Wednesday 21 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
Brant County Community Legal Clinic
United Steelworkers of America, Local 2859
Chamber of Commerce of Kitchener-Waterloo
Stratford and District Labour Council
Workers Repetitive Injury Support Team
Waterloo Regional Labour Council
United Steelworkers of America, Local 677
Canadian Auto Workers, Local 4304
Guelph and District Labour Council
International Association of Machinists and Aerospace Workers, Festival City Lodge 1927
Waterloo Region Community Legal Services
United Steelworkers of America, south central area council
Waterloo Public Interest Research Group
Guelph-Wellington Coalition for Social Justice
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 JohnHastings (Etobicoke-Rexdale PC) for Mr Murdoch
Mr John R. O'Toole (Durham East / -Est PC) for Mr Carroll
Mr DerwynShea (High Park-Swansea PC) for Mr Maves
Also taking part / Autres participants et participantes:
Hon ElizabethWitmer, Minister of Labour
Clerk / Greffièr: Mr Douglas Arnott
Staff / Personnel: Mr Ray McLellan, research officer, Legislative Research Service
The committee met at 0904 in the Valhalla Inn, Kitchener.
EMPLOYMENT STANDARDS IMPROVEMENT ACT, 1996 / 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. I'd like to call the meeting to order and welcome everyone to the third day of hearings on Bill 49, An Act to improve the Employment Standards Act. I'm particularly pleased that Minister Witmer has been able to join us here this morning for our deliberations.
BRANT COUNTY COMMUNITY LEGAL CLINIC
The Chair: With that, I'd like to proceed to our first speaker, Brant County Community Legal Clinic. We have 20 minutes for you today to divide as you see fit between presentation time or question and answer.
Mr Ian Aitken: Thank you for the opportunity to speak this morning. My name is Ian Aitken and I work as a lawyer with Brant County Community Legal Clinic.
One of the principles I think should be kept in mind in your deliberations is the concept of an honest day's pay for an honest day's work. The Employment Standards Act is in place, and the primary intent is to ensure that this fundamental principle is taken care of when people go out to work. It's our view that any amendment to the act that makes it more difficult for an employee to obtain money that is owed to them under the act or that leads to the result that the employee receives less money than they are owed is against that principle of an honest day's work for an honest day's pay and is against the intent of the act.
At our clinic, as in many of the clinics across the province, we provide advice and representation to individuals who often work at entry level wages or at minimum wage. One of the realities that our clients and we as counsel face every day is that these individuals have very, very few resources available to them to enforce their rights. They have very few resources available to them if for whatever reason they leave their employment or are forced to leave their employment. The reality, again, that we see every day is that loss of employment can be devastating to these individuals.
The reality today in Ontario is that quitting employment or being terminated from employment is devastating. It can create economic catastrophe for many of our clients. The reality is, if someone is terminated or quits employment, they've obviously lost the income from the employment. They also face penalties under the Unemployment Insurance Act and they are often ineligible for even general welfare assistance. So leaving employment, quitting or being terminated today in Ontario can lead to homelessness, loss of basic shelter and certainly inability to meet basic needs. Over the last two weeks I have met clients who have come into my office and are in exactly that situation.
Because of that reality, people who are working at a position where there are violations under the Employment Standards Act are put in a position where they are very, very hesitant to make complaints about any violations, the reality being that if they do make a complaint, they are concerned about being terminated. As I've mentioned, the consequences of being terminated are very devastating. The result is that many of these clients will continue to work even though there may be violations under the act. There is always the option, after they leave employment for whatever reason, whether they find another job or they're laid off etc, that they can then make a complaint and recover moneys, wages, that are owing to them.
The difficulty that we see with the restriction on recovering only six months of moneys is that individuals will be able to go back for a lesser period of time to recover any moneys that are owing to them under the Employment Standards Act. An individual could face a situation where they are working, there are violations under the act, and yet they continue to work for the income. They realize that the consequences of making a complaint may lead to a dismissal and they will be left in very difficult circumstances. For that primary reason, any reduction in the limitation in recovering moneys, certainly to six months, we feel is unacceptable.
The other reality is that many of our clients, as I've mentioned, do not have ready resources available to pursue a civil claim. Civil claims can be costly. Many of our clients are often in a situation where they are struggling to meet their basic needs and it's difficult sometimes to proceed with a civil claim when those immediate concerns are paramount. For that reason, the maximum of $10,000 available to be recovered and the restriction on filing the complaint under the act, or choosing between that and starting a civil claim, we feel would place our clients in some circumstances in a difficult position. Certainly in some circumstances our clients, employees, would be placed in a position where they would have to choose between those two avenues. The reality is that in some circumstances they would be forced, because of their circumstances, to accept less money than they are owed.
The two consequences of that would be, one, if the employee is not in a position to recover the full amount of what they are owed for violations under the act, the cost is shifted to the employee. That's money they are not going to recover. And in some circumstances, because it's not income in their hands, they could be placed in a situation where that shortfall would have to be made up by the public purse, whether it's social assistance or whatever.
It's our position that the cost of any violations should be borne as much as possible by the employers. If there is a violation, the employers should be responsible for paying the moneys owed. There should not be a shift in those costs to employees; there should not be a shift to the public purse.
For those reasons, the amendments that are proposed, specifically the six-month limit on recovery, reducing the maximum recoverable to $10,000, and the difficult restrictions and difficult choices that would have to be made as a consequence of choosing between filing a claim under the act or proceeding with a civil claim, should not be put into effect.
It's our feeling that if an individual goes out and does an honest day's work, they should get an honest day's pay. We feel the act provides some protection in circumstances where they do not get an honest day's pay, and certainly for the working people in our province and the reality of their circumstances, it's important to provide as much protection as possible. Any restrictions or reductions in the remedies or the amount of money they can recover is against the interests of working people. If anything, there should be more investigations under the auspices of the act and there should be more enforcement and more collection.
Mr Dwight Duncan (Windsor-Walkerville): Thank you for your presentation, Mr Aitken. One of the themes that comes up consistently is this notion of the reducing of standards, number one. But one of the things that concerns me is that the business community and others are looking for what they would term, I guess, a more efficient and better application of the law, and it strikes me that lowering the standards really doesn't provide for greater efficiency. My question to you is, because you deal with cases continually, would it be your view that the vast majority of employers in your community are good employers and that the people you deal with and the people your clients deal with are in a minority?
Mr Aitken: I can certainly speak from personal experience through my employment history and certainly from the contacts I've had in Brantford, and I've also had the opportunity of working in Kitchener and Toronto. I can't disagree with the comment that most employers are good employers, but the issue for myself as an advocate and the issue for my clients is, what are the remedies when I run into an employer who is not good, who is not providing me with wages or benefits?
Mr Duncan: Certainly, and that leads to my supplementary, and I asked this of a chamber of commerce group yesterday: Then why reduce the standards? Because it doesn't affect most employers. What they're doing affects a small minority of employers in terms of enforcement of minimum standards. My experience with this is, as an employer before, that the Employment Standards Act, of all pieces of labour legislation in terms of day-to-day business, is really one of the least intrusive statutes, and that if the agenda is one of enforcement, you can achieve efficiency without lowering standards. Would that be your view?
Mr Aitken: I would agree with that, yes.
Mr David Christopherson (Hamilton Centre): Thank you, Mr Aitken, for your presentation. First question, just so there's absolutely no doubt: I'd like your comments on the fact that the minister continues to claim that there is no reduction in the minimum standards guaranteed to workers under Bill 49. Do you agree with that?
Mr Aitken: I'll respond in this way, sir. Certainly it's my view that the reality in terms of our clients is that at the end of the day they will have less money in their pockets in certain circumstances, and it's our view that if that money is owed to them by employers as a result of their "sweat equity," they should receive that money. So clearly in that sense there's a reduction in standards.
Mr Christopherson: Well, the question would be very broad, it would be in any sense, because the minister and certain members of the business community continue to suggest that there is no loss anywhere whatsoever, that there might be a shifting or a massaging, but that there's no direct loss. We've made it very clear that our position is that of course there is, there are rights and minimum standards that have been dropped here, and at the end of the day workers have less protection than they had in the existing bill.
In the short time I have left I'd like to move to the issue of the two years down to six months. Again, we hear from certain members of the business community and the government that the employee has a responsibility to make a claim in a timely fashion. We've continued to suggest that there are circumstances where workers don't have that option of immediately making a claim for all the reasons you've mentioned. We've heard that in Toronto and we've heard it in Hamilton. Could you just expand on the kinds of circumstances where six months is not fair to employees because, given their personal circumstances, they cannot make a claim or may not be aware that their rights have been violated?
Mr Aitken: It's a fairly common occurrence and I think I've tried to address that circumstance, but I have had contact with employees who will contact the clinic and inquire as to their rights under employment standards, sometimes to determine what those rights are, whether or not there may be a violation and what the remedies are. We respond and tell them what their remedies are under the legislation and we advise them of how to proceed with a complaint. But as I've indicated, there is a concern on the street with employees that if they make a complaint, there is a possibility that the complaint will lead to difficulties in the workplace. This is the real world and people sometimes, believe it or not, end up losing their job or are terminated for reasons other than are appropriate.
Usually the response of the client is, "Can I make a complaint after I leave?" We advise them that yes, they can, and their rights are not prejudiced. But if there's a reduction to a six-month period, that decision about when to make a complaint becomes more immediate and, as I've tried to point out, it can be very devastating.
Hon Elizabeth Witmer (Minister of Labour): Mr Aitken, thank you very much for your presentation. Obviously our concern is that we collect as much money from the employer community, and as quickly, as possible. What we're attempting to do within the bill endeavours to do exactly that.
You've expressed concern about employees coming forward and acknowledging and reporting violations. Do you not tell them that there is an anti-reprisal provision within the Employment Standards Act at the present time? Do you not tell them that the employment standards program will investigate anonymous claims? Do you not encourage them to report employers as quickly as possible when there are violations in order to ensure that other people within that workplace receive the appropriate protection?
Mr Aitken: Yes. The reality of our clients' situation often is that their immediate and primary concern is to ensure that they maintain their employment. The reality that we face and our clients face is that they are concerned about losing their employment. Yes, there are reprisal provisions. Our clients are still concerned and, as I've pointed out, when they balance the opportunity and the protection under the act against the reality that if they are terminated they will be very possibly without any income for a substantial period of time, the decision, although it can be difficult, is often to stay in employment, tough it out and try to obtain a remedy later. That is the reality we see and that our clients deal with. Certainly I appreciate there are provisions under the act for protection.
Hon Mrs Witmer: Exactly, and I think you do have the responsibility to inform your clients. As far as the six-month time line, as you know, that is very consistent with the majority of the provinces across Canada. Our attempt is to ensure that violations of the act are reported as quickly as possible. You know that the longer we wait, the more difficult it is to obtain evidence, the more difficult it is to get first-hand, accurate information from witnesses. What we want to do is make sure that employers who are violating the act are reported as quickly as possible and that people are compensated. That's the reason for the reduction in the time line. As I indicated to you, it's very consistent with other provinces.
We are not happy that at the present time we are only collecting about two thirds of all of the orders to pay. We want to make sure that we get the money into the hands of the most vulnerable employees in this province as quickly as possible. That's the reason for the changes, and these changes will accomplish exactly that.
Mr Aitken: I appreciate your comments. I disagree that this will be the effect of these amendments.
Hon Mrs Witmer: Do you have a better solution as to how we can get more money into the hands of employees and how we can get more money from employers who are violating the act?
Mr Aitken: As I mentioned in my presentation, the solution may be to put more resources in the hands of the people who are enforcing the legislation. How we can get more money into the hands of vulnerable people by reducing the amount of time that they can claim is beyond me. It strikes me as odd that reducing the right to get moneys will somehow get more money into their hands. The reality is that people will be faced with a choice where they have to make a decision after six months as opposed to two years. It would be easier in any type of enforcement situation to say, "Well, we're not going to enforce for two years; we're only going to enforce for six months." It will make it easier, but it won't put more moneys in the hands of vulnerable people. It just doesn't make any sense.
The Chair: Thank you, Mr Aitken. Unfortunately our time has expired, but I appreciate your taking the time to come before us and making a presentation here today.
Mr Duncan: On a point of order, Mr Chair: Can I place a question with research counsel?
The Chair: In writing, Mr Duncan.
Mr Duncan: We have had contradictory --
The Chair: That's my ruling, Mr Duncan. Sorry, that's my ruling.
Mr Duncan: We have had contradictory evidence with respect --
The Chair: Mr Duncan, excuse me. You're out of order.
Mr Duncan: -- to other provinces. I think it needs to be asked because we've had contradictory evidence placed by --
The Chair: Mr Duncan, you are out of order.
Mr Duncan: We've had contradictory evidence --
The Chair: Mr Duncan, what part of what I just said don't you understand?
Mr Duncan: -- asking a question --
The Chair: In writing, you may pose any question to the research assistant.
Mr Duncan: I would like to pose it verbally because we've had contradictory evidence presented to this committee and I would like to raise it publicly so that people can know. A witness appeared before this committee who contradicted the evidence that's been presented on Monday with respect to Ontario relative to other jurisdictions on the minimum standards. That was the professor from Osgoode Hall law school, who's an expert. I simply would like to place publicly a request that her response and the response of the minister be brought together for the committee so we can determine for ourselves which response is more accurate. It's in the interests, I think, of public discussion and public debate.
The Chair: You've placed your question, Mr Duncan.
Mr Duncan: Thank you.
The Chair: And you're out of order.
UNITED STEELWORKERS OF AMERICA, LOCAL 2859
The Chair: We'll move on to our next group, the United Steelworkers of America, Local 2859, Mr Beveridge. Good morning. Thank you for joining us, and again just a reminder that we have 20 minutes. You can divide it as you see fit between the presentation time and question-and-answer period.
Mr John Beveridge: Thank you very much for allowing me the opportunity to speak before the forum. Hopefully I'll keep us on track and keep you on schedule.
My name is John Beveridge. I'm the president of Local 2859 of the United Steelworkers of America, which represents 500 hourly workers at a BMW facility in Cambridge, Ontario. It's also a noteworthy point to mention that this employer employs an additional 800 salaried and non-unionized workers, and the Employment Standards Act affects both groups of employees equally.
I'm also very active in the community. I sit on the board of directors for the Cambridge United Way. I've had various involvements with the community agencies, those that deal generally with the unemployed and the assistance of those unemployed, so I think I can speak to the issue of vulnerable people in Ontario with some personal experiences.
I feel compelled to come before this committee and speak out on Bill 49 because I think it's wrong for the workers of Ontario and it's a regressive piece of legislation that exposes those vulnerable people in the workforce. I'd like you to consider my comments and those of the other people who come before you today and make the necessary changes to do the right thing in Ontario.
I'd like to suggest to you there was a reason originally for the act that's presently in force. There were no common standards at one point in time in Ontario and people, as a result of the lack of common standards, were vulnerable and exposed to situations that legislators saw fit to correct. The importance of that act is fundamental in the labour relationship in Ontario.
Section 3 of the bill, which I'd like to refer to, is the flexible standards. There's an erosion of those common standards that each and every worker in Ontario enjoys. That's the protection of hours of work, vacation pay, entitlement to severance pay and entitlement to public holidays. If you remove that or diminish that or if you make that flexible, that's a regression for the workers of Ontario. Whether they're unionized or non-unionized, they're equally affected by those changes.
With respect to unionized environments and the collective agreement situations that exist in those environments, the Employment Standards Act will be imposed directly into those collective agreements and will be enforceable and investigated through the provisions of those collective agreements. Mainly, that's the grievance and arbitration procedure.
Through the grievance and arbitration procedure, it's the union that bears the onus of the investigation and the carriage of the enforcement and likewise the costs associated with that. Presently unionized employees enjoy the powers and investigative abilities of the employment standards officers in the employment standards branch, and that will be downloaded to the unions with considerable detriment, I might suggest, to the unions' ability to function. It also leaves the unions exposed to fair representation claims on these issues that have never been exposed to the union before.
I understand that on Monday the minister retracted certain sections of Bill 49. However, I'd like to speak to those proposals that have been retracted because I think they are still very active and they'll come back through the employment standards review. That's of major concern to unionized workers, and particularly those unionized workers I represent here before you this morning.
In the collective bargaining situation whereby you can bargain away certain rights it's going to cause some major problems. A lot of times the collective bargaining process is somewhat of an adversarial process. My personal situation is that last year we had a labour dispute that lasted 21 days based on a proposal that the membership of the local union I represent was not prepared to accept. If you put yourself into a situation whereby those rights and conditions we've enjoyed now become a question of bargaining proposals, I think it will only ramify those labour disputes and enhance that adversarial relationship. That's not the relationship we wish to obtain. These are tough times, and we wish to work in a coherent fashion with employers and retain exactly what we have today.
I have a problem with the time limits, as the previous speaker has spoken towards, the six-month time limit for making claims. I know a young Vietnamese gentlemen who's allowed me to use his story as long as I don't use his name, for fear of reprisals with his present employer, as a matter of fact. That young gentleman came to this country as a refugee and was successful in obtaining some employment in a small automotive manufacturing facility in Cambridge. His English was very poor, his knowledge of the working ways of the land was very poor and as a result of that his employer failed to provide him with statutory holiday pay for a period of one year. When he left that job and he discovered at that point in time that in actual fact he'd been duped, he went to the employment standards branch and through the officer was successful in getting what he was legally entitled to. Under these proposals, that situation wouldn't exist because of the six-month rule; he'd only be entitled to claim back to six months. This denies that individual, I believe, what's rightfully his. I think that's wrong.
These are the most vulnerable people in Ontario. These are the ones who need the maximum protection they can possibly get. You might say they have an avenue for civil litigation. Again, these are the most vulnerable people who don't have the natural resources and who have been denied statutory rights and the moneys they're owed under the employment contract. I suggest to you that it's very difficult for them to proceed with a civil action and to be successful.
Then, if it's the involvement of a collection agency to collect those funds, the proposals in Bill 49 allow for a fee. Again they receive less than what they're legally entitled to. I suggest that's wrong. I don't believe that's the intent of any piece of legislation, when it's intended to correct, to make it administratively easier to steal money from the most vulnerable people of Ontario through privatized collection agencies. I don't believe that's the answer. I believe that the answer is stronger enforcement of the act, more resources applied towards the enforcement and the collection of that rather than exposing and condoning unscrupulous acts on the part of the employers.
The hard fact and the hard reality of this is that there are unscrupulous employers out there and that these things will take place, and they need protection from individuals the likes of yourselves. I cannot confer enough to you how important it is to protect these individuals. Unionized workers have some protection through collective bargaining and through the labour and arbitration process. But that throws us into a black hole likewise. If any of you have ever dealt with arbitrators, and I've dealt with a few of them, jurisprudence for arbitration matters doesn't happen overnight. It takes a long time for that to be established. In an area where the employment standards officer already has great tools, has jurisprudence before him, you're throwing that in the area of an arbitrator who's never, ever been exposed to that area before. That can only lead to labour disruptions. That's not the correct way to move on this.
I see the contracting of the private collection agencies as a download of the responsibility that the Ministry of Labour currently bears towards the employees, whether unionized or non-unionized, in the province of Ontario. That's the responsibility; that's what people expect from their government: that their government is firmly behind the statutes that are in place and that the government will enforce to the fullest of its abilities and collect those moneys. The privatization of the collection of those moneys ensures that the full amount is never collected, based on the fee.
The Minister of Labour has just said to the last people who presented here that the goal is to collect the maximum and to get the maximum amount of dollars into the hands of the vulnerable, and I agree with that, but this bill doesn't do that. This bill reduces that to something much less than the maximum and that's not correct. That's completely wrong. That goes to encourage unscrupulous employers because if you go through the collection process and the negotiating process that'll take place, something less than the full amount will be collected and that doesn't help. People will be forced through the process and the length of time that it takes and the need for the dollars and the need for the immediate retention of those dollars will force people to accept substandard agreements, substandard settlements and encourage people to continue to break the minimum standards. I think the penalty should be severe and the penalty should be swift for those who break the Employment Standards Act.
I know that the ministry still has the two-year provision to investigate and the ministry has a two-year provision to collect moneys. If an employee pursues a claim of less than $10,000 through the ministry and seeks the ministry's assistance on this, it could be potentially four years before any individual sees any money. I think that's wrong. That's very wrong. The minister has already claimed that the intent is to get the maximum amount of dollars in the hands of the vulnerable. Four years, I suggest to you, to somebody who's just been six or seven months without an income is a long, hard row to hoe. That's wrong and I think that has to be changed.
I think the act makes those rights that each and every one of us has come to enjoy in the province very, very difficult to obtain through some of the avenues that I've just highlighted to you, and particularly the collection avenue and the right to civil suits.
I don't believe that the contracting out or the privatization of this thing is the correct thing to do. I think additional resources into the hands of the employment standards officer is the way to go to enforce the minimum standards that the Employment Standards Act should contain.
Through my experiences in the labour movement I've met many individuals who will recall the times when there was no such thing as minimum standards and they'll recall the times when things were very difficult, and I'm sure each and every one of you has listened to an elderly person say this to you. That's exactly what we're hoping to retain here. I don't believe that old business people sit in a room somewhere and say: "Do you remember the times when it was easier to exploit your workers? Well, let's get back to those times." That's what this bill does. This bill exposes those workers. I don't believe that's the type of province that we want and I don't believe that's the type of philosophy that we'd like to foster between management and their workers. A cooperative fashion is the thing that we'd like to have between workers and management.
So I suggest to you very strongly that you have a look at what's before you, that you hear the submissions very clearly and that you do the right thing, you protect the vulnerable people of Ontario and you change Bill 49. Thank you very much.
The Chair: Thank you, Mr Beveridge. We have one and a half minutes per caucus. The questioning this time will commence with Mr Christopherson.
Mr Christopherson: I'm sorry. What was the time, Chair?
The Chair: One and a half minutes.
Mr Christopherson: Thanks very much for your presentation, John. You're going to probably hear the minister for the balance of the morning, certainly her government members have, talking about the fact that if they can collect half a loaf or two thirds of a loaf in terms of money owed to employees, they ought to consider themselves lucky and be grateful that they're getting that much rather than accepting the fact that 100% should still be the goal. They will suggest to you that by going after collections through a private agency, they're going to get more of those dollars.
Do you think it's fair to say that if the government were really concerned about making sure that employees didn't get ripped off in terms of money they're owed, particularly when there are bankruptcies, which is the majority of the money that doesn't get collected, that they wouldn't have gutted the employee wage protection plan in the first place which was there for that sole purpose?
Mr Beveridge: I absolutely concur with you, Mr Christopherson, that the reduction from the $5,000 level to the $2,000 level seriously inhibited the ability of employees to get what they're intended to, what they're rightfully owed. I don't think they're interested in the protection and putting the moneys into employees' pockets.
Mr Christopherson: Would you also say that it's the position of your local union that the government ought not to accept that 75% is okay, that it ought to be 100%? As we heard from the previous presenter, people want the money that they're owed. The exact wording he used was "an honest day's pay for an honest day's work." This is money they're owed. It's fair to say, I think, that if they don't get that money, it's been stolen from them and if you know where it's coming from, there's an obligation on the part of the government to ensure that money's collected. Is that not why there are minimum standards in place, the workers' bill of rights, the Employment Standards Act, in the first place?
Mr Beveridge: That's absolutely right, and I concur again. My local union believes very strongly in a fair day's pay for a fair day's work. We bargained towards that and that's the philosophy that we do in fact work under. Anything less than 100% that's owed to any individual is unacceptable. Absolutely correct.
Mr John R. Baird (Nepean): Thank you very much, sir, for your presentation this morning. We appreciate the time you took to prepare it and to come and see us.
I just want to clarify one point, that two thirds of orders now aren't collected. We're only collecting 25 cents on the dollar on average, $16 million of $68 million. We find that unacceptable. That's not something that radically changed over the last year, though. That's something I think that's been an ongoing problem for successive governments and all parties, not a partisan level.
During the previous government, they were only collecting 25 cents on the dollar. In 1993, the previous government disbanded the collections branch at the employment standards division, displacing 10 workers, saying, "We're not going to do that any more." The regrettable notion is that the collections didn't go down. Particularly in the long term they went down to about 20% or 15%, but went up to 25% within a period of time.
So I guess if I had a question, it would be : Are you satisfied with collecting 25 cents on the dollar and do you think we've got to do a few little amendments? If it was so easy to collect more just by putting more money into employment standards, why wouldn't successive governments, the Liberal government, the NDP government or the Conservative government just do that if it was just a matter of putting more money?
Our feeling is that we've got to bring some major changes in to do better because we're not satisfied with 25 cents on the dollar. We're not satisfied with two thirds of orders not being collected. We think we've got to do something really big to shake things up to ensure that we do a better job for workers.
Our goal is 100%. We want to see every dollar owed to every worker returned to them and we're going to work towards that goal and we can certainly do better than 25 cents on the dollar, I can tell you that, and I'm ashamed to admit that it's only 25 cents on the dollar.
Mr Beveridge: I find myself agreeing with you with respect to less than 100% is unacceptable and that 25 cents on the dollar is an unacceptable level of recovery. There's no question about it.
I disagree with you, however, that the remedy is throwing just more money at the situation. I understand that your government's involved in fiscal restraint in all areas that the government's involved in, but the abilities and the powers of the employment standards officers to enforce and to collect and expedite are the things that this government should be looking at towards this bill. It shouldn't be looking at private collection agencies and less than 100% being acceptable. That's exactly what Bill 49 does and I disagree with Bill 49 based on that.
But I do agree with you based on the 25% of the claims and less than 100% is acceptable. I think the standards should be the enforcement officer is the one with the powers and the abilities. So if you're going to change the bill to reflect what you've said, then change the act to reflect the increased powers of enforcement and collection for the employment standards branch.
Mr Duncan: On Monday, the government was suggesting that in fact the real problem or a major part of the problem with respect to collections is the placement of wages relative to bankruptcy. On Monday they were saying that in fact it's the federal government's fault for not looking at that. Would you concur that a lot of the wages that do go uncollected are a result of bankrupt employers and employers who just close shop and it's not enforced at the federal level?
Mr Beveridge: The majority of the information that I've seen on this subject clearly states that the biggest portion is as a result of the bankruptcies and the inabilities to collect, particularly when the labour individual doesn't rate as a preferred creditor.
Mr Duncan: If I can, just by way of supplementary, a government that's cut 45 employment standards officers and 26.6% of its enforcement budget in that branch in its operation without a business plan, do you think that makes sense if they tell you, on the one hand, they want to increase and, on the other hand, they're taking away resources?
Mr Beveridge: It makes absolutely no sense and they're talking out of both sides of their face as a matter of fact.
The Chair: Thank you, Mr Beveridge for appearing before us here this morning. We appreciate it.
Mr Beveridge: Thank you.
CHAMBER OF COMMERCE OF KITCHENER-WATERLOO
The Chair: Next up will be the Chamber of Commerce of Kitchener-Waterloo. Good morning. Welcome to the committee. We have again 20 minutes for you to divide as you see fit and I wonder if you'd be kind enough to introduce yourselves for our Hansard reporter, please.
Miss Rosemary Rowntree: My name is Rosemary Rowntree.
Mr Jim Berner: My name is Jim Berner. I'm the chairman of the labour subcommittee for the federal and provincial affairs committee of the chamber of commerce.
Miss Rowntree: Mr Chairman, Minister and committee members, the chamber is appreciative of the opportunity to make this presentation to you and submit our report. Thank you for inviting us to this important forum.
Like Mr Beveridge, to a person the chamber of commerce is committed to ensuring that we have an Employment Standards Act that is fair and just for both employer and employees. We want to see this act evolve, as it should naturally, into a win-win situation.
Throughout the report and our presentation, we've adhered to the assumption that the changes in phase 1 are strictly administrative and that they're for clarification purposes. We understand that phase 2 yet to come, and there will likely be discussions yet on that, will be more substantive issues dealing perhaps with benefit levels or tradeoffs and negotiations. So our comments today are based on the administrative issues as we understand them being presented.
I'll briefly outline five of the main changes that we see that we quite agree with and then Jim Berner will go over a couple of the prime concerns that we have with the proposed changes.
First of all, as an overview a general comment: We quite agree with the need for change and the three stated objectives in phase 1 that Bill 49 has. We don't want to see benefit level changes. We'd like to see the clarification and we see the objectives being met through this proposal.
The five areas that we are quite in agreement and want to comment on are the limitation periods, the claims amounts, the choice of procedure, the collections and the access to electronic records.
In the limitations period there are two aspects here: First, we quite agree with the proposal to limit the entitlement period to recover money under the act to six months instead of two years. We see this putting the onus on the complainant to move in a timely fashion and we're concerned that delays will often result in longer and more difficult investigations, therefore more cost as well.
The second angle to the limitations period is the time change from 15 days for an appeal to 45. We see this as allowing cooler heads to prevail, to putting judgement into the appeals rather than emotions and easing that frantic scramble for everybody to get their act together within a very short period of time. We also see that this change in appeal days and the accompanying opportunity for legal advice will lead to a reduction in unnecessary appeals.
Under the claims amount, we quite agree with the proposed maximum of $10,000 per order and see no significant harm to individuals who wish to claim beyond that point.
We are particularly pleased with the choice of procedure, that claimants must go either through the court system or the employment standards system. We see this eliminating the possibility of duplicate and simultaneous claims. The multiple forums that individuals and employers must go through is costly and we see a reduction cost there in both the private and public purses. We see the workload also on the court system and the employment standards system being reduced through this measure.
In addition, we have known occasions where simultaneous complaints are made to the court and the employment standards system and a whiplash effect comes into play where one decision or one proposed decision may be played off against the other.
The collections being proposed to be put over to specialists is particularly interesting to us. We'd like to see the employment standards officers doing what they do best: investigation and enforcement. We'd like to see the collections put in the hands of specialists.
Finally, on the access to electronic records, we've no problem with that. We want to make sure, though, that the government puts in place some kind of a method to ensure that those records that are revealed are pertaining to the complainants only and that the privacy of the parties is protected.
Now Jim will address the two concerns we have with some of the changes.
Mr Berner: We have primarily two concerns, the first being that we take issue a bit with the two-stage performance and, second, the powers given to the arbitrator in union settings.
The two-stage reform: We don't quite understand the need to introduce change in a two-step process. We thought it would be better to have the presentation in one complete package. However, it has been decided to do the two-stage reform and so be it.
Arbitrator jurisdiction: On this issue we have numerous questions that are left unanswered in the proposed changes, such as: What is the arbitrator's role, who are the arbitrators and is there a list of approved arbitrators such as the list approved by the office of arbitration through the Ministry of Labour? Does the government envision an arbitrator in the same way as the labour act sees a settlement officer? What is the method of appointment? Are the arbitrators approved by the involved parties or are they appointed by the government? Also, we'd like to have a process to appeal or review an arbitrator's decision clarified.
We posed these questions to highlight the ambiguities of this position. The competency of the arbitrators hangs on the answers and hence the issue of the arbitrators' powers must be re-examined.
The concept of a mediator is preferable to an arbitrator as it exudes an image of win-win and helps to eliminate the confrontational posture that may be prevalent in the grievance procedures. This area needs considerable clarification.
In conclusion, we support your proposals and the change to the act and recommend only minor clarifications to improve it, being Bill 49. We do find it curious that the government wishes to divide the administrative and substantive issues into two phases, however. We respectfully submit our report.
The Chair: Thank you very much for your comments. That leaves us three and a half minutes per caucus. First up this round will be the government. Minister.
Hon Mrs Witmer: Thank you very much for your presentation. We certainly appreciate the effort that you have put into this.
I guess I'd like to deal with your concerns and your concern that we've done this in two stages. As has been indicated, the initial stage is primarily to deal with efficiency in administration and certainly to encourage collection. As we've indicated, we want to get more money into the hands of the employees much more quickly. We then feel it would be appropriate to do a complete review of the act, and obviously all of the information that we're going to be acquiring over the next three weeks is going to be very beneficial. It's going to help us to prepare the discussion paper and that's why we're doing it in two stages. We feel that the changes that are being proposed right now can be dealt with quite quickly and they certainly will enhance the administration and the efficiency of the act. So that is the reason for that.
You've expressed some concern as well about arbitrators. You've raised some issues here, but what is it that you are specifically concerned about in this area?
Mr Berner: We're concerned that they might have powers that they shouldn't have. In other words, they're given all the powers of an officer of the Employment Standards Act and I'm not so sure that they should be in that position. They should be more in an arbitrator's position, like not -- how can I put it -- not so much investigating etc. We prefer a mediator to mediate the dispute rather than going ahead and making judgements that should be the judgement of the officers of the ministry.
Hon Mrs Witmer: Okay. I guess that being the case, and obviously you would be most supportive of the new powers that we've actually given to the employment standards officer, and that is, we have given the officers the power to mediate and resolve disputes between the employers and the employees without a lengthy and very extensive investigation. So this is certainly an attempt on our part to again ensure that we build a strong relationship between employer and employees and we feel that when parties have this opportunity to resolve issues, they are more committed to the outcomes. I guess that's the approach, that you would prefer mediation then.
Mr Berner: Yes.
Mr Duncan: First of all, with respect to the two-stage process we concur with you and feel that everything should have been done in one package. We said that in the second reading debate in the Legislature.
Two, with respect to the issue of arbitrators some of the changes that they have made, I think we are supportive of around the ability of an employment standards officer to mediate, for instance.
I guess again the question I have, and I've placed this to other chambers and other business representatives, is, most of your members, at least the members of chambers that I know, never have to worry about these things. They really don't. They pay their employees. It's really, relatively speaking, a small number and there's a very real concern that whether or not it was deliberately intended, the fact is, and there's been evidence day after day now, that minimum standards in Ontario -- the limitation periods, the entitlements, the restriction on recovery -- really do leave those most vulnerable workers in Ontario more vulnerable than they were.
Would you concur that those minimums for the vast majority of your employers, and I am one who was and have operated under this statute, aren't going to be affected by those statutes and that in fact I don't think anybody would disagree with the notion of improving how we enforce an act, but that we don't have to reduce minimum standards to do that?
Mr Berner: I don't think it's the intention of the government to reduce the standards. According to the material that we reviewed, it said the primary concern was the protection --
Mr Duncan: Sure, sure. But there's been ample testimony -- for instance, say somebody is owed $20,000 and it may be a small number, isn't this statute designed to protect that small number in these clauses?
Mr Berner: Quite likely, but I think you'll find too that people who are after the $20,000 are not the most vulnerable. If they need $20,000, they're making a good buck to start with.
Mr Duncan: With all due respect --
Mr Berner: Is somebody going to hold back a year's wages on them?
Mr Duncan: With all due respect, if you're owed a year and a half's wages and it's $20,000, that's not a good buck. It's probably below minimum wage. So I think those people are vulnerable. I guess what I'm concerned --
Mr Berner: Yes, but the $20,000 is the award, it's not their salary. Their salary's a certain amount and --
Mr Duncan: It's what they're owed.
Mr Berner: Yes.
Mr Duncan: It's what they earned.
Mr Berner: Which would be what, time and a half would be --
Mr Duncan: Then you don't think that restriction is a limitation? The government in its own bill calls it a restriction on recovery of money. So the chamber of commerce here doesn't see that as a restriction?
Mr Berner: It's a restriction, I believe, on the employment standards officer's right to make a ruling. They can still go through the courts and recover --
Mr Duncan: But the argument that's been put is that that's more costly. Frankly, it may cost society more. We may not see a savings. Courts are very expensive; lawyers are very expensive. In fact what the government may be doing is penny wise and pound foolish. That is, you save a little bit here, but now even assuming a worker can access the courts, and there's an issue around accessibility of the courts, even if you can access the courts, maybe that's not the most efficient way of resolving these things.
This is part of the contradiction that we see. On the one hand, we want to give employment standards officers the ability to mediate, but on the other hand we want to further backlog the courts. In our view, there's a mixed message there. What we would like to see, and we agree with you, is a complete review of the act in its entirety. We think that you can find administrative efficiencies without penalizing or without making people more vulnerable. The evidence to date right in the government's own bill: restrictions.
Mr Berner: I'm not sure it's doing any harm. As a matter of fact I think it will improve the administration, which is what you want. It'll make the act more understandable, which is what we want, as well as the workers should know their rights and their ability to take whatever action they have to, and to make the act more understandable will certainly bring that along.
Mr Christopherson: I find it encouraging, fascinating and helpful that you believe that this should be done in one step as opposed to two. Certainly we've been calling for that, the opposition parties. Certainly everybody who represents workers that have been impacted and are losing rights under this bill believes that it ought to be done in one review.
The minister hasn't listened to those arguments. Maybe she will listen to the chamber of commerce in her own backyard. We can only hope. She's pulled back already part of the bill. It wouldn't take that much more to pull back the rest, cancel the hearings and get on with doing a proper public review of the entire bill, so that we know what the agenda is, both public and hidden. We'll wait and see whether she's listening any more to you than she has to us.
I would also like to raise the issue of your statement that you do not want to see changes to the minimum standards for workers. I just have some difficulty understanding how you can believe that Bill 49 doesn't take away rights of workers, because I'm hearing you say that if you did believe that, then you wouldn't support the bill -- at least that's the conclusion I'm drawing.
You've heard this morning if you were here earlier, and certainly we've heard in Toronto and in Hamilton, circumstances, evidence from experts, people with firsthand knowledge in the field, that there are individuals who fear for their jobs and their job security in terms of making any claims against employers, and reducing their ability to claim from two years to six months denies them the opportunity when they leave that employment, which is when most of those claims are made, because no longer is the threat over them -- the threat's not there any more; they've left or been fired -- they are then denied the right to claim for a year and a half of theft. It's theft. If there's money that's owed you, sir, you expect it all back. If I take something from you, you want it back. I really have trouble understanding how you don't think a vulnerable employee has lost some rights.
Mr Berner: He hasn't lost the right. He can go after the employer. It's just that he has to do it more quickly than he had before. He can't sit on his can and just wait and mull it over in his mind. As we've said, the longer you stretch this out, the longer it takes to get the information. The investigation and carrying through of the whole operation would be far more costly and to no avail. He's got six months to do something.
Mr Christopherson: I think the problem is that you characterize it as -- I wrote it down -- you said "sitting on his can and mulling it over." That may be a circumstance that exists, but the evidence we've heard is of a lot of vulnerable people, many of them are new Canadians, visible minorities, a lot of women, who are terrified. These are not people who are sitting back saying, "What kind of little legal games can I play with my employer?" They're terrified for their jobs, and the only reason they need the two years to go back is because we know that most of those claims are made after they leave their employment, because then the threat has gone. Do you not appreciate that that's the circumstance some workers are in, sir?
Mr Berner: Certainly. They would have left the employment in six months as well. The six-month limit you're unemployed, the two-year limit you're still unemployed. You were saying that they need the two years because they're unemployed. Well, they're unemployed at six months too.
The Chair: Thank you, Mr Christopherson, and thank you both for taking the time to appear before us today. We appreciate your presentation.
I don't believe the clerk has been able to identify -- is there someone from the Central and Western District CUPE Council here today? No one. No show.
STRATFORD AND DISTRICT LABOUR COUNCIL
The Chair: How about the Stratford and District Labour Council? Good morning. Just a reminder, we have 20 minutes for you to make your presentation this morning, and it's up to you to divide that as you see fit between presentation time and questions and answers.
Ms Christine Greason: I want to thank the committee for giving the Stratford and District Labour Council the opportunity to present our views regarding this legislation on behalf of the 4,000-plus organized members and on behalf of the unorganized workers who don't have a voice. It's imperative that this committee know that we speak for all workers. I want to point this out because of the numerous calls that I get from workers in workplaces that do not have a collective voice. These people want to know how to get what is owing to them and what to do about unfair employers. I tell them that they need to go to the Ministry of Labour and get the employment standards division. It's hard to tell these people that I cannot fight on their behalf; I can only direct them. I'm saddened to see this kind of legislation that will make life and access even more intolerable for unorganized workers.
First, I want to say that I am very disturbed that this government would introduce this type of legislation without the prior input from the very people on whom it will have the most impact. Why would a government issue legislative changes without the slightest idea of what these workers will endure? I think you have to be in their place.
It is obvious that these are not just housekeeping changes that the minister would like us to believe. These changes will have a drastic and lasting effect on the workers that end up with unjust and unfair employers. What is really needed is to make changes to legislation that are tougher, improvements and better limitations so workers would not have to bear the brunt of the unjust employer. Instead, this government sees fit to loosen regulations and put the responsibility on workers instead of where they should be. This is not progression but regression.
Some facts on Bill 49:
Under Bill 49, employees will have six months to make a complaint instead of the two years. This means that the ministry will only have to investigate back six months from the date of the complaint, rather than the two-year period, although this bill does allow, if there is proof of recurring violations or if the employer has violated several employees, to do an investigation and order back pay for up to a year.
The Ontario legal aid plan does not cover employment-related cases, and very few legal clinics will assist with employment-related cases. Workers who can't afford a lawyer will have to let their employer get away without paying their just wage or pay for work. I think my computer ate part of this one section.
The extension for appeal in an employment standards officer's decision is increased to 45 days from 15 days, which means an increase in the wait for workers to be without money.
Many workers endure hardships from their employers, especially in the areas of high unemployment. They cannot just tell an employer to take this job and shove it. Employers know that they have the upper hand in these periods of high unemployment and they know that employees are intimidated and will not take the chance of being fired, so it is put up and shut up or get out. This is the worst form of employer intimidation that is being enshrined by government.
Just for an example, a woman I worked with was making a good average wage of $15 an hour until she was laid off. She searched for over a year for a job of any sort. She cleaned houses and she looked after infirm patients. She also worked making French fries just to make ends meet. This woman was educated also. She was a registered practical nurse. She had taken numerous courses to upgrade her skills and she had taken courses on how to start your own business and courses on marketing and computers.
I want to tell you that she is now working for $8.25 an hour, and this job is on the afternoon shift and there is no shift premium. They work 10 hours a day and don't get overtime until they have worked 44 hours. The men in this workplace get $2 an hour more, even though their jobs are not as skilled and less responsible. To top it all off, the employer sent around a letter to the employees thanking them for making $120,000 more than was predicted with fewer hours worked, yet these people weren't even offered a dime, not even a thought of sharing in the good fortune that their labour made for their employer. This is the kind of thing that is going on in the real world and not in the world of common sense.
Just to elaborate on that point, when they discussed about going to the employer -- I didn't have an opportunity to write all this in -- about getting a raise or even a shift premium, because there are only certain people on the shift, four people on the shift and left with the responsibility, the people are afraid to say anything because of fear of losing their jobs, so they won't even go and talk about getting a raise or even getting a share of what they're making for the employer.
Putting a cap on the money that is owed to employees -- I guess the government hasn't indicated what the minimum standard will be yet, when I wrote this anyway -- is a gift for the employers and punishment on the employees that make these employers rich off the backs of unorganized workers, as I pointed out previously, and of the most vulnerable in our society.
With this legislation, it is obvious that there are fewer options for workers when the ministry will not enforce the act in situations where they deem the violations may be resolved by other means. It seems this ministry is trying to reduce the number of workers who can to claim their rights under the Employment Standards Act. This legislation is forcing employees to either make a claim with the ESA or take their employer to court, but they cannot do both. I don't think that our law has ever allowed anyone to force an employer to pay twice for the same crime. This is going to be devastating to people who don't understand and end up losing everything and the employer wins again. This reminds me of sweatshops in the El Paso area, only because I had an opportunity to go there and talk to some of the women who work in those sweatshops.
The fly-by-night employers leave without paying their employees, and the employees end up having to look for and force their employer to pay their wages. These employees have to find their employer and get the law to get after them. It is this kind of climate we are creating in the province of Ontario.
The use of private collection agencies will increase the unstable climate that is being created by this legislation. The employees will be pressured to accept low settlements in order for the agency to get its share of the purse. There is no guarantee that contracting out collections to the private sector will be more effective and less costly.
Employment standards provide the basic floor for wages and working conditions for most working people in Ontario. Non-organized workers have come to the realization that the Employment Standards Act is weak and has numerous exclusions and loopholes that come to benefit the employer, and the employee can suffer the burden. Employers have found it quite easy to violate and steal from the workers who make profits for them. They know that only a few employees have the courage to lodge complaints. There are few workers who know what rights they have and how to access these rights.
Over 90% of complaints filed with the employment practices branch are by workers who no longer work for that employer. The ministry offers no protection for the worker against being fired for trying to enforce the law. These workers only get help to collect their termination pay. They don't get reinstatement.
It is estimated that one in three employers violates the basic employment standards, and these violations are widespread and conscious actions of the employer.
These cutbacks to the Employment Standards Act and the changes to other legislation under Labour Minister Witmer are to save money in the operation of the Ministry of Labour in order to finance the Tories' tax break to the rich.
If this government wanted to make genuine improvements to the Employment Standards Act, they would make it easier for workers to attain their rights under the act in a timely manner without the threat and fear of being fired, rather than making it harder by limiting the times for claims and limiting the amount that can be collected through an employment standards claim.
It is time in the province of Ontario to make progressive moves for the workers and not just the employers. The direction of this legislation takes us backwards. Is this the legacy that this government wants to leave for the children of tomorrow, that it's okay for the employers to make a profit at any cost, the American style of survival, everyone for themselves? These are not the kinds of workplaces and employers that I think the young people of today want to endure.
The key issues are very substantial changes, and this government should think again about housecleaning.
Forcing workers to choose between their jobs and their rights gives the green light for laying off staff of the employment practices branch; wipes out the floor of basic workers' rights for both non-union and union workers; caps the amount a worker can claim against an employer to $10,000; sets an unannounced minimum amount a worker can claim; shortens the period that a worker can complain and leaves the ministry's slow time limit untouched; tells poor and low-income workers to go to work where there is no legal aid plan available to pay for a lawyer, and gives private collection agencies the power to negotiate a settlement which could be lower than minimum standards.
In closing, I would hope that with all of the information and the arguments that are being presented, this government will stop this attack on the poor and vulnerable people of this province and begin to make positive changes for the voters who had the confidence to elect them. These changes are not a positive sign for the economy of Ontario. Thank you.
The Chair: Thank you, Ms Greason, and that has left us just under three minutes per caucus. In this round, the official opposition will be the first to ask questions.
Mr Duncan: Thank you very much for your presentation. I do want to explore with you the very last sentence. You said "begin to make positive changes." Unions and workers' representatives have historically advocated that the act is not well enforced and has not been particularly effective as a statute, and I think worker representatives have also historically advocated for a rewrite of the act in that sense. What sorts of changes would you envision that might make the act or some successor act more effective at protecting vulnerable workers, number one, and number two, recognizing that there are limited resources available to governments today to do that?
Ms Greason: I think that rather than going backwards with legislation that protects working people, there should be more emphasis put on the enforcement of what is already in place, therefore entitling employees who work in workplaces with unscrupulous employers to an opportunity to get what's owing to them, because money paid to workers is money being spent in the economy as far as I can see. Your second question was?
Mr Duncan: Just to perhaps rephrase it, the act, in my view, has not been well enforced.
Ms Greason: No.
Mr Duncan: It has not, in my view, been particularly good at protecting vulnerable employees. I guess the question all of us have to ask ourselves, particularly people who represent workers and who speak on behalf of more vulnerable workers, is, what alternatives would we offer to the government? My experience has been that more officers don't necessarily translate to better enforcement, that there have to be some regulatory changes both at the federal and provincial level to do that. Do you have any specific ideas along that line?
Ms Greason: Maybe the government needs to take a stronger look at making sure that employers know that in the province of Ontario unscrupulous attitudes by employers towards workers will not be tolerated and that maybe a fine or a levy be implemented.
I know that even though a lot of the money that's still owed is probably from employers who flee or have gone bankrupt or what not, and is probably not traceable in some aspects, where those employees are going to be left to the welfare rolls, probably most of them, because of situations like that, that employers need to understand that they have an obligation if they're going to provide work in the communities, that they provide decent wages and that they make sure that they pay those wages, that they don't try and rob from some of those people that they are.
Mr Christopherson: Thank you, Ms Greason, for your presentation. I just want to note that I think that's probably the most succinct encapsulation of everything that's going on that I've seen yet. You've done an excellent job of boiling it down and making it very clear.
I want to go back to an issue I raised with the previous presenters. The government still insists that the move from two years in terms of a claim period to six months is meant to improve things and improve the turnaround time, and we've heard that thought supported by the chamber of commerce and, in fact, the presenter said it would prevent people from sitting around on their cans and mulling things over.
We heard yesterday in Hamilton from OPSEU Local 546, which is the employment standards officers' union representative, who said the following:
"The Ministry of Labour stated in the Expenditure Reduction Strategy Report 1996 to 1998 that by reducing the time frame to file a complaint, this would improve the turnaround time on investigating claims; in other words, a cost-effective and timely enforcement of employment standards. This is not true!
"The two-year time limit is a must for employees with the high unemployment currently facing Ontario. Employees would not complain to their employers of a breach of their employment rights in fear of losing their jobs. The majority of workers are not aware that a two-year limitation even exists."
Which of those two points of view do you believe is the accurate one?
Ms Greason: Employees who definitely feel intimidated are not going to go to their employer and lodge a complaint or even go to the employment standards and get what rightfully belongs to them, because of the intimidation factor.
Just knowing young people who are working part-time and working for minimum wage and what they endure as far as some employers that they deal with, just in a small community, because in small communities you tend to know everybody, and these kids are afraid to say anything about their working conditions or the things that are going on around them because they want to keep their jobs. They have no idea what kind of legislation is there to protect them, absolutely none, because it's not in the education system. There is nothing there for them, unless they have someone they can go to who has some idea of background of legislation, but chances are they're just going to say, "There's nobody there that can do anything for me," and that's a lot of the problem.
Mr Christopherson: So your own experience in this community is one that supports what the employment standards officers themselves say across the province --
Ms Greason: Certainly.
Mr Christopherson: -- that there are people who are afraid to make a claim and that the majority of claims are made after they've left their employment and that's why they needed to go back the two years, and therefore, this is a denial and a take-away of a minimum standard that now exists in the law. Is that an accurate reflection?
Ms Greason: That is exactly true, because a lot of people wouldn't even have any idea that there were some laws there to protect them, because they'd be in that situation. We send our children to school and we teach them things and tell them to get a grade 12 education, and they get out in the workforce and they don't even have any idea what laws are there to protect them. They have none. They're the most vulnerable in society also. It's not just the immigrants and new Canadians; it's our teenagers who are coming out of the system, and there is an awful pile of them.
Hon Mrs Witmer: Thank you very much. Certainly many of the concerns that you've raised, as you know, are concerns that have been around for years and years and years. The Employment Standards Act was developed in 1974, and since that time we've seen numerous amendments, we've seen the act become much more complex, we've seen it become more complicated, and at the present time, as you know, it's very difficult for employers, employees and even at times the Ministry of Labour staff to understand.
I guess I would ask you, given that these have been problems that have been ongoing for a long, long time, were you not disappointed that the former government did not attempt to provide the appropriate protection for vulnerable employees in this province?
Ms Greason: I do believe the wage protection plan that was at a maximum of $5,000 for employees was implemented by the previous government and now it's been dropped to $2,000 by your government, and I feel that that was a stepping stone in the right direction.
Hon Mrs Witmer: But do you also know that people in the garment industry, people in telemarketing, one third of people today in this province do not work in traditional jobs? Many of these people do not have appropriate protection under the Employment Standards Act. They, I know, wanted to have protection. In fact, when I was opposition critic, they wrote me letters, they wrote the government letters. There was absolutely no action to make the type of improvements to the act that you're stating need to be made.
Yes, there was one improvement in the EWPP, and that was it, and I think it's absolutely shameful that, when the NDP had the opportunity to provide you with the protection you say you're looking for, there was no action done.
Ms Greason: But, Minister, can I just respond to that, because what your government is doing is regressive. You're talking about sweatshops and garment workers in the industry, and what your government is proposing under this legislation is even more draconian than the cleanup that the NDP was trying to do, the previous government. This is disgraceful to think that you could talk about the sweatshop workers in this way. I was with sweatshop workers in the United States who were having a hell of a fight down there. What our workers have to endure here -- if we could ever round them up to let them know what their rights are in the first place, because that's the biggest problem is it's not ingrained in education. That's where we have a problem.
Hon Mrs Witmer: That's exactly what we are endeavouring to do. Our job --
Ms Greason: These changes don't do that.
Hon Mrs Witmer: Our job, and we are having a complete review of the act, will be to set the standards, and we're going to have a full discussion. Then we need to communicate those standards, and we're going to enforce. As you know, we are not now collecting money in order that we can appropriately reimburse employees in this province, and we're endeavouring to do exactly that.
Ms Greason: This isn't going to do that.
Hon Mrs Witmer: Part of the information --
Ms Greason: This is just paying lip-service to the whole problem.
Hon Mrs Witmer: -- about the cap, there are 4% of claims at the present time that are above the $10,000 cap. The majority of claims are below that. The average claim is for $2,000, and the majority of people will still have access to the employment standards branch. In fact, if it's above $10,000, you can still use the employment standards branch, but the amount that you receive will only be $10,000, if that's your wish. Also, if your claim is above $10,000 and it involves reinstatement, which means maybe it has to do with pregnancy or parental leave or your refusal to work on Sunday, the employment standards branch will deal with your claim even if it exceeds $10,000. So some of the information that you've presented here is not totally accurate.
Ms Greason: Why are you putting a cap on the $10,000 if you're saying that there's only 4% of people who are collecting over and above $10,000 anyway?
Hon Mrs Witmer: Because I can tell you, we believe that the public's money should be devoted to helping those most in need, and so we are going to deal with the 96% of claims that involve the most vulnerable people. The 4% above the $10,000 are usually people in middle management positions. They involve wrongful dismissal. That's why we believe that we want to help the most vulnerable.
Ms Greason: If your government was actually concerned about the most vulnerable people in the province of Ontario, they would be asking for their input into what needs to be changed in the standards rather than going ahead with an agenda of common sense which makes no sense, to say that they're going to help the vulnerable. You can't dictate to somebody else. That's like trying to tell a child, "No, you can't have that," "No, you're not going to do this," and "No, you're not going to do that," and expecting them to be grateful for it, because it ain't going to work.
The Chair: Thank you, Ms Greason. We appreciate your taking the time to make a presentation before us here today.
I'll ask again, in case they were out of the room at the time, whether the last group has a representative here, Central and Western District CUPE Council. Another spot wasted.
WORKERS REPETITIVE INJURY SUPPORT TEAM
The Chair: But I do believe we have a group. A group has very graciously offered to move up a spot, WRIST, the Workers Repetitive Injury Support Team. Thank you very much for helping us stay on schedule here. Ms Green, is it?
Ms Susan Green: Yes.
The Chair: Good morning, and again, we have 20 minutes for you to use as you see fit here.
Ms Green: My name is Susan Green. I'm the elected president of the Workers Repetitive Injury Support Team, Woodstock and area. I represent approximately 100 injured workers in Oxford and Middlesex county.
This is one of those pieces of legislation that seems to require an infomercial. Personally, I'm inclined to call it the Witmer Deal-a-Meal approach to employment standards, where you take this card and you lose these two, and you get this, lose that, and when you get to X number of points, you are done for your employment standards expectations between you and your employer. What a diet. Your employer wins with all kinds of built-in loopholes and escape routes. There is only one major flaw: It won't work.
I worked in a place several years ago now where the employer liked to take advantage of those who did not speak the language or knew nothing of how to pursue their rights or even what rights they had. I think that was probably the first qualification for any of the jobs at his business. All of his employees were either kids just out of school or new Canadians.
My employer had applied to be part of a program through the federal government where they paid a percentage of wages for hiring a female in a non-traditional job, but only for a limited time period. I was hired for that time period only, no more. My job was a non-traditional job. As a result of this job I was hired to do, I received the worst putdowns, jokes, insults and ridicule from the families of the owners and the foreman. The sexist remarks that were shared openly among them did wonders for my morale. I was open for pranks that endangered my health and safety on several occasions, things like loosening of clamps on sheets of steel that were suspended in the air, flipping up my welding helmet as I was welding, pouring water on the steel as I was welding, and the list goes on.
The other employees received racist remarks as to their country of origin and the colour of their skin. They also received the same sort of dangerous type of pranks. No one was left out, it seemed, and no one to complain to about the harassment. The truth was I needed the job or I wouldn't have stayed. I needed to gain more experience and complete more of my apprenticeship so I could get out of this environment. I could do nothing and still keep my job.
Workers' compensation claims were never filed unless you were a member of the family or a friend of the family. In the 12 months I was there, I witnessed several accidents in the plant. Some of them were the direct result of these pranks. Some were minor and some were serious. A broken arm and a severe facial burn received no compensation for lost time. As a matter of fact, both of these employees were terminated for lack of work, yet there were new employees to take their place within a week. But all was not equal. The foreman's son had an epileptic seizure while operating some heavy equipment. Forms were filled in and compensation was collected and he retained his job.
Our regular workweek was considered to be 48 hours per week each and every week. Most of our weeks averaged 55 to 60 hours per week. Even when we tried to schedule a weekend off, there were no guarantees we would get it.
One particular weekend, the last long weekend of that summer, I had asked for it off one month in advance. The Friday night of the long weekend, just as I was closing my toolbox, the owner approached me. He said there were some urgent repairs that needed doing. When I hedged about coming in, he threatened that if I did not come in on Saturday, "then don't come in on Tuesday." The irony of the whole thing is that on Saturday, when I did report for work, the urgent job was to do the brakes on his personal vehicle. He must have had complete trust in my personal integrity even though he had ruined my only vacation with my family for that entire year for his personal safety needs.
To top it all off, this owner had developed a method of stealing from his employees that had taken place for years. It was quite simple: overtime was just not paid. After I had been there a couple of weeks, I questioned the fact that no overtime was paid. First off, I was told that because they were an agricultural-based operation, they weren't required to pay overtime, but because of the owner's generosity, in lieu of overtime there would be a generous Christmas bonus, a type of profit-sharing. Your share would be equal to a percentage of your overtime units, provided, of course, you met all the other requirements. Profit-sharing for me that year equalled two chickens from the owner's personal hobby farm. This seemed to be hardly sufficient to cover one week's overtime, let alone the whole year.
My period of employment was finished. I had been hired for specific jobs in a specific time period and the federal top-up was over. I felt ripped off, abused and taken advantage of. I no longer feared losing my job; I didn't have one. I questioned the Ministry of Labour about this procedure and then launched a formal complaint. After several months of investigation, a cheque was ordered to be issued from my now former employer.
In order to get the money that was owed to me, I had to personally go to his office to see him by appointment. He would not mail the cheque. When I got there he sent his office staff to lunch. I was told that he felt cheated by my going to the Ministry of Labour and complaining and that I had better not ever expect to work again. He said he knew I was a troublemaker right from the start. He was very displeased by the fact that he had to pay his employees what was owed to them by him, and told me this in no uncertain terms in his now rather obvious displeasure bordering on rage. After all, we did get our Christmas bonuses and we should be happy to get that. I found out later from another employee who had quit because of the working conditions that this had proved to be quite a substantial amount. He had not paid overtime since he became an owner, and that was approximately six years.
If this deal-a-meal type of legislation was in place then, every other employee there would have been cheated out of their fair wages. They did not know their rights. They did not know where to turn to receive justice. Yes, I would still receive my rightful pay, but the others would have just got chickens probably to this very day. The only people to benefit from this type of housekeeping that is being done with Bill 49 are these same type of employers who exploit their workers knowingly and willingly.
These scenarios happen all too often and the people who are being exploited are not aware of their rights. Without strong legislation to prevent these ripoffs from occurring, without strong penalties for breaking the mockery of these new employment standards, the only people who lose consistently are the very people this legislation originally intended to protect.
Yes, there is a need for changes to the Employment Standards Act, but once again this government is letting the vast majority of the electorate down and feeding the coffers of the business community, making it easier for them to swindle the very people who help them earn their profits.
Capping the amount of what an employee was owed? Very questionable. I do not understand why this is even an issue. If the money is owed, then it should be paid -- all paid, with interest, with heavy fines and penalties being issued to the negligent employer, especially if it was done intentionally. After all, they did make their profitable gains from illegal methods and out of the pockets of those they exploited. If they had been paying what they should have all along, the amount wouldn't be as high. It could never have reached the maximum. The employee rightfully earned the money and the employer committed theft by not paying -- plain and simple.
Bill 7, health and safety act, employment equity, Employment Standards Act, new directions for WCB, especially with the effects of each act interwoven with the others -- I know the problems in the system. I see the results of these problems every day of my life: friends, members of WRIST, and myself. I deal with people, some of whom are so depressed that suicide attempts have been made, people who before an injury had a totally different personality and a totally different life, a totally different set of everyday life's problems, not survival problems.
I implore you to search yourself. I'm not asking for sympathy for these people. I'm asking you to look hard at what this legislation is and ask yourself: "Do I want to create more of a problem than what already exists or do I want to start filling the gaps that are already there"? The people who have to deal with the problems, listen hard to them. Listen and learn. Then ask yourself this: Would Bill 49 do anything to help with the personal story I've enclosed for your reading at a later time? This is her life. She couldn't be here to make her submission. She's very upset right now. Please read and put yourself in the shoes of those already suffering from the gaps, or the shoes of the countless numbers of people yet to be hurt by these gaps that you now propose to widen.
The Chair: Thank you very much. That leaves us three minutes per caucus and this round will commence with Mr Christopherson.
Mr Christopherson: Thank you very much for your presentation. I want to stay focused on the issue of the circumstances workers are faced with in some cases, where they have an unscrupulous employer, where there is no collective agreement, where it's minimum wage or barely above that, few benefits, and people's rights are being violated.
It's important for us in these hearings to get on the record very clearly -- I think there are a lot of people, and maybe some government members, certainly some of the presenters from the business community, who don't understand, to give them the benefit of the doubt, that this kind of world exists, and I think we need to make that case very clearly so that we can refute things like "people sitting around on their can mulling over." I don't mean that as a personal attack on the individual, but I think that's indicative of some of the thinking.
So talk to me a bit more about circumstances you know of and what it's like, in as clear a way, to paint that picture for people who think that's like an old, bad movie, that those sorts of things don't really exist.
Ms Green: A lot of the women I deal with, particularly the ethnic women, are in job situations where they can't complain. We have one particular business in the community I come from where the majority of their paycheques are picked up by their husbands. The women don't even see their paycheques. So they don't even have rights within their own home, let alone rights within the business community. The husband gets them the job. They are sent to work. They do their job. They have fears of losing their job. They have nowhere to turn.
Mr Christopherson: How rare are those kinds of things or is that --
Ms Green: This is the garment industry and in the garment industry it's quite common. We have three garment industries within Woodstock that I know of and it's quite regular that the husbands are there to pick up the cheques and to make sure their wives are at work, and just go to work and do your thing. The employment standards are gone. They're sweatshops. There are cockroaches falling off the ceiling all day. They make minimum wage. They work maximum hours and the conditions are not good.
Mr Christopherson: Would it be helpful if they had their rights posted in the workplace? Do you think that would be a start?
Ms Green: It would have be to be posted in multi-languages and that would be a good start. They're not aware they're supposed to be getting overtime after 44 hours. They're not aware that their employers aren't allowed to harass them, and that can be sexual harassment, that can be anything. They're just not aware. They just accept it and go on. They don't want to lose their job. They can't afford to lose their job.
Mr John O'Toole (Durham East): Thank you, Susan, for a very impassioned presentation. I sense a very sincere line of commitment to this. There are just a couple of things to clarify your particular case. How long were you at this particular shop?
Ms Green: I was there for a year. Their contract with the federal government for top-up on my wages was one year.
Mr O'Toole: Would you say there are a lot of people in a similar situation, high turnover and that kind of thing, a year, around that?
Ms Green: Where I particularly worked it was seasonal work. They would bring them in at the first part of the spring and they would be gone by the end of September.
Mr O'Toole: It reminds me of, like you say, your case, a very vulnerable group of people. I want to get into the change in time limits, as I understand are recommended improvements to the Employment Standards Act and the motivation or reason for the six months. You said it very succinctly with the paragraph that starts, "If this deal-a-meal type of legislation was in place," etc. I really quite sincerely myself feel that the reason for the six months is to ensure that especially employees like yourself who are informed have a duty to protect their brothers or sisters.
Ms Green: But I wasn't informed until after I was out of that job.
Mr O'Toole: But you are doing that now, educating the people. You just go on to say -- and again I'm doing this in a very sort of harmonious way. I really think that if you had employees more aware of the law -- these public hearings will do that -- and of their rights and they were quicker to bring them to the surface, there would be fewer employees receiving those chickens at Christmas. Really, that action and responsibility, rather than delaying it for two years and the persons who are coming in the door a year behind you, a year behind you, it doesn't do anything to improve the system, and the system today from the evidence I have, and I don't want to bore you, doesn't work. Two thirds aren't collected and very few of the claims ever get particularly registered in due process.
We're trying to improve scarce resources, focusing on those most vulnerable. I really sincerely want you to go away believing that's the commitment of the minister today. Do you not see that your duty you're doing today of bringing the issue to the surface quicker will improve the whole system's responsiveness to those kinds of workplaces?
Mr Christopherson: You didn't even want to hold the public hearings.
Interjection: We're doing it, though.
Ms Green: What I see happening is that the six-month limitation is a way to raise that quarter on the dollar. It's a way of chopping that in half.
Mr O'Toole: I don't want to get into a debate, but clearly in the act the initial intention is that all of those amounts owed would be directed to the employees' entitlement. The fees that were going to be charged by the collection agency would be over and above. The director would set a fee over and above that amount. If you read clearly in the act, section 28, you'll see that's the intention.
There are many cases where bankruptcies and going out of business occurs where you do anything to get a settlement, and in that case the employee, those persons with the claim, must sign off on that agreement. It's not just arbitrarily arrived at. There are provisions where it's clearly with the consent of the applicant.
I think there's a lot of rhetoric, and I for one at the end of this process, we want to certainly make improvements. The intent is not to give less. All throughout this particular piece of legislation, in the preamble, it says that the minimum standards shall not be diminished. In the case of where there's a collective agreement, today there are changes to what are the standards. Vacation is negotiated, time off is a negotiated item, overtime entitlements, hours of work, all of those things are part of a collective process. All we're doing is embellishing that and allowing unions, which like the United Steelworkers this morning are very well researched; they know what their internationals are getting. So have confidence and have faith and trust that we are really trying to make improvements.
Ms Green: In the six years that I was there -- okay? -- I was the first one, the first one.
Mr O'Toole: I thought you were there a year.
Ms Green: I was there for a year but in that six years of operation I was the first one. That employer went for six years without paying.
Mr Pat Hoy (Essex-Kent): Thank you very much for your presentation. These types of presentations should impress all members of the committee as to developing a law that will protect persons such as yourself and others who have been victimized. I happen to know what can happen to your eyes if a welding helmet's pulled off. It's not just that a spark could hit you, but looking at welding can be very dangerous to the eyes whether you're struck by anything or not. So I understand how that could be.
You talk about awareness quite a bit. It seems that many employees are not aware of their rights, and they seem to investigate it as a last resolve. They want to keep their job, they simply don't know that they have recourse and they think it's normal. I've had people speaking to me about what they thought was normal, and it is not. So I understand your call for awareness.
The other thing too is that the government has said that 96% of the claims are under $10,000. You said you were employed for a year under a federal program. Was that the maximum amount of time that program ran for an individual?
Ms Green: Yes, it was.
Mr Hoy: The employer went right to the maximum. The program was a year; he used it right there.
Ms Green: Yes.
Mr Hoy: So if we have a minimum put in place, is it possible that an employer would know this is only a maximum, in his view, of $10,000, that it could be abused?
Ms Green: Oh, most definitely. They abuse what's already there. It's quite obvious, with the fact that we had this profit-sharing scheme that ended up being two chickens. They abused the system, clearly and succinctly. By putting the $10,000 maximum, it's just another loophole, another escape route. The most they're going to pay is $10,000 to one employee when they complain, not the whole group.
The Chair: Thank you again, Ms Green, for making presentation and for moving up and helping us fill the morning session.
WATERLOO REGIONAL LABOUR COUNCIL
The Chair: The next group making a presentation is the Waterloo Regional Labour Council. Good morning. Again, we have 20 minutes for you this morning, to divide as you see fit. I wonder if you folks would be kind enough to introduce yourselves for the Hansard reporter, please.
Ms Carrol Anne Sceviour: I'm Carrol Anne Sceviour.
Mr Mike Cooper: I'm Mike Cooper, chair of the political action committee.
Mr Bob Cruickshank: I'm Bob Cruickshank, president of the Waterloo Regional Labour Council, which supports 20,000 unionized workers in the region of Waterloo. I'm here on behalf of the Waterloo Regional Labour Council, and I'm pleased to respond to the minister's proposed changes to the Employment Standards Act. Unfortunately, I do so with little hope, as all too often we struggle to be heard, and even when we are, we wonder if anybody is listening. I might get better comments out of somebody than this guy in the wheelchair, I might be better talking to them, when I've listened to hearings with this Tory government.
Will anything we say convince the government to bring about substantial changes to a bill that clearly does not improve the Employment Standards Act, but benefits employers at the expense of the most vulnerable in the workforce, or will it merely be used as an excuse for consultation, where we express our concerns, nothing changes and the bill is enacted as it was originally written with all but a few minor changes?
Who are the vulnerable working people?
It's the person working as a painter for an owner-operated business whose employer reduces his wages because the employer does not agree with the time sheets submitted by the employee. The same employer provides no supervision and keeps records poorly or not at all.
It is the assistant manager of a hotel who has not had a day's vacation in three years and who received no vacation pay either, whose employer claims that he has been given all the vacation he is entitled to. The same employer keeps no records of vacation entitlement, provides no vacation statement to the employee and admits that hotel work does not permit a vacation of two weeks together, in fact not even one week at a time but rather a day here and there.
It is the worker who erects fences for a contractor doing work for the Ministry of Transportation whose employer had an understanding that employees would get a flat hourly rate and a paid lunch break, but no overtime for hours worked in excess of 44 hours per week or in excess of 55 hours per week when engaged in work incidental to roadbuilding.
It is the worker in a riding stable who acts as a trail guide and performs other functions and for this receives a meagre payment from a company which claims she is not an employee, but is disciplined if she reports for work late.
It is the hairdresser who agrees to work for $20 a week plus commission, but a lack of customers meant that the commission does not even bring it up to minimum wage.
It is the workers in a lumber yard whose boss has them sign a letter waiving their rights to overtime. The boss would simply adjust the workers' hourly rate to reflect the amount earned at a straight time rate.
You may think cases like these are unbelievable, that they are purely hypothetical, that it would never happen in Ontario, but they're all true. They are taken from the Ministry of Labour's public records, and in every case I've cited the employer appealed the decision of the ministry, insisting the worker was not owed the money.
How much money are we talking about? Is its $1,000, is it $100, or is it merely $50? For some in this room, $50 may not seem like much, but for others it's more than they make in a day. Remember, $6.85 per hour is only $54.80 for an eight-hour day.
Bill 49 gives the minister the right out to set out a minimum amount for a claim through regulation. Workers who make a claim below the minimum, which is yet unknown, will be denied the right to file a complaint or even have an investigation. So what happens to the workers whose employers refuse to pay them for a statutory holiday or for a few hours overtime? How often will the employer be able to get away with that?
If you think this will not happen, then consider the cases which were brought to the board under the existing legislation and consider what some employers will attempt to do under a watered-down version. Statistics from the Ministry of Labour's employment practice branch report state that in 1994-95 employers were assessed $64 million, 74% of which was not collected. The most frequent reason given for not complying was the employer simply refused to pay. You've got no teeth in your bill -- no teeth at all. You can't force anybody to pay if they don't want to pay. You ask how you can enforce it and you keep saying the NDP should have done it when it was in power. The NDP is not in power; you people are in power. Improve it.
As I said before, $50 may not be much for some in this room, but for many in this province it's more than they earn for a full eight-hour workday. As you keep saying, you make an order to comply with that -- you can make a court order and make them pay. All it takes is some of your lawyers to do the paperwork and you've got it done.
How many other cases are there like these that go unreported at a time when so many will put up with just about anything to get, if not to keep, a job, no matter how bad the job may be? People still define themselves by their job, because the job determines not only where and how well they will live, but their very status in the community. When have you heard someone say proudly, "I'm on unemployment" or "I'm on welfare"? Everybody needs a job, everybody should have the right to a job and everybody should have standards when they have that job.
Why does the government want to change the act as it exists now? Employers argue that they need greater flexibility in order to manage the workplace and improve their competitiveness. However, the existing act gives them an incredible amount of flexibility. It says 48 hours a week are the normal working limits for most workers in Ontario. In an emergency employers can make you work more hours than the normal limit. If your union agrees, your employer can arrange a regular workday that is more than eight hours long, a concession that many of us in this community have had to give to our employers to keep our jobs.
Employers can get a ministry permit forcing workers to work more than 48 hours in a week. When a company hires you, it can insist as a condition of employment that you agree to work a compressed workweek or excess hours. Coffee breaks or other rest periods are at the discretion of the employer. Many employees such as firefighters, home workers, domestic employees, janitors and farm workers have limited protection under the current Employment Standards Act in areas such as hours of work and overtime. The act as it presently exists is full of loopholes that favour the employer. Employers already have the right to contract out of the minimum standards of the act in exchange for a "greater right or benefit."
In the same way the employer operates a business, always looking for the greatest potential for return on every facet of their operation, they surely must understand that their own employees have the right to expect something in return for giving an employer increased flexibility in the workplace. Unfortunately in today's job market, some employers have the attitude, "Be glad you have a job, and if you don't want to work here, I can get a hundred others to do that." When an employer talks about flexibility, they mean using multiskilled workers and part-time or contract workers, to whom they can pay ever-decreasing wages to maximize their profits.
If an employer has a vacation entitlement that exceeds the act, does that mean he or she should not be entitled to pay for overtime?
If an employee has a severance package that exceeds the act, does this mean that he or she should be prepared to give up statutory holidays?
When is enough enough? While those in unorganized workplaces remain the most vulnerable, we in organized workplaces are also under attack with the amendments being proposed here today. I am tired of employers constantly asking for relief, claiming that we don't understand the realities of the new economy and the global marketplace with imports from low-wage, no-employment-standards-act countries. How is it then that Canadian exports, many of which are produced by highly unionized workers who enjoy standards far above the statutory minimums, continue to be competitive in the global market? As well, why do the wages and working conditions of workers in the personal service sector have to be reduced? Dry cleaners, restaurants and cleaning services, for example, are not competing in the global marketplace since these services they perform cannot be provided offshore. Telling workers that they don't understand economical realities when they've experienced it on a first-hand basis, is unrealistic.
Tell that to the thousands of our former members who are unemployed or underemployed, since we now have such lean and mean workplaces.
Tell that to Charlie MacDonald, a 43-year-old skilled tradesman who lost his job when the north plant closed in December 1992 and hasn't worked at his trade since because he's been told he's too old at 43.
Tell that to the employees of a local auto parts supplier who gave up $3,000 in benefits and wages during a three-year contract and who haven't had a wage increase in five years. Are you listening, Mike? Incidentally, they produce more now with fewer employees than they ever did.
Tell that to Bob Eccles, a 30-year employee of the former Epton Industries, whose employees took massive wage and benefit cuts in 1983 so the company could survive. These wage cuts were not recouped until 1992. Despite the concessions given at the bargaining table and the infusion of government funds, the company closed in 1995. Requests for an inquiry have been ignored.
Tell that to the employees of Uniroyal Goodrich in Kitchener, who were forced to work a brutal continental work week so that the company could have continuous production. This continued for three years, resulting in broken marriages and lives, until the union convinced the company to change to a 12-hour core. Now employees get two weekends off a month instead of one -- some progress.
We are tired of the rhetoric from employers and big business who claim that we do not understand the realities of the new economy.
Tell that to the 1,000 people lucky enough to get an application for the 50 jobs at Budd Canada this spring. There are many more who lined up overnight, only to be turned away. That's economy. That's the reality of this, and this act does nothing to help the workers.
The Chair: Thank you, Mr Cruickshank. We have just over two and a half minutes per caucus, and this time the questioning will commence with the government, Mr O'Toole.
Mr O'Toole: Thank you very much. This was very definitely a blow-by-blow description of what the last five years have been really all about. The current act that you've described for me is all the more proof that changes must be made.
Mr Cruickshank: Changes must be --
Mr O'Toole: But we're here today to listen to you for suggestions to make improvements to the act. That's the real issue here.
Mr Christopherson: After we forced you to have public hearings.
Mr Cruickshank: You were forced to get into public hearings.
Mr Christopherson: Don't be so dishonest.
Interjection: Oh, David, you're a hero.
Mr O'Toole: With all respect to David, he did fight that we have public hearings, but this is a two-phase process. The minister wants to make real change to improve the act, so could we have some of those suggestions?
Mr Cruickshank: You know, you keep going on that you can have a claim in six months and you keep going on about what the last government did. You're not doing any changes. You're making it worse. There's no question about that; you're making it worse. Six months to make a claim? Tell your business friends that they can't claim any money owing to them after six months. Tell your business friends that they can't claim any more than $10,000. Why are you attacking the workers of this province? They'll tell you why: so you can give tax breaks to your rich friends, and that's the whole reality.
Here's a cartoon and, I'll tell you, this cartoon says it all about this government. Look at this. This government is getting patted on the head by God damn big business as you throw everything out -- environment standards, every kind of standards under the sun you're throwing out, just to get a 30% tax cut.
Mr O'Toole: In all reasonableness, I'm an average person, a working person, as well. What I'd say to you --
Mr Cruickshank: What do you work at? Listen, you're playing to the people who are paying your wages.
The Chair: Order. You're sitting next to a former MPP. Let's have a little respect for the people who are in the current position. Okay?
Mr Cruickshank: Let them have a little respect for the employees.
Mr O'Toole: We're accountable at the end of the day. In four years we will account to the people. But I really want to make one point, that I think the changes we're making are for the very reasons you said. The economy right now is almost crippled, and you said that in your closing comments. The real economy is that there really are no jobs, and the jobs you mentioned, the restaurants, aren't controlled offshore. Those are the jobs that technically the students -- people are retiring earlier and they're going back and taking other jobs. Retired people are contracting back to their original employers. There are many changes in the workplace. We need to work together to improve the standards and not to just have more of the same. To leave the act as it is would be a complete travesty and, I think you would agree with me, it doesn't work.
Mr Cooper: I think we should talk about credibility here. If you look at the previous government, on every piece of legislation that was brought forward by the New Democrats, your party filibustered, stalled, prolonged, made us go forever, and that's why we couldn't bring in new legislation. The minister was talking about, why didn't the New Democrats do it? It was because your party stalled on everything we wanted to do and we didn't have time. We had more important things to deal with, such as getting this province back to work and fixing the 42 years of Tory problems that were created. That's why we didn't get around to doing it.
Talk about credibility. What have you done since you've been elected? You've killed everything that working people have tried to get. To sit there and say you're talking about protecting the vulnerable people, what did you do to the Advocacy Act? What did you do to Bill 40? What are you doing to the environment now? What are you doing to the tenants in this province? You are not protecting the little people and the vulnerable people. You're going out to try to make it better for the big, rich people in the province of Ontario. You're not protecting the working people at all.
Mr O'Toole: I think you've got to look at the number of jobs that have been created --
The Chair: Sorry, Mr O'Toole. The official opposition. Mr Duncan.
Mr Duncan: I want to come back to a discussion we had earlier this morning. I don't know if you were present. The government is trying to suggest that not only are they not harming the vulnerable workers, but they're also trying to suggest that somehow Ontario is just doing what everybody else is. On Monday we had a presentation from Professor Judy Fudge, one of the leading experts on employment standards in this country. I now have the Hansard transcript of that and I'd like to ask your views on this.
Making reference to the minister's statements about the minimum standards that they are proposing and how they compare to other jurisdictions, Professor Fudge said if any of her students had described the bill in this way she would have said it was negligent misrepresentation.
She goes on to state: "I want to look at three basic areas: the time limitation periods, the monetary cap and the privatization of collections....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" -- and I'm quoting -- "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."
My question to you is this: The government is trying to present an argument that somehow they are not lowering standards, number one, and what they're doing, number two, is not out of the ordinary. It's our view that (a) they are lowering standards, and (b) they are deliberately misleading the public about what this act is all about. Would you or would you not concur with that?
Mr Cooper: Of course we concur with that. I think what we're doing here and what this government's doing is a race to the bottom. What they're doing is taking the lowest standard. Their argument is that most of the provinces, or the majority of the provinces, have six months. That's what they're doing, they're racing to the bottom. On every piece of legislation, they're going to the lowest common denominator.
That was one of the big things the labour movement fought a few years back on the free trade agreement, that we would be racing to the bottom. I think we're seeing that happen right now, especially when you're talking about environment and employment standards. We've got to compete with these other countries so we've got to go to the lowest common denominator.
Mr Christopherson: Thank you for your presentation, all of you. I think you've hit the nail on the head. It took till we got into the backyard of the Minister of Labour herself before all hell broke loose and we really got down to what this is really all about.
I also want to acknowledge for the Hansard that indeed former MPP Mike Cooper is a part of this delegation. Mike has an excellent reputation and a long-time record of standing up and fighting for the rights and needs of working people, and he continues to do that as a private citizen. I'm proud to have served with him in the Legislature and I'm proud to be with him here again today.
I also want to comment on Mr O'Toole, who continues -- and that's why I spoke out of turn -- to try to take some kind of credit for listening to the people of Ontario. You are a government that passed the anti-worker Bill 7 without one day of public hearings, where you completely revamped the Ontario Labour Relations Act and did not invite the public. In fact, you fought off any opportunity for the public to have input. The only reason we're here today is because the NDP, with the support of the Liberals and the labour movement, forced you to come out and face the public. I find it insulting, John, that you would try to take credit for that, and I ask that you cease and desist from suggesting to people that you're pleased to be here. You're only here because you were brought kicking and screaming.
I also want to make note that in the presentation you talk about Epton Industries, and I believe -- please correct me if I'm wrong -- that's an example where the current Minister of Labour was under the gun because those employees wanted their full rights under the employee wage protection plan. The minister checked and found that it fit under the wire before her new regulation took place and she announced with great pride to the citizens of her community, "Don't worry; you'll get the full amount." When it's in her backyard it's good to have the full amount, but for the rest of Ontario workers, you can all live with the cutback amount of only $2,000. I think that's hypocrisy in the extreme. I'd appreciate any comments you have on that, because I know that issue is one that rubs all of you.
If there's time left after you comment on that, I'd like to know what your level of faith is, because the government members have asked you to have faith, that when they do the second phase of their review of the Employment Standards Act, they'll make it better for workers. How much faith do you have they're going to do that?
Mr Cooper: For the first part, on the Epton Industries, the one thing the minister has consistently refused to do, and there have been a number of letters written to the minister on this subject, is have a full public inquiry on why the place closed down and what exactly happened there. She still refuses to respond to that.
As for faith, I don't think anybody in the room has faith.
The Chair: Thank you all for coming and making your presentation here before us here today.
UNITED STEELWORKERS OF AMERICA, LOCAL 677
The Chair: United Steelworkers of America is our next group up.
Mr John Cunningham: Local 677.
The Chair: Oh, I'm sorry; it's not on our listing there. Local 677. Good morning. We have 20 minutes for you to use as you see fit.
Mr Cunningham: Thank you very much. My name is John Cunningham. I'll ask these two gentlemen to introduce themselves.
Mr Wayne Samuelson: I'm Wayne Samuelson. I'm a member of the local. I'm a former president.
Mr Cooper: Mike Cooper, chairman of the political action committee for USWA, Local 677.
Mr Cunningham: Thanks for the opportunity to speak today, Mr Chairman and committee members. I'm president of USWA, Local 677, representing 1,000 workers at a tire manufacturing facility here in Kitchener.
Bill 49 was portrayed by the current government as "facilitating administration and enforcement by reducing ambiguity," but this is cost-cutting with no sense of reality that could be attached, as it will increase ambiguity, not decrease it. The government was machiavellian in announcing the bill while the OFL was out of town, then feigning surprise at labour's outrage by saying that what was presented was merely technical amendments.
The government is trying to spear the labour movement in the side, but the insidious injury is to the unorganized. The government is selling off public assets and the rights of all working people.
With the promise of a review and restructuring of the act set for reading in January of this year, these are hardly mere technical changes but are the window dressing for the main event. In the Conservative government, no one said that the level playing field had to be horizontal.
On flexible standards, considering that each successive government has never encouraged compliance and responded only to individual complaints, to unionized workers this disregard of the prior floor of rights is a grave hardship, but to the unorganized it is plainly taking away basic rights which represent the most fundamental of working rights.
The "bad boss" bill allows the collective agreement to prevail over the minimum current standards. The government supposes that bargained rights confer greater rights when those matters are assessed together. The problem with such on-again, off-again legislation is that conferred greater rights are determined by whom?
Such a condition existed in the WCB act and was called "deeming." In Ontario, we deemed that permanently injured people could be parking lot attendants, never mind that few, if any, such jobs were real or occupied by many people who were disabled before the word "deeming" was pressed into service. One can find the same redundancy in job programs where overkill is used to train thousands of meat cutters where several hundreds of projected jobs may exist.
Employers will ignore the floor of rights, overriding the legal standards of overtime, hours of work, public holidays, vacation pay and severance pay, and the future of common work standards of lighting, heating and safety are only a step away from being gutted.
Some will ask, "Where do you find such an example of minimum standards that adversely affect the workplace?" In 1991, our employer shut down the Strange Street plant, throwing 1,400 people permanently out of work. They informed our plant that if we didn't open up the contract in midterm, turning from a traditional Monday-to-Friday to a continental schedule, they would close our plant too. In 21 days, under the gun, we voted in new hours-of-work standards. The company ignored the contractual ability to schedule weekend crews and this brought disaster to our people.
That schedule brought marital and family breakups in vast numbers. It brought stress and mental breakdown to people in every shape and size. How did hours of work do that? It did it because we only had one weekend in four and worked 56 hours straight before a day off. We worked seven days in a row, rotating between three shifts. No legal definition can hide that skilful manipulation of what a workweek is to sanitize it for general public consumption, to make it sound more harmless. This did not allow people to participate in society in any meaningful way, and the company refused to recognize the suffering because we were open for business.
Conferring greater rights is an issue of apples and oranges. Our local signed a document that "both parties agreed to resolve each issue in a manner consistent with cost parity to the previous eight-hour schedule," after forcing the company to a 12-hour shift in 1995. The problem is that our corporation can only recognize money as a cost and cannot and will not recognize the human cost that is so important to all workers, unorganized and organized. Is that not how the public arrived at common standards in the first place? I guarantee that employers will hold out dollars and cents as a meaningful standard, without even seeing that oranges nurture working people far beyond a cost. Since 1991, my people have learned that there are many things far more important than the almighty paycheque. In 1991, the minimum employment standards didn't save our people. What would have been the demands from the company if they had been able to "confer greater rights"? Would we have ended up working 64 hours straight? What is the human cost of being open for business at anyone's interpretation?
The government keeps stating that the key to all labour relations is internal self-reliance, yet it keeps on stripping away any legislation that may have given powers to mandated self-determination. If employer groups and the governments have not recognized that a huge inequity of power lies on the side of the employer, as a president of 1,000 members, rest assured, you have the upper hand. Self-reliance only comes with powers that are equally mandated.
The flexible standard, which is an oxymoron in terms, will not bring labour peace to Ontario. With everything on the table, the chance of settlement in our plant is much more unachievable and damn near impossible for the newly organized small service or retail workplaces. Where's my local's refund for doing your government's job?
The very essence of a government is to produce and enforce standards or laws for the good of all, not just the recognition of cost to business. There is a basic cost of doing business which cannot be avoided unless this government believes that corporations come before the basic essentials of life. Harris has wanted labour unrest and the authors of this bill are providing that atmosphere, where change and the erosion of minimum entitlements are the rule. The result is a diminishing standard of life and working conditions in Ontario, which spells unrest.
Those who drafted the bill should recognize the need for minimum standards that our old act provided and absolutely alter Bill 49. Local 677 stands in opposition to the bill as a whole.
On enforcement: The disappearance of enforcement and investigative powers of the Ministry of Labour is an abdication of power. The cancellation of the grievance settlement officers program is a sad example of a success being overlooked for a few dollars saved. The GSO program was hailed by both company and union alike and truly brought labour peace.
Bill 49 requires that all employment standards complaints be taken through the grievance procedure. Local 677 has, on average, 175 grievances a year with an average of 15 cases that proceed to some form of arbitration. The company can currently fire someone and it can take as long as a year and a half to arbitration to receive a written judgement. Arbitration costs can run as high as $70,000 per year. People lose homes and families in the interim on unjust discipline.
Now that we have the extra onus of representation and must arbitrate, who will pay or absolve my local of the costs of a "bull in the china shop" employer? They flagrantly inform us they will do as they please and suffer the legal fallout at a later date. This is simply opening our contracts. The contract is between the employer and ourselves, and you overstate your purpose and powers. Contract language is built up over many years, and to deem the whole of the Employment Standards Act into all contracts demonstrates either your ignorance of the collective bargaining process or your continual lust to bring workplace unrest and violence to Ontario.
Enforcement is intended to be a privatized deal. The private sector enforcing public legislation, instead of by tender, should private enforcement personnel be elected like sheriffs in the United States? Not. We as Canadians depend on the government to supply enforcement of legislation, not to hand it to the very people we wish protection from.
Arbitrators now make rulings that the employment standards officer rendered in the past. In the abstract, arbitrators are not bound by the maximums or minimums of the act, yet are lacking the investigative tools of former ESOs, which is sure to aid the employers seeking to disguise actions or schemes aimed at getting around the intent of the act and regulations. Where does the union get that information from? Must we subpoena and probe where the government would not or could not?
Enforcement for non-unionized employees: The old act was based on "what an employer owes an employee is to the most part what the employer had to pay." If you try through Bill 49, with maximums in place, you cannot seek full redress through the courts and could face lengthy legal wrangling, huge expense. This is still a loss of a civil right. If people cannot afford an avenue because of the barriers in front of an avenue, it's still a loss.
Filing within two weeks for the act or civil law is clearly unrealistic and a sham. If we suddenly fired every person in this room today, do you really think that you could know the three or four acts necessary to understand your rights and make a competent decision in two weeks? If you answer yes, you are a lawyer or a serving politician who shouldn't be allowed to answer in the first place. This is plainly putting handcuffs on the most vulnerable in society. Local 677 stands opposed to the manipulation of all workers through Bill 49.
Maximum claims: The maximum of $10,000 is to the employer's advantage, and clearly many workers are owed wages for long periods of time totalling more than $10,000. Many cannot afford lawyers when there is closure or dismissal involved, and this stimulates the worst employers to breach any or all standards.
Stop hiding in the bush. Spell out the proposed minimum. Please admit that minimum will be an asset to bad employers who can keep their violations contained under a six-month period to evade any legal penalties.
On the use of private collectors: Private operators have the power to collect amounts owing under the act, taking away the power from the MOL's employment practices branch. The ministry has always said that its problem in collection or enforcement of standards has been the employer's refusal to pay or play fair. The present government's continuing answer in all bills and action is to absolve itself from liability or responsibility. The government -- whether Bill 49, the omnibus bill, Bill 7 -- will absolve itself and leave unions and all Ontarians to the business wolves. If you don't want to govern because of the costs, get out of the counting house. Companies should also recognize and have their eyes open to the fact that Bill 49 will mean substantial increases in the cost of their negotiating and operating of their businesses.
The fee of the collector may be more than the amount to be collected, including seeking the approval of the director where settlement is under 75%, thereby allowing suspect discretionary powers with other people's money. Those under the poverty line may have to pay a fee to a collector. Are there no ethical questions to be raised by the authors? People are not commercial transactions. Public enforcement is desirable and must be preserved, and if it is lacking, then let's improve on it.
In the same manner, the government has reduced payments to WCB claimants on the perverse theory that if no money is available the injured will heal quicker. Bill 49 reduces the earned and owed payment on an equally perverse theory that paying money owed to workers is an unfair barrier to thriving business in Ontario.
Local 677 is gravely concerned that employees, particularly the most vulnerable, will be pressured to agree to settlements of less than the full amount as collectors will argue, if only for reasons of expediency, that less is better than nothing.
On limitations: Bill 49's proposed amendments changes a number of periods in the act. Most damning is the changing of the old two years' to six months' back pay from the time of filing. Complaints are usually filed only after the employment relationship is severed either by quitting or changing employers. This is a major restriction for workers denied their rights for a longer period of time and who can't afford civil litigation.
Workers who fail to file must take their employers to court. In contrast, the ministry shall have two years from the day a complaint was filed to conduct its investigation and another two years of enforcement of the payment of moneys owed. Added up, this means waiting up to four years for moneys being paid that are owed, minus collectors' fees. You must be Hood Robin, who robs from the poor and legislates to the rich.
Lesser, positive amendments: Local 677 does give credit for the amendments of entitlement for a vacation for two weeks per year which will accrue whether active at work or absent due to illness or leave. Many locations are ahead of Ontario, and this is catching up.
The pregnancy and parental leave amendments that accumulate seniority while on such leave are long overdue. Parental leave is an empty promise if both parents are working, as the woman certainly needs the full-time payment, if so desired. However, minimums are more desirable, as spoken to before, than the lack of any standard.
In summary: There's a great, obvious need to maintain basic standards that apply to all those employed in the province of Ontario. Allowing employers to be all over the scale on areas of hours of work, overtime pay, vacation pay, severance pay and public holidays is not the same as being open for business. Local 677 has felt the sting of standards that are far too forgiving to business interests. We have felt working 56 hours in a row at straight time. We have felt the separation of family at public holiday time. We have felt the outrage at an employer who avoids a proper overtime payment at a greater cost than the cost of the overtime itself.
We fear more for the unorganized, the most defenceless in the workforce. We fear for the worsening quality of life for all Ontarians, because as they suffer so shall we suffer.
You can't allow all to negotiate lesser differences in standards. You set them and they stand or fall on their own. Rights are not rights if you can't access them; they're illusions only. Enforcement is not enforcement if collection outweighs the award. Government is not government if you are not responsible for your actions or your legislation. Thank you.
Mr Duncan: First of all, thank you for your concern about unorganized workers. I know that has been the tradition of the labour movement in Ontario.
One very quick question struck me. In your brief you said, "Companies should also recognize and have their eyes open to the fact that Bill 49 means a substantial increase in their cost of negotiating and operating their business." I wonder if you can illuminate that a little bit and tell us what you mean by that.
Mr Samuelson: Just to get it straight, you're asking?
Mr Duncan: You had said in your brief, "Companies should also recognize and have their eyes open to the fact that Bill 49 means a substantial increase in their cost of negotiating and operating their business." It strikes me as being very true, by the way. I wonder if you could tell me how that might happen.
Mr Samuelson: I think it's symptomatic of the actions of the Tory government. The "bad boss" bill, for example, puts in place a system where you create uneasiness. You create a situation where people are forced into confrontation. It's symptomatic of exactly what we've seen since the election of this government. You need only travel around this province with your eyes open and you'll see confrontation. You'll see in workplaces workers who are forced into fighting for basic rights. Now you bring in a piece of legislation, for crying out loud, that forces more workers into situations where they can't seek justice.
Frankly, if the government was interested in really looking at ways of bringing about some kind of fairness in the workplace and dealing with some of these problems, it would be prepared to sit down with workers and listen to them. But the "bad boss" bill is an example of workers having rights taken away from them. It creates uncertainty, it creates tension and it ultimately creates instability in the workplace. That brings about added costs.
Mr Christopherson: Thanks very much, John, for an excellent presentation. It really is quite well done and proves the point that humour, when used properly, can be a very powerful tool. I think you've done that. That's really a good brief.
I'd like to raise one issue with you. We had representatives from the OPSEU local that represents employment standards officers come forward and raise a number of issues. They said, and I'm quoting from their document regarding the minimum standard -- I think you raise it in your document -- "Employees that handle cash, for example, such as waitresses, waiters, gas station attendants, cashiers etc, every six months an employer could automatically deduct $50 from an employee's paycheque for cash shortages" -- that's assuming it's a $100 minimum, for example -- "twice a year. The employer could purposely violate the law by deducting moneys under the minimum amount every six months -- a new double standard for the employer, an outright licence to steal." What would you say to that suggestion?
Mr Cunningham: Absolutely. The reference to 56 hours in a row that I was making was that if you have a legal definition of a workweek running Saturday to Saturday or Monday to Monday, as long as you group or cluster your hours of work around that dividing line, which is an imaginary line only in legislators' and lawyers' minds and not a reality on the floor, you can manipulate the workplace. Did we need that work standard? Yes, we did as a minimum. Do we need an improved work standard? Yes, we need a greatly improved work standard that wouldn't allow what is taking place. Stated as a law, you couldn't do it, but if you manipulate the law you in fact can do it. Yes, very much so.
Mr Baird: Thank you very much for your presentation. I would just like to get maybe a few comments and what not on the record. One of your presenters, Mr Cooper, mentioned that there was no time to present a full review of the Employment Standards Act to the Legislature. My office has just checked. The last year the NDP government was in power the Legislature of Ontario only sat for five weeks. There was certainly plenty of time to do it, but they didn't, because the Premier of the day had said he didn't want any more labour legislation. Of course, that information is on the public record with respect to the schedule of the Legislature.
You mentioned very briefly the collections. We're not satisfied with collecting 25 cents on the dollar. In 1993, the previous government disbanded the collections unit and displaced 10 employees in a cost-cutting initiative. My colleague the member for Windsor-Walkerville mentioned Professor Judy Fudge's statement. She mentioned in her brief that it was dissolved in 1995, but the fact remains it was dissolved by an NDP government. We saw the recovery rate go down to 20% and 15% the year after they did that. It got demonstrably worse, and it was directly attributed to the NDP government's decision to disband the collection agency and discharge those employees. It's very important to get that on the record.
We feel that bringing in private collection agents will do a terrific amount so the workers get more of their money, and that's incredibly important to put on the record. We're not satisfied with 25 cents. If we make a few little tinkering changes, we're not going to get the results. The previous two governments tried, to their credit; we have tried. It's simply not working. We need a major change.
We think every worker is entitled to every single dollar. The previous two governments have signed deals with employees if they've consented. All three parties have done it, said: "Listen, we can get you 80 cents on the dollar now. Would you accept that, as the worker?" The NDP did that; the Liberals did that; we've done that. We think the 25 cents on the dollar is simply unacceptable and we want to try a different area. We'll be held accountable for that. If we're not able to collect more money, we'll be held accountable for that. But we're not prepared to accept 25 cents on the dollar; it's just unacceptable.
Mr Cunningham: May I answer that?
The Chair: Very briefly.
Mr Cunningham: First of all, Mr Cooper hasn't made a statement today, so you're trying to make political hay while the sun isn't shining.
The Chair: Excuse me, Mr Cooper did make a statement before you came up here.
Mr Cunningham: This is my representation. First of all, this local will come to take on any government in power, not just the present one. I am here on my vacation without pay. I've driven from Kincardine to present this and I could give squat less what government is in power. The legislation that you have presented is terrible for the people of this province. So don't make hay while the sun isn't shining here. It has nothing to do with what party is in power; it's the bill that you've written and the bill you've presented and its effect on the working people of this province. That's it. The collection, with minimums and maximums, is not full dollar.
The Chair: Thank you very much for your presentation. I believe he was referring to Mr Cooper's comments, the previous speaker.
CANADIAN AUTO WORKERS LOCAL 4304
The Chair: Our last presentation of the morning will be CAW Local 4304, Mr Grosz. Just at the outset, I'd like to thank you as well for filling a vacant spot this morning and helping us better order our day here.
Mr Rudy Grosz: Thank you for allowing me to come to you and speak today. I am the president of our local. I represent the Kitchener Transit drivers and the fleet mechanics for the city of Kitchener. But I didn't come here to just represent them; I came here for myself. I was born and raised here in Waterloo and Kitchener. I grew up listening to my father, who was a Polish immigrant, telling me about how he got involved in trade unions before there were really trade unions. He was an organizer. He did a lot of things and he told me about them when I was growing up. I used to think: "Why did you do that? What did you do those kinds of things for? Why didn't you just stay on the farm where we were living and just work the farm? Why did you get involved in that stuff?" His one answer to that was: "I didn't do it for me. I did it for you."
I grew up in the 1950s and 1960s, and life here in Ontario was pretty good. I got married and had a family; got involved with a trade union for a little bit with the rubber workers, Local 80. I didn't like working in a factory, so I left that. I thought Ontario was a great place to be. I thought Canada was the greatest country in the world, I thought Ontario was the greatest province in Canada and I felt that Kitchener-Waterloo was probably one of the best places in Ontario to be. Like a lot of people who live here and work here, I didn't pay a whole lot of attention to what was going on because life was good. There were jobs. We had a fair amount of security. I didn't pay attention to the people who were out there making these things happen for me. My father was one of them. He's been gone for 25 years now and he can't see what's going on, but I do see what's going on.
I have six children. I have eight grandchildren. I'm not here for me. I'm here for them because the province of Ontario is changing and I'm not happy to see the changes that are going on. I see things that my father worked for disappearing, things that I didn't bother to take seriously when he was alive. I wish he was here now so I could tell him that he was right, because he told me these things would happen.
I became involved with Kitchener Transit about eight years ago as a bus driver and I started hearing things. People get on my bus and I like people so I talk to them. I hear about employers who hire people at a training rate of around $3.50 an hour, keep them on for 60 days, and then let them go and hire the next one, so their entire workforce is being paid $3.50 an hour. "Why don't you complain?" "What for? Who'd listen? I need a job. If I complain, I'm out."
Then it hit my own family. I have a son who went through college, graduated top of his class as a chef from George Brown College in Toronto, got a job in Waterloo at one of the best restaurants, one where the minister herself eats, or used to eat. He was put on salary, worked 60, 70 hours a week straight salary; no overtime, no holidays, nothing; six, seven days a week. I said: "What are you doing this for? They've got to pay you." He said: "I can't complain. I'll lose my job." My son is a diabetic; has to eat regular meals at regular times; take his insulin at the proper times with the right food amounts. One day his wife called. He's married and had a baby. They were rushing my son to hospital. He almost died because he didn't eat properly during these shifts that he was working. Ten days later he went back to work to find out he didn't have a job. They didn't need him any more. They didn't even bother to tell him. He walked in and they said, "We've replaced you."
He went to the labour board and he said, "What can I do?" They opened a file that thick of employees who had complained about that employer and nothing was ever done about it. People complained but the employer never paid, and they won't because they're out of business now. The sign's gone. They've opened a new restaurant under another name, formed another company, and they'll do it to the next bunch of employees as well.
Now we want to reduce some of these things? We want to change them? No. We're going the wrong way. You want to improve? I think change is necessary. I think every government that's been in power in the last 15 years has let things slide. You want to change it? Tighten up on the enforcement. Don't bother taking stuff way. You've got the laws there. You've got the standards. You're just not enforcing the standards. When people come in and complain, don't make them wait two years or a year and a half, and then the company goes bankrupt so they walk away. Make the employer pay. When you find a bad employer consistently doing these things, charge him a premium, make him put money in a pot to pay for these workers. There are good employers out there, some who won't do these things, but most employers will push it to the limit.
I work for the city of Kitchener; a good employer. The minute they heard that some of these standards might be changed, I was back at the negotiating table, even though I've just signed a three-year contract. They want to extend our work hours. They want to take away overtime benefits. They want to take what we call our spread time, which allows us to get paid extra if we're on duty more than 11 and a half hours. They want to take away our paid lunch. I guess now that you've withdrawn that part of the bill for the time being, in two weeks now when we go back to the table to talk about these things, they won't be bringing that up. But they will push to the limit, and we have to negotiate and we have to fight constantly to keep the things we've got. You're not helping anybody when you start taking stuff away.
So I came here today to let you know how I feel as a person. As a union president, I want my members to have the best. I don't want to keep fighting every day of the week to keep the things we've got. I want to see the province of Ontario improve, not get worse. You have the power to make it work. I'm not here to represent one political party or another; I'm not attacking anyone in that sense. Any party in power has the power to make the laws work if they have the will to do it. Lately, we haven't had the will to do it.
The Chair: Thank you very much, Mr Grosz. This time the questioning will commence with Mr Christopherson. We have three minutes per caucus.
Mr Christopherson: That was a very poignant presentation; thank you. The one question that comes to my mind in listening to not just the problems you've outlined but where you think the solutions lie is your reaction to the fact that there will be at least 45 fewer employment standards officers in place as a result of Bill 49 and the financial reductions to the Ministry of Labour in terms of what that says to you about this government's intent, since you believe so strongly that the real answer is greater enforcement, not less.
Mr Grosz: If you take away people who do the job, then the job doesn't get done. It's that simple. If you want to move, which we do, 110 buses down the street, you need 110 drivers. You take 30 drivers away, you only move 80 buses down the street. If you want to handle claims, you have people to do it. You take the people away, you don't handle the claims, or you delay them, make them longer.
Mr Christopherson: What would you say to the Minister of Labour, who was here earlier, and those chambers of commerce which insist that Bill 49 does not reduce in any way the minimum rights that workers now have in the Employment Standards Act?
Mr Grosz: I believe they do reduce some of the rights they have -- the limits that are there, the minimum limit, the maximum standard, the time frames.
Like I said, my son, when he was working, didn't complain because he needed the job. He had a wife, a small baby, he was trying to make a reputation for himself. It was his first job after graduating. He needed the work. That was one of the top restaurants. If he had lost that job because of complaining, he would have been blacklisted, which he ended up being, in this community, anyway. He ended up going to another community to get employment because they put the word out on him: He's a troublemaker. He could not get a job in his field in the region of Waterloo.
Mr Christopherson: How many people, or even a general description, are in a circumstance where they're likely to be afraid to make a complaint to the ministry for fear of reprisals, up to and including losing their job?
Mr Grosz: Probably a very large number. Even though we have a union where we are, we have people who will not complain for fear of losing their job even though we've assured them the union will protect them for doing it, and they still won't complain. So what about all the people in Ontario who are not unionized, in small industry and small business, where there are seven or eight people working?
Where my wife works there are seven people and they're treated like dirt sometimes, some of them in there. They never complain because it's the only job they've got. You look at the want ads, you go out and there's not much out there, so they keep what they've got and they put up with it.
Mr Joseph N. Tascona (Simcoe Centre): Thank you for your presentation. I appreciate your sharing your story with respect to your family in that particular restaurant because throughout the hearings we've been finding employers have been using bankruptcy and insolvency as a shield to get around the enforcement of the Employment Standards Act. That's one area that we don't have any control over, which is bankruptcy, in terms of protecting workers with basic rights and making sure that the system in terms of getting full wages for the work that you've put in is protected.
Nothing has been done. That act has been reviewed and they were supposed to have done something, but they have done nothing. It ties our hands in terms of saying, "How can we attack insolvent employers?" In fact, we have very limited methods of doing that other than going after the directors. That's a very difficult task, but it's been done. There was a recent case on that in terms of collecting for workers, but it took six years to litigate that case. But that doesn't protect the workers who are in the type of industries like restaurants and garment shops etc. That's one area that I think has to be noticed and I hope my friends are aware of that.
There's one other area, since you're involved in negotiations. Currently, under the act severance pay is a standard that can be contracted out by the union when they want to negotiate for their workers. Do you have severance pay under your collective agreement?
Mr Grosz: We haven't because we've never had a bus driver laid off in the city of Kitchener in the history of Kitchener Transit. Thanks to the transfer payment cutbacks from the government to the city of Kitchener of $1.5 million next year, we're looking at maybe 30 layoffs and we'll have to negotiate it now. That's why we're at the table.
Mr Tascona: But that's something that is contracted out. In other words, unions have the right to contract out of the Labour Relations Act to get the best deal for their workers. We've had some comments on that from other presenters with respect to plant closures etc and they are aware of that, but it's something that is not objected to by unions. They in fact have welcomed it, to be able to negotiate severance pay and contract out of the legislation to protect their workers.
Mr Grosz: The unions can do that. What about the people who don't have unions?
Mr Tascona: That's exactly right, but the thing is this is a standard that has been contracted out so to take it beyond that, it's not something that's new for unions to be able to protect their workers where the standard is not a minimum, and severance pay is one of those areas. We're looking at extending those in certain areas and that's been pulled now, but it's not something that's new, so I wanted you to be aware of that.
Mr Hoy: I appreciated your presentation this morning, the personal knowledge that you have of certain actions taken against particularly your son. We've only been on the hearings for the third day now and it's apparent that the act is going to need some amendments.
The government likes to talk about bankruptcy and I'm not suggesting that this is going to solve or is even maybe part of Bill 49. But I want to talk about bankruptcy for a moment and what the farm sector did in bankruptcies where grain elevators went bankrupt and there was no grain in the elevator or, as often is the case, the farmer was the last creditor. The farm community began a checkoff system whereby a few dollars per ton, or whatever the figure might be, was subtracted from their paycheque in order to protect themselves from those who went bankrupt.
It's that kind of innovative thinking and agreement among parties to take a certain action. We'll be looking at constructive amendments to this bill. I'm not suggesting that what I just mentioned about what the farmers' reaction was to bankruptcy would be any kind of an amendment that we would think of; I'm just saying there are people who have constructive ideas on how to maintain the importance of workers and the worldwide renown that Canada and Ontario are the greatest places to live.
The Chair: Thank you, Mr Hoy, and thank you very much again, Mr Grosz. I appreciate your taking the time to make your presentation here today.
With that, thanks to the two presenters from the afternoon who accommodated us this morning, we will amend the schedule and the committee will recess and return to this room promptly at 2 o'clock. The committee stands recessed.
The committee recessed from 1150 to 1400.
GUELPH AND DISTRICT LABOUR COUNCIL
The Chair: Welcome to all those in attendance for our afternoon session of the third day of hearings on Bill 49. Our thanks to the Guelph and District Labour Council for accommodating a slight change in the sequence. If you could come forward now, you have 20 minutes to divide as you see fit between presentation time and question-and-answer period.
Mr Clarence Boulding: My name is Clarence Boulding from the Guelph and District Labour Council, and this is Carol Hall, our financial secretary. I want to apologize, first off, that we've only brought 10 copies of our submission because of the cost. We find it improbable that people that don't have a lot of financing should be able to afford 30 copies and the cost that goes into it. It would be nice if there was some other way we could do it.
Another apology is that at the time we wrote our submission we didn't know that flexible standards were going to be withdrawn from Bill 49. We would appreciate being able to read our notes as written.
On behalf of the Guelph and District Labour Council we would like to thank this committee for the opportunity to hear our views on Elizabeth Witmer's minor housekeeping changes to the Employment Standards Act. It is not often enough this government holds public meetings so that the people of this province might have a say in the many changes imposed by the Tories. Unlike some others, we believe our democratic rights do not start and end at a ballot box once every four or five years. So we are pleased to be here.
Real progress only takes place in a society when there is compromise, and this present government in its pursuit of appeasing its private enterprise constituents has showed no compromise, no compassion, nor anything less than contempt for anyone with a different view than that of their own.
It should come as no surprise that the GDLC is opposed to almost all the current proposed changes to the ESA, the Employment Standards Act, considering we represent those in society that are sometimes exploited, often mistreated, and do not have the education or resources to help themselves. Our initial response is that these proposed changes will not improve basic employment rights, and over the course of our presentation we hope to show you why.
Our main focus will be flexible standards, which have been withdrawn, and enforcement under a collective agreement, as well as some brief comments on other key amendments.
It should be noted that the GDLC represents some 5,000 members of public and private sector unions in the Guelph area.
Flexible standards: As someone who has negotiated collective agreements on behalf of the membership of Canadian Auto Workers Local 1917, unit 2, the proposed changes under flexible standards hold ominous challenges for collective bargaining. In the past it was never necessary to include the ESA's minimum standards in the collective agreement. We had only to negotiate those conditions that exceeded the ESA. Right now, it is good to know that, even if no gains can be made at the bargaining table, members will at least be protected by a minimum standard that is the same for all workers in their particular sector. Bill 49 will change all that.
Bill 49 allows a collective agreement to override the legal minimum standards concerning severance pay, overtime, public holidays, hours of work and vacation pay if the contract "confers greater rights...when those matters are assessed together." This measure erases the historic concept of an overall minimum standard of workplace rights for unionized workers.
Even though Bill 49 allows tradeoffs on these standards, what could possibly make up for a parent who misses coaching their children's baseball game because, for example, they are forced to work overtime? The current minimum standards, even if abused from time to time, must not be for sale, because there can be no fair trades in minimum standards. As people involved in contract negotiations, we can say that three-year agreements like the one we have now in my workplace will probably be a thing of the past. The membership will not want to tie themselves down for fear of being stuck in a detrimental tradeoff position. Imagine collective agreements with terms of three to six months so the union can be sure that the employer's demands aren't too unrealistic for its membership, bringing an end to a period of time of long-term stability for both employer and employee.
Under the proposed changes it is fair to assume that employers will want to make changes to every contract, especially to hours of work. Employers are always complaining about the high cost of payroll taxes and one way around that would be to have mandatory overtime, allowing companies to employ fewer people than they do even now and returning workplaces to the sweatshops of the early 1900s, forcing people again into long hours of work and more time away from their families.
Please don't allow the minimum standards to be negotiated. Workers will only lose the few rights that they have now. The potential of this amendment to erode the standard of living of the working class of this province is enough to make the GDLC stand in opposition to the bill as a whole.
Ms Carol Hall: Enforcement under a collective agreement: As union people representing the members in our workplace, we are appalled to see that Elizabeth Witmer does not seem to understand housekeeping in the real world. A broom is actually for sweeping the floor and not for destroying valuable objects. She is sweeping away valuable employees or front-line workers, if you will, who keep businesses producing. Paying a fair wage for fair work is indeed not unfair. We believe that Bill 49 will cause job layoffs. Employers will employ fewer employees, working longer hours to get their work done. This is not job creation; this is job cremation.
Bill 49 will make far-reaching changes in the enforcement under a collective agreement, the foundation of the basic rights of union and non-union workers in Ontario. Unions have fought for many years for fair wages, good working conditions and a means of representation. When this failed, the union worker, who is also a taxpayer, had the Ministry of Labour to represent them. Under section 20 of the bill, section 64.5 of the act, unionized and non-unionized employees will no longer have the security of working in a safe environment. Employees working in a chemical plant may suffer long-term illness if the employer deems that safety measures are not necessary. Sorters at a recycling plant may be injured on the job because job safety equipment will no longer be supplied. Workplace harassment may be condoned if the employer turns a blind eye.
There are few people who can afford a lengthy court battle. Workers are not lawyers. They are not aware of the many avenues open to them and find out by accident when it's too late. Bill 49 will effectively remove their rights to redress and compensation from their employers.
The government will make it feasible to fire anyone who stands up for their rights or complains about poor working conditions. The Ministry of Labour already has more complaints than an enforcement officer can handle properly. The Guelph and District Labour Council currently receives calls from workers who cannot contact the employment standards branch because the phone lines are constantly busy. We are being denied overtime pay, meal breaks, severance pay and are being forced to work excessive hours. This is happening now. Bill 49 will make the situation much worse.
General comments: High unemployment and a stagnant economy have pressured working people to turn a blind eye to poor working conditions already. The number of complaints the Ministry of Labour gets now should be a good indicator that large numbers of employers are taking advantage of their employees.
Weakening the ESA will only make an imperfect system worse. Now is the time to be strengthening human rights in the workplace, not diluting them. The working men and women of this province deserve better than to be thought of as secondary to the higher profits of the business community.
These minor housekeeping changes also call for a maximum $10,000 cap for an employee that files a complaint under the act. It offers private enterprise a chance to make a profit off the collection of money owed to a complainant. This will offer monetary rewards to the employer to drag out his abuse -- the most he'll pay is $10,000, less if he makes a deal with the private collector -- rewards a private businessman with a chance to make a fair buck for collections. Indeed, these proposals will reward everyone but the poor employee, who will get shafted again because his government, the defender of the people, will not want to intervene on his or her behalf. Is this government so far from its constituents that the only individual's rights it's concerned with is the individual employer? We want the system of public enforcement to be maintained and improved.
Mr Boulding: In conclusion, with the exception of the proposed changes affecting vacation pay and those that affect seniority, service during pregnancy and parental leave, we find these proposals unprogressive. The Guelph and District Labour Council is an organization which is concerned with maintaining and improving basic societal standards such as hours of work, overtime pay, vacation pay, severance and public holidays. Bill 49 would eliminate the floor for these minimum standards.
We say this bill should be scrapped and another method found for cleaning up a government mess instead of putting it on the backs of the working poor. Since there is to be a major review of the act in the near future, we feel this provincial government shouldn't make any changes now but should be including all parties with a vested interest to make recommendations to the act as a whole. We feel that if government, business and labour come together in the spirit of compromise, the Employment Standards Act can be improved and it can be done without lowering anyone's standards or infringing on their rights. We'll just have to look further than the short-term bottom line.
Thank you, and we look forward these opportunities in the future.
The Chair: Thank you very much for your presentation, and that leaves us three minutes of questioning per caucus. This time the government members will be the first.
Mrs Barbara Fisher (Bruce): We had an experience on Monday in Toronto of having a worker represent herself. She's not a member of organized labour and therefore came before the committee representing herself. It had to do with enforcement, and specifically in her case it was enforcement with regard to collection of outstanding moneys owing to her. During her presentation she was pretty adamant that in fact government got in the way of collecting on her behalf over the period of almost two years and the outstanding debt of 180 hours worth of income still was not forthcoming. A single parent with three children, she was finding it very difficult.
I think if we're going to address the problem in a reasonable manner, we have to put all politics aside and do what we all know is best, and that is work on behalf of the workers. In this case the question with regard to private collection was raised. Where the collection agents in the past have been let go and the merging of that responsibility placed with the current staff, we find that we're obviously short of being able to meet the needs of not only enforcing the Employment Standards Act but also the collections side of it.
Given that all parties within the provincial government in the past have been unsuccessful in collecting on behalf of the worker, do you not think it's reasonable that we can give it a chance here, that perhaps private collection could work on behalf of the worker? In closing, on that question, I would remind ourselves we're collecting about 25 cents on the dollar right now for those workers. Deals have been cut in the past by all parties while in government. She sort of felt we were in her way in accessing her rights to her collection.
Mr Boulding: First of all, my answer to that would be in the collection of outstanding money, I think we're all aware that any time an employee is owed money, in some cases it's because the business has gone out of business, in which case then the employee is always the last person on the list to get paid.
Second, if the government had some rules or some penalties for employers who didn't pay the money that's owing, instead of just saying, "That's right, the money is owed to this person and you have to pay," if they had any regulations and penalties to enforce those things, that would work a lot better than to allow a private collection agency a chance to collect. Because what are they going to use to collect the moneys owing, except for the fact that they might be able to negotiate a lower amount than what's duly owed to the employee in the first place, in which case the employer, someone who has bent the rules or abused them, is going to get off with less money than they really owe to someone.
Mrs Fisher: But that's no different from today. Deals are cut every day right now with regard to getting those funds. It's not a new act and it's not a new practice. Right now, our workers are getting less than they're entitled to because those things are negotiated off right now. There just isn't a magic number. Do you think that's right?
Mr Boulding: What I think is right is that the Employment Standards Act and the Ministry of Labour have more teeth to actually penalize businesses, even if it came down to maybe pulling their licence for a year for not paying money that's owing to somebody. The point is here, the person that's going to lose -- we want the Employment Standards Act improved, we want the Ministry of Labour improved, and that might take more people to do the job.
Mr Duncan: Just along that line of questioning, the member for Bruce did indicate that successive governments and the branch have been short of meeting the needs. Do you think it was a good idea then to cut 45 employment standards officers at this time?
Mr Boulding: Definitely not. My wife herself has had a complaint with employment standards and it has taken 18 months for her to even have any response from the Employment Standards Act. When that person did call, with the letter that came to the house, she had 10 days to act on that, and if she didn't act within those 10 days she was going to lose out altogether. If it's taking 18 months for people to actually have their complaints heard, that's way too long. We do need more people there.
Mr Duncan: So given this, in your view, just because you're an observer, a labour leader, do you think the government is really acting to try to improve collection, or do you think it's acting to try to reduce standards?
Mr Boulding: I think they're actually acting to reduce standards. If they were really concerned about collection, they wouldn't have gotten rid of the $5,000 wage protection program they had in place for workers who were owed money.
Mr Christopherson: Further to the issue you raise on page 5 about the phone lines, how long has that been going on, that you've been having trouble with the phones?
Mr Boulding: The labour council itself has always gotten calls from people asking about employment standards, but it's only probably been in the last six months that people have been complaining that they can't even get to talk to anybody because the phone lines are busy.
Mr Christopherson: Do you have documented cases of that, at least of people telling you they've been trying to do that?
Mr Boulding: Oh, yes. We have a message pad and continually there's messages there that someone is looking for information on employment standards.
Mr Christopherson: That's interesting. Just above that also, this is an issue we've been focusing on today, and I think more and more it's crucial in terms of the impact of Bill 49 on non-union members. You state: "The government will make it feasible to fire anyone who stands up for their rights or complains about poor working conditions. The Ministry of Labour already has more complaints than enforcement officers can handle properly." Do you have examples of circumstances that people have told you about?
Mr Boulding: Have been terminated?
Mr Christopherson: Or where they're afraid to say anything because they're afraid there will be repercussions.
Mr Boulding: I think most people who end up terminated or are working in bad working conditions just know that the way the structure is set up so far, it takes so long to be heard. So no one acts in haste and probably people are working and living with bad conditions right now only because they don't want to put themselves in a position of getting terminated by making a formal complaint to the Employment Standards Act.
I'm not the recording secretary, and the recording secretary couldn't make it today, but she's the one who answers the phone and takes all these messages. I'm sure she has -- well, all of those cases would be people who would be afraid. Actually, we do have a letter on file even from complaints from people that probably have been sent to the employment standards or they haven't sent the letter to employment standards.
Mr Christopherson: The reason we're focusing on it is because there's a real difference of opinion about why people don't file sooner in terms of lodging their complaint. What we're hearing is a great deal of evidence that there are people who are afraid to raise a stink in the workplace because they have no protection and they're afraid and they don't have alternatives if they're fired, either to get their job back or to find another job. There's a real question as to whether that's the reality or not. I just wondered what it was from the perspective of the labour movement in Guelph.
Mr Boulding: I think even in our brief we mention that the economic situation for working people these days is such that there aren't a lot of jobs out there. Someone who has complaints and knows that their rights are violated under the Employment Standards Act may let those go in lots of cases because they'll be terminated from a job, and jobs aren't easy to come by.
Mr Christopherson: So high unemployment, in addition to low rights in the law, makes for a great climate for the unscrupulous employers that are out there.
Mr Boulding: For sure, and we see Bill 49 as a "big boss" bill which will just allow employers to abuse and get away with even more.
Mr Baird: Could I have a point of order, Mr Chair? Just a concern -- Mr Christopherson brought this up -- to the people presenting. Page 5 of the brief says "the phone lines are constantly busy." This is a concern and I think it's valid. If you could provide us with examples, I'd be happy to look into it for you, because it is a concern and we would look into it. If you could provide the specific details of the times and the number you're calling, I'd be happy to look into it.
Mr Boulding: Who would you want it sent to?
Mr Baird: To me; I'll give you my card.
Mr Baird: Just give me the number.
Mr Duncan: On a point of order, Mr Chair: That line has not been working well for a very long time. We would like the government to provide us information with respect to how they expect service to improve when they're cutting employees from that branch of the ministry.
The Chair: Thank you both for taking the time to make a presentation before us here today. We appreciate it.
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, FESTIVAL CITY LODGE 1927
The Chair: Our next group up will be the International Association of Machinists and Aerospace Workers, Festival City Lodge 1927. Good afternoon to you all. We have 20 minutes for you to divide as you see fit between presentation time and questions and answers. Would you be kind enough to introduce yourselves for the Hansard reporter, please.
Mr Charles Muma: I'm Charles Muma. I'm the president of Festival City Lodge 1927. With me are Darlene Dale, the chairman of our political action committee, and Michael Dale, who is an adviser we use and is also Darlene's husband.
Festival City Lodge 1927 is a member local of the International Association of Machinists and Aerospace Workers. We represent over 300 members of Dominion Controls. It's a company that builds parking brake assemblies in Stratford, Ontario. Making our presentation will be Darlene, the chairperson of Local Lodge 1927's political action committee.
Mrs Darlene Dale: Good afternoon and thank you for letting me speak to you.
The Employment Standards Act has been in need of improvement for several years. It has too many exclusions and loopholes which weaken its protection of Ontario workers.
There are several positive amendments in Bill 49. One such amendment is the entitlement to vacation pay. Under the proposed amendment, time lost due to illness or leave will still be used to calculate entitlement for vacation time. Second is the amendment that will ensure that all employees maintain benefit and seniority rights while on pregnancy or parental leave.
However, Bill 49 also contains fundamental changes to Ontario labour law by permitting important minimum standards to become negotiable. Prior to this bill, it was illegal for a collective agreement to have any provisions below the minimum standards set out in the Employment Standards Act. Section 3 of Bill 49 will allow a collective agreement to override the legal minimum standards concerning severance pay, overtime, public holidays, hours of work and vacation pay if the contract "confers greater rights" when those matters are assessed together.
This opens a can of worms. Since it is almost impossible to define a subjective term, it leaves the act wide open to interpretation. Such a large loophole will invite dishonest employers to skirt the law, leaving honest employers who wish to remain in business no alternative but to follow suit or leave for a jurisdiction where more predictable standards exist.
The vagueness of the bill also widens the scope of items to be negotiated, creating an environment that could lead to more work stoppages as unions and employers struggle through lengthy contract negotiations. The end result would be lowered productivity as both parties become engulfed in a war of tradeoffs.
Our contract is due to be negotiated next year and, as with most collective agreements, the provisions in the Employment Standards Act work as a bottom line from which both parties start their bargaining. Now let us suppose that there is no point at which to start negotiations.
For example, in division 320 of our plant, many of the employees have been working large amounts of overtime. One man was able to accumulate 40 hours of overtime in one week. The company could suggest a waiver of overtime rights for more vacation time. At the rate of 40 hours per week, the amount of overtime could reach 2,000 hours in one year. This amount of overtime would be too great to be compensated by vacation time in one year and therefore could only be used against the employee's retirement date. The tradeoff is an exchange of a monetary right -- overtime pay -- for a non-monetary benefit of early retirement. For the purposes of Bill 49, early retirement could be seen as a greater right when assessed together with the rest of the contract. Is it?
We have all heard through the media the experience of the Japanese with overextended work hours. They have found that extending hours of work can contribute to heart attack, stroke and even death. If this were repeated in Ontario, our already overstretched health care system would be further burdened. If the employee suffers a heart attack because of extended hours of overtime to secure an early retirement, can this really be called a greater right?
Let us put another proposal on the table. Let's say a management team would like to help their employees maintain a good work record and reduce the number of people who have to be reprimanded or fired because of their attendance. They propose a system to use overtime hours to cancel out incidents: any unauthorized leave from work such as leaving work early, lateness or sickness. Eight hours of overtime at standard wages will cancel one full incident. On the surface, this proposal sounds very appealing. It could be considered a benefit for the people who are close to being fired due to the restrictions of the attendance policy: "All I have to do is work a little overtime and my job is saved." On closer examination, this benefit falls short. The employee has lost a day's pay through absenteeism and is now being asked to relinquish eight hours of overtime pay. In essence, the employee just paid the company four hours' wages to keep their job.
It may seem improbable that a company would offer such a formula to its workers, but a similar tradeoff of rights is being used in my workplace at the moment: "Employees may substitute one half day vacation in lieu of taking a leave of absence for specialist appointments etc, provided both half days are scheduled at the same time. Maximum of up to two single days per vacation year." This is taken from the Dominion Controls attendance policy, as appended to this document.
On the surface, this seems a reasonable deal. Employees may take vacation time in order to keep their attendance record within the allowed limits of 10 days in a two-year rotating window. The employee is asked to trade their right of vacation time to keep their job. Under this formula, a new employee with only two weeks vacation loses even more, as two days traded for doctors' appointments sends their allowed vacation time below the two-week minimum standards. Do they get time from work? Yes. Is it vacation time? Well, my idea of vacation time is not sitting in a specialist's office waiting to hear if I need an operation or cancer treatments. These employees are already owed vacation time by the company, and making them use this time up as a means of payment to the company for a job they already have is a glimpse into what awaits other workers in Ontario due to the change in Bill 49.
The government must believe that the provisions of the Employment Standards Act are not the minimum at all but more than the working people of Ontario deserve. If the standards are truly considered to be minimums, it would be impossible for them to be reduced or compromised as a tradeoff for an increased benefit over and above another standard. It is the government's duty to set clear standards so that our society represents a level playing field for all. Both industry and labour will suffer under the proposed changes to the Employment Standards Act contained in Bill 49, but the big loser will be the Ontario economy, which, gridlocked in endless trivial negotiating between capital and labour, will lose its competitive edge in the global marketplace. I implore this committee to reject Bill 49 as it now stands and to urge the government to work together with labour and capital to reach a truly equitable revision of the Employment Standards Act. Thank you.
Mr Duncan: Thank you very much. This theme about the economic cost of these amendments and how it's going to impact on collective bargaining and what it will do to the investment climate in Ontario is one that is emerging in terms of union presentations. We're hearing this from different organizations. Your view then, just to make sure I understand it very clearly, is that the sections of the bill that pertain to flexible standards, if they come forward with them in their second round, and also the notions around arbitration and so forth in the bill, will ultimately cause unions, number one, to negotiate contracts that are shorter in length; number two, make those negotiations more difficult; and number three, in your view, result in a situation where collective bargaining is slower and more confrontational. Am I understanding the gist of it?
Mrs Dale: Yes, that's exactly my position. Right now, as I said, when we go in we have a bottom line, a base point to start with, and everybody at the negotiating table understands that. Then we work from there. If, on the other hand, we don't have a starting point, it's almost as if we're going in for a new contract; we've started all over again. This makes everything more complicated and much more lengthy. Now you're going to have people working without a contract while we're trying to negotiate one or you're going to have strikes when the negotiations to get back to work are extended because there are so many items to be taken into consideration. All of this is going to lead, as I said, to less work time in Ontario, less productivity. You can't have productivity if people are negotiating back and forth whether or not they want this -- "Do I want that?" "You can't have this." It can be endless.
Mr Duncan: The next time I hear representations in the business community that this doesn't have any effect, that it's just housekeeping, would it be fair for me to suggest to them that unions are putting them on notice now that if the government proceeds with these kinds of changes to the Employment Standards Act, they can expect an even more difficult bargaining climate and a more costly bargaining climate?
Mr Muma: Definitely, yes.
Mr Michael Dale: I think the point of this is that these so-called housekeeping changes could lead to an endless chain of calculations. If you try to formulate some way of trading off all of these and getting these intricate calculations, by definition they're going to take more time to do. Contracts are going to have to be larger and are going to be shorter in duration.
If there was a general theme to this bill, especially where it talks about flexible standards, for me it's the idea that it's almost creating an anarchy in the labour market. If anyone doubts that anarchy is very difficult to do business in or that business people run away from unstable situations, I suggest you open a curio shop in Sarajevo. You'll find out that business as well as labour wants to have at least a solid framework from which it can work, and it is the duty of government to provide that framework. If government abrogates that duty, then there is no alternative but chaos.
Mr Christopherson: It's turning into quite a fascinating day. I think this is probably the most in-depth look at what the various packages might look like and the implications that could result at the bargaining table from a move like this. You've really gone into a lot of depth and backed it up with some current examples.
What I'd like to ask you, since obviously you've put a great deal of thought into this, is, what do you see as the implications for either a weaker union or an isolated local union in a concessionary round of bargaining where the employer is putting everything on the table as a takeaway and now they've got the right to go beyond the employment standards? What sorts of results do you think we might see in a situation like that if the government went ahead and allowed negotiated agreements that have standards below what are now the floor in the Employment Standards Act?
Mr Muma: I can speak not only as president of our lodge; I also sit on the labour council in Stratford. I know there is a small union that are affiliated with no one and they just came out of Reliance Electric and negotiated a seven-year deal in which they got next to nothing. I think this is what you're going to see. They have no support from anyone and they're on their own. As an international union, we do have the support of our brothers and sisters. One thing we are doing in the machinists is looking an unifying with our brothers and sisters of the Steelworkers and the United Auto Workers. I think you will see eventually more and more of the smaller unions doing the same thing.
If this goes through, I can see confrontation, speaking as a person who sat on a picket line not more than three weeks ago at Crane Canada. It was a strike that did get a little violent even though we tried to be non-violent. This is something we haven't seen in the city of Stratford in years. It's coming because, to me, employers have seen -- "Hey, listen, we've got the government on our side now," and they're pulling our rights back. That's what I see forthcoming.
Mr Christopherson: I wouldn't disagree. In fact, I think if you take a look at what we said would happen with Bill 7 -- and it is happening -- once you reintroduce the legal right to use scabs, you're looking to have violence on the line. It's unavoidable. It's regrettable, but it's unavoidable. Now what you're suggesting to me is that some of the negotiations are going to get so acrimonious because unions will be literally fighting for their very existence because they don't even have employment standards as a floor. That, added to scabs and the other changes in the laws, is just going to create more and more labour unrest and unfortunately even violence on a picket line.
Mr Muma: I see it coming. In a conservative city like Stratford, if you had told me a couple of years ago that would have happened, I wouldn't have believed it, until I saw it happen on July 25 at Crane Canada.
Mr Christopherson: Maybe if there's a hope, a miracle, for once the government might listen to what the people are having to say about what's going to happen. They didn't with Bill 7, but they should pay attention to the fact that any violence that continues out in the province of Ontario is clearly the government's. They own the responsibility for every person who gets hurt because they've created the environment and allowed the circumstances that have brought it about.
Mr Jerry J. Ouellette (Oshawa): Thank you very much for your presentation. I come from a riding where the local union has been able to negotiate paid personal holidays; paid spa weeks, as they're called; paid birthdays off and that. Don't you think the flexibility in this will allow your union more strength and negotiating ability to focus on the areas that your membership wants to concentrate on?
Mr Dale: The problem with your question is that the current act already allows for employers to negotiate increased benefit. There's no reason to change the act for that. The change in the act is so that you can reduce some of the minimums, supposedly for some greater increase when assessed together. I reject the premise of your question. Certainly, some employers pay for birthdays off, they add more holidays than are demanded by the standards, but I don't see that as an argument for reducing the minimums.
Mr Ouellette: No, what I'm saying is that you now have the ability as a union to focus on areas where you would like to strengthen up and possibly lessen down some if you thought necessary. I see the union as obtaining a great benefit for the local members.
Mr Dale: Certainly unions are a good benefit to workers; I wouldn't disagree with you there. But what we're talking about here is a minimum standard, and if you have a minimum, that implies by definition that there's nothing beneath it, that anything beneath it is subminimum and therefore unacceptable within our society. What you're talking about is that the unions now negotiate greater benefits, but what you're now going to ask them to do is negotiate the very basic things that we as a society should be able to expect, and that is the duty of government; that is not the duty of unions.
Mr Ouellette: Why would they go below the current standards that they're negotiating for, which are extremely higher than what's already out there?
Mr Dale: Why did you suggest that in the bill? Why did you suggest that minimums could be reduced? Because that is what the problem with flexibility on standards is. You are implying that these minimums can be reduced below minimum in exchange for greater benefits in some other area. But a minimum is a minimum is a minimum.
Mr Ouellette: I don't see the local union going below any standards that it currently has.
Mr Dale: I don't see them. What I do see is a business community that may take advantage of that. I'm not saying that all employers are bastards or anything else. The problem is that by definition the statement that every employer is an upright and wonderful citizen is also fallacious. We have to assume that there are some out there that are going to take advantage. If you get into these bizarre formulations of how to trade off minimum standards, what is going to happen is that some will take advantage of it. Honest employers are going to be forced into a position to either become dishonest and cheat their employees or they're going to move to a jurisdiction where they know there's a level playing field, there's a framework set up that means something and a government with teeth in it.
The Chair: Thank you all for coming before us here today and making your presentation. We certainly appreciate it.
Have we a representative from the Halton-Peel Coalition for Social Justice? How about the United Steelworkers of America south central area council? Waterloo Public Interest Research Group? I have an urge to make an editorial comment, but I will refrain.
WATERLOO REGION COMMUNITY LEGAL SERVICES
The Chair: Waterloo Region Community Legal Services?
Ms Sharon Twilley: I'm here.
The Chair: Excellent. Thank you for being more than prompt, well in advance.
Ms Twilley: I thought something like this might happen. No reflection on those presenters, but it's always wise to be prepared.
The Chair: For those making comments from the gallery, every group was asked to report well in advance of their appointed time, at least 30 minutes.
The Chair: Unfortunately other people will be denied the right to speak because they've taken spots up.
Let's proceed with the group that has been gracious enough to join us here today. Welcome.
Ms Twilley: Thank you very much for hearing from me. I have prepared a written brief. I've got two handicaps today. I've got a throat infection, so I hope my voice hangs out, and I've forgotten my reading glasses. I hope the second problem will be to your advantage. I'm sure I'll manage. If I hold it far enough away, I'll be okay.
I'll quickly go through my paper, just hitting some of the highlights. I don't intend to depart radically from it; I will use its organization. I intend to talk today only on behalf of unorganized workers, not that we don't have concerns for organized workers, but their views are well represented before you.
Our perspective is laid out in the first page of my brief. It tells you who we are and who our clients are. I think that as one of 70 community legal clinics across the province we have a somewhat unique perspective in that our clients are screened for income and assets and therefore we do see the poorest people with all kinds of legal problems and from all kinds of backgrounds and perspectives. I have described some of the reasons why the people we see have had difficulty maintaining steady employment in the workforce, again on the first page of my brief.
I'd like to start out with the substance of my brief by just telling you a little anecdote, because it really came back to me when I looked at this legislation and I think about what may be happening with the rest of the review, or what I'm guessing may be happening with the rest of the review of this act. When I was a law student I had to look up something concerning employment law. I went to a well-known digest of legal principles that we all learned to use and I couldn't find anything under the heading "Employment Law" until someone helpfully told me that I needed to look under the law of master and servant. There was an act of the Legislature which was on the books for over 100 years and didn't make it into the RSO 1990, was finally repealed, but it was called the Master and Servant Act. I recommend it to you for reading. It's interesting and it was still used somewhat up until 1990.
I'm here to speak on behalf of what I see as the most vulnerable workers, the most marginal workers, because these are the people with whom I'm familiar. First of all, we'd like to endorse the position taken by Professor Judy Fudge, from whom I believe you've already heard. She's a genuine expert in this area of law and there aren't very many of them. We also endorse the two provisions which clarify entitlement to vacation pay and to pregnancy and parental leave.
The first point I'd like to make, though, is that it's our position that it's really premature to move ahead at this time with changes to the procedure and to the enforcement of this act before getting to the substance of it. I find it difficult, without knowing what the proposals are for new legislation, for new standards, to talk about how we enforce them.
To me, the Employment Standards Act has always been the most important to the most vulnerable worker. It doesn't apply to me. In my profession, we're excluded. The well-paid worker in a traditionally middle-class income job has never really needed the Employment Standards Act. By and large they were able to negotiate terms of employment which exceeded the minimum standards and they were by and large adhered to by responsible employers. Vulnerable workers were not in that position. I think the impact of changes to the standards and the impact of changes to these procedures will fall hardest on those people.
I think for the future that those of us who were excluded from the act without much complaint and those of us who didn't need the act are going to be a smaller and smaller portion of the workforce. Is this the future we want for the kids, for our children: lower and lower standards, lower and lower pay?
I refer to Professor Fudge's position with respect to the reference to the global economy as a rationalization for changing things, and I think she makes some very good points there. I've also recently read Professor David Foot's book, as I understand very many other people have. I have a real concern about the devaluation of work and the treatment of people as commodities and not as fellow human beings in the workplace. This isn't the way to get a good product. This isn't the way to get a quality product. This is not a way to produce a good service.
The results of Bill 49, in our submission, will be both explicitly and implicitly to deregulate the workplace. I explain at page 3 of my brief why I think that's true, why we think that's true.
With respect to why people don't complain, when I first started practising law, people came to me and described what I identified as employment standards breaches. I said: "Go to the Ministry of Labour. You can file a complaint and they'll look after it." They said: "I can't do that. I'm afraid to. I'll lose my job." This was in 1980. I continued to hear that through the 1980s, even the late 1980s, though not as often. I hear that today. I would say, when I was a very junior lawyer: "That's not a problem. The Employment Standards Act protects you from retaliation. It's an offence under the act to retaliate against you for making a complaint." I still say that, because I think people have a right to know that, but I also now say, "But I know it won't make any difference to you."
People are not prosecuted for retaliatory behaviour. The standard of proof is beyond a reasonable doubt. My clients laughed at me when I said that, and they were right. I think they were right; it isn't a useful protection. That's why 90% of people complain after they leave their jobs.
These people have no bargaining power, and their alternatives are few. They now can't receive social assistance for either three or six months if they quit their job or are fired for misconduct. Employment insurance is increasingly difficult to get, with the same sanctions. You're not eligible at all if you're basing a claim on leaving work without cause, which is very narrowly interpreted, or if you are fired for misconduct. It's easy for the employer to say you were fired for misconduct, and they may very well be believed. It's a big risk. That's why people don't complain until they leave their jobs.
I have something a little bit nice to say about workfare on page 4, and I'll leave you to read that.
We also oppose the forced choice between litigation and making a complaint. I've consulted with colleagues in private practice who work both for employers and employees and with members of our board of directors who have input into the policies and procedures that our clinic staff undertake. I sort of facetiously call this a make-work project for lawyers. If you want to read through why I say that, it's in the middle of page 4.
People are going to need to get a legal opinion, and they're going to wait a lot longer for some money. The concurrent complaint and litigation approach worked perfectly well. All it does is protect some employers from potential litigation that might have been successful, because people will need money a little sooner than they might get through the litigation process. Most wrongful dismissal actions are settled, very few of them go to trial, and there is a different test applied by the courts.
We also oppose the minimum and maximum recovery limits, for reasons I set out. I think that employment standards officers probably already exercise some discretion, and they properly should, with respect to complaints that are frivolous or obviously unmeritorious. Why not just explicitly give them the discretion for complaints under some reasonable amount? Merit and pricetag are not always synonymous, for reasons that I describe here. Even the courts never apply the de minimis concept indiscriminately. It's a discretionary power for good reason. Leave it to the employment standards officer.
I give an example of a situation where I think using a $100 minimum floor results in a real injustice and ties the hands of an employment standards officer in a situation I think we all agree ought to be remedied.
I have a couple of suggestions to make employment standards officers' jobs easier and therefore maybe a little quicker and maybe they can push a few more files through. Reverse the onus of proof. With respect to a lot of complaints, I think an employer who has a valid defence to the complaint can quickly prove it. Send them a notice saying: "We have a complaint. It seems to establish the basis for an order. Tell us what your response is." If there's no response, you make the order. There can still be provision for appeal and so on, but that would save a considerable amount of time. Employers know whether they've breached the act or not probably in most instances.
Increase the upper limit of the penalty element of the order. That may help with cooperating more quickly and help cover the real costs of investigation and enforcement here.
I really advocate some greater focus on prevention. Just one little idea I have, for example, is with respect to education. Get materials out to employers with the Revenue Canada payroll deduction tables. They all get them. They all get them regularly. Isn't there some way you can piggyback on that and share the postage? It's probably impossible, but it's an idea. Let's be imaginative about ways to get information out both to employers and workers so that some of these breaches don't happen.
I'm not convinced that all employers are bad; I'm not convinced that all employers are good. I think there's a spectrum from Dickensian to superb and there are people in the middle who, with better information, could do a better job and cut back on the need for complaints. The ministry knows who the bad employers are. They've got files. Every employment standards officer and every office knows who they are. We all know who they are. They're messing around with everyone. They're not remitting source deductions, they owe EHT premiums, they owe money to the Workers' Compensation Board, they owe money to their suppliers. They're juggling everyone around and they're creating problems for everyone. Focus on them. Deal with them.
Another idea I had is to make employment standards officers' orders, not just review decisions, but actual orders made after investigation, after complaint, and after there's a determination that there is a basis for a complaint, make them a matter of public record. I don't mean publish them in the paper, but make them available to the public, and if the media wish to deal with them let them do so. That enlists the public in helping to enforce the standards, and it shouldn't be costly at all. Have them in a book on the front counter and anybody who wants to look at them can do so.
I have some suggestions for the improvement of collection and enforcement which I've described at page 6. Again, I don't want to go through those in detail. They're available for you to read. I'm not sure what my timing is here, but I hope I haven't gone too far over.
The Chair: We have about five minutes to go.
Ms Twilley: For me to continue?
The Chair: Yes. Five minutes in total. So depending on how much time you want, if any, for questions.
Ms Twilley: Let me talk about some of the kinds of standards violations I've seen and the difficulty that people have in coping with them. I have to say that in the past our role has been essentially to assist workers who've come to us and sort of organizing the information they have, organizing any evidence they may have, and pulling it together so that it's coherent, maybe asking them some questions about issues they don't realize are important, getting the answers from them, and either putting this together in written form or some kind of brief so that they can take that with them to the ministry. The employment standards officer's job, I hope, is made somewhat easier by that. There is still the formal complaint process. People must still make a complaint before an officer and go through the investigation process.
I have to say that has worked well in the instances where we have actually done that, and we've had a good relationship with the employment standards officers who have at least kept us generally informed of what was going on. But that really is all the role there is for us to play, because it is the mandate of the employment standards officer to investigate, and they have, very properly, very powerful tools to investigate. They can do that job far better than I can.
This comes back to litigation. Litigation isn't really a substitute. I think litigation over an employment standards breach really isn't a substitute for the investigation process. It isn't an adequate substitute. Assuming a $100 minimum recovery level, if you're told to go to the Small Claims Court for $100, I would tell anyone who wanted to make a Small Claims Court claim for $100, in economic terms forget it. It is not worth your while.
If you really believe in the principle and you really want to do it go right ahead, but it's going to cost you money even if you are successful. It costs $35 to file a claim in Small Claims Court. You have to pay that to the clerk. That is recoverable with the judgement. You used to have to pay $20 to serve the claim because the bailiffs attached to the court did that. That's no longer available. You have to pay a private process server. In some instances you can probably do it yourself, but then you have to get together an affidavit of service. A lot of people don't know how to do that, so you pay $30-35 to a process server plus mileage if it's outside the immediate area. You can take a day off work to go to the trial if you're working, if there's a trial, and then if you do get judgement you have to pay for the various enforcement writs to be issued out of the court. You also may have to pay a private bailiff to pick up property or to go and ask for the payment to be made.
All these fees are added into the judgement, granted, but you may very well be throwing good money after bad. This is why I come back to my statement to give the employment standards officers the discretion with respect to claims of a small amount, and I think that is appropriate. Claims for small amounts are sometimes about very important issues and may be about quite a number of workers. Some claims for large amounts are very easy to investigate and very easy to determine. The amount really doesn't correlate completely, and the costs of litigating a $100 claim or a $200 claim or a $300 claim are so high that it isn't worth while.
I don't have a lot to say about whether it makes sense to litigate a $10,000 claim, but I think some of the issues are the same. In private litigation, in order to get information about what the other party has, you go through a process called discovery. It's very imperfect. There are lots of opportunities to hide information. You can't get copies of shredded records. It's a cat-and-mouse game about trying to get information from somebody who doesn't want to give it to you. You have no opportunity to go in and actually look at the records, which an employment standards officer does. Why deprive people at some notional level of that opportunity, when the claim for more money is not necessarily harder to investigate? It might be and it might not be. There's far from 100% correlation.
Have I used up my five minutes, or is there something else you'd like me to touch on?
The Chair: Actually, we've gone over the 20 minutes. I didn't want to cut you off there, but I want to thank you very much for taking the time to come and make a presentation before us here today.
I'll make one last call for the Halton-Peel Coalition for Social Justice. They have indeed not shown up.
UNITED STEELWORKERS OF AMERICA, SOUTH CENTRAL AREA COUNCIL
The Chair: Next on our list is the United Steelworkers of America, south central area council. Good afternoon. We have 20 minutes for you to divide as you see fit between either presentation or question-and-answer time.
Ms Colette Murphy: My name is Colette Murphy. I work at Walker Exhaust in Cambridge and I'm the president of the Steelworkers' south central area council. I represent approximately 8,000 Steelworkers in the area -- the area consists of Kitchener, Waterloo, Cambridge, Guelph, Elmira -- and it's on their behalf that I'm speaking with you today.
We believe that Bill 49 will seriously jeopardize the rights of workers to basic employment protection in Ontario. We'd like the government to reconsider its position before depriving workers of the minimum standards which currently provide basic employment protection. These amendments will make it easier for employers to deny their employees the minimum wages and benefits set out in the Employment Standards Act.
Just let me give you an example of an employer in Cambridge that I know of who's already violated the act and got away with it. A friend of mine who works part-time, approximately 20 hours a week, and is unorganized received her paycheque, which included pay for a statutory holiday. The cheque was for considerably less than she was entitled to, so she spoke to her supervisor about the error. She was told that there was no error, that the employer was now using a different method of calculating moneys owing for statutory holiday pay. It was explained that the employer had gone back three months to find the average daily pay to do the calculation and because she'd had some time off with the flu in that time period, she had received less than her regular day's wage.
I encouraged her to file a complaint with the Ministry of Labour under the Employment Standards Act because the act clearly says that employees who qualify for statutory holiday pay are to receive their regular pay for that day. She spoke with other employees who had also received less pay than they were entitled to under the act, but no one would come forward with her to make a complaint. They were too scared of losing their jobs. The employer had said that if they don't take less pay they were going to get their hours cut and they could possibly have layoffs. She wouldn't file on her own for the same reasons.
If this is already happening in our workplaces, then Bill 49 is a gift to unscrupulous Ontario employers, who will view the amendments as an opportunity to get minimum workplace standards or trade them for increased hours of work.
If the ministry would accept third-party complaints of violations of the Employment Standards Act, I, on their behalf, could make a complaint, therefore taking away the fear of reprisal from the employer in order to protect employees by preserving their anonymity. Third-party complaints which establish a violation by the employer should trigger an audit or an investigation.
Under the current legislation, an employee has up to two years after the facts which give rise to the violation of the act arose in order to lodge a claim. The employee is entitled to recover any moneys owing for up to two years. Very few employees file employee standards complaints while they're still employed. Over 90% of complaints are filed by people who have left their employment. They were fired, laid off or possibly found other employment.
An employment standards claim investigation will not begin until nine months after the claim is filed, so enforcement can take up two or three more years. Despite the lengthy delays in enforcement, this process is quicker than civil proceedings in the General Division court.
Bill 49 reduces the period for which the employee can recover money owed from two years to six months. Employees who are owed more than six months' money will be forced to either drop their claims for money owed in excess of the limitation period or bring a costly and expensive legal action through the civil courts. I guess you've already heard from the speaker prior to me what those costs would be.
For monetary claims beyond the six-month period and in excess of $6,000, employees will not be able to go to Small Claims Court but will be forced to hire a lawyer and file legal action in the Ontario Court (General Division). Currently the Ontario Court (General Division) is so backlogged that it takes between three and six years for an action to be resolved.
Another area of the Employment Standards Act that concerns us is the lowering of the Ontario wage protection fund payments from $5,000 to $2,000. There have been a number of plants in our area that have either moved south or have declared bankruptcy. Many of these employees would not have received any moneys owing to them if it had not been for this fund. Employees will now have to choose between recovery through the more expeditious and cost-effective path of making a claim through the ministry or filing a lengthy and expensive civil suit with the courts. The injustice of this choice which employees are faced with is made worse because claims through the ministry are capped at $2,000 and will not include recovery of severance and termination pay.
As the law now stands, it is the employee's choice to forgo his or her remedy under the Employment Standards Act. What Bill 49 will do is eliminate the employee's choice by forcing him or her to go to civil court. After filing a claim, employees will have two weeks to seek legal advice and reconsider their options before their decision not to pursue court action is final. Employees who choose to go to civil court will be forced to wait between three and six years for the wages owing them by their employers.
Many of these unemployed people do not have the money to pursue their claim through the courts and may also lose most of the moneys owing them on legal costs, which they cannot afford.
An emergency alarm sounded.
Ms Murphy: That doesn't mean my time is up, I hope.
The Chair: We'll check and see if there's any validity or whether it's a false alarm.
Ms Murphy: Okay. Employees who are covered by a collective agreement will have to grieve the alleged violation of the Employment Standards Act using procedures outlined in their contract. Arbitrators will have the power to order payment of money owed to employees by their employer. If the employer cannot pay, the order could lead to employees being paid under the employee wage protection fund, which will only pay $2,000 per employee, excluding termination and severance pay. These changes will force unionized employees to rely on the expensive grievance arbitration procedure. In effect, the Ontario government is proposing to privatize employment standards enforcement for unionized employees.
I would like to say that we do agree with three amendments that have clarified pre-existing jurisprudence of referees. The first one would provide entitlement to vacation pay of two weeks per year, whether or not the employment was active. The second one requires employers to pay termination pay within seven days of an employee's termination. The third is, the calculation of service and length of employment is to include time on parental and pregnancy leave.
We have many objections to Bill 49, but I'm sure that you've heard most of the other ones today. I would like to close by saying that this bill undermines many of the basic principles on which minimum standards legislation has historically been based. We believe that both organized and unorganized workers will bear the burden of its harsh and unprecedented attack on these basic principles.
I thank you for your time. Colette Murphy, on behalf of the Steelworkers, south central Ontario area council.
The Chair: Thank you very much, Ms Murphy. I'll build this distraction into the time we give the total presentation here. The next up to start questioning this round will be the New Democrats, and we have a generous three minutes per caucus.
Mr Christopherson: Thank you very much, Colette, for that presentation. It's interesting that you raised the issue of the Ontario wage protection fund gutting, because earlier on one of the government members -- I don't know if you were present -- said in response to another presentation that in terms of the rest of the changes that are yet to come to the Employment Standards Act, the working people in this province should just have faith that the government will take care of their needs. It looks to me like you, including this, agree with us that this government has no intention of protecting or enhancing the rights of the most vulnerable workers. That has got to be one of the best examples there is, particularly when you link the gutting of that desperate last ditch fund for money owed to the fact that one of the first things this government did was give back to employers a $50-a-year business filing fee that was there to recoup some of the administrative costs of handling those claims.
So it's clear whose side they're on. If the government really wanted to send a message that it cares, it would revisit that decision, reinclude termination and severance and put the fund back up to $5,000, which really wasn't enough either, but it was certainly better than what we had before, which was absolutely nothing. People should not forget that was part of their anti-worker Bill 7, which of course was the parent of the bad-boss Bill 49.
When you raise the issue of the lowering of standards and the fact that you expect more examples of the kinds of circumstances your friend was in, do you see us having the ability to find out about these cases in any way or do you think it's also going to be difficult to even know what's going on, because people will just throw their arms up in the air and say, "There's nobody out there for me"?
Ms Murphy: A lot of people don't come forward because they're scared. They're scared of losing their jobs. We all know that. We all know people who have been hurt. This is just one example. Yes, they feel as though there's nobody out there. The only alternative they have is people in the unions. They see us as the only alternative. One thing the government is trying to do is to stop organizing. They've made it very hard for people who are stuck in these circumstances to actually reach any kind of settlement. They are turning to unions as the only alternative. Despite Bill 7, we have been able to organize. We've been very successful, especially in this area, in organizing because they do see us as the only alternative.
Mr O'Toole: Thank you for the presentation today. We've heard from the United Steelworkers on a couple of occasions. You've brought a couple of new issues.
I'd like to preface my comments by responding to an earlier comment made that perhaps I was misdirecting. We refer to this as the kiss-and-make-up tour, because really what the NDP here is trying to do is justify its changes, which were called the social contract deal. I think the responsible member on the other side should keep his comments a little more succinctly to the bill which we're discussing and not --
Mr O'Toole: Well, I'm responding, and that's what I'm doing. So if you want to be involved in this, you get to the table.
I think the key here is, I'd look at the success of the current bill. I'm going to make reference here to the earlier Mrs Dale, who was representing an international association, who opened and closed her presentation with two statements that the changes must be made. I can quote it for you. She's sitting over there. I'm not misrepresenting. She opened and closed saying that the current act does not work.
The information we've received and read over the last two or three days, despite that, would indicate that all the changes, the six-month duration, will bring the claims forward quicker, before there's a huge litigation problem. The issue of the entitlement amounts: Most claims are under $10,000, 96% of them, yet we spend an inordinate amount of resources today on the 4%, who are people who could perhaps, middle-income earners and up, take care of themselves in the legal system.
Much of the empowerment of the unions today, under their own collective bargaining language, allows them flexibility today and also ensures in the act that they're no less standards. I've heard presenters today say they want more time off work, and I think responsible negotiators will ensure that the people they represent will give no less. It changes by workplace; it changes by season and nature of work.
I want you to tell me you're satisfied that a current bill that rewards 25 cents on the dollar being collected is working, and if it is working, that you aren't prepared to participate in making constructive suggested changes.
Ms Murphy: First of all I'm not privy to any other comments that my predecessors have made. I just arrived because I had to work.
Mr O'Toole: Good for you.
Ms Murphy: I really can't respond to anything they may have said, but I can tell you that the current Employment Standards Act has clearly, in some areas, not worked. The example of my friend I just told you about is one clear example.
Mr O'Toole: I agree.
Ms Murphy: From what I understand, one of the reasons that we only collect 25% of the dollars owed us from our employers is because they refuse to pay. They should pay it in the first place so we wouldn't have to have such good legislation.
Mr O'Toole: Maybe better collection.
Ms Murphy: I don't know if it's better collection, because sometimes they won't pay up no matter what. What we really need is better enforcement of employment standards, because right now they're just thumbing their nose at the government and saying, "Collect it if you can."
Mr O'Toole: We're not disagreeing with you. You make a very good point, and I don't think you'd find anyone here who'd disagree with that. To use scarce resources is what our government is trying to do. We're really going to have to be responsible to the unorganized -- very big, large, powerful unions like the Steelworkers aren't without resources, and I respect that -- because the unorganized need the limited resources we have left. Those are the people who have the most frequent claims and they're the ones we have to help and focus those resources down. I think you've made some good presentations, some good points, and I'm pleased to listen.
Mr Jean-Marc Lalonde (Prescott and Russell): Thank you for your representation. You seem to be satisfied with the actual employment standards. It's just that they're not being enforced.
Ms Murphy: I can't say that I'm entirely in favour of it. There are a lot of areas where it needs beefing up. I look at this as an opportunity to do that. Like I said, the only three areas where I can honestly say I'm satisfied with your efforts so far are the ones I indicated already.
Mr Lalonde: People have mentioned many times, ever since we started these hearings, that people don't seem to be educated; they don't seem to be aware of the Employment Standards Act. Some people even said employment standards should be posted in the working area. At the present time it doesn't work because probably there was too much political involvement in the past or the employees were not doing their job properly. I don't know what the reason was.
You referred on one of the pages in your brief, "For monetary claims beyond the six-month period and in excess of $6,000, employees will not be able to go to Small Claims Court." It's a good point, I think, because I believe the government should think of increasing the maximum to $10,000 for small claims. But one point that should be brought to the attention of the members of the government is that many Small Claims Courts have closed their offices in the last six months. This could have been an avenue, but the avenue doesn't exist because government has decided to close the Small Claims Court.
I fully agree with you that at the present time people are not educated. I know that if people in my riding are not satisfied with the way they were treated at their workplace, they come immediately to my office or they call our office. I believe that the MPPs should all have the Employment Standards Act in place to give to employees who are not too sure. Also, they should give their name -- that will be kept confidentially -- and if they don't want to call the Ministry of Labour, the MPP should play a role in informing the Ministry of Labour that there was some action that wasn't according to the Employment Standards Act. Would you agree with this?
Ms Murphy: I would certainly agree that employees in the workplace need education on the Employment Standards Act. Yes, it's a very good idea to have it prominent in the workplace so that each and every employee has access to that. It's clear from the call I got from a friend, and I've had many others, that people really don't understand what their rights are. Because they're not phoning the ministry to ask their advice on what their rights are, that tells me there's also a problem there. They either don't trust government or they just feel they're not going to get any help. It's a real problem. When people know what their rights are, it goes a long way in stopping the injustices.
The Chair: We're two minutes over. Thank you very much for taking the time to come before us here today. We appreciate it.
The Chair: I'm afraid not. The next group is already here.
Mr Christopherson: On a point of order, Mr Chair: I've been advised that the local number that was referred to earlier, if you didn't have it already and if you're looking for it, to the parliamentary assistant, is 885-3378.
Mr Baird: Is that the one that's advertised in the local phone book, or where is that advertised for people to call?
Mr Christopherson: One of the union reps who was here earlier just handed me this and said, "This is the number that's been referred to."
Mr Baird: I'll certainly take that back; I appreciate it. But if that's the one that's advertised, that will be also helpful. Thank you.
WATERLOO PUBLIC INTEREST RESEARCH GROUP
The Chair: We have the next group here to make a presentation, the Waterloo Public Interest Research Group. Good afternoon, Mr Novak. We have 20 minutes for you to divide as you see fit between presentation time and questions and answers.
Mr Daryl Novak: I'd like to begin by thanking the committee for giving us the opportunity to speak to Bill 49. WPIRG is a non-profit organization funded by students at the University of Waterloo, and we have a membership of over 12,000 individuals. Our mandate is to promote research, education and action on issues affecting the public good in our community. We're part of an international network of public interest research groups, including 10 others based here in Ontario.
The constituency we serve is primarily students. However, the framework for WPIRG's work can be defined as working to protect the public interest. This is a bad time for us to be doing a presentation. We are a primarily volunteer-run organization, and this being the summer term for students, there aren't very many students around. We believe that changes to the Employment Standards Act will have a profound impact on our constituency, being students and youth. We think it's very important that there is extensive consultation, and unfortunately we are not able to prepare a brief that is very representative of our constituency because school is not in session right now.
We are very interested in the phase 2 process of the amendment to the Employment Standards Act that will be happening presumably in the next sitting of the Legislature. As a preliminary comment, we believe that employers will always have the advantage of superior economic power. In practice they will always retain the ability to provide work and to take it away in an economic system based on competition. As a society our collective responsibility expressed through our governments is to prevent exploitation, and in the case of the Employment Standards Act to stop the worst form of employment abuses by providing minimum standards. Thus, with respect to Bill 49 and the fall review of the Employment Standards Act, WPIRG's focus will be to advocate for the protection of the rights of the average unorganized worker.
You know of course that over half the employees in Ontario are not represented by a union. These workers rely on the Employment Standards Act to provide them with basic terms and conditions for work and the enforcement mechanisms provided therein. Any changes that threaten the basic floor of rights of workers are and will be categorically rejected by WPIRG. The reason we take that position is because we believe that students and youth are among the most vulnerable in the labour force. They tend to work in service sector jobs that can be categorized as casual, temporary, part-time, poorly paid, low-skilled and insecure. The Employment Standards Act is the only type of protection they really have.
Some of the recommendations that we have: Again, we do not want to see any type of erosion in minimum standards. I learned this morning that provision to negotiate between an employer and a union around employment standards was removed from Bill 49. This is something we're relieved about. We know that will have an impact on students and youth.
We believe that there needs to be a standardizing of the legislation, that there should be few exceptions. Typically, students and youth are busy surviving in meeting their rent during school and they really are not provided with an opportunity to know what their rights are around employment and housing and other such things. We believe that there needs to be more education of what people's rights are, what students' rights are. Because they're unorganized, when students have a problem or youth have a problem, they'll often live with the conditions that they're working under, because all of you know that there is a high unemployment rate among youth. Often they will suffer through whatever conditions they have, and when they leave, because they are young, possibly, and also because they don't know what their rights are, they don't typically complain.
We believe that there need to be more employment standards officers and that there needs to be a more vigorous enforcement of the act. There needs to be an immediate response to claims. Again, students and youth really have nowhere to turn, so if they are going to turn to the employment standards office, they need to have an immediate response.
We believe that there should be routine investigations. When employers are demonstrated to have violated the act there should be an automatic audit of their other employees. Often in a workplace where it's predominantly youth, if one individual is wronged there's a strong possibility that other individuals have been wronged as well.
Looking at the limitation periods, reducing from two years to six months seems reasonable when you consider that over 90% of claims are made by people after they have left that employment. However, with other Employment Standards Act violations, six months does not seem reasonable because of fear of reprisal from an employer. I think that is something that needs to be stiffened in the act, that employees are not subject to arbitrary reprisals from their employer.
Debt collection, we haven't had an opportunity to analyse what kind of effect privatizing this function of the employment standards office will have. Our concern centres around what will happen, if there will be a levy on people for the money that's collected on their behalf and also the pressure that will be brought to bear with them coming to an early settlement. Youth and students will suffer most in that case because they will be more easily coerced. Although the bill provides for that not to happen, it doesn't really spell out how that will be prevented.
We really didn't have an opportunity to do an extensive review of the act, but we're anticipating the changes to the act with trepidation. When the changes are announced we will do a full review.
This is the extent of our comments to this point.
The Chair: Thank you very much for your presentation. That leaves us two and a half minutes per caucus, and the questioning this time will commence with the government.
Mr John Hastings (Etobicoke-Rexdale): Mr Novak, I'd like to ask you what the role the Ontario Public Interest Research Group plays in terms of advancing knowledge and understanding of the workplace for young people and students if that isn't one of your roles. You have expressed certain opinions.
Second I'd like to ask you, what does it say about our education system, in the secondary sector particularly, since the law in society course explicitly has a section dealing with employment law and employment rights? Are young people and students today not hearing what goes on? What role do you think unions must play in the broad-based educational effort? That point has come up with several presenters today, and it seems to me that the union movement has always done very well in terms of seminars and getting out the message. What's missing if they're not doing that any more? I've heard that from two different presenters today and from other people on the other two days. I wasn't at those sessions, but that theme came up.
Mr Novak: As far as what our role is in advancing education, we have a very limited budget. The types of activities we're able to conduct, you can guess that among a membership of over 12,000, to try to effectively reach all of them is very difficult for us. We have a budget of under $100,000. So even with a couple of employees, paying rent, the actions we take are very minimal.
With the advent of the World Wide Web we're looking at doing some work to further educate students. We're looking at new avenues to be able to reach out to students and do an education, but we're really just there to try to fill in the gaps. With the Employment Standards Act, because it is an integral part of what the government provides, it seems the onus should be on the government to devise an effective manner in which to educate the public, including youth. However, we are always ready and available. Given the proper tools, we will use them as effectively as possible in order to reach our constituency.
As far as the educational system, perhaps what we need is a course in citizenship and courses on your basic rights as a citizen. I think that framed in a proper way, you can build that type of sense of citizenship in students. Of course, the context for that is very important as well. People feel like citizens when they feel they have a place and a role in their community. Of course the feeling that's created in someone is delivered in many different ways and spheres.
Mr Lalonde: I tend to agree with my colleague Mr Hastings about some comments that you made. Are you aware of the content of the Employment Standards Act, and if so, what impact do you think this is going to have on your group?
Mr Novak: As they relate to the changes brought about under Bill 49?
Mr Lalonde: Yes. I don't think you have gone through the whole amendment.
Mr Novak: I've got it right here. I got it off the Internet, as a matter of fact. Our concern is really based on the minimum standards, the floor of standards that may be jeopardized, not necessarily through Bill 49. Right now this has been completely pulled, so it won't have an impact, but we strongly believe that there need to be minimum standards that people know about and that are enforced.
Mr Lalonde: You mention that the privatization of collection will have an effect on students and youth. I believe that up to $10,000, up to six months are to the benefit of youth and students.
Mr Novak: We have been unable to do any empirical research looking at the claim average as it relates to youth. All we have to look at right now has been out of the annual report, the aggregate as reported by the Ministry of Labour.
Mr Lalonde: I have no more comments.
Mr Christopherson: Thank you for your presentation. Early in your comments you noted that superior economic power will always lie with the employer as a natural order of things and only the laws of society will help to offset that natural advantage. The government's claim all along, in terms of not only this agenda but their entire agenda, and they continue through with Bill 49, is that they are going to make the economy work for everyone, it's going to create jobs and that's going to take us back to the Garden of Eden. Yet we know from your comments that there are a lot of young people who are fearful of the future, and I hear you suggesting that Bill 49 is not helping to alleviate the concern that young people have. Can you look into your own crystal ball and give me a sense of where you think the province of Ontario will be with labour law changes like Bill 7, changes to WCB, Bill 49, loss of pay equity, all those kinds of things, and what that means for young people over the next half-decade or so?
Mr Novak: The cornerstone to a growing economy is people's sense of stability and the belief they have that there is a future for them. When I'm walking through the halls of our school or when we have students coming in to use our resource centre, there is a great deal of apprehension and fear about the future. We have a lot of graduates who come back saying that they are unable to work in their field of study; many of them have ended up in places that are far from where they originally wanted to be.
I think students' sense of what is happening is that we're moving from a sense of collective responsibility in our communities to a dog-eat-dog, individualistic social structure. I can't see how that feeling, that sense of the future can help to give people a sense of a stable future. Unless we see demonstrated actions by the government to empower communities and to have a finely wound social fabric that supports people when they're down, provides basic education and excellent education for everyone, I think the immediate future looks glum, and that's certainly something that we hear a lot about.
The Chair: Thank you very much for taking the time to make your presentation here.
I don't believe our next presenter, Canadian Auto Workers, Local 1986, is here yet. In their absence, and we've got a couple of minutes before then, I wonder if we could have a five-minute recess; and subcommittee members, there's an issue to be discussed for next week's hearings, if I could ask the subcommittee members to meet me here for just one second.
Actually, there are 10 minutes before their appointed time. We'll take a 10-minute recess.
The committee recessed from 1547 to 1601.
GUELPH-WELLINGTON COALITION FOR SOCIAL JUSTICE
The Chair: I call the meeting back to order. We're grateful that our 4:20 group, the Guelph-Wellington Coalition for Social Justice, arrived well in advance. Good afternoon to you both. We have 20 minutes for you to divide as you see fit between presentation time or question-and-answer period. Please introduce yourselves for the Hansard reporter.
Ms Tracy Rockett: Before we start, are all the MPPs here?
Mr Christopherson: All the ones who matter.
The Chair: There are representatives from all three parties here, yes.
Mr Baird: All the government members are here.
Ms Rockett: Okay. My name is Tracy Rockett and my colleague is Chris Margetson. We represent the Guelph-Wellington Coalition for Social Justice, located in Guelph, whose members comprise 30 different organizations representing over 2,000 members.
Ms Chris Margetson: When Labour Minister Elizabeth Witmer introduced the Bill 49 amendments to the Employment Standards Act, she claimed to be making housekeeping amendments only. Bill 49 would be facilitating administration and enforcement by clarifying and simplifying definitions and procedures. Ms Witmer presented the changes as minor technical amendments. These changes hand employers a huge strategic advantage and are clearly substantive. They diminish and eliminate rights and options for all workers, but most particularly the vulnerable in our workforce: non-unionized and part-time or low-paid workers. These changes will make it more acceptable and simpler for employers to mistreat or cheat employees and much more difficult for all workers to enforce their rights.
A fundamental feature of the Ontario law has always been that no one can contract out of employment standards. The legislation has set a floor below which negotiated agreements or contracts could not fall. Bill 49 removes this floor. This floor of rights has been enshrined in Ontario law for decades. Housekeeping? Hardly.
Ms Rockett: Flexible standards, for employers only. Bill 49 contains a fundamental change to Ontario labour law by permitting workplace parties to contract out important minimum standards. Prior to these amendments it was illegal for an agreement to have any provisions below the minimum standards set out in the ESA. Bill 49 allows a collective agreement to override the legal minimum standards concerning severance pay, overtime, public holidays, hours of work and vacation pay if the contract "confers greater rights...when those matters are assessed together."
Employers now have the opportunity to attempt to trade off minimum standards in exchange for increased hours of work. When standards change for unionized workers, they will change for non-unionized workers as well. Market forces will pull all of us down to the lowest level. Employees are human beings, not bargaining chips.
The potential of this amendment to erode people's standard of living should be enough to make the drafters of these amendments rethink, if not radically alter, Bill 49. It is certainly enough to make the Guelph-Wellington Coalition for Social Justice stand in opposition to the bill as a whole.
What kind of housekeeping takes legislated rights that were the floor and rips them up to be put on the table? This is a demolition.
The shortsighted may see this rush to the bottom as helping employers become competitive, but the more sane will question whether this makes for higher productivity, better workplace relations, increased consumer purchases or an improved quality of life.
Ms Margetson: Ms Witmer's amendments propose to end the Ministry of Labour's enforcement responsibilities whenever they consider violations could be resolved by the courts. Consider: A 20-year maintenance worker is terminated without cause. His legal right is to receive notice of termination or pay in lieu of notice under both employment standards and common law. Generally the entitled notice under common law is greater than the employment standards minimum.
Presently the worker could file an employment standards claim and instigate a lawsuit under the common law notice entitlement. As a general rule the employer is willing to pay the employment standards minimum quickly to avoid the simple and sure enforcement through the Ministry of Labour. This would allow the worker to pay the rent and feed his family or use the money to retain a lawyer to pursue the wrongful dismissal suit in the courts, as legal aid is not available. The minimal employment standards payment is then deducted from any court-ordered payment.
Bill 49 will take this strategy away from the worker. He will either be forced to accept the initial minimal claim, regardless of his legal or moral rights, or risk eviction and food banks in order to sue his former employer for what is rightfully his. He will never again be allowed to do both. Litigation may take years. Employers declare bankruptcy or move. There are no guarantees he will ever see one dollar.
Especially low-income workers will feel pressure to settle for less money than they are really owed. Sudden loss of employment can throw a vulnerable family into stressful chaos. They will be expected to make this very important decision during the first two weeks of this most trying time of their life. Many vulnerable workers are not aware of their legal rights and could be excluded from commencing a civil action unless they obtain legal advice within this short, yet chaotic and stressful two-week period.
Even worse, a worker who quickly starts a civil action without realizing the ramifications of this decision does not appear to have even the short two weeks to change her mind. She appears to have no right to do so and then institute a complaint under the act. This is an unjust and seemingly blatant attack on some of the most abused workers in Ontario: those phased out, squeezed out and let go, many of whom have dedicated years of their life to profit-hungry employers. At a time in their lives when they are feeling battered and bruised, hopeless and depressed you are adding yet another difficult and needless burden.
Ms Rockett: Maximum/minimum claims: The amendments introduce a new statutory maximum amount that an employee may recover by filing a complaint under the act. This maximum of $10,000 appears to apply to amounts owing of back wages and other moneys such as vacation, severance and termination pay. There are only a few exceptions, such as for orders awarding wages in respect of violations of the pregnancy and parental leave provisions, and unlawful reprisals under the act.
Any cap will penalize those workers who are owed more than the maximum. A worker who has been deprived of wages for a lengthy period will have the least amount of means to hire a lawyer and wait for the case to be settled. This cap will encourage the worst employers to violate the basic standards.
Bill 49 also gives the minister the right to set out a minimum amount for a claim. Workers who make a claim below the minimum will be denied the right to file a complaint or have an investigation. This allows any employers to abuse their workers under the minimum in any six-month period and avoid legal penalty.
The question for you, the people entrusted to protect the public, is this: Why have any legislated rights if you're not going to enforce them?
The raison d'être for government is to ensure fair play, to allow all citizens to operate and compete with the same rules applying for everyone. By instituting a minimum and a maximum claim you will tilt the table in favour of one group, the employer. If employers must steal from their employees, and to be sure, not paying what is legally owed is theft, then (1) they should not be in business; and (2) who would want to do business with them anyway? That kind of employer would not make a trustworthy partner in any enterprise.
Real life: The general direction of these amendments is towards allowing business to be self-regulating, the assumption being that companies will just sort things out among themselves. Of course they will. The drive to make the maximum amount of profit is the only standard by which any decision will be judged. This allows no room for the individual or for society.
A case in point: Little Tikes of Guelph, a premier plastics manufacturer with a well-regarded line of children's toys, a profitable, community-minded company that established a manufacturing and warehouse centre in 1995, grew to employ 120 workers. Although non-unionized, the company treated employees well and rewarded them with profit-sharing. As well, employees could work overtime whenever they desired to do so. Little Tikes also contributed to the community by donating toys to local groups time and again.
In late 1995 the company announced it would be purchasing an empty factory and expanding operations; 65 new jobs were forecast. Three months later the company announced that it would closing down the manufacturing and not expanding. Why, you ask? Because they could make even more profit by relocating to another existing site in the US. They were making a profit in Guelph, they were a good provider for the community, but money talks. Profit is the only thing that matters. There is no loyalty to anyone or any place.
How about some examples of how companies conduct business with their employees? First there's the electrician working for a small technology company that has orders for over $1 million on the table. Their commercial production facility needs to get on line in a hurry, so in the first week the electrician works over 80 hours; second week, over 80 hours again; third week, by Wednesday, he gets paid for week one. The paycheque is for 40 hours of work. One of the owners tells him that the company only pays for 40 hours of work and any work beyond that is voluntary. Needless to say, the company shut down by the end of the third week. The electrician is still owed more than 80 hours of overtime and has yet to decide on how to proceed.
Then there's a waitress. She was employed, along with 19 other people. One Monday she showed up for work and there was a note on the door saying that the place was closed. All the workers pursued the matter with the Ministry of Labour. Generally they were owed two weeks' wages, vacation and severance. Less than a year later the employees were reimbursed by the ministry.
While the previous examples are not earth-shattering, they do speak to some of the limitations of Bill 49. What will be the minimum standard? Whatever the limit, it will force a number of workers to go to Small Claims Court to get what belongs to them. How many people would actually do this? What about having only two weeks to make a decision on how to proceed with your claim? How will workers even know what their rights are?
If we cannot trust companies to reinvest their profits in our community, why give any company more loopholes to shirk their responsibility to their employees and to our society? The bottom line is this: Profits will always pre-empt fairness, equity and human beings.
Private collectors: The proposed amendments would privatize the collection function of the Ministry of Labour's employment practices branch. This provides a look at a task which has traditionally been public. An ongoing difficulty has been the ministry's ability to collect wages assessed against employers because of the employers' refusal to pay. Your solution is to absolve the government of the responsibility to enforce the act by farming out the problem to a collection agency. Why create a market for vultures to come in and pick off hard-earned wages from anyone who was abused by their employer?
In addition, the employment standards director can authorize a private collector to charge a fee to persons who owe money. This is intolerable. The ideology behind the amendment shows a complete lack of understanding of the history of government and its role in society. Laws exist to protect all of us. Our society needs independent, impartial people whose only interest is in enforcing and upholding the law, not turning a profit. Will the police be next on your list of government employees who must justify their existence by being able to raise enough revenue to cover their costs?
Ms Margetson: The amendments in Bill 49 seriously tamper with the period of time that employees are entitled to back pay. Presently, employees are entitled to back pay for a two-year period. Bill 49 reduces this period significantly to six months from the filing of a complaint. Again, low-paid, vulnerable workers will suffer. They often cannot afford to finance a lawsuit and live in fear of their employer. They would not be able to file a complaint until they are terminated and/or change employers. They can work on promises for weeks or months, until they realize that they will not be granted their statutory rights by their employer and finally file the claim. As mentioned earlier, these workers will not be eligible for legal aid in order to institute a lawsuit.
Ms Witmer's statements regarding housekeeping, simplifying etc seem ludicrous in light of the heavy burden this places on vulnerable workers. Even more incomprehensible on this same issue of time periods is the continuation of the two-year period granted the Ministry of Labour to investigate and yet another two years to ensure the employer pays moneys owing to its workers. The serious impact on families waiting four years for money owed to them does not seem to be taken into consideration by Ms Witmer. How can she call this "facilitating," "housekeeping" or "streamlining"? It's beyond us. We're sure the buzzwords will fall on deaf ears in the families and communities of the most vulnerable non-organized workers of Ontario. The coalition's buzzwords for these amendments would sound more like "abusing," "cheating" and "selling out."
Ms Rockett: Alternative suggestions: proposed changes to make the Employment Standards Act more efficient and effective.
Allow anonymous complaints and third-party complaints.
Full investigation of employers' practices initiated by anonymous complaints and third-party complaints.
Proactive education and investigation procedures in industries competing on low wages and known to have more employers who violate the act, ie, hotels and restaurants, garments and cleaning, as well as education for new corporations.
Heavy penalties for employers who do not pay out orders within short, fixed periods of time and active prosecution of repeat offenders.
Mandatory posting of the act in all workplaces.
Severe penalties for firing a worker for attempting to enforce the act.
Have all parts of the Employment Standards Act apply to all workers in the provincial jurisdiction. The act now has long lists of people excluded from minimum wage, another list for public holidays, another for hours of work etc. If the law applied to everyone and everyone knew it, there would be a lot fewer violations of the act.
Include a prohibition against unjust dismissal. That way employees couldn't be as easily fired for just trying to stand up for their rights under the law.
Strengthen the act so that employers can't hide from a responsibility in the shell game of contractors and subcontractors.
As the changes mentioned above seem reasonable, and many are inexpensive, why are you not interested in implementing them under these circumstances of reduced spending? The Guelph-Wellington Coalition for Social Justice wonders why this government which abhors any special-interest group now seems to be blinded to the fact that these amendments are clearly a blatant example of pandering to special interests, namely, business.
Ms Margetson: We feel that Bill 49's proposed changes are part of a vicious attack on the most vulnerable workers in Ontario. Given the government's record over the past year of battering the poor, the elderly, the sick and the marginalized, we don't have any confidence in Ms Witmer's desire or ability to amend the act to protect workers in any way.
In the early 1980s the Ministry of Labour did 1,600 inspections per year of employers to ensure that there was compliance under the act. Over the last year there were 20. Clearly, the Minister of Labour and this government cannot be trusted to protect workers' rights.
It was reported that Michael Harris said in May that we must make the system more effective so that we can better use our resources to help workers. The Guelph-Wellington Coalition for Social Justice has serious doubts about that statement and about his knowledge of the proposed amendments in Bill 49. Mr Harris could not possibly have familiarized himself with this bill and still make this statement.
The real objective of these proposed changes is to save money and to finance the $8-billion tax cut. Employers are the winners in this game of cheat. The only improvements we see are the improved chances for employers to avoid minimum standards in Ontario workplaces. We want real improvements, not these improvements for employers in the games of chance and cheat.
In conclusion, we strongly recommend that standards must not be eroded or negotiated. Rights must be easily obtained, and enforcement of these is of paramount public interest and must never be privatized.
The Chair: Thank you both. We've got two minutes remaining, but I'll grant a minute or so to each caucus. This time the questioning will commence with the official opposition.
Mr Lalonde: Thank you very much for your presentation. I think you have put in an awful lot of time to prepare this brief. I'd just like to know what effect you think this new employment standard will have on family quality of life, the fact that employers will be able to extend your working hours and having to work during the evening instead of during the day, on Sunday and everything?
Ms Margetson: I think it will be very difficult for families and in particular families that are already under a lot of stress. I work in a low-income neighbourhood in Guelph, the Willow Road neighbourhood. In that neighbourhood, there is 35% unemployment and those people who are working are often working at low-paid or part-time jobs. The families are under stress. Family violence has increased this past summer by at least 25%. If anything, they need support and understanding from employers around family circumstances, and this will just take any hope of that ever happening away from these families.
Mr Lalonde: Were you satisfied with the actual employment standards that existed?
Ms Margetson: I think the employment standards were reasonable. There was room for improvement, certainly. I think Tracy very nicely read to you some of the ideas that we had around what some of these improvements could mean, but the proposed Bill 49 takes away many of the advantages that were in the Employment Standards Act and will weigh heavily upon the shoulders of vulnerable families and rightly all workers in Ontario, I believe.
Mr Lalonde: So really with the reduction of 45 enforcement officers, I don't think we're going to get any better. Even though we have a new employment standard in front of us, I don't think it will improve the situation at the present time.
Mr Christopherson: Thank you both for your presentation. As you know, my colleagues and I in the NDP agree that the "bad boss" Bill 49 is a real gift for the most unscrupulous employers in our province. I'd like to focus on the issue of people who feel themselves to be very vulnerable to standing up for their rights and having to make a choice between their rights and their job. I don't know if you were present earlier or not, but the minister herself was here and said that if people only knew they have protection under the law, if there were any retaliation they would feel far more comfortable. In fact, one of the representatives from the chamber of commerce here said that in terms of the six months moving to two years, that was to stop employees from, as he said, "sitting on the can and mulling it over," and that's why it's okay to go from two years to claim to six months. Knowing that 90% of all the claims filed with the ministry are made after people leave that employment, why do you think the change from two years to six months is so devastating for this vulnerable population?
Ms Rockett: Well, it's obvious --
Mr Christopherson: Well, I just want to say it's not that obvious to them, so please say it clearly.
Ms Rockett: You've been abused by your employer: They didn't pay you your vacation pay, they're not paying you overtime, whatever, you were forced to work on a holiday. Then trust is gone. You know that you don't have the power to go back.
Actually, I was in a similar circumstance, in that an employer I worked for, I'd given my notice because I was going to go to university, and the president of the firm told me of my outstanding vacation days, that they were going to deduct the days that the entire company had shut down over Christmas, because those were then actually voluntary holidays. So I had four days of pay taken away from me. At the time it was, like, what are my rights, or who do I go to, and why even bother? It's not worth it.
When you look at the couple of examples that we had, some employers, when they recognize an opportunity to take advantage of their worker, then they will. If you've been taken advantage of, you're not going to work there any longer; what's the point? Because it's just going to happen again. If you do go and complain, the employer finds out and you can be fired and then there's really no -- fine, you get your termination pay. Thanks, that's great. How do I feed my family? How do I keep a roof over my head? So it puts pressure on employees to decide very quickly, am I going to put up with this? Am I going to put up with being abused?
Especially in the job market now. For people who say unemployment is only 9.7%, whatever, that's a joke. Look at the number of people still on welfare. It's at least double that, if not more. So there are not jobs out there for people to go to, and the jobs that are there do not pay that much. So you have people just scrambling to get by. They're forced to choose between just surviving or going over the brink.
That six-month period just allows employers to keep just taking away, especially if you introduce the minimum standard. Then the employer can say: "Okay, I'll just keep my little tally. Maybe it's $500, maybe it's $1,000. I'm up to $750 on this employee. It's been six months. I can nail him again for another couple hundred." It's totally to the benefit of the employer to abuse his or her worker, and that's disgusting.
The Chair: Excuse me, that's been seven minutes on Mr Christopherson's one minute, so I'll have to give the last question to the government.
Mr Derwyn Shea (High Park-Swansea): Thank you very much for your presentation. I'm not insensitive to some of the points that you've raised, but perhaps I could just pick up on a couple and ask for clarification. You expressed some concern about the reduction from two years to six months. I wonder if you can respond to a question that I have. Since about 90% of all claims are currently now put into effect within the six-month period, would that lead you to think that perhaps there's some merit in at least looking at a reduction of the level if there is some tradeoff in efficiencies?
Ms Margetson: I'm uncertain about what the reasons behind that are. If 90% of the claims are already going in within the six-month period, what that tells me is that 90% of workers in Ontario are able to get the supports that are necessary to act within that six months. But it also tells me that the 10% who aren't are likely the most vulnerable workers in Ontario. Maybe their English isn't particularly good. Maybe they don't have much formal education etc, or maybe they have five or six children that they need quickly -- I'm not sure if any of you have actually ever been in a home of someone who just found out he was unemployed and had six children and he's been working in a minimum-wage job in a factory. I have been in that situation myself, and the chaos and the stress and the unbelievable fear that's in that family, it takes time for them to work that out. I've seen people who've been hospitalized in a psychiatric facility when that happens. It's a very difficult situation, especially if someone has other issues that they're dealing with, perhaps a mentally ill wife or two or three children who are learning-disabled. It's just like adding on top and on top. So why not give those 10% of people who need that additional time, the time? Find a way to give it to them.
Mr Shea: In terms of your presentation, you talked about the application of the act. You were very precise to say in your submissions that there should be no exclusions. Can I ask for clarification on that?
Ms Rockett: Sorry, which point?
Mr Shea: You want no excluded groups, no excluded occupations; you want everyone subject to the Employment Standards Act. Do I understand that clearly?
Ms Rockett: Yes, with the rider that obviously there are some groups, especially those that are -- what's the terminology? -- the emergency-type workers --
Interjection: Essential services.
Ms Rockett: -- essential services that have to, obviously, work unusual hours.
Mr Shea: We had a presentation made -- I guess it was back in Toronto; frankly, I'll have to check my notes -- that particularly has impressed me, the information technology sector, and there are other sectors like it that are growing, which I'm sure you're familiar with, distance work, all that. In fact, today it was interesting to hear the city of Toronto indicate that one in five workers are now employed out of the home and the difficulties they've got in terms of planning and zoning and a whole range of things involved with that. I wonder, are you suggesting as well that all those involved in that sector should equally be made applicable to the ESA?
Ms Rockett: I guess it depends on whether they're self-employed or not. If you're self-employed, you have to manage your own time. If you're based on commission sales, again, you have to manage your own time, and that's part of being a successful worker.
Mr Shea: I see. Then maybe just a final question where I can touch on another part of your submission that I found interesting. You gave that interesting case of the toy company, and I forgot the name of it.
Ms Margetson: Little Tikes.
Mr Shea: Little Tikes. It certainly impressed me, that illustration. What would you have done in response to that, for example?
Ms Margetson: I don't think we were trying to make the point that we should have done something. I don't think anybody was trying to make that point. I think the point that we were trying to make is that it's an example of a situation where even an employer who is extremely well respected in the community, had a wonderful reputation, donated toys to day care centres, was community-minded, was well thought of, was involved in promoting voluntary activities, the run for MS, the big van, the whole thing, a very community-minded company, and yet with no hesitation shut the doors. The loyalty is not to the employee. That is the point we were trying to make.
The Chair: Sorry, Mr Shea, we've gone well over. I've been almost as generous with you as I was with Mr Christopherson.
Mr Shea: I appreciate that, Chairman. I would have liked to pursue that one in great depth, like Mr Christopherson. It was an interesting path to pursue.
The Chair: Thank you both for taking the time to come and make your presentation before us here today. We certainly appreciate it.
Ms Margetson: You're welcome. Thank you for the opportunity.
The Chair: With that, that concludes our hearings here in Kitchener. This committee stands recessed until tomorrow morning at 9 o'clock in London.
The committee adjourned at 1633.