunity to make our views known on Bill 49. Our members obviously have an intense interest in labour issues, especially the provisions contained in this bill, because they affect every employer in the province.
Let me start my comments by saying that we laud the government for its businesslike approach in trying to streamline the administration of the Employment Standards Act. The government, like the private sector, must be efficient and effective in the way it conducts its business. The provisions in Bill 49 go a long way towards making the administration of the act more user-friendly and more effective for both employers and employees.
We are also very supportive of the two-stage process, with Bill 49 as the first stage devoted to the administrative issues.
In general, we are in agreement with the improvements in the limitation periods. Currently, some of these claims take too long to resolve and it is unfair to leave the employer with the uncertainty about a potential financial liability. For example, as it is now, it can take up to four years from the time of a potential violation of the act to the time an employment standards officers issues an order, and we feel that is too long, not only for employers but for employees as well, because unresolved disputes in the workplace of this nature create incredible moral problems in the workplace and they affect the entire employee group. The timely resolution of employment disputes is one of the key factors towards maintaining a healthy labour relations climate.
We endorse, therefore, the reduction in the claim notification period from two years to six months, but we continue to have some reservations concerning the two-year period reserved for ministry staff for making decisions with respect to issuing orders or refusing to issue orders. We suggest a one-year period would be much more appropriate. This would still leave up to one and a half years from the time the act may first have been violated to the issuance of an order.
Furthermore, we agree with the extension of the appeal period on orders from 15 days to 45 days. The 15-day period is too short and it does not provide the right amount of time for an employer to review the nature of an order and to prepare the case. Providing more time will likely result in better research and more appeals being withdrawn.
We endorse the maximum claim amount of $10,000 and the provision that claims over $10,000 be handled by the courts. We are encouraged by the process that provides for settling claims under $10,000 through the services of an employment standards officer prior to a full investigation. As an employer, I have firsthand experience with the professionalism that ministry staff bring to the dispute resolution process and I'm very impressed with this informal approach. This process saves both parties a great amount of time and costs. With regard to the $10,000 limit, it seems very reasonable. Claims over $10,000 are obviously more litigious in nature and they should be settled in court. There must, in my view, also be a minimum claim amount to eliminate the many small nuisance claims that could arise. This could be set by regulation, as proposed in the bill, and we suggest the minimum be set at something like $200.
We are very pleased with the provisions related to enforcement. For employees covered by bargaining units, the grievance process is an excellent vehicle for resolving these disputes. It is not clear to us from Bill 49, however, which time limitations ought to govern where a collective agreement is in place. Are the parties governed by the time limitations in the act or those in the grievance procedure? Clarification is required in this area. We suggest that the appropriate time limitations are those in the grievance process. These can normally be extended by the mutual consent of both parties if this is necessary.
We are also supportive of the provisions which prohibit contemporaneous actions under the act and in a civil court. We agree that the action should follow one process or the other, but not both. This measure eliminates duplication and reduces costs.
We endorse the contracting out of collections. Collections are better done by a collection agency that has experience in the field. In my view, it is a poor application of resources to have employment standards officers taking on this task. These are professionals and they should be dedicated to facilitating solutions between employers and employees. We agree that collection agencies need the freedom to negotiate settlements to no less than 75% of the claim if the employee consents. This flexibility will result in a greater number of claims being settled, and at a much earlier stage.
The streamlining of the current act by permitting electronic filing is going to improve the general processing of claims, and it brings the act into the 1990s. We endorse this initiative.
In conclusion, we are very supportive of this bill, with a few exceptions as noted. The bill will cause the parties to rely more on processes already in place in the workplace or, alternatively, to follow a simplified process with the help of an employment standards officer. It also avoids duplicate actions and the accompanying costs associated with the same.
Again, we thank the committee for the opportunity to participate in this hearing and we are available to answer your questions.
The Chair: Thank you very much. That leaves us with two minutes per caucus. We'll start with the official opposition.
Mr Duncan: I really don't have any questions, Mr Chair. The presentation is very clear.
The Chair: Mr Christopherson?
Mr Christopherson: I do. Thank you for your presentation. On the first page, you state that your members "obviously have an intense interest in labour issues, especially the provisions contained in this bill, because they affect every employer in the province." So do you think this is an important bill?
Mr Wiersma: I think it's a very important bill, yes.
Mr Christopherson: How do you think that squares with the minister, who said it's not a very important bill, that it's only minor housekeeping?
Mr Wiersma: In my view it affects every employer, as I've noted in my presentation, and I feel these issues are important.
Mr Shea: Who said it's not important?
Mr Christopherson: You'll get your chance. Go ahead, please.
Mr Wiersma: I feel that these issues affect every employer, or could potentially affect every employer; hopefully not. But I think they're important.
Mr Christopherson: I also found it interesting on page 4 where you said the minimum claim amount could be set at $200 to eliminate "small nuisance claims" that could arise. It was suggested earlier by another presenter, and I thought it was an excellent point: Does that mean you would also feel that if any employee stole from one of your members, if it was less than $200, one wouldn't pursue it in the courts or anywhere else, that it was just a nuisance matter? Because in effect, the employee has been stolen from.
Mr Wiersma: I'm not quite sure to what extent the government can expend resources on small claims. It's a matter of concern; I don't know how the government would handle that. To me, that would be done by setting a minimum amount. That's not to say that these are not important issues, but I don't know if it's a wise use of resources to spend a lot of time on a $200 claim.
Mr Christopherson: I would suggest to you that given the fact that the Employment Standards Act is the bill of rights for workers and affects those who don't have collective agreements even more than others, they're the people who need the $200 and could probably least afford any legal advice and assistance or afford to take time off work to get it through Small Claims Court, so in effect you're saying their $200 doesn't count.
Mr Wiersma: I didn't say that. I said for them it's important. I'm not sure if the government has the resources to commit itself to resolving those disputes.
Mr O'Toole: Thank you very much, John and Lesley, for your presentation and comments. Just a very quick reference: In your introductory remarks, you mention that your organization represents some 400 employers in the Ajax-Pickering area. I'm just curious. Would those employers be non-unionized, representing unionized workplaces or a mixture of both?
Mr Wiersma: Maybe I can ask Lesley to answer that question.
Ms Lesley Whyte: A unionized environment would probably be minimal. About 65% of our membership are small business. We target those as fewer than six employees. About 10% is large business, and that 10% would probably fall into a unionized environment.
Mr O'Toole: So the smaller businesses tend not to be organized?
Ms Whyte: No. Actually, they're quite organized, especially when we take issues like this to them. We do it through survey.
Mr O'Toole: In your humble opinion, do you see a fairness in the workplace today? There are a lot of entrepreneurs out there trying to create work and income for themselves and others. Do you see a fairness in the workplace among employers, the new employers? We're all told that the future for employment is small employers, that the large corporate entities of both unions and companies are kind of going the way of the history lesson. In your small businesses, do you see fairness in their relationship with their employees?
Mr Wiersma: Maybe I can try to address that. I personally am involved with a business of about 50 employees. We have a bargaining unit. I believe that among medium-sized employers, there really is an effort made to try to work with employees -- they're our most important resource -- and treat them fairly. I can't speak for the small businesses per se.
Mr O'Toole: The point I was trying to make is that the world of work itself indeed is changing and the world of the unorganized workplace is probably the highest growth area, and that represents a threat to the organization of labour itself. We're seeing downsizing and competition. Do you think this act or these small changes allow the small employer to deal with the Employment Standards Act itself, making it more workable in administrative ways?
Mr Wiersma: Absolutely. I believe it really streamlines it and makes it more understandable. I read through the act. I had no difficulty understanding it. The enforcement of it is going to be a lot of more successful if these amendments are approved.
Mr O'Toole: That's the intent of this government.
I want to correct a comment made earlier by one of my partners here. The minister certainly did not dismiss the importance. The whole focus of these provisions is to protect the most vulnerable -- those are the words she uses repeatedly -- and use of scarce resources, which is another thing that should be clarified.
The Chair: Thank you both. We appreciate your taking the time to come before us here today.
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Chair: That leads us up to our next presentation, the Ontario Public Service Employees Union. Good afternoon, Ms Casselman.
Ms Leah Casselman: Non-frightened union people. Good afternoon. With me today is Robert Rae, who chairs our employee relations committee with the Ministry of Labour. You will be hearing from him tomorrow on the specifics of the impact of this oxymoronically termed document about improving employment standards.
OPSEU is participating in the review of Bill 49, representing the unionized women and men of the Ministry of Labour who enforce provisions under the act you're reviewing today. We also represent about 100,000 other members of the provincial public service, the community college system and about 300 units within the broader public sector, small groups that are seeking to be unionized.
We appreciate your invitation to appear and the fact that these hearings are even taking place. It is some evidence that, unlike the important contribution of public employees, the roles of opposition parties and public debate are not yet reviewed merely as red tape to be cut wherever possible.
We are vitally concerned about the future of the Employment Standards Act as one of the underpinnings of the basic rights of workers in this province -- workers who are taxpayers, who contribute to the economy. We will comment briefly on key elements of this legislation and indicate why it should be set aside pending a full review of the act later this year.
First, we must indicate that it is most troubling to be pledged full consultation on employment standards, only to see Bill 49 introduced as "housekeeping" and set for quick passage. If passed in its present form, Bill 49 will result in much greater hardship, especially for the thousands of vulnerable and low-paid employees who continue to be victimized every year by illegal employment practices, including domestic workers, visible minority workers, women and those in the cleaning, food services and garment industries.
Bill 49 will also greatly ease the pressure on employers to comply with assessments for back wages and related entitlements. It will deprive Ontario workers of the protection of at least the minimal standards of hours of work, overtime pay, holidays, vacation and severance pay. Key amendments to the act in Bill 49 appear designed to undermine the concept of statutory standards to discourage employees from seeking redress and, through a reckless privatization scheme, offload the province's responsibility for enforcement.
We will briefly comment on some specific provisions of the proposed act.
Even though I understand the minister recanted on the removal of section 3 this morning, I would still like to comment on that, because as we've seen before, these things can come back in a different format.
Section 3 replaces 22 years of statutory minimal workplace standards with a contracting-out provision that permits negotiated collective agreements to override legislated standards on severance pay, overtime, public holidays, hours of work and vacation pay if, when assessed together, a greater right is conferred. While the section applies to organized workplaces only, it is evident from public statements by the minister and senior staff that the government hopes to soon extend this drastic change to unrepresented workplaces.
How is a "greater good" at section 3(3) of the bill to be determined? Negotiations will undoubtedly become more arduous and confrontational. Unions and employers will be forced to bargain over a broader range of matters and grapple with identifying equivalencies between different benefits and terms and conditions. Monetary benefits will get compared to non-monetary matters, and nebulous global packages will struggle to replace the statutory floor of minimum entitlements. What kind of smorgasbord of rights and entitlements will end up before arbitrators, leading to lengthy and expensive delays? Proposals at section 3 of the bill will prompt employers to table rollbacks of standard entitlements. What other conclusion can we draw in the absence of explicit legislative language on how a negotiated package is to be assessed?
Flexible standards, as promoted in section 3, will certainly not advance the ministry objective of workplace self-reliance. By permitting workplace parties to contract out of important minimum standards, the government assumes a balance of economic power is at play whereby fair tradeoffs will be achieved. But we anticipate many more harsh conflicts and diminishing working conditions, especially in smaller and newly organized workplaces.
The fact that up to a third of employers already have been found to be violating the Employment Standards Act is evidence enough. To paraphrase Tommy Douglas -- you can explain to them who that is later -- "`Let's have greater self-reliance,' said the elephant as he danced among the chickens."
Obviously OPSEU is very concerned when vital public service work is contracted out to for-profit agencies; doubly so when that work defends the living standards of workers who suffer from illegal employment practices. This is the case in section 28, the privatization element of Bill 49. We urge committee members to ask hard questions about the gaps in accountability to both complainants and the public inherent in these amendments. Public employees report through the deputy minister to you, the legislators. The effectiveness of our work can be directly scrutinized. Employment standards officers and their co-workers do not have a direct personal financial interest in the percentage of an assessment for back wages collected from employers.
On the other hand, what incentive does a private operator have to make every effort to recoup the full rate of assessed wages owing to an employee? Why are there only passing references in the new subsection, 73.0.2(1), as to the conditions that the director can impose on private collectors and on "reasonable" fees and disbursements? Why are there no provisions setting out sanctions for private operators who collect assessments through fraud or coercion? Why the cavalier approach to spending public dollars when it involves privatization? Finally, why is it not evident that permission for private collectors to arrange compromised settlements raises the likelihood of abuse and further exploitation of workers?
These are among the reasons we label the Bill 49 approach to collections as reckless. If more evidence is required, as Judy Fudge was saying earlier, look at last year's study of the central collection services agency within your own Management Board of Cabinet. This review found the public service collections function to have a much better rate of return and a better cost-to-revenue ratio. The same review expressed concern about the cost of private sector agencies being used by that ministry. Fees averaged 23%. The tactics, language and practices of private collection agencies, including creaming more lucrative accounts, were found to be troublesome. A full review of the Employment Standards Act should precede any decisions about private collection.
OPSEU is fully aware of the weak rate of recovery of funds by the employment practices branch. Dedicated employment standards staff require more resources, not fewer, to prevent violations of rights in the first place, to conduct audits, to seriously fine and prosecute lawbreakers, and to protect complainants from reprisals. There are 40,000 formal complaints a year and five times as many general inquiries. This is no time to lay off over 400 ministry staff, 10% of those working in enforcement.
Professor Judy Fudge from Osgoode Hall has described in her study on employment standards how the meagre resources put towards recovering funds for cheated workers contrasts markedly with the spending spree to recoup alleged welfare fraud.
Section 20 of Bill 49 eliminates access by union members to the investigation and enforcement services of the Ministry of Labour. As with the privatization of collections, we seriously question amendments that put enforcement of a vital component of public legislation at the mercy of the private arbitration process. This should no more be permitted than should victims of crime be obliged to pay the local crown attorney to prosecute the abuser. How can arbitrators be expected to have the investigative resources and expertise of the Ministry of Labour in adjudicating increasing complex matters?
OPSEU is deeply troubled at sections 19 and 21 of the proposed act because they force non-unionized workers with complaints to make an either/or choice between access to the employment standards branch and a lengthy civil suit that few people can afford. Onerous time limits of just two weeks are also imposed on this unacceptable choice.
These new conditions on access to justice are exacerbated by the new maximum claim limit of $10,000 on recoverable moneys for back wages, vacation, severance and termination pay. Hundreds of awards under the act are being made every year in excess of this new cap. It is only reasonable to expect that the most modestly paid workers in the province are also the least likely to be able to pay legal fees or withstand a lengthy wait for a civil suit to be completed.
OPSEU members are workers drawn to public service. We frequently assist victims of rogue employers when they visit the legal clinics, social services or health care facilities that we staff. We urge you to safeguard open access to publicly funded ministry services where employment standards claims ought to be pursued without an imposition of a maximum.
By replacing the existing two-year limit on claims for back pay with one of just six months in section 32, Bill 49 fails to recognize the serious hardships that are bound to follow. Vulnerable workers take a much longer time to feel safe enough once they have moved to a new job or to become well informed enough to assert their rights. It is inappropriate to impose legislation that radically diminishes their ability to recover moneys owed to them. This restriction is particularly worrisome when coupled with the other limitation period changes at section 32 whereby prosecutions under the act may now take a total of four years.
Finally, we wish to point out that there are modest improvements in the act set out in Bill 49. They should remain in place when a full review of this act takes place this fall. These include the clarification in access to at least two weeks' vacation pay in section 8 and clarification of seniority credits for time on parental and pregnancy leave in section 12 of the bill.
To wrap up, OPSEU questions the rush to quickly pass drastic amendments to the Employment Standards Act in advance of a thorough review of the statute later this year. The proposed changes to the act, as set out in Bill 49, constitute a very unhealthy development for individual workers in Ontario, for the living standards of average and modest income families, and in turn for the provincial economy in general.
Truly flexible, self-reliant workplaces and greater productivity are derived not from deregulated working standards, longer hours, unpaid overtime, lower minimum vacation and severance pay or elusive contracted-out enforcement. These production advantages come from a commitment to superior training, fair wages and benefits, safe, healthy workplaces and enlightened management practices that embrace employees' contributions.
As long as Ontario employers fail by as much as one in three to abide by even minimum workplace regulations as currently set out in the Employment Standards Act, the requirement remains for a rigorous, well-resourced government commitment to uphold and enforce minimum working conditions for every worker in an effective and timely manner. The people of Ontario deserve no less.
The Chair: Ms Casselman, we've got one and one quarter minute, so there will only be one question and it will be the official opposition.
Mr Duncan: You would be of the view then, Ms Casselman, that prior to adopting a statute like Bill 49, we need to know the government's entire agenda and have a full debate around the Employment Standards Act amendments they'll eventually bring forward?
Ms Casselman: Clearly. I mean, you've got different arms of the government doing all kinds of things and making all kinds of different rules. The speaker before me talked about the waste of time for a government to go after claims of $200, and yet if you're a welfare worker, you are ordered by law to go after anything over $2. So where's the combination of any kind of consistency from this government?
We need to know what the whole plan is here. Even business columnists in newspapers are referring to their agendas as Alabamas of the north. That's not the way to build an economy to ensure there is a livelihood for everyone who is a member of that society.
The Chair: Thank you again for taking the time to come before us here this afternoon. We appreciate your presentation.
LABOUR BEHIND THE LABEL COALITION
The Chair: The next presentation will be the Labour Behind the Label Coalition. As you've undoubtedly heard me say to previous groups, we have 15 minutes for you to use as you see fit, divided between a presentation and question-and-answer period. Would be kind enough to introduce yourselves for the benefit of Hansard.
Ms Shelly Gordon: I'm Shelly Gordon. I'm here representing a coalition of groups called the Labour Behind the Label Coalition. With me are Fanny Yuen from the home workers' association and Bob Jeffcott from the Jesuit Centre for Social Faith and Justice, who may help me with answering questions if I leave any time for that.
The Labour Behind the Label Coalition is a coalition of unions, social justice groups, immigrant women's groups, international solidarity groups, church groups and unions -- I said that already -- concerned with working conditions in the garment industry. So what I want to talk about today is employment standards in the garment industry, Bill 49 and the garment industry, because what our coalition has come together to do is to try and promote better working conditions in the garment industry both locally and internationally to sort of exert some counterpressure on the low wage competition in that industry and the kind of exploitation that it leads to both here and abroad.
What I want to talk about is the situation of garment workers in Ontario -- most of them are in Toronto, but not all of them -- the importance of vigorous enforcement of the Employment Standards Act for those workers, the effect that the changes proposed in Bill 49 might have on those workers, and then what our suggestions would be for improving enforcement of the act for those workers.
I think you all know that until the late 1980s, garment manufacturing was the single biggest industry in terms of employment in Metro Toronto, or maybe in the city of Toronto. A lot of factories have closed since then, about half the factories, but the industry is not dead. There are still at least 21,000 workers in that industry in Metro, and those are the ones that we can count. Those are not the ones who are home workers and those are not the ones who are in sweatshops that only operate a week or two and then move to some other location.
The way that garments are produced in Toronto has changed substantially since the late 1980s, with factories closing and with small sweatshops kind of taking their place and with contractors giving more and more work to home workers, people who sew these garments in their homes. I think members of the committee would be quite surprised to know what clothes are being sewn in people's homes. It's major retail chains in the malls, it's high-end designer stuff, it's a lot of women's clothes. You would be quite surprised. It sells for a good price in the store.
The whole move from factories to home workers and sweatshops, as I said, both here and abroad, is to try and lower the wage costs of production of garments. I guess our position is that people should be able to earn a decent living working both here and wherever else these clothes we are wearing are made, and that's what we're working towards.
I'd like to tell you one particular story. I think people are going to bring a lot of stories forward to you, but those of us who are bringing them spend our days working with both organized and unorganized workers who are having problems with their employers whose employment standards are being violated. You may not have spent a lot of time talking to people like that, so maybe we can bring the benefit of our experience to the committee.
Minister Witmer indicated this morning that she's familiar with the situation of garment workers, and she is and has indicated her support for our campaign in the past, so I hope we'll see it continuing.
I'm sure you know that people who work in their homes are covered by the Employment Standards Act for minimum wage and for other provisions of the act. So even though they're paid a piece rate, they're entitled to minimum wage. In fact, home workers, in the last three years I guess, are entitled to a 10% premium on minimum wage in recognition that they have to pay expenses for other costs of production like electricity and space and thread and their own sewing machines and stuff. So in Ontario now, industrial home workers are entitled to $7.54 an hour. Even though they're paid at a piece rate, contractors are expected to -- well, in your own industry you know how long it takes to make so many something-or-others, so you set the piece rate at how many pieces you need to sew in an hour. So if a contractor drops off a bundle at somebody's house on Friday night, wants them back Monday morning, and says that will be 25 cents a sleeve, the expectation then has to be that a person can reasonably sew enough sleeves in an hour to make $7.54 an hour.
How the act has worked in the garment industry now -- I just want to use one example but I guess what's unusual about this is that the garment worker has actually pursued it through the Employment Standards Act. That's the only unusual aspect of it. It happens to thousands of workers.
Mrs Y was a skilled sewer in the garment industry in Toronto most of her adult life. She worked in factories, and when they were closed, one of her employers offered her home sewing and she took it. She didn't get paid minimum wage for her work, and her permit with the ministry actually said she'd be paid even more than minimum wage for her work, quite a bit more. But she kept the work because in the industry there's not a whole bunch of contractors who are paying minimum wage and then a few bad apples. Almost nobody is paying minimum wage. So you don't throw away the contractors who don't pay you that in hopes that you can work for one of the two that does. Some contractors, it goes up and down. It depends on what the retailer is going to pay them. I won't go through the whole chain of what happens in the garment industry now, who is controlling the price points and how that affects wages. There's a whole lot to be said about it, but it takes too long.
So she worked for this contractor for about four years, and after four years she finally did speak up for herself. She thought: "I've got a lot of experience with this guy. I've done really good work for him. It's time that I said, hey, what about my" -- it wasn't $7.54 then, but whatever the minimum wage was. She asked that question once and she never saw that guy again. She waited a few weeks and called him up and said, "When are you bringing something else over?" He said, "I'm not." That was it. He just basically terminated her for inquiring about the rate.
She filed a complaint for wages owing for two years, and vacation and termination pay. She filed that claim with the Ministry of Labour in December 1993. The claim, over two years, amounted to about $10,000. Here's another example where, isn't $10,000 a claim from some executive who was wrongly dismissed? Well, no. It's not necessarily the case at all. Maybe some of them are. We don't work with anybody like that, so other people will have to tell you that story.
The ministry took exactly two years to come to a conclusion about her case, and it's still in dispute. Hearing dates have been set all the way into 1997. So her case isn't settled yet and it may not be settled in her favour; I can't determine that. But for the purposes of our discussion, let's say that it is and that she was owed $10,000 for two years' work. That's about a full year's wages for her. She was making $12,000 to $14,000 in a really good year doing what she was doing. So she's owed a full year's wages and it's four and a half years since she started doing the work and she hasn't got that money yet.
Her case points out several problems with the way the Employment Standards Act has been enforced to date, and unfortunately we don't think Bill 49 addresses these. We understand Bill 49 is the act to address enforcement, not the content of the act.
I've already commented on the time lines. The ministry has four years to deal with a claim between the investigation and going after the money. Now Bill 49 proposes to limit the worker's access to six months, the investigation period to six months, and leave that four years at the ministry level intact. I would like to propose a reversal of that, that the ministry have six months to conduct an investigation and that workers retain their two-year time period.
The reason I want to do that is, I think nobody has said to you really clearly today that when you complain to an employer who is knowingly violating the Employment Standards Act that they are doing so, that is your last minute of work with that employer. I could just tell you story after story. If it's somebody who's doing it by mistake, they'll probably correct it, but in an industry based on getting the lowest possible wages, that's your last minute of work. People don't complain because they'll be fired.
What you're saying to people with a six-month limit is, "As soon as you find out, you go down to the ministry and you tell them." Like Professor Fudge said, that's a choice between your job and your rights. You have to make that choice before you go down to the ministry. What people do now is they wait until they find something else, reasonably enough. They want to work in order to make a living. That's how they want to make their living, working, so they do what they can. In an industry like the garment industry where everybody's trying to pay way less than minimum wage, everybody's paying as little as possible, you don't have a whole lot of options. "I'm going to drop this bad egg and go work for one of the good ones." It's a shrinking industry and it's a period of very high unemployment.
So this case, Mrs Y finds out the employer's not going to give her any more work, she's terminated. But she waited a few weeks: Is he coming back? Is he not coming back? Then she kind of explored what were her options under the law and made a decision and it was actually several months before she filed a case. She would have lost, then, her entire claim period. Fanny can talk about this some more.
Other home workers have said, "What happens to giving employers the benefit of the doubt for a couple of weeks?" You know, "I can't pay you today," or "The cheque bounced today," or "I can't pay this month; can you hang on?" Your claim period starts to tick. You've been reduced to six months anyway. What if you wait? You can't afford to wait any more if it gets reduced to six months. I really think the two-year limit is the one that's going to have the biggest impact.
People stay in bad jobs because they need bad jobs and they look for something else. If they know they're getting ripped off, they look for something else and as soon as they find it -- they're owed that money. What we say to them now is, "You're owed that money and you don't give it up by keeping on working for a living for that person until you find somebody else." But the six-month time limit would change that.
There are other parts of Bill 49 that we think will have a negative impact on garment workers. It's both the minimum and maximum amounts that people have spoken to you about. The work's been done; people are owed the money. I don't see what's fair about saying to the worker, "Well, you got ripped off for too much or you got ripped off for too little; the ministry's not going to do anything about it." The work's been done. The money is owed under the act, and as far as I'm concerned it should just be payable. That some of it's too little and some of it's too much, I don't see the fairness in putting that forward at all.
The other proposal in Bill 49 we were worried about in the garment industry was the one the minister said this morning she would defer, around allowing unions and employers to contract out of some employment standards. There are very few unionized shops left in the garment industry and you can bet that if one negotiates no overtime until 56 hours, at all the non-union shops in the area the workers are not going to be able to say, "No, no, we get overtime pay after 44 hours; it's just the unionized shop that doesn't get overtime pay until 56 hours." It's just the whole ripple effect of, in the workplaces where workers are strongest, that they should take some lesser -- you know that it's going to be rippling throughout the rest of the workforce.
People have talked as well about what it would mean for someone who earns $10,000, $12,000 or $14,000 a year to go to court. To go to court for $10,000, you have to hire a lawyer, so where in the family resources there would be money for a lawyer would not be clear. It just couldn't happen. People would just have to give up what they were owed.
I want to talk briefly about -- oh, I'm using up all our time -- what we think would improve enforcement of the act. In the States, the Department of Labour, knowing that the garment industry is like this, has taken on doing sweeps of the industry. What we argue for is that -- you know, there are certain industries which can be identified that are based on low wages -- the ministry take a very proactive approach and do a lot of spot audits. When they get a complaint from one employee, take a quick look at the books when they're in there. Are the other employees getting ripped off too? There are a whole bunch of proactive things ministry staff could do to just make it -- Judy talked a lot about you're not likely to get caught, and if you are likely to get caught, you'll only pay the one person. There are some easy ways to change that and to encourage compliance with the act through letting employers know they won't just get away with it forever.
One of the other things we've argued is that, to try to protect workers from losing their jobs, one of the ways is to, as a matter of course, take complaints from third-party representatives, legal clinics or lawyers or unions or such, where we know there's a widespread violation. It just protects the particular workers there.
I'd better speed up. Those are our recommendations for improved enforcement. We will be back to discuss the contents of the Employment Standards Act, and we really look forward to that, to try to bring changes to the act that will protect the new workforce, the changing workforce.
Minister Witmer in 1992 and 1993 supported the demand for stronger enforcement from the Coalition for Fair Wages and Working Conditions for Homeworkers and we really hope we can count on her continued support, both through Bill 49 and the review of the Employment Standards Act. We've enclosed some of the letters she wrote to our sister coalition then and hope she'll continue to support us. Thank you very much for your time.
The Chair: You're just over 15 minutes. Thank you very much for taking the time to come down and make your presentation for us today. We appreciate it.
CANADIAN UNION OF PUBLIC EMPLOYEES LIBRARY WORKERS COMMITTEE
The Chair: Our next group up will be the Canadian Union of Public Employees library workers committee. Good afternoon, and again we have 15 minutes for you to use as you see fit, divided between presentation and questions and answers. Mr Burdick, I take it?
Mr Steve Burdick: That's right, thank you. My name is Steve Burdick. I'm the chair of the library workers committee in CUPE. I'm not going to go through the brief which we've prepared for you and of which I've given copies to Mr Arnott to distribute to you all, as well as those of you who could not be here today. But I do want to highlight some of the important things and see if you'd like to ask some questions.
I guess by way of preliminary I should mention that it's not necessarily my expectation that all the members of this committee will be equally familiar with the library sector. It's an important sector in Ontario and one that's received a fair amount of attention from previous governments as well as the current government.
By way of introduction further, I should let you know that we, as the library workers committee, are one of the jurisdictional groups within Ontario's municipal employees' coordinating committee, which represents a little over a third of the 170,000 workers in CUPE Ontario. The library workers committee itself more directly represents about 4,500 workers: some 50 or so public libraries in Ontario, almost all of the large and middle-sized institutions in the province and a number of the smaller ones, as well as a few university and college-type libraries.
I should tell you a little bit about the sector before I talk about what seems to be going on with the Employment Standards Act and the changes the present government wishes to make to that act.
First of all, it's our contention, and I think it's a contention that the provincial government has to some extent accepted previously, that the library sector is a key sector in the economy of this province. We all know that Ontario, like the rest of the country, is deeply enmeshed in what's now called the information age. Public libraries are a key element in making sure the public has access and use of the proliferation of this information and some way of navigating through this enormous amount of information.
The information we have and make available to the public serves it economically, of course. Small and even large-sized businesses rely on us considerably for the assistance we can provide in getting them timely and comprehensive information. There's no question that the library sector continues to be, de facto, part of the educational structure of this province. A constriction of the resources available in the educational sector has really meant that students and their teachers point to the libraries of this province more and more to enhance, complete, do all the things that they need to do for which they don't now have the resources. The resources they have, they find to be dwindling.
At the same time, we have a lot of pressures. The first one is that the demographics of the province are changing rapidly, which basically means we have a lot of users now and we're increasingly having more such users, particularly in the large urban centres, whose first language is neither English nor French. Our collections have got to be changed to reflect that so they can have some use of this sector. The ways we provide service also have to be changed. This is a very real concern for us. This goes both to English as a second language but also to a whole host of other materials.
We also have an enormous amount of financial pressures. I won't recite all the figures -- I'm sure you know them as well as I do -- but the long and the short of it is that directly the library sector has suffered enormously over a two-year period in which we're now entering the end of the first year, and we suffered indirectly through the cuts in transfer payments to the municipalities on which most of our middle- and large-sized libraries particularly rely, as do many of our smaller libraries. Cuts in the program grants and the per-household grants have also been a problem, as well as in the direct reductions to the special service boards, and that goes to the OLS south and north and Metro Reference. So that's a big problem.
We're supposed to be providing the same, in fact better, service, with fewer resources. That's a problem.
At the same time, the technology itself is bringing many, many changes to us. The past government and the current government have retained this, to some extent have provided a lot of capital resources so that libraries can get hooked into information sharing and distribution. That's great. There's been some money made available for staff training, which is a key component of all of this, perhaps not enough, but at least that's been there. Basically the technology has meant a lot more pressures on our service as we try to cope with that and rejig our services.
While all of this is happening, how do you think library administrators are responding? They're responding by being very tough these days. The way they're being tough is showing up in collective bargaining, which has now resumed after the social contract has lapsed; and it's also showing up in an increased number of health and safety problems, particularly around workplace stress, RSIs and problems that have to do with the new technology and the increased work pressures. The work pressures are enormous in our sector right now.
This does translate into more discipline problems. It translates into more dismissal problems. It basically translates into more problems where workers are likely to have recourse to the Employment Standards Act or whatever legislation follows it. Now, it's true we represent most of the organized workers. The employers there, of course, are dealing with us in collective bargaining through their unions. But the small libraries in this province are largely still unorganized. Those workers are very vulnerable, and if they are dismissed or they're disciplined, they don't have a lot of resources to turn to, so our committee is very concerned about them, as well as everybody else.
I'm not going to go through in great detail some of the general concerns that are in the OFL and the CUPE Ontario submissions; I'm sure you've seen those already. They cover a whole host of items, chief of which have to do with the enforcement provisions, whether there is or is not a collective agreement, the maximum and minimum claims, the use of private collectors and the limitation periods. All of these things are touched upon in our brief and I refer you to that.
I think what most concerns our committee, however, is this whole notion of flexible standards, the changes that, I gather from the previous speaker, the minister is considering deferring at this time. In the event that she doesn't or in the even that's still up in the air, I want to get our two cents' worth in on it. Those of course are the changes at subsection 3(3) of the bill.
I guess our concern here is that, given the enormous pressures our sector is under, there's no question that employers are going to try to make some sense of this provision. I have to tell you, with the greatest of respect, that the provision itself is very unclear, because I think it's going to be very hard for employers or unions to figure out how to assess the varying value on a single scale of the various rights that are referred to at that section. For example, if we, under a collective agreement, have better rights for severance, but similar rights under vacation or our wages are better, how are we going to roll all these things together if the employer comes to us and says, "Well, we're proposing cutting something here below what's in the Employment Standards Act"? It's going to be very hard. That lack of clarity is certainly only going to add to the bitterness at the table. I assure you, there will be a lot of bitterness at the table, not just because of the substantive changes, but because it's going to be very hard interpreting this particular provision.
In the light of all the pressures that are already present in our sector, we know that employers are going to be difficult. The bargaining has begun in this province and we're seeing very difficult bargaining right now, particularly in the library sector, as in the municipal sector. I would urge you to give real serious consideration to not going ahead with the amendments that are in this bill.
Those are basically my remarks and I'd be only too happy to expand on them if you have some questions.
Mr Christopherson: I appreciate your submission. Thank you. I noticed on page 7 you talked about the time restrictions -- two years to six months. We've heard from a couple of business organizations -- chambers and other associations -- where they talk about the fairness to employers in terms of the timeliness of these sorts of things. Could you just expand a bit on why you see this being so unfair in the scheme of things in terms of balance between employers' rights and employees' rights?
Mr Burdick: My concern is that we're unaware that the existing provisions have been more of a problem for employers than they have been for employees. As the previous speaker was saying, for employees there's a real problem around reprisals. Let me assure you that reprisals are not only a fact in the non-unionized sector; they are also a fact in the organized sector. In many cases, employees will be reluctant to file claims as soon as they're aware that they've got a problem because they know that filing that complaint is only going to make them even less attractive to the employer.
In a non-organized situation, this may, as the previous speaker said, amount to the choice between a job and the application of one's rights. In an organized situation, it may not be quite so drastic a predicament, but it can be a very unpleasant predicament. The employee will be, in all likelihood, labelled as a problem employee -- I've seen that happen -- and one complaint is not the end of the issue. The employer doesn't say: "Oh well, we've got a problem. Let's just get on with life as usual." Other problems suddenly start appearing and one thing leads to another. That's why we don't think it's particularly appropriate to start changing these limitation periods. I hope that's helpful to you.
Mr Christopherson: Yes, very. You mentioned early in your comments the impact on information, any less information not being available to particularly those that don't have research departments and all kinds of staff to go and look things up in terms of one's rights and ability to defend them. In its extreme, how far could you see that going in terms of the lack of libraries being as efficient and as effective and accessible to the average working person, who has maybe no other means of getting that information, if things continue down the road they are? What's the tie-in between that and the Employment Standards Act and the rest, quite frankly, of the labour agenda of this government?
Mr Burdick: I obviously can't speak extensively on the rest of labour's agenda with respect to this act or this government. My concern is that the library sector is, on the one hand, a very key sector for this province; on the other hand, it's under enormous pressure right now. What I'm trying to say to you, perhaps not as clearly as I could, is that this act does nothing to abate those pressures. In fact, it's going to heighten those pressures, and those pressures will probably inevitably translate into worsened working relationships. They're going to translate into things that are going to make life in the workplace that much harder. They will probably therefore translate into a less efficient workplace and a workplace that's got fewer staff, and the information age is not going to exist properly without staff who help the public somehow navigate through the enormous amount of information. That's the very real problem, that things that make the workplaces less effective are not in the interests of this government, these workers or this public.
Mr Tascona: This act essentially deals with enforcement of the act, but there is one area that deals with the minimum standards, and that is dealing with pregnancy and parental leave. Do you feel that what the government has done to clarify the length of service and what service means for pregnant and parental leave employees -- do you think the action we've taken there is satisfactory.
Mr Burdick: To the best of my recollection, that was one of the more positive aspects of the act. I don't recall having a problem with that, but I stand to have those comments reviewed in light of what's in the OFL or the CUPE briefs.
Mr Tascona: Certainly that's what they in fact do -- they improve the rights of those individual employees -- so I'm pleased to hear that.
With respect to reprisal for an individual employee who exerts their rights under the act and the limitation period, the facts really would show that if someone is disciplined or terminated because they exercise their rights under the act, certainly a six-month limitation period would be a sufficient period for someone to exercise their rights and say, "Hey, you terminated me because of what I did about a claim for overtime pay and I'm enforcing my rights," because the majority of the rights are exercised within that six-month time limitation. Were you saying that or do you mean something else?
Mr Burdick: No, I'm not unsaying that. Also, you should be mindful that many problems under the act have to do with continuing violations, and workers will be rightly concerned about that. In other words, it isn't just something that happens one time and it's over and done with; it may be a long-term situation that requires the employee waiting a little bit longer to make sure they've got everything in place. In terms of the reprisals, I'm sure you're aware, as I am, that it can be very difficult to show that an employee was disciplined or dismissed solely because the employer is taking action against them, solely because they used their rights. The employer, 99 times out of a 100, will get up and say: "That's not really what's at issue here. What's at issue is that this employee was a problem."
Mr Tascona: But nothing has changed under the act where the onus of proof is on the employer, and in fact there's no change with respect to the two-year time frame from when an officer has to receive the complaint to actually issue the order. There's nothing changed in terms of the investigation process, so that's another safeguard that's been put in place.
With regard to your general comments about the library workers in particular, and being a representative involved with CUPE, is the concern you have in the library sector with respect to the degree of professionalism or the level of human resources expertise that's a problem in the library field?
Mr Burdick: It's not so much a problem, in my view, with the level of expertise or the quality of the staff. The problem is all the pressures I indicated before are going in a particular direction, and the direction they're going in means that most of the time now staff are not able, because of operational pressures, to use the skills and training they have. The cases are endless where our people at a public reference desk cannot give the public the service that they have been trained to give, that they want to give. They have got to run people through far too quickly, and the reason for that, I'm sorry to say, is because much more attention has been paid to technology than has been paid to staff. Our employee populations are dwindling, our technology in most cases is increasing, but the technology is simply not filling the gap.
Mr Tascona: Maybe we should be reviewing the Public Libraries Act then.
Mr Burdick: I understand there's a lot of interest in that.
The Chair: We've run over our time here. Thank you, Mr Burdick. We appreciate your taking the time to come before us here today.
SUPER FITNESS TELEWORKERS SUPPORT GROUP
The Chair: Our next group up will be the Super Fitness Teleworkers Support Group. Good afternoon.
Ms Anne-Marie Foster: My name is Anne-Marie Foster and I work for Super Fitness doing telemarketing.
Ms Aileen Joy: My name is Aileen Joy. I also work for Super Fitness doing telemarketing.
Ms Foster: I have three children: 16, 12 and one soon to be four years old. To tell you a little about what led me up to Super Fitness, a bit of my brief background, four years ago I left an alcoholic, abusive man after 14 years of marriage, went to a shelter, went for counselling for a year and half, went into my own apartment with no furniture or clothing because he destroyed it. Struggling, being a single parent, when I did leave my ex-husband, I found out I was six or seven weeks' pregnant, which I did not abort because I'm against abortion.
I was struggling with three kids. The government -- Harris -- as you know, had cut $351 off my cheque per month, being a single mother on mother's allowance. It was very hard for me to be on the system because I've never been on it before and I worked, so I've learned to swallow my pride. When you have children to support, there's not much you can do.
After you did the cutback, I found myself very hard. I started going to food banks two times a month. I know Tsubouchi is saying tuna, but my kids don't like tuna, so what can you do? I'm sorry; I'm not trying to be sarcastic. I'm very annoyed at the way the government is handling people on the system. I know there are people who do abuse it and people and who don't, like me. Right now I'm taking stress and anti-depression pills to deal with all the problems.
As of a year and two months ago, my son, who was then two and half, my youngest one, I had enrolled him in day care for subsidy. I was still waiting after three years to get back on my feet, to get out in the workforce and get a job. I know there are single parents who have children who are not aware that one day you could wake up and your child could be very ill. Social services is telling me right now not to work full-time, to stay home and take care of my child. Meanwhile, I'm cut $351. Some of his medication is not covered. I have to find some means of making ends meet.
I did call different companies from home, because I couldn't afford TTC, to try to work part-time. There's no hiring, so there are no part-time jobs that I'm aware of, anyway. I tried to do my best. I found out about my son. I was hoping that he would get into day care so I could go back to school and go out in the workforce. He became ill with kidney problems. He just woke up one morning and he became sick. He's been in and out of Sick Kids Hospital for a year and two months now. I'm sorry; this is hard for me. I'm trying to make ends meet, to go back and forth to the hospital, and my drug card does not cover some of his medication. I'm trying now to get some of it covered, but I'm not getting any hope.
A girlfriend of mine told me about Super Fitness and this and that. She worked for a week and told me about the company. You could work from home doing $12 an hour and $10 per client you get involved into Super Fitness, becoming a member of their club. Of course I chose the $12 an hour, because I know that I have the ambition to work. I'm not one of these types that are going to just sit back and be on the system and abuse it. I really do want to work and I really mean that.
I put in 180 hours for this company, working for $12.50 an hour. They owe me $2,340; that's with vacation pay on top. It's been a year now and I just feel like I'm not going anywhere with this company and this government. I don't understand why it's taking so long. I worked hard for that money. My children need new beds. I need money to cover my child's medication. I was promised this money.
Every time I called this company at the beginning there wouldn't be somebody to answer the phone. After many people complained, he wouldn't return the calls back. They were saying the cheque was in the mail. I have a lot of ambition in me to be able to get work. If I get my foot in the right door, one of my dreams and my goals is to get off the system, especially at the amount that the government is taking off me. It's very hard. I've applied for handicapped benefits for my son; I'm not getting anywhere with them either. Sick Kids is sort of in disbelief that this is happening to me, but it is.
All I want is just to get paid. I don't want this company to get away with this, and right now I feel they are getting away with it. I'm almost to the point where I'm giving up hope, where nothing's going to be done. People out there need to be aware, especially a single parent with children, that you can wake up one morning and have a child who's really ill, in and out of the hospital, and end up quitting your job. Then what are you going to do?
I worked hard for this company, and when I started working for the company I felt really good about myself and it did boost my self-esteem because I thought this was some kind of income that's going to come in to help me. I would have stuck with this job today if they were paying me all the time and stuff like that. This would have worked out fine with a sick child.
I'm sort of in disbelief still that this can go on here in Canada. I'm still in disbelief that the government is taking so long for this to be settled. My children need clothing just like any other children out there and stuff like that, and as you're aware, when you're on the system you can't always afford all these extra things. My children are not -- the other two are not young, they're teenagers, and things are expensive out there.
I think these companies need stiffer laws. They need to be fined maybe much higher fines. I don't understand why this company has gotten away three times doing this to the public, to people, whether it's the consumer or people working for this company. I'm struggling being able to deal with this. I'm even seeing a psychiatrist to deal with all these problems and issues I have. It's very hard. A lot of people think that when people are on the system, they're at home and this and that. Maybe some of them don't care if they get off the system or not; I do. I want my children to grow up knowing their mother is doing something with her life, not being on welfare for the rest of my life. There's no way I could even do that.
All I'm asking is for everybody out there who's listening and the public to be aware of these kinds of companies. I did not know I was going to get myself into this. I'm just, if I can use the word, desperate. Yes, I'm desperate. I have three children to support and it's hard. It's not easy being a single parent on the system. Right now it's very hard because they don't give you the money for TTC to look for work, and day care is so slow and you have to wait so long. I really don't know what to do. I'm just at the end of my rope here.
I just hope this can get settled as soon as possible. I've learned a valuable lesson. I'm almost afraid to work for companies at home because of what had happened to me with the case of Super Fitness. I really hope the politicians and the MPPs and the government can really put their foot down on companies and please don't let them get away with this. I don't enjoy being on medication and being under stress, but this has put me under even more stress and I really don't need this.
I'm here to speak on behalf of everybody who's working at home with companies doing this and getting away with it. Whether you're working at home or in a company or in a factory, you're still working. The bottom line is you're still trying to make an income coming in.
Like I said, I worked every chance I could while my son took a nap during the day. Days when he didn't take a nap, when my older daughter came from high school and finished her homework, she would watch my son while I went into my bedroom and did the telemarketing. A lot of the times when I worked with Super Fitness, they gave you this certain phone number that you phone in and you have to put a password in. They gave you logging sheets. You'd call people up one at a time. I did everything that they asked me to do. They called me. Even when I had to get a tooth removed and stitches, I still worked because I needed that money. All I'm asking is, I really need the money, I worked hard for it, and I'm really disappointed. I'm going to be more disappointed and have no faith in this government if they let companies like this get away with this. This just can't happen.
Ms Joy: I don't want to get too personal except to say that I had a strong background in hospitality for 22 years and I thought that was the worst you could do until I ran into telemarketing. I started telemarketing in 1990 because I was hit by a car for a second time in 1989. I died; I couldn't work with the public any more. I went to part-time work. I fought every day not to kill myself. I get back on track, I worry whether or not I'm going to still have psychotherapy twice a week. It took one year of shrinks telling me different things; it took a whole year to get a correct diagnosis. I'm only doing this because I can't do anything else. I never thought this is where I'd be.
In regard to Super Fitness, I'm one of the lucky ones. The main attraction was working from home. That drew me. I agreed to work 20 hours a week. The pressure was to work more hours, and that set off warning bells because until you have a proven track record, no telemarketing company is going to give you more hours.
I worked from August 28, 1995, until September 8, 1995. I quit for several reasons. First, when I called in to inquire how many people were taking advantage of their free membership, I was told they couldn't tell me. They're computerized, but they can't tell me. The warning bells went off because in telemarketing the pressure is per hour -- every hour, what I'm bringing in. If you don't bring it in, you're fired. They don't give you the time.
The second concern was my contract. On my contract I could not find the company name anywhere, whether it was Super Fitness or whether I was working for a telemarketing company. Also, they mentioned online time. It was unheard of. They said I'd only be paid for actual talk time spent on the phone, not taking into consideration wrong numbers, answering machines, busy signals. Most of it's spent with wrong numbers, not talking to an individual.
The other thing was no cheque until you earned a minimum of $150. I thought, again, is that legal? But I thought, well, if they've got it in the contract, it must be legal.
They said the company did not specify the hours of work. That's untrue. Super Fitness determined the hours that I was going to work.
My claim is very small. It's only $347.74, including vacation pay. After informing Super Fitness that I had quit, I was told I would receive a cheque at the end of September. I spent two months trying to collect and got nowhere until the switchboard at Super Fitness was so sick of my calls they referred me to DFD telemarketing. I found a DFD Telecommunications in the phone book. When I contacted them, I thought it was the man who hired me from Super Fitness. He would not identify himself and denied that they did any telemarketing.
I called the Ministry of Labour and I was in for a shock. When I called, I was told they could not do anything; normally they could not do anything for me. The only reason they could do anything this time was because they'd received a number of complaints from Super Fitness: Come down and file a complaint.
I ran into somebody that was familiar with this class action through Parkdale. Because I wasn't happy with the response from the Ministry of Labour, I contacted Parkdale legal aid. They put a claim in for me in November. If it hadn't been for the non-stop commitment and support from Parkdale legal aid, and later on with the involvement of the Ministry of Labour, I would have walked away from this back in November.
I'm curious. If this had happened now, after Bill 49 was in place, would my claim be invalid because the amount is so small? I'd like to know what you're going to do in regard to Super Fitness.
The Chair: Thank you. If that's the end of your submissions, we have two minutes left. The official opposition; we ended with government members last time.
Mr Hoy: Thank you very much for your presentation. The personal ones that I've heard today certainly have much more impact and I think vividly show what can go wrong in a situation where you have a poor employer, one that doesn't have maybe any standards. Yours is a case study of things that can go wrong when people are not upfront about what they will pay you, how they will pay you, when they will pay you. So I appreciate the knowledge of the history of your background as it pertains to some of the aspects of this bill.
I was mentioning at the break to someone in the hallway that the more personal aspects of committee work are much more enlightening. Other people look at a bill and are looking at words and what they mean to them. I appreciate your presentation.
The Chair: Actually, there are a few seconds left. Mr Christopherson, do you have a brief question?
Mr Christopherson: I'll make two very quick points in just a couple of sentences. One is that what we're seeing is very clear evidence of the government's intent to push down the value and the price of labour. Overall, if you take a look at what the agenda of this government does, it's to lower the value of labour in this province.
Given the fact that they've slashed by 22% benefits to the poorest people in our province, that's exactly the sort of folks that are going to be pushed into accepting whatever's available. If the rights supporting those individuals are lessened, you are very much pushing people more and more into poverty. Whether you're doing it deliberately or not, you have to answer for yourselves. That is the result.
My last point would be that I'd like to hear, if there are remaining seconds, from the government members what they're going to do about it.
The Chair: We've actually gone over the time and I don't know whether it would be fair to ask, if the case is pending. Mr Christopherson, as a former minister I think you would know full well the consequences of dealing with matters before any kind of tribunal. I think what might be more appropriate --
Mr Christopherson: A meeting at least --
The Chair: No. What might be more appropriate is perhaps if you could direct the specifics of your case to the minister, and we can give you the address here this afternoon.
Ms Joy: The Ministry of Labour has told them to pay up, and they have refused and they have taken it to the adjudicator. The people who settled with Super Fitness for the claims from $250 and under, who made a private settlement that they were supposed to pay, they have not paid. They have done everything to dishonour the agreement.
The Chair: Aside from highlighting the case with the minister in terms of ensuring that the adjudication process moves along quickly, I think that's probably the best we can hope for at this stage.
Ms Joy: That's the best?
The Chair: We certainly wish you well, but I would suggest doing that to alert the minister directly to the details of this case and to ask for her oversight to ensure there are no further delays in the prosecuting. I don't mean to go into the details of the bill, but perhaps one of the other members might chat with you outside and let you know the significance of what would happen if in fact this bill was passed in terms of helping to enforce your existing claim.
Ms Joy: Thank you.
The Chair: Thank you for coming in before us here today. We appreciate you taking the time. A very courageous presentation from both of you.
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1750
The Chair: Our next group up will be the Canadian Union of Public Employees, Local 1750. Good afternoon to you both. Again, for the umpteenth time today, we have 15 minutes for your presentation. You can divide that as you see fit between presentation or question-and-answer period. Would you be kind enough to introduce yourselves for the benefit of Hansard.
Mr Nick Milanovic: Certainly. My name's Nick Milanovic and I'm a lawyer for the Canadian Union of Public Employees. Sitting beside me is Carol Haffenden, vice-president of the Canadian Union of Public Employees, Local 1750.
Today we're here to address one aspect of the changes to Bill 49. What we have for you today is a very short presentation, and we hope the committee will question us on the brief that's just been circulated to you, as we would like to clarify some matters and I'm sure the committee has questions of us.
Local 1750 is one of 2,650 locals of the Canadian Union of Public Employees, the largest trade union in Canada. Local 1750 represents 3,400 employees at the Workers' Compensation Board. These members include clerical workers, administrative workers, industrial workers and some professional employees. Local 1750 represents members across Ontario located in many major towns and cities across the province. It has represented workers of the WCB for some 21 years and its membership has continued to expand over that period.
Before I start into what I'm sure the committee has heard today, a round of criticism, the union would like to acknowledge two minor, in its view, yet positive changes to the Employment Standards Act. The new act would provide vacation entitlement of two weeks per year, which would accrue whether employment was actively worked over the period or whether there was an absence due to illness over that period. As well, the amendments to the act provide for seniority and service during pregnancy and parental leave and ensure that all employees are credited with benefits and seniority while on leave. In the view of the union, it's a positive step and we feel we should acknowledge it.
Today in my short amount of time, what I want to avoid is talking past each other. We acknowledge that there are some minor positive changes. We applaud that. However, we'd like to focus on a particularly significant aspect in the union's view of the changes to Bill 49, and that concerns the changes to the collective bargaining structure under the act, what issues might be collectively bargained.
Section 3 of the bill and section 4(2) of the current act deal with the collective agreement overriding statutory provisions of the Employment Standards Act. This would have the effect of trade unions and their counterparts, employers, being able to bargain substantive aspects of employment standards law and incorporating them into the collective agreement. In the union's view, this is a road it would prefer the government didn't travel.
Perhaps I can begin with where the law has come from and where we are now. Beginning in the 19th century, this Legislature, along with other Canadian legislatures, began to legislate specific areas of employment and regulated terms and conditions of work relating to a variety of substantive issues, beginning with health and safety, children's and women's labour. Eventually the various statutory mechanisms that were out there and located in various pieces of legislation were brought together in 1968 to create the current act.
From that point forward the current act developed to the point where one basic truism resulted, and that was that most workers in this province had a basic universal floor of rights. That is, no one could negotiate out of the basic standard of rights that were provided for employees. Every worker in the province that was covered by the act was entitled to the same vacation entitlement, the same severance entitlement and the same determination entitlement as every other worker. There was a universal floor from which all employers and all unions or individual employees could bargain but never go below.
This act seeks to change that regime in a significant way, and that forms our main concern today. I'm keeping an eye on the time. Currently no trade union and no employer may agree to standards that fall below the various standards that are contained in the act. Under the proposal, unions and their employers may negotiate specific changes if the rights that are dealt with, and there are only a certain number of rights, confer "greater rights" than the act provides.
For the trade union, that seems to be rather ambiguous language. Determining how one juggles overtime pay against vacation pay and other rights in the collective agreement, to assess whether rights are in fact greater than what the statute provides, is at best an ambiguous process and at worst impossible to determine other than that a hearing will eventually be held under the grievance arbitration system of a collective agreement to determine that matter. How an adjudicator in that position will determine what rights are greater is left unaddressed by this act and that is a major concern.
For the purpose of clarity, the issues that can be negotiated under the bill, section 3, are severance pay, overtime pay, public holidays, hours of work and vacation pay. That puts Local 1750, which represents people at the Workers' Compensation Board, in a precarious position.
The government has signalled in other places that it is prepared to reform, if you will, the workers' compensation system. Employees at the board are concerned that the rationalization of administrative services will mean that their employer will have to undertake some drastic changes, and within those changes, they see this bill as fuelling concessionary bargaining because for the first time employers will be able to negotiate below the standard. For instance, if the board in its wisdom decided they wanted their employees to work longer, they could negotiate a change that provided for working hours that are in excess of the current standards with no necessary change in other conditions in the collective agreement because this collective agreement exceeds the level of the Employment Standards Act, and in many situations, many trade unions, whether it be this one or another, will have exceeded the Employment Standards Act over a number of years of bargaining.
What this act does is give an incentive for employers to take concessions from their workers without giving them anything necessarily in return, and given that this board is going to restructure itself, this union sees that as likely. As well, given that this employer takes its direction from the government, there's a very real and serious concern that direction will be given, either explicitly or otherwise, to undertake those changes. This will simply mean worse working conditions for the employees at the WCB. This act does nothing to improve the conditions of employees at the board.
There's another potential implication for a specific group of employees at the Workers' Compensation Board, and those are temporary workers. All estimates are that this is about 200 people at the board out of the 3,400 we represent. Temporary employees under the current collective agreement are not entitled, as in many different situations throughout the province, to the same rights that a permanent employee is entitled to, their rights aren't quite as strong as permanent employees, so they are going to be subject to an Employment Standards Act that necessarily makes it more difficult for employees to sustain their rights. Given that they're temporary employees in the first place, they have a natural reluctance to rock the boat because they want to become permanent employees. Given the current labour market, that's understandable.
This act will give an incentive to employers to use temporary employees to work longer work hours because somewhere else in the collective agreement they have a higher standard than the current act allows for and presumably, although we don't know for sure, they will have greater rights than under the current Employment Standards Act.
Inevitably, because this act puts more issues on the collective bargaining table, there will be an increase in industrial strife. A labour relations peace will not necessarily be maintained in the face of workers who have to fight for what before was a legislative right. That puts workers in a very difficult situation of accepting an offer and letting go employment standards rights that have been the basis of their relationship with the board for quite some time or going out on strike to fight for rights they have had since 1968. This committee and the government should take note of that very real possibility.
The other implication that is I think obvious for the workers at the WCB, given the restructuring that will be going on at the WCB -- and Cam Jackson's report is out and the government will be considering the various options therein -- is that employers, and specifically this employer, if they cannot get the concessions at the bargaining table, will look greater and greater to contracting out as a solution to lower their labour costs. Traditionally, we know in the labour movement and we know in the New Democratic Party that contracting out means savings brought on, for lack of a better term, the backs of the workers because they're not traditionally unionized jobs with higher wages. Any savings that are accrued to the government and to the public at large are a result of a transfer of a higher-wage job to a lower-wage job.
Again, this will lead to industrial strife because the workers at the WCB will simply not sit back and see their jobs contracted out, and with the change to Bill 7, the Labour Relations Act, successor rights do not attach automatically to those jobs so that the trade union won't exist any more and it is an incentive for people simply to walk out. It's our submission that this aspect of the changes specifically -- I think I'm out of time -- should be repealed.
Alternatively, if the government is not up to that task, it should consider making the changes in the aspect concerning greater conferring of rights specific, so that we might judge monetary rights against similar monetary rights or mixed rights against mixed rights or some sort of system for an adjudicator to balance those rights and obligations so that the parties involved in collective bargaining understand where the process is headed and have a greater certainty as to how their agreements, once they're resolved, will actually be implemented. Otherwise, there will be a great flood of litigation to determine what greater conferral of rights under the act actually means.
That ends our submission and if there's any time for questions, we would appreciate it.
The Chair: Thank you. There's one minute and 45 seconds left and since the last question was from the government side, Mr Hoy, if you have any questions.
Mr Hoy: Thank you for your submission today. I chatted with a fellow the other day who thinks that Ontario might some day be open 24 hours a day, every day of the year. We'll be working, working and working. In the absence of minimum standards and some other things that are happening, some by the wishes of the public -- we are open seven days a week and Christmas and so on now -- maybe this chap isn't too far off and we will be commerce 24 hours a day, 365 days a year. Do you feel that the lack of any kind of a minimum standard could lead to at least a demand on people to work, we'll say, excessively, whether they're unionized or non-unionized?
Mr Milanovic: I hope that individual doesn't have to work 24 hours a day, 365 days a year, but it's our view certainly that without a defined universal standard, that's exactly what will happen. The committee should understand that there are very real implications of that. It means that people who tend to work more as a result of these changes traditionally have more industrial accidents, and that has an impact on this local particularly because they claim workers' compensation. We may be creating a more unhealthy, more unsafe working environment and any savings realized through this process, this rationalization here under the Employment Standards Act and at the Workers' Compensation Board, may in fact be eaten up by more and more claims because people are simply tired and have accidents at work because of that. I see this act as creating that incentive.
The Chair: Thank you both for coming down and making your presentation before us here this afternoon. We appreciate it very much.
My apologies to the government members. Actually, the last question before that had been Mr Christopherson's, so I am behind in my times.
Mr Milanovic: Mr Chair, we have time to sit and answer government questions, if you so desire.
The Chair: We'll let you catch up with the next presenter.
Mr Milanovic: I'll be outside in the hall if you really want to know.
ONTARIO HOTEL AND MOTEL ASSOCIATION
The Chair: Our next presentation will be from the Ontario Hotel and Motel Association. Good afternoon, Mr Seiling.
Mr Rod Seiling: My name is Rod Seiling. I want to thank you and your committee for the opportunity to appear before you today. I'm president of the Ontario Hotel and Motel Association and executive director of the Hotel Association of Metropolitan Toronto. Collectively, we're the largest accommodation and hospitality association in the province, with over 1,000 members.
Employment standards reform is important, and therefore we support the government's initiative to fix it. Bill 49 is the first stage of this process and we look forward to the extensive consultation process that we understand will precede the introduction of the second stage of this reform package.
What this bill does is help to relieve the complexity and time involved for all concerned. We would hope and suggest that ultimately all legislation and regulations related to work and employment will come under one act. This would be a forward step in bringing clarity and fairness to the workplace.
Bill 49, in our estimation, and supported by our advisers, does not alter minimum employment standards in Ontario. What the legislation does is make technical changes to the act. These changes are aimed at improving administration and enforcement of employment standards, as well as reducing ambiguity and simplifying language. We also see this bill signalling a significant reduction in the government role in administering and enforcing the act. I might add that we also believe it will allow the ministry to utilize its resources on those it deems as important issues.
Our analysis of the proposed changes is as follows:
Act enforceable through collective agreements: The bill specifies that obligations under the act will be enforceable through collective agreements, as if the act were part of the collective agreement. Employees covered by collective agreements will not be permitted to file complaints under the act without the permission of the director. In essence, the grievance and arbitration procedure will replace enforcement through the administrative machinery of the act. Powers of arbitrators with respect to claims under the act will be expanded to include the powers of employment standards officers, adjudicators or referees under the act.
Parallel proceedings in court and under the act prohibited: The bill prohibits an employee from commencing a wrongful dismissal action in court if he or she files a complaint claiming termination or severance pay under the act. Similarly, where an employee files a complaint under the act for wages owing, breach of the building services successor provisions or the benefit provisions of the act, a civil action seeking remedy for the same matter is prohibited. These restrictions apply even if the amount owing exceeds the maximum for which an order can be made under the act. Civil actions are permitted, however, if the employee withdraws the employment standards complaint within two weeks after filing it. Parallel to the foregoing restrictions, an employee cannot initiate a complaint under the act for the specified matters if a civil action covering the same matter has been commenced. Effectively, the bill will require employees to choose whether to sue in court or to seek enforcement through the act.
Increased flexibility for provision of greater benefits in contracts: The bill will make it easier for employers to establish that they have provided greater rights or benefits than are required by the act, and thus obtain exemption from certain provisions of the act. When a group of collective agreement provisions -- for example, severance pay, hours of work, overtime, public holidays and vacation -- are considered together, rather than individually as in the past, the collective agreement will prevail if it provides superior rights. In addition, statutory and regulatory provisions, as well as provisions in oral, express or implied contracts, will prevail over an employment standard if they confer a greater right than is provided by the employment standard.
Service during pregnancy and parental leave: The bill requires the length of a employee's pregnancy or parental leave to be included not only in determining seniority, as is required by the current act, but also in determining the length of service for all rights except for the completion of the probationary period. Thus, all rights in employment contracts that are service-driven will continue to accrue during the leave. All employers should review their contracts of employment -- we support this -- to determine the impact this will have on their current employees.
Vacations: The present vacation of at least two weeks upon completion of 12 months of employment is amended to apply whether or not the employment was active employment. The pay during such vacation must not be less than 4% of the wages, excluding vacation pay, earned by the employee in the 12 months for which the vacation is given. This clarifies and simplifies the existing provisions in the act.
Maximum amount of orders: Employment standards officers will not be permitted to make an order for an amount greater than $10,000 in respect of one employee, with the exception of orders relating to breach of the pregnancy and parental leave, lie detector, retail business holiday and garnishment provisions, and termination and severance pay in connection with breaches of such provisions. Arbitrators will not be subject to these restrictions. The bill provides for regulations prohibiting officers from issuing orders below the level specified in the regulation.
Collections: The bill sets out mechanisms for the director to use private collection agencies to collect amounts owing under the act. This will provide the ability to contract out a function that is now performed within the ministry. Collectors will be authorized to agree to compromises or settlements of claims if the person to whom the money is owed agrees, provided that it is not less than 75%, or such other percentage as may be prescribed, of the money to which the person is entitled, unless the director approves otherwise.
Compromise of rights under the act: Compromises or settlements respecting money owing under the act will be binding once the money stipulated in the compromise or settlement is paid, unless the arrangement is entered into as a result of fraud or coercion. In the current act there is very little ability to contract out of the act's requirements. Employment standards officers will be given additional authority to settle complaints without making a prior finding of what wages are owing.
Limitation periods: In a prosecution or proceeding under the act, no person will be entitled to recover money that becomes due to the person more than six months before the facts upon which the prosecution or proceeding is based first came to the knowledge of the director, subject to certain exemptions. In the current act the limitation period is two years.
Review of orders: An employment standards officer will be deemed to have refused to issue an order if a proceeding is not commenced within two years after the facts upon the refusal is based first came to the knowledge of the director. Employees may request a review of an order or a refusal to issue an order, in writing, within 45 days. The director has the discretion to extend this time limit in certain circumstances. Certain orders may be reviewed by way of hearing. In the case of employers, application for a hearing is dependent upon paying the wages and administrative costs required by the order.
Administrative changes: Complaints under the act will be filed in either written or electronic form. Employment standards officers will be able to obtain copies of documents kept in electronic form. Certain changes concerning the service of documents under the act are also made.
In conclusion, we support Bill 49 as it signals a progressive change in employment standards in Ontario. It is not reducing minimum standards. We are not, I want to clarify, seeking a reduction in benefits. We are good employers and want to ensure our employees are treated fairly and receive all that is their due.
I want to conclude, but I thought it was important that we go through our understanding of the act, given that we've seen so much rhetoric out there about what this bill is or isn't and want to be on the record as to what our understanding of the bill is. Thank you very much for this opportunity.
The Chair: Thank you, Mr Seiling, and you've left us a generous amount of time for questioning. To redress the imbalance, I'll give two fourths of the time. Since we have eight minutes, we'll have four minutes of questioning for government, two minutes to the Liberals and two minutes to the NDP. Satisfied?
Mr O'Toole: Mr Seiling, I want to put on record respecting your presentation that you've clarified that in the section dealing with increased flexibility for provision of greater benefit in contract; I think it's on page 3. You're clear there. It says that when they're considered together, "rather than individually...the collective agreement will prevail if it provides superior rights." The minister indicated this morning that this section of this bill would be moved to phase 2 of the review of the employment standards, but her intent was to ensure that the outcome of the collective bargaining process would ensure superior rights. If I was to read section 3, it says, "A collective agreement prevails over section 58 and parts IV, VI, VII and VIII of the act if the collective agreement confers greater rights...." That's pretty straightforward. What I'm trying to do is get on the record very clearly is that the minister's intention and the government's intention is to avoid the duplication and to empower the workplace participants -- that's the union and management -- to come with the best adjustment to the working day, hours of work and other conditions as the changing world of work around us evolves. Is that kind of workplace empowerment something your industry is looking for?
Mr Seiling: Very much so. We're very pleased. I want to be very firm that we are not looking for a reduction in standards, nor would we support that, but we see this as a progressive step in allowing our employees to negotiate benefits on their terms. I make a point that because we're in the service industry we have various times of the year where things are very busy or slow, and right now we can't give things legally to employees who'd like to have them. Under this bill we are able to bring some flexibility, keep our people employed full-time and give them a better living in our view and yet maintain the service to our customers, because without customers none of us has a business, nor do employees have jobs.
Mr O'Toole: The point I'm trying to make is that whether it's in the computer electronics area or the libraries, as we know, through technology the world of work and use of recreation time and leisure time and the whole standard of living are certainly not what they were some 20 years ago. This act needs to be reviewed to allow the workplace participants to be the deciders of the balance in the workplace. I think that's a reasonable expectation and I think that's the intent of the minister. I've heard you say the same thing, so thank you for that response.
Mr Tascona: Thanks very much for your presentation, Mr Seiling. I note under the maximum amount of orders -- I want to get your opinion on this -- with respect to the cap of $10,000, this does not apply with respect to termination and severance pay if it goes over the cap. What do you think about that?
Mr Seiling: Given today's times, it's fair and reasonable, but again, one of the things that we're most pleased about is that this bill seems to end what I would call some of the double jeopardy where, "If we're not successful here we'll go there, and if we're not successful there we'll go there." An employer is on the hook for years upon years in not knowing where they are, and so is the employee. We think it's not fair to either side to be playing this game of double jeopardy. If you have a problem and it's a real problem for both sides, it should be dealt with at one place or another. You can't go fishing and, "If the fishing's better in this hole than the other hole, we'll keep on moving till we find a bite."
Mr Tascona: That's been your experience, that it has been double jeopardy with termination and severance pay claims?
Mr Seiling: It has been. It's unfortunate that I'm unable to bring with me an associate who is head of our -- we have a sister organization called the Human Resources Professional Association, and one of their biggest complaints is that they're tied up in red tape and regulatory dealing with these issues. If it's not dealt with in one, then they go someplace else and then they go someplace else. They believe they dealt with it fairly and they want some balance back in the system and say, "We want to deal up front." Certainly there always will be a bad apple somewhere, but we believe that 99.99% of all the people we represent are good employers. They want to resolve it fairly one time and one time only, and they want to make sure it's done in a just and fair way.
Mr Tascona: What would you think about electronic filing of payment of orders to pay?
Mr Seiling: The way the world is moving, you can now file your income tax that way, and as the world goes forward more and more people are going to be doing things electronically. It will become a way of life. I think that as this act is revised we should be looking more towards the future, not towards the past.
Mr Tascona: Would that be the same with respect to filing an appeal to order to pay?
Mr Seiling: I don't see a problem, but again, I believe at some point along the way, if someone needs to see a person, that should be there, but I don't believe we should impede it by saying you can't do it. As I said, it's progressive and we should be looking to where the world is going, not to where we've been.
Mr Hoy: Thank you for your presentation. I would agree that probably most employers are law-abiding and socially responsible people, but for those who are not I want to talk about the limitation period. It was suggested today more than once that the six months is actually too short for people to move from one workplace to another because of reprisals if they were to start an action within the six-month period rather than the two years. Do you have any consideration for that in mind, an opinion?
Mr Seiling: I don't see it as a problem because I think that in today's world moving from one job to another is accepted. In days gone by where you started with a company and worked all your life with a firm, when you changed jobs there was always something untoward that had happened. That's not the case today.
I think the only time there is a problem is if there's been fraud or something untoward happen in the workplace where somebody may be trying to hide something. But I don't believe in today's workplace, from the employer or the employee side, that changing jobs is a problem. If you've got a problem, surely in six months you know whether you've been done in or aggrieved or not satisfied and will take appropriate steps.
Mr Christopherson: Thank you for your presentation. It's good to see you again. I was interested in your statement, fourth paragraph of the first page, where you state that in your estimation the bill "does not alter minimum employment standards in Ontario."
I was wondering and I'd like to hear how you feel that putting a cap on the maximum amount to claim, as well as a minimum threshold to cross, and reducing from two years to six months the time period in which a worker can make a claim is not losing a benefit. Whether or not you agree that it's a benefit that should be lost for whatever reason, I just don't understand the commonsense thinking that there is now a cap and a minimum threshold and a reduced time period where there wasn't one before and yet you're comfortable saying you don't think this alters minimum employment standards. Could you help me understand that?
Mr Seiling: I don't profess to be a total expert in this area, but we've had people who are experts in this area look at it and I am, I guess, restating what these people have told us. I can only restate what I've said, that we do not believe this bill represents a reduction in minimum standards.
Mr Christopherson: I wasn't playing technical legal gymnastics.
Mr Seiling: I understand that.
Mr Christopherson: I'm not a lawyer either. I was merely asking just from a commonsense point of view that if you looked at this and there's a cap where there didn't used to be one and you have to cross a threshold where you didn't before and you've lost a year and a half in a time period that you once had, how that could not be construed in some way or another as some kind of minimum right lost.
Mr Seiling: As Mr Tascona was just saying, you can go to a threshold in court. I think there are ways and means to recover those things. As I said earlier, I don't believe anyone today wouldn't know within six months whether they have a case. You can go over the $10,000 limit in court, so I don't think anything's been taken away from you. I go back to what I said: We do not believe this bill represents a reduction in minimum standards.
Mr Christopherson: Do you think the bill is going to make a difference to you and your colleagues in the industry?
Mr Seiling: We think it will make a progressive step forward, not just for the businesses we represent but our employees as well, because it's going to give us flexibility to allow us to offer our people better employment. Hopefully we'll see where we'll be able to give them the things that they want to have at times and periods when we'll be allowed to give it to them, have them work when they want to work and when we need them to work. It's going to give us flexibility to deal with those things and is something we need to be able to deliver service to our customers.
Mr Christopherson: How do you think you would square that with the minister who's said that these are only minor housekeeping changes? If you feel it's going to make a big difference, and there are people who think those differences are very controversial, how does that square with the minister saying these are only minor housekeeping changes?
Mr Seiling: We believe these are minor in the sense that we believe the discussion paper coming will shed greater light and greater flexibility and reforms, because this bill represents what the workplace was, not what it is today and where it will be in the future.
Mr Christopherson: I disagree with most of it, but I appreciate the dialogue.
The Chair: Thank you, Mr Christopherson. We're over our time. Thank you again, Mr Seiling. We appreciate you coming and making a presentation here this afternoon.
Mr Seiling: Thank you.
The Chair: Is there anyone here from the Canadian Union of Public Employees, Local 136? I didn't think anyone had checked in.
UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES
The Chair: In the absence of that local, the next group will be the Ontario joint council, the Union of Needletrades, Industrial and Textile Employees. Good afternoon to you both.
Ms Pat Sullivan: Good afternoon.
The Chair: We have 15 minutes for you to use as you see fit, divided between presentation and question-and-answer. I wonder if you might introduce yourself for the benefit of Hansard, please.
Ms Sullivan: My name is Pat Sullivan. I'm the Ontario director of the Ontario joint council of the Union of Needletrades, Industrial and Textile Employees. The result of that union is from a merger of the former International Ladies' Garment Workers' Union and the Amalgamated Clothing and Textile Workers Union. We merged last July 1 and we're now one union.
With me is David St Louis, the assistant to the director. We have made copies available to the committee of our submission, so I don't want to read through it and take up the 15 minutes. It would probably take longer than 15 minutes if you wanted to read through it.
I want to address the issues and the concerns affecting the membership that I represent, primarily in the clothing industry. Coming before government committees in the past, with the changes in the labour laws that have been before us in the last year, this is just another stage of taking away rights from workers who really need the type of legislation we've had and to be able to improve on what's there. I think these are regressive changes to this legislation. Although I've heard the minister say that this is just slight housekeeping, that it's not really cleaning out and making major changes to the legislation, if I did housekeeping in a manner like this I might as well move because there wouldn't be anything left in the house. That really greatly concerns me.
I understand also that the minister made an announcement this morning that some of the provisions that were part of the housekeeping had been removed, but they're not gone and that concerns me also. I think it's just a plot of the government to look like it's making some changes because of the presentations coming before the committee. She also states that this will come under the much larger review of the employment standards, and that gets your hair up on your back. If this is only housekeeping, these changes, and there's going to be a much larger review, what the heck is going to happen to the working people in this province?
If we go to the clothing workers in this city and this province who have been badly hit by everything that's going on, whether it be trade, free trade, NAFTA, you're starting to see the reoccurrence -- whether industry wants to recognize or accept that there are sweatshops in this province, it's only going to create a bigger landslide of sweatshops. When you start to regress what they have under the minimum, bare standards and allow opportunities for employers then to reduce that, you're going to create much more of a sweatshop environment where workers have no rights.
In the past, up to five, eight years ago, you had people in this industry who were making good wages, who were getting up to $10, $12 an hour working under piecework, which is really pushing them with the old carrot, and working hard, primarily women, primarily immigrant workers. It also now seems to be the start-off point for students and youth getting into jobs. With the lack of jobs out there, there seem to always be jobs in this area.
We have plant closure after plant closure. In this industry you go through bankruptcies and then they open up a couple of blocks away under a new name, hire new employees with no collective agreements, just down to the minimum rights under the act. If you start to erode that act, people are going to work in worse conditions than we're getting in the Third World countries.
Then they're going to start to take off their vacations and their holidays. We have plants now even with union contracts where they're being forced to work more than 40 hours under their collective agreements. It's mandatory overtime even though the contracts say it isn't. The employer will come to you as a representative and say, "Unless we get some major concessions here, we need to have 45-hour work weeks, we have to have mandatory overtime." If you give them licence to do this under changes to the act, it doesn't take very much to see what is going to happen out there.
Seniority provisions for the people who have worked for these employers will mean absolutely nothing. They're going to have to work longer and harder. When you're working under a piecework system, for those who have had any experience with it, an eight-hour day becomes a very extreme, hard day.
I'm not concerned about GM, Ford and Chrysler to the same degree as I am about people working in textile and clothing mills because a lot of those employers are paying big and larger wages. They're not going to have a lot of impact and utilize the changes coming out under the Employment Standards Act to the same degree as small employers, singular industry employers who are going to take advantage of it.
Every day in my working life I have to deal with employers who are saying: "We've got to be competitive. We can't compete with offshore. We can't compete with the south. We're going to have to defer wage increases that you've got. We need a 5%, 10% rollback in wages." These people in this industry, to the largest degree, are making less money today than they were eight years ago because of giving back. Now when you give them licence under the Employment Standards Act to be able to do that, it's going to be a hayride.
I haven't heard one worker in this province come out and support the changes under the Employment Standards Act, whether they're in a unionized workplace or a non-union workplace. It's seen as something that's going to be an advantage for employers and a disadvantage for workers.
I think the government is going to have to very seriously sit back and look at what is going to happen. You're going to drive more of the economy to home workers, who are not covered by any legislation to any certain degree in this province, and it's going to be opened up for anybody. It'll become like a right-to-work state in the south of the United States, where you have an opportunity to work and work for whatever wages that you can get out of the employer. That scares me. I think the province of Ontario is a strong province, always been seen and recognized as the place where business wanted to be, and to give business and industry the opportunity take our standards a lot lower is a crime for the working people in this province.
I probably could go on for a couple days, but if anybody has any questions that they'd like to put to me --
The Chair: Thank you very much. You've left us just over seven and a half minutes, so two and a half minutes per caucus. Mr Tascona had his hand up first, and then Mr O'Toole.
Mr Tascona: Thank you for your presentation. I just have a question to raise with you. Presently, two thirds of the orders to pay, which is a situation where the employment standards officer has found a violation of the act and requires the employer to pay, go uncollected.
Now, for 67% of the employers that fail to pay, it's because of insolvent situations -- in other words, bankruptcy. One area that we don't have jurisdiction in is bankruptcy protection. Certainly there's been talk that the bankruptcy laws should be strengthened to protect workers in those situations, and I put it to you, what can we do in terms of trying to increase those percentages? We're basically limited in what we can do with respect to bankruptcy. We can't pay for the federal government continuing not to protect workers under bankruptcy laws and we think it's a little unfair for us to be asked to do things that the federal government should basically be enforcing.
I just want to get your comments and what you think should be done with respect to insolvent employers. If two thirds of the statistics are that we can't collect because they're insolvent, what can we do in those situations? What have you, as a union, done in the federal area with respect to bankruptcy?
Ms Sullivan: I think sometimes in dealing with a bankruptcy, no matter what you do, the doors are closed, the ears are closed. Nobody wants to listen to the bankruptcy. They're more in line in dealing with the employers who are continuing the business.
I definitely believe there has to be something done about bankruptcy. We have gone before government, we have gone before whatever avenue we've had, where we've known for a fact a company has declared bankruptcy and opened up and probably not lost one day of business. So I think there's got to be some more scrutiny. I think there's got to be some accountability by an employer before they can declare bankruptcy. You've got the chapter 12, and I'm not totally sure how it works, in the United States, but at least there's a process if a company is going to declare bankruptcy that they've got to make the government aware.
I don't see why the province can't do it, that it has to be back on the feds. There's got to be some process. An employer just can't come in and put the notice on the door and say, "We're out of business." There's got to be some accountability working with the government, and if there's a union there, working with the union or some workers' representatives before they can actually come out and say the business is gone, because in a lot of the cases, especially in the apparel industry, that's not the case. They either will get out of business and become a contractor, they will work it out of home workers. There are a lot of scenarios out there and you don't have to be a brain trooper out there to be able to figure out what's going down. It's easy enough to track to find where they are.
Mr Tascona: I know.
Ms Sullivan: Whether the government has some committee meetings to sit down and try and put something together -- there's been enough history of bankruptcies and experiences that we've been through on why it's worked and why it hasn't worked, that we could do something. I don't think it's my issue to be able to try and resolve it today, because I'd only be one person with one opinion who's been facing different types of bankruptcies, but I think there's got to be some responsibility under the province.
Mr Tascona: That is a problem in your industry.
Ms Sullivan: It's a major problem within our industry, but I wouldn't want to sit there and say to them, "Swallow the changes in the Employment Standards Act and we'll try and see if we can do something with bankruptcy." Bankruptcy is not the only problem, because by changes of the different types of employment standards legislation, bankruptcies won't be quite so bad now because you've got a licence to do whatever you want anyway.
Mr Tascona: Let's just get back to this.
Ms Sullivan: I don't want to mix the two together. I think bankruptcies is a different issue that employment standards.
Mr Tascona: I'll just raise one thing, though. There have been situations with respect to employers that shut down and the next day they open up. That happens in your industry. But recently there was a decision where the directors of the company that did that were prosecuted by the provincial government. Unfortunately it took them about four years to prosecute, and meanwhile they had operated another sweatshop and were operating somewhere else. If there was strength in the bankruptcy, we could protect the workers and that wouldn't happen, especially when you have the statistics that we can't enforce the orders to pay because they just shut down and then they act somewhere else.
Mr O'Toole: Just one or two points to reinforce that. Would you agree that there are indeed a few improvements in this current piece of legislation? I would point out to you that payment on termination has been tightened up to be paid in seven days. There are also provisions for a minimum of two weeks' vacation and protection for parental and pregnancy leave, and there are other collection provisions which we know today is in failure. Those administrative changes are indeed in favour of the worker. So do you recognize there are some? That has pretty much been stated by most of the presenters today.
I also want to just question you for a moment, and I fully agree with many of the comments you've made, that indeed there is a lack of jobs today. I'm somewhat educated in labour economics and I just wonder, do you think there are, because of globalization, things that are perhaps beyond the control of the Ontario government -- I've certainly been here a year, but globalization and those issues, are they not impinging on your particular workplace? When I look at every label on every garment, you're really under siege from more than just the Ontario government. What kind of creative suggestions do you have that we should be listening to?
Ms Sullivan: I think the experience we've had as a union and representing workers is that we have sat there and worked with employers at the table recognizing that you can't just come back and say, "You can't make any changes." We understand globalization and being competitive, but we've been able to sit down with the more progressive employers, understanding that new technologies are going to be very important to this industry, to work out how we're going to work on quality or different issues like that. We've been very successful with some of the employers in doing that, and I think that's the route that we have to go.
You can't have blinders on and say, "Globalization may be going on and it may have impact on our industry," and refuse to accept it. You have to work with it. But I think you have to have the opportunity to be able to do that. Making these types of changes to the legislation doesn't do that. I think we had it working over the last number of years in committees and you're starting to see more and more of those being eroded, where you had participation, and I sit on several of those committees where it's made up of government, business and unions.
I'm working through a lot of the issues for a lot of the industries, because we don't just represent the apparel industry, we have the textile and we have chemicals and plastics and stuff like that, other industries. We sit on these committees and work it through. Unfortunately, since the change to this government, we're seeing all these committee works just slowly eroding. The participation level is just not there; the heart of it is gone. It's because there's no sense in me talking to the business side. It doesn't matter which side you're talking to. We talk to the government representatives on there and they say: "We don't know how long this is going to survive. We don't know whether this is going to have any impact any more." So we meet with no meaning because nobody knows what kind of life is going to be there.
We sat with a lot of the manufacturers that we represent, saying, "This is good." It gives us an opportunity to take it back to the whole base.
Mr Hoy: Thank you for being here today. In your conclusion, you say that our wages and benefits do not greatly exceed the minimum standards as it is. You did say in your verbal submission that there was a time when on average, if people worked very hard, they could get between $10 and $12 an hour. Now you say the wages and benefits don't exceed the minimum standards. What's happening?
Ms Sullivan: What is happening in a lot of cases is that the employers come to you and say, "We no longer can pay the type of money that we're paying because of globalization and competing with other countries or the United States and be able to keep out there and bid on the orders." A lot of them are saying if they can't get into the American economy, they're not going to survive. We know which companies are surviving and which ones aren't, what they're making for the US market. But they've got to be able to compete and to compete, number one, is the quality, which is never usually an issue. They always say, coming from any side of the border, that Canadian quality is very good.
The problem is the wages, the benefits. They'll come to you and say, "We can no longer continue to pay the dental," and if they're not in the luxury of being part of our benefit plan or our pension plan, those employers are saying: "We no longer can pay for the benefits. We can't do the pension contributions any more that we're doing. We can't keep paying the high wages. We have to drop the base rates." They want a 6% or 10% rollback on wages.
After a while of losing your benefits -- they're slowly being eroded, your dental is now gone because they can't afford to keep paying the premiums -- then the only thing they have left to attack is taking away the wage rates. It's getting lower and lower and lower, so now they're making just $7 or $7.50 an hour, and then they exploit them because you don't get the overtime any more because they send you home.
You start making a lot of piecework and your money gets up, they send you home for a day, and then it's calculated on a weekly basis. If you're unfortunate to be in that situation and you've worked at 115% all that week, you go home and lose a day's pay, you lose your percentage that you're making, and try to negotiate or get those things back with the employer where your piecework is calculated on a daily basis so you don't lose it if you're doing overtime and stuff. They're just constantly at you.
A collective agreement even now is hard because if you have a three-year collective agreement, it doesn't stop the employer from coming to you and saying: "We've got problems. We need your help." You either say, "No, go away. We've got a collective agreement and you're going to honour it," or you sit down with a committee of workers in the workplace and see if you can work it out. They want to keep working.
But the company doesn't hear the same complaints that we're hearing all the time, saying, "I can't work overtime any more because I've got another job that I do in the evening, because my wages have dropped," especially when you've got a lot of women, single parents and stuff like this. They're going from one job to a full-time job working an afternoon shift. We have some working midnight shifts going right into a day shift. People can't work 16 hours straight like that and keep going to maintain a standard of living, to be able to provide for their families. So it's becoming very difficult. You're always at the company's mercy because the threat is always there, "If we don't get what we need, we're going to shut down."
Mr Christopherson: Thank you, Pat and David, for an excellent presentation. I think it's interesting that the government members continue as the day rolls on to talk about the federal government vis-à-vis bankruptcy legislation when there already was a very progressive piece of legislation in place under the wage protection plan that provided, for the first time ever, as a result of our government's initiatives based on lobbying from the labour movement, the very thing that they were talking about here today and asking you, "What are you doing about it?" that provided workers with an opportunity to have severance and termination pay and wages paid and vacation that was due them in the case of a bankruptcy.
It was this government, under Bill 7, which they didn't run on -- there was no mandate to do that -- that gutted that very program. So I find it quite hypocritical that anyone would suggest that the unions have been less than responsible to their members on the issue of lobbying the federal government when there already was a very positive, progressive piece of legislation that you helped bring about in the province of Ontario and that they gutted.
I also would like to turn to an issue that was raised earlier in the day about the whole issue of sweatshops and what's happening with garment workers. Given time limitations, I didn't get a chance to ask the question of them, so I'd like to pose it to you. We've seen in the States the whole issue around -- what's that woman's name?
Ms Sullivan: Kathie Lee.
Mr Christopherson: There's been a focus down there and your union's been active in making this a big issue in the States. How big and to what extent do we have those kinds of sweatshops here in Ontario, in your opinion?
Ms Sullivan: If you go back to the basis of LA, where they had the whole big experience where they had the 18 or something women who were basically kept in a basement in LA, that is going on here. Maybe not as prominent, but you will hear about it. They're out there. We talk to these workers on a fairly regular basis from our union. A lot of them are immigrants, probably almost 100% immigrant workers. They're afraid they're going to get deported or they're not going to be able to get any work because of language barriers or their children and stuff like this. So it's pretty much underground, but it's there.
We raised these issues when we came before the government on the whole issue of home workers and I think on the health and safety. I think every issue that's come before any committee of the government over the last number of years, with the NDP government, with the Liberals and now with the Tories, that's always been an issue that's there.
I think it's becoming bigger and I think you're going to probably start to see companies within this province start to come out. We're not only doing it with Kathie Lee, we're doing it with Disney World, which is now doing stuff in Haiti, paying them 38 cents a day and exploiting the women and the children and stuff like this, and I think you're going to start to see some stuff coming out in this province. It's there, it's not going to go away as long as they turn an eye to it. There's a lot.
I talked to one manufacturer who went into a factory with no windows, no doors, and there were just machines you wouldn't believe in there and people working in there, and it was one of our manufacturers. If that's not an underground movement in there, I'd be surprised. It was through a wife's business that he was in there looking at purchasing and stumbled on this place going down a long laneway. He said this was just a huge building that you would have thought was empty until you got inside.
I think it's very much alive and I think it's growing. Probably in just a matter of time what you're seeing with Kathie Lee and all the other issues down south of the border, and what we're doing here is to bring the message up to this province that it's going to start to happen here.
The Chair: Thank you very much. We appreciate your taking the time to make a presentation before us here today.
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 815
The Chair: Our next group up is the Canadian Union of Public Employees, Local 815. We have 15 minutes to be used as you see fit.
Ms Gayle Long: I'm Gayle Long and I'm representing Local 815, along with my local, Local 3252. We're all hospital workers in CUPE. I'm here to make a plea of careful thought and consideration of the changes about to be made in the Employment Standards Act, to be called the Employment Standards Improvement Act. I cannot help but see this act as a step backwards, even prior to those accomplished in the early 1990s. At a time of restructuring in the public service sector, I cannot help but feel the government has misused its power against the right to protect the minimum standards of working conditions for employees by eroding the Employment Standards Act.
If this definitely was going to be an improvement act, there should be an increase in the base wage as the cost of living has increased and now rent controls have been taken off; also, there is the fact that Hydro may soon be sold off and then our power is out of our control completely. Our cost of food is also going up as our dollar is diminishing in other countries.
As for the part-time hours, I believe we should have a standard 24-hour part-time hour work and after that, anything over 24 hours should be called full-time, as many employers are using part-time workers in order to diminish the payment. I also believe it is time we opened our eyes and gave benefits to part-time employees. Many employees, especially those in non-unionized workplaces, have a need for vacation and protection also. There seems to be no definite protection there unless you do increase these basic ideas of employment standards.
Control of moneys by collection agencies is completely out of whack. These have a self-interest and self-motivating idea. There is no reason that the government could not collect moneys owed to workers by charging those employers who have gone against the rules and regulations of the Employment Standards Act. This should not be a burden on the government but a burden on the employer who has broken the law of the Employment Standards Act.
Employees will have a more difficult time getting moneys owed them and never receive full redress as the cost of going to these private agencies will take away some of their money. Also, anything over $10,000, they will have to go a civil court, and many of these employees would not be able to afford this. Employees should be recouping their money by a commitment made by the government. There is no recall. Many -- I've done this all at the last minute. Can you tell?
I'm going to go back to the fact that employees now have only six months to file against an employer. This is unreasonable. The government will then have two years to investigate the claim, and then they have two more years in order to secure the money, at that time asking them to go to a collection agency in order to receive the money. Also, it's a fact that moneys under a certain amount, maybe $100, maybe $200, will go to Small Claims Court. This will also cost the government money and it's not a fair way to do it.
You, the government, with the passing of this act, will give the employer the instrument so that private companies paying the minimum wage and having substandard working conditions can accelerate the practice of contracting out unionized work, not giving concessions, those unions who will not give concessions to the new minimum standard. The unions in the past years have given away increases in salary instead for the protection of better working conditions and job protection. Now you're wanting to take these things away.
Already workers are under the stress of the threat of losing their jobs, as well as the burden of being overworked, since employees are not being replaced if they're off sick, as part of cost restraints. As well, only a percent of employees on vacation are being replaced. Now you are allowing the employer to have employees work more hours without paying them overtime.
Employees are under the pressure of being reminded by employers that there are thousands of people out there willing to do their job, and with the abundance of unemployed plus the threat of workfare, this is causing a great deal more stress. Non-unionized workers are finding their work is being contracted out over the past years or they are being laid off and they are being rehired in the same workplace by a private company at a reduced rate of wages. This is not fair.
I've had several people come to me to ask for help and information. They are not hospital workers. They are a young man who worked for a lawn care company. His employer gave him three paycheques, each one being an NSF cheque. He now has to wait 14 days for this cheque to go through his bank in order to see if it is NSF or not. A driveway paver for the summer had his pay held three weeks. It was one week holdback and two weeks in advance before he gets paid. He was then laid off and received no money. The same thing happened to a young man who works snow removal. There is also a young woman who came to me who worked in a doughnut shop. She worked three weeks and was told she was on training. Afterwards, she was told she was not to be paid during this training time and they didn't need her.
At a work clearance warehouse, a young woman came to me telling me of how everyone was a boss and she would be in trouble continually because this boss would tell her one thing, another boss would tell her another thing. At the end of it all, just simple clearance house gossip got her fired. She had nowhere to turn. She figured if she made too much fuss, she would be eliminated from ever working in a decent job again. She's been unemployed for two years and has three children.
All of these people have been too afraid to go forward, except for one young man who worked in a fast food franchise and worked in unsafe conditions when they used insecticides to get rid of bugs. He informed employment standards about this practice. Two weeks later he was given sick pay and was eliminated from his job.
The employees you will affect by these changes in the act are the most vulnerable. They are also the voters and taxpayers of this province. The changes seem to benefit the employer only and erode the protection to the employees. This is the open door to private companies having lower wages and taking advantage during this time in an oppressed job market. Please think twice about making these changes. This will not help the job market or the employees. It will only widen the gap between the rich and poor.
Thank you for your time.
The Chair: Thank you very much. That leaves us exactly six minutes, so we'll go two minutes per and we'll start with the government.
Mr O'Toole: Thank you very much for your presentation. It seems that you gave it a fair amount of personal thought, and I commend you for that.
You mentioned stress, and you're right. The world of work, as I see it, is changing. It's changing for a number of reasons: workers' habits, individuals, the market, a number of factors really.
I just want to bring a couple of points to bear, that today the collection system under the Employment Standards Act is not working. Less than 25% of the judgements are actually collected, for a variety of reasons, so the system is really broken. Those who have been waiting -- and the litigation process itself is bogged down, so the system itself is broken.
Another point that's important to think about is that 96% of the cases, when you're looking at the limitations which you were talking about, are under $10,000, and I think it's important to quickly get the parties together to get a solution as quickly as possible, which leads to the six-month period. If more people came forward as opposed to delaying it, the director can then bring subsequent claims, or the officer can bring claims, from other persons who may be in violation. So the quicker you bring these things to bear -- I think there are a lot of very progressive changes that are long overdue.
I would ask you one question. Do you think the Employment Standards Act should go through a full hearing and full discussions, part 2 that was referred to by the minister?
Ms Long: I believe a full investigation, full discussion, should be made, including those people who best know the workforce. If we're talking to -- I don't even know. Speaking to you, I don't know if I'm talking to closed ears, if we have an open ear and an honest opinion of people wanting to hear what employees and employers have to say. The only way it will work is if we all work hand in hand. As long as somebody is making the decision and forcing it on employees, it will not work. Employees can be cornered so far, and then they will stand up and fight back.
Mr Hoy: Thank you for your presentation. Would you agree that having minimum standards as it applies to wages, minimum wages, has probably enhanced the quality of life in Ontario and has attracted people to the province?
Ms Long: I believe the minimum standards would be okay except for the fact that, depending on where you live in Ontario, the cost of living has gotten out of hand, and I don't find your standards are going to be all that much better. I know people are working longer, harder. Being in the health care sector, I see the cost of what is happening in the public: family breakdown, the emotional stress on families. It is becoming a growing concern. As we're cutting back on mental health, we're finding the stress out there is enormous.
Mr Hoy: My point would be, though, that if the minimum wage was lowered, that stress and those things that you're talking about would be more severe.
Ms Long: Would definitely grow. We are already seeing the breakdowns in families.
Mr Christopherson: Thank you for your presentation. Government members are talking sometimes, some of them, about the possibility of a broader review of the Employment Standards Act, and they've asked a number of people if they think that's important or worth doing or if there would be interest.
I'd like to ask you whether, since they're already going to do that in their own way -- it's probably not a way that we're going to be real comfortable with, but they have the majority government. Do you think that not just the part about flexible standards but that all of the proposals in Bill 49 save and except the two or three items that really and truly are clarifications and are improvements -- and that's it; there are two or three that really are minor housekeeping, that are improvements, and nobody's questioning that. Every union rep and community worker who's come in here so far has acknowledged that. But would you feel that the rest of Bill 49 should be put over to such a review rather than rushing this through?
Ms Long: Definitely. If you rush it through, it'll cost you more in the long run for the fighting back that will happen afterwards. I think also that you will see unions take maybe an unfriendly opinion to the government.
I have relatives on the wall out here who are former MPPs for the Progressive Conservative Party and I think they would cry at what's being done. They were strong believers in labour's rights and on human rights, and I think we're seeing it being eroded this time very drastically.
Mr Christopherson: Is it fair to say too that if there were such a review, that contrary to the government calling this -- I mean, it truly is insulting that the name of this act is An Act to improve the Employment Standards Act. It's insulting to suggest that that's the name of this. But if you were to agree to a broader review in terms of improvements, would they be the sort of things that the government's contained here in Bill 49, or might they be some other things?
Ms Long: They would be some of the things I had listed below when I made my statement. I don't know if you picked up on them or not, but definitely to me this is a private industry takeover act as far as I can see.
The Chair: Thank you very much. We appreciate your presentation before us today.
ONTARIO SECONDARY SCHOOL TEACHERS' FEDERATION
The Chair: The next group up will be the Ontario Secondary School Teachers' Federation, Ms Wright and Mr French. Good afternoon to you both. We have 15 minutes for you to divide as you see fit between presentation and question and answer.
Ms Pat Wright: My name is Pat Wright. I'm an executive officer for the Ontario Secondary School Teachers' Federation. I am accompanied by Mr Larry French, who is a member of our staff. I thank you very much for the opportunity to make this presentation on behalf of the almost 50,000 members we have in education as teachers and in other areas of the classroom and providing the educational services for the students of Ontario.
When we looked at this bill, Bill 49, we saw there were some areas which seemed to be clarifications, I guess one may want to call them. I'm referring to the areas of vacation entitlement and the areas which remove some of the ambiguities around pregnancy and parental leaves. However, when we reviewed the rest of the bill, we found there are some significant areas where I would say that this bill does not represent minor housekeeping changes. In fact, they do represent some significant changes, changes which we would find problematic.
It's more than housekeeping. We do not believe it results in a better balance in the workplace. In point of fact, we would suggest that some of these significant changes would be moving the workers of Ontario backwards and have a potential for adverse impact not only upon workers, but on employers and the environment in the workplace, because I think it will have a very, very major impact on how collective bargaining and contract negotiations occur.
I came into the OSSTF as a negotiator and I know that any time we place constraints upon the system, constraints which adversely affect negotiations, it also adversely affects the environment in which we find ourselves. I speak specifically, for instance, to the area where we talk about flexible standards.
Recently we had the Olympics. During the Olympics I watched some very flexible people do some gymnastics, and in doing that they seemed to be bending and twirling and turning every which way. They were flexible. One often thinks of the word "flexibility" as a word that implies some kind of ability to change and accommodate. But what I see in this bill is not a flexible standard; it's a mechanism for adversely affecting the collective bargaining environment.
You talk about greater good -- I'm speaking specifically to section 3. How do you determine what is the greater good? If I just read the section here, you're going to put "prevail over an employment standard if the provision confers a greater right upon an employee than is conferred by the employment standard." How do you determine the greater right? Greater right than what?
When you fool around, as it were, and alter the baseline, a baseline which sets the framework that everybody knows what the rules are and how those rules apply, you will have the potential for establishing one workplace operating under one set of standards and another workplace operating on a completely different set of standards. The minimum right guaranteed to all workers is a right which keeps both the employers and the unions operating in a manner to protect some basic rights for all workers.
As an educator, when I go into my classroom and I say to my students, "We believe in equity and we believe in fairness," do I tell them, "You have fairness number one in one workplace and fairness number two in another workplace"? I think not. I think that is not the Ontario that we have come to love, that we have come to cherish and that we have come to regard.
The kinds of things that can happen under this so-called flexibility in the workplace is that you have a tradeoff between a monetary value and time and something which is non-monetary in determining the greater right. Do you say, "Vacation pay is of more or less importance than time one has with one's children"?
For instance, it could turn out under this so-called greater right that a union could, for whatever reason, negotiate away working days. How long do you work? Do you work five days a week? Well, maybe now under this you'll work seven days a week. What happens to your time with your family? This is going to be especially problematic in those areas where we have single-parent families that feel they have very few resources available to them to fight this and to protest about this.
There's another section of the act, and I refer specifically to subsection 20(2), where we talk about enforcement where you have a collective agreement, enforcement where the employee is bound. "An employee to whom a collective agreement applies (including an employee who is not a member of a trade union)" is bound by the decision of the trade union. What happens to the right of that individual when the act itself takes away their basic right in terms of their employment? How do they respond? Because it says further that a complaint is not permitted.
We have some great difficulties with some of these sections of the act. Maybe the intent was for improvement, and I will not question the intent of the government because I'm sure the government wants to make Ontario a better working place for working people. However, I would question the actual application and the doors that this allows to be opened so that the working people can be adversely impacted upon by their employers, by unscrupulous employers. I know that although we try not to have those, we do have some of those.
I also have concerns about placing the onus upon the worker to take everything through the courts, because we very well know that we have a number of workers here who do not have the resources to find their way through extensive and lengthy court proceedings. We believe that the employees of the Ministry of Labour, people who work with employment standards -- employment standards officers are trained, are capable and are therefore able to enforce the act, enforce the law and to ensure that if collections need to be done, then the collections are made rather than hiving off to private companies.
I believe that when you put in place a maximum claim that limits things to $10,000, what again you are doing is removing from workers their rights to fair wages. If I am owed $15,000, then pay me $15,000. Don't limit my claim to $10,000. I wasn't owed $10,000, I was owed $15,000 by an employer. I think the same thing would apply to limitation. The application of limitation periods, I think, takes away from workers their abilities and their rights.
In conclusion -- and I'm looking at the time, so I'll leave some time for questions -- I would suggest that this piece of legislation, Bill 49, does not represent minor housekeeping changes. If the minister is going to do a complete review of the Employment Standards Act, if there's going to be a review that is scheduled to take place, then why not leave this until such time as that review occurs? Why not work with the trade unions, the workers of this province -- such as ourselves, for instance -- who would be happy to sit down and discuss with you ways in which we can indeed make certain improvements and ensure that we have a piece of legislation that guarantees the minimum rights for the workers of this province.
The Chair: Thank you very much. That leaves us, bang on, six minutes for questioning. Seeing only two parties present, I will say we have three minutes per caucus.
Mr Baird: With respect to your comments about why not leave this to an overall review, the minister announced this morning that she would leave the bigger part of the bill with respect to the employment standards package, negotiating a package that was greater than the minimum standard, she did say that she would put that over to the review, which has already begun, is under way; so a big chunk of your suggestion. The minister certainly has listened to all stakeholders from both labour and many in the business community. To do so, she's done just exactly that.
I had one question I wanted to ask you. One of the provisions in the bill -- and you didn't make mention of it in your presentation -- is with respect to collections. Right now, once an individual makes a complaint, it's investigated and ordered by the employment standards officer, only 25 cents of every dollar that's been ordered to pay is actually paid. What do you think would be an acceptable amount for the ministry to collect? They previously, up until 1993, had a collections branch within the employment standards division that was phased out and the 10 employees there were made surplus. What would you think would be a good percentage that the government should aim for in terms of the recovery of money for workers?
Ms Wright: I would hate to suggest to the government that you pay 25 or 30 or 45. From my perspective, if a worker is owed 100%, then the worker gets paid 100%. I understand the logistics of that and how that may not be entirely possible. However, I suggest that if all of the employers contributed to a special fund from which employees who were in need of some kind of supplement could be paid as a kind of an insurance, or maybe even a wage protection, that kind of plan, then it is entirely possible that between what can be collected and what the fund could supply, they could be topped up to about 100%.
Mr Baird: I certainly agree with you on the 100%. I think it's got to be our mission as a government to ensure that 100% of the orders are filled by a given employer. With respect to your comments, though, on a special fund, would your union be advocating a new payroll tax of some form to cover that?
Ms Wright: I'm not referring to it as a payroll tax. I think we could sit down and work out the things that are necessary around the development of that kind of fund. I think it's a fund that employers should contribute to, to make a -- call it a stabilization fund, if you want to call it something.
Mr Baird: That would involve, though, good employers. Mr Duncan said this morning that the vast majority of employers accept the responsibilities under their act. Certainly a majority do. The law-abiding businesses that are accepting their responsibilities and are treating their employees fairly shouldn't be punished for those firms that don't accept their responsibilities under the act.
Your point, though, about looking for 100 cents on the dollar is very apt. That's why the government wants to pursue private collection agencies, to say an order is issued, you have 45 days to appeal or pay but on the morning of the 46th, that will go into a private collection agency that will have, as Leah Casselman spoke of this morning, a personal interest in wanting to ensure that money is collected, because they don't get paid unless they collect money for a worker who is owed a claim. Would you have a problem with the private collection agency?
Ms Wright: Yes, we would have a problem with a private collection agency, because we are fundamentally opposed to the use of privatization strategies, as it were, to do the jobs that we think correctly belong to the government and the people of Ontario.
Mr Baird: We're getting 25 cents on the dollar. A year from now, if this is implemented and it's getting 50 cents, you'd still be against it?
Ms Wright: I did suggest to you a strategy that would allow you to not necessarily use the private collection agents by looking at other strategies.
Mr Christopherson: Just to pick up on the last point of the parliamentary assistant, it's interesting that Hansard will show that the government's priority and objective is to achieve 100% of the funds. Yet if you look at the legislation the way it's drafted, if they collected 100% of what the law would allow, that could be only 75%, because that's what the new draft law would be, that there's a need on the part of private collection agencies to only collect 75%. That's the minimum amount. I find that quite interesting, and we'll pursue that further as the hearings unfold.
The government also leaves the impression, the parliamentary assistant certainly very specifically left the impression, that because the issue of flexible standards has now been referred to this broader discussion -- it doesn't mean it's dead; it just means it's been referred to another day -- that somehow everything ought to be hearts and flowers and the rest of this bill is quite acceptable to everybody. That's what I felt the impression was he was trying to leave. What are your thoughts about that? Do you think the rest of the bill is just fine with that one piece out, or do you think there are enough problems here that the rest of it ought to be referred to the broader review also?
Ms Wright: I think there are enough problems with the bill that it should be entirely referred to the broader review. In terms of flexibility of standards, the word "flexibility" tends to make me very nervous because we wonder, is the flexibility in terms of the application of the rules or is the flexibility in terms of the determination of what the rule actually is? I'd hate to see an Ontario where we have a checkerboard of standards across the province.
I think we have to move for a minimum set of standards, standards that every student in the province can get into the workplace and know where they are, where every parent knows, if their child is working part-time or full-time, where their child's rights are and where every employee in the province, whether they're a student employee or an adult employee, has a full knowledge of what to expect from their employer in the workplace, so that we have a basic minimum set of rights and standards maintained right across this province.
Mr Christopherson: If the government removed every aspect of this bill that had an impact on workers who have a collective agreement -- so every reference to unions comes out and all that's left are references to non-union -- would you still care?
Ms Wright: Would I care? Yes, I would care.
Mr Christopherson: Why?
Ms Wright: Because it's about the rights of individuals, whether or not they belong to a union. We have this section in here that I referred to, for instance, section 20, that talks about the employees a collective agreement applies to, whether or not that collective agreement is determined by a union. So we have to look at the fundamental rights of individuals and what happens to fundamental rights of individuals under this piece of legislation. I think that is what puts the workers of this province, whether or not they belong to a union, back in time. That's why we are opposed to this piece of legislation.
Mr Christopherson: Excellent. Thank you.
The Chair: Thank you both for taking the time to make a presentation before us here today.
Ms Wright: Thank you for listening.
MARKHAM BOARD OF TRADE
The Chair: Our next group up is the Markham Board of Trade. Good afternoon, gentlemen. Again, we have 15 minutes for you to use as you see fit, divided between the presentation and questions and answers. I wonder if you might introduce yourselves for Hansard.
Mr Ted Shepherd: My name is Ted Shepherd. I'm the president of the Markham Board of Trade. I have with me Mr Cliff Hawkins, who is a director of the board and the chairman of the government and economic policy committee, whose committee put together our submission. Any questions, I think, should better be directed to Mr Hawkins than myself.
The Markham Board of Trade is a not-for-profit organization established in 1981 to assist member businesses in the Markham community and represent their concerns to government of all levels. We are associated with the Ontario and Canadian chambers of commerce.
We have 730 member companies which represent a wide variety of businesses, including computer and high-technology companies, business and financial services firms, wholesale and distribution companies and the hospitality industry. Our member companies range in size from large international corporations to small business enterprises. Some 92% of our member companies are small businesses. I might add that the majority of those small businesses have less than 10 employees. So 92% of our companies are small businesses, as I said, with 50 or fewer employees, and the remaining 8% are composed of large corporations such as Apple Canada, Allstate Insurance of Canada and IBM, to mention a few. Our member companies employ more than 32,000 people and our presentation to you represents the employers and employees of these firms.
Guiding principles: The Markham Board of Trade applauds the government's decision to significantly reduce its role in the administration and enforcement of the Employment Standards Act. Our belief is that the provisions of Bill 49 should reduce the cost of government, enhance the ability to do business in Ontario and continue to maintain the protection of workers' rights. We see this initiative with the Employment Standards Act as a clear step in the right direction. Therefore we support Bill 49, with very few exceptions.
The following are some key issues.
Reducing the cost of government: As a parenthetical comment, I might add that the board of trade has been actively pursuing the reduction of the role of government in business for many years. We are very glad to see that Bill 49 has come forward as a move to use existing structures and mechanisms rather than creating parallel ones that add cost. Making obligations under the act enforceable through the grievance and arbitration procedure of collective agreements for unionized employees provides business with the ability to deal immediately with issues without having to go to government for resolution. This is a natural extension of the grievance and arbitration procedure which further streamlines government and should reduce the cost to business.
A provision in Bill 49 that recognizes that the government should not be in the collection business has merit. By allowing the contracting out to collection agencies for amounts owing under the act, the government follows a principle that the private sector has successfully used of focusing their energy, time and resources on their core business rather than on activities which others can do more effectively. We expect this contracting out of collections will provide the opportunity to reduce the government payroll and achieve the collections with greater efficiency and effectiveness.
We are also pleased to see that the ability to file electronically is allowed under Bill 49. This will save time and money and will be consistent with the way many businesses operate today.
Enhancing the ability to do business: One of the major problems that business people have had with the Employment Standards Act was that of double jeopardy. Requiring individuals to decide whether they want to pursue litigation through civil action or file a complaint under the act will remove a great burden from business and yet still provide the individual the opportunity to determine which course of redress they wish to follow. This improvement to the act, coupled with a $10,000 limit on orders, will greatly reduce the cost of doing business in Ontario and assist business in being more competitive.
In addition, the board supports the amendment that requires that compromises or settlements relating to money owed under the act will be binding once the money is paid. We further support the reduction from two years to six months of the period that a complaint can be made of moneys owed to an employee as well as the extension from 15 days to 45 days for filing an application for review of an order to pay. This administrative simplification and shortening of time frames for claims, but loosening of review application filing times, moves further towards relieving the legislative burden on business while protecting the ability to appeal.
The Markham Board of Trade agrees that there needs to be greater flexibility in designing benefits provisions for employees. Under Bill 49, a business would be able to view as a totality a collective agreement's provisions for public holidays, overtime pay, vacations with pay, hours of work and severance pay, and weigh them against the provisions of the Employment Standards Act to see which confers a greater total benefit. This will assist employers and employees in designing benefit packages that most appropriately fit their individual circumstances.
Protecting workers' rights: Contrary to allegations by opponents of Bill 49, the Markham Board of Trade fully agrees with the government that Bill 49 does not weaken the protection of workers' rights under the act. Indeed, it guards against any reduction of employment standards in Ontario contained in the current legislation. If Bill 49 did not ensure this, the board of trade would not support it.
The board agrees with the provisions of the bill that pregnancy and parental leave should be recognized when calculating an employee's length of service and length of employment. This allows, as it should, these periods of employment to be included when dealing with any service-related employee rights in an employment contract, the one exclusion indicated in Bill 49 being the employee's probationary period.
However, the board requests that the government reassess the broader provision in Bill 49 which requires that entitlement to vacation time off and pay be based upon 12 months of employment whether the employment is active or not. This could result in an employee demanding to have vacation time off and pay after having returned from a paid sabbatical, for instance. Vacation becomes under this provision of Bill 49 time off from being on the payroll of an employer rather than time off from work. We argue that this provision is contrary to the whole rationale for ensuring a minimum standard of vacation time and pay in the legislation. We ask that this amendment to the act not be passed.
There is clearly a need to reduce government costs and its involvement in running private enterprise. Bill 49 helps reduce the red tape that makes it difficult to do business in Ontario and be competitive with companies in other jurisdictions. Bill 49 provides greater flexibility to a business to make arrangements with its employees that better serve both the employer and the employee in a particular business environment.
We endorse these improvements to the Employment Standards Act, with the one exception noted above, and look forward to the more comprehensive review of the act in the upcoming months to accomplish more of the same. Thank you very much.
The Chair: Thank you, gentlemen. That leaves us again with just seconds over six minutes, so two minutes per caucus.
Mr Ted Chudleigh (Halton North): Thank you very much for your presentation. We heard earlier today about some very unfortunate employees who had been badly abused by an employer. Whether or not that employer is still in business in Ontario, I'm not quite clear. I think this bill is designed to alleviate some of the hardships on individual businesses, but if government were to come down very hard on those businesses that do break the law or do run up alongside the regulations, would your organization have difficulties with those kinds of activities?
Mr Shepherd: Not in the least.
Mr Chudleigh: Do you see that as government's role?
Mr Shepherd: We feel the role of government is to maintain a civilized standard of behaviour by business and employees, and the role of the legislation is to define those civilized standards of behaviour. If those have been defined by the Legislature, the Legislature and its arms of enforcement should be called upon to enforce those standards.
The Chair: Any other government members? We have one minute.
Mr Tascona: I'm just curious with respect to what your comment would be. We've heard a submission recently that we have difficulties in the collection of orders to pay. Presently the statistics are that two thirds of orders to pay are not collected. One measure that we have as recourse for companies that are bankrupt or insolvent is to go after the directors, but that's a fairly difficult and slow process. So the suggestion we've heard is that maybe a payroll tax or an employer-funded, experience-rated, which would be a tax, should be imposed on employers in general because we have a few bad apples. What do you think about that?
Mr Shepherd: We're opposed to taxes of all sorts. Businesses in Ontario are slowly but surely struggling out of a long recession. We are competing with jurisdictions with less government and less taxes. We feel the government in Ontario should be giving us a chance to make our way in the world and compete on an international scale. Adding taxes and disincentives to business doesn't help us at all, and it doesn't help the employees and the population of the province in the long run.
Mr Tascona: Do you think it would be of assistance if employers could file their appeal of an order to pay electronically and also pay the order to pay electronically?
Mr Shepherd: Our feeling is that that would be of benefit, yes.
Mr Hoy: Thank you for being here. I apologize for being out when you began your presentation. Earlier today we had a similar presentation that spoke in regard to the two-year and six-month period for complaints. They rather liked that idea, as do you, and they went on to say that they wanted an extension for the employee of 15 days to 45 days for filing application for review. It's interesting to me. I didn't have a chance to ask them, but one instance where reducing the time period by almost 75% -- and you favour that. In the case of appeals it's an increase of almost 66% in the time. But anyway, would you give me your rationale for the extension on appeal time?
Mr Cliff Hawkins: Our view on that is that the greater time that you can give both the employee and the employer in responding to a situation is to everyone's advantage. We didn't really look at the percentage because the percentages really don't apply given that we're talking very different absolute values. Our concern is that there is fairness in the Employment Standards Act both for the employee and for the employer in that particular kind of circumstance, so we support that kind of change in the act.
Mr Christopherson: Interesting presentation. Your statement on the first page that "The Markham Board of Trade applauds the government's decision to significantly reduce its role in the administration and enforcement of the Employment Standards Act" is quite fascinating, and I'll do what I can to help get your message out to people about that.
I'm also interested in the statement that your member companies employ more than 32,000 people, which is significant, "and our presentation to you represents the employers and employees of these firms."
Mr Shepherd: I thought you might pick up on that.
Mr Christopherson: Yes. I'm a little curious as to how that is.
Mr Shepherd: We feel that the firms we represent are looking after the interests of their employees. They are giving them work, they are looking indirectly after their families and their welfare. We feel that the board of trade, in supporting these firms and supporting their interests, supports indirectly the interests of their employees.
Mr Christopherson: Fair enough, but don't you feel it's a little presumptuous, given the controversial aspect of this legislation, to present yourself as being the one entity that represents both sides of the equation?
Mr Shepherd: I must say that on the surface of it, the statement that we represent the employees in any direct way is a little presumptuous. I agree.
Mr Christopherson: On page 3, I was interested to note that you state that you "further support the reduction from two years to six months of the period that a complaint can be made of moneys owed to an employee as well as the extension from 15 days to 45 days for filing an application for review of an order," and you note, "This administrative simplification and shortening of time frames for claims, but loosening of review application filing, moves further towards relieving the legislative burden on business while protecting the ability to appeal."
My question would be, that's fine for business, but what about the workers? Where do they get something out of that?
Mr Shepherd: We feel that the workers are adequately protected, and in fact we feel that the support of business and business enterprises in Ontario and their ability to do business and compete on an international and a national scale is a direct benefit to the employees and the population of the province.
Mr Christopherson: So whatever is good for General Motors is --
Mr Shepherd: If there's no business in Ontario, there's no business for the workers in Ontario either.
Mr Christopherson: I have to say to you, in closing my comments, that that really is a scary thought because we're well past, I would suggest with great respect, the idea that we have benevolent dictators who can decide by virtue of what crumbs fall off the plate when workers are doing well and when they aren't. That's the last century. We're at the point where individual rights of workers and the collective rights of workers have their own place in our society. I'm quite surprised that a sophisticated organization like yours and a person like yourself would suggest that that ought to be the order of our society.
The Chair: That sounded more like a statement than a question. Thank you, gentlemen, for taking the time to make a presentation before us here today.
Mr Shepherd: Thank you for listening to us.
INJURED WORKERS' CONSULTANTS
The Chair: Our next group up on our list is the Injured Workers' Consultants, Marion Endicott. Good afternoon. Again, we have 15 minutes for you to use as you see fit, divided between presentation and question-and-answer period.
Ms Marion Endicott: Thank you very much. Good afternoon. I have with me here Rebecca Lok, who also works at Injured Workers' Consultants. We've been before you on other occasions, usually having to do with workers' compensation, but to the degree that you don't know of us, we're a community legal clinic providing services to people who have had the misfortune to be injured at work and who are having troubles with their claims at the Workers' Compensation Board.
We are of course speaking to you today on the proposed amendments in Bill 49 to amend the Employment Standards Act, primarily from the perspective of what that means in regard to health and safety. Will this generate increased protection for workers or will this possibly generate more injuries at work? As well, we want to look at the question of how it will actually affect injured workers, if at all.
The main part of the bill that concerns us is the part that allows for the minimum standards of the act to be overridden by negotiation between the employer and the union. This is of concern because there is a reason for minimum standards. They have been put there through years of experience and debate which indicate that they are necessary. It is our prediction that in the negotiation that occurs around minimum standards, the net effect of that will be to dramatically increase the hours of work that workers engage in both on a daily basis and on a weekly basis, and that is our main concern about the effect of this bill.
I think we're all very aware of what a central issue hours of work has been in our industrial society. Over the last century it's been a key area of concern and we have learned collectively together that it's very important to have not too many hours of work, that when you overburden people with work they are fatigued and they don't have time with their families, they don't have time for leisure. They are unhealthy, unhappy people, and unhealthy, tired, fatigued and unhappy people are not productive and they are not safe. It's our sense that the effect of these proposed amendments will be to produce a greater number of injuries at work.
The other aspect of the bill that disturbs us is that it represents a part of a general trend to lower workplace standards. The lack of enforcement provisions in the bill indicates that employers will increasingly feel that, well, the legislation is there but they don't really have to pay attention to it. When you don't have enforcement by the government, when you have within the amendments the suggestion that workers have only a limited amount of time to put in a complaint, that they can't even necessarily get back all the money they are due, or if they want to go for all that they've got to go to the recourse of the courts, which, of course, is a very expensive endeavour for anyone and would very much tax the resources of a working person, particularly a working person who is, as in the case here, without money because they have been laid off without severance pay or have somehow had a problem with their hours of work. In this kind of situation we can see that many, many workers will not pursue their claims and, as a result, employers will increasingly feel that they simply don't have to pay attention to the legislation.
This is part and parcel of what is happening in other pieces of legislation that all fits into a general picture of lowering of standards for the working people of Ontario. The other area where I am most familiar with it is in the area of health and safety. You're probably aware that the enforcement of health and safety standards has dramatically been dropping over the last few years and increasing numbers of inspectors have been laid off, and without enforcement behind legislation there is absolutely no expectation that the employer should have to live up to those minimum standards.
Another aspect of these proposed amendments is really an unjustified denial of rights, and that comes into effect in the sense that many of the workers will not pursue their rights because they can't afford it, because they missed the time limit. Why might they miss the time limit? One reason is because they may not know what their rights are. Unless the government is going to put a tremendous amount of time, energy and resources into educating workers as to what their rights are, to put a time limit on their pursuit of those rights simply is unjust. It's saving money by fiat. It's not actually doing any justice at all.
In particular for injured workers there's a problem with the time limit. You may know that after injured workers have been hurt, there's a legislative obligation by employers to take them back to the place of employment, and that is in effect for a certain period of time, effectively about six months. Whether or not there is a legislative requirement on the particular employer, there's a general human rights requirement that injured workers not lose their jobs because of their injuries.
Say we have an injured worker who has gone back to their place of employment and, for whatever reason, the employer is doing this in order to meet their legislative obligation but they really don't want that worker back. So they find some reason to lay that worker off. The worker, however, suspects it's actually because of their injury and wishes to pursue this with the WCB. That is their right to do that. You may or may not know that the WCB is notoriously slow. To have a claim processed at the WCB can take months and months, if not years and years.
In this situation, say we had a laid-off worker who didn't get severance pay and wanted to pursue under this act their severance pay. If they went to pursue the severance pay under this act, with that time limitation, they would in the board's eyes be accepting their laid-off situation and would not be able to pursue their claim that they should have that job, because taking severance pay is accepting the situation.
On the other hand, if they pursued the claim with the board but it failed, the board did not find in their favour, you can be sure six months will have passed, but by then it's too late for them to put in the claim for the severance pay. I'm sure there are many more other examples but, as I was reading through this material, that is the most obvious one that sprung to my mind around the return-to-work provisions.
Finally, I just want to make a general comment, which is the exact opposite of the two gentlemen who were here before me, and that is, as a citizen of Ontario, just the general concern about the race for the bottom. The employers really like this kind of legislation, they say, because it allows them to compete. To compete with whom? To compete with the Third World. What we're saying is we want Canada to become like Macau, to become like Mexico, to become like any of those Third World countries we are competing with. Well, I ask you, and we ask you at Injured Workers' Consultants, do we really want that kind of society?
One of the reasons that companies like to invest in Canada, if we want to talk about it in business terms, is because even though it may cost a bit more per hour to employ a worker, this is a much nicer place. This is a place where you can live, this is a place you can feel good about and this is a place where we have healthier, happier workers who are in fact more productive. That's what the studies show. Both as citizens of this province and as people concerned about investment and productivity, really anything that lowers standards is not in our interest. Thank you very much.
The Chair: Thank you very much. You've left us just under five minutes, so we'll take two questions. The first one will be the government side.
Mr Baird: Thank you very much for your presentation. We all appreciate it. You spoke, I guess, comparing some of this legislation with health and safety and you specifically went into great detail on declining enforcement. You said that an increasing number of inspectors have been laid off. Is that correct?
Ms Endicott: Yes.
Mr Baird: What's your source on that, could I ask?
Ms Endicott: Just the news. In the last six months the number of inspectors who were anticipated to be laid off were not. That was due to heavy negotiations between the government and the union that represented those inspectors. So not as many inspectors were lost as was feared, which is great, but we're still losing inspectors.
Mr Baird: But you're a professional. You'd get better quotes. I guess it's a concern we have. There have been no health and safety inspectors laid off in the previous year, none. It never happened, there never have been plans to.
Ms Endicott: Oh, there were plans to. I can vouch for that. It may --
Mr Baird: I asked you for your source and you just said, "the news." I think it's very important to put on the record that this government hasn't, but that Bob Rae's government did, by 7%. They cut the number of health --
Ms Endicott: We were pleased with that. I have no quibble there.
Mr Baird: I would take, though, your energy with that and put it to my friends from the third party, because I can tell you, health and safety is a very top priority for the current Minister of Labour. She's made it the top priority within the department; there have been no cuts in health and safety inspectors. She's been crystal clear on that. We've repeated it at every available opportunity, because it's a real priority.
I guess I have a concern. You explicitly said that they had been cut, and I think it's important that folks like yourself, who are professionals and well-respected, as you should be with the incredible amount of experience you've got, have your facts, because this government hasn't cut the number of health and safety inspectors like the previous government did because we think it's more important than they did not to cut. It's a real priority for us.
Ms Endicott: I'm sorry, I have to intervene. This government has done nothing to satisfy us within the health and safety realm. It is true that the number of inspectors that were anticipated to be laid off were not laid off due to heavy negotiations, but we have not seen anything that increases the enforcement and there was very poor enforcement before. I'm not going to stand here and say it was good; it wasn't.
The number of critical injuries has gone up 28% in the last five years. I didn't bring those figures with me, but the number of inspections have dropped dramatically over the last five years. It includes the NDP government; it includes this government. They have dropped and they're dropping. If this government is serious about health and safety, and I didn't come here to talk about the health and safety legislation, I came to talk about --
Mr Baird: You did though.
Ms Endicott: Well, I talked about it in --
Mr Baird: In great detail about it.
Ms Endicott: Anyway, the point is that if this government is serious about workers' health and safety, they would really put a lot of resources into enforcement and not devolve everything to the joint committees at the workplace and they would get rid of experience rating at the WCB, which is a major factor in diverting employers away from health and safety despite their statements to the contrary, and instead put their energies into fighting claims.
Mr Hoy: Thank you for being here today. I was particularly interested in your conversation about severance and how it related to WCB and time lines and how one could jeopardize himself that way. I have to admit it's the first that I've been aware that could happen.
Further to that, I have had a number of constituents who don't understand their severance rights. You're quite right. People tend to know what the minimum wage is within a dime or a nickel or so and they know what the hours per week might be, but on some of these other issues I've had many requests, "What are my rights as regard severance?" So I appreciate your pointing that out to us.
Ms Endicott: Thank you.
The Chair: We're well over our time. Thank you very much for taking the time to come and make a presentation before us here today.
CANADIAN UNION OF POSTAL WORKERS
The Chair: Our next group is the Canadian Union of Postal Workers, Metro Toronto region. Mr Borch, good afternoon. We have 15 minutes for you to use as you see fit for questions or presentation. With that, the floor is yours.
Mr Robert Borch: The Canadian Union of Postal Workers is a national union. It more often than not falls under federal guidelines and jurisdictions. However, we also represent postal cleaners and various other groups in delivery-related functions that are respondent to provincial laws and regulations that guide the day-to-day worklife.
On May 13, when the Honourable Elizabeth Witmer introduced changes to the Employment Standards Act, she described them as housekeeping changes and implied that the alterations were to be minor and technical, the clarification of the existing regulations rather than the revamping of legislative procedures and language that would have a definite effect on workers in Ontario. Upon review, we found these alleged housekeeping changes to be quite major, with a detrimental impact on the cleaning industry at Canada Post and groups newly organized to ensure all workers with some very basic rights in Ontario.
The housekeeping amendment resulted in the polishing of employers' rights in Ontario so that they'd shine brightly, while at the same time workers' rights are either disposed of with the trash or swept under the carpet. Actually, this assault on unorganized workers, those truly dependent on assistance from governmental labour ministries, is even more serious as it will result in another roadblock to their basic rights as both organized and unorganized workers and has them remain at the abusive control their employers. At the same time, the organized workforce is deprived of some very basic rights which it had become accustomed to in Ontario for many years, decades in fact.
This brief is made on behalf of the Canadian Union of Postal Workers, which represents 65,000 workers across Canada, 20,000 of whom reside in Ontario.
(1) Flexible standards, section 3 of the bill: Prior to Bill 49 there were some very basic rights guaranteed in Ontario in which collective language could not be eroded by virtue of contractual negotiations where employers have an unfair advantage by way of such weapons as the legislative invitation to the use of scab replacement workers during industrial disputes.
Bill 49 allows collective language to supersede the basic standards in the arena of public holidays, hours of work, severance pay, overtime and vacation pay if the contract "confers greater rights...when those matters are assessed together." Talk about a way for lawyers to send their kids through university. This kind of language is what does it. This now allows for tradeoffs and a legalistic chess game that will see all those rights eventually eroded below the previous floor that was guaranteed legislative protection.
Under Bill 49 an employer could force an agreement but eliminate severance benefits or expand the hours of work, a safety issue, by enhancing overtime or vacation pay, making it easier for job layoffs and plant closures in Ontario, something we certainly don't need.
The basic rights previously respected are now carved away. Knowing well about the inequity in negotiating power that this government has encouraged in previous housekeeping arrangements, one need not be a rocket scientist to realize the effect that lay around the corner.
Employers can now put items on the negotiations table that were previously guaranteed and protected by law in Ontario. This will lengthen the negotiating process, stifle settlements for the weakest of those and at the same time encourage more disputes rather than enhance agreements between the parties.
At the same time it will starve small unions into submission, as legal costs will soar in order to establish the "confers greater rights...when...assessed together," which is the quite convoluted language of Bill 49. This housekeeping change in itself would be enough for us to stand up as postal workers to oppose the changes.
(2) Enforcement for the organized: Under existing language, a low-cost and efficient route is available for the parties to allow access to investigative procedures and to allow direct enforcement at the same time when it comes to such matters as workplace closures and the resulting effect on severance packages.
Bill 49 places a barrier in front of unionized workers, so this avenue previously enjoyed and often utilized is now blocked. Once again, this is a cost factor aimed at starving smaller unions into submission. Although the director can make an exception, it is at his or her whim, and unions will once again pay the price of this change. The resultant effect will be to encourage interunion turmoil by providing another avenue for individuals to challenge a trade union by deeming to have the Employment Standards Act included in collective agreements.
This amendment will mean that a union can be confronted with complaints with regard to the Employment Standards Act concerning the duty of fair representation. The responsibility with regard to the failure of enforcement will shift from employers to unions. With this change, the Ontario Labour Relations Board will be open to interpret such failure as a breach of the duty of fair representation, thus again opening the door to additional financial liability and even more congestion on the time of unions.
(3) Enforcement for the unorganized: This change would shift the responsibility for enforcement of minimum standards for non-unionized workers from the Minister of Labour to the courts, by way of the "other means" proviso. Also, the amount that is recoverable is capped at $10,000, whereas presently there is no arbitrary limit. If an employee chooses one avenue, such as to claim for severance benefits to the Ministry of Labour, by virtue of the proposed amendments that employee is restricted from bringing a civil action for payment in lieu of wrongful dismissal for additional compensation.
Postal cleaners who file a complaint under the act have a very restricted window of two weeks to choose between a remedy in civil courts or to proceed under the regulations of the act. This could leave many out in the cold or unaware of this window, and there are much shorter time frames than presently outlined in their collective agreements.
Under section 64.4 there is restrictive language in which, once a civil action is started, employers are given the bonus of not paying wages owed, which is criminal in this society; or failure to comply with successor rights, which is a major roadblock to postal cleaners. Also, a worker who initiates a civil action for wrongful dismissal is not allowed to claim severance or termination payments under the act.
(4) Ceiling on claims: The arbitrary maximum claim of $10,000 seems to apply to such matters as back wages, vacation pay, severance pay, termination moneys etc. This is perforated only by a few exceptions. What this does is license, basically, the boss to steal from workers, as often these amounts will exceed $10,000 where there was no cap before. If postal cleaners or truck parcel personnel are owed more than $10,000 in back wages, severance pay or vacation pay, then why would this government allow them to be robbed of what they are justly owed?
Often an agreed-to collective agreement may grant severance pay for a 20-year employee which in itself would exceed the $10,000 to discourage plant closures, massive layoffs and job losses, something I hope this government will be looking at. The minimum claim provisos of the proposal -- no dollar figure has yet been set -- will also be refused outright if they attempt to file a claim for wages owed to them by an unscrupulous employer. So both at the top end and at the bottom end the workers get the short end.
(5) Private collectors: The use of private collectors is a major error and is in lieu of simply having the employment practices branch do what they should have been doing all along: Collect assessed amounts owed and enforce standards. Penalties should be imposed against employers who feel they are above the law and refuse to pay. These penalties should be substantive and serious enough to be a deterrent. Rather than enforce the rules, the bill proposes to shift the burden to the private sector and attach a collection fee on top of it all.
Where the amount collected is less than owed to, say, postal cleaners, regulations would then be apportioned of the amount between the collector, the government and the employees. This puts a great burden on such low-paid workers. The danger is that those employees owed money who are at the low end of the wage scale may be required to pay fees to the new collectors as well, so they get less than is legally and rightfully owed to them and must pay a fee in order to get the deflated amount. Postal cleaners can't afford these systemic taxes on their money, nor can other workers at the low end of the pay scale. As they are starved into accepting less than is owed, they are at the same time taxed as being forced into agreeing to a lesser amount. Is it that the government of the day just does not want to hear from the working class in our society?
(6) Miscellaneous, but still important: Presently employees have two full years where they can be entitled to back pay from the date of the complaint being filed. This housekeeping change will reduce that period to only six months, thus again taking money from the workers' pockets. This time restriction is a major one which benefits the employers once again. Failure to meet the new six-month rule will mean, "Forget what you are owed or take the legal road," which is often out of the financial reach of postal cleaners or other low-paid workers in Ontario. Yet the ministry still is granted two years from the complaint date in which to investigate and two more years to enforce payments. Now tell me there is not a law for the haves and a law for the have-nots.
Conclusion: The Canadian Union of Postal Workers will not deal with the positive elements -- and we do recognize them -- of the proposed changes here but rather what we consider the problem areas.
The question of successor rights in the postal cleaning industry is a sensitive one, where contracts are breached simply by virtue of a company changing its name. This leads to contract talks that are never-ending and periods of potential constant labour unrest. In circumstances where these issues are to be dealt with by a third party, we believe that a panel should be used rather than a solo decision-maker, but I digress.
We also feel a floor on a minimum standard must be maintained not only to stop the erosion of the rights of the most vulnerable in a workplace -- which we call "the lame deer syndrome"; the wolves always stalk the lame deer -- but also to set a standard of living in our society in Ontario. We feel these alleged housekeeping changes are in fact quite major. They allow loopholes for employers to easily chop away at what at the present time are basic rights which Ontario workers have enjoyed for years.
The CUPW asks you to reconsider moving the burden of the promised tax breaks from the backs of the wealthy to the pocketbooks of the impoverished in our society.
The Chair: Thank you very much. That leaves us with three and a half minutes, so we'll get two brief questions. I believe the last time we ended with Mr Hoy, so it would be Mr Christopherson.
Mr Christopherson: Thank you very much for an excellent presentation. I enjoyed it. I want to ask you to embellish on the point on the fifth page, second paragraph, where you talk about flexible standards. Although that's being put off, there's no doubt in my mind it's coming back in a big way, so we need to be talking about it as early as possible. You state: "Employers can now put items on the negotiating table that were previously guaranteed and protected by law in Ontario. This will lengthen the negotiating process, stifle settlements for the weakest of those...and encourage more disputes rather than enhance agreements between the parties." Can you just expand on that, because I think it's important we have that on the record, as to why you think that will be the result.
Mr Borch: When you have employers at the negotiating table they have the power to end strikes or start strikes. When you're giving more power to employers there is more chance for them to want to starve the unions into submission. By doing that they enter long periods of negotiations and long periods of industrial action. They also have at their whim now, of course, the scab legislation that was introduced in Ontario where once again they can keep a company out on strike much longer.
You'll notice during the anti-scab legislation in Ontario that there weren't the strikes people thought there would be. In fact, there were fewer strikes, because all of a sudden you had to bargain; you had to sit down face to face with the boss and you had to bargain. There was pressure on both sides. When that pressure is lopsided, when the scales of justice are turned to one side, then you don't have that pressure on either of the parties to settle. In this case what you'll have is the employer sitting back, letting the strike happen and letting it go on as long as it wants and encouraging such a standard in our society, which I think is detrimental.
Mr O'Toole: On the same point, picking up on Mr Christopherson's, I would ask you to explain to me flexible standards. I've worked in a number of workplaces. Earlier on today we had a presentation from the Ontario Secondary School Teachers' Federation. They don't work a traditional 40-hour week. Police and fire don't work an eight-hour day. There are exceptions and exemptions today. I think for harmony in the workplace you, as the person in that workplace and involved in the collective agreement, have a duty and a right to make the best decisions for the hospitality industry or seasonal work, like Christmas rush at the post office; you don't man up. Could you respond to flexibility in that context. Do you think it's a good idea to have flexibility in the workplace and certainly input from both union and management of the workers?
Mr Borch: Not when that flexibility erodes basic rights, and that's a problem.
Mr O'Toole: No, no, no. Clause 3 clearly says "no less than." I think with all our smart people in Canada and in Ontario today, if I read section 3 it's very clear; it says in there if the agreement "confers greater rights." I think we can codify and quantify those rights. In a collective agreement they do it every day for relief time, sub time, vacation time; it's all codified. So don't tell me that with all the intelligence today in the unions and very competent leadership, they can't in their own workplaces quantify and codify these equalities so that there are no fewer rights for the individual worker. There will be different hours of work and tradeoffs, more time off from the workplace perhaps instead of overtime.
Mr Borch: Yes, it would be Utopia, I'm sure, in your eyes, but certainly --
Mr O'Toole: We'll get there.
Mr Borch: If you'll let me finish my answer, the fact is that the basic rights in Ontario will be eroded, because right now you have guarantees that cannot be fallen below. What you're doing here is laying a loophole for employers to ease out of those things. One round of negotiations they may take out two articles, the next round they'll pick out the other two articles, but in the end there will be a lesser standard of living for workers in Ontario and for society as a whole in Ontario.
The Chair: Thank you, Mr Borch. We appreciate your taking the time to come before us here today.
DONNELLY COMMUNICATIONS AND COMMUNITY DEVELOPMENT (TORONTO)
The Chair: That takes us to the last presentation of the day, Donnelly Communications and Community Development, Mr Don Young. Good afternoon.
Mr Don Young: Thank you very much for giving me the opportunity to speak to you today. My name is Don Young and I'm a consultant in communications and community development. I work with government and non-government agencies primarily. Most of my working life has been spent in the third sector or the social economy. I'm also one of those who feel that the Employment Standards Act is one of the pillars of our economic system.
Bill 49 is supposed to improve the Employment Standards Act, but in its present form it will do two things. It will provide maximum freedom and flexibility for owners and employers by making all employment standards negotiable. The definition of "standard" in the Shorter Oxford English Dictionary is "the authorized exemplar of a unit of measure or weight," like a foot, a pound, an inch, or the number of hours in a workweek. If standards are negotiable, then standards don't exist. As you've heard many speakers mention, it will weaken the position of unionized and non-unionized employees. I won't go into that right now.
The Progressive Conservatives want a revolution. Any party that calls its political movement a revolution has to live with the consequences. I'm not going to comment on the Common Sense ideology, but I would like to label it as capitalist fundamentalism, and like any fundamentalism it is intolerant of other opinions. I'm sure that the Harrisites among you will not listen to me, but for the rest of you -- for the NDP, for the Liberals and for the truly Progressive Conservatives -- I would like to offer a word of warning. This is the same kind of thinking that brought us the first Industrial Revolution. You might say, "Great, back to basics." But do you really want to go back to the basic exploitative relationships of the 19th century and, I might remind you, to the many political revolutions and the vast environmental destruction which followed? Personally, I would not like to see a repeat of the 19th century. Once was bloody enough.
Recently I have attended large public meetings of several hundred people where single moms have spoken emotionally about the need for violence and everyone in the room understood what they meant and sympathized, maybe even empathized. These were not meetings of radicals. They consisted basically of the middle class, middle-aged and middle of the political spectrum, or at least what used to be considered middle before the abrupt turn to the right.
No, I'm not going to talk about the politics of the Harris Conservatives because the consequences of their actions will soon present themselves most ineloquently. Harris wants government to step back and give free rein to private interests. Without the leviathan of government we will soon have a Hobbesian war of all against all. From the beginning of this revolution I have said that all of the money that the Harrisites save by dismantling our social safety net will eventually be spent on policing. I was interested to hear that Harris plans to build superprisons. In light of the Conservatives' other policies, this is a good idea. As in the States, when you have a significant percentage of your population in prison, it keeps your unemployment figures down.
No, I'm not going to talk about the politics, although I'm tempted to, but I'm going to talk about the economy under this particular piece of legislation. At a time when our economy is under attack by those who can mass-produce more cheaply elsewhere and when the true cost of transportation is not even factored into the price; at a time when we should be trying to make better things more efficiently rather than the same things more cheaply; at a time when everything is measured by its price and not by its true value; at a time when Canada and Ontario are becoming hourglass societies with the middle class disappearing down the funnel into a rapidly growing lower class; at a time when we cannot provide decent entry level employment for our young people and they are forced to join a disaffected underclass; at a time like this we should be raising standards, not making them negotiable. When you have nothing to bargain with, it only means a race to the bottom.
Why can't we enter the race to the top? The opportunity to change the Employment Standards Act should be welcomed by all progressive people. As in the past, during periods of chronic unemployment and economic crisis, we should be sharing out the work, making sure that everyone can earn enough to live. In this way we build a sound and sustainable economy, support civil society and our democratic political system.
The problem is that we have too much work for a few and not enough work for many. Some people are now working 60 or more hours a week to make ends meet and don't have time to enjoy the money they make. Many are unable to manage their work, personal, family and community responsibilities. This time squeeze has negative effects on mental and physical health. In Japan, deaths from overwork have become a chronic problem. Meanwhile, the number of unemployed and underemployed is rising.
Ontario is facing a jobs crisis of major proportions. The unemployed, the underemployed and the young are feeling increasingly marginalized and without hope for the future. The latest official statistics have climbed into the double digits and the real unemployment figures are about 50% higher. The official rate for youth is about 17% and estimated as high as 27%. Neither growth nor conservative economic policies have led to more jobs. Historically, a shorter work time has.
Between 1800 and 1950, the standard work week was reduced by an average of three hours every decade. Sharing the work ensured that labour-saving technology created leisure, not unemployment. After the Second World War, we abandoned this winning and proven strategy. Canada's level of unemployment has risen by about 2% a decade ever since.
None of these figures accounts for the growing army of the underemployed. In the past few years, I have met people working, even for the province, on three-month contracts which might or might not be renewed. In this way the government ministries do not have to apply the employment standards, provide benefits or give statutory holidays. Since then I have discovered that this is common practice in the private sector. Instead of employees, many companies have individual subcontractors or temps who have virtually no rights. Large corporations maintain absolute flexibility by out-sourcing grunt work to free-trade zones in the Third World and keep an army of overqualified, underpaid short-timers here to check and correct the substandard work.
The bottom has already fallen out of the job market and employment standards are dropping. The unemployment figures, which are already higher than they have been in years, do not tell the story of the growing number of underemployed and underpaid who are trying to earn a living under any conditions. Then there are the many who have simply dropped out and have joined the underground economy.
A balance between those who want to work more and those who would like to work less must be restored, along with a domestic balance between production and consumption. While exports are driving our current growth, domestic consumption is flat. But can we count on export markets indefinitely? When unemployment rises, consumer confidence declines. It is no accident that in recent years the number of bankruptcies in Ontario has increased dramatically.
Yes, we need a revolution, but a revolution to increase the quality of life for people of Ontario, not the quantity of things they can buy someplace else. We need permanent full-time work for as many people as possible and the security to afford well-made, environmentally friendly domestic products. One element in this new economic strategy is higher and stronger employment standards.
Therefore, I modestly propose that the following be included in any revision of the Ontario Employment Standards Act:
A reduction of the workweek from the current 48-hour maximum to a maximum of 44 hours per week; overtime of time and a half to paid after 40 hours.
An end to employers' exemptions from any maximum, as well as an end to the agreements between employees and employers to exceed any maximum. Exceptions should only be made in cases of emergency and in specific fields of work, as in the current act.
The limiting of overtime to a maximum yearly amount for each employee is another alternative. As long as this annual maximum is not exceeded, there could be flexibility in the way overtime is calculated; ie, overtime could be taken off in vacation or personal time in lieu of pay. Employees should also be given the right to take time in lieu.
The length of the standard vacation with pay should be increased from two to three weeks.
Whether they are temps, part-timers or on short-term contracts, the rights of all workers must be protected.
Last, but not least, the enforcement of standards should be strengthened, not weakened, and a public education program should be carried out to inform employees of their rights and employers of their obligations.
The North American free trade agreement and the rule of the Harrisites seem to have started a race to the bottom in terms of standards. I hope the members of this committee choose to do something to stop it.
Mr Hoy: Thank you for your presentation. You have examples and some philosophical approaches to your presentation as well. You talk about the underemployed and the young. There was a time when employers confided in me that people were cheating on their applications and stating they had more education than they actually had to get jobs. Now I'm hearing that the reverse is true: In hopes of getting a job, people are saying that they maybe don't have a PhD, or whatever degree it might be, so they don't appear to be overqualified. The fear of the employer is that if they ever had the chance to work where they actually were trained for they would leave. It is a changing time indeed.
You talk about overtime. I've had presentations from the public to me that they're not receiving overtime but yet do not complain about it for fear of losing their job. Your call for more enforcement would certainly help that out.
Mr Young: Yes. I think it's also important to have an education program. As was mentioned earlier, there are people who don't know what their rights are and I think it's very important that a public education program be conducted so people actually know what their rights are.
Mr Christopherson: I join my colleague in complimenting you on an interesting brief and the presentation tying in the specifics of what the government's offering. In the context of the broader philosophy, quite frankly, I think we need a little more of it so that all of this is understood in a context that's relevant. For those of us who are here and active in this business it's quite easy to see the whole agenda and to see the picture and where we're heading. There isn't much of what you've said that I would disagree with.
The one thing I would ask you to maybe focus on, because you say it in many ways, but not directly, just so it's there for Hansard for future reference -- many who have come forward have suggested that this piece, as it fits into the larger Tory agenda, is creating a society of haves and have-nots, that we're polarizing. I guess you referred to that when you talked about the hourglass. Can you just expand on that a little bit in terms of where you think we'll be in three, five, seven years if we continue with this kind of an agenda? What sort of society do you think we'll have vis-à-vis the one we used to have?
Mr Young: Obviously, if you're giving more power to the employers and taking away power from their employees, the bargaining position of the employees will decrease. I see on the broader agenda, as the previous speaker said, that we are attempting to compete with the lowest common denominator in terms of nations. We're trying to compete with the maquiladoras or the Brazils of the world, and what we should be doing is trying to compete with the Swedens and making products that people can be proud of having made and that are worth buying. I hope this agenda doesn't happen; I hope there is a turnaround, a rethinking. That's why I came today.
The Chair: Thank you, Mr Young. I appreciate your taking the time to come in before us here today.
Just a reminder to the committee members that the bus to Hamilton leaves promptly at 7 o'clock tomorrow morning from Queen's Park. If there's no other business to be conducted, this committee stands recessed until tomorrow morning, 9 o'clock, at the Sheraton hotel in Hamilton.
The committee adjourned at 1801.