Friday 23 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
Chip LeMay; Greg Carroll; Lora Hogan
Canadian Auto Workers
Service Employees International Union, Local 210
Gerard Charette; Ivan Stark
Windsor and Area Coalition for Social Justice
Canadian Union of Public Employees -- Windsor, Essex and Kent counties
Canadian Auto Workers, Local 1973
Labourers' International Union of North America, Local 625
Windsor Women Working with Immigrant Women
Windsor-Sandwich New Democratic Party Riding Association
Hotel Employees Restaurant Employees Union, Local 75
Business and Professional Women's Clubs of Ontario
United Injured Workers' Group -- Windsor
Canadian Union of Postal Workers
United Auto Workers, Local 251
Legal Assistance of Windsor
Canadian Auto Workers, Local 127
Windsor and District Labour Council
Unemployed Help Centre
Canadian Auto Workers, Local 195
Windsor and District Chamber of Commerce
Windsor Black Coalition
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Président: Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Président: Mrs Barbara Fisher (Bruce PC)
*Mr John R. Baird (Nepean PC)
Mr JackCarroll (Chatham-Kent PC)
*Mr DavidChristopherson (Hamilton Centre / -Centre ND)
Mr TedChudleigh (Halton North / -Nord PC)
Ms MarilynChurley (Riverdale ND)
Mr DwightDuncan (Windsor-Walkerville L)
*Mrs BarbaraFisher (Bruce PC)
*Mr SteveGilchrist (Scarborough East / -Est PC)
*Mr PatHoy (Essex-Kent L)
Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)
Mr BartMaves (Niagara Falls PC)
Mr BillMurdoch (Grey-Owen Sound PC)
*Mr Jerry J. Ouellette (Oshawa PC)
*Mr Joseph N. Tascona (Simcoe Centre PC)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr John R. O'Toole (Durham East / -Est PC) for Mr Carroll
Mrs SandraPupatello (Windsor-Sandwich L) for Mr Lalonde
Mr DerwynShea (High Park-Swansea PC) for Mr Maves
Mr JosephSpina (Brampton North / -Nord PC) for Mr Chudleigh
Also taking part /Autres participants et participantes:
Mr GaryCarr (Oakville South / -Sud PC)
Mr DavidCooke (Windsor-Riverside ND)
Clerk / Greffièr: Mr Douglas Arnott
Staff / Personnel: Mr Ray McLellan, research officer, Legislative Research Service
The committee met at 0901 in the Hilton Hotel, Windsor.
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, all. Welcome to the fifth day of hearings on Bill 49. We're pleased to be in Windsor today and look forward to hearing a number of deputations. Let's proceed right away with our first group, the National Automobile, Aerospace, Transportation and General Workers Union of Canada -- CAW Canada. Good morning, gentlemen.
Mr Gerry Bastien: Gerry Bastien, area director of the CAW. The presentation we have on behalf of the CAW is going to be made by myself and Mickey Bertrand, but we'd ask the indulgence of the Chair and the committee members that we have a special occasion. We've had an occupation of the Ministry of Labour offices and there are three member citizens who occupied the office sitting here. We would be willing to put our presentation back 15 minutes and let them go first. I think it would be the wish of the majority of the people here that these three people be heard.
The Chair: The only vacancy we have this morning is at 11:45. If the subcommittee would like to --
Mr David Christopherson (Hamilton Centre): Mr Chair, in light of the news that we've just had, as a member of the committee I would move that we move everyone back the 15 minutes that's been requested and allow this group to be heard. The majority of the presenters here today are people from the community, from the labour movement, from those who are concerned about the rights that are being taken away as a result of Bill 49. I've spoken to them and they're all in agreement that they would support such an adjustment to the agenda. I would so move.
Mr John R. Baird (Nepean): Given that we've agreed to hear everyone and there are a few empty time slots, I think one this morning and a few at the end of the day, I have no objection.
The Chair: No objections. Any other comments?
Mr Christopherson: My motion is that they be heard now.
The Chair: Thank you, Mr Christopherson. I just asked if there were any further comments.
Mr Christopherson: What's your problem?
The Chair: I don't need any editorial comments.
Any further comments? Seeing none, I put the question: All those in favour that we amend the schedule by moving everyone else back by 15 minutes this morning? So approved.
Accordingly, you would like the other group to have the first 15 minutes? That's fine.
CHIP LEMAY GREG CARROLL LORA LOGAN
Mr Chip LeMay: Hi. My name is Chip LeMay. I participated in the Ministry of Labour occupation last night, just for one simple reason: I'm a little ticked off at the government that's in power right now. My reason for participating is that no one ever wants to hear us. I decided to participate because I had something to say.
All the cuts to the Employment Standards Act are going to affect myself and my fellow workers in the retail service industry. We as workers rely on the minimum standards set forth in the Employment Standards Act, which is now under the Tory knife. With the Tories in power in this province, we will never have the chance to experience the same good life as our parents and grandparents did, because the Tory government is taking back everything they worked their buns off for. Where I work, we're a newly organized workplace under the CAW, and it's Local 195. Under the new Tory legislation, many used and abused workers may never have the same privilege of becoming a union member, as I have, for some kind of protection. In the province of Ontario, which the Tories want us to be so proud of, you big shots don't give a damn about us. We're the working men and women. The only people they really give a damn about are the corporate élite and all your rich friends, when in reality there wouldn't be any of the corporate élite and rich friends if it wasn't for us, the working people.
Every day, you put more injured workers out on the street. Every day, corporate and government downsizing is putting more people out on the street. Companies are cutting their pensions. Canada pension -- where is that going? If I get hurt on the job, too bad for me; I'm out on the street. Where's our education system going? If you're fortunate enough to qualify for a good education, can you find anything but a minimum-standard $7-an-hour job, in which the already too low minimum standards are soon to be lowered even further?
As far as I'm concerned, I want the cuts to stop and, along with many other working people in this province, am ready to fight for a victory by any means necessary.
Mr Greg Carroll: My name's Greg Carroll and I'm a 19-year-old student. I would like to tell Mike Harris I'm sick of him, his government and the cutbacks. I have been going to school to achieve a good education, to discover when I graduate there will be barely any jobs available, most being minimum wage, part-time, few benefits and few opportunities. If I wish to continue my education, how will I pay for it while working under these minimal standards? As I was going through school, I thought Ontario was a great place to live, but now I'm disgraced by the Tory government that is running our province.
The UN survey shows that Canada, and Ontario in particular, is the main choice to live and find a better future in. After this government is done, they will be asking the people of Ontario where they would rather live. It feels that Ontario is becoming a Third World province.
As I was occupying the Ministry of Labour building last night, I had the pleasure of meeting Lyle, a 77-year-old man who has been fighting all these years for our standards of living today. This government has not only turned its back on Lyle and his generation, but ours as well. It is time the government listens to us, because it is our future they are ruining.
Ms Lora Logan: Good morning. My name is Lora Logan. I am here as a 16-year-old high school student to tell Harris that I'm fed up with his cuts to welfare, child care, employment, education. One way or another, these cuts are affecting me and my family. I watch the ones I love suffer because of them. My mother has lost her job and is now unemployed due to the cuts. I have young nieces and nephews who no longer have the choice to attend junior kindergarten. My grandmother, in my eyes, is being abused by all the cuts to health care. I watch my friends' parents struggle to try and make their welfare cheques cover food and other living essentials, and Harris still continues to cut welfare.
What about me? I'm a student. How am I going to be able to afford an education? It is my right as a student to have an education. I try and find a job for $6-something an hour, but all the positions are filled by 25- to 30-year-olds working for lousy wages to put food on their families' tables.
My parents and grandparents have struggled and worked their whole life to make this world a better place for me and my children, and Harris is taking that all away. Who gives him the right to destroy my future? I will continue to fight for what I deserve until I get it. I am participating in the occupation of the Ministry of Labour building because it is my future and I want to stand up for it. I would rather be part of the solution than the problem. When I do get a job, I would hope that the minimum standards would still be there, and better enforced, so I have a decent working life. The fight is not over; it has just begun.
Mr Pat Hoy (Essex-Kent): Good morning, everyone. We're pleased to be here in Windsor to hear the concerns of everyone throughout the day. During your presentation, you mentioned education and welfare cuts and other actions taken by the government to date. In regard to Bill 49, you mentioned minimum standards and that you don't want to see the erosion of those. You also mentioned the minimum wage that is currently in place in Ontario. Could you describe for me what you feel could happen to the minimum wage under Bill 49?
Mr Carroll: We aren't here to answer questions. We're here to make a statement and that's what we've done, so we're done.
Mr Hoy: I appreciate your presentation very much. We have concerns from the opposition side on many of the issues that you touched on today. It's been a pleasure meeting with you.
Mr David S. Cooke (Windsor-Riverside): I appreciate the presentation you've made. I think what we all heard was that you're expressing a lot of frustration about what's happening in the province right now. I must say, occupying a provincial office building is a substantial step for anyone to take. For young people to be involved in it, it obviously means you feel very strongly about what you've talked to us about this morning.
I just wanted to see if you could tell us, try to explain, especially to the Tory committee members, what has led to this level of frustration among the three of you as young people in our province. We all understand that the system isn't going to work if our young people aren't a successful part of the system and supportive of not only our government system but our education system and so forth. Try to explain what has happened that has led to this level of frustration.
Mr LeMay: It's like they stated down there -- the unemployment rate. It's affected us. The downsizing of corporations is affecting all of us. It's the young people; we decided to participate in this because, like you said, we're the young people and no one listens to us. No one listens to them especially; they're younger than I am. The only way to be heard -- and we weren't heard last night because we requested to talk to Elizabeth Witmer or someone from the Ministry of Labour and we were put off and kicked in the gutter again. By taking over and occupying buildings like that and having protests like that, that's the only way any of you are ever going to listen to us. That's why.
The Chair: Are there any further questions? Seeing none, thank you very much, folks. We appreciate your taking the time to make a presentation before us here this morning.
CANADIAN AUTO WORKERS
The Chair: We will now proceed to the group previously announced, the National Automobile, Aerospace, Transportation and General Workers Union of Canada. Hello, again.
Mr Bastien: Gerry Bastien, area director, and along with me is Mickey Bertrand, who is a national representative with our union.
I'd like to thank the Chair and the members for hearing the three previous speakers, who obviously are going to make our presentation look pretty meek, because when you hear from the rank and file or ordinary citizens, it's always more powerful and more effective than coming from us.
I do have to say personally that I've been negotiating with corporations now for 25 years and through those 25 years I've learned a lot about how I have to conduct myself and how people have to conduct themselves. I'd say that the Chair's attitude towards one of the members was my attitude 25 years ago when I was in negotiations. We had a lot of strikes too and a lot of conflicts, so I would say that we ought to review the attitudes that we have in general.
Our office, the CAW in this area, has about 100 different collective agreements, give or take a few, at given times. We're involved with bargaining with corporations day in and day out. The vast majority of our collective agreements are resolved without conflict. That has been that way for years and it's gotten a lot better in the last few years, until this government was elected. That's causing us more grief and more conflict and making it more difficult for us to come to collective agreements.
We see Bill 49 as eroding the rights of workers in the province, and any erosion of the rights of workers in this province will adversely affect our economy. It's going to lead to further weakness in wages and further weakness in consumer spending, which most economists are now identifying as one of the major problems. Interest rates are as low as they've ever been, yet the economy is not moving the way it should be. It's because there's not enough money in workers' pockets. Day in and day out, this Bill 49 again will start taking money out of workers' pockets.
We are encouraged that the government has delayed the proposals on flexible standards, but we strongly urge the government to just completely abandon those flexible standards, because those are going to create worse labour relations than we already have. It's going to put items on the table, labour standards, that are already there as a given right. Corporations are going to put that the bargaining table and cause further conflict among the parties.
The labour minister's news release on May 13 stated that they wanted to eliminate accumulation of years of red tape. If that's what this is about, we'd love to get rid of red tape. I'm used to working with red tape and I really appreciate when you can get rid of all the nonsense. If that's what you're truly doing, get rid of some of the nonsense.
It said also it's going to encourage the parties -- the parties being the employer and employees -- to be more self-reliant. That would be fine if the parties were on equal footing. What happens right now is that it's not an equal footing. Employees are in a radically unequal bargaining position in relationship to their employers, and that's a fact that a lot of people maybe in this room don't believe, but that is a fact. When you work in labour relations, that there's a lot of fear in our factories, places that are non-union. They're afraid to organize even when they want to. They secretly go around. They never openly say, "I want a union in this place." Very few people would ever say that. As democratic as it appears, it's not democratic.
It says in that news release that the changes will allow the ministry to focus attention on helping the most vulnerable workers. I've got to say, in all honesty, that I'm never looking for a fight. I fight with people every day negotiating. Sometimes I don't know whether I like it or don't like it, but I'll tell you this much: I really believe it's totally dishonest. I think the agenda of the Conservative government to this day has been not to help the vulnerable workers. They're actually hurting them every day by their actions. It is absolutely dishonest to be stating that.
Just a couple of the proposals -- and Mickey's going to talk some more about them, but a couple of the ones that I want to touch on is that the worker can only use the Employment Standards Act enforcement mechanism on a claim of up to $10,000 as a consequence of an employer violation. The effect of that will be that when people are in that situation, they are obviously -- most of the time the people who have to deal with the Ministry of Labour are people who have been disadvantaged and they're usually in a weaker position or have been hurt -- closures or whatever -- and a lot of time they are claims of over $10,000. They're going to have to go through the courts, which are more costly, more expensive, more complicated. It's going to dissuade people from using the courts, or if they do, it's going to cost them all kinds of money.
The other one that I want to mention is the implementation of a regular minimum monetary limit on a claim a worker may file. That will lead to higher costs to taxpayers as it costs more to fund Small Claims Court than it does the operation of the Ministry of Labour. I don't see how that's going to save the government, if you're coming from that angle. It appears that's where the main interest is, to save some tax dollars. I see that as it's going cost the taxpayers more. Also, it's going to affect, again, the most vulnerable workers. It may be a claim of $200, $300. I don't know what limits you're planning on putting, but again, $200, $300 to somebody at the bottom of the economic ladder is a heck of a lot of money. If they have to go through the civil court for that, that does not make any sense. It's going to be costlier for the government and it's going to cost a lot of the disadvantaged a lot more money and most of them probably won't even pursue it anyway because they can't afford to.
So now I'm going to pass it on to Mickey.
Mr Mickey Bertrand: As stated earlier through Gerry and the other group that came first, we're clearly opposed to Bill 49, and also what I think is important, to the manner and to the extent which the current provincial government continues its regressive approach to rewriting labour laws, such as the Employment Standards Act, the Labour Relations Act, without consulting trade unions and workers in Ontario.
Before I begin, I have a few questions that I'd like to throw out to the panel, and particularly the Tory members, that maybe you can address during the question-and-answer period. First of all, who was consulted regarding the need to change the Employment Standards Act? Second, were big business and the corporations or groups on their behalf consulted? The last question I have is, why wasn't labour consulted properly before the bill was drafted and put before us and put out to hearings such as what we're doing today?
The CAW draft that you have in front of you lays out essentially the real and legal concerns about the bill itself. Our presentation, from Gerry and me, centres around being from a worker's perspective. Let me begin by saying that this bill moves the workers of Ontario in the wrong direction. We live as workers in a day and age when we are subject to enormous pressures in the workplace from the corporations. You have lean and mean production, which means less workers. You have higher productivity demands from the corporations on workers to work faster. Quality assurance is a constant concern; the team concept, which creates peer pressure. Health and safety concerns as a result of this type of work are always evident in the worker's mind; RSI, WCB claims and the list goes on, enormous pressures that workers face in the workplace on a day-to-day basis.
Let me say this: Corporate power on the shop floor is alive and well. Corporate power at the bargaining table is stronger than ever before, and continually we hear at the bargaining table, "If we can't achieve what we need in negotiations, we're going to look south of the border." Let me also say that the free trade agreement and NAFTA and the survival-of-the-fittest mentality has provided that ability for corporations to confront workers at the bargaining table with that ability.
The Employment Standards Act has provided a sense of security for workers for a lot of years. It's a minimum standard of living as it relates to wages, vacation, hours of work, overtime protection, holiday-pay entitlement and parental and pregnancy leave, to name a few. It was a minimum standard on behalf of all workers in Ontario that employers had to adhere to. It wasn't open to negotiations, it wasn't open to be arbitrarily changed, but Bill 49 suggests that we remove that protection for workers. Bill 49 gives greater advantages to the corporations over workers and the unions on their behalf by diminishing workers' access to justice.
Bill 49 requires unionized workers covered by a collective agreement to use their grievance procedure to enforce their rights under the statute. These current enforcement mechanisms ensure a basic and universal right for all workers in Ontario, including unionized workforces. Why, then, will workers where there's a collective agreement in place now not have the same statutory access to a complaint with the assistance of employment standards officers for investigations and enforcement requirements? This will not be there any longer. Unions, on behalf of their members, will now have to pay the costs of an arbitrator potentially to determine a case involving the Employment Standards Act and interpretation, when this responsibility should remain a public and universal guarantee of a workplace.
The point that Gerry touched on as far as the flexible standards, that is something that we find ludicrous. We find it unenforceable, we find it incomprehensible and we certainly want to see that one gone.
Bill 49 reduces the time during which a worker may bring a claim to recover money that is owed to them from two years down to six months. Is there evidence to suggest that the two-year limitation period had created a great number of problems? Not to our knowledge. So if you miss the window of opportunity now in six months, you're out of luck, the employer is scot-free and off the hook. If this somehow represents enhanced justice, we're missing the point. The hiring of additional officers to ensure complaints are processed in a timely manner would have been a step in the right direction towards justice, because justice delayed is justice denied.
Bill 49 proposes to contract out to private collection agencies the task of getting the corporations to comply with orders to pay. It's ironic how corporations can skirt a legal order to pay. This is a legal power that should remain in the hands of the ministry, and they should pass a law: Where corporations fail to pay, maybe they can garnishee their profits until the debt is paid.
Bill 49 goes further, authorizing these collection agencies to collect less than what is owed, leaving the worker with, "That's the best we could get, take it or leave it." Where does that leave the worker? Employers, knowing this, will never settle fully for what is owed; it would be negotiation time, from the employer's perspective. I ask the question, who's the winner and who's the loser as a result of this change?
This bill is not about fairness for workers; it's about corporate power and control over workers. This bill is not about strengthening workers' basic standard of life in the workplace; it's about total contempt for workers' rights, organized and unorganized, it's about the corporate agenda, it's about the almighty dollar and it's about politics, unfortunately.
I want to say to the Tory members on the panel who establish the government of the day, we're hoping that you're listening, we're hoping that you're bringing the message back: Workers and the average person in Ontario are getting very, very frustrated with what's happening in Toronto. We're getting very, very frustrated with the moves towards labour legislation, towards basic standards that are set up in the Employment Standards Act. We're getting very, very frustrated, and we're getting tired of having to go to the streets to make our fight. But I'll send this message back: We will continue to use our feet until the sounds of our feet are heard in Toronto very, very loudly and you cannot ignore it any longer.
What we don't need is Bill 49, and what we do need is an increase in the minimum wage, better overtime protection language legislation, the right to sick leave and more protection for temporary and part-time workers. We need to move forward and not backwards, which is what Bill 49 does for us.
The Chair: Thank you, gentlemen. That was 13 minutes, so I'll say a minute per caucus for questioning. This time I'll commence with the third party. Mr Christopherson.
Mr Christopherson: Thank you very much for your presentation. We don't have an awful lot of time to get into this in depth, unfortunately, but let me just say to you that I'm not aware of any group that was consulted on the labour side of the equation before this bill was dropped in, and we should never lose sight of the fact this government said this was only minor housekeeping changes. They didn't want to hold public hearings. They wanted to ram this through last June without any debate at all. We can never forget that fact.
I'd like to give you an opportunity on behalf of the auto workers you represent in this area to respond very directly to the Minister of Labour and to the members of the government side of this committee, who continue to insist that Bill 49 does not take away a single right from workers. Would you please respond to that assertion?
Mr Bastien: That's totally dishonest. Again, as I said in my remarks, the agenda is totally dishonest. Helping vulnerable people, that's not what this is all about. I believe it takes integrity in society to move ahead; it takes integrity day to day in your life and negotiations. This government is not being honest about its agenda; its agenda is not to help the most vulnerable. This is a backwards step for the working people of Ontario. There is no question about that.
Mr Baird: Thank you very much for your presentation. I wanted to ask you, with respect to your comments with respect to garnisheeing the profits from companies which refuse to pay work orders, I can tell you that we're not at all satisfied. I'm almost ashamed that today we're only collecting 25 cents on the dollar and that has existed for some five or 10 years. Obviously all parties have had trouble dealing with this issue. One of the things that has come out of these hearings is that we've got a number of ideas, and we've tried to get them as specific as possible, that we can take back and say what specifically we could do rather than go through a two-or-three-year court discussion going after a deadbeat company, which is very analogous to a deadbeat dad.
One of the things the previous government did with deadbeat dads was bring in a number of measures to go after them, whether it's a driver's licence or what have you. Our government is in the process of building on those changes and strengthening them incredibly. Can you tell me what specific examples you could give that we could take back? You mentioned garnisheeing the profits. Are there any other specific examples we could take back?
Mr Bertrand: The aspect of garnisheeing the profits, you've got corporations out there that are not lying down and dying; they're making a lot of money, they're making profits. They've got money, they're in business, and when they owe money and when there's a legal order for them to pay to a worker and it's not being paid, the worker is hanging out there for, like you say, years and years waiting for this money, we can't put that in the hands of private collection agencies. The thought came to mind last night when I was putting some of the final words together, why can't we garnishee their profits? I think it's an excellent idea to go after them and say, legally, "What's going to happen is we're going to go into your coffers. We're going to take the money if you're not going to pay it properly and up front, and we're going to get it." What I think would happen then is, you'd get away from where workers are being forced to take less than what they're owed. If they're owed 100%, then they ought to get 100%, and if it takes garnisheeing their profits somehow, then I think that's what we ought to do.
Mr Bastien: Excuse me, just on that point too, I think the closures or whenever we have workers who are in difficulty collecting, one of the reasons I think it's only 25% is the pecking order of who gets what. I don't know all of the legalities of that, but the workers seem to be the last ones who can collect. If they'd just differentiate --
Mr Baird: They're not high enough on the list.
Mr Bastien: They're not high on the list. They're the last on the list. Everybody else can collect from the employer, and the workers are last. If they'd just put that --
Mr Baird: We're pursuing changes to the Bankruptcy Act at the federal level, because we completely agree.
Mr Christopherson: Ask them why they gutted the wage protection plan, then.
Mrs Sandra Pupatello (Windsor-Sandwich): Thank you so much for coming today and, once again, taking the time to present, especially for the Conservative members. I think they need to see that there is another side to the coin around Ontario.
Pursuing the issue of the privatization of the collections, number one, the question is, who pays for the privatization of it? Who pays the bill collector? Secondly, the bill collector apparently can negotiate down to 75% of the claim. That 75% comes from the amount that's going to be due to the worker. I just want you to comment on that because we hadn't heard today about what they can negotiate down to as they're trying to work with a firm to collect. They can negotiate a settlement that in effect means the worker loses some 25% of what's owed.
Mr Bertrand: I think the bottom line, in response to the question, Sandra, is that the worker is going to be the one who loses out. When you put it in the hands of a private collection agency, one way or the other, they're going to get paid. Whether they collect 85% or whether they collect 75%, one way or the other they're going to get paid. Their basic job is going to be to go in there and get that job done, get some money out of the corporation. Whatever they can get, that's what they'll take. Whatever they can bring back to the worker, that's what they'll be stuck with. But they'll get paid. That's the bottom premise.
The worker is the one who's going to suffer, and I think that's the falsehood of what they're doing. That's the downfall of what they're doing, and the bottom line is that the worker is the one who suffers.
Mr Chair, if I could just make another comment, if you would indulge me, I've got a situation in a group of workers that I represented where their plant closed last year. The name of the plant is Highway Stamping. The employer came to us and said: "What we'll do is we'll guarantee that we pay you all the money that's owed to the workers with respect to vacation. We'll pay that, and we'll guarantee that those workers can work in the plant for another four to six weeks, but what we're doing is we're going broke." This corporation, Highway Stamping, was owned by Mauschbach in Germany.
So they kind of hung that aspect -- because it was several thousand dollars just in vacation pay, let alone severance and notice pay and everything else, and termination pay. So what we did as a union is, we went to the workers and the workers agreed, "That's better than nothing," because we had just gone through the Windsor Plastic fiasco where we're still in the courts trying to find some money in respect to severance pay. Those workers from Windsor Plastic accessed the employee wage protection plan. The workers from Highway Stamping signed a document with Highway Stamping that said we wouldn't pursue the company itself for severance pay if in fact -- we agreed, and so we have this document. It was with the corporation.
Those employees went and they applied for the wage protection plan money, the $5,000. To this day, right now, the government of the day is saying, "You're not entitled to that because you signed away all your rights," when we signed a document with the company. We had no intention of signing away our rights, and I think that's something the government is also doing to try to get away from its responsibility. That wage protection plan was set up so that when corporations said, "We have no more money," or there's a long list of creditors or bankers who are looking to get their money and the workers are on the fourth page somewhere at the bottom, they're not going to get anything, this was something for them that they could rely on during an adjustment period to try to find a new job.
What's happening now is the workers at Highway Stamping are being denied money to this plan because we signed something back a year and a half ago because it was good for us because it guaranteed our vacation and it guaranteed the aspect of being able to work for another four to six weeks. We did it in good faith. We worked in that plant and there was no sabotage and there was a good, quality product for the next four to six weeks. Then we go to the government looking for the $5,000, because the corporation is in Germany somewhere, and the government of the day is telling us: "You're denied. You signed away your rights when you signed that document."
So I'd like you to take that message back as well, if there's anything you can do in that regard. It's another example, unfortunately, I'm sorry to say, of the government saying to workers, "There's nothing we can do to help you." I've got 100 workers out there who are in desperate need. Some 38% of those workers are still unemployed to this day and need that money. Their unemployment has run out; they've been off work for over a year. If there's anything you can do in that regard, we'd certainly appreciate it. Thank you.
The Chair: Thank you, gentlemen. Thank you for your presentation.
The Chair: That leads us to our next presenter, Mike Belisle. Good morning. Again, we have 15 minutes for you to use as you see fit, divided between presentation time or question-and-answer period.
Mr Mike Belisle: Good morning. My name is Mike Belisle. I would like to submit amendments to change the labour act:
Employer responsibility with respect to all employees' personal paid deductions are presently not governed or protected.
Employers, left unchecked, are free to fraudulently withhold all incoming moneys from employees, neglecting to pay premiums.
Employees are misled to believe the option to buy into various benefits, paid through payroll deduction, are benefits intact. The opposite is true in my case. For two years I paid into a group insurance plan, inclusive of total disability income. In April 1990, I was working full-time and diagnosed with severe, aggressive, unremitting rheumatoid arthritis. I was unable to perform everyday tasks as well as my job and therefore medically deemed disabled. At this time I applied for my disability benefits through the insurance company. I was informed by the insurance company, after receiving three weeks of insured benefits, that my policy was terminated. The payroll-deducted premiums were in arrears due to the fact that my employer did not submit the premiums.
This began a six-year battle entangled in red tape. Our legal system has failed me and I have amassed a debt of $60,000 and still the fault of the employer and the insurance company has not been resolved. The RCMP, OPP and local police would not press criminal charges, one stating it would be too costly. The other could only try to recover the premiums paid.
The Ministry of Labour stated there were no guidelines to protect me and will consider whether this practice is widespread and warrants special legislative protection or whether the current system for resolving the dispute through the judicial system is sufficient.
My MPP would not even hear me and stated that because his party was not in power they could do nothing for me.
Although I paid union dues from my net income, I discovered that there was no union to back me due to the employer's neglect to forward the dues.
This represents a brief list of the contacts I have made over the past six years, with no results. I hope you can feel the aggravation and disappointment I have encountered in our system. My two children have spent the past six years watching my health fail. My wife, Margaret, has encouraged me to continue and has supported all of us through this battle. At present my life is on hold, waiting for someone to take responsibility for this wrongdoing.
There was a day when my job was everything that motivated me. It gave me self-worth, drive and a strong sense of security for my family. As you can tell, this has not only affected a paycheque in my life but all aspects of my relationships and a livelihood. I am compelled to bring this to you today, seeking relief from my frustrations.
Amendments have to be made to our government and labour laws, making employers accountable and criminally charged. To oversee and regulate employee-paid premiums is a must.
I thank the committee for this opportunity to bring awareness of situations occurring in our workplace and I hope that future generations will never have to deal with this injustice. Please feel free to ask any questions or concerns, as it is difficult to condense six years into such a short time allotted. I am available for questions or comments at any time in the future. Thank you.
The Chair: Thank you, Mr Belisle. That leaves us two and a half minutes per caucus for questioning. Questioning this time will commence with the government.
Mr John O'Toole (Durham East): Thank you very much, Mr Belisle. It certainly is a story where you have not been served. You've been somewhat left on your own resources, and I acknowledge that. Were you represented in the workplace? There was a union.
Mr Belisle: It was an association.
Mr O'Toole: It wasn't a union.
Mr Belisle: No.
Mr O'Toole: An association of some sort. Did they afford you any kind of protection, support, advice, counselling?
Mr Belisle: No. It had been dissolved. See, this company that I worked for was purchased -- he took over the reins for about two years and as he took over, that's when he more or less dissolved the union.
Mr O'Toole: So the company itself is in default or whatever. Is it still operating?
Mr Belisle: No, they went bankrupt.
Mr O'Toole: I've certainly heard your story and I know the other members have as well, so thank you for coming forward this morning.
Mrs Pupatello: Thank you. Your story is heart-wrenching and I'm sorry to hear the six years you've had to go through with this. Can you tell me, to your knowledge, if you're heard the presentations before, for example, what in Bill 49 do you see that the government is bringing forward in legislation that would actually help your situation? Do you see anything at all that they're doing --
Mr Belisle: I haven't really read it. I'm just here to possibly propose amendments to it.
Mrs Pupatello: For example, in terms of the collections, any of that? Some of it would be absolutely of no use to you, no help. When you have companies that are declaring bankruptcy, a private collection agency isn't going to do any good in trying to get any claims for you. I guess I just wanted to make that comment, that in fact if we're looking at helping vulnerable workers -- and if there is one who might fight that category, your last six years would place you there. The bill that's being forwarded today for discussion is meant to help vulnerable workers; in fact it really doesn't do that and you're a good case example. Hopefully you'll allow us, having presented publicly today, to continue to use your story as an example.
Mr Christopherson: I would like to express our regret that you've found yourself in this situation as well. Unfortunately -- and I don't like to be the bearer of further bad news for you -- there's nothing in Bill 49 that I can see that's going to be of any assistance to you or people in your situation. In fact, as a result of this bill there will be more workers who are left vulnerable. There will be more ability for the bad bosses -- and obviously you had one -- to rip off employees in terms of the rights that they're entitled to, in terms of wages they're entitled to, in terms of payments they're entitled to, and in this case in terms of payments they should make on your behalf.
You may hear throughout the day that the government's going to do all these wonderful things in its overall review of the Employment Standards Act, but I would suggest to you that you ought not hold your breath. This is a bill that the government said really was only minor housekeeping and now we know from these hearings that they're taking away major rights. I suspect that their overall review, while they may patch up a few things here and there, is going to continue to give employers more control over workers and less ability for workers to have rights. Even where the government does put in measures that purport to assist workers, the fact is there's no enforcement mechanisms that work.
We're on an agenda in this province of continuing to see rights of workers and their unions, not associations but real unions, being watered down. I think you and others like you need to come forward everywhere you can, because when you come forward today you don't just do it for you and your partner and your family, you do it for all the workers, and we need to expose what's going on in this province. I thank you for coming forward here today.
The Chair: Thank you, Mr Belisle, for taking the time to come and make a presentation before us. We appreciate it.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 210
The Chair: That leads us to the Service Employees International Union. Good morning. We have 15 minutes for you to divide between presentation time and question and answer as you see fit.
Mr Kenneth Brown: Thank you. I had received a written communication. It indicated I should try to summarize the contents of my brief so as to allow time for questions and I will endeavour to do so.
What is most offensive about Bill 49 frankly is the attempt by the Minister of Labour to pass off what are clearly substantive changes to the Employment Standards Act as merely housekeeping amendments. What is proposed in point of fact are changes that will make it easier for employers to cheat their employees and more difficult for those employees to do anything about it.
The minister's recent decision to withdraw those sections designed to create flexible standards -- to remove the floor, if you will -- although welcome news, does not diminish our overall objection to Bill 49.
This submission is made on behalf of Service Employees Union, Local 210, representing some 6,000 workers in Essex, Kent, Lambton, Bruce and Huron counties. Our members are employed mostly in hospitals, nursing homes, rest homes, homes for the aged, school boards, universities, building service and community service agencies.
Some of the key amendments addressed in our brief are section 20 of the bill, section 64.5 of the act, enforcement under a collective agreement. Currently under the act, unionized workers have access to the investigative and enforcement powers of the Ministry of Labour. Bill 49 eliminates such resources to unionized workers and instead requires all unionized workers to use the grievance procedure under their collective agreements to enforce their legal rights. The union would thus bear the burden of investigation enforcement and accompanying costs, which could be significant.
Unions such as ours in the broader public sector spend substantial portions of our resources now on legal arbitration fees associated with arbitrators. As an example, to settle collective agreements under the Hospital Labour Disputes Arbitration Act and grievance arbitrations and OLRB complaints, our local spent approximately 20% of its total budget resources in legal fees, fees to arbitrators and related fees and expenses last year. That could only increase if Bill 49 is passed.
Also, with arbitrators, we believe there is a danger that we may not be able to match the consistent results that the act has under public enforcement. In the long delays associated with arbitration, currently it is not unusual for a grievance arbitration to take some 12 to 18 months and longer to complete the limited supply of qualified arbitrators. That could only get worse.
In the private nursing home and rest home industry, there is a particular problem with our organization. We have frequent ownership changes. Cases involving successor provisions of the act would become particularly difficult to determine.
Enforcement for non-unionized workers, sections 19 and 21 of the bill and sections 64.3 and 64.4 and subsection 65(1) of the act: With these amendments, the minister is proposing to end any enforcement in situations where they consider violations may be resolved by other means, namely the courts. The amount recoverable through the employment standards is limited to amounts under $10,000. Currently, there is no limit.
What the employer owes is what they must pay and that is as it should be. The amendments would preclude an employee who files a claim with the Ministry of Labour from bringing any civil action concerning wrongful dismissal and pay in lieu of notice which exceeds the statutory minimums.
Legal proceedings are notoriously lengthy and prohibitively expensive for many, so these workers without unions may be left with no practical way of obtaining what they may well be entitled to under the law. Those who file a complaint under the act will have only two weeks to decide whether to continue under the act or withdraw and pursue a civil remedy. This process would be extremely unfair to non-union workers and opens the door for employers to violate their rights with impunity.
Maximum claims, section 21 of the bill and subsection 65(1) of the act: As noted before, these amendments introduce a new statutory maximum amount of $10,000 that an employee may claim. The problem with this is that workers are often owed more than $10,000, even in the most poorly paid sectors. Indeed, these workers are the very employees who will not have the means to hire a lawyer to represent them. This provision may encourage the worst employers to violate the most basic standards.
Bill 49 also gives the ministry the right to set a minimum claim through regulation. Workers with claims below this as-yet-unknown amount may well be denied the right to file a claim. Dependent on the amount of the minimum it could have the effect of employers purposely keeping violations under the minimum, thus denying workers' rights and avoiding any legal penalty.
The use of private collectors, section 28 of the bill, the new section 73 of the act: These proposed amendments intend to privatize collection and result in the recipient possibly paying collection agency fees from their settlements. So in essence, a minimum-wage worker could have his minimum wage claim reduced by the amount of the collection fees, plus the ability of the agency to negotiate that claim down. The thought of that is frankly obscene.
Limitation periods, section 32 of the bill, section 82 of the act: The major change here is to limit back pay entitlement to only six months from the current two years. The question is, why? If an employer is screwing their employees for 18 months, chances are they know they are doing it and they ought to have to pay the full cost of that action.
There are a couple of minor positive changes. The first concerns vacation entitlements and the second concerns seniority in service during pregnancy and parental leave. But in overall terms, this bill is unfair to workers, for the most vulnerable in the workforce particularly. It is about the race to the bottom.
The amendments proposed in Bill 49 come on the eve of what we are told will be a comprehensive review of the act. In our view, Bill 49 ought to be set aside and allow for a full debate of these changes as part of that comprehensive review and not allowed to pass under the false pretence of housekeeping changes.
Those are my remarks.
The Chair: Thank you very much. That leaves us two minutes per caucus for questions. We'll commence this time with the official opposition.
Mr Hoy: Thank you for your presentation. With regard to the minimum wage and people applying for a claim, which under this act would have to be under $10,000, the government has stated that 96% of the claims are under $10,000 currently. There were suggestions that those other 4% above $10,000 made more money than that per hour or per year. But you have clearly stated that you believe minimum-wage workers could indeed be owed in excess of $10,000. Correct?
Mr Brown: Yes.
Mr Hoy: So it begs, why have a limit at all? Can you envision that under the private collection scheme that is proposed in this bill, that people with like claims could receive variable settlements?
Mr Brown: I think absolutely, yes, they could. Who knows what might be in the mind of a collector to settle a thing? His concern is going to be getting his fee or what he's going to get out of it, not really the rights of the workers. Yes, the circumstances of their ability to collect could vary widely in terms of the settlements that are reached, just for the purpose of getting the thing off the plate, if you will.
The notion that higher paid workers -- obviously, there's a greater ability to have a greater claim if you're making more money. But some of the worst abusers frankly are -- in my experience, the most difficult employers are employers who are not paying their workers very much money. I talked about the private nursing home and rest home industry. Even those that are unionized, we tend to have a great deal of difficulty. We have collective agreement violations, employment standards violations. They're without a doubt the worst employers we have to deal with. In the case of the unionized, they're not making minimum wages, but we constantly hear of smaller homes that do pay their workers minimum wages, or not much more than minimum wages, and they frankly tend to be the worst employers in terms of violating very basic standard rights, vacation pay, getting people to -- I know personally of situations where people have, in non-union institutions, been on two different time cards so as to avoid paying overtime. A liability of $10,000 can be reached fairly quickly in that situation. We organized a place where an employer was -- all of their workers were being denied about 45 minutes per day of pay, actual work-time pay, as a result of an employer policy. Until we organized it, nothing was done about that. That's since changed, but that had gone on for all of their employees in nursing for many years.
Mr Christopherson: Ken, thank you very much for your presentation. I appreciate it. One thing about the Tories, they do seem to be an equal-attack government. They are equally attacking non-union and union members alike, so we spend 50% of our time focusing on one and 50% on the other. I'd like to come back to the beginning of your comments about the burden that's being placed on unions as a result of the denial to make a claim through the ministry if you're fortunate enough to be a union member and what that will mean to the members in terms of the time and also what it could mean to the union as an organization, in light of the fact that we know the anti-worker Bill 7 took away tremendous amounts of rights that the labour movement had struggled for over decades. Here we see a further erosion and a deterioration of the ability of unions to represent their members.
Can you just expand on that a little bit, about why you're concerned about that and what it means to your union and your members?
Mr Brown: As I indicated, we spent, my own local -- and we're very typical of our organization -- approximately 20% of our resources in arbitration and arbitration-related fees on contracts and grievances last year. There are only so much resources to go around. So if the ante on that goes up -- the way we're spread out, we tend to be an expensive union to maintain, we have a big staff. I've got staff people working 50 or 60 hours a week now. If we've got to start getting into the enforcement of employment standards, it could mean additional staffing and not just a matter of the cost of arbitration. It would just be prohibitive and then of course take away from our ability to focus on the collective bargaining issues to try and improve the lives of these people instead of fighting to get what is their minimum standard under the act. It's simply a matter of allocation of resources. You could literally be faced with allowing some violations so you can get on and take on the larger issues.
Mr Christopherson: It also allows the government to downsize the Ministry of Labour. We know they're going to lay off at least 45 employment standards officers as a result of Bill 49, and by pushing off and downloading the responsibility on to the unions, it allows them the flexibility to gut the Ministry of Labour.
I like your phrase where you say that "for all practical purposes the enforcement of public legislation has been privatized." I think that's an excellent way to characterize this.
Mr O'Toole: Thank you very much, Mr Brown. I appreciate hearing from you this morning. In fact, I want to go on record as saying that I believe unions do a responsible job to represent their workplaces and this bill to some extent is working towards recognizing that and giving you more of that autonomy.
I want to draw a couple of things to your attention. The limitation period: You realize that about 85% to 95% of the current claims are settled within the six months now and it's also the standard in other provinces in Canada today. So it's not completely out of sync. You're aware of that, I would hope.
Mr Brown: I've seen the data that suggests that, yes.
Mr O'Toole: About 85% to 90% are settled in the six months. It's clear to expedite it -- somebody said earlier today, "Justice delayed is justice denied." I think by allowing a claim to go on for two years on my behalf, for instance, those people coming in after me aren't getting addressed as well. The longer I delay confronting the dilemma -- it's a chain reaction. What we're trying to do is make the upfront system work so that the claims are coming up, the assessments are coming up and the workers in the future aren't being penalized.
I think the $10,000 up-limit should be explained. The typical separation for an employee is 26 weeks. At 40 hours a week, that's 1,040 hours. At $10 an hour, that's $10,000; $10,400 actually. So that's where it comes from, the severance type of package settlement, but the average settlement is $2,000. Up until 1991, the up-limit was $4,000. So I think we've made some adjustments to keep the system sustainable, but we need to be working with the partners like yourself, the leadership within the union movement, to make this bill do what it's supposed to do: protect the most vulnerable.
Much of what's been suggested, I believe the government is listening to. I think these hearings are productive. As we go around the province this week and another couple of weeks in the future, I'm sure the minister is listening and I am certain that this bill will result in improvement, as it says in the act that we're discussing.
Mr Brown: In response to that I would say that, frankly, your government is not working with unions as a partner in the process. We've largely been ignored for over a year. I was at one meeting with heads of unions in Ontario with the Premier and some of his caucus, but that was more, in my view, an exercise in PR than any substantive attempt to dialogue with the trade union movement.
Secondly, if we're saying, in effect, that the 10% or 15% that are over those claims don't matter, that's akin to saying these folks that are dropping off the welfare rolls are statistically unimportant and don't matter. I think that those 10% or 15% are probably the worst violations and we should be making attempts to prosecute and collect on those. They shouldn't be in a forgotten wasteland.
Mr O'Toole: The current bill doesn't work. We're only collecting 25 cents on the dollar. And I feel badly about that myself.
Mr Brown: That shouldn't happen, but I think again it's part of the public purse to collect that. I think we've got to make efforts to collect that publicly, and if there's a cost involved in that, then make the violating employers pay the cost, not the employees who have been screwed in the process.
Mr O'Toole: We do that. It's in the bill.
The Chair: Thank you, Mr Brown. I appreciate you making your presentation before us here this morning.
GERARD CHARETTE IVAN STARK
The Chair: Our next presentation is Gerard Charette.
Mr Gerard Charette: Good morning, Mr Chairman. I've brought with me this morning, with your permission, Mr Ivan Stark, who is the president of the local chapter of the Canadian Tooling and Machining Association. So we'll share our time, if we may, and we'll keep it within the allotted time.
Mrs Pupatello: Is there a written presentation?
Mr Charette: No, I'm just going to speak from notes here, if I may.
Good morning, ladies and gentlemen. My name is Gerard Charette. I thank you for giving me this opportunity to make a submission on Bill 49. I'm a business lawyer practising corporate and taxation law in this city, and I represent individuals and businesses in helping them plan their affairs.
I support the objectives and structure of Bill 49 for the following reasons.
The first is simplicity. If there's one thing my clients crave more than anything else is simplicity. Indeed, the overwhelming thirst of Ontarians today is for systems and structures which are simple, whether they are judicial, political or social. Ontarians are tired of legal systems which create bureaucratic webs whose primary purpose is to serve only those who know how to make their way through the web without being ensnared.
I used to think it was great when the Minister of Finance would rise in the House of Commons and propose a new and complicated set of changes to the Income Tax Act. I was always tempted to send him a basket of fruit for sending me more work. No more.
My clients, both individuals and businesses, cannot afford any additional complexities in any legislation whatsoever. In fact, they demand a reduction in the number and complexities of laws and regulations. The residents of Ontario cannot afford to waste economic resources on non-productive activities such as unnecessary legal services. Workers, their families and their employers must know that they can function within a legal system that permits them to utilize the maximum amount of their financial resources for productive purposes and for the enjoyment of the fruits of their labour.
Frankly, ladies and gentlemen, I want the government to create less business for me and for my fellow lawyers, and I know that people behind me support me. This is why I support Bill 49 because I think it will, to a significant degree, reduce my clients' dependence upon labour lawyers and other lawyers who are required to provide continuous hand-holding and advice in connection with our complex system of labour laws.
Fairness to workers: Let's not forget that a complex system also frequently works to the detriment of employees and their families. It raises their own legal costs and expenses beyond what is reasonable. Ontario's workers deserve to be protected from unfair treatment. Ontario's laws do give workers a generous set of rights. Unfortunately, the complexity of the system also works to their disadvantage in many cases.
Now to the specifics of Bill 49, if I may.
Section 32 of the bill puts the onus on employees to bring their claims for compensation within six months. This is fair. The current time limit of two years is too long. We live in a society whose individuals are highly conscious of their rights and to the possibility that they may have rights. It is not unfair to impose an obligation upon them to identify their claims and to bring them forward expeditiously. Employers who face claims up to 24 months after employees have left are not treated fairly. They also have the right to have all claims dealt with expeditiously.
Secondly, the act now permits an employee to file an appeal where an employment standards officer refuses to issue an order in his or her favour. However, the act requires the appeal to be launched within 15 days. This is unfair to the employee, and the bill proposes to extend the appeal period to 45 days. This is reasonable.
Third, Bill 49 proposes to require employees to seek wages to elect to have their claims enforced under the Employment Standards Act or in a civil court action initiated by the employee but not both. This proposal is fair and eliminates the possibility that employers, and employees indeed, will be required to contend with proceedings in two different forums over the same issue. Again, such a state of affairs is not fair, it's overly complex and usually involves the waste of financial resources on bureaucrats, lawyers and the judicial system.
Fourth, privatization of collection, as someone has said, I think is a great plus for employees. If you think about it, employment standards officers get paid whether or not they collect a dime, and I'm not saying they don't do a good job, but the fact is, whether or not they get anything, they get paid. With a private collection agency it's going to be, "You collect, you get paid. If you don't collect, you don't get paid," and I think that's an excellent plus for employees. They ought to be pleased that this thing is going to, I think, give them a greater chance of getting money out of employers. The collection agency is also, as I read the bill, entitled to charge additional fees from the person who owes the money and that comes out of that person's pocket, and I think that's fair. If the money is owed, they ought to pay the cost of collection. On the whole, I think this is a plus for employees.
In summary, ladies and gentlemen, the Employment Standards Act still requires further reform and simplification. I am pleased the government is proposing to examine further streamlining. I thank you for your time and your patience.
Mr Ivan Stark: I'm here before you today as an employer and also as chapter chair, Windsor, for the Canadian Tooling and Machining Association. There are approximately 75 member companies in our association and we're part of the national organization which is centred in Cambridge, Ontario. We are suppliers of tools, dies, moulds, patterns, machine tools to industry both in Canada and the United States.
As we all know, the Employment Standards Act establishes minimum standards for such matters as hours of work, holiday pay, termination notices, pregnancy and parental leave. All these standards were for the benefit of the worker.
We are here today again to deal with amendments to the administration and the enforcement of the act. We are in agreement with the proposed amendments. Again, these amendments, we feel, will improve the enforcement and the administration of the act. It should be noted here that the provisions in the act are just minimum standards only. All of our members have standards which are higher because those standards are set by competition. As we're going out recruiting skilled trades, we have to offer the benefits, the time-off packages and the paid holidays according to what our competitors are doing. So we are not just abiding by the minimum standards. We have to meet what our competitors are doing and because we have such a skilled trades shortage today, we have to then offer those benefits.
Many of the industries are under union contracts. They have agreements with various unions around the city and they have standards which far exceed the minimum standards as set by the Employment Standards Act. It is our opinion that all of us who have those standards which far exceed the minimum standards and those industries that operate with union agreements that have exceeded those minimum standards should attempt to resolve differences that may arise. Certainly there will be disputes, there will be differences that will always arise and we should have a mechanism here to deal with those differences, those disputes first. Then if we cannot deal with those disputes or differences among ourselves between employers and employees, then we would have the Ministry of Labour step in.
As Canadians, we've always demanded that the government do everything. Well, the government cannot do everything because it becomes very expensive, but we as Canadians must take some of that responsibility ourselves and say, first of all, "We will attempt to resolve those differences." We are not saying we will eliminate the Employment Standards Act, because we deal far above those employment standards. We're saying we should take some of the responsibility ourselves and attempt to resolve those things. Only then, once we've resolved those differences, or we cannot resolve those differences, the Ministry of Labour will come into play.
So I think the legislation here is an attempt -- because the majority of us are acting above the minimum standards. We feel those who are not, those employers who are abusing the system, should be held accountable, and that's why I'm here today, to say that if we can enforce that, because the majority of us are acting responsibly, those who do not should be held accountable and it is my wish that this legislation would speed up that enforcement.
I thank you for the opportunity to be here today and I wish you the best.
The Chair: Thank you both, gentlemen. We have five and a half minutes for questions, so just under two minutes per caucus. This round will start with the third party. Mr Cooke.
Mr Cooke: Just a couple of comments, first of all, to Mr Charette. I certainly want to tell you that, as somebody who's been an MPP for 19 and a half years now, this lowering it from two years to six months, I think you're using -- and as a lawyer you know better than this. You know that the ordinary citizen does not become readily aware of what his or her rights are under the law and you've, I'm sure, had people come in to your office, just as I have, six months, a year, a year and a half after they've had a dispute, a difficulty at work, coming in and asking for somebody to intervene because they've tried everything they can under their own resources. And now to say that it's going to be 24 weeks because we've only collected 25% under the old legislation, so we're not going to try to make it more efficient, we're simply going to change the rules of the game so that fewer people are going to even be able to make claims, I think it's very unfair.
We're talking about some of the most vulnerable people in this community, in this province. So while I understand your point of view, you'd like to do away with every regulation, whether it's labour or whether it's environmental, to free up industry to do whatever they want to do, I think we also have an obligation as a government to continue to protect workers and give them some rights to access the system. As a lawyer, I think you know better than what you said this morning.
Mr Charette: May I respond?
Mr Cooke: Just let me put one other thing on the record, and then you can, since we don't have much time. I'd like to ask your colleague whether or not your industry association was consulted at all on this legislation.
Mr Stark: As far as I know, we weren't.
Mr Cooke: Do you think it's appropriate that on major changes to the Employment Standards Act neither business nor labour, the people who have to work, the people who -- I always hear from Conservatives and from private industry that you guys are on the front lines, that you're in the real community and those of us who are politicians and bureaucrats don't know what it's like in the real world.
How the hell can you put together a piece of employment standards legislation and not even consult with the labour unions and business to put together a proper package? If we had done that when we were in government, believe me, business would have gone nuts.
Mr Stark: I believe there should be consultations, but we've got to work together on this because we can continue to fight each other and it's counterproductive. Because we're in the business here to make money.
Mr Cooke: How can we work together when government excludes business and labour from consultation?
Mr Stark: Well, then we have to make sure that we can work together.
Mr Cooke: So then, if you believe in consultation, you would agree that the bill should be scrapped and we should have consultations --
Mr Stark: But we are here as part of the consultation process, I thought.
Mr Joseph N. Tascona (Simcoe Centre): I thank you for your presentation. Mr Cooke is here for his first day. I've been here for all week and I've listened to over 100 groups, and certainly this is consultation and we've been listening. But I'll tell you this. What I've heard throughout this process is that -- I was an employment standards officer and I have some familiarity with this field -- enforcement is not the problem. The collection has been the problem. We collect 25 cents on every dollar. Over 50% of employers out there plead either bankruptcy or insolvency and they hide behind federal legislation and we can't collect. One of the areas that has been looked at is how we can collect better. Up till 1993 the government did the collecting, but the NDP laid off all the collectors. What we have now is employment standards officers with no experience and they're doing the collecting, so we're looking at private collection.
In your experience, have you dealt with workers' compensation as an employer, Mr Stark?
Mr Stark: Yes, I have.
Mr Tascona: What would you think, in terms of looking for collection, are the methods used under the Workers' Compensation Act in terms of collecting from employers to ensure that we get the money?
Mr Stark: In the past, collections have been miserable. They have not gone out there to collect the money they should have. Employers like us who pay our dues, pay our bills and everything else are grouped along with those who do not. That is the thing I'm upset about because we exercise our responsibilities, we pay our taxes and we pay our dues, but there's a certain segment of society that will not that gives us the bad name. That's why I'm in support --
Mr Tascona: In terms of how they collect -- going into bank accounts and other measures, seizing assets -- are those methods something that could be considered to ensure that employers that are going to continue to operate sweatshops and are getting away -- as you call the bad employers. Are those the types of measures that could be used to collect the money that's due the workers?
Mr Stark: The measures could be enhanced. Once they've commenced with legal proceedings, I have found they haven't followed up on those legal proceedings. My interest is in making sure we have the enforcement and that those of us who have exercised our responsibilities and paid our way through are not lumped in with everybody else. I know there are some shysters out there who will give us a bad name, and I'm here on behalf of the tooling association to say that this is not true in all cases. We have that minority of cases that give us the biggest problems, and it's always the case. The minority always gives the vast majority the biggest problems.
Mr Hoy: Thank you for your presentation this morning. Mr Charette, during your presentation you stated that people were highly conscious of their rights. This is our fifth day of hearings and we have other weeks yet to come, but already we've heard that employees and employers are not aware of many particulars in labour legislation. I submit to you, from the experience we've had in the first four days, that many people are not aware of their rights, and we have asked presenters and those bringing briefs before us to help us explain the rights and better inform the public of their rights. Given that there's ample evidence that people are not aware of their rights, would you care to reconsider that and would you have any opinion as to how to make them aware of their rights?
Mr Charette: I don't agree, Mr Hoy, that there is a lack of knowledge. You're hearing, with respect, advocates that are here, including myself. I don't think there's anything you would call evidence which says that people are not aware of their rights. I'm sure there are always some who aren't, but by and large we live in a rights-conscious society, it's just the way it is, and I see that every day in my practice.
Mr Hoy: With due respect, we've heard quite often from people, particularly on the unorganized side of the labour force, who clearly are not aware of their rights. They continue to be employed in situations where their rights are being violated, and through ignorance by either the employee or the employer no claim is ever opened until such a time that they realize that claim amount could exceed $10,000. I have difficulty with particularly those more vulnerable persons who don't speak English or French as their language and are being victimized by unawareness of what is entitled to them.
Mr Charette: All I can say is that I don't see the evidence is there. This standard applies in most of the provinces throughout Canada. My in-laws are Hungarian. They didn't know much about English when they came to this country. I'm not aware that they were ever unduly treated unfairly. It's always possible that someone is going to miss the boat, but it's just not in sync with the general thrust of society. I guess if you're going to try and offer an insurance policy to every worker and every employer in society, you're going to come out with a massive piece of legislation that is going to hamper 99.9% of all situations that are handled fairly. I just don't think the game is worth the candle.
The Chair: Thank you both, gentlemen, for taking the time to make a presentation before us here today.
Mr Charette: Thank you.
WINDSOR AND AREA COALITION FOR SOCIAL JUSTICE
The Chair: That leads us to our next group, the Windsor and Area Coalition for Social Justice. Good morning. We have 15 minutes for you to divide as you see fit, and I wonder if you'd be kind enough to introduce yourselves for the Hansard reporter.
Mr Rick Coronado: My name is Rick Coronado. I'm the coordinator of the Windsor and Area Coalition for Social Justice. With me is Mansfield Mathias, who is a member of the coalition as well.
We wish to thank the organizers of these hearings for being so prompt and efficient in setting up this time for our coalition. Unfortunately, coming to hearings on employment standards is not our idea of a good time.
The Windsor and Area Coalition for Social Justice is a coalition of many sectors of our society. Most of these sectors are here today to address these hearings. The coalition is a social movement. We are non-partisan. We support no political parties as an organization. As a social movement it is our aim to educate and win over an increasingly large majority of the public and mobilize a majority of the public into an effective force that brings about social change.
Let me define who this public is that we are referring to. It is called the working class, the very sector of society that we are concerned about here today. The working class is those who have to work but have no real control over that work or other major decisions that affect them -- for an example, order takers -- and this includes the unemployed, pensioners and those who survive on welfare. Those are many of the sectors involved with our coalition. Unfortunately the working class rarely unifies as a class. This is mainly due to their socioeconomic position and this is why the coalition is so important. The only other time the working class is unified is when it unionizes.
There is no doubt or secret that this government intends to weaken the labour movement. Bill 7 and Bill 26 attest to that. The attacks on Ontario health claims for workers and the closing of the Workers' Health and Safety Centre are examples of what this government intends to do to the working class.
Labour and the coalition movement are unified as a grass-roots community to community-based social movement. We intend to make changes. We intend to put forward alternatives. That is what the coalition movement is about: protecting working-class values and traditions, and progression as a class of people long under the gun of the middle class and the ruling classes of this province and this country.
As you have heard, we have had 12 of our colleagues occupying the Ministry of Labour offices in Windsor. We hope that as this hearing moves around the province, more protests and demonstrations follow it.
Bill 49 hearings: This act, the Employment Standards Improvement Act, cannot be described as an improvement for the working class. Bill 49 reveals, along with the earlier Bill 7 and Bill 26, along with its capability for euphemistic titles a pattern of this government reinforcing the authoritarian nature of power relationships within society, particularly in the workplace. It is easy to discern that the working class is at once the object of this government's scorn and fear. The workplace is profoundly undemocratic as it is. If we were referring to a political system instead of a typical corporate workplace in Ontario, the oppressive authority relations would be called fascist or totalitarian.
The majority of citizens are employees and spend about half their waking hours under the thumbs of bosses who allow them no voice in crucial economic decisions that affect their lives most profoundly and require them to work under conditions inimical to independent thinking. The boss says when to show up, when to leave and what to do in the meantime. He tells you how much work to do and how fast. It is a demeaning system of domination which rules over working-class women and men for most of their lifespans.
This government has regarded labour as having an equal share of bargaining power. Indeed, capital and labour are far from equal in bargaining power. Under the system of wage labour, workers are treated as commodities. It is not for the commodity to decide where it should be offered for sale, to what purpose it shall be used, at what price it should be allowed to change hands and in what manner it should be consumed or destroyed.
The social inequality within capitalism was foreseen by Adam Smith. Adam Smith said:
"It is not...difficult to foresee which of the two parties" -- workers and capitalists -- "must, upon all ordinary occasions...force the other into a compliance with their terms.... In all such disputes the masters can hold out much longer.... [T]hough they did not employ a single workman," the masters "could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without employment."
Unions have lessened this inequality between the worker and manager-owner, but government legislation has continued to favour the manager-owner, restricting workers' rights and unionization, and unions' resources are minuscule compared to corporate assets. Working life remains a terrible testament to class inequality.
Walter Reuther's words remind us of some of the terrible conditions of working life prior to the legalized acknowledgement of unions. He said injustice was as common as streetcars. When men and women walked in to their jobs, they left their dignity, their citizenship and their humanity outside. They were required to report for duty whether there was work or not. While they waited on the convenience of supervisors and foremen, they were unpaid. They could be fired without a pretext. They were subjected to arbitrary, senseless rules. Men were tortured by regulations that made difficult even going to the toilet. Despite the grandiloquent statements from the presidents of huge corporations that their door was open to any worker with a complaint, there was no one and no agency to which a worker could appeal if he were wronged. The very idea that a worker could be wronged seemed absurd to the employer.
Much of this indignity remains today, and with the globalization of capital and the Harris government's disdain for the working class, the gains of a century of working-class struggle are being destroyed.
I now turn the remainder of our presentation over to Mansfield Mathias.
Mr Mansfield Mathias: Greetings, panel. I have lived through a period which witnessed historical changes in the way bosses have been required to treat their workers, from the Master and Servant Act to the present labour codes today. The Tories ran from 1943 to 1987, 45 years without interruption, and during that period produced the best labour code in the country. Why?
In 1943 a CCF party came within four seats of defeating the Tories. During that early part of the period, two Communists were elected to city council in the city of Windsor; two Communists were elected to the Ontario Legislature from Toronto ridings. Sam Lawrence, a radical labourite, was elected mayor of the city of Hamilton along with a Communist on the board of control. This revolutionary ferment stunned the establishment and drove them to some rational thinking, not the commonsense kind.
This favourable labour legislation was designed to bolster right-wing tendencies in the labour movement and to create an image of benevolent capitalism which would be better for workers than a system of Soviets. This was suggested in a Toronto speech by Michael Parenti, an American political scientist, who said:
"For years they had to tell their working class that you live better than they do under Communism. For years they had to present a capitalism with a human face.
"Now that the Soviet Union is gone and Communism is gone, they have pulled out the plug.... There is no need to tolerate any accommodation with those who have to work for a living."
This statement is punctuated by your government's activity. You have stirred the labour leadership in this province, and its militant rhetoric has sounded the alarm. However, the troops have not yet been mobilized. Our industrial army is for the time being soundly asleep, curled up comfortably in the protective arms of the existing Employment Standards Act.
Now hear this: If in its blind stupidity this government pulls the Employment Standards Act out from under these sleeping Ontario workers, it will be like poking a stick into a hornets' nest. In the twinkling of an eye, you will rouse this sleeping giant and turn these comfortable workers into the revolutionary ferment that confronted your establishment some 50 years ago. Think about it.
What is an employment standard anyway? In the act, "`employment standard' means a requirement imposed upon an employer in favour of an employee by this act or the regulations." This recognizes the master-servant relationship, worker to boss, and attempts to mitigate the power imbalance between the two, an imbalance which unions strive to redress. Your amendments will turn this reality upside down and impose requirements upon the servant. Your efforts will produce a modern-day Spartacus. Thank you.
The Chair: Thank you both.
CANADIAN UNION OF PUBLIC EMPLOYEES WINDSOR, ESSEX AND KENT COUNTIES
The Chair: The next group up is the Canadian Union of Public Employees, Windsor and area office. Good morning.
Ms Barb Laforet: Good morning. I'd like to thank you for giving me the opportunity to make this presentation. My name is Barb Laforet and I'm a national representative working out of the Windsor and district area office. We cover employees in the municipal, university, health care and social agency sectors -- a whole myriad of employees, numbering about 8,000, in Kent and Essex counties.
In listening to Mr Brown's comments this morning, he has a lot of views that are shared as well when you're reading through this brief. What I hope to do is paraphrase what's going on here, and then if you have any questions or clarifications, I'd be pleased to answer them.
What were presented to us as being housekeeping amendments in our opinion are something that go far beyond housekeeping types of amendments. What we see is that these changes are things that are going to be making it easier for employers to cheat their employees and harder for workers to enforce those rights.
Section 20 of the bill has to do with enforcement under a collective agreement. What we're seeing, in my opinion, is the government offloading its responsibilities on to unions. We're seeing this not only in the employment standards area but in other areas as well, one of my most recent experiences being with human rights. Where before there has been access to a general minimum standard of acceptability within our society, it's now saying we're going to be taking the bulk of the avenues of recourse and putting it on to the unions. In this case it's going into the grievance procedure, as has been suggested in many other of the areas as well.
We have a lot of difficulty with this, most primarily because the employment standards officers have a great deal of investigative capability under the act, and under the general labour relations types of situations the unions don't have access to things such as employers' records, payroll, work schedules, that sort of thing. The task of proving any particular issue becomes significantly more difficult for a union rather than for the employment standards officer. It's my understanding that anything in the amendments certainly doesn't give unions the equal opportunity of access that currently exists for the employment standards officers.
In addition, you also have arbitrators who are being requested to make decisions that have to do with the intent to defeat the purpose of the act and its regulations. Arbitrators also don't have the investigative capabilities that are certainly given to employment standards officers, so there may be an argument that arbitrators wouldn't have the jurisdiction to make those determinations.
Ultimately, in terms of the union, it's going to be taking far more investigation time, enforcement and increased cost as well at a time when, because of other changes by the government, we're losing our members. Because of that, the resources the union has previously had we certainly will not have in the future.
In addition, very many of our members are in the low-wage categories. I have one local that makes $7.10 an hour. In this particular area, we're seeing all kinds of situations where the potential for complications exists very much for those particular people.
When you're looking at the enforcement for the non-unionized employees and the offloading into the court systems, one of the questions that I personally have to ask is, has anyone considered what the courts can currently handle if they're going to be dealing with this increased workload? We certainly have been hearing all over the place about the tremendous backlogs in the courts, so that's something I would recommend you consider in your deliberations here. A downsizing in one area may be a significant upsizing in another area, and a significantly more costly area.
Limiting the amount that is recoverable through the employment standards to $10,000 is a very bad thing to do. You have a situation where individuals are, for all intents and purposes, extending credit to their employers when they work. If any credit is extended to me, there certainly is an understanding that I'm going to have to pay my full bill, regardless of the minimum, regardless of the maximum. If I owe $5, then whoever should be coming after me. If I owe $20,000, I should be responsible for paying that. It's the same issue: credit is being extended. Whether a percentage falls into any particular category in my opinion is totally irrelevant. The bottom line still rests that if a dollar is owed, a dollar should be paid. No one should have to be excluded by virtue of some arbitrary minimum or maximum.
When you have the choice of filing either a civil action or through the Employment Standards Act, this also is not a good thing. If you're in a situation, for example, of a wrongful dismissal, it can result in a completely different sort of resolve than if you were bringing forward some kind of overtime hours or severance pay issues, those sorts of things. You're dealing with apples and oranges. Usually, what happens in those cases will be fighting on two fronts. It quite likely will get resolved on one front to an individual's satisfaction, but the issue still boils down to, if you can get different resolutions going through different areas, you should be able to claim whatever it is that your right gives you, regardless.
Having to do with the use of private collectors, there has been a pretty fundamental problem with a failure to enforce standards under the act to begin with, but in my opinion the resolution to this problem shouldn't be just to offload the problem on to the collection agencies; you should be doing something to deal with the issue up front.
When you have a private collector, you also have fees that are being charged against the person who owes the money. You have negotiations that are going on then, and ultimately a collector could be convincing someone for no other reason than expediency to settle for a lesser claim than they're entitled to. You wind up with a situation where an employee who is owed X amount of money takes a reduced amount of money, and a portion of that is going to be going to pay the fee collector as well. Although it looks really good on paper, you have a situation where an individual who is owed the money ultimately, in reality, not on paper, is paying the fee collector.
In terms of the limitation period, currently it is two years, and its being reduced to six months also creates an injustice. You have situations where the most vulnerable employees remain in working situations out of fear because they can't find alternative work, and certainly in the work climate we're having right now you're going to have an increase in that kind of frame of reference with workers. Usually, employees don't go after their employers because they're at risk doing so when they're actually at work, so they'll postpone that until afterwards. Going back to the issue of the credit that's being extended to the employers from the workers to begin with, they shouldn't be precluded from going after the money that is owed them due to the fact that they haven't previously out of fear of increased retribution from the employer. It sets up an extremely negative and downward spiral.
In addition to the time limits going to court, the burden of the cost is going to be also put upon the employees. These, again, are the most vulnerable. They've been in a situation where they haven't been getting the money that's been due them and these are exactly the sorts of people who can't deal with those sorts of issues in a court system because of the cost, the time delays and the lawyers' fees and that sort of thing. Certainly, when we're getting into this kind of a structure, we're not facilitating administration or streamlining procedures at all. What we're doing is setting up a system so that more people are going to be walking away from situations where they are owed by an employer.
I know that -- I call them the flexible standards -- section 3 of the bill has been withdrawn, but I need to mention that the minimum standards are a foundation. It's something that we as a society as a whole have come to an agreement on. We don't want an American type of situation up here. The idea of being able to negotiate below-minimum standards is atrocious. I have worked in a province that did have that kind of legislation in their employment standards act, and it led to nothing but disharmony and discord. It was a terrible, terrible situation. I won't dwell on it, in that it has come off the table at this particular point, but I would encourage you not to entertain that idea at all.
As was mentioned previously, the two positive things that should be reinforced are section 8 of the bill, the vacation entitlement, and the seniority in service during pregnancy and parental leave, which we can support. There are still some other issues that have to be worked out with that, but hopefully we can see eye to eye on those particular issues, at any rate.
In concluding, I reiterate that these coming as housekeeping changes I find really repugnant, but beyond this, the core of the problem is the nature of the amendments themselves. As the comments have already made clear, standards shouldn't be eroded and rights shouldn't be made more difficult to obtain and enforcement of such shouldn't be contracted out and privatized.
The Chair: We've only got about 30 seconds per caucus, so if anyone has a brief comment or an extremely brief question, we'll start with the official opposition.
Mr Hoy: Thank you very much for your presentation on behalf of the workers you represent in Windsor, Essex and Kent. You spoke about the two weeks to decide whether to go through the avenues of the act or pursue it through the courts. Two weeks, depending on where one goes to seek legal advice, could really only be 10 or 12 days, depending on how that particular law firm sets up its own week. Really, two weeks is, in my mind, not 14 days in this case, so it's even more constrained than that. I just make that comment. Thank you for your presentation.
Mr Christopherson: Thank you very much for your presentation. You have an excellent grasp of Bill 49. That's clear. We in the NDP have been expressing real concern with the fact that the minimum threshold the legislation will give to the cabinet is one that will over the years incrementally move up so that more and more money, quite frankly, can legally be stolen by the bad bosses. Is that a fear you have? Do you think it's well founded?
Ms Laforet: Beyond a doubt. There are all kinds of ways that employers can manipulate that sort of thing to begin with. If there is a minimum, they could very well be setting up some kind of system so that within the given time period they're staying within the minimum. If the minimum goes up, then it just, as you say, means that much more money employers can steal from workers. There are a lot of unscrupulous employers out there who would be champing at the bit to do exactly that.
Mr Baird: I just want to respond to the comment Mr Hoy made, because it's interesting. The 14 days to decide isn't so much the 14 days. What it is, is that under the act you would have the ability to choose between the courts and the ESA. Once you applied -- it's a sort of doublecheck mechanism -- you would be told again; you would have the 14 days, in addition to the six months before you could bring your claim forward, to make a decision. The reason it's there is just to be absolutely clear that people definitely know that, that they have a choice to make. That's why that is there, not to say that you have to make it within 14 days. Having said that, though, we can certainly consider the remarks you've made on that issue, because there's certainly a case.
Ms Laforet: One of the concerns we have in terms of that two-week period is that even if they were told very clearly at the front end, we have an awful lot of employees who are English-as-a-second-language and there are problems associated with that. The process, even in coming to a conclusion about whether you're going to file a grievance over a half-hour of your lunch that got taken away from you or something like this, is a major consideration for an awful lot of individuals. Someone who's told something may have to go home and talk with a partner, may have to talk with friends. There's a whole extensive decision-making process. And these are the people who are taking the initiative to go out and do that immediately. Human nature being as it is, they may sit back and not do anything for two or three days just while they get a grasp on it within their own head to start with before they initiate that kind of procedure. It can be overwhelming to some individuals.
Mr Baird: What percentage of your workers would be English-as-a-second-language?
Ms Laforet: Just off the top of my head, I'd say 20% maybe.
Mr Baird: Do you provide any documents in the other languages?
Mr Laforet: Yes.
The Chair: Thank you for taking the time to make a presentation before us here this morning.
CANADIAN AUTO WORKERS, LOCAL 1973
The Chair: The next group up is the Canadian Auto Workers, Local 1973. Good morning, gentlemen.
Mr Bert Desjardins: Good morning. My name is Bert Desjardins, the vice-president of Local 1973. With me are Mike Thomas, the chair of our PEC committee, and Bob Nesbitt, the financial secretary of CAW, Local 1973.
The first thing I'd like to do is talk a little about the need for consultations. When you're going to change the Labour Relations Act or the Employment Standards Act, I would think it's only fitting to go around the country and talk to labour. Labour, the unions, represent a great majority of the workers. They represent the working people, the interests of the working people, and when you're going to make changes to those laws, it seems to me only right that you'd go around and particularly come to a city like Windsor, which is an industrial city and has a large amount of industrial workplaces. I think it's good that you get out of the city of Toronto and come around the country. You might find it very interesting. Some people probably saw the casino last night or whatever, so we've got more to offer in some respects than Toronto, and you might also want to take a drive along the riverfront here. We have beautiful parks and everything else. You might find there's life outside of Toronto. So we appreciate you coming for consultations. We requested that you come and go around the province, and we're glad you did.
We spent a fair amount of time on this brief, so we hope you take as close and critical a look at the brief as the time we spent preparing it. With that, I'll start reading the submission to you.
Introduction: This submission is made on behalf of the membership of CAW, Local 1973. CAW, Local 1973, is composed of 2,300 active members employed by GM in Windsor, 1,100 laid-off GM workers and approximately 1,000 retirees. The first point we want to stress is that we believe the workers of Ontario and the unions that represent these workers should be consulted on any proposed changes to labour and employment laws. Our local sent requests that public hearings be held and we are glad that we now have an opportunity to present this submission.
We come before you today to voice our opposition to Bill 49, which proposes to make changes to the Employment Standards Act, ESA. Employment standards and various labour relations laws and acts came about as a result of elected officials realizing that rich and powerful people and corporations held an unfair amount of power and privilege over the common labourer. The working class and the disadvantaged will always look to the future with hopes of making a better life for themselves and their families, whereas the rich and powerful will attempt to amass more power and wealth at the expense of the poor and working class. Unfortunately, the rich and powerful are reversing gains that labour has made over the years, and the proposed changes to the Employment Standards Act, Bill 49, bear witness to these reversals.
Flexible standards, section 3 of the bill, subsection 4(2) of the act: Overall, this is to CAW, Local 1973, the most odious section and subsection of the bill. A few short years ago, the implications of these changes would have been unthinkable. As we understand the proposed changes, Bill 49 allows a collective agreement to set the minimum standards as related to vacation pay, public holidays, overtime, severance pay and hours of work when these basic items are assessed together.
General Motors workers take the greatest of exception to any changes which would allow GM the power to force their workers to put in more hours during the week. GM workers in Oshawa, over the last few years, have faced demands to work more hours per day and per week and granted the company some additional hours to secure their jobs. The increased hours already granted by the membership of CAW, Local 222, the local union representing the GM Oshawa auto workers, haven't been enough to satisfy GM, as they have been lobbying the government for changes to allow them to force mandatory overtime on workers, and that may very well be why we are facing some of these proposed changes to the Employment Standards Act today.
Last week, General Motors laid down a list of demands it wants from the union in the 1996 round of negotiations. The Globe and Mail reported, "GM also wants more flexibility to enforce mandatory overtime."
This week the Windsor Star reported, "Labour minister Elizabeth Witmer announced Monday she is withdrawing a section of Bill 49, a package of amendments to the Employment Standards Act, that would have allowed employers and unions to negotiate standards for work hours, statutory holidays, overtime and severance pay that are now set out in the act."
Is it coincidental that GM has been lobbying for changes to the act so that they may force their employees to work longer hours; that Witmer introduced Bill 49, which included changes to the Employment Standards Act, which could permit changes to allow for longer working hours; that last week GM included in its list of demands to the union that it be allowed more flexibility to enforce mandatory overtime; and that this week Witmer withdrew a section of Bill 49 "that would have allowed employers and unions to negotiate standards for work hours"?
Governments must come to realize that enacting laws that allow corporations to bargain for longer working days or more work hours in a week also allows companies to employ fewer workers. Rather than spreading the benefits of improved technology throughout the populace, the benefits become concentrated in the hands of a few, consequently leading to gross divisions in society. Allowing corporations the power to bargain more hours of work could ultimately lead to monumental dissension and violence in workplaces and society, because as the divisions in society become greater, more of the disadvantaged could feel justified in lawless action when they reach the point where they feel they have nothing to lose. They may very well feel that lawbreaking is their revenge on a society that has denied them a chance for a decent standard of living.
Another scenario which will occur is that some corporations will choose to lay off workers or not recall workers, opting instead to work a shrunken workforce more hours. This fear of workers being forced to work more hours while their co-workers have lost their jobs is based on the fact that it is occurring right now at different workplaces every day.
At the GM transmission plant in Windsor, there are presently about 870 workers who have been laid off since 1993. The CAW representatives at the GM transmission plant must constantly challenge the plant management to bring back workers rather than have the workers who have been recalled work extended hours. Many of the workers who are in the plant working were laid off themselves for one to two years and during that time accumulated large bills which they are anxious to repay. The transmission plant union reps have mostly been united in this struggle to recall workers rather than work extended hours, but at many workplaces the union won't even suggest to its members that they should demand that the company recall workers before scheduling extended hours, as it cuts into their overtime and is a politically unwise move.
No one will deny that if workers are forced to work longer days and more hours in a week, they will be more stressed. Unfortunately, the stress caused by working longer hours will also affect marriages and children will suffer.
Some people need the structure of work in their life to remain lawful and peacekeeping citizens, but if increasing masses of citizens are denied that work routine and the fruits of society that a job brings, the result very well could be escalating anarchy. Many young people are rebellious and irresponsible through their teen years, but as they face the demands of work and families, they mature. Denying young people meaningful jobs which offer a decent standard of living, with a chance to raise families, will delay and in some cases prevent people from acting responsibly in society.
A worker who is remunerated at the Employment Standards Act level can't afford to raise a family or hope to save for the future, their only hope being to get enough skills or be fortunate enough to move on to a better job. With these proposed changes, even moving to better jobs will be riskier and more complicated, as people seeking new job positions may not be aware that the basics they previously enjoyed and took for granted because they were law are not offered at their new job because those minimum standards are no longer the law.
Although the proposed changes to the basics are only impacting unionized workplaces at this time, we are especially fearful that once this government has carved these basics away from the organized, the unorganized and weakest will then be seen as just another step for the corporate power-hungry of this province.
For the workers and unemployed to benefit from changes to the ESA, the basic standards of hours of work, overtime, vacation pay, severance pay and public holidays must remain enshrined and be improved upon, not caught in a downward spiral. Changing the basic hours of work to eight and 40, where all hours worked after 40 hours in a week are optional, will create a more humane workplace and could lead to management considering the addition of a second or third shift. With an expanded workforce, the fruits of employment will be spread among a greater number of people, rather than working the existing employees to the point of exhaustion.
Enforcement under a collective agreement, section 20 of the bill, section 64.5 of the act: Isn't it ironic that the Ontario government has made it more difficult to organize workplaces -- Bill 40 -- and yet is willing to force more work on the unions that are already in existence? Through the enactment of Bill 40, which ensured more corporate control over workplaces by putting greater limits on union organizing, we see Bill 49 as a further extension of corporate control over workplaces. The more workers' rights are limited, the more corporations can domineer and bully their employees.
At the present time, unionized employees can use the investigative, persuasive, representative and legal powers of the Ministry of Labour. In reality, limited companies and corporations make the final decisions, even when they are facing the most experienced unions in the world. Heaven help any union that stands in their way. With this said, when workplace closures occur, those workers and unions are in a most unenviable position, and having a minimum severance and termination pay base from which to work eases the fears of the workers and union reps. When a workplace closure is occurring, the union reps are also losing their jobs, and although it may not seem like a lot, it does ease the pressure and provides some peace of mind to know that there are minimum standards and that there is some additional help through the Ministry of Labour for their members.
It is a very difficult and demanding job to be a good union rep. The job requires an immense amount of knowledge, dedication and unselfish sacrifice to do the job correctly. By requiring union reps to undertake enforcement of the standards contained in the Employment Standards Act, the framers of Bill 49 are requiring union reps to not only have the knowledge of their job, which can often be overwhelming in itself, but if this bill is passed as it is now, then the union reps will have to assume the work of the Ministry of Labour. With an increase in work comes an increase in the chances of a misstep.
If this government is so intent on shifting this work away from the Ministry of Labour, why doesn't it go a step further and amend the act whereby every non-unionized workplace is required to set up a joint committee to look into and correct any violations of the Employment Standards Act? Such committees could be set up along the lines of workplace health and safety committees and could act as a subordinate arm of the Ministry of Labour. Requiring the private sector to train and set up such joint committees could lead to better-organized workplaces in non-unionized environments and could go a long way towards protecting the unorganized in the province of Ontario. Such joint committees could be a meaningful and progressive step for the workers of this province and would actually give some validity to the name Progressive Conservative.
Final verdict: CAW Local 1973 views most of these proposed changes to the Employment Standards Act as harmful to all workers, another attack by the Conservative government on the working people and poor in the province of Ontario, and therefore we are opposed to Bill 49 as it is written. Governments should strive to improve the standards of working people and the poor in society. We hope the provincial government of the day totally rethinks Bill 49 and decides to act in the best interests of the overwhelming majority of people in this province, not the moneyed.
The Chair: We've actually gone over 15 minutes, so we won't have time for questions, but we appreciate your taking the time to make a presentation before us here today. Thank you.
LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 625
The Chair: The next presentation will be from the Labourers' International Union of North America, Local 625. Again a reminder that we have 15 minutes for you to use as you see fit between presentation or questions and answers.
Mr Wally Dunn: My name is Wally Dunn and I'm a representative of Labourers' Local 625, but I want to assure this committee that not only the Labourers have great concern over this bill; so do all the other construction trades in this province.
As a construction labourers' union representative, I am particularly concerned about those changes which restrict access to the employee wage protection program. It is difficult to evaluate these changes because the bill is not very clearly drafted and parts of it are capable of different interpretations. However, I'm advised by our lawyers that one possible interpretation would exclude unionized workers from any participation in the program. Although not all lawyers agree with that interpretation, I am concerned that it may prevail if the bill is not clarified.
At a minimum, the bill appears to restrict the participation of unionized construction workers in the program by requiring them to choose whether to pursue a lien claim or proceed with an employee wage protection application.
Currently, construction workers can pursue an EWPP claim and lien claim simultaneously, with an eventual setoff of the amounts recovered. However, under this new legislation construction workers will have to abandon their EWPP claims within two weeks of commencing a lien action. Given the brief statutory time limits for starting a lien action, this election will come up very quickly, in all likelihood before there is sufficient information available for the construction worker to make an informed choice.
A variety of factors can influence the attractiveness of a lien action as opposed to an employee wage protection claim. For example, lien actions can yield greater recovery than EWPP claims, which have a $2,000 limit. But unlike the EWPP claims, lien claims are subject to demands by Revenue Canada for GST and source deductions, which can wipe out any prospect of recovery.
At the time of the required election, it may not be possible to ascertain whether Revenue Canada plans to make a claim. If Revenue Canada later intervenes with a large claim, a construction worker who chose to rely on the lien process may not recover anything, or less than what he or she could have got through the employee wage protection program.
Similarly, a construction worker who chose to pursue an EWPP claim in anticipation of a large Revenue Canada demand which did not materialize would suffer as a result of the required election. It is not uncommon for months to pass before the size of a holdback and the extent of all claims are known. Therefore, it is quite likely that workers will have to make their election without the benefit of such information.
Although the bill requires all employees to elect between EWPP claims and civil actions, this election will be more expensive for construction workers because of the costs associated with liens prior to the start of an action. In order to preserve their right to begin a lien action, construction workers must register a lien beforehand. That costs the workers money, especially if the workers use a lawyer, and they cannot get their money back if they eventually decide to abandon the lien in favour of an EWPP claim.
Even leaving aside the question of sunken lien costs, the bill will increase the cost of EWPP claims for unionized construction workers because it makes the arbitration of grievances a prerequisite for recovery. The program currently uses the same approach as the courts and does not require unions to take grievances to arbitration if there is no dispute as to the correct interpretation of the collective agreement. This pragmatic approach has spared unions and the Ontario Labour Relations Board, where construction grievances are heard, considerable expense. Now, however, it seems that we will have to get a decision upholding the entitlement of our members even if the employer is indifferent or agrees with the amount that we say is owing. This change will put pressure on the unions to increase dues and add to the strain on the Ontario Labour Relations Board's resources.
So far I have focused on changes which restrict access to the employee wage protection program because I believe that these changes deal more harshly with our members. However, I would be remiss if I did not state my union's opposition to the various provisions which threaten to diminish access to justice for all workers, both organized and unorganized. I will now touch briefly on some of these changes.
The provisions permitting parties to contract out of important minimum standards will result in a race to the bottom, with employers striving to roll back fundamental, long-established entitlements. This race will make negotiations more acrimonious, settlements more difficult and strikes more likely as workers strive to preserve their entitlements.
The requirement that unionized employees pursue all claims through grievance arbitration will place tremendous strain on union resources at a time when most unions can ill afford added costs. This is another example of the government penalizing union members by making them finance services that the ministry provides to other workers at no charge. Due to a scarcity of resources, unions will have to make tough choices about which claims to take forward. These choices will expose unions to complaints by disgruntled members and cost the unions more money to defend.
The new $10,000 maximum penalizes the most vulnerable employees. Workers are often owed more than $10,000 because they dare not challenge an employer while they are still dependent on that employer for income. However, if this bill passes, such workers will never get full restitution and employers will reap windfall gains by virtue of their limited liability.
The effect of forcing non-union employees to choose between the ministry and the courts for enforcement will be to reinforce the $10,000 maximum since most employees cannot afford the cost of a lawsuit.
The new six-month limitation period further penalizes vulnerable employees who find it necessary to put off making a complaint until after they have severed their employment relationship by quitting or finding another job. If they fail to file before the deadline, their only option will be to go to court, but that won't be a real option for most because of the formidable cost.
The as yet unspecified minimum for claims totally undermines the concept of basic employment standards. No violation of the act can be considered petty for low-income employees, but this bill would deprive such employees of a remedy for what well-paid bureaucrats and politicians consider minor violations. This change sends a message to employers that they can engage in legalized theft below a certain threshold.
The privatization of collections raises concerns about awards being eroded by fees and discounted settlements. Under this system workers may not only get less than what they're owed but they may have to pay a fee to get anything. We think this is an unconscionable way to treat vulnerable employees who rely on the act for protection and justice.
In closing, we endorse the submissions of the Ontario Federation of Labour regarding this bill. We agree that the minister's description of these amendments amounts to a gross misrepresentation. This bill is not made up of housekeeping amendments. It is a full-scale attack on the basic rights that we as a society have long considered necessary for all employees. Therefore, we cannot support the bill and we urge you not to support it either.
The Chair: Thank you very much. You've left us two minutes per caucus for questions, and the questioning this time will commence with the third party.
Mr Christopherson: Thank you for an excellent presentation. I appreciate it, Wally.
You spent a fair bit of time, especially in the beginning, talking about the employee wage protection plan. Of course, you know that this government, after we brought in the first real protection for wages and benefits that are owed workers when there's a bankruptcy, has gutted that program already and has reduced it from $5,000 to $2,000, eliminated the ability to claim for termination and severance.
I'd like to know your thoughts on that and also whether or not you see that as further evidence of the fact that with Bill 7, Bill 49, the changes to WCB, the Workers' Compensation Board, the attack on the health clinics, on and on, is clear evidence of an agenda by this government that is not only anti-union but anti-worker.
Mr Dunn: There's absolutely no doubt in my mind. We are definitely not in favour of the cut from $5,000 to $2,000, because in our industry it does not take very long to accumulate $2,000 with wages, especially if you're paid every couple of weeks, with benefits and pensions and holdbacks.
Also, with the cuts to the Ministry of Labour, safety is a major issue in our industry. We now in this area have roughly three ministry inspectors. As you know, the economy in this area is booming right now, for a change, and we're trying our best to keep the safety standards in place, trying to look after our members. As some members on the committee said earlier, "We think everybody is aware of their rights." I can assure this committee that not everybody out there, especially in our industry, is aware of their rights.
Especially in a boom community, you have a tendency to have a lot of unorganized construction employees. What is happening here is that these employees are mostly new Canadians. They are not aware of the rules, they're not aware of the language and they're not aware of their rights. I have them come to me and say, "I can't collect unemployment." "Well, you should have had that taken off your cheque." "I am not paid by a cheque. I'm paid by cash." You see what I'm saying. This is totally out of control right now, and with any more erosion of the standards I don't know where we're going to go.
Mr Christopherson: Whose side do you think the government's on in all of this?
Mr Dunn: Well, they're definitely, from where I'm sitting, not on the workers' side.
Mr Christopherson: If you listen to the government, they'll tell you that they care about workers. They're on their side. They're fighting for them.
Mr Tascona: Thank you very much, Mr Dunn, for your presentation. Being in the construction industry, you must have some familiarity with the Occupational Health and Safety Act, and probably some familiarity with respect to stop-work orders being issued where there are contraventions of the act. The problem we have is not so much in the enforcement, because I think the employment standards officers by and large do their job. They make a decision; they issue an order. Our problem is collecting the money. What we heard in Toronto this week, and other areas, is that there are some sweatshops out there, that there are bad employers. We're looking at private collection to try to get the money.
One other area might be of consideration where there are across-the-board abuses and we're dealing with bad employers is stop-work orders. Is that something where it could affect more than one employee in terms of shutting down an operation? Certainly they do that under health and safety, to get the point home, saying, "You're not working because you're working unsafely." How do you think that would apply in terms of getting the message home for employment standards?
Mr Dunn: We already have, with our health and safety policies in place, with the construction trades. When we shut down, a lot of times we try to have an employment standards officer or a ministry officer come to check out certain areas of the job sites. We have no problem with shutting down job sites in our own, unionized industry. Most of the employers, if they find out there is a violation, they willingly correct it right away.
Mr Tascona: But employment standards officers don't have the power to issue stop-work orders, though health and safety officers do.
Mr Dunn: We can shut them down, but then we have the ministry come out because the company wants them to come out and inspect these jobs. But the ministry, for the health and safety standards -- I mean, if we don't have any inspectors, if you plan on cutting 45 personnel in the ministry itself in that regard, how are we going to use them to deal with some of our claims we have? Why go to discuss for somebody who's an unorganized worker in a small company?
Mr Hoy: Thank you, Mr Dunn, for your presentation. Your comments about the employee wage protection plan are well taken. It also points out that it's imperative that the government discuss with the stakeholders acts, bills or changes in legislation before they actually go forth, so that all the stakeholder comments can be made and situations as you put out will be recognized.
You made a comment at the bottom of page 3 in regard to a "race to the bottom" and that negotiations will become more difficult. I'm led to believe that labour relations in the Windsor-Essex area have been very good over the last few years. Is that correct?
Mr Dunn: Yes, they've improved immensely over the last few years.
Mr Hoy: I just want to make a comment that changes, as you see them, in Bill 49 that would erode those fine relations going into the future would be shameful. I appreciate your comments.
The Chair: Thank you for making a presentation before us here this morning.
WINDSOR WOMEN WORKING WITH IMMIGRANT WOMEN
The Chair: Which leads us to the next group, the Windsor Women Working with Immigrant Women. Good morning.
Ms Sungee John: Good morning. My name is Sungee John and I'm the president of the Windsor Women Working with Immigrant Women. I welcome the opportunity to make this presentation to the standing committee on resources development on the matter of Bill 49. The Windsor Women Working with Immigrant Women, or WWWWIW for short, came together in 1981. The focus of WWWWIW is towards immigrant and visible minority women in Windsor and the surrounding communities.
WWWWIW provides the community with services such as language instruction, in-depth counselling, citizenship preparations, life skills classes, information and referrals, as well as operating as a drop-in centre. WWWWIW also advocates on behalf of isolated women who have a limited ability to communicate in the language of their adopted country.
In the following pages, WWWWIW will briefly outline its concerns over the bill and the obstacles it will present to the ever-growing community of immigrant women and men.
Bill 49 represents a grave setback for workers in Ontario, particularly women, immigrants and people of colour, who make up the bulk of workers covered by the Employment Standards Act. The role of the Employment Standards Act is to provide a basic floor for wages and working conditions for most workers in Ontario. It is the only vehicle of protection for many workers in industries such as food processing, clothing and textiles, as well as domestic workers and home workers.
Bill 49, if passed in its present form, will have a detrimental impact on unionized workers and, in particular, non-unionized workers in Ontario. What the Minister of Labour predicts to be the result of Bill 49 -- that is, the encouragement of workplace parties to be more self-reliant in resolving disputes, making the act more relevant to the needs of today's workplace and to focus the ministry's attention on helping the most vulnerable workers -- will in fact prove to be the opposite if Bill 49 becomes law.
Before continuing on, what I've done in this outline is to focus on four areas rather than go through the entire bill. The areas of particular concern to the immigrant community are civil action, maximum and minimum amounts, private collectors and time limitations. I'll continue with civil action.
In this section, Bill 49 proposes two separate options for workers who wish to pursue lost wages. They either seek the help of the Ministry of Labour and accept the new conditions imposed by the bill, such as the maximum amount, which will be discussed further into this paper, or seek the remedy of legal action through the civil courts. Bill 49 allows the claimant only two weeks to make the choice. In attempting to research both avenues and arriving at a decision between the two, the process may take well over two weeks.
For immigrant women and other vulnerable workers, the obstacles are far more daunting. In two short weeks, they must gain access to information, and in many cases the translation of such, not to mention overcoming their trepidation over dealing with the justice system. Furthermore, most immigrant women lack the economic means to hire legal assistance, since Employment Standards Act cases are no longer covered by the Ontario legal aid plan.
I move on now to both the maximum and minimum amounts. Bill 49 proposes to impose a ceiling of $10,000 which an employee might claim under the act's enforcement mechanisms. Under this proposal, a worker who is entitled to more than $10,000 in back wages must choose to accept the maximum limit or seek the full amount through civil court, in which case the worker must bear the cost of legal services plus wait patiently for their day in court -- a process that may take anywhere from three to six years in the General Division court.
Many workers who make claims against their employers, such as domestic workers and home workers, are owed much more than $10,000. In the case of non-citizen domestic workers, their precarious position in this country and the lack of support and public education on worker rights often prevent them from filing a claim until their economic situation becomes absolutely intolerable.
In reality, a worker, especially one who is a newcomer, can afford neither the expense nor the time it takes to wait one's turn in our increasingly backlogged court system.
Bill 49 also includes a minimum monetary limit, but the amount has yet to be determined by the minister. In a situation where a worker makes a claim below the minimum, she or he must go to the personal expense of the Small Claims Court. When this happens the government has, in effect, abandoned its responsibility to all Ontarians. It has placed a monetary value over when to intervene to protect a worker's right.
Workers often make repeated, relatively small claims against their employers under the Employment Standards Act. The new system will also encourage small claims because of the new six-month time limitation period.
Together, placing a minimum on the amount a worker can claim against an employer and introducing a six-month limitation period will create a double bind for workers. Workers will have to wait until their claim reaches the minimum threshold to pursue a claim against an employer, yet they will be constrained by the six-month limitation period to avoid going to court. The end result could well be the worker abandoning any attempt to recoup the costs and the employer getting away with cheating an employee.
Next we touch upon the private collectors. Bill 49 proposes to privatize the collection function of the Ministry of Labour's employment practices branch. Too often the failure of the ministry to collect a worker's entitled wages is a direct result of the employer's refusal to pay. Which brings to mind another point: If the ministry had more staffing in this regard, the failure rate would most likely decrease.
With the addition of private collection agencies, a whole new set of barriers has appeared for immigrant women and other vulnerable workers. Collection agencies are driven by the profit motive. They are not in existence out of a sense of public duty. Their interests lie not in the pursuit of social justice and equity, or the protection of workers' rights. They will only protect the interests of their clients up to a certain point -- their bottom line.
Moreover, with collection agencies sprouting up in anticipation of the expected business, how will the government ensure that these agencies will abide by a minimum set of standards when ensuring the proper and responsible pursuit of their clients' interests? The door will be open for these collection agencies to encourage the worker to settle upon what the collector feels would be the best deal -- to meet its bottom line and balance its own account -- rather than the just deal for the client. Private collection agencies will push for a lower claim to shorten the claims process. They will be driven to carve out a profit from the workers' entitlement. Women who are desperate for their back wages will be forced to accept very low offers in the interest of a hasty settlement process.
In the case of immigrant workers they, more than any other workers, face the very real prospect of further exploitation -- first through their employer and then through the government's abdication of responsibility. Making the worker pay fees to fight for what is rightfully their due is unconscionable.
Moving on to time limitations, Bill 49 proposes a period of six months from the date of the complaint filed in which employees will be entitled to back pay. Currently, the time limit is two years. The proposed six-month limitation will further victimize the vulnerable worker. As is often the case, a worker will file a complaint only after leaving the employer -- after years of employment or hours of unpaid vacation and overtime. If a worker files a complaint while employed, she or he faces the likelihood of retaliatory measures by the employer, and there is nothing in the current Employment Standards Act or in Bill 49 that addresses these situations. The worker will have no other recourse but to take the claim for the remaining amount through private litigation or drop any claim for the remaining amount. Since legal aid is not available for employment law issues in Ontario, Bill 49 will make it economically impossible for low-income women to afford to make a complaint.
Meanwhile, the employment standards branch has two years from the date the complaint is filed to investigate the matter and another two years to recover the entitled amount from the employer. In this bill, the employee might have to wait four years to collect six months of wages. Of course, the employee will also have to factor in the collection agency's fees.
Because of high unemployment, particularly among immigrant and young women, women workers need at least a two-year complaint period. Many women, such as domestic workers and home workers, endure excessive violations just to keep a job in this economic climate. Currently, over 90% of complaints filed are from employees who no longer work for the employer they are complaining about. Because the government offers no protection for workers making complaints, women often cannot afford the risk of retaliation from employers, so they often hold out at a given workplace until they have the opportunity to take another job. By removing the two-year time limitation, once again the only party that benefits will be the employer.
Finally, in conclusion, the impact of Bill 49 will be the closing of doors for vulnerable workers such as women, immigrant and migrant workers, youth and the disabled. They are faced with abandoning that to which they are justly entitled or facing an expensive and lengthy battle in the intimidating arena that is the current justice system.
In the introduction of Bill 49, the Minister of Labour said it was the first part of a two-phase review of the Employment Standards Act. How can the minister justify such sweeping changes in Bill 49 before the Employment Standards Act review even takes place?
The Minister of Labour said that Bill 49 would help the most vulnerable workers. How is that possible when the interests of the business sector are given priority before the rights of the worker? What, then, is the minister's definition of "vulnerable"? In Bill 49, it seems as if the minister's answer to helping the vulnerable would be lowering the minimum standards currently in place and making the opportunities of exploitation by unscrupulous employers more available.
Windsor Women Working with Immigrant Women strongly feel that bringing in such sweeping changes without taking into consideration the effects they will have on doubly disadvantaged groups will be a setback to the process of attaining an equitable status for immigrant and visible-minority women. We'd also like to endorse the employment standards working group analysis on Bill 49 that was written by Judy Fudge.
The Chair: Thank you very much. That leaves us slightly under three minutes, so I'll say one minute per caucus for questioning. This time the questioning will commence with the government.
Mr Baird: Thank you very much for your presentation; we appreciate it. I have a question on number 4 of your presentation, on the issue of collections. You write, "If the ministry had more staffing in this regard, the failure rate would most likely decrease." I wasn't around before 1995, but in 1993 the NDP government disbanded the collections branch at the Ministry of Labour and discharged 10 public servants who were performing that function. The rate went from 25 cents to 15 or 20 cents; it's since come back up. Our offices, as MPPs, are constantly receiving calls from constituents, particularly on many working issues, WCB claims. I know one of my colleagues has someone working exclusively on WCB claims. Could you shed any light on why they would have done that? I know you have a tremendous amount of experience as well working for a member in the previous government.
Ms John: You're talking about WCB claims?
Mr Baird: No, no, the disbanding of the collections unit in 1993. I know you were with the government; worked for a member at that time. Did you receive any more complaints when it went from 25 cents down to 15 cents?
Ms John: You're asking about my experiences back then?
Mr Baird: Yes.
Ms John: No, we didn't receive complaints then, at that point.
Mr Baird: Even though the collection rate went down by 10%?
Ms John: What happened in one year I can't say would justify the statistics over a five-year period. That could be an anomaly. I'm not at this point ready to comment on that issue.
Mr Baird: We tried it for a year, doing it internally. I know the previous government made an earnest attempt. They disbanded the collections branch and tried something different. It didn't work. I guess what we're saying is that we don't want to tinker with it. We think we can do demonstrably better than 25 cents on the dollar. Workers have every right to expect 100 cents on the dollar. We hope the private collection agencies will be able to get more money for workers, and of course we'll be accountable for that, because we think it will go up considerably. The status quo, the way we're doing it now -- that's the only thing we know -- doesn't work.
Ms John: At this point private collection agencies, as I stated in the paper, are profit-driven so their motives are not out of a sense of public duty.
Mr Baird: But they don't make any profit if they don't deliver for workers. They make zero. The companies themselves, the deadbeat companies, have to pay them, which is important to know.
Mrs Pupatello: Thank you, Sungee, for coming today to speak on behalf of immigrant women. I only wanted to add as comments to the report something that should be included in a presentation on behalf of immigrant women, and that is the pressures that are brought to bear over the allowance, through this bill, to negotiate certain standards of work like the hours, overtime, paid vacation, public holidays and severance pay. By allowing unions to negotiate those items, the most significant impact on non-unionized workers is the need for employers of non-unionized shops or the service industry, whatever it might be, to match those hours, overtime etc. It's that kind of pressure that's now brought on to non-unionized workers. It's clear, as the presenters earlier, those that represent, typically, service industries that have a larger percentage of women and a larger percentage of immigrant women who are negatively impacted by this bill -- I thought that would be in this presentation. I would like to make sure that is included.
Mr Cooke: Very briefly, I think it's very important that your presentation that has been made today reinforce to all of us that the impacts of this legislation are not just on workers who are represented by labour unions. While they'll be hurt by this legislation, they're still going to have organizations to fight for them and to speak for them. The most vulnerable people in this province are going to be devastated by this legislation and other acts that have watered down labour legislation in the province.
I wouldn't want you to go from the table without understanding that when the Conservative government talks about only a 25% collection rate, one should understand that a lot of that is dealing with companies that have gone bankrupt and that the only protection the workers under those circumstances had was the employee wage protection fund, which, as you know, this government has absolutely devastated. So workers are going to be hit hard, not just because of this but also because the wage protection fund, which protected some of the most vulnerable workers, has been devastated by this government in another piece of legislation.
The Chair: Thank you for taking the time to come before us here this morning. We appreciate it.
WINDSOR-SANDWICH NEW DEMOCRATIC PARTY RIDING ASSOCIATION
The Chair: That takes us to the last presentation of the morning, the Windsor-Sandwich NDP Riding Association, which I believe was originally filed under Mr Milne's name himself. Please proceed.
Mr Tom Milne: Good morning. I'm Tom Milne. I'm here representing the Windsor-Sandwich New Democrats, and I'm happy to be here in this capacity. The time restrictions here don't really allow me to speak to every aspect of Bill 49, so I'm going to try and focus my comments this morning to the bill as it relates to workers in non-unionized workplaces and try to leave some time for some questions.
Let me first speak to the enforcement of the Employment Standards Act for non-unionized workers. This bill contains six major changes to the act with respect to enforcement. I'll step through them now if I can.
First of all, the shorter time limits for filing a claim: Currently the act allows a worker two years to file a claim. While this may seem like a long time, what about workers who stay in a job where their rights are being violated because they're terrified of the prospect of being without that job? With unemployment as high as it is, they can't risk the possibility of getting a bad reference from their current employer, so they need to find a new job before they make the claim. No one should have to make a choice between their job and their rights, and two years is a reasonable period in which to file a claim.
Next is a shorter investigation period. This bill only allows investigations to scan back six months of a worker's history from the time a claim is made. This would allow an employer to violate the act for a year, two years, maybe more, and only be held accountable for the previous six months.
The $10,000 cap on claims: Currently there is not a maximum on a claim amount and Bill 49 will set a $10,000 cap on the amount a worker can claim for violations of the act.
Next is a new minimum claim amount. Bill 49 allows the minister to set a minimum claim by regulation. Depending on the amount of this minimum, it could well have the effect of employers keeping their violations under the minimum in any six-month period and thereby avoiding any legal penalty.
Access to justice is denied for low-wage earners. A worker who files a claim at the Ministry of Labour for severance and termination pay is precluded from bringing a civil action concerning wrongful dismissal and claiming pay in lieu of notice which exceeds the statutory minimums. The effect of these amendments is that those workers who have chosen the more expeditious and cost-effective path of claiming through the ministry will have to forgo any attempt to obtain compensation through the courts. Legal proceedings are notoriously lengthy and prohibitively expensive for many, even though they may be entitled in common law to more than a statutory minimum under the Employment Standards Act. This government has recently stopped providing legal aid certificates for employment-related matters. This bill will force low-income workers who are owed more than $10,000 to file claims through the act and forgive the balance owed to them.
The last aspect is the use of private collection agencies. Although the Ministry of Labour is relatively weak in the area of collections, this bill's provisions for the contracting out of collection services presents other major problems. These agencies will have the authority to encourage settlements between workers and employers who owe them money. These settlements are generally negotiated on a cents-on-the-dollar basis. Collection agencies should not be given the power to amend orders made by the employment standards branch. This undermines the authority of the act and the Ministry of Labour.
These are the six areas. It absolutely amazes me that any government would somehow make it difficult for workers to recover money they actually worked for.
I have attached some examples here. I was going to go through all six of them, but I'm not, because I don't want to run out of time; I'll leave some time for questions. I'm just going to pick up on a couple of them.
On page 4, at the top, the second one, is a case of a worker we'll call Ms F, who was a cashier. Ms F worked for a major grocery store for 13 years and was terminated from her employment without cause. She did not receive any notice of her termination or termination pay in lieu of notice. Pursuant to the Employment Standards Act, the cashier was owed eight weeks of termination pay as well as severance pay. She filed an employment standards claim with the Ministry of Labour for approximately $5,000, which she was awarded. This worker filed her claim almost a year after she was terminated. Under Bill 49, her claim wouldn't have been allowed, as the six-month time limit for filing claims would be imposed.
I'm going to skip to the last one, which is on page 5, item 6, the case of Mrs J, who was a domestic worker. Mrs J worked for one employer for 17 months. She routinely worked 15- or 16-hour days from Monday to Friday and very long hours on Saturdays and Sundays. Her employer did not pay her on a regular payday. She did not receive a statement of wages. At the end of her employment with the employer, she was owed a month of unpaid wages. The total amount owing for this period in overtime pay and unpaid holiday pay was almost $33,000. The employer also kept and controlled all her documents, including her passport and her bankbook. He only released her documents after she complained to a counsellor at an agency for domestic workers. Ultimately, after two years, this worker was awarded $23,000 in overtime and unpaid holiday pay. Bill 49 would reduce this worker's claim to less than $10,000, both because of the $10,000 cap and because of the shortened investigation period.
The source for those examples is Parkdale Community Legal Services.
We can argue forever about what level of compensation a given worker should receive for doing a given job, but surely, whatever that level is, we all agree that workers should be paid each and every cent of that compensation. Anything less than that is theft.
I want to move to the more philosophical question of what the government's proposing here and its relationship to unorganized workers in Ontario.
Apart from a few positive amendments like vacation entitlements and seniority accrual during family-related leaves, any reasonable person would agree that the overall effect of Bill 49 will be a transfer of rights from workers to employers. Members of the government will argue that this legislation is necessary to make Ontario more competitive in the area of attracting new investment and retaining current investment. I truly believe that this government will defeat its own purpose by passing this bill.
If nothing else, this legislation will increase the desire of unorganized workers to join a union. Perhaps that explains why this government chose to rewrite the Labour Relations Act, making joining a union more difficult, prior to introducing Bill 49. Nevertheless, more and more workers will be looking for something or someone to give them some measure of protection and justice in the workplace. The current act, apart from falling short in some areas, at least provides a minimum standard that Ontario workers can count on. If this government chooses to proceed with passing Bill 49, that feeling of having a standard basic set of rights will disappear. This will cause nothing short of labour relations chaos in unorganized and organized workplaces alike, and I don't see this in any way creating the climate for investment that this government claims to be fostering.
The message I'd like the government members of the committee to bring back to cabinet on my behalf is simply this: Those who work in the unorganized sector of our economy are among the poorest and most vulnerable people in our province. These folks have no workplace representatives to help them. They have no organizational resources to assist them. You, the government, are all they have. You're it. You're the only game in town for these people. If you choose to make them feel abandoned, do you honestly believe these workers will just say, "Oh well, there's nothing we can do"? If you do, you're mistaken. They'll realize that there's an alternative and they'll pursue it. Is this what their employers want and is this a favourable climate for investment?
These workers need you, the government, to bridge the gap between their interests and the interests of their employers. This bill, I believe, makes that bridge impassable.
By proceeding with Bill 49, you'll be letting those workers down. I ask that you reconsider this course of action and stop your pattern of trying to fix our province's problems by attacking the poorest and the most vulnerable in our society.
The Chair: Thank you. That leaves us one minute per caucus for questioning, and this time the questioning will commence with the official opposition.
Mr Hoy: Thank you very much for your presentation. With very little time here, I want to make a comment about your comments in regard to the minimum claim amount. I suspect that the government is thinking about trying to deal with what could be categorized as frivolous claims. My background is one of agriculture. Within an act that pertained to the agricultural sector there were people concerned about minimum claims and/or frivolous claims. There was a number set out that maybe $500 would be a minimum claim amount; it was discarded because, for a family of four, $500, it was suggested, could be their groceries for a month.
When one is talking about minimums, we have to be very careful. However, there's a difficulty in the frivolous claim area as well. I just give you that example. I appreciate your comments.
Mr Cooke: Thank you, Tom. I'm not a regular member of this committee but I appreciate the fact that in the presentation you're giving examples of what can happen to individual workers.
I guess one of the things that has intrigued me this morning was the presentation made by Mr Charette when he said that the six months doesn't really matter versus the two years, that this is a society where everybody knows their rights and that those kinds of limitations won't have an impact on anyone. That's certainly not been my experience, but you've been involved in the community for a long time in an advocacy role as well, and I just wanted to get your read on what your experience has been, whether everybody has read up on legislation and whether the six-month limitation will have a dramatic impact on people, in your recollection of cases that you've dealt with over the last number of years.
Mr Milne: I've had some experience of my own. My younger sister had a problem working at a convenience store where the chap who was running the place said: "Listen, I'm kind of short this week. How about if I toss you 100 bucks out of the till?" She called me and told me about this and I said: "The red light should be on. This is a problem. This guy's got a problem." She had no idea that she was entitled to do anything about it. She thought, "If I accept this offer of this $100, I suppose, then that's what I'm getting paid this week."
On my own I started looking through the act at that time; this was several years ago. That comes into Mr Hoy's question about the minimums too. She was only looking at $400 or $500 in unpaid wages, which she was able to recoup. Under this situation, maybe she wouldn't have been able to. That's the example I can think of.
At my workplace, most people, because it's a unionized workplace, take the Employment Standards Act relatively for granted; this is a basic floor of rights that they start at and try to move up from, I suppose you could say. But in terms of knowledge of the act, to say, "This is how I appeal, and this is how I do this" -- I mean, they're doing well to understand their own collective agreements in terms of the complications of arbitration and all those kinds of things, let alone to have to look at another act.
Mr Derwyn Shea (High Park-Swansea): Thank you, for the illustrations particularly. Certainly in terms of Ms F, it will be of some comfort for you to know that where an employer continues to violate standards under the act repeatedly, a one-year limitation period may apply. That's of some comfort to Ms F. That deals with 82.34.
There are a couple of questions I'd like to ask you, arising out of other comments you made. Should any classes of employees, in your opinion, be exempted from the Employment Standards Act?
Mr Milne: Any classes of employees?
Mr Shea: Should any groups of employees be exempted? Right now there are a number of exemptions. Should that continue or not, in your opinion?
Mr Milne: I don't have in front of me who is exempted and who is not. I didn't know my presentation was leading that way.
Mr Shea: Okay. In terms of the increasing activity of home work -- for example, the city of Toronto recently did its studies that one in five are now working in homes. Do you advance the cause of extending the Employment Standards Act into the home setting?
Mr Milne: Yes.
Mr Shea: In terms of bankruptcies, in terms of what you and I might say were bad employers, the federal government has simply refused to come to grips with the Bankruptcy Act and how to give increasing comfort to employees and indeed to the province where there are outstanding costs. How do you think we might move in that direction, where some of these bad businesses might hide behind the Bankruptcy Act and then suddenly they emerge again after they've dealt with employees? How do you deal with that?
Mr Milne: First of all, you're right: The federal government has a responsibility at least to bump up the order of priority in terms of where the employee falls under a bankruptcy. I think there's an obligation for them to move in that direction, at least to move them up the scale somewhat and not leave them where they are. I understand that's a problem for collections, when a bankrupt employer says, "Listen, this is it," and then you have a creditors' meeting, and who is at the bottom of the priority list? The people who were trying to help this company make a profit, that's who. Yes, I'd agree with you that they've got to move there.
The Chair: Thank you. We appreciate you taking the time to make a presentation before us. That concludes our morning session. The committee stands recessed till 1 o'clock.
The committee recessed from 1153 to 1304.
HOTEL EMPLOYEES RESTAURANT EMPLOYEES UNION, LOCAL 75
The Chair: Our first group up this afternoon is the Hotel Employees Restaurant Employees Union, Local 75. Good afternoon. Everyone should have their brief. Just as a reminder, we have 15 minutes for you to divide as you see fit between presentation time and question and answer period.
Ms Deborah Taylor-McCall: Good afternoon. My name is Deborah Taylor-McCall. I am a business rep and office manager for the Hotel Employees Restaurant Employees Union, Local 75, in Windsor. With me is Kai Lai, a business representative for Local 75. In the same representative capacity he also sits on the executive board of the Ontario Federation of Labour as vice-president.
HERE Local 75 represents approximately 7,000 members employed in the hospitality industry, exclusively in hotels, restaurants and cafeterias of all descriptions and sizes in the province of Ontario.
The hospitality sector workforce occupies a niche in the service sector industry that has some broad characteristics. We are, by and large, an immigrant community; most workers are recent arrivals to Canada. A substantial percentage of the workforce is visible minorities. Most have a language of origin other than English and, due to the average compensation for this sector, many parents have to work at two jobs to cover basic expenses. The most significant characteristic within this demographic terrain is that our community of workers is among the lowest paid coupled with the longest hours of work in order to attain that level of pay.
We at HERE anticipate that the greatest negative impact of Bill 49 will be among those workforces sharing some of the characteristics I've just described. We predict with realistic alarm that the greatest fallout will happen over our demographic terrain.
Mr Kai Lai: We therefore appear before this committee with a great deal of trepidation over Bill 49. In our opinion, this bill has negative ramifications for all workers in our employment sector, be they unionized or non-unionized. We feel it is important for this committee to note that amendments to the current ESA are anticipated to be negative for all workers in our sector. Consequently our remarks stem from the obvious concern over our membership but extend to the working conditions in the entire sector as a whole.
In introducing the Bill 49 amendments on May 13 this year, the Minister of Labour claimed she was making housekeeping amendments to the Employment Standards Act. She described Bill 49 as "facilitating administration and enforcement by reducing ambiguity, simplifying definitions and streamlining procedures."
We in the Hotel Employees Restaurant Employees Union see it in a very different light. "Facilitating administration and enforcement by reducing ambiguity, simplifying definitions and streamlining procedures" may be called housekeeping, but in our opinion the definition is a mere euphemism for radical restructuring of working conditions towards an unfair and unproductive level. This creates the equivalent effect of maintaining hotels for guests while creating hovels for workers.
By lowering the floor of any part of the current ESA, the government places all those in the demographic terrain we have just described in a more precarious position than currently exists, be they union or non-union.
The truth is that what was presented as minor technical amendments contains substantive changes. These changes clearly benefit employers and diminish access to fairness for workers, particularly the most vulnerable in the workforce, many of whom, incidentally, are unionized within HERE's jurisdiction.
The most preposterous assumption of this bill is that equality before the law necessarily means equality of resources to enforce that law. Legally the bill may provide for a process of apparent fairness, appeal and compensation. However, those workers in our demographic terrain who may claim a violation do not have the resources to get back what was owed to them by the very employers who violated the act in the first place.
I can safely say to the minister and to this committee that HERE exists in an industry where employers in some hotels and restaurants habitually cheat and exploit their workers by ignoring the ESA with relative impunity. Our frustration as a union is not with dismay that deadbeat bosses exist, but anger that there are insufficient resources to bring them to light and to stop these tendencies.
I invite any member of this committee to go on a one-hour tour with our staff in downtown Toronto or Windsor and to be introduced to those employees in our sector who have on the one hand a reputable community presence but who simultaneously violate the current ESA with impunity. Amendments such as those envisioned by Bill 49 would only act to reinforce and perpetuate this type of behaviour.
One of the most glaring provisions that would permit further erosion to workers' rights while encouraging deadbeat behaviour is the cap on the maximum claim allowable under Bill 49. The maximum claim of $10,000 would apply to amounts owing of back wages and other moneys such as vacation, severance and termination pay. The problem with implementing such a cap is that workers may be owed more than the $10,000. Those who have been deprived of wages for a lengthy period of time are the very employees who do not have the means to hire a lawyer and spend the time it would take to settle the case. In effect, this provision would encourage the worst employers to violate the most basic standards while at the same time compounding the problems for those workers with meagre resources.
Bill 49 also gives the minister the right to set out a minimum amount for a claim through regulation. Workers who make a claim below the minimum, which is as yet unknown, will be denied the right to file a complaint or to have an investigation. Dependent upon the amount of this minimum, it could well have the effect of employers keeping their violations under the minimum in any six-month period and thereby avoiding any legal penalty.
The other contribution to reinforcing substantial employer abuse in our sector is the limitation period of claims. The proposed amendments in Bill 49 significantly change a number of time periods in the act. The major change is that employees will be entitled to back pay for a period of only six months from the date the complaint was filed instead of the existing two-year period.
This restriction on time will penalize vulnerable workers who often find it necessary to file a complaint after they have severed their employment relationship either by quitting or changing employers. This is a substantive restriction particularly for non-unionized workers who have been denied their statutory rights for a longer period of time and cannot afford a civil suit.
Workers who fail to file within this new time limit will have to take their employer to court in order to seek redress. The burden of cost will also have to be borne by the employee in such circumstances, as the Ontario legal aid plan has been scaled back and no longer covers most employment-related cases.
Finally, specific to our unionized constituency, we want to clearly state our position on flexible standards now. Even though the minister stated that flexible standards will be reviewed only in the second phase of the government's reassessment of the act, we want to go on record that anything less than the current ESA for any worker is undesirable.
With regard to organized workers, the bill contains a fundamental change to Ontario labour law by permitting workplace parties to contract out important minimum standards. 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 would be free to disregard the previous floor of rights and have the opportunity to attempt to trade off such provisions as overtime pay, public holidays, vacation pay and severance pay in exchange for increased hours of work. How one is to weigh or measure whether or not a tradeoff of this kind confers greater rights is left unstated. This proposed amendment will allow employers to put more issues on the bargaining table which were formerly part of the floor of legislated rights and will make settlements more difficult.
It will also enable employers to roll back long-established, fundamental entitlements such as hours of work, the minimum two weeks of vacation, severance pay and statutory holidays by comparing these take-aways to other unrelated benefits which together can be argued to exceed the minimum standards.
We as a union also find irony in Bill 49 in that it contradicts this government's commitment to competitiveness by shackling efficient and expeditious labour relations. Bill 49 would force both labour and management to extend the parameters of collective bargaining to include aspects of jurisprudence of employment standards in negotiations. This will add sufficient burden to both parties that the very notion of competition and efficiency is contradicted.
On our tour of deadbeat bosses we can also lead you to the groans of human resources departments which are preparing to further stagger under the responsibility that the government will abrogate in implementing Bill 49. This responsibility will be foisted not only on workers, but on management as well through the negotiating process.
In conclusion, to define Bill 49 as housekeeping is to attach an almost benign and avuncular quality to it. Bill 49 in fact fragments a legislative structure that created an equitable floor of employment rights which was not only feasible but also socially and economically beneficial. Bill 49 erodes not only significant and essential rights to workers; ironically, it also detracts from the efficiency of business.
We at HERE are not averse to fair and thorough debate on the type of employment legislation that will best serve us into the next century. It is for this reason that we vehemently urge the minister to withdraw Bill 49 and enter into respectful and meaningful discussion with representatives of both organized and non-organized labour. We submit that respectfully. Thank you.
Mr Christopherson: Thank you very much for your presentation. I want to focus on your comments about the six-month filing period rather than the two years. This has become a point of real difference between evidence we're hearing and what the government claims. The minister stated in her comments when we kicked off these hearings, "Filing a claim within six months will result in speedier resolution of complaints and allow employees to receive the money owed to them more quickly," as if to suggest that this is somehow some big improvement for employees.
Further, we had a representative of the chamber of commerce in Kitchener who said, "This will prevent an employee from sitting on his can and mulling it over," as if somehow there's a benefit to employees by way of process, some employer groups suggesting that employees are playing games with this. I note that you clearly state that many of the vulnerable workers have to wait because they find it necessary to file a complaint only after they've severed their employment relationship. The stats show that indeed 90% of the claims are made after a worker leaves a workplace situation. Would you please expand on what your members face and why they're afraid to file while they're still working at that place of employment?
Mr Lai: I'll try to make it brief and I'll give two answers to that question, one dealing with non-unionized employees and one with unionized employees. Let me start with unionized employees. The issue of any kind of legal claim, be it through grievance, as we seem to be heading towards, or through the courts, is that it takes a substantial amount of time and monetary investment, not to mention the fact that most workers in what I describe as our demographic terrain find this entire process to be a terrifying one. For these people to seek legal aid, to go through the entire process and to face only a six-month period where their claims would be valid is something that would deter almost everybody I personally have come across in what I call our demographic terrain.
Mr Tascona: I just want to point out a couple of areas in the bill you haven't touched on. For ongoing violations the time limit is one year. Also, the $10,000 cap does not apply where there's reinstatement involved under the act for violations of pregnancy leave and Sunday work laws.
One area that I want to touch on with you is that it is quite standard in collective agreements for unions to insert provisions with respect to human rights. What they do at that time is have the grievance procedure to ensure the employer follows the human rights process. I imagine you're familiar with that. Unions have willingly taken on the responsibility to ensure the human rights and protection of their workers, so why wouldn't it be proper for the unions to take the role under the Employment Standards Act when they do it for human rights?
Mr Lai: I like that question because I'd like to serve as devil's advocate and answer it from the point of view of an employer. When employers sit across from me at negotiations or arbitrations or mediations, one of the issues that is as large for them as it is for the union is the backbreaking and time-consuming work they get caught up dealing with as far as legislation, contracts and so forth are concerned. The clear opinion they express is, "I wish we didn't have to do this." While unions would not say, "We don't want to deal with this at all," I think that from a business point of view it would be preferred if the entire process were speedier. What heads of human resources departments are telling me is what I put forward in this brief: They are just very afraid that added to their responsibilities of running an organization will be this entire caseload that is now being covered under the ESA.
Mr Tascona: They have to comply with the laws anyway.
Mr Hoy: Thank you for your presentation. I want to ask some questions that relate to wages your employees actually receive. Would it be fair to say that many of the waiters and waitresses you represent, or non-unionized waiters and waitresses, would make minimum wage, or some slightly above that figure?
Mr Lai: Yes, it would be fair to say that.
Mr Hoy: Does it occur that tipping to the waiter or waitress can be shared with the employer?
Mr Lai: That's a huge question I've gone through a lot in negotiation, and I don't think I could give it a clear answer here, just because of time constraints. Let me just say that the Employment Standards Act deals with minimum amounts of compensation, and it is looking strictly at this that we view with great alarm changes to the act. I'll just conclude by saying that the percentage of people who work in our union who exist with gratuities as part of their compensation is about 10% of our workforce.
Mr Hoy: My line of questioning is such that there are people who believe that waiters and waitresses make large amounts of money based on tips; therefore, the minimum wage is something that doesn't have to be discussed very often. But of course they pay income tax on those tips, so I think the assumption that the minimum wage floor is not required because of the large amounts of money they're making in tips is not relevant to the conversation about the minimum wage standard. Correct?
Mr Lai: Here's a very quick answer to that, sir: If you ask me whether I'm in support of the business practices of the Screaming Tale restaurant, I'll just say that we clearly are not.
The Chair: Thank you very much for taking the time to make a presentation before us here today.
BUSINESS AND PROFESSIONAL WOMEN'S CLUBS OF ONTARIO
The Chair: Which takes us to our next group, the Business and Professional Women's Clubs of Ontario. Good afternoon.
Ms Robin Dragich: Good afternoon. My name is Robin Dragich and I am representing the Business and Professional Women's Clubs of Ontario today. The Business and Professional Women's Clubs of Ontario is a non-sectarian, non-partisan, non-profit organization which promotes the interests of working women, fairness in the workplace and the removal of discriminatory practices and barriers that prevent women from achieving their potential in the workplace. It operates within the Canadian Federation of Business and Professional Women's Clubs towards the improvement of the status of women in all phases of society, especially in business, the professions and industry.
Changes that are being proposed under the Employment Standards Act will have long-range ramifications for working individuals in the province of Ontario, something that is of great concern to our members. Decreasing the amount of time allowed for filing a complaint, capping award settlements, forcing employees to make a decision on whether to file a grievance or bring a civil action to court, and bringing in outside collection agencies put vulnerable workers in a position of not reporting employers who take advantage of their employees.
The Employment Standards Act sets minimum standards to protect employees and sets down the ground rules concerning minimum wage, vacation pay, overtime pay, equal pay for equal work, hours of work, pregnancy and parental leave, and notice of job loss. Employees who are the most vulnerable are in workplaces where there is no protection of a union and are least able to file a formal complaint without the fear of some reprisal.
Government should be willing to enforce the laws it sets in place without bargaining with outside agencies of contract.
Limitation period changes are major to us. Limiting the amount of time that an employee has to bring a grievance against an employer puts the employee in a very tenuous position if he or she is dependent on the job. This goes to a question that was asked earlier. If you are in a job with a bad boss who is violating the law, it could mean reprisal during their period of employment.
Routine inspections a few years earlier revealed that 94% of employers were found to be in violation of some portion of the Employment Standards Act in their positions. With the elimination of 33 possible positions in the department, and 12 next year, the caseloads for those remaining would certainly restrict the ability of inspectors to pursue investigations that are a result of complaints filed and do away with routine inspections for those employers who had previously contravened the law.
Another area of concern is the capping of claims. Even though the number of claims exceeding $10,000 may only be minimal, the fact that awards do exceed this limit should make the ministry attentive to the fact that employees' rights are being violated. Any amount legally owed should be paid in full if the employer is found to be in contravention of the law.
The Ministry of Labour's own statistics have found that fewer than half of the claims made are collected. We need more officers collecting claims to protect the rights of workers.
The collector of the order is now allowed the discretion of collecting up to 75% of the claim if both parties so agree. This gives some opportunity for bargaining, which could be detrimental to the employee. This section is appalling, and we are quite disturbed that the minister would even allow this section to be included to give any further bargaining powers to employers to take away what is rightfully owed to any employee, especially for those most vulnerable in the system, who would be willing to look at this as an option to get their money even quicker if they were in dire need. Not only does the worker have to go through a long process already to receive their money, but then they have their rights further eroded by allowing this to happen. To ensure that cases are completed in a timely manner, we feel that the ministry should have complete control of the process from start to finish.
By upholding law and order, one of the positions taken in the election platform of this government, everyone benefits. For those who break the law through misuse of trust in employer-employee relations, only a swift justice administered by the Ministry of Labour's own people can protect those most vulnerable in our society, to collect what is duly owed them for the work that they performed outright and without further negotiation.
I would also draw your attention to the resolutions of the Business and Professional Women's Clubs of Ontario, which have included a wide range of resolutions that have been brought forward to the attention of various governments over the last few years.
This is a summary of my brief. I would take any questions now. I would like to apologize. Susan Lescinsky was called out of town, so I'm hoping that I will be able to answer your questions; if not, we can submit the answers in writing at a later time.
Mrs Barbara Fisher (Bruce): Thank you for coming today and presenting your concerns to our committee. I do have a question, however. I see that in your brief you say that 82% of single-parent families are actually led by women. While we were in Toronto, we were presented with a case of an employee who was in an unorganized labour situation, telemarketing was her profession, and she made a very strong plea to us on the basis of something I'm going to explain to you and then ask you for an opinion on.
She had been employed. Her employer owed her over 180 hours, a single mom of three. Government has had the opportunity for the past year and a half to act on her behalf and has not been successful in doing so. I don't want to get into the partisanship of the fact that some people have laid off employees in that ministry in the past and some are doing it again today. Her plea to us, in all sincerity, was that there has to be a better way of collection and it needs to be done faster. "I can't wait two years," is what she, almost crying, said to us, so I'm not so sure that the six-month appeal process to get it on the table for somebody in such need is wrong.
However, I will ask this question. In her desperation at the end, she said to me: "Please just help me. I need my money." She was not at all averse to private collection, given that government hasn't been able to do a good job for her in the past. Could you please explain to me why you might be averse to that?
Ms Dragich: We believe that the government should be doing a good job at that. These are the minimum standards that are set out by government, through Bill 49, the Employment Standards Act. They should be able to do a good job. I believe that it's the minimum that has been proposed, that's been put forward. They should have officers of the department that can be as efficient as private agencies. To us, government workers should be as efficient as private workers. The rhetoric that we hear outside that private business can do better than government, we believe that government should be doing as well as private business.
Mrs Fisher: But we know that 25 cents on the dollar isn't good enough. All three governments, everybody is guilty; all of us are guilty of not being able to do it. Given that history, why are we now to think that this hypothetically is going to correct? It's not going to. We had collection agencies; they weren't doing it. We've had the opportunity, through all levels of government, to make the case and repair the situation.
I personally believe, for whatever it's worth, that we ought to give this a try and maybe not be so critical of the fact of whether it's private or government; that's not the issue. Collection is the issue. The person is entitled to 100% of what's owed, and we're going to make an effort to try to make that change, to be better than 25 cents on the dollar.
Mr Hoy: Thank you for your presentation today. I noted in your remarks the eliminating of 45 inspectors. I agree with you that it seems to fly in the face of enhanced enforcement and collections. I would let you know that the budget was cut by 26% as well.
Our job as legislators is to listen to people and to observe. You mentioned pay equity at the end of your presentation as one of the issues outstanding beyond Bill 49. I walk to the Legislature each day and I pass a number of coin-operated news-stands where newspapers are sold, a number of different publications. I have never seen anyone stop and buy a paper. However, there was a headline where the government was thinking of changing the pay equity law as it applied most pronounced to women. People were stopping and looking at the headline. It told me right away -- I didn't need to know this by their stopping there -- but in the hustle and bustle of people getting to the subway station, getting to their workplace, they were stopping and reading that headline, and it signalled to me that this was going to be a big issue. The government is wading into quality-of-life standards in a way that we haven't seen before in this province. I appreciate your submission today and I thank you for being here.
Mr Christopherson: Thank you very much for the presentation -- two presentations in a row that profiled in a priority way the limitation period and the fact that you can no longer claim beyond six months. If you heard the previous presenters, they represent mainly visible minorities, new Canadians, people whose first language is not English. You represent women and their interests in our society and you state in here, "Individuals who are stuck in a job with a bad boss with nowhere to move would less likely bring a grievance against a boss who is violating the law, if it means any sort of reprisal during their period of employment."
We know that over 90% of all claims are filed after that worker leaves that place of employment. The government just doesn't seem to get it. We need to emphasize over and over, and I'd like you to expand on it: What are the circumstances vulnerable workers -- women, visible minorities, no union -- are facing when they are having their rights abused? What are the circumstances? Why don't they claim right away? Why do 90% wait until after they have left the employment of that particular workplace? Why do you think that is?
Ms Dragich: We would concur with the previous presenters that it is fear. It is sometimes lack of knowledge as to how the system would work. It is desperation: They need the employment. They cannot jeopardize in any way, without someone to support them, such as a union, such as an Ombudsman of some type for this area -- they feel that they need to go to another job and be secure in that job before they make a claim against an employer because they cannot afford in any way to be out of work, to not have that income coming in. Those people we are talking about are most vulnerable, are working in the positions where the Employment Standards Act is most relevant. Many companies present and offer more than the Employment Standards Act. But in those positions where the Employment Standards Act is the minimum a worker is getting, they are afraid to lose their job, so they wait until they leave their position and are secure again to file a claim.
Mr Christopherson: Fear and desperation are the key issues.
Ms Dragich: We believe that.
The Chair: Thank you very much for taking the time to appear before us today.
UNITED INJURED WORKERS' GROUP -- WINDSOR
The Chair: That takes us now to the United Injured Workers Group -- Windsor.
Ms Eunice Lucas: "You know, when I was growing up my mom told me if I went to work and worked real hard, I would be able to get a job, support my family" --
The Chair: Excuse me. Could you sit at the microphone so that Hansard can record it?
Ms Lucas: I am, sir. Give me time, please. I didn't know we had a protocol, because people over here are talking, reading newspapers, getting up and walking around.
The Chair: They are not speaking into the microphone.
Ms Lucas: I'm going by protocol, sir.
The Chair: Please sit and speak into the microphone.
Ms Lucas: This is the way I'm presenting my thing.
The Chair: Ma'am, your words won't be recorded for everyone to read.
Ms Lucas: That's fine.
The Chair: You don't want the public to hear what you have to say?
Ms Lucas: Can you hear me? My public can hear me.
"I watched my dad all the time I was growing up. He worked real hard, sometimes between 12 and 14 hours a day, to provide for my mom and my brothers and my sisters. We always had food in our tummies, a roof over our heads, and when dad got a bonus we got new clothes and store-boughten pizza.
"I went to a school called a trade school because I'm not real good in arithmetic and spelling. At this trade school they taught me how to build houses, and it felt good to pick up a hammer and make my hammer sing. It sang when I built houses and I put roofs up and I helped protect people from the cold and the weather.
"In school I met my Bertha. She is the most beautiful thing I ever saw, and we planned to get married. I got a job with my boss putting shingles on roofs. My boss told me I should be able to do about 40 bundles a day and he would pay me $4 a bundle to do it. But remembering what my mom taught me, that if I worked real hard my boss would pay me a nice day's pay, I worked real hard and I got up to making 50 bundles a day. He was so proud of me he said, `Henry, I'm going to give you $5 a bundle because you are such a good worker.' Wow, my mom was right. She told me that if I worked real hard my boss would appreciate me and I would get a good paycheque.
"Then I got my paycheque. The end of the month came around, my paycheque; it just didn't seem right. The numbers just didn't seem right, not knowing arithmetic and all that, but my Bertha, she's so smart she made me write down all the bundles I had done every single day. So I took my paycheque home, gave it to Bertha and she figured my boss only paid me half of what he owed me.
"So I took my paycheque back to my boss and he said, `Well, I can't pay you until the people who own the houses that you shingled pay me.' I've got to tell you I didn't go to work to risk anything. I went to work to work for my boss. He was the one who wanted to take the risk. He was the risk-taker, what my Bertha calls the entrepreneur. I'm just a labourer. I didn't want to get hurt, so I kept working. But now it's been six months, and I still haven't seen the rest of the money that my boss owes me. Bertha says now it's up to $12,000.
"And you know what else my mom's taught me? That I'm supposed to pay attention when people talk to me; I'm not supposed to look away and gab with somebody else. I'm supposed to pay attention and really look like I'm honestly wanting to know what the person is saying. My Bertha tells me that I have to go to the labour board. I'm really scared, because what if my boss finds out and he gets mad and then I get fired then I don't have a job to go to at all?"
I am Bertha, the wife of a man whose ethics are impeccable when it comes to work. My husband is very confused right now. He feels that his boss has betrayed him. My husband gets up, rain or shine, goes to work, sometimes not even coming home until dusk. He is exhausted. He never misses a day's work. He is honest to a T and yet his boss doesn't pay him.
Henry and I decided I should take his work records to the labour board and see what his rights are. The lady behind the counter said that it's not right, what his boss is doing, but Henry can only sue for a maximum of $10,000. Some guy by the name of Mr Mike Harris says so. The lady also said we have to pay a lawyer to get what is rightfully ours. A lawyer charges $200 an hour, and with what Henry brings home we can't afford a lawyer for that kind of money. It just doesn't seem right that we have to sue the boss for what is rightfully ours.
There are three links in the chain that built our country: the worker like Henry, employers and politicians like Henry's boss, and finally the provinces joining together in Confederation to form a union that we call Canada. There is something wrong with one of the links in this chain, and I am sure it's evident which one is defective.
Please raise as much opposition as you can to the changes of Bill 49. Say no to Harris's slash and burn and cuts to the working person. I thank you very much.
The Chair: Thank you for your presentation.
We move to the Sheet Metal Workers and Roofers, Local 235. Oh, forgive me. Apparently it was not faxed to the clerk prior to preparing the agenda.
CANADIAN UNION OF POSTAL WORKERS
The Chair: Ms Carroll will be presenting instead on behalf of the Canadian Union of Postal Workers. Good afternoon. Again, 15 minutes are yours to divide as you see fit between presentation or questions and answers.
Ms Cathy Carroll: The Canadian Union of Postal Workers is a national union with a majority of our members falling under the federal guidelines and jurisdictions. However, we represent cleaners in the post office as well as, until recently, a small group of cleaners in the disaster area out of Windsor.
The previously noted groups plus other workers in delivery and communications-related fields maybe responded to provincial law and regulations. Each successful organizing campaign such as the post office cleaners brings a new group of members under that provincial legislation.
When the Honourable Elizabeth Witmer introduced changes to the Employment Standards Act, we, like many other unions in the province, reacted by scrutinizing what was being described as "minor and technical housekeeping alterations."
We have no faith or trust in the present government in that what they propose will benefit the workers in Ontario. Indeed, after reviewing what was tabled, we see that the end result, after the dust has settled, would be an eventual deterioration of all Ontario workers' standards of living.
Though the majority of postal workers are federal, we live, we eat, we breathe and we buy in the province of Ontario. As well, many of our members have spouses and children who work in Ontario and fall under the provincial standards. If you look at the Canadian statistics, you will see that the majority of family units have at least two incomes. What affects our families affects us. If they suffer, we suffer. If they are stressed, we are stressed. If we are stressed, that's when productivity suffers, and if productivity suffers, our employers get angry. With over 20,000 postal workers in the province of Ontario, which is one third of our total workforce throughout Canada, I believe Canada Post Corp should be worried as well.
On behalf of my members and their families, the Canadian Union of Postal Workers is opposed to Bill 49. These changes benefit only those individuals who have money and the cheats of this province. Much of our vocabulary is peppered with corporate terms such as "contracting out," "outsourcing," "downsizing," "fiscal responsibility," "business plans" and "tax breaks." I can see adding to this "legislative boss cheats."
I had planned to bring some members or their spouses to relate their own experiences, but they could not be here. Some are too busy trying to survive the 1990s pressure with their families and they're working at least two part-time jobs, because a lot of our workforce is part- time and they must supplement that income. However, what they've told me is that they are calling the "bad boss hotline" that has been set up by the Ontario Federation of Labour and are encouraging others and their family members to do the same.
The next portion of my brief will note our views on some of the key amendments. To be blunt, we are in total agreement with the Ontario Federation of Labour's position on Bill 49. Members of my local have fully participated in the calls for action by the Ontario Federation of Labour and will continue to do so. The attacks by the Ontario government on people, while at the same time promising sweet tax breaks, have allowed us to mobilize our membership more than ever before.
I'd like to talk about the flexible standards in section 3, subsection 4(2) of the act.
Prior to Bill 49, there were basic rights guaranteed in Ontario similar to the rights set under the Canadian Labour Code. Contractual language could not erode the minimum standards as set out by the law.
Prior to these housekeeping proposals, any negotiations that took place had a level playing field, which has produced a province with a higher standard of living than in others. Allowing collective language to supersede the basic standards in areas like hours of work, severance pay, overtime and vacation pay when a contract confers greater rights when those matters are assessed together disturbs any worker's level playing field and upsets the balance between employers and unions, giving more power to the employers in this province.
Combine the push for tradeoffs with the legalized use of scabs that was passed by this government, who are the underemployed, and we will end up at the end of this government's political mandate eroding the current minimum protection. Employers in the past have successfully used threats such as plant closures to achieve rollbacks. If there were no minimum rights, workers would be forced to either accept longer hours of work or less time off to keep a job. With unemployment high, more part-time than full-time jobs, cuts in unemployment benefits and welfare, combined with stricter rules, places substantial pressure on a worker to keep the job as it is rather than take a chance fighting the injustice. The government is offering no protection for workers.
Prior to the NDP government's changes to the labour standards, cleaners were not covered by successor rights. This allowed one company at that time to drag out negotiations until the eve of the expiration of a contract with Canada Post. What is the purpose of signing a collective agreement with a union if it becomes meaningless within hours of the ink drying? Where is the protection to the employees? This was our past experience with at least one bad employer.
Prior to signing this collective agreement, the cleaning contractor would demand that the employees provide the names and social insurance numbers of dependants and/or spouses so that the moneys earned for overtime work performed could be paid at straight time rates. This is how this contractor avoided the law and the standards at that time. Watering down minimum standards will allow employers to legally do what they attempted to illegally do in the past.
The Canadian Union of Postal Workers sees flexible standards increasing labour disputes. Our cleaners, who are the lowest-paid workers at the post office, may never see their standard of living improve, and due to the elimination of successor rights, they could even see their jobs end or disappear.
Presently, unionized workers have access to the investigative and enforcement powers of the Ministry of Labour. The process has proven to be inexpensive and relatively expeditious for unionized workers, their unions and employers. By eliminating this avenue for unionized workers, it will place a burden on the grievance procedure. Under Bill 49, the Ontario government would successfully transfer costs to unions and their employer for enforcement.
In addition, we can see a backlog of cases developing that will prolong the length of time before one of our cleaners could achieve a settlement. The Canadian Union of Postal Workers knows what grievance logjams are from our bitter experience. At one time we had 180,000 grievances backlogged awaiting arbitration. People waited seven to 10 years for their grievances to be heard. Employers said to them, "If you don't like it, grieve it," because they knew it would take a long time before it would ever be answered. But we have also been successful in arbitration to the tune of millions and millions of dollars. Our Scarborough local has successfully won between $10 million and $15 million in moneys for our temporary casual workers.
The cost, though, for our union is very high. Approximately $3 million annually is budgeted for arbitration costs. Our union is prepared for this potential finance; however, smaller unions or bargaining groups will not be. We see these amendments as aimed at starving small unions into submission while encouraging members of others to take their union to the Ontario Labour Relations Board with complaints of fair representation.
Any employer who believes they will escape their share is banking on fools' gold. Unions will be forced to bargain for more to offset the members' legal costs. Strikes will be lengthy and vicious.
Under the enforcement for the unorganized, sections 64 and 65 of the act: If these sections pass, we foresee the responsibility for enforcement of minimum standards for non-unionized workers from the Ministry of Labour to the courts by way of the "other means" provision.
Also, the amount that is recoverable is capped at $10,000, whereas currently there is no arbitrary limit.
Plus, if an employee chooses one avenue, such as to claim for severance payments to the Ministry of Labour, then Bill 49 restricts that employee from bringing a civil action for payment in lieu of wrongful dismissal for additional compensation. What these proposals will mean is that a worker who wants to file a complaint will have two weeks to decide to choose between taking the chance in the civil courts or to proceed under the regulations of the act.
The government, if these changes pass, will have shifted responsibility to enforce laws from itself to the workers, who will have to decide between door number one -- the court -- or door number two -- the act. If the worker chooses door number one, will they be entitled to legal aid to assist them in any legal costs, when the government is currently gutting the legal aid system? With cuts to legal aid, we doubt many workers will be able to utilize their services.
In addition, section 64.4 contains restrictive language such that once a civil action is started, employers are given the bonus of not paying wages out. From our experience with employers such as Canada Post, we can see them banking the money, collecting the interest or counting it as a possible future liability. How does the worker gain from this? Bill 49 punishes the employees, not the employer, for the employer's abuse.
On the ceiling on claims: The arbitrary maximum claim of $10,000 seems to apply to amounts owing of back wages and other moneys such as vacation, severance or termination pay, while the bill, though, notes that violations of pregnancy and parental leave provisions and unlawful reprisals are excluded. Those benefits are insignificant compared to the amounts that other workers will lose with a cap in place. Severance pay owed to a 20-year employee for a plant closure adds up to more than $10,000. Arbitrary maximum or minimum claims will encourage employers to bank potential losses or just avoid any payments due under any contract.
Private collectors: Bill 49 recommends that private collectors be used in lieu of having the labour employment practices branch do its job of collecting the assessed amounts owed and enforcing the standards. Once again, the Ontario government is shifting the burden of governing to the private sector and attaching a collection fee on top of it. Victims get to pay for trying to obtain what is legally owed to them. This is morally reprehensible. How can you expect workers such as postal cleaners to afford trying to collect what is rightfully owed to them, or are you advocating that people work for free, as in the case of the Screaming Tale where the employees were working for tips alone?
In conclusion, our brief may lack for examples of victims; however, the Canadian Union of Postal Workers are concerned. What you propose in Bill 49 will impede our negotiations with our cleaners. The Canadian Union of Postal Workers has a reputation for militancy. Why force us to deploy what has always been considered a last resort, a strike?
We are also concerned that the Ontario government will set a precedent, not only for other provinces but for the federal government as well. For example, we were informed that the Chrétien government had a draft of anti-scab legislation prepared, which was shelved in the dead letter office when the Ontario Conservatives repealed the NDP's anti-scab legislation. You don't think that the federal government looks to the province of Ontario for similar types of legislation?
Whether we are federal workers or not, the Canadian Union of Postal Workers members work in the province of Ontario. Members of our families and our friends work under provincial regulations and laws. If you deny my family the right to minimum standards and justice, you're interfering with my happiness and my living standards.
We see no benefits under the proposals of Bill 49. What we foresee if they pass is the organized workers and their unions being forced into longer, more violent and bitter strikes. The employers of the unionized sectors will see increased costs rather than savings. Canada Post Corp, for example, has spent millions of dollars in our past labour disputes, and we are still here.
The most vulnerable, the unorganized, the underemployed will never enjoy a better standard of living, which will in turn affect the buying power of the average Ontario citizen. If we do not purchase goods or services, then businesses will lose. Look at the past, the labour strike, the working conditions and the living standards. Our youth's morale is low now. With no government protection, they face a bleak working life. Thank you.
The Chair: Thank you, Ms Carroll. I didn't want to cut you off, but we've gone over the 15 minutes, so there won't be an opportunity for questions, but thank you for making your presentation today.
UNITED AUTO WORKERS, LOCAL 251
The Chair: The next group up is the United Auto Workers, Local 251. Good afternoon. Again, we have 15 minutes for you to divide as you see fit between presentation, or question and answer period.
Mr Jim Lee: As president of UAW Local 251, I appreciate the opportunity of being able to speak with the standing committee on Bill 49. The membership I represent is over 4,000 members, ranging from workplaces where there are as many as 500 workers to places of 50 workers and those of 10. Our local extends from the Windsor area to the Toronto area, with the majority in Kent county.
With the way the draft is set, there are definite areas of disagreement, but there is one clear positive improvement. A parental or pregnancy leave will now be deemed to be included in the calculation of length of employment, length of service or seniority for determining entitlement under a contract of employment, which is defined to include a collective agreement. This provision, if passed, will essentially bring a legislative end to the practice of some employers prorating employment benefits which depend on a calculation of service, for example, length of vacation.
A disagreed area is recovery reduction from $5,000 to $2,000, by the wage protection program, of an employee. Workers hopefully have and will make increases in wages and benefits, not decreases. Changes in law should be made for the long-term effects and not just short-term.
Unionized employees will not be allowed to file complaints with the Ministry of Labour, though they must file a grievance for wages, vacation pay, termination pay and severance pay. The reality is that a six-month time period, reduced from the previous two years, for filing claims does not make common sense. This includes filing the grievance. Then there are grievance meetings, with responses to be done, if not resolved, to file either with the Ontario Labour Relations Board for an arbitrator or an arbitrator directly, depending on the agreement. Then there is the scheduling of arbitration hearings and also the response time on the award.
It does not make common sense to tie up the union's, the employer's or the arbitrator's time in arbitration, not to mention the cost. It makes sense to have the employment standards officer police these standards for all, not just the people without collective agreements. Then it gives the employer and the union the necessary time to continue and make the workplace viable, growing with job creation and profit-making for both parties.
With the announcement of the Honourable Mrs Witmer on Monday, August 19, 1996, of the workplace parties on flexibility to the standards, it really scares me that there would not be a standard to go from and that the pressure to negotiate below the standard in some areas will then be great, especially with hours of work. Then there is the area, if you negotiate above and below the standards, whether or not it meets the requirement of the act.
It is my opinion that these changed areas are dangerous for the workers in this province and should not be allowed. We should work from a standard. Yes, we are entering into the 21st century, and there is a common goal for the parties: that you will be making the laws which will affect, not just a few, but every worker and business in this province.
This concludes my views on Bill 49. If there are any questions, I would be glad to answer them.
The Chair: That leaves us two and a half minutes per caucus for questions. We'll commence with the government side.
Mr Baird: Pleased to have you here, particularly as one of the only UAW locals in Ontario.
Could you tell me what your experience would be with respect to violations under the Employment Standards Act now? How many would your union deal with in a year, let's say, and what has been your experience with the time frames and what not involved in terms of the administration of the current act?
Mr Lee: As for the numbers, I couldn't really tell you, because I don't have those stats with me, but we have had some violations. Normally, when they do violate, if there is a good reasoning, then we can work things out. With six months, it doesn't give us time. Normally, when you have, say, hours-of-work problems, that can hopefully be worked out within. But if you're talking about pay, severance pay or that, normally what happens is that the business is in trouble; it gives us some time to work with that business. We don't have to clobber down on business, but if it is going broke, then fine, we make the necessary arrangements. But if there is some time in there, you give the opportunity to a business. You don't send a business down the tubes. That's what we're looking at.
Mr Baird: That's one of the premises of the bill, to provide more responsibility to the workplace parties. I mean, you folks are the ones there every day --
Mr Lee: But you can't do it within six months. If you've got problems in a workplace -- and we have that right now, where you might have some problems. With the business you're doing, you're doing business on a global scale. You can't remedy things overnight. Things have to be worked out. There may be some other changes that may have to happen -- new techniques that must be brought in, in order to make our people viable in a workplace. It takes time. You can't do it with a very short time.
Mr Baird: If you had more time, though, do you think you could do a better job yourself? If it was more than six months, for example, do you think you, as the bargaining agent representing the employees, could have a better way of dealing with the issue informally, and then formally with the employers that your local works with?
Mr Lee: Normally, yes, but I'll tell you, the six months is a killer.
Mr Baird: That six months is just to file a claim; it's not necessarily to resolve it within six months.
Mr Lee: Ah, but you have to have things in. If you don't have the things in process, then it's out.
Mr Baird: Thanks very much. I really appreciate it.
Mr Christopherson: Thank you very much, Jim, for your presentation. Although the government has temporarily deferred the issue of the flexible standards and contracting out minimum rights, I think it's important that we comment on them as we go through these hearings, because they haven't said they're dead; they've just said they've delayed them for a bit. You mention in your brief, "It really scares me that there would not be a standard to go from, and that the pressure to negotiate below the standard in some areas will then become great, especially with the hours of work."
We've had other presentations where they've talked about the fact that with scabs now being legal again, with the kind of concessionary bargaining that's taking place, we're not seeing the traditional kind of takeaways on the table. With this kind of law, we could see major, major rights negotiated away out of desperation, particularly smaller unions, isolated local unions, maybe even weaker unions that just don't have the strength to withstand a long strike with scabs. Is that consistent with your thinking in terms of what could happen in the Windsor area and the kind of things you see here?
Mr Lee: Yes. The thing is, if you put a lot of these things on the table -- you're naturally going to go for wages and things like that. What we're looking for is security for both parties. If the company's not making money, the employees aren't going to make any money. That's being honest about it. If there are some avenues to what can be worked on if there are no standards set, then you're going to look below. It's going to be detrimental to the workers. That's where you're coming into injuries and everything else. Even the home life of our workers, when they're going to have to spend six and seven days a week at a workplace and not be able to see their families -- there's going to be a split-up of whole communities. It's agreement with what you're saying.
Mr Christopherson: You mention in here that you're especially concerned about hours of work, and we're hearing that more and more, and the amount of pressure. Are you seeing that kind of pressure from corporations? Again, without the minimum standard in there, is there a real chance that we're going to see the quality of life for workers truly fall because of the kind of hours they could be forced to work if there's not a minimum standard in law?
Mr Lee: That is true. I'm seeing it in some of the companies, where they would prefer to have the workers there work more hours and tire the people out. I haven't got stats on it and I haven't got any proof, but I know that a lot of people have worked long hours and continue to work long hours. They're getting killed on the highways going home. That's what I'm scared of. Of course, from there it's the split-up of the families and everything else that goes with it.
Mr Hoy: You mentioned flexible standards and so on. In the second phase of the minister's discussions on labour laws --
Mr Lee: Is that from the 19th?
Mr Hoy: That's right. I just want to say that I think this "confers greater rights when those matters are assessed together," in my opinion is going to be very difficult to define or to put parameters around. What do you think about those words "confers greater rights," the definition? How's that going to be put in place, do you think?
Mr Lee: I think I've alluded to it, and that is, how are you going to define what meets the act, if that's where we're coming from? You might go above and below, and then above and below again or maybe equal to, but what really says you're conforming to what the people's needs are and where the responsibility is? I have to look at it from my perspective, the responsibility of a union leader to be responsible to the members and whether it conforms with everything that's there to protect the worker. Hopefully, that answers your question.
The Chair: Thank you for taking the time to make a presentation before us here today.
LEGAL ASSISTANCE OF WINDSOR
The Chair: That leads us to Legal Assistance of Windsor. Good afternoon. We have 15 minutes, and it's up to you how you care to use that, in presentation or question and answer.
Ms Rose Voyvodic: Thanks. Maybe I'll just present. The brief has been circulated, so people can refer to it if I don't get to cover the whole thing.
I'm here on behalf of Legal Assistance of Windsor, which is a community legal clinic sponsored by the University of Windsor faculty of law and funded through the Ontario legal aid plan. Our clinic offers services to low-income communities of Windsor and Essex county in most civil and administrative areas not covered by the certificate program of legal aid. We endorse the brief which was presented to this committee on August 19, 1996, in Toronto by the Employment Standards Working Group and share the concerns raised in that document.
We too receive numerous inquiries from non-unionized employees with respect to problems encountered with working conditions or, mostly, termination of employment. We frequently refer callers to local employment standards officers, and until last September we were also able to refer clients with potential wrongful dismissal claims to the local legal aid office to apply for a legal aid certificate. Unfortunately, however, due to cutbacks to legal aid, these certificates are no longer available for wrongful dismissal claims.
Bill 49, in our estimation, appears to create even more new problems for our clients in obtaining access to justice. We are concerned that the limitations and restrictions placed upon potential claims by this bill will cause many of our clients to suffer losses which, though illegal, cannot be repaired, either because the technical changes to the law place unworkable limits on the claim or because the clients do not possess sufficient resources to hire private lawyers.
The reason we have requested the opportunity to present this brief to you today is to alert the committee further to the dangers inherent in Bill 49.
As you will know, the current Employment Standards Act provides basic rights for all people working in Ontario today and is of particular importance to the vast majority who are not members of trade unions, mostly simply because they generally do not possess grievance and arbitration rights and need the power, such as it is, of employment standards officers to assist them to redress workplace problems.
The employment standards set by this legislation include minimum wages, maximum hours of work and overtime pay, public holidays, paid vacations, unpaid pregnancy and parental leave, equal pay for equal work, termination notice, severance pay and adjustment measures to assist people who are laid off. The changes introduced by Bill 49 affect the means by which these minimum standards may be enforced. In our submission, the changes proposed by this bill will in essence render the employment standards legislation meaningless for a great many Ontario workers.
A clear goal of the bill before you is streamlining. This has been in the statements made by the minister. Consequent to that goal would be cutting costs to the administration and enforcement of employment standards. A more significant but hidden purpose of the act, in our submission, is to remove mechanisms for Ontario employees to enforce their rights and consequently to severely restrict those which remain.
The effect of this legislation is the removal of rights from Ontario employees, particularly those in the low-paid sectors or occupations which are non-unionized. Those include food processing, foodservices, retail, cleaning and domestic workers. These people lack the ability to bargain collectively and thereby achieve greater workplace protection.
The Windsor-Essex County Development Commission notes in its profile that 28% of the labour force in this region is organized. Notably, only 8% of companies with 50 or fewer employees are unionized. Two thirds of Windsor-Essex county has no union involvement. This would seem to coincide with the figures compiled by Statistics Canada on a federal level, as well as other regions in the province.
The placing of new restrictions and limitations on the types of complaints which can be enforced by ministry staff will have a disproportionate impact on the non-unionized workforce, particularly among poorly paid, unskilled labourers who must rely on the ministry staff to enforce their rights under the act. The policy basis for this shift appears to be linked to a desire to achieve greater competitiveness on a global level through the removal of the barriers created by employment standards. In our submission, even if a claim can be made that such a shift would increase competitiveness in some circumstances, it is difficult to understand how the wages and conditions paid to workers in small businesses, and particularly in the personal service sector such as dry cleaners, restaurants, cleaning services and coffee shops, for examples, have any impact on global competition.
For this reason, there must be some consideration of the disproportionate impact the removal of protections across the board will have on people working in jobs in this sector as well as all jobs which are casual, temporary, part-time, poorly paid, low-skilled and insecure. The Economic Council of Canada, in a study entitled Good Jobs, Bad Jobs, from 1990, characterized 33.8% of all jobs in Canada in the late 1980s as "non-standard" and 76.4% of jobs in the service sector. Women and youth are overrepresented in this category of jobs, the majority of which are poorly paid and insecure.
Restructuring of the labour market and the economy away from a sound base of employment standards leaves the door open to disputed conditions and terms of employment, as well as the possibility that employers may use the threat of unemployment to lower wages and worsen working conditions to a level unacceptable in a democratic society. It is regressive and misses the opportunity to provide a public infrastructure needed for a productive and growing economy.
Bill 49 shortens the period in which a worker can complain about a violation of the Employment Standards Act from the two years which is now found in the legislation to six months. Currently, approximately 10% to 15% of claims filed according to ministry staff relate to incidents occurring more than six months prior to filing a complaint. This is a significant number, in our submission, and would appear to accord with our experience that workers are often reluctant to seek intervention in their workplace until they have no further alternative, for fear of reprisals.
Under Bill 49, these individuals will be forced to take their employers to court in order to obtain a remedy. This, in our submission, is an illusory right. The reality is that Bill 49 provides no initiatives to aid in the funding of civil actions. The legal aid plan, as I mentioned earlier, recently eliminated wrongful dismissal actions from coverage for those unable to afford private legal counsel. Assistance through legal clinics is only sporadically available throughout the province.
Workers who are already financially vulnerable and become subject to violations of the act will be forced to either find the resources to fund a civil action privately or in effect waive their rights to obtain justice.
From a policy perspective as well, this seems wrong. We question why the court system, which is already overburdened, should be used at all when an administrative mechanism already exists.
Bill 49 also limits the avenues available to address violations of the Employment Standards Act by forcing workers to choose between pursuing a civil remedy and filing a complaint under the act. This is said to eliminate the so-called double jeopardy for employers. However, there is no double jeopardy in Ontario law. This has been resolved already by the courts, that an employer cannot be forced to pay twice for a violation of the Employment Standards Act.
Now, under Bill 49, a remedy under the act would no longer be available to persons who wished to preserve their rights by initiating both avenues simultaneously, and there can be many practical reasons for a person choosing to do that. If a civil action is initiated under Bill 49, there would be a two-week grace period in which it may be withdrawn and an application under the act commenced. This period, in our submission, is far too short to be of any use, particularly if the employee is attempting to obtain instructions and consult with legal counsel, and particularly within the six-month window.
With respect to minimum and maximum amounts, the regulations to the act which will set a minimum amount owing before a claim can be initiated is also of concern to us. We feel that this will undoubtedly place a significant impediment on low-wage earners who may be owed an amount that is lower than the minimum prescribed but nevertheless a significant percentage of that individual's income. We have heard the figure of $100 being rumoured to be the amount to be set by regulations, and in our experience that is fairly common. People will be shortchanged through wages. We've had situations where restaurant employees have been forced by the employer to cash their cheque in the restaurant and then pay for spills or some type of breakage. In several cases, the amounts claimed over a several-week period have been within the $100 range. It's illegal for the employer to do this without properly abiding by the minimum wage standards and so on, but for an employee to pursue that -- now they can under the Employment Standards Act, but under Bill 49, it would be impossible if the minimum standard is set at that level.
We believe that that minimum limit on recovery is not reflective of the wide range of incomes that exist. A worker employed at minimum wage should not be subject to the same minimum qualifying amount as a worker making four or five times as much income.
The diversity in incomes is one issue, but we feel that ideally there should be no minimum at all. A worker should be able to take steps to collect any amount owing to them no matter how small or large that amount may be. If the concern is frivolous or malicious claims, it would seem that those could be dealt with by way of cost penalties which would void the claim. To bar access to a just resolution based on the amount your rights have been infringed, in our submission, conflicts fundamentally with the basic tenets of our justice system. To set this limit for pure fiscal or administrative reasons is inexcusable. It's also confusing to us, because we've been advised that approximately 4% to 5% of all claims now to the ministry are for amounts under $100. For example, in 1995, of the approximately 13,000, 550 were for amounts under $100. In our submission, that statistic speaks to two issues: (1) that is a significant number of individuals in the province who were aggrieved; and on the other hand, it is not such a significant number that a large percentage of the ministry time was spent on these claims. We wonder, then, why these claims should be eliminated.
The issue of the minimum limit is further complicated by the lowering of the limitation period to the six-month window. If the board won't go back past the six-month period, then the minimum would have to be met within that time. Even if there are multiple infractions, the period is only one year. If there's a very low annual income that the individual is earning, a high minimum will prohibit an application, and it is persons of low income who are most harmed by violations of the act involving even the smallest amounts, even when those amounts involved may appear trivial to persons of greater means.
The changes to the act, therefore, will have a negative impact on the poorest workers while having a lesser impact on those with higher incomes. Those workers most in need of the act's protection will be most adversely affected by the changes.
Conversely, the maximum limit of $10,000 which will be set under Bill 49 on the amount of claims is equally problematic. It too limits the extent of the remedy available to an individual, not having regard to the extent of the harm they may have suffered. If a breach of the act causes damages in excess of $10,000, that worker should be entitled to whatever is owing.
We're not clear as to why the government is setting this arbitrary limit, particularly when the statistics seem to show that very few claims are for amounts greater than $10,000. It may be that the government feels that small claims do not warrant attention and that very large claims should be handled by the courts, but the fact remains that the vast majority of workers need to be able to rely on the employment standards legislation to protect their rights. As individuals, the cost of protecting these rights themselves is either beyond their ability or prohibitively expensive.
Despite the shortening of the limitation period and the period which can be looked at for the violation, the ministry continues to have a two-year period to investigate alleged violations and two years for the employer to pay. To us, the goal of administrative streamlining as far as shortening limitation periods appears to apply unfairly to employees.
Debt collectors: This is another serious concern to us under Bill 49, whereby collection of amounts owed can be assigned to private debt collection agencies. These agencies will have broad-ranging powers under the legislation, including the ability to demand payment, to issue a certificate enforceable as a judgement, to enter into a reciprocal enforcement of orders, to collect and distribute amounts owing, and to negotiate settlements for less than the full amount owing to the employee.
That particular feature of it causes us concern. If, as the bill stipulates, a negotiated settlement may be for no less than 75% of the amount owed, we are concerned that rather than providing protection for workers, this protection may in fact suggest a compromise that collectors and violating employers should reach. There is little doubt that the least powerful workers who are most in need of the protection and remedies contained in the act will be subject to the greatest pressure to accept a settlement of 75%, if not through coercion then out of necessity to avoid further delay.
Adding to the potential for delay, the bill has extended the length of the appeal period from 15 days to 45 days. This, in effect, delays by an additional month the collection of money owed where no settlement is reached.
The other issue with respect to the debt collectors is the ability to reach a settlement with the employer on behalf of the worker. While the employee's approval is required, given the powerlessness and desperation of an employee waiting for payment, combined with the possible lack of knowledge of their rights, this new legislation, in our submission, opens the door for workers to be coerced into settlements by private collection agencies eager to settle and move on to the next file.
In conclusion, we have several comments to make from a historical perspective and also from a policy perspective.
Before employment standards legislation was enacted, employers in this province and elsewhere were allowed to dictate practically any terms and conditions of work and could rely upon their superior bargaining power to get people to work for them regardless of the circumstances offered. Contrary to the claims asserted by opponents of regulated employment standards, high rates of unregulated freedom of contract on the part of employers has not historically meant lower unemployment rates. One only has to look back to the Depression years of the 1930s to understand that the absence of a minimum standard for wages, hours of work or vacations did not ensure a reasonable level of employment.
While Bill 49 does not remove the minimum standards explicitly, in our submission it does so by allowing legitimate claims to go unenforced through its restrictions and limitations.
Bill 49 represents a significant undermining of workers' rights in Ontario. Not only will the proposed amendments make the enforcement of workers' rights more difficult, the amendments to the act would specifically allow employers to violate workers' rights without fear of penalty. The bill, in our submission, represents a bonanza for employers and a regression of decades for workers.
The changes suggested by Bill 49 will have the greatest effect on those workers who can least withstand it, namely, unskilled, low-earning workers in a non-union environment.
Any time an employer withholds income owed to an employee, that employee's rights have been violated. The amount involved should not be determinative of the violation but a secondary question of compensation. To deny a right to claim based on the amount of the claim is to deny justice to all workers and is a giant step backwards in labour legislation and worker protection. The rights of individual workers should not be sacrificed in the name of business plans and economic improvement. Business is an essential part of our society, but it is not the only part. We cannot strengthen our society by undermining its foundations in order to strengthen only one aspect of it.
We would argue that deregulation does not bring prosperity to any but a very small, powerful segment of society. If the employment standards set in Ontario law cannot be enforced by those for whom they exist, and if the standards are eroded by the creation of restrictions on one's ability to seek remedies when the standards set are violated, there is no progress, there is only injustice.
The Chair: We've gone well over the 15 minutes, so I thank you for your presentation.
CANADIAN AUTO WORKERS LOCAL 127
The Chair: Our next presentation is the Canadian Auto Workers, Local 127. Again, we have 15 minutes for you to use, either in presentation or questions and answers.
Mr Derry McKeever: As you can see, I've prefaced my submission with an opinion from the Chatham Daily News, August 21, 1996. It wouldn't be true if it wasn't printed in the Chatham Daily News, and I'm sure you can appreciate it.
Interjection: It came from the Toronto Star.
Mr McKeever: I guess they must be influenced by the community.
The National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW Local 127, political education committee, is happy to have the chance to appear before this very important committee of the Ontario Legislative Assembly. This government has raised the concerns of CAW 127 members -- working or laid off -- and also the concerns of the general community about the Employment Standards Improvement Act, 1996, or as it's more commonly known, Bill 49.
CAW 127 is one of the largest local unions in Kent county, and we are located in Chatham at 280 Merritt Avenue. Local 127 currently serves about 4,000 members in 17 different workplaces. These workplaces are in different communities in Kent county, including Chatham, Blenheim, Tilbury and Grande Pointe. Our members live throughout Essex, Kent, Lambton, Middlesex and Elgin counties.
Local 127's members are mainly involved in the manufacturing sector, but not exclusively an auto parts producing or assembly oriented local union. Members of Local 127 are employed by diverse employers, including: Navistar, a producer of heavy trucks; Eaton Suspension, an auto industry spring maker; Siemens, an auto industry electronics supplier; Dover Corp, a gas station parts maker; Sonoco, a food and beverage industry packaging supplier; Daymond, an aluminum extrusion and anodizing company; Trimplas 2000, a plastics coating company, and there are many other local employers that we are organized with.
Local 127 has a membership which reflects the demographics of our community, representing many cultures. We are united with four other CAW local unions in Kent county, addressing concerns about the erosion of our workers' rights and employers' responsibility. We, as local unions, are bonded by the common thread of a quest for social justice for our members and for those in the community not working or employed by businesses without unions.
My name is Derry McKeever. I have been a member of CAW Local 127 for over 23 years. I am elected to the 26-member executive board of Local 127. I serve on the board in the position of trustee. I am a member of the local union's political education committee and have been for a long time. I've been laid off and out of the workforce for about a year.
CAW Local 127 appears before this committee today to strongly oppose the gutting of employment standards and to stand in opposition to the reduction of the most basic standards or minimum standards in the workplace that everyone -- employer and worker -- has come to know and rely on in their quest for fairness for working people.
We are aware that the Minister of Labour, the Honourable Elizabeth Witmer, has chosen to temporarily withdraw discussion in some areas, but we believe we must speak about the basic standards now and when more intensive discussions take place later this year.
CAW 127 wants to know, why are changes in the basic or the lowest common denominator necessary? As you see, on page 4, I have included comments by the Honourable Elizabeth Witmer about the changes.
Moving on to page 5, when the business community went to the federal Conservative government stating that all they needed for economic survival was free trade -- I think everybody here remembers that one -- it was complied with by your buddies in Ottawa. Then they asked for NAFTA. Transportation deregulation was next, communications deregulation, banking deregulation, all requested by business, all complied with. All of these changes were granted and have major effects on employment. All of the changes resulted in job losses in Chatham and Kent county. The employer I work for went from 1,000-plus people employed down to 200 right now and even less than that, and these are changes due to the auto pact and free trade.
It is no secret, and continues to be shown, that the current Ontario government is strongly influenced by these same business groups and employer organizations. When they asked for the repeal of anti-scab laws, this government complied wholeheartedly.
The business concept of deficit reduction comes at the expense of working people. Layoffs and cutbacks become the norm for working people. I know; I am a statistic. I'm a person also. I felt the effects of government action. I have friends and family working. They need the basic provisions of the Employment Standards Act maintained and enforced this very minute -- now. They don't need less employer responsibility. They want protection of their rights. Is asking for reasonable employment standards which protect the rights of workers too much to ask for in this society? CAW 127 political education committee believes not; it's not too much to ask.
Employment levels in Kent county and within Local 127-represented workplaces are at a very low level. CAW 127 once represented 7,000 workers in Kent and area. Many factors are responsible for this, not the least of which is government deregulation, which Bill 49 is part of. The actions of this government and committee will be around for many years -- a long time after you guys are gone. The legacy of the proposed changes to the Employment Standards Act will be the weakening of the job market. This weakness will translate into worker fear and discontent. Unhappy workers are not productive and persons living under fear of unfair employer actions don't support local businesses because they're apprehensive when spending moneys earned, if they get paid.
Bill 49 will pass the cost of enforcing employment standards to unions by requiring unions to assume responsibility for employment standards complaints by our members through the grievance system. Let me tell you, the grievance system is under heavy pressure right now with employers taxing our union resources by their reluctance to settle basic contract issues.
Bill 49 is grossly unfair in its direction that will force non-unionized employees to cover costs of enforcement at a time when wages are under heavy cutbacks and enforcement costs are up. We don't think it's fair to ask employees to pay collection costs on money and benefits already owed. This will reduce the amount of money eventually collected, placing an employee in double jeopardy and leaving the bad boss, the unfair employer, free of penalty when caught.
Bill 49's lumping together of minimum standards around the issues of wages, severance pay, hours of work, overtime, public holidays, vacation pay, equality of pay and parental leave will put unions in a difficult position, that being if improvements in wages are made and losses in other areas are incurred, will this be viewed as an apparent improvement in all areas that have been combined after unions are forced to negotiate these standards? We don't know, but we suspect it will.
CAW Local 127 political education committee believes that the proposal to shorten an employee's time to claim money owing from the current two years down to six months will hurt ordinary working families who do not have the financial or information resources that employers can freely access. When you live paycheque to paycheque, it's hard to allocate money for lawyers if it takes food out of your kids' stomachs.
Changes to the Employment Standards Act that say an employee may not file a complaint if represented by a union are unfair. Many times areas not covered by collective agreements require individuals to initiate a complaint. That right is gone.
At a time when company and corporate profits have gone through the glass roof, it is hard for members of CAW 127 to believe that the basic rights covered under the Employment Standards Act are an unfair burden to employers. Even when the Conservative government was in power for 40 years, basic rights for people had a place in the government's approach to social and economic justice. Proposed changes to Bill 49 and the Employment Standards Act destroy the workers' rights, decrease employer responsibility and leaves the concept of economic justice lost, along with this government's credibility.
Erosion of earnings by employers equals weakness in spending. If we don't have the bucks, we can't put them in your cash register. You can't have it both ways. Why further block economic gain in Ontario by attacking workers and their families?
The employer I am working for, when I work, has blocked any attempt at wage gains by Local 127. After this collective agreement expires, we will have been working for 12 years and we will have had no income improvement. We have made gains in other areas, but our real income has declined. How will workers not unionized make gains? If they wait for this government, they may never get a raise. Under Bill 49 proposals they will gain very few benefits.
The number of days production lost due to strikes has increased this year. Labour's in a fightin' mood, folks. I'm here to let you know that our friends in the Aluminum, Brick Glass and Ceramic Workers' International Union in Wallaceburg went on strike against their employer around the issue of two-tier wages. That's the concept of pay for new workers who do the same job being much lower and never increasing. They were successful in thwarting the employer's demands. They stood up for what's right, and we will too.
This government's job is to create a climate where good jobs will be created. You can't do that when workers are mad. Angry workers go to the street and tell the world how they feel. Media coverage is widespread when strikes, protest marches, occupations and city shutdowns happen. While I've been unemployed, I've talked to my friends, relatives and neighbours about the effects of Bill 49. People are angry and frustrated. They want you to know how they feel; they want you to listen to their stories.
I've enclosed also on page 9 a summary of a recent meeting that was held in Fort Erie, Ontario, between some folks and the president of the Ontario Federation of Labour, and I invite you to read that at your leisure.
In summary, we need better enforcement of the Employment Standards Act, more inspectors, quicker actions, tougher penalties for bad bosses and an even hand in employment regulations.
Fifteen minutes to speak about the problems Bill 49 will create is not sufficient to tell you how Local 127 political education committee feels. We've travelled 100 kilometres today to discuss these issues. We've shown our commitment to workers. We need your assurance that fairness will prevail. Thank you.
The Vice-Chair (Mrs Barbara Fisher): Thank you very much. We are left with about a minute and a half per caucus, starting with Mr Christopherson.
Mr Christopherson: Derry, thanks very much for a very impassioned presentation that I think reflects very much what's happening across the province as people begin to add up all the measures that this government has taken against workers, against unions, against the most vulnerable.
I want to focus a bit on where you talk about the future and where we're going. This government has said from the beginning -- they're great at talking the words, but what they say is one thing and what they do is always quite another. They talk about wanting to open up Ontario for business, they want to protect workers' health and safety and they care about vulnerable workers.
The reality is, they shut down the Occupational Health and Safety Agency. They're attacking rights of disabled workers under WCB. The health clinics are under attack right now. Scabs are legal again in the province of Ontario and now they're talking about the ability for employers to concession-bargain even the most minimum rights.
The NDP said from the beginning of this government's mandate that they are looking for trouble, that they are going to have more labour unrest than they've ever seen in the history of Ontario and that can't be good for business. Will you give us a sense of how you see this unfolding in your area? Is there anything that can prevent this or, if they continue down this agenda they've started, is this inevitable?
Mr McKeever: Frankly, Mr Christopherson, I'm very disappointed today and I'll tell you why I'm disappointed. The only sitting Tory member in the south west is Jack Carroll from the Chatham-Kent riding. Jack Carroll's not here today. Jack Carroll doesn't care.
Mr Baird: On a point of order: I feel that it's important to indicate -- this is obviously something with respect to the standing orders -- that Mr Carroll is a member of this committee. Regrettably, he sits on two committees and he is the Chairman of the standing committee on general government, which is on hearings across the province at this moment. We eliminated the extra moneys for committee members. I think it's important to put that on the record because Mr Carroll, I know for a fact, would have been here if he was not scheduled to be on another committee. He is on a travelling committee and I think --
Mr Christopherson: Point of order, Chair: I would ask that you deduct the time that Mr Baird just spoke from the comments that Derry is entitled to make.
The Vice-Chair: I have no problem doing that.
Mr Christopherson: Thank you.
The Vice-Chair: I was looking at the time. There's 30 seconds left on the answer to this question.
Mr McKeever: I'm really disappointed that I would be interrupted like that because I have to make the point that every time we have tried to meet with Mr Carroll in his office, he has refused us. We had to have demonstrations in front of his office to get him to come out of the office and he wouldn't do it. The people in my community are angry, upset and they're going to go to the streets. We'll be in Toronto on September 25 and 26 and I hope to see everybody here there.
Mr Christopherson: Thanks a lot, Derry.
Mr O'Toole: Thank you very much for a very energetic presentation. I want to just clarify the record. I'm the substitute for Jack Carroll who is Chair of another committee. I think it's important because I find Mr Carroll a very compassionate member and I'm sure he would -- I'll pass on the comments that you specifically have tried to contact his office.
As part of the leadership group in the area, I gather you're telling me you're very interested in sitting down and participating in any changes to the employment standards legislation. Is that what you're saying?
Mr McKeever: Yes.
Mr O'Toole: You'd expect that Gord Wilson, Buzz Hargrove, Leah Casselman, Sid Ryan and all the boys and girls would be there anxious to participate in a positive, constructive way, right?
Mr McKeever: If the parameters are set and we know what you're attempting to do, yes; we'll sit down if it's fair and reasonable. But if it's unreasonable and unfair, which these proposals are, I think it's absolutely correct that Gord Wilson doesn't meet with you.
Mr O'Toole: I hope that doesn't include any demonstrations. I only make the point that I believe that demonstrations and any sense of violence or creating that kind of confrontational thing is not productive, as well. I think these public hearings are very important. We are listening and I'm certain that changes --
Mr McKeever: I said that they are important.
Mr O'Toole: I really do as well and I appreciate your coming.
Mr Christopherson: Why didn't you support it in the Legislature? How come I had to force you to come out into the public? Why didn't you want to come out here? You were forced to come out. You won't stop doing that, will you, John? You keep talking about wanting to hear from people. Your government didn't want to have public hearings. You want to fight with the public and you won't stop saying it.
The Vice-Chair: Thank you. Excuse me, Mr O'Toole, you're out of order. The time has expired. I would like to move on to the official opposition, please.
The Vice-Chair: Mr O'Toole, Mr Christopherson, excuse me; it is all out of order right now. One person is supposed to be speaking at a time. The time has expired. I would now ask for comments from the official opposition.
Mr Hoy: Good afternoon, Derry. In the beginning of your presentation you mentioned the various localities that you represent as a union, and I dare say that you probably represent people from my home town of Merlin, even though it may not have a facility. I didn't have a chance to mention it and I'm pleased to know this statistic because I think it reflects quite a bit about the riding, of which I share a part of Kent and part of Essex: two thirds of industry in Windsor-Essex county have no union involvement. I was happy to be informed of that from the previous presenter.
The riding, 30% of the people living within it, has an income level of lower than $30,000 a year, so much of what you're concerned about is for those at the lower income scale rather than higher.
You were talking about tougher penalties for bad bosses. Would you elaborate on just what levels you think would be appropriate?
Mr McKeever: Madam Chair, I wonder if I might be able to speak without being interrupted this time. How much time do I have left?
The Vice-Chair: As a matter of fact, time expires in five seconds, but if you'd like to take a moment, I don't mind that. I ask everybody to be kind enough to have the answer heard. Thank you.
Mr McKeever: I find it really difficult to answer your questions, Mr Hoy, extremely difficult in view of the fact that you have been on record in Hansard on at least two occasions stating that you don't think unions should be extended to agricultural workers when you know full well that there was a coroner's inquest in Charing Cross, Ontario, which you represent, where a worker was torn apart by a machine that had five different power sources and you did nothing but stand up and say, "He shouldn't have a union." Mr Hoy, you're worse than those guys.
The Vice-Chair: Thank you very much. We appreciate your comments today.
WINDSOR AND DISTRICT LABOUR COUNCIL
The Vice-Chair: Could I please have the representative from the Windsor and District Labour Council come forward. Good afternoon, sir. For the sake of those present and Hansard, I ask that you identify yourself and continue on.
Mr Nick LaPosta: Thank you. My name is Nick LaPosta. I am here representing the Windsor and District Labour Council. I hold the position of financial secretary to that council and I represent more than 40,000 organized workers in the tricounty area here in Windsor and Essex county.
Before I get into the presentation, which is very brief, I'd like the standing committee to understand that the Windsor and District Labour Council, whom I represent, comes before you with mixed emotions. I say that with tongue in cheek, because we do not believe that the good work this committee is about to embark on is actually going to amount to much once you've heard the last presentation and come to the last meeting in the last city.
We have a Minister of Labour who introduced proposals for change back in May. We have that same minister claiming to put the brakes on those proposals but wants them passed this fall. We are currently in the latter part of August. Your trips, your meetings in the upcoming cities, the information you are going to gather and whatever conclusions you may come to we really feel are not going to make it into the final cuts to the proposals. We don't believe that the work this committee is going to be doing will end up in any type of substantive change to those proposals. We do believe that the main thrust of the proposals is to assist the current government to come up with a portion of that $10 billion it needs to pay for its tax cut to the wealthy and the élite.
While you're bearing that in mind I'm hoping, on behalf of the Windsor and District Labour Council, that whatever you come up with does not add to the proposals being submitted that would actually take away from the Employment Standards Act. The one question I hope this committee will answer is, where is the crisis within the Employment Standards Act? We have not been made aware of one.
There are three areas I'd like to talk to you about. One is dealing with flexible standards, the maximum claims and the use of private collectors. I want the standing committee here to understand that we are unequivocally against these proposals. If there is anything that the Minister of Labour should be doing, it should be enhancing the current legislation. I will refer to a couple of examples that are currently going on right now where, had the legislation been enhanced -- by "enhanced" I mean given teeth so that the officers of the ministry could enforce the legislation that is currently there -- there would be no need for this at all, except another way to try and find $10 billion.
Under "Flexible Standards" in the proposals, section 3 of the bill, subsection 4(2) of the act: This bill contains a fundamental change to Ontario labour law by permitting workplace parties to contract out important minimum standards. Prior to Bill 49, it was illegal for a collective agreement to have any provisions below the minimum standards set out in the Employment Standards Act. 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.
These measures erase the historic concept of an overall minimum standard of workplace rights for unionized workers. Employers are now free, for example, to disregard this previous floor of rights and have the opportunity to attempt to trade off such provisions as overtime pay, public holidays, vacation pay and severance pay in exchange for increased hours of work.
At this point in time, as we sit here and I'm making this presentation, we have an employer in this city that is a spinoff from the casino that is working. It's Your Choice Shuttle. We have an organized workforce at Your Choice Shuttle. The full-time workers at Your Choice Shuttle have a contractual agreement that specifies, effective July 1 of this year, that all those employees who worked 1,200 or more hours in the previous year are entitled to two weeks' vacation pay or 4%, whichever is greater. The employer's response was not to pay it, forcing them to go through a grievance procedure, and as I'm here today there is a grievance meeting going on dealing with that. The company's response to the grievance was, "We are in accordance with the Employment Standards Act and in accordance with the negotiated contract, so grievance denied."
We're saying to the committee here today that a simple call to the Ministry of Labour showing an example of the contract, bringing it to them to examine it with the current legislation on the books, easily could have forced, if they had the power, this employer to say: "You're wrong. You have an agreement. This is what you owe. Pay it." Instead we have a grievance procedure now which is going to retard payment regardless of whether we win or lose. That isn't the issue. It's black and white. There was no reason to go to a grievance procedure in the first place.
These are the types of changes that should be put on the books if the Ministry of Labour really wants to assist the working people in Ontario. This type of teeth, as I refer to it, in that legislation would give officers of the ministry the right to contact the employer, make like an arbitrator and say, "This is outside the law; you are contravening your contract; you must pay," and actually force the employer to pay. We're not asking for anything more than what they're entitled to.
This proposed amendment therefore will allow employers to put more issues on the bargaining table which were formerly part of the floor of legislated rights. It will make settlements more difficult, particularly for newly organized units and small service and retail workforces. It will also enable employers to roll back long-established, fundamental entitlements such as hours of work, the minimum two weeks of vacation, severance pay and statutory holidays by comparing these takeaways to other unrelated benefits which together can be argued to exceed the minimum standards. The potential of this amendment alone to erode people's standard of living should be enough to make the drafters of the amendments rethink, if not radically alter, Bill 49. It is certainly enough to make the Windsor and District Labour Council stand in opposition to the bill as a whole.
Under the proposed maximum claims, section 21 of the bill, subsection 65(1) of the act, the amendments introduce, as noted above, a new statutory maximum amount that an employee may recover by filing a complaint under the act. This maximum of $10,000 would appear 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.
The problem with implementing such a cap is that workers are often owed more than $10,000 even in the most poorly paid sectors of the workforce such as foodservices, garment workers, domestics and others. Workers who have been deprived of wages for a lengthy period of time are the very employees who will not have the means to hire a lawyer and wait the several years it would take before their case is settled through the tort system. In effect, therefore, this provision will encourage the worst employer to violate the most basic standards while at the same time compounding the problems for those workers with meagre resources.
I want to bring to mind, right here again in our fair city, the Windsor plastics workers. Back on December 23, 1994, two days before Christmas the announcement of closure was made. At that particular closure the Windsor plastics workers had overtime pay owing to them. The basic week wages leading up to the closure was left owing to them. Improper notification, thus leading to termination pay, was owing. Severance pay for their years of service was owing. The answer, "Sorry, we're broke." That was it.
If the legislation that is currently on the books empowered the ministry to force these companies to meet those requirements prior to their claiming, "Sorry, we're broke," there could be an entirely different attitude by employers when they see that their business is a go or a bust; there would be an entirely different attitude around boards of directors who simply say, "Let's give it one last shot, and if we don't make this business turn around, we can always make money by claiming bankruptcy and hiding under the bankruptcy laws of this country."
These are the types of changes that I'm sure every labour leader in this province would be happy to sit down with the minister and talk about. These are the types of changes that aren't in the legislation now that the legislation needs if we want to talk changes. But we can't dismantle the legislation as it's there. By dismantling that, you take away every right; it's a bigger race to the bottom for everybody, not just organized workers but unorganized as well.
By the way, those Windsor plastics workers are still in the tort system and we are still chasing down the four different factions of that corporation that owe not only the workers but the province moneys. They were secured moneys to make sure that they gave it that shot to put them back on the balance sheets, and the promise they made to hire and expand never did come to fruition. I just thought I'd mention that.
Bill 49 also gives the minister the right to set out a minimum amount for a claim through regulation. Workers who make a claim below the minimum, which is as yet unknown, will be denied the right to file a complaint or have an investigation. Depending upon the amount of this minimum, it could well have the effect of employers keeping their violations under the minimum in any six-month period and thereby avoiding any legal penalty.
The third point, the use of private collectors, deals with section 28 of the bill, the new section 73 of the act. The proposed amendments intend to privatize the collection function of the Ministry of Labour's employment practices branch. This is an important change, providing one of the first looks at the government's actual privatization of a task which has traditionally been public. Private operators will, should these proposals be implemented, have the power to collect amounts owing under the act.
This provision will likely lead to employees receiving considerably smaller settlements. As well, they open a door to unconscionable abuse. The Windsor and District Labour Council is gravely concerned that employees, particularly the most vulnerable, will be pressed to agree to settlements of less than the full amount owing as collectors argue, if only for reasons of expediency, that less is better than nothing. Having at the same time to pay a collector amounts to nothing less than legalized theft. At the same time, unscrupulous employers will de facto now have their assessments for violations lowered and thus be encouraged to continue their violations of standards.
In conclusion, as our comments on the key amendments of Bill 49 indicate, no one concerned with maintaining basic societal standards in terms of hours of work, overtime pay, vacation pay, severance and public holidays can possibly favour these amendments. Bill 49 would eliminate the floor for minimum standards. As for the unorganized, particularly the most vulnerable in the workforce, Bill 49 is about the race to the bottom. It is about undermining their already precarious existence, and as such it is totally unacceptable.
These amendments come on the eve of a comprehensive review of the act. The proper procedure would have been to include such changes as part of such a review and not try to pass them off as simple housekeeping changes. Beyond this, the core of the problem is the nature of the amendments themselves. As our comments already make clear, standards shouldn't be eroded, shouldn't be made negotiable; rights shouldn't be made more difficult to obtain; and enforcement of such shouldn't be contracted out or privatized. All this is taking place as part of the overall Harris agenda to shrink the size of government and divest itself of public services. The bottom line means slashing $10 billion from Ontario's budget to pay for the tax break for the wealthy. Thank you.
The Chair: Thank you for your presentation. I didn't want to cut you off, but we've gone over the 15 minutes. Thank you very much for taking the time to come before us here today.
UNEMPLOYED HELP CENTRE
The Chair: Next up is the Unemployed Help Centre. Good afternoon.
Ms Pamela Pons-Marier: Good afternoon. We appreciate the opportunity to appear before you this afternoon. My name is Pamela Pons-Marier and I have with me Kathy Probe, our assistant director.
As the executive directors of the Unemployed Help Centre in Windsor governing Windsor and Essex county, we continually see the negative effects that high unemployment, cutbacks, layoffs, recessions and absence of job opportunities have on displaced workers. Through no fault of their own, they become the victims of these circumstances. This submission is being made on behalf of unemployed workers, the working poor and the disadvantaged in Windsor-Essex county. The majority of these workers become the victims of unemployment and underemployment by a decrease in the total number of jobs in our communities, fewer employment opportunities, plant and business closures, layoffs, downsizings, cutbacks in government spending, health sector cuts, health sector reconfigurations and changes in government policies such as the one we see before us today, Bill 49.
There's very little hope of finding alternative gainful employment for the thousands of displaced workers who have given years of their life to one employer and suddenly find themselves starting over with insufficient finances to do so. The difficult labour market over the past several years has led to a substantial decline in the full-time labour force. Of course, part-time employment has dramatically increased due to corporate cost-saving measures.
Employers have the edge over our workers as long as our labour market continues to be deprived of sufficient job opportunities. Bill 49, section 3, flexible standards, makes it easier for employers to take advantage of the workers and it will make it extremely difficult or nearly impossible for workers to enforce their rights. The potential of this amendment alone will take away minimal benefits once protected by law for workers. It will not assist employers to become more competitive, nor will it increase consumer purchasing or lead to higher productivity. It will, however, lead to increased problems in the workplace, it will promote poorer working relationships between the employer and the employees and it offers less than what was once considered a minimum standard of living.
I am sure it is not the will of this government to go down in history as a government that destroyed the rights of workers. It creates an open season for employers to decide what's fair for their workers, without a balance of power, in terms of hours of work, holidays, overtime pay, vacation pay and severance pay. It's been historically proven that employers take advantage of their workers on these very issues. Therefore, it's naïve and shortsighted to think that this will not result in further abuse. This is not a position that we should be taking in the 1990s; this is an 1800 position at best. That's when we recognized slavery. We're in a time when we are not to recognize slavery. These are workers, not slaves. If there's no legislation that will prohibit the abuse, we continue to set the stage for this labour.
Many employees making minimum wage will have to work longer hours. It's the only way they can make ends meet. This creates yet another problem; namely, that there isn't enough work to go around. Therefore, is more overtime without adequate compensation the best solution for us all in the long run?
We're here to present one of many examples that demonstrates specifically how the amendments in Bill 49 will affect a human being, and I do mean a human being, not the potential for a slave. Unfortunately this situation is very real. I'm going to provide this example today with a fictional name because we respect the individual and we respect privacy and confidentiality.
For the sake of this hearing, the woman's name is Joan Smith. She had been working for a successful company for over 15 years. Her wages were $12 an hour. She became a victim of sexual harassment from a co-worker. Initially, she attempted to resolve this situation on her own. Receiving no success with this, she then reported it to her supervisor, expecting it to be resolved. A short time later Joan was given notice of termination effective two weeks following the date of complaint. I'm sure this was just a coincidence. She was advised by her employer that it was due to a surprise shortage of work. She was to receive two weeks of termination pay. Previously the company had required Joan to work overtime on occasion. She had accumulated three months of overtime for which she was to be compensated by lieu time and not by virtual payment. It represented a dollar value in excess of $6,000 owed to her. Her employer of course conveniently misplaced the records of this overtime.
I'd like to demonstrate the differences and potential outcomes by first comparing Joan's situation with the current employment standards and then comparing it to the proposed amendments. Under the current system, Joan can file a complaint against the employer to cover her overtime wages. She would be entitled to a maximum of eight weeks' notice or termination pay. Since the employer is only paying for two weeks, this leaves a deficit of over $3,000. She's entitled to 15 weeks' severance pay, approximately $7,200. She's entitled to seek resolution and payment via the Ministry of Labour as well as other remedies in civil court for wrongful dismissal and further action against her co-worker for sexual harassment. Joan can file a complaint with employment standards and recover all of her costs, over $16,000. She also has the critically necessary time to consider pursuing a claim in civil court for the wrongful dismissal and, again, the further action against her co-worker.
Under the amended act, Joan needs to decide whether to pursue her rights through employment standards or elect to proceed through the legal system. To make this vital decision Joan should first seek the opinion of both employment standards and a member of the legal profession. Then she's got to weigh both options to make her decision. The amendment professes that all of this can be done in a short two weeks. I presume that the Ministry of Labour intends to hire a massive number of people since they're going to be able to give this opinion in less than a two-week time frame. Since there's non-sufficient time for Joan to procure legal counsel, Joan will then have to gaze into her crystal ball to make her decision. Her options are to begin a long and expensive court battle with the forfeiture of the ministry enforcement or to accept less than her entitlement via the new Employment Standards Act. Some choice.
For the displaced worker and the working poor, they will be forced to chose the most expeditious and affordable means to recover their money. Typically, filing a claim through employment standards is the common choice because many cannot afford to hire a lawyer. This option is elected because they're in a vulnerable situation while they meet their financial and familial obligations at the risk of waiving their rights to recover that which is truly owed to them.
The new statutory amount that an employee may recover by filing a complaint under the act is a maximum of $10,000 for amounts owing that include back wages, vacation, severance and termination pay. A minimum amount is still yet to be determined. Joan's owed over $16,000. An amended act, as cited, will virtually pave the way and legitimize corporate theft. Joan's dilemma: She needs money now. She needs to support her two children. Joan is a single parent. Her other alternative at this point is to go to the local welfare office, not one of which this province should be very proud considering the recent decimation it's made of it.
Joan is the victim in this case. The corporation remains the uncharged, the untouched, the unpunished. They are the corporate criminal. You are suggesting that it is fair in this province to rip off workers and that those who are ripped off should go with no redress.
Joan's choices, as ludicrous as they are, are to accept a loss of over $6,000 or to proceed with civil action. Of course, legal actions take money. She doesn't have it because her former employer has her money. Is she to rely on her family and her friends to carry her through this long and arduous process, or is she expected to rely on tuna from food banks that this government refuses to support or recognize? What does she do? Does she choose the quickest way possible to recover some of what is owed to her and let her employer off the hook because some money is better than no money at all? She has two weeks to decide, and already knows that she can't afford a lawyer. She's also aware that with the cutbacks to legal aid, they're not in a position to handle her case.
She was already struggling paycheque to paycheque to support her two children. This amendment encourages Joan's employer and others like them to violate the most basic standards while compounding the difficulties many working poor are experiencing. It opens the door to further sexual harassment and abuse in the workplace.
She wasn't prepared for this, yet she's forced to make her decision based on her immediate financial needs while she struggles to secure alternative employment. To add insult to injury, she'd have to pay for collection services since the amendments include the privatization of this existing government service. The regulations will allow prorating this settlement among the collector, Joan, the former employer and the government. It will mean that people like Joan will be required to pay a fee because of the wrongdoings of an employer.
We must ask, why does our government continue to make policy changes and cutbacks without consideration for the very people these changes will impact?
The implementation of Bill 49 will add yet another financial burden on those who can least afford it. Many are already trying to overcome severe financial difficulties and are trying to maintain a decent standard of living. The implementation of these changes will further erode the minimal entitlements to a basic standard of living and quality of life for all people.
In closing, we applaud the Minister of Labour, Elizabeth Witmer, for recently withdrawing yet another punitive section of Bill 49. I expect that upon conclusion of these hearings she will find the evidence and the courage to respect the workers in this province and withdraw this bill.
The Chair: Thank you very much. That leaves us with just under a minute per caucus to make a comment or ask any question. The questioning this time will commence with the government.
Mr Tascona: Just commenting on your example, that situation, since it's sexual harassment, would be covered under the Human Rights Code, under which there would be some reinstatement.
Ms Pons-Marier: I think the real issue on this, Mr Tascona, is what's happening in the bill, not the issue of the sexual harassment.
Mr Tascona: I think your example -- it should be pointed out that an individual who is sexually harassed wouldn't be going under the Employment Standards Act; they would go to the Human Rights Code to get reinstatement. Also, they could go to the Ontario Labour Relations Board --
Ms Pons-Marier: The employer was not the sexual harasser.
Mr Tascona: -- and go under the health and safety act to get redress, so that has nothing to do with Bill 49. I just want to put that on the record for that particular example.
Ms Pons-Marier: The employer said he was terminating for shortage of work. This does apply.
Mr Tascona: Those are all my questions.
The Chair: Official opposition?
Mrs Pupatello: Thank you, Pamela. First of all, I think you did a terrific job. You can probably understand the government member's sensitivity to the type of example you chose to use today in discussing Bill 49, given recent events at Queen's Park. Having said that, it really is the perfect way to describe how individuals lose in very real examples, and I have no doubt that this is indeed a real example.
Given the last few comments you just made about the repealing of certain sections, could you give me a commentary about what you see as the meaning of the hearings travelling the province after a very significant and contentious portion of the bill was withdrawn by the minister recently? That is the negotiation of the overtime and those things that can be negotiated. That portion was withdrawn. Most of the people who presented to the bill during the hearings have pointed out that that's really a very difficult part. That part has been withdrawn, so what do you see as the overall purpose then of the hearings and the cost of that?
Ms Pons-Marier: I think, Sandra, there are still too many punitive measures contained in the bill. It's my sincere hope that attention is paid to these hearings and that this just isn't a setup and another horse-and-donkey show. If they are really going to listen, then most of those measures will be withdrawn from that bill.
I guess it's up to the government now to show that it has respect for workers in this province. The more people bring examples to the table, it brings reality to the members who put any comments through to this. Hopefully, and we expect, if there's any recognition for workers in this province, this bill will go very quickly to the garbage can.
Mr Christopherson: Pam, thanks very much for the presentation.
Ms Pons-Marier: Thanks, Dave.
Mr Christopherson: I know the work that you do at the centre, having been down there in a previous capacity. We're still having a great deal of difficulty getting through to the government in understanding why reducing the claim period for back pay from two years to six months hurts vulnerable people. It's because they don't file, in 90% of the cases, until they've left employment.
As the director of an unemployed help centre, can you explain from that point of view for the benefit of the government members, what is it that a vulnerable worker faces when they're unemployed if they don't have the skills, particularly if they're a visible minority or if they're a woman? What are some of the circumstances you face when you talk to people who are unemployed? That then shows what people who are currently working but having their rights denied are afraid of facing. What is it that some of the people you deal with on a day-to-day basis are facing in terms of trying to pick up the pieces of their life and find a job?
Ms Pons-Marier: If we are dealing with a client who -- only 80% are literate; 20% of the population in this province of working people is functionally illiterate. For those who can read the documents, the first thing that happens to them with unemployment is that they go through an emotional roller-coaster. One is not prepared at the first drop of the hat when they've lost the job to be able to deal with the extending circumstances. Many of our clients will continue to lie to their family and may go off pretending they're going to work without telling the family they are yet unemployed. Then they face a difficulty, if they qualify for unemployment insurance, of resolving those issues. By the time we resolve the issue with UI, we may be into a couple of months. We still then have to assist them in coping with unemployment. Then trying to move into a position where they have to take care of their rights on their own is not going to happen in the six-month time frame. To reduce that window of opportunity provides no cost savings, provides no protection to workers, and it's astounding that the window is reduced. We fail to understand why there is any reduction.
Mr Christopherson: We've had some people suggest it's going to legalize theft of employee wages.
Ms Pons-Marier: The whole amendment to Bill 49 has done that by saying that the victim becomes the person to pay and the corporation continues to keep an employee's money without being charged.
The Chair: Thank you both for making your presentation here this afternoon.
CANADIAN AUTO WORKERS, LOCAL 195
The Chair: That leads us now to the Canadian Auto Workers, Local 195. Good afternoon.
Mr LaPosta: We're getting a second shot at the can here.
The Chair: The 16th, actually.
Mr Mike Renaud: I've asked Nick to come back up and do the presentation, or at least be here. I noticed the panel didn't have the opportunity for questions due to time. We will shorten ours to some extent on matters that have been a little repetitive -- not to say they're not important -- and I'll point those out. Nick is also the financial secretary of our local union, which is his other paying, full-time job, so he's certainly properly seated here. The president of our local, who was named to be here, is in Toronto on urgent union business.
I think it important maybe at the end -- that's why we'll try to get through this thing -- that if there are questions, because of the cross-section of workers the labour council represents and the numbers -- before I start I will mention that in our experience we are the largest local union in the CAW in terms of number of workplaces represented; not in terms of the membership but certainly in terms of the number of workplaces represented.
By way of introduction today, my name is Mike Renaud and I'm the first vice-president of CAW Local 195. Our local represents approximately 5,000 workers encompassing 70 different workplaces. In terms of the nature of the work, it varies quite substantially. Most of our workplaces are auto parts manufacturers, but we also represent workers in food processing, tool-and-die shops, security guards, pharmaceutical and packaging workplaces. We also have now two grocery stores owned by a family, approximately 300 people there. There are a lot of minimum-wage jobs there; we're negotiating our first collective agreement.
As you can see, our experience is quite extensive and varied in itself. In terms of the size of our workplaces, just so you have a clear picture of our makeup, we represent workplaces with workers who number as few as six and as many as 600.
Let me first comment on your proposed changes and then suggest some changes you may want to consider that we believe would help both the economy and the people of our province.
With regard to the limitation periods, I just want to say briefly that the reduction of the time limit an employee has to file a claim from two years to six months is an abrogation of the ministry's duty and obligation. To suggest that an employee who in all likelihood has meagre funds under the circumstances could take his or her employer to court is ludicrous. The act is in place to protect people under these circumstances and this government should not shirk that responsibility.
The government should ensure that the officers of the ministry have the resources and power to enforce the act to promptly recoup moneys clearly owed to employees. Employers who refuse to pay should be dragged into court and fined or jailed. I don't know, unfortunately, the personal background of everybody here at the panel, but I would ask you to try to think of it in terms of a personal nature. If I withheld money that I owed to you, would you be prepared to wait years before receiving it?
We've had numerous cases where that is what's happening. We've had cases where employers have taken money off the cheque for support payments, for credit union deductions etc, kept the money and spent it and then subsequently gone bankrupt in the next two or three months. Then it comes into the enforcement, so there are a couple of pieces of legislation here that need to be intermingled, but that certainly comes under the sphere of the Employment Standards Act enforcement branch. Then what happens in the bankruptcy case is the workers, as you know, are last on the list of creditors. We think something could be done there to move those workers and those cases up to the front.
I suggest to you that if I somehow picked your pocket today of your wallet, the appropriate penalty would be to call the police and have me taken to court and, again, whatever the justice system does. That's what's happening in the workplace today in the case of a lot of workers, and under the premise of being an employer we're really letting some crimes go by.
The maximum claims portion of our presentation, along with the use of private collectors, I'm going to skip and go right to number 4, page 5 of our presentation. Nick covered those essentially verbatim in our report, so again, not to diminish the importance of those, but so not to be repetitive.
With regard to unionized workers denied access: To deny access to workers who are unionized to the Employment Standards Act is prejudicial to those taxpayers. Why should someone not be able to go to the government to ask that a law of the province be enforced? Because they chose to join a union? Why should unions now have to absorb the cost of arbitrators to have companies live up to the laws of the land? This appears to be a rather transparent tactic to further upset the existing delicate balance in most workplaces.
I think we do pretty well in our province with the existing system and in most workplaces with the unions and employers, but I can say to you that it is a daily delicate balance, that it is an adversarial system. That's just the way it is, and that's the system we have to live in, so I think you're throwing something into the mix there that's going to upset that balance.
Which brings us to flexible standards. Although it's been announced that this change has now been tabled until the fall, we are very concerned. Let me suggest that this change should not occur at all. To throw up for grabs the most basic rights for workers in an adversarial relationship like the collective bargaining process is unconscionable. Surely you can understand that the employer is very often in a position of power in the workplace and at times will use that power through the collective bargaining process to erode the progress that workers have made.
Under the threat of lockout workers may feel the need to settle for fewer holidays or longer workdays etc, the things that are covered by the act and are currently protected by the act, so long as the entire package can be seen by someone -- we don't know who that someone will be; I assume someone in the ministry -- as greater than what the act confers. In actuality, it may be less of a benefit than was enjoyed prior to negotiations but still considered greater than the Employment Standards Act. I think that's a realistic situation if that section of the act is passed. This change is a backwards way of getting at such things as hours of work and will lead to more disruptions in the workplace.
Let us now propose some changes to the act that we believe should be considered.
Termination: Present notice requirements cover up to eight weeks' notice if the period of employment is eight years or more. They should be extended up to 26 weeks' notice if the period of employment is 10 years or more.
Notice requirements for mass layoffs: The present figure of 50 or more employees to trigger the eight weeks' notice should be lowered to 10 or more employees. At the high end of the spectrum, in the event of a termination involving 500 or more employees, the notice requirements should go from 16 weeks to 26 weeks.
We believe that along with this legislation there should be some legislation married, so to speak, with the UI act that workers who are in that situation aren't having their severance and termination pay carved out of their unemployment insurance, so that when a community is hit with a workplace closure that group of people maintains their purchasing power for a little longer period, so that they're not immediately cut to nothing until their unemployment comes in, and it's reduced now to 50% or 55%. That has an impact, not only on the families, but on the economy of the communities.
Justification provisions in the event of closure: There needs to be some justification process in the event of a closure. The public has a right to know (a) of any grant or loan moneys that were given to the corporation by the government; (b) whether the closure is the result of true financial hardship or just a case of a company leaving our country to go to a country where workers have not yet been able to achieve a decent standard of living.
If a closure is not as a result of true financial hardship, the corporation should have to contribute into a fund managed by the government to assist displaced workers either through retaining or, in the case of older workers, financial assistance in the form of early retirement. We think that's a fair requirement rather than passing that cost on to the taxpayers under those circumstances. We believe these proposals would help with an area's economic stability by providing some maintenance of income during periods of retraining so that workers will maintain purchasing power during adjustment periods before re-entry into the workplace.
The government should increase time off given to workers through the act. This can be done by increasing the number of statutory holidays or increasing the current vacation requirements from two weeks to three weeks. The current average time off in our province and in our country is lower than most of the leading industrialized countries.
Increase maternity leave to one year, again bringing us in line with other countries.
Shorten maximum hours that can be required to work in a week from 48 to 40.
Increase the minimum wage on a regular basis.
Aside from the obvious and much-needed benefits to families and society as a whole, such as more family time etc, these changes would have an almost immediate positive impact on our society.
Remember that for every 50 people who get an extra week of vacation, one person would have to be hired, or that for every woman who took one year off for maternity leave, one person would have to be hired. A shorter workweek would also have a similar effect.
You must realize that every penny of an increase to the minimum wage goes directly and immediately back into our economy in all different directions, as people's purchasing habits are different. However, a decrease or a freeze in the minimum wage goes directly into the savings accounts of businesses or often, in the case of large multinational fast-food restaurants or international department stores, leaves our province and country altogether.
The problem with our current economy is lack of purchasing power for the bulk of consumers. We believe these changes that you have the power to initiate not only make Ontario a better place to live but would kickstart our economy into a long-term upswing.
We wish to express our appreciation for having been given the time to make this presentation and trust you will respond to our proposals in a positive fashion.
We attempted today, Madam Chairperson and committee members, to provide you not only with the human side, which I think everyone here is concerned about, but an economic argument as well. We've always had the position that the Employment Standards Act is a key piece of legislation, and I think that what's before you is an opportunity. We say with all due respect that it's there now for you -- we gave our input -- to do what you will. It's a different economic alternative.
Mr Hoy: At the top of page 5, where you talk about how unionized workers are denied access, it has been perceived and stated by others during the hearings thus far that this is a form of downloading. Let me just say that this isn't the only area where the government is doing this. The agricultural community has what is known as an agricultural financial protection plan. The farmers put their money into it; the government administers it. Now there are conversations going on where the government would get out of the administration part and download to the farmers to administer a plan against bankruptcy by others. So it's not the only case and it's a foreshadowing of the government's whole agenda. I appreciate your comments today.
Mr Renaud: I'll give you an example. We have a grocery store here. The bulk of those people are making minimum wage. When people envision the CAW or organized labour, very often they think of the Big Three and a lot of protection and a lot of people working there, so how could those people be taken advantage of? That's not the case in our experience. We take whoever feels they need a union, so we have workplaces as small as six. The employer does have the power. By far, most employers won't abuse that power, but there are some that will, and I submit to you that it's your responsibility to protect those workers from those abuses.
Mr Christopherson: I appreciate the presentation. It's good to see you again and I congratulate you on the job you're doing representing the workers in this area.
I want to ask for your gut feel about the process that's being entered into. We hear the government continually asking a lot of presenters from the labour movement: "Are you comfortable?" "Are you prepared to recommend?" "Will you participate in these discussions over the next year?" The labour movement, of course, will make its own decisions about that.
I would like to ask your feeling, given the fact of the track record of this government, about what the chances are of any real improvements when you look at Bill 7 and what that did -- legalizing scabs again and the rights that it took away -- which it didn't run on. They had no mandate. They didn't have one day of hearings when they passed that bill, not one day. Their intent to gut the WCB; the fact that they're bringing in workfare; the fact that they're going after health and safety protection; and the fact that now with Bill 49 no consultation, trying to claim that it's housekeeping, didn't want to have any public hearings -- all of these things -- what is your feeling heading into a year-long discussion with this government about the possibility of any real gains for workers, particularly the most vulnerable?
Mr Renaud: I would like to set aside partisan politics, because this legislation is so key. I've always felt that deeply personally. It's an opportunity for legislators to really help people in a real and a quick fashion all across our province. That's why we gave some examples. I don't know why we -- all three parties -- haven't taken a harder look at things like increasing maternity leave. We have so many societal problems around child rearing and the trouble that our children are getting into as they get into their teens, parents not being able to be at home to raise their children, and day care. It would help a whole host of things.
We're not jumping ahead of other industrialized -- again, we can look at the European countries. I'm just saying that if we can come up to par, it makes our province a better place to live and it does create employment. Aside from being a good thing for our families, it creates some employment. In a lot of ways it's a throwback to the old days. We live in a day where people aren't having as many children. It may help with those things.
The minimum wage: We've had a minimum wage in our province for a long time and I've never been able to understand that it's well below the poverty level for people in our province. It's a myth to think that it's all young students any more doing the minimum-wage jobs. Very often it's two parents, both having minimum-wage jobs, trying to struggle to raise their kids. Their kids don't have proper nutrition; they can't learn in school. There's a real spiralling effect. And the employers, you have to --
The Vice-Chair: Sorry; I'm going to cut you off, Mr Renaud. We're reserved to about a minute per person here and we're going a little bit beyond that.
Mr Renaud: I'm sorry. One final comment, Madam Chair, on that line of thought: Three or four years ago, as I taught in one of our union programs, one the stats from StatsCan was that McDonald's at the time employed 29,000 employees in Canada. Those are all minimum-wage jobs. When you go in now and when you see people working for minimum wage, it's adults; it's not all young people in school any more.
Mr Tascona: I'd like to thank you for your presentation. It's very well-thought-out, but there's some areas I want to touch base with you on. The techniques of collection have been discussed. It's been grappled with by a number of levels of government. For example, in 1993 the NDP got rid of the collections unit when it was dealing with enforcement and basically gave it to the employment standards officers to enforce. Presently we collect 25 cents on the dollar and the system just isn't working. I share your thoughts with respect to the Bankruptcy Act. Certainly, before an employer should be able to go bankrupt they should satisfy their obligations to their workers, but we don't have control over that, although I know the minister is very attuned to it. The federal government should be acting in that area and it has done nothing.
One area I want to talk about is that the other day we were discussing the enforcement measures. Mr Duncan, the member from Windsor here, was commenting on it, and I'll quote him from Hansard on Wednesday, in Waterloo:
"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?"
Would you agree with that approach in terms of more isn't better in terms of resources being put into the Employment Standards Act?
Mr Renaud: Without getting into partisan politics, we need to empower the officers of employment standards. It's almost, frankly, a joke now. Sometimes they're flatly refused -- an officer of the employment standards or other various ministries, human rights etc -- trying to gain access to workplace. We have better access, because we simply walk in, than an officer of the ministry. They get no respect and they need to be empowered. In our brief, we said in clear cases -- there are always going to be some that will need to be sorted out, and there are many where employers clearly say: "I've got your money and I'm going to hold on to it as long as I can, because I know the system. I know that I'm not going to be dragged into court. I know my reputation is not going to be damaged. I know I'm not going to be fined, or if I am, I might be fined less than I have of your money."
Mr Tascona: Let me ask you this --
The Vice-Chair: No. Excuse me, Mr Tascona, we're now well over time. We were reserved to a minute per caucus and we got to be two and three, so I don't think we should stretch it any further.
Thank you very much for coming and making your concerns known to the committee.
Mr LaPosta: If the minister is willing, Mr Tascona, we'll be happy to discuss it with her any time.
WINDSOR AND DISTRICT CHAMBER OF COMMERCE
The Vice-Chair: I would ask that the representative from the Windsor and District Chamber of Commerce come forward, please. Good afternoon, sir.
Mr John St Aubin: My name is John St Aubin. I'm chair-elect of the Windsor and District Chamber of Commerce. I'm sure this has been a very long day for you and I will be as brief as possible.
The Windsor and District Chamber of Commerce represents more than 1,000 businesses in our community. It represents large businesses, multinational businesses, small local proprietorships, professional people. Our goal is to establish effective communications between business, labour and government in fostering a better economic climate throughout our community. Our expansive and diverse membership and our grass-roots democratic model of governance solidify the position of the Windsor and District Chamber of Commerce as the voice of business for our community.
The Windsor and District Chamber of Commerce supports Bill 49 as the first step in the government's two-stage reform of the Employment Standards Act. As legislation has been added to the act over the years, the act has become outdated, cumbersome and distinctly non-user-friendly. Specifically, when any act becomes loaded with exemptions, it's a sure sign of being outdated. This makes it increasingly difficult for any government to deploy its resources efficiently and effectively. We enthusiastically await the second phase of reform and support the stated goals of promoting greater self-reliance and flexibility among workplace parties.
The government has stated that Bill 49 has three goals: to allow the Minister of Labour to administer the Employment Standards Act more resource-efficiently, to promote self-reliance and flexibility among workplace parties, and to simplify and improve some of the act's language. The chamber not only supports these goals but believes that Bill 49 meets them. In doing so, the bill continues to protect minimum employment standards for workers. Any claims that Bill 49 lowers minimum standards are not justifiable from our point of view. On the contrary, for example, one section of the bill dealing with the accrual of rights during pregnancy and parental leave is an enhancement to the generally accepted interpretation of the current right.
The chamber is very supportive of those provisions of Bill 49 which eliminate duplicate claims, limit recovery of moneys to a six-month period and extend the appeal process.
Employers are increasingly and unfairly faced with defending claims of the same nature or for the same remedy in more than one forum. As an aside, efficiency from the employer's point of view, and yes, we certainly want our workers protected, but the efficiency side must take place. The problem is not restricted to employment standards complaints. It also spans a variety of employment-related statutes. However, dealing strictly with the Employment Standards Act, non-union employees are able to have employment standards disputes dealt with by the courts in wrongful dismissal actions, as well as by the employment standards branch. Unionized employees are able to file grievances under a collective agreement to be dealt with in the grievance and arbitration process and may also file complaints with the employment standards branch. Employers are often left vulnerable to defending the same dispute in multiple forums and must bear the associated costs.
The public purse is often also unfairly burdened. In the case of multiple claims in the courts and to the employment standards branch, duplicate public resources are spent. These resources would be more efficiently utilized in a single forum. Given these facts, the chamber supports provisions of Bill 49 which would eliminate the ability to pursue duplicate claims in multiple forums.
The chamber also is very supportive of the proposed provision of Bill 49 which would limit the entitlement to recover money under the act to six months instead of the current two years. The proposed provision places, quite properly, an onus on employees to make complaints in a timely manner. Delays in making complaints often create an unfairness to the employer in providing a defence. In addition, the older the complaint, the longer and more difficult will be the investigation with its subsequent greater costs. This also moves Ontario in line with Alberta, British Columbia, Manitoba, Newfoundland and Nova Scotia, who have the six-month limitation period.
As an aside, within the workplace, it should be noted that time is busy and the longer a claim is left, it certainly becomes much more difficult for all three parties to discuss. It should be discussed on a very quick basis from the employer's perspective. The three parties I'm referring to, clearly, are the employee, the employer and the union, if there is a union in place.
The chamber is also very supportive of the proposed change in the increased time limit to appeal employment standards officer orders from 15 to 45 days. The increased appeal period provides a more reasonable time in which to: (1) allow both parties to negotiate a settlement in lieu of an appeal; (2) more fully consider the merits of the filing of the appeal; and (3) make the necessary payment of the amount of the order and administration cost to the director in order to apply for the appeal. In many cases, the current 15-day period is simply not enough.
As mentioned previously, the Windsor and District Chamber of Commerce supports Bill 49. We do have some points, mainly dealing with enforcement through the grievance and arbitration procedure, we urge to be clarified, and these are in our mind quite important:
(1) Under the act, employment standards officers have the power to investigate complaints, require production of documents for inspection and make inquiries of any person relevant to the inspection. It is unclear from the proposed amendments whether arbitrators are to be given these powers as well. The chamber believes that the arbitrator should not be taking on this role, as any arbitration hearing will take place only after the various steps of the grievance procedure have been concluded. The grievance procedure ought to take the place of the investigation.
(2) The act is unclear about whether an arbitration decision may be appealed or if it is final and binding and therefore may only be judicially reviewed. The proposed provisions state that an arbitrator may make any order of an employment standards officer. Under the act, officers' orders can be appealed. It could therefore be argued logically that an arbitrator's decision could be appealed.
(3) All collective agreements set out time lines in which grievances must be filed and processed. With the many and varied collective agreements in place, it can be expected that some, and probably many, time lines will differ from those of the act -- a very important point. The chamber believes that collective agreement time lines should prevail in order to ensure consistency.
I know in my workplace, we have numerous collective agreements, and unfortunately, each collective agreement has different time lines.
(4) Finally, I would like to repeat that the chamber supports the goal of promoting self-reliance and flexibility. As such, the chamber strongly believes that allowing for a greater right or benefit as a package is a fundamentally important component of allowing workplace parties this flexibility to negotiate agreements which, if viewed separately, would not be in compliance with the act. Although the proposed amendments of Bill 49 regarding the ability to assess a greater right of benefit as a package will help achieve such a goal, we believe greater clarify is required in this area. We look forward to discussions in this area during phase 2 of the Employment Standards Act reform.
In conclusion, the chamber supports the two-stage process the government is using to reform the Employment Standards Act and supports Bill 49 as the first step in that process. We would, however, like to see more clarity brought to those points we have raised.
One other point: The chamber itself certainly is anxious at any time to dialogue, be it on a committee base such as this, or on other points of consultation of upcoming legislation, and the timeliness of that dialogue must be paramount in the eyes of the government. We certainly believe that your ability to properly hear our comments is a function of time, and time for you to review and analyse what may have been said in the hearings across the province. Thank you.
The Vice-Chair: We have about a minute and a half per caucus starting with Mr Christopherson.
Mr Christopherson: Thank you for your presentation. I think it's interesting to note that of all the presenters we've heard today, I think this is only the second one that does support this.
I want to address the question of your comment in the first paragraph on page 2 where you that "Any claims that Bill 49 lowers minimum standards are not justifiable." Obviously that is refuted by every presenter that has come in, and in some way represents or works with workers in the province, whether union or otherwise. I have some difficulty with that claim, when I think there has been absolute, clear, abundant proof that it is going to impact workers, particularly the most vulnerable, that standards are being lowered, that the maximum cap, regardless of whether there's a good rationale for it, is still a lowering of a right that a worker had before. The same with the minimum thresholds. If they want to seek those amounts elsewhere, they have to pay the court costs, they have to pay the legal fees. They didn't have to pay that before. They're out money. They lose something. The fact that they can't claim for two years of back wages and can only claim for six months is a loss of a benefit. I have a great deal of difficulty understanding how you can stand by a statement that says that any claims that Bill 49 lowers minimum standards are not justifiable, when I think the exact opposite has been proven conclusively in every community we've been in.
Mr St Aubin: Minimum standards are just that. The consensus of our membership -- and again, we represent over 1,000 businesses -- is that they will continue to treat workers fairly, and that's our membership talking. I'm glad I came early today. I heard the examples of the various union groups that spoke before me, and I respect those examples that were given. But our membership is telling us that in fact the standards act as amended will be a betterment from their point of view and that the minimum standards that they will administer, noting the point of flexibility, will in fact, in their minds, allow a betterment to the workers. I can only quote you.
Mr Christopherson: Fair enough, and with great respect, I can't comment on what's going on in their minds. But the proof is --
The Vice-Chair: Mr Christopherson, I'm sorry, the time has expired.
Mr Christopherson: -- the minimum standards are being lowered.
The Vice-Chair: For the government, Mr Shea, please.
Mr Shea: Let me begin by asking a question concerning the way the system currently operates now. A grievance can be launched in two different ways at the same time. It can go through the Employment Standards Act. It can also go through the courts simultaneously. From your membership, is that creating difficulties for them? Is that creating problems?
Mr St Aubin: The consensus of our membership is that yes, it affords variance of avenues and as crisp a procedure as can be put forward would be a betterment from the employer's perspective.
Mr Shea: Given the fact that there are very, very few Employment Standards Act claims that are received at the ministry from unionized workplaces, would it be the sense of your membership that the current grievance procedures in the collective agreements already seem to be working and are dealing with most of the complaints?
Mr St Aubin: Not only the grievance procedure, but many employers are advocating a pre-settlement discussion prior to formal grievance, and if at all possible, that vehicle or the grievance procedure would suffice to an agreeable settlement.
Mr Shea: A concern raised by some --
The Vice-Chair: Excuse me, I'm sorry. Unfortunately, we're running short because presentations are eating up more of the 15 I think than we're acknowledging, but I'm sorry about that.
Mrs Pupatello: Thanks for coming to speak with us today. I wanted to ask you if you support the $10,000 cap on the claims, that portion that is being presented in Bill 49. Do you support that measure that's being introduced?
Mr St Aubin: I'm not sure if I can comment on that honestly.
Mrs Pupatello: You're supportive of the bill, so I'm assuming you're supportive of that portion of it.
Mr St Aubin: Yes.
Mrs Pupatello: There are several of your member companies in the chamber who act as subtrades, for example, or they are subcontracted to do work. Let's assume that companies go through a bidding process to access a job and let's say they bid on a job that is going to cost $20,000 to the company. The subcontracted firm goes ahead and does the work that is valued at $20,000 because they won the bid. After they go forward and do the work, the company that's contracted them chooses, for whatever reason -- they can't, they go bankrupt, whatever. They can't pay. It is now law that they're not owed $20,000 but they can give them $5,000. It's not all of it but it is $5,000. As a representative of your chamber businesses, do you believe that your chamber member ought to be given a 75%, perhaps, as an example, decrease in the value of the work that the company did for another firm? In concept, do you believe that?
Mr St Aubin: That is an interesting example.
Mrs Pupatello: Do you believe in that principle, that a company which does work valued at, say, $20,000 could in effect be paid $5,000 and that's okay? Do you believe in that?
Mr St Aubin: Rather than answer that question, particularly this morning I had almost the exact same example before me in my place of business. What I'm finding is that there's a tremendous flexibility and there's a tremendous point of negotiation between a general and a subtrade. While I know what you're driving at within your example, I don't see it happening in the real marketplace.
Mrs Pupatello: In fairness, you're a representative of the chamber. I think you have to tell us your opinion on matters that in fact do pertain and are very relevant to the bill that's being presented.
The Vice-Chair: I'm sorry, but the time has expired. Thank you very much for coming forward today and presenting your comments.
WINDSOR BLACK COALITION
The Vice-Chair: I would ask that the representatives from the Windsor Black Coalition come forward, please. Good afternoon and welcome to our proceedings here in Windsor. I would ask for those present that you introduce yourselves, not only for the sake of Hansard but for those present to know who you are and who you represent.
Ms Daphne Clarke: My name is Daphne Clarke, representing the Windsor Urban Alliance, as the president, Mr Clayton Talbert was unable to attend. However, the presentation was drafted by Mr Talbert.
Ms Martha Elliott: I'm Martha Elliott. I'm here representing Windsor Black Coalition on behalf of Mr Clayton Talbert.
Ms Clarke: I have come here to express great concerns regarding what I can only construe as a direct attack on the safety net put in place by the will of the people to protect their basic rights to a safe and healthy work environment, the opportunity to negotiate job descriptions, rates of pay, vacation periods, sick leave and other matters that are significantly important to all people working in Ontario today.
The changes that have been proposed in Bill 49 for the Employment Standards Improvement Act are questionable regarding their real, as opposed to their proposed, intent. There are several areas that will greatly affect the average worker in more ways than one readily apparent at a glance.
The minister, it would appear, decided to further erode the already inadequate protections which were placed in the Employment Standards Act to protect the worker who has the least protection.
Workers and advocates of workers have with great difficulty been able to pressure government administrations over the years to develop and place certain protections in the Employment Standards Act that have had a direct impact on the loss of life and limb in the sweatshops that exist in our country; also to eliminate child labour and put in place guidelines and standards.
They presented employers and employees an area of minimum standards from which they could negotiate the terms of agreement to develop a mutually agreed upon working contract.
This proposed two-phase project will place individuals who have historically been vulnerable to the whims of employers with regard to the terms of employment and other conditions of the workplace in the precarious position of having to seek expensive legal counsel and assistance. There will be no help coming from legal aid for they will not touch employment problems.
The opportunity for employers to present to employees a safe work environment and ensure that employees would be able to feel secure in that they would have some type of job security has existed since the pre-industrial era.
It is well documented that without intervention there never would have been positive change in the policies of employers to improve working conditions or look at health and safety issues sincerely. Employees were expendable. If someone got sick or was injured they were simply replaced. To believe that employers are now prepared to negotiate sensitive areas with employees in a fair and just manner without a clear and concise set of rules in place to protect workers is absurd.
Furthermore, there must be a body in place prepared to enforce these rules and take to task the employer who for whatever reason breaches them. This body should be accountable to the working people. For this to be the case, the government of Ontario is the only feasible route. To consider a private company which may not be concerned about anything other than the bottom line on the balance sheet, certainly not the interests of the employee, can only lead to abuse of the system.
The government has the responsibility to tell working persons the truth about the underlying reasons behind revisiting the Employment Standards Act. I believe that they are attempting to circumvent that responsibility.
In the press release accompanying Bill 49 the labour minister stated: "These changes represent the first part of a two-phase" reform "of the act to cut through years of accumulated red tape, encourage the workplace parties to be more self-reliant in resolving their disputes and make the act more relevant to...the needs of today's workplace." They will also "focus...attention on helping the most vulnerable workers."
The reality is that the changes proposed in Bill 49 will make life a living hell for the most vulnerable workers in Ontario. The workers who decide that they will cite employers for infractions of the Employment Standards Act will have less time to develop their complaints and get them processed. This will make it much more difficult for workers whose employers have violated the Employment Standards Act to obtain the money they are owed.
The changes in the act are deemed to be minor by the minister. In reality, the changes will make an already impractical system of holding employers accountable for their actions that much more difficult for the employee to accomplish in the time allotted.
An employee who has had the unfortunate experience of having to take an employer before the employment practices branch fully realizes the weakness of this body to bring about a positive resolution to the case presented before it. This is well understood by the largest percentage of employees in Ontario as well as by the lion's share of employers. This results in many infractions not even being addressed at all. Many employees have no faith in the system or the protection the system offers them, should they file a complaint.
Employers constantly take advantage of this phenomenon. As time passes, it is becoming increasingly prevalent, and employers are more aggressive in infringing on the rights of employees and are not very concerned about being held accountable. Even if an employee is fortunate enough to win, collecting the award is certainly not an easy task. More often than not the employer will default on the money owed or in many cases will go bankrupt to avoid paying the settlement.
With the measures that exist being inadequate to compel employers to address problematic areas in their workplace, it is certain that any modification of the standards or compulsory measures which does not add more teeth to the Employment Standards Act will certainly result in a complete breakdown of the standard of living that the people of this province have come to consider as normal.
Statistics show that in 1994-95, 29% of assessments made against employers were not collected. This translates into the following: Of the $64.3 million assessed, a whopping 74% was not collected. In 1994-95, out of 8,298 employees who were owed money under the Employment Standards Act by their employers, money was collected by the ministry for only 3,552 employees; 56% of employees owed money by their employers did not receive any money from them.
A program that was introduced in 1991, the employee wage protection program, was designed to ensure the employees who were owed money by bankrupt employers might collect some of the money from the fund: up to $5,000 maximum, including termination and severance pay, per claim. The government, however, reduced the amount an employee can claim from the fund to a maximum of $2,000, excluding termination and severance pay.
The employee wage protection program is not the most efficient body when it comes to collecting money from employers who owe. The EWPP is funded through the province's consolidated revenue fund and little effort is made to recoup money paid out of the public fund by employers who refuse to pay or have claimed bankruptcy.
We also must question the effectiveness of the employment standards legislation when we take into consideration how effective is the low cost to any violations of the act. Furthermore, the number of inspectors to monitor and investigate infractions is very low. In 1980-81 there were 1,304 routine investigations. Comparably, there were 21 in 1994-95.
All workers in Ontario are going to suffer greatly if in the final analysis Bill 49 is successful in getting passed. Workers have felt the grip of tightening economic pressure as the workplace has been stripped down to the bare essentials in production and management. Engineering has been eliminated from the factory floor.
The reality is that the Employment Standards Act at present is weak and easily abused by employers in an ongoing fashion. When the government talks about abolishing the red tape that slows the process, they must be saying, "We are going to remove the final vestiges of protection from the act so that employers can do almost anything they want."
The changes included in Bill 49 which the minister suggests will streamline the process basically shift the responsibility for enforcing basic labour standards on to individual employees and place the responsibility for enforcement into the hands of the private collection agencies unaccountable to the employees who seek their assistance.
The money the proposed changes in Bill 49 claim to be saving will be saved by moving costs on to the backs of the most vulnerable workers. The first phase of reform to the Employment Standards Act is designed to soften up Ontario workers for the blow they're about to receive when the second phase comes into being. The second phase will be the end of the already inadequate and insufficient standards provided by the law.
Looking at the development of the employment relationship historically, it is obvious that the relationship has been one where the employer has always had the upper hand. This relationship has not changed drastically over the years. It has not become a clear-cut, well-defined matter to butt heads with an employer that refuses to give you a fair shake in the workplace and get satisfactory results. The employer, knowing that your efforts will end up being frustrating and next to futile in resolving the matter, will usually tell you to do whatever you think you have to do and business will go on as usual.
Employers, having the upper hand economically, were able to offer jobs in their workplaces under conditions that were atrocious, simply telling individuals if they didn't like the way things were, they could go and find another job. Having this type of leverage, employers could maintain their environment where they control the hours worked, the pay schedule and working conditions. Freedom of contract, uncontrolled, did not translate into a situation where the unemployment rate was kept low.
In the 1930s unemployment was extremely high despite the fact that there was no minimum wage or controlled hours of work. Even today there is a huge debate regarding the position that increases in the minimum wage lead to significant job loss.
The Employment Standards Act was not effectively enforced. The use of audits to detect violations is rare. To compound this already intolerable set of circumstances, if an employee does not complain of a violation, it has become fairly common practice that an employer will pay the wages owing and a penalty, or what is called in Bill 49 an administrative charge, of the greater of 10% of wages owing or $100.
Prosecutions of employers who violate the Employment Standards Act, as I said earlier, are rare and employers take advantage of this. The indicator of this is the fact that over 30% of the employers against whom assessments were ordered simply refused to pay. This creates a climate of arrogance on the part of the employers who have an inclination to take measures to build up the bottom line through whatever measures necessary. Employers realize that there is little chance of being detected, and even if they are, the cost associated with being detected is minimal.
The challenge for the author of Bill 49 would be to ensure that there's a strong set of disincentives for employers to violate the Employment Standards Act. Where does the employer who attempts to compete in the market in a fair and just manner stand a chance against employers who are prepared to violate the law for profit?
It is obvious who the most vulnerable people are: the employees, and some are more vulnerable than others. Bill 49 will force employees out of the employment standards mechanism and compel them to go into civil courts; that is if they can afford the legal costs involved. It is a much lengthier, more expensive route to take. For many it is more expedient to take the easier way out, as most do, and walk away from the whole matter, accepting the loss as part of doing what you can to keep the job.
The government's position --
The Vice-Chair: Excuse me for a moment, please. I'm not able to find you any more in the text you are reading from. It moved around there for a couple of pages. We are at 17 1/2 minutes now, which is already two and a half minutes over the allotted time. I would be open to maybe wrapping it up, say, within a minute, because I'm not sure where you are any more.
If you want to draw some type of summary statement over the course of a minute, I think that would be acceptable to the committee members.
Ms Clarke: Okay. I'll go to the last page for you. Other provinces such as British Columbia, and the federal jurisdiction, allow employers and unions are to negotiate their own standards on a range of items. Each negotiated standard must be at least as good as that provided in the legislation. Bill 49 has a new slant. Under it the standards negotiated with a union as a package must be at least as good as the package of standards provided in the Employment Standards Act.
I suggest that the recommendations on pages 22, 23 and 24 be submitted to this august body for consideration and implementation. Those are the pages from the thing that Mr Talbert wants to have included.
I thank you for giving us the opportunity to make this presentation to you.
The Vice-Chair: I take the liberty to ask what you just held up there, where you were referring to pages 22, 23 and 24. Is that something you presented to the committee as an appendix to your submission?
Ms Clarke: I don't think you've got that.
The Vice-Chair: I can't quite tell what that is; I'm sorry. Could you read the title of the bill? It is not that long.
Ms Clarke: It says: "The Real Story: An Analysis of the Impact of Bill 49, the Employment Standards Improvement Act, Upon Unrecognized Workers.
"Professor Judy Fudge, Osgoode Hall Law School, 1996."
I have an extra copy.
The Vice-Chair: We have that as a previous submission. If you don't mind, for the sake of the record we'll refer to it as an appendix to your submission.
Ms Clarke: Exactly.
The Vice-Chair: The Fudge report, or submission.
Thank you very much for coming today. Unfortunately now we've well expired the time in terms of potential for questions. However, we will certainly keep your thoughts in mind as we proceed through the hearing process.
There being no other presentations scheduled for today, the hearings are now closed.
The committee adjourned at 1620.