Monday 9 September 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
Belleville and District Chamber of Commerce
Mr Greg Chambers
Kingston and District Labour Council
Mr Charlie Stock
Canadian Auto Workers, Local 524
Mr Ivan Mills
Trenton and District Chamber of Commerce
Mr Paul Tripp
Ms Joan Kingston
Northumberland Community Coalition
Mr Ben Burd
Peterborough and District Labour Council
Mr Thomas Veitch
Peterborough Community Legal Centre
Ms Melinda Rees
Northumberland Community Legal Centre
Ms Lois Cromarty
Quinte Labour Council
Ms Barb Dolan
B.W. Desjardins Books
Mr Craig Desjardins
OPSEU Kingston Area Council
Mr Gavin Anderson
Mr Doug Whitley
Communications, Energy and Paperworkers Union of Canada, Local 534
Ms Linda MacKenzie-Nicholas
Building A Stronger Involved Community
Mr Rob Hutchison
Sisters of Providence of St Vincent de Paul
Kingston and District CUPE Council
Mr John Platt
Canadian Union of Public Employees, Local 131, Local 4200
Ms Marie Boyd
Mr Bert Rollings
Lindsay and District Labour Council
Mr Rick Denyer
Mr David St Jean
Hastings and Prince Edward Legal Services
Mr David Little
Service Employees International Union, Local 183
Ms Laura McWaters
Kingston Community Legal Clinic
Mr John Ross Done
Mr Alan Whyte
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 JimBrown (Scarborough West / -Ouest PC) for Mr Maves
Mr JohnO'Toole (Durham East / -Est PC) for Mr Carroll
Mr E.J. DouglasRollins (Quinte PC) for Mr Murdoch
Clerk / Greffièr: Mr Douglas Arnott
Staff / Personnel: Mr Avrum Fenson, research officer, Legislative Research Service
The committee met at 1033 in the Greek Community Hall, Belleville.
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 Vice-Chair (Mrs Barbara Fisher): Good morning, everybody, and welcome to our hearings here in Belleville, in the riding of Quinte, where we're hosted this morning. I welcome everybody who has come as participants in delegations to present as well as those who have come to listen to our hearing process.
To outline what will happen here, we will have sessions where those who come forward will have a 15-minute presentation period, which will include questions and answers. The time for questions and answers will be split evenly between the parties after the presentation has been made.
With the concurrence of the members I would also like to offer Doug Rollins a few moments to bring greetings.
Mr E.J. Douglas Rollins (Quinte): On behalf of the Quinte riding I would like to welcome this committee here. I believe it's the first time in the history, to my knowledge, of the Quinte riding that we've ever had a standing committee heard here, in Belleville, and for that I would like to say thanks to the Vice-Chair and the Chairman who arranged to have it here. I would like to think it's one more opportunity, as people who live in eastern Ontario away from the big smoke and the big cities, to be heard locally. I express that and hope that you people find Quinte riding to your liking and that we will see another time come back.
Mr Joseph N. Tascona (Simcoe Centre): On a point of order, Madam Chair: Since there are no representatives of the NDP here today for these hearings, what would be the order of proceedings?
The Vice-Chair: We will split the time evenly until and if somebody shows up from the third party.
BELLEVILLE AND DISTRICT CHAMBER OF COMMERCE
The Vice-Chair: I invite the representatives from the Belleville and District Chamber of Commerce to come forward, please. Good morning. For the sake of Hansard and those present I ask you to please introduce yourselves.
Mr Greg Chambers: My name is Greg Chambers. I serve as first vice-president of the Belleville and District Chamber of Commerce and as chair of its government affairs committee. With me is Bill King, a member of the government affairs committee and a past president of the chamber of commerce. The Belleville and District Chamber of Commerce has been the representative voice of business in Belleville since 1864. Currently membership numbers over 500 companies in all categories -- large and small -- including manufacturing, retail, professional, financial and service industries.
It is our understanding that Bill 49 has three goals: (1) to allow the Ministry of Labour to use its resources in a more efficient and effective manner when administering the Employment Standards Act; (2) to simplify and improve some of the language in the act, making it easier to understand and use; and (3) to promote greater self-reliance and flexibility among the workplace parties. Further, we understand that Bill 49 represents the first of two phases intended to modernize the Employment Standards Act. We view the first phase as process-oriented and assume that the next phase will address the standards themselves. In our opinion, Bill 49 will deliver a solid first step in the intended direction.
There can be no doubt that the act is in need of reform. Since originally enacted, the workplace and its surrounding economic climate have changed dramatically. Over the years numerous piecemeal exemptions and modifications have been made, such that the totality of the act has become extremely difficult for legal minds to comprehend, let alone workers and employers. This situation was highlighted in the 1987 report of the Ontario Task Force on Hours of Work and Overtime. In the years following that report we have witnessed dramatic new trends in information technology and global competition which have significantly changed how, when and where people work. A large and growing number of individuals now work from their homes, either as employees or independent contractors. Reward systems have been increasingly tied to results.
The environment around the workplace has also been transformed by major new trends. In recent years the problems of mushrooming spending of governments at all levels and overloaded legal systems are finally starting to be addressed in a serious manner. The free trade agreement and the ensuing steps towards an open global economy have forced businesses to become more competitive not only in pricing but also in quantity and innovation.
Our laws and regulations must change with the times. We must make it more attractive for employers to have employees. In the face of onerous payroll taxes and an administrative burden inflicted by various governments on those with employees, it is no wonder that employers aggressively minimize the number of people on their payrolls.
Getting to the specifics of Bill 49, we will comment on eight aspects, together with rationale, that support our positive view of the proposed legislation.
(1) Non-union employees must choose between the courts or the Ministry of Labour in pursuing claims. This will eliminate the present duplication of costs and efforts imposed on employers and the government which is funding both systems. It will also reduce the load on employment standards officers and the judicial system. We understand that all claimants will be given adequate notice of the need for this choice and how to proceed under the new rules.
(2) Where there is a collective agreement, complaints must be dealt with under available grievance procedures and not through the Ministry of Labour. Again the duplication of costs and efforts will be eliminated and the load on employment standards officers reduced. Since there may be a concern regarding frivolous trips to arbitration, we would suggest that consideration be given to awarding costs at the end of the arbitration process.
(3) Employment standards officers will be empowered to settle claims up to $10,000 and may do so before a finding that wages are owing. It is our understand that the vast majority of past complaints has fallen within this range. Since the larger and more time-consuming claims will go through the courts, the number of claims settled by each employment standards officer should increase.
(4) Claims must be filed within six months and orders made within 24 months of a claim being filed. The current time limit of two years for filing claims can be problematic, given that the ministry will have up to 24 months to issue an order after a claim is filed. Memories fade and it becomes more difficult to gather facts and witnesses as time passes. Given the number of business failures in today's economy, it is in both the employer's and employee's best interests to have the matter resolved quickly. We support the move to put guidelines in place which encourage quick resolution rather than have the parties drag out the process and thus increase costs.
(5) Simplified language: It makes sense that both employers and employees must be able to understand the rules if they're expected to abide by them.
(6) Appeal period extended from 15 to 45 days: Fifteen days is not enough time to obtain independent legal advice and carefully consider the merits of an appeal. Given more time to deliberate, there should be fewer appeals.
(7) Use of private collection agencies: It is our understanding that only one third of claim awards is actually collected and that in recent years the employment standards officers were responsible for this function. Collection work requires specialized skills and much time and effort for follow-up. For the sake of the employees, it seems very worthwhile to turn this responsibility over to professionals with a strong financial incentive to deliver better results. Of course, this would also give employment standards officers more time to address new and pending claims.
(8) Pregnancy and parental leave included in the calculation of length of employment and service: This clarification of the Employment Standards Act is worthwhile and clearly a benefit to employees.
In summary, we support Bill 49 because it will streamline processes that will benefit both employers and employees. We don't agree with those who suggest that minimum standards are being reduced by this bill. Looking forward to the second phase of this process, we thank you for your time and attention.
Mr Jean-Marc Lalonde (Prescott and Russell): Thank you for your presentation. It is my first time in Belleville, even though I stopped over at the motel near the 401 before. The directions that I got from one of your gentlemen -- after stopping in many places this morning to find this place, the guy from the auto body shop could be hired by the town as a tour guide because he really knew where to send me.
I have a few questions. What will this bill do for your business community?
Mr Chambers: As I stated in the first few points, the duplication of costs and efforts or the potential duplication for employers will be eliminated. For people seeking to have claims resolved, hopefully the claim settlement and collection rate will improve. Basically, the eight rationales that I've outlined should all benefit our community.
Mr Lalonde: If we look at the employer's side, definitely it would be a booster for the employer. Do you think this bill will help bring in new industries or businesses to the community?
Mr Chambers: I don't see it directly affecting one community or another in Ontario. It's an Ontario-wide bill so I'm not sure it would change it for Belleville, but I think it would make it more attractive for employers to have more employees in our community.
Mr Lalonde: The dark part of the bill, I would say, is that I wonder what's going to happen with the quality of family life, the fact that there will be no limit, if agreement is reached between the employer and the employees, on the number of hours that could be worked by the employees. In the past we had a maximum of 44 hours, and today there will be no limit. The danger is that the quality of life for the family could be affected. We know that people like to get more and more money. The father and the mother are at work very often and they're trying to work extra hours. The fact that they will not be working overtime, employers might ask the employees to work more hours. Will the quality of life be affected?
Mr Chambers: I'm not aware of that situation about unlimited hours. I'm not sure where that comes into play in this bill.
Mr Lalonde: It does.
Mr Chambers: I haven't seen that.
Mr Rollins: Gentlemen, thanks a lot for making a presentation on behalf of the chamber today. I notice that one of the things you mentioned in here is a lot of home-regulated businesses. Is there any effort by the chamber to be in touch with those businesses that run out of their homes, not the big, corporate giants like Sears and Northern Telecom and a few of those but the smaller individuals? Is there some effort to be connected with those people to see what the chamber and/or this bill can help out with?
Mr Chambers: I'm one of those people. We aggressively seek out members, and of course the larger groups have been members for some time. We have 530 members now and I would bet that 450 or more are in the smaller category and probably 100 or more are home-based. There is a lot of growth in terms of potential new members in home-based business so we have people who aggressively seek those people as members.
Mr Rollins: Has your membership that you represent stayed pretty constant for these small businesses in the community?
Mr Chambers: We've actually managed an increase in the past year and I think that's because the number of businesses is increasing. They're not large but they are more in number, and hopefully some of those will succeed and grow into medium- or large-sized companies at some time. We really think it's great that there are all of these startups, because the more people who are trying to accomplish something, the more successes there are going to be.
Mr Ted Chudleigh (Halton North): Thank you very much, Mr Chambers, for your presentation today. You mention that we're entering into changing times, working at home and working in different environments. I would point out that this act does not in any way reduce the standards of the number of hours that you have to work or that you might work. There are opportunities to agree with your employer as to what those hours might be, but most of that has been put over until next spring, when the entire act will be reviewed.
The point of education of what the standards are and how it affects -- in one of my previous lives I ran a trade association. If I put on a seminar to teach employee standards to various companies, I might get two or three companies in the room, but if I put on a seminar bringing new equipment into the environment, I could get probably 75 to 100 companies in the room, particularly if that machinery was to reduce labour. You mentioned that this bill may make it more palatable for small companies and small businesses in particular to hire new employees. Could you elaborate on that point a bit?
Mr Chambers: In general, in small businesses the biggest complaint I hear all the time is the administrative burden and having to know so many complicated rules --
Mr Chudleigh: Bureaucracy.
Mr Chambers: -- and the cost of payroll taxes and government in general. So whenever you reduce that burden, you're making it more attractive.
There is a trend I can see towards subcontracting or part-timers or just hiring independent service bureaus because you don't get into all of that bureaucracy and you don't need to know all the labour rules and so on.
The Vice-Chair: Thank you very much for your presentation this morning.
KINGSTON AND DISTRICT LABOUR COUNCIL
The Vice-Chair: I would ask that representatives from the Kingston and District Labour Council come forward, please. Good morning, sir.
Mr Charlie Stock: On behalf of the Kingston and District Labour Council, representing approximately 8,000 members, I thank you for the opportunity to express our views in regard to Bill 49. We wish to inform you that our organization is in full support of the Ontario Federation of Labour's brief which was presented at an earlier hearing.
We're also disappointed that the committee chose not to come to the home of Sir John A. MacDonald, 50 miles down the road. I'd have to suggest it's probably the first time a committee has come this close to our area and not stopped in our city.
To suggest Bill 49, as the labour minister states, "facilitating administration and enforcement by reducing ambiguity, simplifying definitions and streamlining procedures" as housekeeping issues clearly makes a mockery of changing a system which indeed has served both management and workers fairly well.
We're pleased that the minister has removed the issue of flexibility in the bill. If that were to happen, more friction would certainly be created. Collective bargaining is tough enough without putting more roadblocks into the process.
We certainly would like the whole bill to be withdrawn for some very simple reasons. To assume that employers will take into consideration the interests of employees ahead of their own or those of business is akin to rearranging the deck chairs on the Titanic. It would be a real tragedy.
There are some -- not all -- employers who are blatantly abusing their workers now because they know the enforcement of the law has been removed to a large degree. The idea of lessening rights for workers in Ontario will quickly send a message to bad employers to exploit their employees. A shining example of this is the Screaming Tale located here in Belleville -- an employer with the audacity to have staff work for tips only.
The Kingston and District Labour Council receives telephone calls on a regular basis from people who've been dismissed or treated in an unfair manner by their employers. I commend the Ontario Federation of Labour for creating the bad-boss hotline, which quickly informed us that Kingston was not alone in having workers complaining about their employers.
In our opinion, there are two major problems in regard to employment standards in the province of Ontario: enforcement of the current legislation and a total lack of job creation, therefore removing employment opportunities.
Working people in Ontario deserve a better fate than having their rights in the workplace diminished in a race to the bottom as the government currently moves to pay for tax breaks for the wealthy by shrinking the size of the Ministry of Labour and others to achieve the $10 billion required from the budget.
If these changes are what working people in our province are looking for, then I must ask, where are the workers today who agree with the position your government has taken? How many presentations have you listened to from employees who think they have too many rights in the workplace?
The chambers of commerce obviously will champion this legislation because it clearly strengthens the position of their membership over their employees and, as previous speakers noted, reduces the load employment standards officers have. Indeed, the government is reducing the number of employment officers themselves.
The Kingston and District Labour Council suggests the government listen to the workers of Ontario, stop the process of eroding standards, stop creating roadblocks to obtaining these rights, making it necessary to bargain rights, and change your plans of privatizing enforcement by contracting out. Clearly, if your government would dedicate more time and resources to creating employment opportunities, the climate of this province would change from mean-spirited to a brighter future.
In closing, a short while ago there was a drug bust in Kingston involving several young people, and the local media interviewed a teenage girl for her reaction. She stated, "When you get up in the morning and there's no food in the cupboard, you have few choices. You can look for a job and find out there are none; you can panhandle for change; you can sell your body; you can deal drugs; or you can starve."
Let's give our children back their future. Start by treating all people in Ontario in a fair manner. Quit removing the rights of working people to be governed fairly and get on with the task of job creation.
As an addition, a previous speaker was asked about the employment situation here in the community. I'd have to ask the people in Belleville, why would Wal-Mart have located here if the employment situation and how workers were treated was so bad to start with?
The Vice-Chair: We have up to five minutes per caucus, starting with the government side.
Mr John R. Baird (Nepean): Thank you very much for your presentation. We appreciate your coming from Kingston.
I would just indicate, when the committee made its decision on where it could travel, we were able to go to about 10 communities. Regrettably, we can't go to every one. I think there was certainly a feeling that it's important though -- usually committees do go to Kingston -- to spread it around. Other communities want to be heard from as well. As someone from eastern Ontario, someone who's lived in Kingston for four years, I certainly know it well, but there are other communities that wanted to hear from the committee as well.
I would just point out that no employment standards are changed by this bill. The minimum wage stays the same, the hours of work stay the same, overtime etc. None of them are changed by this bill.
Particularly with respect to your comments on job creation, I completely agree with you. That's got to be the priority, definitely. It's got to be the first priority, the second priority and the third priority.
I was pleased to note that last week Statistics Canada, of the federal government, released the job creation numbers, and the provincial economy -- not the government -- had created 51,000 jobs in the province of Ontario, which was an incredible upswing and certainly a good sign. Much work is still to be done, no one is satisfied with the system now, but 51,000 jobs in one month is certainly good news for folks all around the province. We've obviously got to work harder and do better with that, though.
One issue I'd bring up -- and this is a major part of the bill -- to get your comments: One of the provisions of the bill, and you alluded to it, is with respect to privatizing collections. Right now we're only collecting 25 cents on the dollar. Once someone complains, an issue is investigated and an order is issued, we're only collecting 25 cents on the dollar. The previous NDP government disbanded the collections branch at the Ministry of Labour, discharged 10 employees and just threw that on to the backs of employment standards officers. They were only able to collect 25 cents on the dollar and we are only able to collect 25 cents on the dollar.
What the minister is saying very clearly by putting in this provision for private collection agencies to go after what I call the deadbeat companies is: "Listen, we're not satisfied with 25 cents. We've got to take some real action to change that. Just tinkering isn't enough."
If there were any easy solutions, I suspect they would have been tried by any of the three parties that have certainly grappled with this issue. Do you have any objections to the use of private collection agencies if they're able to bring in more for workers?
Mr Stock: If the people you currently have in the Ministry of Labour were allowed to do the job of going after employers when the employers were putting it to the workers, I'd think that was a good system. If you want to modify that, that's fine. Contracting out is a race to the bottom, in our opinion. If you want to privatize and run the province like a company would, from a boardroom, as opposed to having set rules for employers and employees and doing it in a fair fashion, I don't think it works out when you start privatizing, because the people who are being contracted are there in particular. They're not there in a fair manner; they're there certainly for the interests of one party. I think you have to have fairness in a system if the system's going to work. I believe that by contracting out, not just that but any service, you're taking that fairness aside.
Mr Baird: But we're only collecting 25 cents on the dollar now. If there was an easy way of improving that, surely the previous government -- Mr Christopherson, who's a member of the committee, is a very fine person, a very passionate advocate for workers. If there was a way of getting better than 25 cents, I know they would have taken it. If there was a way in-house to do it, they would have taken it. But the reality is that they're only collecting 25 cents on the dollar. I think the previous speaker said a third of orders; it's actually only 25 cents.
I guess what we're saying is that obviously the employment standards officers -- one of the members of our committee used to be one -- are not trained in collections. To bring in someone with 25 or 30 years' experience to go after deadbeat companies and to even force the deadbeat companies to pay for the collection -- the reality now is that the person who's owed the money has to pay taxes to pay for the enforcement. Under this bill, the deadbeat company would have to pay for the enforcement, would have to pay the collections fee. We're amending the collections act in this bill to allow for that. So that's an important thing. I think it will see more dollars going into the hands of workers than we're getting now, and we've got to go after 100%. The minister is seeking changes to the Bankruptcy Act with the federal minister.
Mr Stock: Excuse me. Can I interject here? I'd like some time too. I'd like to suggest that if the government were clearly serious about enforcement of the law, you not only would have gone after the Screaming Tale restaurant here and down the highway in a quicker fashion, you also would have removed their liquor licence, because they clearly were in violation of the law. I think when we start to see the government treating employers in a fast, efficient manner, then we'll worry about some of the other things that go along with that.
Mr Baird: That was closed down very expeditiously. That was dealt with once we received the complaints. The ministry officer enforced the order immediately.
The Vice-Chair: Excuse me, Mr Baird. You've expended your time. Mr Lalonde.
Mr Lalonde: Thank you, sir, for your presentation. I have a few questions. The fact that the government is going to reduce the number of enforcement officers, will this have an effect on your organization?
Mr Stock: It will have an effect on all workers in this province.
Mr Lalonde: In what way?
Mr Stock: If a person has a problem and wants to get it resolved and all of a sudden there's nobody there -- you could have the best laws in the world; if you have nobody to enforce them, the laws don't mean anything. If you're going to remove the people from the Ministry of Labour --
Mr Lalonde: This bill states that any union member has to go through their union to appeal or to deposit the complaint to the ministry. By looking at this, the fact that they will be going through your office and then probably hire a lawyer to debate this matter, will this have an effect on the union dues of your members?
Mr Stock: It's going to have an effect. I am critical of the fact that it's just the union you're talking about. It's workers in this province who are getting the shaft, and for the most part the people who are being shafted clearly are people who don't have the ability to have a union representing them. They are low-paid people. They don't have the money and the resources to go and hire a lawyer when they have a problem. They are the people who are getting hurt the worst by this current government and this legislation.
Mr Lalonde: What I could see by this bill is the fact that every union member, as they go through your office, it's definitely going to increase the cost of your operation because you have to handle every claim. In the past five years, would you know how many of your employees had to deposit a claim to the enforcement officer in the Ministry of Labour?
Mr Stock: I don't have those figures, no.
Mr Lalonde: I tend to agree, though, that having the collection passed on to the private sector -- as Mr Baird just said a little while ago, only approximately 25% of the amount owed to employees was collected in the past. The only part I am scared of is I hope that the commission that would go to the collection agency will not be taken off the employee's amount owed to them. Do you agree with this?
Mr Stock: Yes.
The Vice-Chair: Thank you very much for your presentation this morning.
CANADIAN AUTO WORKERS, LOCAL 524
The Vice-Chair: I would ask that the Canadian Auto Workers, Local 524, come forward. Good morning, sir. I'd appreciate if you would introduce yourself for the sake of Hansard and those present.
Mr Ivan Mills: I will start off just very briefly, as part of my presentation: Good morning to the committee and participants here, all interested parties concerned over the possible changes to a very sensitive piece of legislation, Bill 49, the Employment Standards Improvement Act.
My name is Ivan Mills. I am a resident of Peterborough and currently hold the office of vice-president of Local 524, CAW. I am chairperson of the political action committee. The workplace I am employed at is GE Canada. I've worked at the plant for almost 33 years. Hopefully, in the minimal allotted time I can focus on some of the major concerns we have with this bill.
Over the past several months there has been a great emphasis placed on the debt and deficit, both federally and provincially, about the workforce, both organized and unorganized, unions at war with corporations and governments and vice versa. We have, as organized labour, seen the pitfalls and side-effects of a government that to my mind set the pattern for the conflict that is out there every day. The Harris government made quite clear their disdain for the unionized, that unions and organized labour had too much clout, and that they, speaking of the Ontario government, would level the playing field.
We saw what happened with Bill 7, the anti-scab legislation, across our province. Several employers have seen fit to hire replacement workers. People working in their plants have decided that the right to strike is their last resort to a just and fair settlement. What happens here? The answer is confrontation, resentment in a process that we call collective bargaining. It's our right.
Bill 26, the all-encompassing omnibus bill, was then legislated with undue speed. Again, the government of Ontario displayed little or no conscience to the legislation which adversely affects the young and elderly in this province. With only three weeks of hearings on this bill, the government of Ontario, through the Minister of Health, can now be given powers to close down hospitals, deregulate drug prices, introduce user fees and deductibles for our seniors. Currently our local is challenging this part of the new law through our Peterborough MP, Peter Adams. Our members feel this is a violation of the Canada Health Act. The question revolves around the payment for drugs, which now has attached to it an up-front user fee of $100 required if your income is over a certain amount. This would certainly appear to be an invasion of privacy, when persons' incomes become information for your local pharmacist and drugstore.
Other items of considerable importance have far-reaching effects for the people, such as the loss of skilled and semi-skilled jobs through massive layoffs in the public sector as well as in the private sector. Environmental laws and protection, which we all know are of great concern, have been either weakened or substantially eliminated altogether. Consequently, the reasons are many that today we speak about Bill 49. To me it is so very important that all the issues are looked at, that everyone concerned in our province and country have their views brought forward and we make things better, not worse, for the people of Ontario. I am sure it is very difficult for a lot of people when all these changes that we face today seem so regressive and we do not trust the people who are implementing them.
The Employment Standards Improvement Act is not without its own major concerns for the people of Ontario. Over the course of time, through collective bargaining, the organized labour movement has made significant gains with regard to equal pay for equal work, paid overtime, pregnancy and parental leave, notification of job loss and termination of employment. These issues and many others are the very reasons this province has been one of the best places in the world to live. To even think that through passage of this bill the workers of this province will have some, even one, of these taken away or altered in a negative fashion is quite frankly outrageous.
Some of these changes will most definitely make it easier for employers to cheat their employees and harder for workers to enforce their rights. It strips unionized workers of the historic floor rights which we have had for years under Ontario law.
When Labour Minister Elizabeth Witmer introduced the Bill 49 amendments, she stated the proposed alterations were housekeeping changes. The truth of the matter is again that they are not minor changes, but they're rather substantive changes that are clearly beneficial to the employer, not the worker.
Organized labour has fought long and hard for the reduced workweek. Normal hours of work range between 40 and 50 hours. Why then would anyone want to increase this to, say, 56 hours? I'm aware that Minister Witmer is apparently saying at this time she's backing off on this, but can we really trust her, having seen this government's track record so far? If the government is sincere in its jobs, jobs, jobs statement, why would this even be a consideration? Corporations should be penalized for excessive use of overtime; thus, hire more people. Specifically, in my plant today we have undergone hundreds of layoffs, yet right in areas where these have occurred, people are working six and seven days a week. Emergencies can happen, scheduling or material problems can periodically create overtime, but in general there's no need for this to take place. In today's environment it is imperative to have quality time off, not working 60 hours a week at the shop.
Also at issue here are part-time minimum wage jobs, the majority of which people work at in places where there is no union to help them to better their lot. I am sure many of us know people, especially the younger generation, either still going to college or just starting out in this working world, who hold two or three part-time jobs. Is this what is termed "quality"?
As mentioned before, floor rights, those things which were legislated, will now be put on the bargaining table again. It will make settlements more difficult to acquire, given the inequality of power between employers and employees. This is even more magnified when many workers not organized have to take their employers on. Laws today with minimum standards at least help these people. Having these taken away or watered down will only make for more strained relationships.
Another major concern facing workers today is the time frames, when people have either quit or changed employers, in regard to back pay, vacation entitlements, severance packages etc. Under the proposed change, an employee will only be entitled to back pay for a period of six months from the time a complaint is filed. This makes things particularly hard for someone who registers a complaint only after they have severed their employment. If they do not file within this time, their only avenue of recourse is through civil court action, which can be long and arduous.
Further to this, the Ontario legal aid plan, which at one time could be utilized by employees, no longer covers most employment-related cases. The ministry then still has two years to investigate the complaint and a further two years to get the employer to pay moneys owing. Considering all of this, the employee has a long uphill battle to attain any satisfaction.
In conclusion, I feel the Ontario government has continued to rush to judgement on many issues regarding legislation in this province. Workers organized, unorganized, young and old deserve better working conditions. The corporations, employers, small businesses and large, are most turning record profits. The people in workplaces across this province deserve better, not worse. For us, the struggle continues. We shall prevail.
Thank you for your time. Hopefully your Common Sense Revolution will make some sense to the workers and all the people who reside in what still has the potential of being the best place to live in this province, country and world.
The Vice-Chair: We have just over a minute and a half, so there's time for each of us to have a question.
Mr Lalonde: Thank you, Mr Mills. You've been with the company GE for 33 years, you said.
Mr Mills: Yes, sir.
Mr Lalonde: At the present time, is there much overtime done by the employees in your plant?
Mr Mills: To be quite honest and very frank, it's been an issue that's ongoing for many years. It's been a tough one for us. We many times have gone to the ministry for help here on this one. As you know, we can go and ask for the 100-hour lists that they have on persons working, but it's an ongoing thing that the company uses. It's a real tough nut for us to crack. Again, it's one of those laws that if legislated, if followed through on, would be a real boon to unions and workers.
Mr Lalonde: At the present time, any hours done after 44 hours, you were getting overtime, time and a half.
Mr Mills: Yes, that's right.
Mr Lalonde: But the fact that they're planning to pull this section out to leave this to the employers, do you think in the time that we're trying to create 725,000 jobs, this will help create additional jobs?
Mr Mills: My honest opinion of this is that there are a couple of things that enter into this. It's very critical, especially for our plant. I'll tell you that it's a very senior operation inasmuch as the employees' average age is approximately 48, a very experienced workforce, but the issues are that these people have the skills, but there's a training issue, bringing young people into these jobs -- I don't think we're fulfilling that need to train young people, because of this kind of activity that's going on. We're not able to bring new people into the workforce. When you have individuals, senior people working on jobs and working seven days a week, and you're not bringing people along to help encourage and train, I have a lot of problems with that.
Mr Lalonde: They do that --
The Vice-Chair: Excuse me, Mr Lalonde, I'm sorry.
Good morning, Mr Christopherson.
Mr David Christopherson (Hamilton Centre): Good morning, Barb.
The Vice-Chair: Welcome to the hearings here.
Mr Christopherson: Thank you. My apologies to the committee and to the presenters for being unavoidably detained.
Mr Mills, thank you very much for your presentation. I was able to catch up on the first part as you were concluding. I think you are reflecting a mood and a tone and a message that we've heard all across Ontario. This is a government that, you should know that, even after presenter after presenter has pointed out where Bill 49 is taking away rights, we have the history of the anti-worker Bill 7, which devastated basic fundamental union rights in the province, they've attacked WCB, they're continuing to do that further, we know they're going to attack the Occupational Health and Safety Act, they've already attacked the poorest of the poor with a 22% cut and yet this government still wants people to believe that Bill 49 doesn't take away any rights.
There are a couple of major issues that aren't here but that are important. There's now a cap on how much money can be claimed -- it didn't exist before -- there's going to be a minimum threshold that you have to pass before you can get the ministry to help get that back money, and the one that you point out here, where you can only go back six months, and yet this government still, in community after community, says Bill 49 doesn't take away workers' rights. How do you respond to the government while they're sitting here, when they continue to tell you that this doesn't take away any rights of workers?
Mr Mills: Again, the reason I'm here today is representing my people in Peterborough, and I know that in talking to others across the province that quite clearly, the erosion of our rights in the organized workplace has been devastating; there's no question about that. Having said that, that can only reflect twofold, threefold on people who are out there without some people fighting for them, without the individuals on executives or labour councils which are very active in this. Without these people, they have nowhere to go, and believe me, they don't have the money to go get help. That I feel is very, very sad.
Mr John O'Toole (Durham East): Thank you very much, Mr Mills, for your presentation this morning. You're right; we've heard many of the arguments you've presented at previous public meetings, and they're not a tremendous surprise. Focusing on page 3, do you think that your membership in your union want the leadership to eliminate the individual's right to choose to work overtime? On page 3, you go into it.
Mr Mills: Yes.
Mr O'Toole: Do you think the membership strongly supports the leadership with the mandate to eliminate their individual entitlement to overtime?
Mr Mills: This is, as anything, a very sensitive situation. To best present that, I would have to say that the numbers would be probably much stronger. I really legitimately feel people are concerned about the numbers of people who have lost jobs, for what reason. Right next door are a number of individuals working overtime.
Mr O'Toole: If I may, I appreciate that --
The Vice-Chair: Excuse me, Mr O'Toole, I'm sorry to interrupt, but time has expired. We're actually over time.
Thank you very much for your presentation this morning.
TRENTON AND DISTRICT CHAMBER OF COMMERCE
The Vice-Chair: I'd ask the representatives of the Trenton and District Chamber of Commerce to come forward, please. Good morning, and welcome to our process here. For those who have come lately, I'll just outline what the procedure will be. There's a 15-minute allocated time, as people know; that will be inclusive of the question-and-answer period at the end of the presentation. I would ask that the board members help a little bit in making sure that we offer the same opportunity to everybody here today by taking note of the time that's allocated when we get to the question-and-answer period. Thank you very much, and I would ask that you would introduce yourselves for the sake of Hansard and those present.
Mr Paul Tripp: My name is Paul Tripp. I'm a past president of the Trenton Chamber of Commerce. Our presentation will be made today by Joan Kingston, who is the manager of the Trenton and District Chamber of Commerce.
Ms Joan Kingston: Good morning. The Trenton and District Chamber of Commerce welcomes this opportunity to speak to this committee on these important issues. As background information, let me say that our chamber covers an area from Brighton to Bayside and Carrying Place to Frankford. Our membership consists of some 200 businesses, ranging from large international employers with over 200 employees to small, home-based businesses. Over the recent months, we have been circulating information on the proposed changes to Bill 49. We provided our members with opportunity to comment on the changes and only received positive responses.
A subcommittee was formed in August of this year consisting of representatives from major industry, small business and home-based business. It is our collective opinion that we support the thrust of the legislative changes.
With respect to limitation periods, we agree with the changes to a six-month period to file claims, the payment of back wages and the increase of appeal periods. These changes propose reasonable time periods that are more in keeping with the real practices of day-to-day workloads.
In today's workplace, entrepreneurs and business owners are having to work longer and harder to stay competitive and profitable. Time spent away from the business is detrimental not only to the owner but to the employees as well. Limiting the choice of procedure from both the ministry and courts to either process will decrease the time spent in dispute and the expense to the parties involved and our public purse.
This expedition of time and resources is reiterated again in the legislation's proposal to have the employment standards officers negotiate a resolution to complaints without launching a full investigation. In many cases, the outside third-party arbitrator is all that is necessary to settle the small claims. As our government performs necessary downsizing and increases the workloads of its employees, we must support legislative changes that will support these same employees in expediting their jobs, to the savings of both time and money.
A policy of this government that is strongly supported by business is subcontracting out work that can be completed more efficiently by the private sector. This policy is supported by us in this legislation under the section on collections. This particular job is more suited to the private sector and will once again free the time of the employment standards officer for investigations. The remainder of the proposed changes follow the same thrust of making the act easier to administer, fairer to all parties and more in keeping with today's economic climate and electronic workplace.
In closing, we support the essence of Bill 49 as it attempts to reduce procedural stumbling blocks and reduce the cost of doing business.
The Vice-Chair: We have about 12 minutes to go here, starting with Mr Christopherson.
Mr Christopherson: Thank you for your presentation; I appreciate it. I want to pick up on a theme that I raised with the previous presenter. Virtually all of the chambers of commerce across Ontario have been marching side by side with the government in arguing that Bill 49 doesn't take away any rights at all that workers already have; it merely changes procedures, makes them more efficient, deals with the new structure of work etc.
I would like to ask you if you think the fact that an employee can no longer claim back wages for two years but only six months does not take away a right that they have, especially when we've heard many presentations point out that 90% of all claims are filed after someone leaves the workplace, because they're too afraid to do it while they still work there. By having two years, they've got enough time to secure another job, leave the threatened work environment and then file a complaint after the fact and go back at least up to two years to collect the money that's owed. That will now be limited to six months. For a lot of people who can't leave their place of employment for fear of losing their job, it means they're going to lose that money, because they can't afford to hire a lawyer. I would ask how you would react to that argument and still defend the government's line that this bill doesn't take away any workers' rights.
Mr Tripp: The point you're making, very simply -- the chambers of commerce, I believe, and I know it's the case with ours, believe this legislation is levelling the playing field entirely; it's taking a position that business has some rights, that management has some rights, which have been eroded over a long period of time.
One issue you're bringing up, a six-month back pay as opposed to two years -- I'm not about to get into the semantics of six months or two years or what have you, but I do believe that if there's a legitimate claim on back time, I don't see that it's a hardship within a certain period of time to file a claim and proceed in a normal manner.
Mr Christopherson: The problem with that is that we have heard ample evidence -- and I haven't heard the government refute that this doesn't happen; I've challenged them to do so, and they haven't, for good reason: you can't. The facts are that there are people -- and I'm sure it's a very small minority of your membership, I would offer that to you, who would be that way. But there are bad bosses, just like there are bad employees. That's why you have rules; that's why you have laws. But this bill, not only on the six months but on the cap -- an employee can no longer claim for more than $10,000 through the ministry. The government is going to set a minimum threshold that you have to be owed; maybe it's $100, maybe it's $500. We don't know. They won't tell us. They won't tell us how much the minimum is going to be, but there will be a new minimum.
These are not semantics, sir; these are the rights that workers have. Without a union, the only right a worker has against a bad boss is the Employment Standards Act. I say to you again that this is not about levelling the field; this is taking away the rights of workers.
The Vice-Chair: Mr Christopherson, your time has expired, without a question.
Mr Rollins: Thank you for your presentation this morning. Trenton has been one of the hardest-hit areas in the province of Ontario for losing businesses over the last three or four years. Do you see any recourse, that it looks as if there may be some more jobs coming back in? Will this be a little more encouraging for small businesses to come back into the Trenton area?
Mr Tripp: I think it will be, and I think there is a slight turnaround. I guess if you were to take, on a percentage basis, our job loss of two or three years ago, when the economy went for a row of shucks, if I can be permitted some slang, this would be equivalent in the Metropolitan Toronto area of half a million jobs. That's how hard we were hit. We had major plant closings and what have you. A lot of those closings were the result of decisions that were affecting the international marketplace.
The one good thing that we have had in our favour recently is that as they downsize the defence department, we happen to be one of the few cities left that has a defence installation. There's been an increase there, and this is now starting to manifest itself in the economy for small business and small entrepreneurs.
Mr Rollins: Getting back to the time frame of the six months and the two years, a number of those companies have gone. They didn't just move out, they went bankrupt, they washed out.
Mr Tripp: Oh, yes.
Mr Rollins: Regardless of whether there were judgements against them or not, there was no money to pay them. When you're broke and you're out and you're done, then you're out, you're broke and you're done. Whether it's six months or two years, there's still no more money coming back to the employees who got beat out of things. I don't think anybody wants to see anybody beat out of anything that's justly coming to them.
Mr Tripp: I don't think so either. I know in a number of our cases it was a financial reason; that was all there was to it. If there's no money, there's no money.
Mr Rollins: If you're broke, you're broke.
Mr Tripp: That's right.
Mr Chudleigh: A lot of the problems that we encountered and problems that we've heard about seem to revolve around education, that people don't know what's in the standards act; employees don't know what their rights are; employers quite often don't know what their responsibilities are.
Could you give us any indication as to how you might see getting this information out into the employment field so that more people would know about the Employment Standards Act and their responsibilities and rights under that act?
Mr Tripp: I wish there was a simple answer to that question. People read what they want to read and ignore what they don't want to read. I'm a member of a service club. I can go to a weekly meeting and have people who didn't even read the weekly bulletin. That's a fact of life, and that's the way it is.
I think in recent times there has been such a competitive pressure in the business world that people just don't have the time to read up on things that they might have done a few years ago, and this isn't anything to do with the government of Ontario or the government of the city of Trenton or anything else. This is just a fact that's happening in the world. I guess very simple newsletters to the management and to the staff would be helpful.
Mr Lalonde: Mr Tripp, you say you represent some 200 businesses, including large employers such as Quaker Oats. Do any of them belong to organized labour or unions?
Mr Tripp: Not the business world. A business can't belong to a union.
Mr Lalonde: How about Quaker Oats?
Mr Tripp: Quaker Oats is a manufacturing plant. They had a union there some years ago and the workers voted it out. Then the dog food operation went down to next to nothing. It's now come back as a manufacturer of rice cakes.
Mr Lalonde: So there's no union that has approached your organization to speak on their behalf at this hearing today.
Mr Tripp: No.
Mr Lalonde: Looking at the maximum of six months that you could come back for some claims, the government is saying only 4% of the total amount in the past was -- the total amount owed to employees was over $10,000, but 4% could represent a large amount of money for the family.
I'd like to get your opinion on that. Don't you think it should have been from two years to one year and been up at least to $20,000 instead of $10,000? Because in the past you were able to go back two years, and 4% of the total amount was over $10,000. It means that some of the employers that have not been good employers -- I've always said all employers are good but some are better than the others. But the fact that now you'd be able to go back only six months -- what's going to happen with those employers that didn't pay the employees properly for over a period of six months?
Mr Tripp: I think we already dealt with that earlier and the question still remains, in particular in my own municipality where the loss of jobs is economic. Time is of no consequence because, as I replied to Mr Rollins, there's only so much money and if it's not there, it's not there. I think that's been the biggest problem.
Mr Lalonde: The fact that you represent 200 businesses, do you think that the employment standards must be posted at every employment office or business so that the employees would know what they are entitled to?
Mr Tripp: I can tell you, sir, that in my opinion, and I was in the business world for 40-some years, you can post all the notices you want on all the bulletin boards there are, and if people don't want to read them or pay attention to them, they won't.
Mr Lalonde: But at least it should be posted.
Mr Tripp: What's the sense of posting it if it's just not read? My point, very simply, is that usually things get read when we're in times of distress, but when things are rolling along fine -- that's the way it is.
The Vice-Chair: Thank you for your presentation this morning.
NORTHUMBERLAND COMMUNITY COALITION
The Vice-Chair: I would ask that representatives from the Northumberland Community Coalition come forward, please. Good morning. I'd ask you to introduce yourself, please.
Mr Ben Burd: Good morning. My name is Ben Burd and I work and live in Cobourg. Before I start my brief, I'd like to draw attention to the couple of statistics on the front page, which were drawn from last week's Toronto Star. Basically there are two quotes there that are important because they put into context what I'm going to say:
"The number of people earning the minimum wage has risen 40% in the last five years." That was drawn from Ministry of Labour statistics.
"The number of people working for temporary agencies has risen 421% in 25 years." That was drawn from the Centre for International Statistics.
Ever since the industrial revolution, governments have been forced by public opinion to legislate employment standards. From the minimalist approach of the Third World to the encompassing standards of the European Community, standards differ, but the reasons for the standards has not. Standards exist because some employers exploit and because workers, being voters, demand them. In real practice, both employers and employees benefit because stability has been brought to the marketplace. This stability means that workers know what to expect as working rights and employers know what the fixed cost of doing business really is.
For any government to contemplate change to existing employment standards, it must be either acting on a demonstrated need for change by the stakeholders or introducing its own ideas of standards. Either way, the need for change must be well explained or the government will be seen by the public to be reacting to vested interests or pressure groups. In the case of the changes we are here today to discuss, we submit that it is the latter, as we see no move by the public to change standards. I ask the committee and the government that's bringing this in place, where is the evidence that standards need to be changed?
The cornerstone of any legislation is the ability to make it work, for dormant legislation is just as bad as no legislation. Consequently, we believe that the enforcement of employment standards is the key to good legislation. Minimum standards must be set at a level that will sustain the maximum workplace protection of health and safety as well as ensure the economic maintenance of a living wage.
A compromise must be obtained between the employers' ability to pay and stay in business and the cost of employment standards. At the moment there are not enough inspectors in the field to enforce current legislation. Recent Ministry of Labour budget cuts have resulted in fewer inspectors -- and I might be wrong on these numbers but the thrust is there -- from 156 to 127 on the job. That's for the whole province. We submit that the proposed changes will need more enforcement because the threshold of enforcement will now be lower and infractions will become more frequent as unscrupulous employers will ignore the now reduced standards.
This new government in Ontario quite rightly identifies as one of its roles, one that it is eschewing, that of being able to mould society by means of regulation. The dilemma of the government is how to make the economy grow and make taxpayers feel good enough to become consumers again. This dilemma is compounded when the fact that safe workplaces and regulated wage rates contribute to the wellbeing of the economy has been accepted for some time.
In these changing times it has become fashionable to accept the global economy but be fatalistic about the chances of upward mobility. However, if society is to improve and be able to pay for the services that it demands, economic growth must occur. Economic growth occurs in many ways under many influences. One of these influences is the regulatory path set by governments. Employment standards as a whole is a tool for growth. Too many impediments on employers and you will stifle business; too few regulations and you will have unhealthy and unsafe workplaces, which will impact on the consumers of the economy.
However, there is a leveller for employers between regulations and non-regulations, and that is the cost of unhealthy workplaces due to accidents, disease and insurance payments. The government can ease the cost of this leveller by regular inspection of workplaces. Regular inspection will raise standards and cut costs to employers. Despite what some employers may tell you, we think safe workplaces and regular enforcement saves money in reduced WCB costs, reduced sick time and improved productivity due to safe workplaces. To quote the Common Sense Revolution, "Workers need a hand up, not a handout." Give them this hand up by ensuring safe workplaces and regulated wage rates.
Free marketeers believe that market forces will self-regulate the economy, but in real life the theory does not quite fit the practice. Market forces dictate that the price of anything, including labour, goes up and down due to demand. We have seen this happen in the case of labour costs: As unemployment rises, wages go down. Real wages have been falling yearly for the past 20 years due to rising unemployment. The pressure upon the private sector to be competitive has wreaked havoc among the unskilled and semi-skilled workers of this province as automation and downsizing have been implemented by the private sector. Most of these moves to be competitive have resulted in two things: the reduction of costs, mainly due to lower wage costs because of the downsizing, and the increase of profits.
Any impediment in the workplace in the form of regulations, for whatever reason, is seen by the private sector as a barrier to efficiency and profits. The role for governments is to balance the interests of the marketplace and the interests of those who work in the marketplace. The opinion here at the NCC is that one need not be balanced against the other because safe workplaces and high minimum workplace and employment standards produce efficiency and profits in their own right. The payoff to the private sector is in the form of employee productivity based on working in a safe place and earning enough to be a productive consumer and taxpayer. When the Canadian Imperial Bank of Commerce announces it wants to lay off 10,000 people, who will pay the service charges the banks need? The bank doesn't seem to question the possible damage to 10,000 mortgages.
As social commentators, we have to point out that if the goal of minimizing standards in the workplace is there because it is believed that the money saved by the private sector will be recycled to improve the economy in the form of more jobs, one has to question both the logic and the economics. This approach, deregulation, has been tried before, and the damage to workers and the economy was repaired by the use of the very regulations that are now being repealed.
As to the economics, it boggles our mind that the drive to lower real wages, either by reducing minimum wages or by wage negotiations driven by downsizing pressures, will only lead to lower disposable income, which in turn leads to lower consumer spending, which in turn leads to lower economic growth, which is the opposite of what you're trying to achieve.
If, in this world we are forced to live in because we have to be competitive, we only have the opportunity to work and use our learned skills, then that opportunity has to be there. The right to work and pay our way is inalienable. Society, if it does nothing else, has to create the conditions that will allow each and every person who wants to, to work, for only by work can we earn enough to pay our way in this world. If the economy, as currently tuned by our present government's economic policies, can only produce so many hours of work, then those hours must be used by as many people as possible.
The major tool that must be used by government to spur the economy is the initiation of a shorter workweek. Allowing unions and companies to set their own workweeks by mutual agreement will lead to longer workweeks, not shorter workweeks, and that is wrong. It is wrong because if the secret to greater wealth is to have more people working, you do not do that by expanding productive capacity and not sharing it. The only conclusion we can draw from these discussions today is that governments must influence the marketplace so that as many people as possible can work.
Today, as we speak, there are major companies engaged in labour disputes over the enforcement of mandatory overtime. In a period of double-digit unemployment, that should be a crime against humanity. Your legislation, if it goes through, either amended now or later on in the fall, when, we are told, we're going to get larger revisions to the Employment Standards Act, will make it easier to abolish the maximum workweek. Imagine, in one passage of legislation you can take the workplace back 100 years.
If our presentation is to be positive, then it is incumbent upon us to make suggestions. The one major suggestion we make is that the province change its attitude and join with us and ask the federal people to remove the maximum level of earnings from the CPP and employment insurance premiums that are paid by employee and employer. By the way, we do not subscribe to the notion that these social payments are payroll taxes, the common name for UI and CPP premiums, Since when have employment insurance or pension contributions been considered taxes? If these plans were privatized, as some governments want to do, the contributions would certainly not be considered taxes but social benefits that have to be paid for by both labour market partners.
Removing the maximums from CPP and UI would have the effect of allocating the overtime hours that are now being worked to new hires. This disincentive to overtime will lead to the creation of new hires because contributions to employment insurance and CPP will be paid on all hours worked, not just those under $33,000 of the CPP and those under $37,000, I think it is, for UI.
One last comment on payroll taxes: This money paid by business is a usual business cost of doing business, just like others such as rent, insurance, medical benefits etc, and as such should be treated the same way as others are in business plans.
In conclusion, the Northumberland Community Coalition cannot support the intent of the proposed changes for all the reasons that many others have listed. The major problem for us is the abandonment of the regulation of business by accepting that mutual agreement between employers and unions is an acceptable process. Having minimum employment standards is like being pregnant: The package has to be complete and concise or nothing at all. The idea that government can stop being in bits of the business because there are others who can do a better job may work in other areas, but definitely not in the area of employment standards. Because of the social effects on consumers and taxpayers of having employment standards, we at the coalition do not want any changes that weaken the current standards because we think that they are barely adequate now.
What we want is to retain the present system and for the government to hire more inspectors so that the present standards can be enforced properly. Only then will workers feel safe in the workplace and will employers be able to stabilize their costs.
Mr Baird: Thank you very much for your presentation. We appreciate it certainly from a different perspective than many, so it's particularly appreciated. We don't have time for much of a question. I'll just make a few comments.
In the first part of your presentation you mentioned health and safety. That's a very big priority for the minister, so there are no cuts in health and safety inspectors. The previous government chose to cut health and safety inspectors by 21, but Mrs Witmer is not cutting them because she sees it as important.
Mr Burd: The numbers here relate to employment standards inspectors.
Mr Baird: You did mention health and safety three or four times in your presentation, though, and I just wanted to clarify that.
Mr Burd: But there's still a lesser number of inspectors in employment standards now than there was when you came to power.
Mr Baird: In employment standards, yes, because we're privatizing the collections part of the plan, but not on health and safety, which we think is a very important issue.
With respect to moving to a complaint-driven process, I guess we agree with Bob Mackenzie, the previous labour minister who practised the policy that it's best for a complaint-driven process. That means you'll get the best results by having made the best use of your resources. That process has been followed by all three parties. Obviously, though, when there's a complaint like the one at the Screaming Tale, when they go in, they do check the other employees because if the deadbeat employer is doing it with one employee, undoubtedly he's doing it with many others. We believe that's the best way to do it.
Mr Burd: But the intent of this brief was to draw attention to the fact that the absence of inspectors produces an atmosphere where unscrupulous employers can exist and get away with what they're doing simply because the employees who work in those places have little faith in the inspection standards as such, and what you're doing right now is going to reduce those inspection standards.
Mr Baird: It's because we're privatizing the collections component of it, which were only collecting 25 cents on that dollar. So there's where the savings are.
Mr Lalonde: As mentioned by Mr Baird, the government is in the planning of reducing of the number of inspectors. Do you feel that instead of laying off those inspectors, if we were to train them properly so they could continue collecting or taking over claims that are submitted by employees, that would be more beneficial to employees and to the employer?
Mr Burd: I think it's a question of inspectors using the amount of time they have in their workweek to get their inspections done. Mr Baird said that he's going to remove the collection responsibility from those inspectors. I don't know the percentage of time spent by employment standards inspectors on collections. I would suspect it's very little. The problem you have right now is that there are employers and workplaces that have not been inspected in many years, and that's a fact. If you were to go to the average inspector and say, "Let me see the size of your file," you'd probably be astounded. We say, "Do you have time to go back into the workplace to inspect after the initial inspection?" "Oh, yes." "When?" "When I get around to it," some maybe five or six years later.
Mr Christopherson: Obviously you've put a lot of thought into this and have a very detailed working grasp of the legislation and the reality out there. Thank you for your presentation. It's very effective.
I want to make sure it's on the record that we support very much your contention where in the second-last sentence you say that what you want is "for the government to hire more inspectors so the present standards can be enforced properly" and point out that exactly the opposite is happening. They're reducing the standards; therefore there are fewer inspectors needed. That means they're laying off 45 inspectors, that's all about saving money and that's the only thing it's about.
The fact that it's going to benefit unscrupulous employers, the government is prepared to look the other way, but that will be the reality. They refuse to admit it. This is just about slashing money and reducing standards in the workplace. Have I encapsulated your point?
Mr Burd: Absolutely. It's our contention that lower standards will lead to less enforcement because the threshold of enforcement is therefore much lower. If the threshold of enforcement is much lower, people will feel they can get away with more, and more infractions will therefore result, needing more inspectors, but the government is choosing to go the other way. I could live with lower standards if you were going to turn around and say, "We're going to have more inspectors to enforce those standards," but they're doing neither.
Mr Christopherson: Well, get ready for the next round; it's the Occupational Health and Safety Act they're opening up next and they're doing it for the same purpose as this time, and that's about saving money. So there are more rights of workers that are on the chopping block for the future, guaranteed, and we still know the WCB legislation, which is taking away even more benefits from workers.
PETERBOROUGH AND DISTRICT LABOUR COUNCIL
The Vice-Chair: I ask the representative from the Peterborough and District Labour Council to come forward, please.
Mr Thomas Veitch: Good morning. My name is Thomas Veitch. I'm president of the Peterborough and District Labour Council and recording secretary of CAW Local 1987.
I'd like to start by thanking you for the opportunity to appear before this committee today despite the fact that the time allowed is so very limited. The subject matter before us is entirely too vast to cover within a 15-minute period, but I'll endeavour to cover some ground.
What the Employment Standards Act represents is a "bare minimum" document, a framework by which employers are legislated regarding legal provisions of hours of work, vacation entitlement, overtime, equal pay for equal work, pregnancy leave, paid holidays and a whole host of other rights. It is a basic document of how an employer must treat an employee and that employee's rights. The collective bargaining process has managed to improve some of these areas, but what of individuals in non-organized workplaces?
On average, our labour council receives five calls a week from individuals in such workplaces with questions like: "I work an average of 55 hours a week but I'm only getting paid for 30. I don't think it's fair and was wondering what I can do about it." I take down as much information as I can and direct these people to the employment standards branch in the Ministry of Labour, with the advice that the first thing they'll have to do is file a complaint. The response is generally: "I can't do that. It's a small operation. If they find out, they'll fire me. I need my job." I advise them to call anyway and let me know how they made out. The response is generally, "You'll have to file a complaint before we can do anything," so for the most part no action is taken.
The biggest problem is the fact that the current law doesn't have the teeth to walk into a workplace and perform a general inspection of the workplace and working conditions.
Proposed changes will water down this legislation, further removing any rights an employee has within the workplace in the interests of competitiveness. The question that begs to be asked is: Competitiveness with whom? Indonesia, Guatemala, Mexico or the United States, where 1% of the population controls 42% of the work?
The minister has characterized changes to the Employment Standards Act as minor housekeeping. The flexibility issue, thank God, has climbed back into its cave for the time being, and I'm sure it will rear its ugly head at a later date.
Enforcement: Currently the Ministry of Labour investigates complaints, and why not? The government passed the ESA, so the MOL should investigate. This has proved an inexpensive avenue of benefit to all concerned. Proposed changes under Bill 49 would eliminate this course of action in favour of the grievance procedure, placing the burdens of cost and investigation on the union. It also places the union at risk with dissatisfied members because the ESA will be deemed part of the collective agreement. The obligation of fair representation and enforcement of the ESA will become duties of the union rather than the Ministry of Labour.
As to non-unionized workers, they will have a period of two weeks to decide whether to file a complaint with the Ministry of Labour, under the Employment Standards Act, to pursue it through the court system with a ceiling of recoverable limits placed at $10,000 instead of what an employer actually owes an employee. This is by no means fair as a remedy since it would take several years to resolve a civil case, at an expense most complainants could ill afford. Many more will be excluded from the process due to lack of awareness of time limits on filing a complaint and they will have no right to reinstitute a complaint if they choose to abandon a civil suit process.
Regarding the cap, employees who have deprived of wages for a lengthy period of time are the very complainants who will have no means to hire a lawyer and wait for years to see a civil suit settled. Even in the most poorly paid industries, amounts owed to severed employees generally exceed the $10,000 cap with a six-month limit on back pay. This provision will serve to assist the worst employers to violate the most basic standards and compound the misery of such complainants.
Use of private collectors: Proposed amendments include privatization of the collection of moneys owed. Traditionally this has been a public function. Now it will be the function of the private sector. How this will improve the situation is beyond me, considering that the largest problem has always been the employer's refusal to pay assessments. It will, however, absolve the government of any responsibility as it will be "out of our hands."
The director of employment standards can authorize the private collector to charge a fee of the person who owes money, or, should the amount be less than the amount owing employees, regulations enable apportioning among the collector, the employee and the government. Where the settlement is less than 75% of the amount owing, the collector is required to obtain approval of the director for such fees allowing for an incredible amount of leeway and/or abuse; ie, minimum wage earners could receive less than the amount owed and pay for it to be collected. Fair? I think not. The government needs to improve and maintain the current system, not privatize. Such a move, as proposed, would gravely harm the most vulnerable and unorganized in the interests of expediency.
I would say that a review of the entire act is in order. Housekeeping changes and "changes 'cause we can" are not in order. There is little I can see that would assist any worker in this once proud province. It is geared to assist employers rather than workers. It is one of the few legislated documents that we have by way of protection. Employers have common law and legislate out the yin and yang to assist them in keeping the savage hordes at bay. This government is enabling employers to treat us the way they have always seen us, as a necessary evil, merely tools for profit. Change is necessary to the Employment Standards Act -- positive change. Clearly a review is the route to go. I thank you for your consideration and indulgence.
The Vice-Chair: Thank you. We have about two and a half minutes per caucus, starting with Mr Lalonde.
Mr Lalonde: On your first page you state, "I work an average 55 hours a week" --
Mr Veitch: No, I didn't say that I work an average 55 hours a week. It says that phone calls I get are from people --
Mr Lalonde: Yes. "On average, our labour council receives five calls a week." Your labour council that receives the average of five calls a week, are they from organized labour people?
Mr Veitch: No.
Mr Lalonde: They're not.
Mr Veitch: That's just my point. They have no protection other than the Employment Standards Act and, in fact, this government wants to change the very protections that are put in place for employees such as that. Unionized workplaces have collective agreements, so they have a little more strength to fight such injustices.
Mr Lalonde: Do you refer them to the Ministry of Labour?
Mr Veitch: I do, and I said so right there.
Mr Lalonde: Yes. I know they say they can't do it. I really feel -- I don't know what your position is on this -- but every employer must, not only should -- it should be a necessity that the employers attend a workshop on employment standards so they would know what the consequence would be if they don't follow the employment standards. This way, having to work 55 hours a week and getting paid for only 30 hours a week, I really feel sorry for those people and probably, as you said, that's at the minimum salary.
Mr Veitch: Yes. On average, employment in Peterborough is equivalent to that in Newfoundland. We've got something like a 14% unemployment rate, which is just incredible. We've got an awful lot of mom and pop industries, we've got an awful lot of fast food places, and they either know what the legislation is or just don't care. This is part of the problem.
The Vice-Chair: Mr Christopherson.
Mr Christopherson: How much time is there?
The Vice-Chair: Two and a half minutes.
Mr Christopherson: Thank you very much, Tom, for an excellent presentation. I appreciate it. It's also worth noting, at least once, in every community that when you acknowledge thanking the committee to appear that, of course, we had to bring the government kicking and screaming into the public light because they didn't want to do it. The same as they rammed Bill 7 through and attempted to do with Bill 26, we had to drag them out here and force them to face the people.
I want to touch on two issues, if I can, but I may only get to one. I want to focus on what you put on your first page when you talk about what happens to somebody in basically a sweatshop where they're in a bad-boss situation, they're terrified of their job to file a claim. You've heard others at least refuse to refute this. In other communities I have had them say that's not the case, that in fact it's good to go to the six months because it stops a guy from sitting around on his can mulling over whether he's going to make a complaint. That is the mindset of certainly some of the people supporting the government and must be the position of the government because they refuse to admit these vulnerable people are here. Can you just expand on that a little bit for me?
Mr Veitch: Okay. Well, the six-month thing, for instance, I've got two different things that I'm working on right now. We had a plant closure a few years ago that was part of my local, and that's Triplex-Lloyd. They waited a hell of a long time for the moneys that were owed to them. They were issued paycheques, nice as you like, but they all bounced. They had to wait a hell of a long while before they finally did get their money.
Another situation as well is, I've been working since 1992 with a group of older displaced workers trying to get them their POWA moneys. Now, that's been a hell of a headache because you've got the federal government, you've got the provincial government, and neither one of them wants to take responsibility. These poor people are at the point now that they're losing their houses. That's if they're still alive, because these people were 55 or older when they lost their jobs, and this is four years later. An awful lot of water goes under the bridge in that period of time. It's been a hard battle for them, and it's still ongoing. We still haven't received any benefit from it.
Mr Christopherson: If I can touch briefly on the idea of the flexible standards because unfortunately -- well, it's good that we forced them to back off because they were going to make this law by the end of June. That would have been in there. So that's gone. We've achieved that much. But the minister has committed the fact that that's going to be part of the review, so you're right; it's coming back out of the cave.
We've heard in communities that this is the slippery slope --
The Vice-Chair: Mr Christopherson, excuse me, I'm sorry. Mr O'Toole.
Mr O'Toole: I'd just like to take some issue with Mr Christopherson's statement. We are here today. We are listening. We are the government and we are the ones who decided to hold these public meetings.
Mr Christopherson: After we forced you.
Mr O'Toole: That demonstrates that this government listens. In fact, we're listening across the province.
I just want to broaden this out by saying that you're aware that this is a two-phase process of reviewing the Employment Standards Act.
I want to focus in on the 14% unemployment in Peterborough. Can you tell me why the economy is so bad? Do you have a general feeling? We're trying to create jobs and opportunity and hope in Ontario, and after almost one year in office, the last employment statistics indicated that Ontario is indeed recovering. Do you think we're on the right track in any way or do you think we're on the wrong track entirely?
Mr Veitch: The fact of the matter is, you're talking about the creation of jobs, but at the same time you're also talking about the elimination of 27,000 OPSEU jobs. By the same token, the federal government is talking about the elimination of 45,000 public sector jobs. The jobs that you create balance out the jobs that are lost, so I don't see where there's any gain.
Mr O'Toole: But we're taking the jobs off the back of the taxpayer. Technically, governments don't create work; they create the opportunity and the environment for creating real jobs, a real economy.
I just want to recognize one of your comments. I would agree and say that a review of the entire act is in order. I hear you saying that, Tom.
Mr Veitch: The fact is, I think the act would stand up very well to review, because there's not enough language in it to give it teeth. But what is proposed is watering it down and taking away from any strength that the act currently holds.
Mr O'Toole: You see that there are 130,000 net new jobs in the last 12 months in Ontario. Would you agree in some part that, for all the criticism we may receive, we have declared to the world -- indeed the Premier is in Europe now, trying to solicit business for Ontario. We have to be -- we don't like the word "competitiveness." That isn't lowering any standards. This act doesn't lower any standards. That's clear in here, whether it's the minimum wage or -- in fact the entitlement provisions are very clear.
The Vice-Chair: Thank you very much for your presentation this morning.
PETERBOROUGH COMMUNITY LEGAL CENTRE
The Vice-Chair: I would ask that the representative from the Peterborough Community Legal Centre come forward, please. Good morning. I would ask you to introduce yourself to the committee this morning.
Ms Melinda Rees: My name is Melinda Rees. I'm the executive director of the Peterborough Community Legal Centre. I'm a practising lawyer. I've been practising in this area of law since 1987. I've been in Peterborough since 1991, and I'm grateful for the opportunity to make this presentation to you today.
The Peterborough Community Legal Centre is a community legal clinic serving the city of Peterborough and the county of Peterborough since 1989. Our practice, as directed by our community board, has focused on social assistance, landlord and tenant and workers' compensation law. We've had little involvement with employment standards except in the context of providing over-the-counter summary advice.
The rationale behind this prioritizing of our case work has been that the Ministry of Labour provides investigative and enforcement mechanisms to those of our clients with employment standards problems. Consequently, our board has taken the view that despite the many problems with the current Employment Standards Act and the Ministry of Labour's enforcement of it, our limited resources should be directed elsewhere. However, I'm here today because it's clear that the changes to the Employment Standards Act proposed in Bill 49 constitute a major threat to the people who make up our client base.
I would like to take a moment to put Bill 49 in a broader context.
Many of our clients are on social assistance. Last year they had their benefits cut by 21.6%. The legal centre, the Peterborough Social Planning Council and several other social agencies have been conducting a hunger survey in Peterborough. Although the survey is not yet complete, I can report to you at this time that hunger and the fear of hunger are prevalent among our clients on social assistance, particularly those with children, the elderly and the disabled.
Employable people on social assistance who have not been able to find work will soon be forced to participate in workfare programs in order to obtain benefits. Those of our clients who are fortunate enough to have jobs are usually employed in minimum-wage positions. Recent changes to the welfare regulations and the Unemployment Insurance Act mean that if they quit their jobs, for example because their employer is in breach of the Employment Standards Act, they may not be able to obtain any income support at all.
As a result of the cut in benefits, the average rents in the Peterborough area are significantly higher than shelter allowances. Many of our clients find it hard to locate affordable housing. The local housing resource centre which used to help them in this task has just had its funding eliminated.
Last week the legal centre presented a brief to the standing committee on general government on proposed changes to landlord and tenant and rent control legislation. This legislation weakens procedural protections for tenants whose landlords wish to evict them while at the same time providing those same landlords with a financial incentive to evict by allowing uncontrolled rent increases to take place between tenancies.
As I said earlier, those of our clients who are fortunate enough to have jobs tend to work in low-wage, non-unionized settings. Advocates for both non-unionized and unionized workers have been saying for years that the Employment Standards Act is a weak law. There are too many exclusions and too many loopholes. Enforcement by the Ministry of Labour is painfully slow. Little is done to encourage employer compliance with the minimum standards set out in the legislation. Workers who file a complaint with the ministry often have great difficulty collecting money owed to them by employers. Payroll audits by the ministry are rare even when a complaint has been made. Reprisals are a real threat because ministry enforcement is so lax.
Bill 49 will make a bad situation that much worse for vulnerable employees like our clients. Low-income, non-unionized employees will have great difficulty in enforcing the act.
I intend to limit my submissions to the impact of this bill on our client group.
First, limitation periods: Bill 49 forces non-unionized employees to choose between making a complaint to the employment standards branch of the Ministry of Labour or commencing a civil action in court.
Under the current act, employees have two years to make a complaint to the Ministry of Labour. Employees whose complaints are found to be valid are entitled to back pay for up to two years from the date the complaint was filed. The two-year time limit for making a complaint assists employees who dare not make a complaint until they have found employment elsewhere.
Under Bill 49, non-unionized employees will have only six months to file a complaint and will be entitled to back pay for a period of only six months from the date the complaint was filed. The shortened limitation period will penalize vulnerable employees who are too dependent on their employer either to quit or to run the risk of being fired after making a complaint.
As I said earlier, employees who quit or are fired in these circumstances could face heavy penalties if they apply for unemployment insurance or general welfare assistance. Further, non-unionized employees often don't have easy access to information about workers' rights. It may be months before they find out that their employer has been exploiting them and that there is a remedy. Very often they face additional barriers in that they are not well educated. They may have very low literacy skills.
Employees who miss the six-month limitation period will have to take their employer to court in order to enforce the law. As legal aid is not available for employment law issues, low-income employees in this situation will be out of luck.
There is a very serious risk that the six-month limit on filing complaints and on entitlement to back pay for non-unionized employees will reduce the number of complaints coming forward to the ministry or the courts while at the same time encourage unscrupulous employers to violate the act, secure in the knowledge that the penalty for doing so has been substantially reduced.
Bill 49 forces a non-unionized employee to choose at the outset whether he or she intends to proceed with their complaint through the Employment Standards Act process or through the courts. Employees who file a complaint under the act will have only two weeks to decide whether to continue under the act or withdraw their complaint and pursue a civil remedy. Employees who initiate an action but then decide not to pursue their civil suit appear to have no right to reinstate a complaint under the act. An employee who brings a complaint under the act for severance and termination pay cannot also bring a wrongful dismissal action claiming pay in lieu of notice which exceeds the statutory maximum.
The effect of these amendments is that employees will be confused and intimidated by the entire process. They will have to have quick and affordable access to legal advice in order to enforce their rights. But as I've said already, they're unlikely to be able to get that unless they can pay for it, so once again the bill penalizes our clients, the low-wage, non-unionized workers.
There are no limits on the maximum amount an employee can recover under the current legislation. Bill 49 would limit the amount an employee can recover by making a complaint to the Ministry of Labour for under $10,000. This cap does not apply to unionized workers. Once again the legislation penalizes the most vulnerable employees. Low-wage employees who have been subjected to the most flagrant abuses of the act may well be owed more than the proposed maximum in wages, vacation, severance and termination pay. Although these employees could sue for a higher amount, they will not be able to get a legal aid certificate for this purpose and are unlikely to be able to afford the high cost of civil litigation. Legal clinics will not be able to help them because most clinics are already overwhelmed with social assistance, housing and workers' compensation cases.
The bill also allows the minister to set a minimum amount for a claim through regulation. Non-unionized employees will be denied the right to have their claims investigated or enforced by the ministry. Theoretically they could sue their employers in Small Claims Court, assuming they had the skills to conduct an action unrepresented. But the court system is already overburdened. Small claims of this nature could be resolved far more expeditiously and cheaply through the Employment Standards Act complaint process.
Further, the ministry has not specified what the minimum allowable claim amount will be. How will the minister determine the amount at which an employer may exploit an employee with impunity? Ministers in this government think nothing of spending thousands of dollars to go golfing, so a $200 claim may well be the minimum to them. But $200 is about one week's pay for a minimum wage worker. What steps will be taken to ensure that employers do not deliberately keep their violations under the minimum in any six-month period to escape any legal penalty at all?
Enforcement of the current legislation is a problem for employees particularly with respect to collections. The Bill 49 solution to this problem is to privatize the collection function of the ministry by allowing private collection agencies to collect debts owing to employees. These agencies will be able to charge a fee. In situations where the collection agency is not able to collect the full amount of the debt owing to employees, the regulations will allow the amount collected to be apportioned among the collection agency, the employee and the government. It's quite conceivable that under this system, a minimum wage earner who is owed money by an employer would receive not only less than she's owed but would have to pay a private collection agency to recover the debt as well.
Collection agencies will have the power to encourage settlements. They'll naturally want to push for a quick settlement and quick payment of their account. How will workers be protected from pressure to settle for unreasonably low offers?
Bill 49 is being presented as a housekeeping bill which makes the Employment Standards Act easier to administer, encouraging flexibility and self-reliance in the workplace. In fact, the bill makes major, substantive changes to Ontario labour law. It probably will make the Employment Standards Act easier to administer because the combined effect of the provisions of Bill 49 will have the effect of significantly reducing the number of complaints made by non-unionized employees.
Further, the responsibility for enforcing the act and the cost of enforcement will be shifted to employees. As for encouraging flexibility and self-reliance in the workplace, the bill actually provides incentives for non-compliance by employers. Employees, especially low-income employees, will find it difficult to protect themselves from infringements of what are, after all, only minimum employment standards. They know that if they quit or are fired because they've complained, draconian changes to welfare and unemployment insurance legislation will likely result in severe hardship for them and their families.
Putting it all together, it's difficult to avoid the conclusion that the government is seeking to create a large pool of desperate people who will work at any price on any terms. The cost to employers and to all of us in the long term will be poisonous labour relations and social unrest. Why take us down this road?
Thank you for the opportunity to make this submission.
Mr Christopherson: Thank you for an excellent presentation. I want to reiterate your closing comments, "Putting it all together, it's difficult to avoid the conclusion that the government is seeking to create a large pool of desperate people who will work at any price on any terms." I agree with you and I would challenge the government to defend that this is not what's happening.
The other thing, and it's come up in every single presentation that I think is crucial to these hearings, is to challenge the government to take on a community representative who fights for minimum wage workers when you make the claim, as other community legal clinics have, that the six-month limitation in effect denies vulnerable workers their rights because they're afraid to make the complaint. The government speaks next, and I challenge them to take you on when you make this case, because we've got to have it out on this one. This is taking away workers' rights and they refuse to admit it.
Mr Tascona: They call this the employee bill of rights. As you know, minimum standards have been improved for vacation pay and pregnancy leave, which you may want to consider as improvements. One thing you should be aware of is that the employment standards officers' enforcement powers have not been changed; they had been given the added responsibility of doing collections, which they never did before, until the NDP got rid of the collections squad in the Ministry of Labour and terminated 12 employees. In changing the format of collections, we're going to be giving them more time to do what they're supposed to do in terms of enforcement, because we haven't changed anything there.
As a legal representative you must provide advice to different workers, and that's probably the reason why you're around. Why would you object to doing something you're supposed to be doing in terms of offering legal advice?
The Vice-Chair: Thank you, Mr Tascona. Mr Lalonde?
Mr Lalonde: Just one question: Do you think this bill will help to create additional jobs?
Ms Rees: No.
Mr Lalonde: At the present time you say many of your clients are on social assistance. Did you at times represent employees for claims to the Ministry of Labour?
Ms Rees: Traditionally in our particular legal clinic we haven't because we have a lot of other work to do, and the Ministry of Labour has been there.
Just to address Mr Tascona's point, my understanding is that 45 ESOs are going to be laid off as a result of this legislation, so enforcement of the act, which has always been slow, is just going to get much slower, and collections have been farmed out, have been privatized. It's absolutely unconscionable that low-income workers should have to pay for collections, for a debt that's owed to them. It's unconscionable.
NORTHUMBERLAND COMMUNITY LEGAL CENTRE
The Vice-Chair: I ask the representative from the Northumberland Community Legal Centre to come forward, please. Good morning. Welcome to our hearing process. I would ask you to introduce yourself, please.
Ms Lois Cromarty: My name is Lois Cromarty. I'm the executive director of the Northumberland Community Legal Centre. We are a legal clinic that services Northumberland county, as my counterpart Melinda Rees does for Peterborough. I thank the committee for the opportunity to make this presentation this morning.
While we may agree that the Employment Standards Act needs some improvement, I don't think we would agree that the changes that are proposed in Bill 49 would achieve the ends that we want to see.
I started looking at the amendments in terms of the promotional material that was sent out by the government in advance that said the bill was based on the concepts of self-reliance and flexibility. I thought I would look at one of the changes, the minimum and maximum limits, in the light of that concept of self-reliance. It seems to me that the self-reliance issue is the government's attempt to save money because then the workers would be doing the work that was previously done by the Ministry of Labour staff. Would that really be a cost saving for the government?
In a perfect world obviously there would be no bad employers, and workers would not have to resort to the Employment Standards Act or any other act to get their rights enforced. But of course that's not the case. This is not the perfect world; this is the third rock from the sun and we are not a perfect system. We have to assume, then, that if we do have a self-reliant worker, what do the changes about minimum and maximum standards mean? You have to be self-reliant, you have to know the system and you have to know about the court system because that's your only other recourse. If you fall below the minimum level that's not yet determined by the government, or we don't know what it is, then you have to be able to go to court on your own to get your money. Similarly, if you go over the maximum and you don't want to waive the amount over the maximum, you have to go to court as well.
I say it's not a cost saving for the government because what the Ministry of Labour is going to save, Mr Harnick, the Attorney General, is going to have to pay. The court system is not functioning very well as it is right now, and I can't imagine how well it will function with the additional burden of having to deal with employment standards claims for wages in Small Claims Court or in General Division for more than $10,000. I'm probably going to be sued as a heretic by the law society for saying that, but the courts are not always the answer.
We have to look at what the costs are to the workers, because I don't think it is a cost saving to the government. Minimum limits are not yet prescribed by regulation and the maximums are set at $10,000. If you want to have a claim for more than $10,000, if you want to get the money that's owed to you for more than $10,000, you have to start a General Division court application. I don't know if any of you have looked at the rules of court lately, but they're not small and it's not an easy process to get into; it's not an easy process to complete.
I heard one presenter earlier mention, "This act sort of levels the playing field." It doesn't. It's a cost saving to the employer-violator. If you have a claim that you owe wages to an employee, that employee is now boxed into a corner. Either they have to take you on in court, and because there are no legal aid certificates for court they're going to do that alone or they have to pay for it themselves, or they have to waive the excess over $10,000, a bonus to the employer.
As for the minimum amounts, the government is really deciding that some workers' rights are less important than others'. Leaving small claims to Small Claims Court means that employers will go unpunished. It will become a cheap way of doing business. Why do we make those predictions? Because you have to be self-reliant to go to court. That means you have to be literate, you have to have the ability to draft the claim in the right way, you have to ask for the right things, you have to be able to present your case to the judge, you have to be able to cross-examine the employer, you have to be able to produce records and documents, and in the Small Claims Court system there is no way of discovery, "discovery" being the technical term for making the other side produce their documents so that you can see what their case is going to be.
I think it would be fair to say that most people are intimidated by the thoughts of going to court, whether or not they are represented, and chances are in Small Claims Court, and chances are in the General Division for claims over $10,000, the workers will not be represented. Employers will most likely be represented by lawyers to defend those claims. The prospect of taking on the employer is a daunting one, and even more so if you are still employed by that employer at the time you want to sue them.
The current act is quite toothless in regard to providing a statutory right of reinstatement if you are fired, as a retaliatory firing, for trying to enforce your rights. The current act says that reinstatement is an order that only the prosecution can make if they prosecute an employer successfully under the current act or under the pregnancy and parental leave sections. Anything else, there's no retaliatory firing provision for reinstatement in an ordinary claim where you might be fired because you claim wages from them. That's where the current act is lacking. It needs more teeth. It needs a specific statutory right that says the employee can claim reinstatement either through the court system or through the Ministry of Labour if you are fired as a result of making a claim for wages.
Illiteracy of workers has already been mentioned by a number of presenters this morning.
The other thing I was wondering about was, with the minimum limits -- and as we say, we don't know what that is -- will workers then be forced to stay in that low-paying, poor working condition in order to raise their claim up to get it to that magic limit for the ministry to prosecute or to process on their behalf? In short, the minimum and maximum limits will create subclasses of workers: those who have the financial wherewithal, the knowhow, the literacy, the lack of fear to be able to be self-reliant, which sounds like a motherhood and apple pie statement, and those who do not. It's that latter category that will be easy prey for unscrupulous employers.
What then is the benefit of having the ministry continue to process all claims? Two things: investigative powers and deterrence. As I said before, Small Claims Court doesn't have a discovery process. The ministry does have investigative powers, can go in, can do audits, can get the documents needed to help back a worker's claim for wages owed, not something that the average worker would have any concept of as far as the General Division court system would work.
As for deterrence, here again you'd have to have a pretty sophisticated litigant to ask for punitive damages in their Small Claims Court action. That's not something that's ordinarily bandied about as a phrase in ordinary conversation.
By having the ministry have a blind eye to all those claims below that minimum level, they won't know which ones are the crappy employers; they won't know who's out there nickel-and-dimeing their employees to death. We see all the time the employers who fire their workers just before that magic three-month mark, because then they don't have to have termination pay or severance pay. They can get rid of them with no notice. I'm quite certain that those same types of employers would be well aware of the minimum limit for the ministry to process a claim and would be quite willing to nickel-and-dime their employees up to that level. For the big-ticket violators, again, it's a saving to them. They're in the driver's seat because they know that for a claim of $12,000, they can get away with $10,000 max. It sounds like a plan to me.
We believe that there are changes needed to the act. They need to have more officers; they need to have broader powers to reinstate fired workers; they need better and faster enforcement mechanisms. Shorter prosecution times, shorter investigation times are all needed. The reason we say they need more staff is it's a little like speeding. If I know there are no police, no OPP between here and Cornwall, am I going to be tempted to drive a little more than 100 kilometres an hour? I think probably yes. If I know there are going to be police out there watching my every move, perhaps I'll be more likely to stick to the speed limit, the maximum prescribed.
None of the changes from Bill 49 will meet what we consider the requirements, that is, to give workers their proper due under the act. The Bill 49 amendments will force Ontario workers to pay too high a price for the privilege of having a job.
The Vice-Chair: Thank you very much. We have approximately a minute and a half per caucus, starting with Mr O'Toole.
Mr O'Toole: Thank you very much, Ms Cromarty; pleased to hear your presentation. Do you spend any time working with violations of employment standards, that kind of advice to people?
Ms Cromarty: We have represented people, yes.
Mr O'Toole: Have you any idea what a satisfactory minimum might be? The minister has clearly stated that at this time there isn't one. Have you any idea of what would be appropriate use of public expenditure? Like a $50 claim, would it be worth spending $1,000 to collect the $50? Can you comment on that?
Ms Cromarty: I don't think there should be a minimum, for the reasons I've stated, because the way the amendments are worded now, you can join several claims together to make it up to the minimum limit, whatever that might be, but only if somebody else will join with you and only if they have the same problem.
Mr O'Toole: I just wanted to make clear that right now the act, as it's been drafted, is trying to recognize that 96% of the claims are under $10,000, with the average claim being $2,000, so we're spending an inordinate amount of public money in the pursuit of that 4%. That 4% over and above the $10,000 should probably go through the full legal court system. It may involve middle managers or upper mangers in the whole downsizing scheme. Do you think, in retrospect, that that's an appropriate use of public money to provide the greatest good for the greatest number for the least amount of money? That's really the thrust here: focusing on the most vulnerable.
Ms Cromarty: You said 96% of the claims are for under $10,000. Obviously your resources are spent more on that than on the 4%, are they not?
Mr O'Toole: I think --
The Vice-Chair: Excuse me, Mr O'Toole. I'm sorry, but we had a minute and a half. Mr Lalonde.
Mr Lalonde: You mentioned at the beginning that workers will have to do the work previously done by the Ministry of Labour. I fully agree with you on this, knowing the capacity of resolving 75% of the cases that the government handled in the past. You said that you have represented people also in the past. What was the percentage of successful cases that you handled?
Ms Cromarty: It was 100%.
Mr Lalonde: Do you think that probably the government should have taken a hard look at making sure their employees were properly trained, and also having the facility of hiring a private collection agency, the commission to be paid by the employers instead of taking it off from the employees' dues?
Ms Cromarty: Certainly, if the employer can be made to pay the collection costs. But the way the bill reads, as I understand it, if that employer doesn't have enough money, the employee then loses out at least a portion of the wages that are owed to them, and I don't agree with that. In the court process, for instance, the collection is a long and arduous task. You have to hold this whole judgement/debtor process to find out what money, what assets the debtor has so that you can collect your money. Anything that puts money into the hands of the person who is owed it, the worker, as fast as possible and to 100% of what is owed to them, I would agree with.
Mr Christopherson: Thank you for your presentation. We in the NDP have found it a continuing insult to the people of Ontario to suggest that this is minor housekeeping, which is what the government tried to say it was, as you pointed out in the beginning.
The issue I want to focus on -- we don't have a lot of time -- is again the minimum threshold that you spoke of. We've got a government which says it's not taking away any rights, but right now there is no minimum threshold. Right? If you're owed money, you're entitled to have the ministry go after that money on your behalf and enforce your rights, which is its responsibility. The government is going to change the law so that the cabinet by regulation -- not by legislation, by regulation -- can impose a minimum; say, 200 bucks. Therefore, if you're in a non-union shop and you're ripped off for overtime pay and it amounts to 80 bucks, the government will not help you through the Ministry of Labour. Is that your understanding of it?
Ms Cromarty: That's my understanding.
Mr Christopherson: I would ask you how often you think that's likely to happen, that there'll be desperate situations where people will not have the government there to help them out, even if they knew that right was there. How often is that going to happen in the province of Ontario now, do you think, at least in your area?
Ms Cromarty: I would suspect that more often than not people are not going to be willing or able to prosecute their own employer for that under the minimum standard. I think it was quite telling from one of the earlier presentations from the business side where they said that this is a bill that will reduce the cost of doing business. I say that's an example of how you would reduce the cost of doing business.
Mr Christopherson: That's money that the employer keeps in their pocket. That 80 bucks is gone to the worker and it's in the employer's pocket and there's nothing the employee can do in terms of asking the ministry to help them enforce their rights.
Ms Cromarty: That's correct.
QUINTE LABOUR COUNCIL
The Vice-Chair: I would ask the representative from the Quinte Labour Council to come forward, please. Good afternoon. I'd ask you to please introduce yourself to the committee and the public.
Ms Barb Dolan: I'm Barb Dolan, chair of the political action committee of Quinte Labour Council and a member of the Communications, Energy and Paperworkers Union, CEP Local 30, Belleville. Actually, my oral brief will vary slightly from the written one before you due to the time constraints.
In introducing Bill 49 amendments, Minister Witmer claimed that 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. Sounds simple enough and sounds relatively harmless.
The truth is, what was presented as minor technical amendments contains substantive changes, changes which clearly benefit employers and diminish access to justice for both organized and unorganized workers, particularly the most vulnerable in the workforce. These changes will make it easier for employers to cheat their employees and harder for workers to enforce their rights. It strips unionized workers of the historic floor of rights which they have had under Ontario law for decades -- the very same floor of rights that has protected the unorganized -- and these rights are being swept away by the minister as mere housekeeping changes.
Although the minister has chosen at this time to remove the section which would allow management to table bargaining demands which are below standards, I hope, when the committee is struck to review the Employment Standards Act, that consideration will be given to the submissions received on Bill 49. Because of this hope, I will speak briefly on this section.
This section contains a fundamental change to Ontario law by permitting the workplace parties to contract out important minimum standards. Prior to this section, it was illegal for a collective agreement to have any provisions below the minimum standards set out in the Employment Standards Act. This measure erases the historic concept of an overall minimum standard of workplace rights for unionized workers. Employers would be 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. This section continues the Tory agenda to promote strife and unrest in the workplace.
Given the inequality of power between employers and employees, including many who are unionized, circumstances in which detrimental tradeoffs are agreed to, despite the measurement problems referred to, can easily be envisioned. One can see these changes laying the groundwork for employers to pit one employee against another -- peer pressure in the workforce.
This proposed amendment would 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 in newly organized units and small service and retail workforces. It will also enable employers to roll back long-established, fundamental entitlements, and in fact can only be seen as an abuse of the workers in Ontario.
The potential of this amendment alone to erode people's standards of living should be enough to make the drafters rethink this amendment. This has occurred to a point. At Quinte Labour Council we are concerned about this section being part of the review and the fact that this was even considered in the first place, and therefore stand in opposition to it.
As a central labour body, we will continue to fight for maintaining and improving the lives of our members and to be a voice for those individuals without the means or opportunities to come here today, and to speak out against these unjust attacks on workers and on the citizens in our community. In a Mike Harris Ontario, this voice and representation is needed more than ever before, especially when you see local chambers of commerce buying into this attack, viewing the changes of significant reduction of government participation and enforcement as "entirely supportable." When the Tory government and business views the lack of enforcement as entirely supportable, that should send alarm signals to all Ontarians.
Viewed another way, if the central goal of the industrial relations system has been to facilitate negotiated settlements, this amendment runs counter to such an end. It will make settlements more difficult. It will likely result in more acrimonious relations and industrial conflict. What were in the past minimum benefits protected by law will now become permissible subjects for bargaining, arbitration and labour disputes. Further, this will directly impact on the standard of living and working conditions of all Ontarians.
The shortsighted may see this rush to the bottom as helping employers to become competitive, but the more sane of us will question whether this makes for higher productivity, better workplace relations, increased consumer purchases or an improved quality of life in Canada's must industrial and populous province.
Currently under the ESA, unionized employees have access to the considerable investigative and enforcement powers of the Ministry of Labour. This inexpensive and relatively expeditious method of proceedings has proved useful, particularly in situations of workplace closures and with issues such as severance and termination pay.
The Bill 49 changes eliminate recourse by unionized employees to this avenue and instead require all unionized workers to use a grievance procedure under the collective agreement to enforce their legal rights. The union will bear the burden of investigation, enforcement and their accompanying costs.
Should these amendments pass, the collective agreement will have the Employment Standards Act virtually deemed to be included in it. A union will also face the potential of claims against it by dissatisfied members. Although the existing duty of fair representation has not in the past been seen as requiring a trade union to represent employees in respect to employment standards, with this amendment, a union can be faced with complaints concerning fair representation by members. This could well mean that a failure of enforcement will be seen by the Labour Relations Board as constituting a breach of the duty of fair representation. Thus, unions will face both additional obligations and additional liability costs.
Arbitrators will now have jurisdiction and make rulings that were formerly in the purview of the employment standards officer, a referee or an adjudicator. They will not be limited to the maximum or minimum amounts of the act. However, arbitrators lack the investigative capacity of the ESO and may not be able to match the consistency of result that the act has had under public enforcement.
With these amendments, the ministry is proposing to end any enforcement in situations where they consider violations may be resolved by other means, namely, the courts. The amendments would download responsibility for the enforcement of minimum standards for non-unionized workers. Employees would be forced to choose between making a complaint to the employment standards branch or filing a civil suit.
Responsibility for enforcement is downloaded on to non-unionized employees by limiting the amount recoverable through employment standards to under $10,000. Currently there is no limit to what is recoverable. What an employer owes an employee is generally what is paid.
An employee who files a claim at the Ministry of Labour for severance and termination 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 employees who have chosen the more expeditious and cost-effective path of claiming through the ministry will have to forgo any attempt to obtain additional compensation through the courts. Legal proceedings are notoriously lengthy and expensive for many, even though they may be entitled in common law to more than the statutory minimum under the ESA.
An employee who seeks to obtain a remedy in excess of $10,000 and who can afford to wait the several years a civil case will take, and at the same time pay for a lawyer, will have to forgo the relatively more efficient statutory machinery in respect for even those amounts clearly within the purview of the ESO.
Employees who file a complaint under the act will have only two weeks to decide whether to continue under the act or withdraw their complaint and pursue a civil remedy. Those unaware of their legal rights may well be excluded from commencing a civil action unless they obtain the necessary legal advice within the short two-week period. Given the unprecedented attacks on workers in this new Tory Ontario, and the rabidness of this attack, there are those who are unaware of what their rights are and what their options are. The Screaming Tales of Quinte and Northumberland are examples of workers' vulnerability and the employers' abuse.
There are also minor provisions precluding an employee who starts a civil action for wrongful dismissal from claiming severance or termination payments under the act. Other provisions are also prohibited under the act once a civil action has started, such as an employer not paying wages owed or failure to comply with the successor rights in the contract service sector. Employees who initiate a claim but decide they no longer wish to pursue their civil suit don't even appear to have that two-week time limit to change their mind. Rather, they appear to have no right to reinstitute a complaint under the act.
It is interesting, the Employment Standards Act is defined as an act that contains the basic rules about working in Ontario. Both employers and employees have rights and responsibilities under this law, and the basic points about this law apply to most employees. Yet, with the proposed amendments, we see that workers have fewer rights under this new act, thereby defying the original purpose of the Employment Standards Act.
The amendments introduce a new statutory maximum amount that an employee may recover by filing a complaint under the act. This maximum of $10,000 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 pregnancy and parental leave provisions and unlawful reprisals under the act.
The problem with making such a cap is that quite often workers are owed more than $10,000, even in the most poorly paid sectors of the workforce such as foodservices, garment workers and domestics. 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 will take before their cases are settled. In effect, this provision will 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 gives the minister the right to set out a minimum amount for a claim through regulation, and we know regulations are set with no public input. Workers who make a claim below the minimum -- which is not yet known -- will be denied the right to file a complaint or 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 legal penalty.
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 that has traditionally been public. Private operators will, should these proposals be implemented, have the power to collect amounts owing under the act.
A fundamental problem with regard to the act has for some time now been the failure to enforce standards. This is no less true with regard to collections. The most frequent reason for the ministry's failure to collect wages assessed against employers is the employer's refusal to pay. The answer to this problem, according to this government and to the proposed amendments, is not to start enforcing the act, but rather absolve the government of the responsibility to enforce the act by farming out the problem to a collection agency. What is actually gained by this amendment is the implementation of the Tories' agenda in eliminating 45 enforcement jobs from the Ministry of Labour.
In addition, the employment standards director can authorize the private collector to charge a fee from persons who owe money. Should the amount of money collected be less than the amount owing to the employee or employees, the regulations will enable the apportioning of the amount among the collector, the employee or employees and the government. We want the system of public enforcement to be maintained and improved.
This provision will likely lead to employees receiving considerably smaller settlements. As well, they open the door for unconscionable abuse. Quinte Labour Council is gravely concerned that employees, particularly the most vulnerable, will be pressured 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. This is a very real possibility when the collection may be for lost wages, given the economic conditions in Ontario that are such that an argument of "less is better than nothing" or "something now is better than waiting for an unknown amount in the future" is very real. Having at the same time to pay the collector amounts to nothing less than legalized theft. At the same time, unscrupulous employers will now find their assessments for violations lowered and thus be encouraged to continue their violations of minimum standards
The proposed amendments of 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.
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 this cost will be borne by the employee, as the Ontario legal aid plan has been scaled back and no longer covers most employment-related cases. And if by some chance the worker's claim is handled by legal aid, given the cuts to their funding, their resources as well as the attacks on the vulnerable in our community -- not only do they have limited resources, but they have limited personnel and time.
In contrast, the ministry still has two years from the day the complaint is filed in order to conduct their investigation and a further two years to get the employer to pay monies owing. In other words, an employee, having made a complaint under the act, could wait up to four years before receiving money that is justly owed to them; then only the part of that the collector collects minus the user fees. That the Tory government can rationalize such amendments as facilitating administration and streamlining procedures is beyond comprehension. A government that promotes an atmosphere of employment where employees are denied their rightful and just earnings goes well beyond the definition of responsible government and common sense. As one local Tory MPP calls it, this is protecting society's most vulnerable workers?
Our comments on the key amendments of Bill 49 indicate that no one concerned with maintaining basic societal standards for all citizens in our province can possibly favour these amendments. As for the unorganized, particularly the most vulnerable in our workforce, Bill 49 is about a race to the bottom. It is about undermining their already precarious existence and as such it is totally unacceptable.
As noted in the introduction, 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 the review and not try to pass them off as mere housekeeping changes. But beyond this, the core of the problem is the nature of these amendments themselves. As our comments indicate, standards should not be eroded, standards should not be made negotiable, rights should not be made more difficult to obtain and enforcement of rights and standards should not be contracted out and privatized.
All of 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 in order to pay for a tax break for the wealthy.
I would like to thank this committee and those who listened.
The Vice-Chair: Thank you very much. As a matter of fact, that expired the time plus a bit, but thank you very much for your presentation.
B.W. DESJARDINS BOOKS
The Vice-Chair: I would ask that the representative from B.W. Desjardins Books come forward please. Good afternoon, sir. I would ask that you introduce your self to the committee for the sake of Hansard.
Mr Craig Desjardins: Certainly. My name is Craig Desjardins. I am the manager of a family business in Trenton, Ontario.
Madam Chairperson and members of the committee, thank you for the opportunity to address you today. The challenging economic climate in Ontario over the past few years has required all organizations that wish to survive to become more efficient and proactive in providing services to their customers. This is a lesson that government must learn.
In keeping with this sentiment of cost-effectiveness and value for money, I would like to comment on some of the positive changes to the Employment Standards Act that are being proposed. While I appreciate that in a social democracy we must provide a safety net for vulnerable employees and workers, we cannot afford two safety nets. The end to expensive and wasteful duplication of an Employment Standards Act investigation and concurrent civil litigation will go a long way to take the money away from lawyers and bureaucrats and get it to the victims of wrongdoing. By empowering the courts and employment standards officers with clear jurisdiction and authority, faster and more judicious decisions can be reached.
The Ministry of Labour's core competence is setting, communicating and enforcing the labour law, not the collection of judgments. Currently, two thirds of the orders to pay are not collected. This means hardship on the victims and wasted government resources. The revision that would see private collection agencies collect orders to pay is a step in the right direction. As a businessman who has had to put accounts to collection agencies, I know that these companies are effective.
In more general terms of the changes to the Employment Standards Act, I would like to comment to the committee on the macro changes in the labour market. Today we face some of the most massive structural changes to the employment market since the Industrial Revolution. While there is no substitute for skilled, proficient labour, labour is a smaller part of the total cost of manufactured goods and services as capital investment in technology continues.
Rapid technological advancement in communications, transportation, information science and mechanization requires that any government legislation that relates to employment be responsive and flexible to avoid hardship, but also to take advantage of opportunity. Issues like shortened workweeks and at-home working should be settled between labour and business with the positive participation of government. Employers should not be punished by the Employment Standards Act for changes in the global labour market that are beyond our control.
We are living in a period of great change. We can hide our heads in the sand and hope that things will get better or we can become leaders in the world and face change creatively and head-on. Thank you very much.
The Vice-Chair: Thank you very much. We have about 13 minutes left, starting with the Liberal caucus.
Mr Lalonde: I have just one question. The fact that employers and employees will be able to negotiate workweek hours, do you think this could have an effect on the quality of family life?
Mr Desjardins: I think, sir, it certainly has a very great impact. While I personally was very much in favour of a longer workweek because as a businessperson I am required to do that to make my business survive, I think we're seeing examples in Europe where corporations like Volkswagen are moving to a four-day workweek. I would certainly like to see some of the results of how longer time with family improves the quality of life.
Mr Lalonde: Improves?
Mr Desjardins: Certainly, sir, yes. More time with family, more time for relaxation and leisure, I assume that would have some positive impact on family life.
Mr Lalonde: I've learned just the opposite, because in the past --
Mr Desjardins: I don't know what kind of family you have then, sir.
Mr Lalonde: -- ever since we have allowed the stores to be open on Sunday, the quality of life has been affected tremendously.
Mr Desjardins: Again, sir, that's your opinion. I would think going past some of the stores this past weekend, people seem very keen. I went into A&P and the place was busier than a Friday.
Mr Lalonde: Definitely.
Mr Desjardins: People seem every happy to have an opportunity to shop and spend their money when they have the time available.
Mr Lalonde: But if you were to ask those people who are doing the shopping if they would work on a Sunday, they would say no.
Mr Desjardins: If we're talking about a standard workweek, we have laws and the Employment Standards Act specifies limitation under the hourly work. That's spelled out in the act. If you do work on a Sunday, you don't work on another day.
Mr Lalonde: It's been proven in the past the more hours you work in the week, the more accidents will happen, will occur, and also more sick leave will be taken by employees.
Mr Desjardins: Well, sir, I'm not advocating a longer workweek. I said I work a longer workweek as an independent businessperson because if I don't my business will fail. I'm saying a possible solution may be a shorter workweek and presumably if you work less, you have fewer accidents.
Mr Christopherson: Thank you for your presentation. I'm assuming -- and I'd ask you to correct me if I'm wrong -- that obviously you're not the type of person who would appear before a committee like this if you didn't feel pretty clear you knew what you were talking about.
Mr Desjardins: I have an opinion. I don't like to have any dealings with government when I don't have to because I have a business to run.
Mr Christopherson: I want to ask you directly and as straightforwardly as I could whether you believe there's anything at all in Bill 49 that takes away any rights that workers now have.
Mr Desjardins: No.
Mr Christopherson: Fair enough. I would like to just kind of push that a little bit then. Could you explain to me how, if I now have the right, as an employee, to have the ministry fight to get $80 that I'm owed but because there's a new minimum threshold, I don't cross that threshold, and I either have to go to court myself and take time off work or hire a lawyer, which is going to cost me money to get my 80 bucks, how I haven't lost something?
Mr Desjardins: What I would suggest was that you didn't lose rights; you gained responsibilities.
Mr Christopherson: No, I've lost --
Mr Desjardins: It's your responsibility as an employee. It's part of a two-edged sword. You have rights and responsibilities as an employer and as an employee.
Mr Christopherson: But the law right now provides that the ministry will go after that 80 bucks that's owed me. That's a right that I have under the current law. When Bill 49 is passed, it'll be gone.
Mr Desjardins: My interpretation of the bill would suggest that by eliminating things like collection, we're going to allow the people in employment standards to act as arbitrators.
Mr Christopherson: No, no. But deal specific --
Mr Desjardins: If we can avoid going to Small Claims Court and going to civil litigation, the problem can be solved simply and easily. You seem to characterize all businesses as evil and cruel. Ontario has some of the most progressive and most advanced employers in the world.
Mr Christopherson: Absolutely, and we have our share of Screaming Tales too and that's what the minimum standards are there to provide.
Mr Desjardins: I believe that's been --
Mr Christopherson: I'm asking you how you can defend a government line that every person who deals with says is not the case at all, that there are no rights being taken away. I just can't understand how you can allow, as a young professional, for the Hansard of all of history to reflect that this was the position you took at this time, for whatever reason I don't know -- but for you to suggest that somehow there aren't rights being taken away is just beyond my understanding.
Mr Desjardins: Excuse me, Madam Chairperson, was there a question there?
The Vice-Chair: Mr Christopherson, if you have a question, go ahead and maybe --
Mr Desjardins: It's not grandstanding. I believe I'm here to present, not the member.
The Vice-Chair: That's a fact but there also is a question-answer period and I would ask you, Mr Christopherson, if you do have a question.
Mr Desjardins: If the question is, am I presenting this opinion? Yes.
Mr Christopherson: Your opinion is noted.
The Vice-Chair: Finished?
Mr Christopherson: Oh, yeah.
Mr O'Toole: Thank you for appearing as an entrepreneur this morning. I think you're the first one. You are an employer, I gather.
Mr Desjardins: Yes, we are.
Mr O'Toole: You have employees?
Mr Desjardins: Yes.
Mr O'Toole: Do you consider yourself a bad boss?
Mr Desjardins: No. I'm a very generous boss.
Mr O'Toole: That's clear as to the records. Is anyone paying you to be here today?
Mr Desjardins: Absolutely no.
Mr O'Toole: Are you paying anyone to operate your business?
Mr Desjardins: Yes.
Mr O'Toole: Do you work long hours?
Mr Desjardins: Yes.
Mr O'Toole: Do you have any coverage under the Employment Standards Act?
Mr Desjardins: No.
Mr O'Toole: Are you self-reliant?
Mr Desjardins: Yes.
Mr O'Toole: Do you think that's the way for Ontario and each individual to go?
Mr Desjardins: I certainly think for the majority --
Mr O'Toole: Do you think this act helps that or facilitates that or awakens people, able-bodied citizens to --
Mr Desjardins: As I said in my outline, my statement, there are vulnerable employees and workers. They are protected, I believe.
Mr O'Toole: You don't have a union in your workplace?
Mr Desjardins: No, I do not.
Mr O'Toole: Do you treat your employees fairly?
Mr Desjardins: I treat my employees like family.
Mr O'Toole: Good. Do you negotiate with them, like who might work a Saturday and who might -- do you think some employees are more interested in time off in lieu of overtime?
Mr Desjardins: That's a possibility, yes.
Mr O'Toole: So there is flexibility in the new work arrangement of the new world order. Do you agree?
Mr Desjardins: That's right. I think businesses need that flexibility in order to meet the changes.
Mr O'Toole: I'm pleased to see a young person like yourself taking the time out of your business to make a comment, and I respect that. Are there any other pieces of advice you could give this hearing today and the people in the audience? Do you think that new business people, from that point of view -- what kinds of things should be in the employment standards? You've heard a lot of people saying about the Screaming Tales and all these various things.
Mr Desjardins: What I would suggest is -- it was mentioned earlier about posting the Employment Standards Act in the place of business. I would suggest that you write it in plain English so people can understand the damned thing.
As a chairman of a public board, we had an incident where we had to deal with the Employment Standards Act. I had a mutiny on my board because they all wanted to resign because they couldn't understand the act. We had to seek legal counsel -- again, we consider everybody who is part of that organization as part of the family. It wasn't a matter of any complexity, but there was just confusion as to what the bill meant.
Mr O'Toole: We've heard others say that. Thank you very much. I've really enjoyed your presentation.
The Vice-Chair: We still have approximately a minute and a half left if somebody would like to use it.
Mr Tascona: Have you ever dealt with the employment standards branch in this community?
Mr Desjardins: No, fortunately.
Mr Tascona: In terms of the process, do you understand how the act works?
Mr Desjardins: Yes, in broad terms.
Mr Tascona: What would you think about transmission by an employer for an order to pay to be done by fax or electronic --
Mr Desjardins: That would just seem like a logical extension of the improvements in telecommunication that we have now. This isn't the age of the pony express; this is the age of modern technology.
Mr Tascona: Have you ever heard any comments about the collection, the powers of the employment standards branch?
Mr Desjardins: I'm not privy to specifics, no.
Mr Tascona: With respect to bankruptcy, have you ever had any experience with bankruptcy?
Mr Desjardins: Fortunately, no.
Mr Tascona: But do you understand how the Bankruptcy Act works?
Mr Desjardins: Yes.
Mr Tascona: One of our problems is the insolvency of employers. Essentially 50% of the claims aren't collected because of employers going bankrupt. Do you think there should be changes to the Bankruptcy Act which are handled by the federal Liberals?
Mr Desjardins: I think that's probably in order, yes.
The Vice-Chair: We're within 15 seconds of closure, so I will take the liberty to do so. Thank you very much for attending our hearings this afternoon.
We will recess now until starting time at 2:15.
The committee recessed from 1307 to 1416.
The Vice-Chair: Good afternoon. I would like to reopen the hearings on Bill 49, the Employment Standards Improvement Act. Welcome, everybody present. Just as a reminder of the format, our presentation period is 15 minutes per delegation. Included in that 15 minutes will be a question-and-answer period if there's time at the end, which will be divided evenly between the parties. This afternoon the starting of questioning, just so we know in advance, is by Mr Christopherson.
OPSEU KINGSTON AREA COUNCIL
The Vice-Chair: We welcome you to our hearings, sir; if you'd like to introduce yourself.
Mr Gavin Anderson: Good afternoon. My name is Gavin Anderson. I appear before you as chair of the Kingston area council of the Ontario Public Service Employees Union and as the president of OPSEU Local 444 in Kingston. OPSEU represents close to 4,000 Ontario public service, community college and broader public sector workers in the city and vicinity of Kingston.
I begin by thanking the government for acceding to the demands of the NDP and agreeing to hearings on the proposed revisions to Bill 49.
Excuse me, could I have your attention, please? Thank you.
Mr Rollins: I've heard it before, but I'll listen to it again.
Mr Anderson: When did you hear me speak before?
The Vice-Chair: Excuse me. If you'd just like to continue, please.
Mr Anderson: Okay. I'm sorry. They were talking over me.
The Vice-Chair: I agree with you that it is best that everybody pay attention to the presentations, and I would ask you to proceed.
Mr Anderson: I begin again by thanking the government for acceding to the demands of the NDP and agreeing to hearings on the proposed revisions to Bill 49. OPSEU and the rest of the labour movement were extremely distressed that no hearings were held in regard to Bill 7 and the amendments to the Labour Relations Act. I hope and trust that these proceedings have been scheduled because the government has come to realize that consultation is the cornerstone of all working democracies, even those informed by common sense. Of course, at the point when consultation is offered before amendments and new laws are proposed, we will be on to something even beyond common sense, something akin to good judgement.
My comments regarding the proposed revisions to the Employment Standards Act as they pertain to labour in general will be very succinct. I simply refer you to the briefs presented by the Ontario Federation of Labour and the large unions in the province as well as the presentations that have been made before you earlier today. I will not use any more of my 15 minutes to repeat or elaborate on the very cogent arguments contained therein.
In respect to my own position as a local union president at a children's mental health agency in Kingston, I will be only slightly more expansive. My employer relies on a Ministry of Community and Social Services transfer payment for almost 100% of their budget. Cuts to this funding place enormous pressure on the employer to extract concessions from my local's members. The proposed changes to the ESA will further damage already strained labour relations by encouraging and enabling the employer to table further takeaways. The effect will be more conflict and hostility at an already tense bargaining table. For the government to posit that the opportunity to cede rights represents flexibility is patronizing and disingenuous.
It is in my capacity as a family therapist in Kingston that I wish to proceed with the heart of my text. I serve as the chairperson of my union's area council, and I am a local president, but these are voluntary, spare-time positions. My real connection to work and to my community comes through my job. I spend many hours every day, every week with families. I meet with these families because they include a child or children struggling with an emotional or behavioural problem and they have been referred to my agency for help. The conversations I have are about change and growth. I speak with parents and their children about making life better, about solving problems, about discovering or becoming reacquainted with competencies thought non-existent or forever lost. What all this talk comes down to again and again is the ability to love and to work.
I will leave the talk of family love for another day, but work is well within the purview of this standing committee and Bill 49. Essential to the emotional and physical health of any family is meaningful work and gainful employment. The value of work goes way beyond the immediate benefits of contributing to economic security and prosperity. Work is a central tenet of the human condition, and the consequences of not working are devastating to individuals and families. Yet this government, through initiatives such as Bill 49, undermines and attacks the humanity of work.
Turning the labour market into a free market through the lowering of employment standards and other forms of deregulation in order to compete successfully against the Third World and other unregulated constituencies within the global economy does not advance our civilization, especially when we measure the progress of our civilization through the voices of its victims, as I do every day of my working life. The social and economic Darwinism of this government generates casualties and cheapens our civilization. In all previous human history, competitiveness has meant heightened standards for achievement, not lowered expectations.
I submit to you, particularly to those of you on the government side who purport to uphold a commitment to family values, that Bill 49 is yet another assault on ordinary working people and their families, particularly the working poor. Promoting temporary, part-time, unprotected McJobs at the expense of real careers by diminishing the influence of trade unions and the role of government in the economy will not result in anything but a widening gap between those who have and those who do not.
The inevitable result of such descents into laissez-faire economic morality has always been social upheaval. We can read in the newspapers every day about civil unrest and revolution in Latin America and South America as our hemispheric partners struggle to catch up with our standards. Yet our provincial government acts to weaken and diminish those same standards so coveted by our southern neighbours. I am not being melodramatic when I report to you that I am beginning to see in the eyes of my clients and to hear in their voices a desperation that suggests an abandonment of hope and an eroding of confidence in our society's resolve, as embodied in governments at all levels, to maintain and enhance social justice.
Will you not reconsider this act and start fresh from the premise that work is not a free market commodity made of interchangeable units of labour? Work has human as well as economic value and must be governed by rules and standards that are bonded to something far higher than the bottom line.
Mr Christopherson: Thank you, Gavin, for your presentation. I want to deal with one issue that's related to this. It's come up time and time again. You felt it necessary to discuss it earlier, and the response troubled me. I've been hearing the government talk about the fact that a lot of the presentations are the same, because there are different locals of different unions, there are different labour councils; I would argue there are different chambers of commerce, but they have the same message also.
I think it's important that you be heard, from the Kingston area council of OPSEU, whether it's exactly the same message or not, because I want to know what you think. If it's the same as someone else, fine; if it's different, fine. I'd like to know whether you agree that your council from Kingston deserves to be heard and how you would feel about the idea that just because you may make the same points as others you don't have some right to be heard. How do you feel about that?
Mr Anderson: I feel insulted somehow. We're allotted 15 minutes to be read into the record. To have people dismissing that and talking over us because they've heard it before quite frankly is rude, to begin with, and disrespectful. Our area council and our members and leadership in Kingston have a right to be read into the record, and the second half of my presentation was very personal and I don't think that Mr Rollins or his colleagues have heard that particular message before. I would put it to him that there are hundreds of individual, personal messages that support the ideals I'm talking about coming out of Kingston and I'm not given the opportunity to read mine into the record.
Mr Christopherson: Fair enough. Hoping that we've now dealt with that head-on, we won't have to hear from that sort of argument again, but if we do it'll be taken on again.
I want to ask you about your concern about the future for our young people, about the abandonment of hope, as you put it, and the eroding confidence in our society's resolve to maintain and enhance social justice. Many of us were talking about that outside after the demonstration, about what all of this means. Bill 49 is a part of the whole Tory agenda in terms of hope for our children, not the privileged children of those who have, but for the vast majority of kids who are from working-class families. Can you just expand a bit on that for me?
Mr Anderson: Children need something to believe in. I think that work has been a valuable institution, and through deregulation we are dismantling work as something to be proud of, something to strive for. When children lose those ideals, they do lose hope.
The Vice-Chair: Thank you, sir. I'm sorry to interrupt you, but in fairness to everybody here -- we all know the rules; we're a three-party committee that set the rules -- and so that everybody in the audience understands as well, at the end of the question period the time remaining will be divided equally. I'm going to have to make sure that we allow all presenters today to get into the schedule. If you don't mind, when we talk at the end of dividing the time evenly, I will do that and then I'll have to cut off in the middle if we can't keep within in. I'm sorry about that.
Over to the government side, Mr Rollins.
Mr Rollins: Just an apology for when I wasn't paying attention. I expressed my concerns. I'm sorry that I wasn't paying attention. You were right in bringing that to my attention. Thank you.
Mr Anderson: Thank you, Mr Rollins.
Mr O'Toole: Thank you, Gavin, for a sincere presentation. It was different in the fact that you put a personal spin on it. On the broader scene, you as a member of OPSEU management are aware of the challenge of downsizing that we all face today. You and your leadership group are faced with the same dilemma, as I read in the paper every day of the week. Like OPSEU this government is sympathetic to that challenge, and I mean that sincerely. If you understand, there are two sides to it: the revenue and the expenditure side; whether it's the union-management group or it's the economy in general, it's the challenge we all face today in our society.
On page 2 you say, "The social and economic Darwinism of this government generates casualties and cheapens our civilization." Fear motivates, and did motivate the Luddites in the time of the Industrial Revolution, those people who did not have faith in mankind and the future, who lost hope, who clung to the past.
I put to you a question: As the world of work is changing, do you think we should resist change at all cost or should we become aware of the changing climate of work itself? You refer to the philosophical Darwinism kind of theory. That is the very edge of this discussion. The world of work is changing, not because of Mike Harris and this government; the world of work is changing --
Mr Anderson: I understand the question. I'm afraid I'll lose my opportunity to answer.
Mr O'Toole: Good. Thank you.
Mr Anderson: The question you raise concerns the role of government. Clearly there are changing economic conditions, and the question is --
Mr O'Toole: The federal or the provincial?
Mr Anderson: The question is, who manages, influences and controls this change? I believe that the government has a role, particularly when it comes to labour, because labour is not --
Mr O'Toole: OPSEU is powerless. Is that what you're saying to me?
Mr Anderson: No, I'm not.
Mr O'Toole: I'm just trying to get a balance.
Mr Anderson: I'm saying that OPSEU believes in government.
The Chair: Excuse me. We'll give you the time in a second. Just so that everybody is aware: People in the audience, please allow the conversation to go on between the presenter and the person asking the question. I understand your feelings, but the discussion right now is between those two parties. Continue, sir.
Mr Anderson: OPSEU, quite clearly, believes in a different role for government than the present governing party. We don't believe economic conditions should be in the hands of the people who control the money, and that's what's happening now. More and more, we have governments at all levels, federal and provincial, that are bowing down to a global free market economy.
Mr Lalonde: Thank you, Mr Anderson. Do you feel that there was a need to come up with changes in the Employment Standards Act?
Mr Anderson: The changes that our members would have liked to have seen come through the lines of enforcement. I think the law on the books now is a weak law in the sense that there is no way of enforcing compliance. I've read many pieces of analysis and commentary that suggest that fully a third of employers were not complying fully with the Employment Standards Act. One way to do that is to say: "How are we going to force compliance? Through workplace inspections or increasing penalties, providing a disincentive for employers to cheat."
The way that this government appears to have resolved, or attempted to resolve, the problem of non-compliance is to lower the bar, to lower the standard, so that fewer competitors will not have to feel that to be competitive with their complying competitors -- in other words, the competition that was set up here was that businesses that complied were at a disadvantage with businesses that were not complying with impunity.
To circle back to your question, the changes were not so much to do with the substance of the act as it stands now, but to revisit the whole idea of compliance and penalties and inspection so that workers were really protected by the act. These new revisions, no matter what it says in this new act -- I notice that there are tiny little bits of improvement, perhaps in the area of maternity leave or vacations -- but without some enforcement mechanism, that will not make any difference for people who are working in jobs and in fear of being dismissed if they raise any complaint at all.
The Vice-Chair: Thank you very much for making a presentation today.
The Vice-Chair: I ask that Doug Whitley come forward, please. Good afternoon, sir.
Mr Doug Whitley: I would like to welcome you to Quinte country. I trust your stay will be enjoyable. You've come to leave your last visit to God's country down here.
My name is Doug Whitley and I come to you wearing two hats today: firstly, as co-chairman of the Trenval Development Corp, a federally funded job creation organization funded by Industry Canada. We endeavour to create new jobs, keep the ones we have, and to help industry and commerce with any type of problem they might have. In addition, we have a business development bank which is really a mini-bank of last resort. We lend up to $75,000 for new business startups or to assist existing businesses to expand or buy equipment. We try to help them with their existing banking facilities first. When that fails, we make every effort to make the loans. Our criteria for loans are not as strict as in the regular banking community. We can take security that others will not. Our board members, including myself, are all volunteers. We have a paid staff of three people, including a chartered accountant.
The other hat is as a general insurance broker who has 45 people working in seven offices. The business was started cold in September 1949. I might add -- it's been brought up here earlier today concerning the new automobile insurance act that's been implemented by the government -- that a number of my companies have filed to have rate reductions, and one of them has filed for an 11% reduction in the automobile rates they're charging at the present time.
I have read the documentation over and over regarding the hearing on Bill 49. From the perspective of Trenval and my own business, it appears to be fair and reasonable and should be implemented. Since we are continually visiting industry and commerce in our Trenval activities, we hear their concerns. I urge the committee to heed the paragraph on page 2, which reads as follows and speaks directly to what they continue to tell us, and this is what it is as I paraphrase it: We also need to eliminate unnecessary regulation. The Carr-Gordon report to the government's red tape commission recently concluded that many employers, especially small and medium-sized businesses, see Ministry of Labour laws and regulations as obstacles to growth and job creation.
The Trenval board of directors applaud most of the proposed changes that will simplify the administration of the Employment Standards Act. However, we do have the following concerns:
The proposed introduction of commercial collection services will impose additional costs to businesses. It is imperative that there be no cost to employers if they make settlement within a specified period.
The appeal process for both employees and employers must be seen to be fair. A final appeal board, including members from labour, business and government, or, alternatively, an ombudsman, is recommended.
Consideration must be given to sanctions for repeated spurious claims.
Our main criticism of what is proposed to date is the downloading of costs to employers without any apparent reduction of ministry staff and associated savings to provincial budgets. It is clear to me that the committee should work diligently to implement Bill 49. In this way, the employers, in cooperation with the people who work with them, can compete in the global marketplace.
Mr O'Toole: Thank you very much for your presentation. I just want to stray for a moment and comment on the amendments to the Insurance Act. You were saying quite favourably that some of the companies you represent in your business are persuading you to pass on 11% savings to the customer. Is that right?
Mr Whitley: What's happened is that almost all of the companies in my office, and I represent 35 companies, have asked the government regulation committee for reductions. As you know, they have to apply to the insurance commission to either make an increase or make a reduction, and most of my companies have applied for anywhere from 3%. The top one was for an 11% reduction in the new automobile rates to commence on November 1.
Mr O'Toole: That's an important concern for constituents, I'm sure, in my riding and certainly here in Quinte.
I also want to pick up on your note on the Carr-Gordon report, the very serious concern for small and medium-sized business. For the whole Ministry of Labour's effort of paperwork and bureaucracy and jumping through the hoops, do you think this bill and the proposed phase 2 of the Employment Standards Act and its consultation process are the right way to bring the labour legislation in this province up to date?
Mr Whitley: Yes, I do.
Mr O'Toole: Do you have anything specifically, and I mean as a small entrepreneur, that you can say is really a step in the right direction? The six-month period perhaps, the collection period? Are those the right things to be doing to make sure we collect the claims that are outstanding?
Mr Whitley: I would like to tell you that putting private entrepreneurs out there to collect the money that's owing will be far more efficient because that's what they do.
Mr O'Toole: That's their main job.
Mr Whitley: They do it very well. This is going to get money into the hands of the people who deserve it very much quicker than they will ever expect to get it in any other way, because there's no way that any government can be as good as private enterprise. As far as I'm concerned, the government is not a good collector, and I believe the other people would do a better job.
Mr O'Toole: You're a businessperson and a community person, and as a businessperson you want to be -- I'm sure most employers want to be -- a good boss. Would you agree with that or do you think there's an imbalance today, that there are a lot of bad bosses around, the OFL kind of thing I'm hearing?
Mr Whitley: I can only tell you that we visit all of our industries in the Trenval area and most of our commercial operations, and I don't find the anger and the type of thing that I've been hearing around here exists in the greater Quinte area. If there is some of that occurring, as a member of the chamber of commerce and the downtown business improvement area and a member of Trenval and other organizations, I don't see that, I don't hear it. I talk to these people. Many of them are my insurance -- I don't hear this, so I don't know where that's coming from.
Mr O'Toole: I think we're working on it. It's been a beautiful visit here in this area. It's a wonderful community. Thank you very much.
Mr Chudleigh: I was just interested in your comments about downloading the costs to the employers. Could you expand on that? In what way are those costs being downloaded?
Mr Whitley: Whenever you make any kind of change to a program, in the collection process, for instance, it means that someone from the firm is either going to have to go to court, if it happens to come to Small Claims Court, or if it happens to be any other particular thing that's added, it requires more paperwork, more reporting. I can tell you that one of the firms that I visited recently, with the federal, provincial and local, they had seven inspectors in one week. I have to tell you that gets to be pretty damned ridiculous. Nobody can put up with that. It disrupts the work, it doesn't allow you to carry on your business and it's got to stop.
Mr Lalonde: I'm very surprised to read this on page 2: "The proposed introduction of commercial collection services will impose additional costs to businesses. It is imperative that there be no costs to employers if they make settlement within a specified period." Who do you think should pay for it?
Mr Whitley: The cost of the collection procedure will have to be settled some way with the bill. Normally, what happens is if I have someone who doesn't pay me, I go to Small Claims Court and the costs are added on to the judgement and therefore it's paid by the person who is involved. I see this as happening. If an employer is that bad and refuses to cooperate and is clearly wrong, then the cost of collecting the money ought to be added on to the amount of money that's owing to the individual.
Mr Lalonde: That's not what it's saying here, though.
Mr Baird: I think you misunderstood it. It means the 45 days they have to pay. It takes 45 days.
Mr Lalonde: As long as the employee is not stuck to pay that percentage that has to be paid to the collection agency.
Mr Whitley: I would personally feel it would be very wrong if the legislation took any part of the employees' money away from them in the collection process. That would be a shame.
Mr Lalonde: Don't you think we should have the name of that employer published if he was found guilty?
Mr Whitley: If he is taken to court, it's certainly public knowledge, so there isn't any way that can be avoided. I don't know that you create a better atmosphere between employees and employers by putting them in the paper or making an issue of it in that respect. I think the normal method of reporting at the present time is sufficient.
Mr Christopherson: Thank you for your presentation. Just a brief comment on the idea that there are not many or any bad bosses, if you will, in the area: That's sort of surprising, given the amount of attention that the Screaming Tale got, which is from this part of the province, which is what the OFL and the NDP and anybody else who cares about working people I think would describe as a bad boss. That's a bottom-feeding approach to hiring workers, and the only saving grace is that it's shut down. I'll give you a chance to comment on that, but I want to get to a question.
You make the comment, or at least you underscore the comment in this report of a couple of Tory backbenchers that the "red tape commission recently concluded that many employers, especially small and medium-sized businesses, see Ministry of Labour laws and regulations as an obstacle to growth and job creation." I'm sure you can appreciate that this just brings out huge alarm bells from people in the labour movement and those who represent working people, particularly those who maybe don't even have a union, and we've heard from some of those today. You go on to say, in terms of supporting Bill 49, "In this way, employers in cooperation with the people that work with them can compete" -- quote and underscored -- "in the global marketplace."
The presentation before you from Gavin Anderson, from OPSEU, said, "Turning the labour market into a free market through the lowering of employment standards and other forms of deregulation in order to compete successfully against the Third World and other unregulated constituencies within the global economy does not advance our civilization." How would you respond to trying to reconcile those two different points of view of the same subject?
Mr Whitley: I think we're putting our heads in the sand if we feel that we can continue to operate the old way and if we don't have complete cooperation between the workers and the employers. The fact of the matter is that the Earth is changing and we have to change with it. We are going to have these people who will outsource in the Third World, and although we can't bring our prices or our labour down to the particular amounts that they charge and get away with, we still have to ameliorate some of the problems. We cannot continue to have our jobs go south of the border, go to Mexico, go to the Third World. We have to do something, so labour has to talk to management. They have to talk together like they do in Germany and some other places. They have to discuss the situation and agree on how we're going to fight this.
Mr Christopherson: Would you not agree that it would make for a better world if we all worked on trying to raise the standards in Mexico instead of trying to lower ours to theirs?
Mr Whitley: I think every country is endeavouring to do that. I know Canada spends a great deal of money in the Third World trying to raise their standards. I'm a member of the Rotary Club in Trenton and we spent virtually thousands of dollars to upgrade water systems in villages and educate the people and teach them how to do things. I believe that government can't do everything. I believe it's the people who have to begin to take some of the responsibility. It can't be totally the government. The government has to make regulations and do things that they think will enhance the life of the community, and I believe this government is endeavouring to do that. It may be a change that you don't like, sir, but I think it's something that has to come.
Mr Christopherson: With respect, I would disagree with the premise entirely, because Bill 20, which takes away environmental protection, is a responsibility of the government. People who destroy the environment can't be given a fine and a slap on the wrist and make things right. It's gone. That's all part of this government's view of global competitiveness.
Now we're into Bill 49, which is the bill of rights for workers. It's the only right that a worker has. One bill is their only right if they don't have a union. Everybody who's come in here representing working people has pointed out, lawyers have pointed out -- you're going to hear from a church representative this afternoon -- the labour movement itself, everyone has shown that this is taking away minimum rights from workers.
The Vice-Chair: I'm sorry to interrupt you, but we have now exceeded our time limit. Thank you very much, sir, for making your presentation this aft.
Mr Whitley: Thank you, Madam Chairman. A pleasure.
The Vice-Chair: While the representative from Communications, Energy and Paperworkers Union of Canada, Local 534, comes forward, I would ask the indulgence of the panel members here. There have been two cancellations on the agenda for this afternoon. One is at 5 o'clock; the Canadian Staff Union from CUPE has asked to be cancelled, as well as the one at 5:30, the Ontario Public Service Employees Union, Local 358. We have had as of today, since arrival, two requests for presentation time, and I would ask for either committee approval or disapproval to add at 5 o'clock Alan Whyte, labour employment lawyer from Belleville, and for 5:30, Colleen Sine from Solar Taxi. Are there any comments? All those in favour of doing so? Okay, thank you. We'll take the amendments as recorded then.
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA LOCAL 534
The Vice-Chair: Good afternoon.
Ms Linda MacKenzie-Nicholas: Hi. I'm Linda MacKenzie-Nicholas and I'm the president of Communications, Energy and Paperworkers Union of Canada, Local 534. To my right is Tim Newton. He also is a member of our local and is a steward. On my left is Brenda Briggs. I will be the spokesperson. I hope you welcome my sister and brother here, because it's a learning experience for them. It's the first time for them to ever see a standing committee.
I only have 17 presentations, so if you can share them, all right, because that's all I brought with me. They should be on their way around.
The Vice-Chair: Excuse me for a moment, please. We don't have those. We only have one right now for the sake of the Hansard.
Ms MacKenzie-Nicholas: They're on their way around.
The Vice-Chair: If you could just hang on a second while we pass them out, instead of eating your time up. If you'd like us to pass them out first so we can follow.
Ms MacKenzie-Nicholas: Whatever's best for you.
The Vice-Chair: Everybody got one now? Sorry about that.
Ms MacKenzie-Nicholas: That's okay.
As I said, this submission is made on behalf of the 200 hourly members who work at Budd Plastics in Cobourg. Our work is in the automotive parts sector as a tier one supplier to General Motors, Ford and Chrysler. We know first hand what "competitive" means in the global market. We live day by day with the impact of just-in-time inventory building, QS 9000, four years or less of life cycle for automobile parts. Due to just-in-time inventory demands and the unreliability of consumerism, we have about 35% of our membership that lives through frequent layoffs on a regular basis.
We are no strangers to the harsh reality of the global marketplace. At one point, in order to secure our jobs, we took a 10% wage decrease. We did not do that out of pride but simply necessity. We have families, brothers, sisters, children, grandchildren and homes to pay for like any member of the standing committee before us here, and we pay taxes to the Ontario government. In fact, some of our present-day members have 40 years' service at our workplace. Whereas the building has been the same since 1948, our employer has been Canadian General Electric, the Complax Corp and, since March 1995, is now the Budd Plastics division. We have lived with change and we have worked progressively in most aspects through it.
What we expect from the Ontario government is fairness as workers, which includes the strong encouragement for growth of secure jobs, affordable wages and recognition for the economic value we add to society as fully participating citizens in our communities. We went through restructuring associates training and interest-based negotiation training, and those are the goals that the local has decided are important for all our members.
We have taken a look at the proposals found in Bill 49 to explore how they conform to our expectations from the Ontario government. The following is the result of our research on those issues.
Limitation periods for claims, proceedings and appeals: While the words "prompter, more effective and cost-efficient enforcement of employment standards" sound like an action plan that anyone would want to be a part of, we feel that there are more issues that need to be considered.
It has been our experience that workers, for whatever reason, right or wrong, are not always aware of their rights in the workplace, and neither are many managers. Quite often the impact of this lack of knowledge results in employees being denied legitimate rights. For example, in our own area, in the town of Port Hope, we are well aware of the situation of Screaming Tale.
In this case, the employer felt that it was within its rights not to pay its servers. Some of the servers themselves had been convinced that the employer's philosophy was also the correct one. How this issue was brought to light was through an employee working at that bar who had a friend with legal experience who informed the person that what this employer was doing was a violation of the Employment Standards Act. Still, this person felt too intimidated at that time to lodge a formal complaint with employment standards against the Screaming Tale employer. Fortunately, two other previous employees did lodge a complaint, but only after Northumberland Labour Council and the Northumberland Community Coalition organized a protest against the practices of the Screaming Tale wage -- or lack thereof -- policy.
This situation proves the difficulty of employees, first, to know what their rights are and, second, to obtain justice where their rights have been violated. We agree that claims that have gone on for a long time are difficult to investigate, but how does shortening the length of time to file claims promote the rights of the employee? How would shortening the length of time of filing a violation have promoted the rights of employees at Screaming Tale in a more prompt, more effective and cost-efficient manner? We would like to suggest that this proposed change has no value added to employees who are victims of violations of the Employment Standards Act, whether intentional on behalf of the employer or not.
We of CEP Local 534 have, of course, a grievance procedure that can be found within our collective agreement. We have one year to file a grievance on any issue where a member feels their rights have been violated. In the almost 50 years our procedure has been in existence and the hundreds of people who have been in this workplace over time, the timing of when we file the complaint after the incident occurs has never been an issue. Our employer has never seen the need to bring that issue forward to the bargaining table. Therefore we feel, through our own practical experience, that the length of time to file a complaint should be a non-issue for the government and will not assist in any way to resolve violations of the Employment Standards Act.
Frankly, we do not see the need for the government to spend any time further on this issue at all. This proposed change does nothing to promote fairness, secure jobs, provide affordable wages or give recognition to the value to society of workers as fully participating members of our community.
What does concern us, though -- and this is still part of the act -- is "no changes are contemplated for time periods covering the issuing of orders or the start of prosecutions." Two years to have to wait on the ministry to issue an order to pay a claim where there has been a recognized violation of the act, or to decide to not issue such an order, is simply too long. Where is the fairness in proposing a shortened time period to file a claim for the employee while the guilty employer could be rid of its obligations to follow the law for up to two years? Again, we do not feel that such suggestions would fall within our expectations from the Ontario government as working taxpayers.
Minimum and maximum amounts for employment standards claims: It is our understanding at this time that the Ontario government has withdrawn section 3 of Bill 49 that would have resulted in the placing of employment standards on the bargaining table. We are pleased to have heard of this move by the Ontario government and support it fully. This type of action by the Ontario government does fulfil our expectations as working Ontarians and members of CEP Local 534 at Budd Plastics.
Avenues for addressing violations of the Employment Standards Act: Our members do not support being treated any differently than non-unionized employees by our government of Ontario. We do not see how suggesting our union becomes the enforcer of the Employment Standards Act, instead of the government itself, promotes for us secure jobs, affordable wages or shows recognition from the Ontario government for us as valued, productive citizens in the province of Ontario. Belonging to a union is not a free service. We pay money for that representation. We decide at membership meetings monthly, through democratic procedures, the direction our local union takes.
Of course, the government is not a free service either. We pay taxes in order for the government to provide those services. We are well aware of this every time we pick up our paycheques, which is on a weekly basis. We do not agree that it's fair that our government should have the right to save money off the backs of local unions' treasuries. We do not agree that those who choose not to form a union should receive more services from the government than those who choose to form one. We feel that our government is taking unfair advantage of its policymaking powers by forcing us against our will to become financial enforcers of the Employment Standards Act in Ontario.
Our collective agreement is designed by members of CEP Local 534 and our employer. Therefore, it is only right and just that the parties who design the agreement are held responsible and accountable for its implementation.
The Employment Standards Act is a law of the province of Ontario. As such, it is up to the government to be held responsible and accountable for its design and implementation. If the government wants the union to financially police the act, then we suggest that the members of CEP Local 534 should have the right to sit down and bargain with the government all of the issues regarding the Employment Standards Act. How we see this proposed change is that the government would legislate a law that saves it money by taking unfair financial advantage of those who pay union dues.
There is also the concern of work overload. All but one of our union representatives in our local is 100% volunteer. It is difficult to do our production jobs and then go on to representing our members. It takes a great deal of time to investigate issues. We simply cannot afford to take on the government's workload. Additional work for our volunteers will not bring the members we represent more justice.
Perhaps the government is also unaware how long it could take to send a grievance to arbitration. It is possible to have to wait two years to get a grievance heard in front of an arbitrator. Leaving more issues and/or concerns to be resolved does not add up to more effective enforcement of the act or a happier, more productive workplace.
As the services of an arbitrator are quite expensive, the only difference will be that the members of our local will have to pay more to deal with violations of the Employment Standards Act for services that other workers obtain from the government directly at far less cost.
We feel quite strongly that these proposed changes under this section will be less cost-efficient to employees and members of unions. Again, these proposed changes do not respond to our interests of job security, affordable wages and receiving recognition for the economic value we bring to our communities as workers. In fact, we feel the government is penalizing us for being members of unions by providing us with fewer services than those workers who are not members of unions.
Clarifying entitlement to pregnancy and parental leave: It is comforting to note that this section appears to promote our expectations/goals from the Ontario government and we support these changes.
Summary: We feel strongly that this government appears to not understand what it is to work in a unionized environment. The advantage of democracy in a workplace appears to be lost somehow to a government that itself was elected through democratic processes. In fact, we would like to know how many of the Progressive Conservatives in government have actually been a union member for a period of two years or more. We do not feel there could be many who have been union members, as the lack of understanding being shown to unionized workers through these proposals by the Ministry of Labour is extreme.
Our workplace represents democracy in action through joint committees, issue resolving, active listening, communication and consensus building. We know our employer would stand with us when we say this government should make the same effort to build relationships among all different sectors of the Ontario population.
With our submission, we wish to request that the government not only leave the broom in the closet but try a different method of housekeeping altogether. We feel that employees in our community need stronger enforcement of the Employment Standards Act. We feel that accessibility to employment standards needs to be improved for all complainants. We also feel the government should take on more responsibility to its constituents by communicating more frequently about the rights the people of Ontario have through the Employment Standards Act. We feel this type of communication and enforcement will help us to achieve our members' goals of fairness, growth of secure jobs, affordable wages, and recognition for the economic value we add to society.
With one exception only, as stated already, we feel strongly that Bill 49 does not fulfil our membership's objectives from the Ontario government as set out above.
On behalf of the membership of CEP, Local 534, we thank you for your time spent listening to our concerns.
The Vice-Chair: Thank you. We have less than one minute per caucus, starting with Mr Lalonde.
Mr Lalonde: If this Bill 49 receives royal assent, what will that mean for your collective agreement?
Ms MacKenzie-Nicholas: It will probably mean to us additional work that before we could have government assistance on, which was always much appreciated, because as we're volunteers, there's a lot of time we don't have the training and the education that maybe we should have to represent our membership. It has been wonderful to have the government assist us on those issues. So it will be definitely a problem.
Mr Lalonde: The fact that now your members will have to go through your union whenever they want to apply or if you get an employee who didn't get his proper salary or adjustment, would that incur additional expenses to your union?
Ms MacKenzie-Nicholas: Yes, it will, because usually these types of things have to be done between the hours of 8 and 5, and a lot of us work different hours than those, so our lost time will have to be covered, which means that will be a direct cost to the union. Our employer pays for every meeting that we have with management, generally, but for the additional investigation purposes, it will be a direct expense on to the membership.
Mr Lalonde: Will that mean a possible increase to your members?
Ms MacKenzie-Nicholas: It could be, yes.
Mr Christopherson: Thank you very much for your presentation. It's good to see you brought new people to be exposed to and experience the political process, such as it is. So I'm glad to see you're both here. That's good leadership on your part, I would say.
Ms MacKenzie-Nicholas: Thank you.
Mr Christopherson: I would like to take a minute, because it's unfortunate that a lot of the employers and chambers of commerce folks who come to these hearings, because we tend -- at least my party is focusing primarily on the bad bosses, that we see all employers that way, and that's not the case. The world is not made up of all bad people; at least I don't believe that. But unfortunately, something like the Screaming Tales is the best example of the fact that that type of bottom-feeding existence does happen, and that's why there has to be protection, so we can only do this in this area.
I'd like to take a second and ask you to kind of expand on that. Exactly what was going on? Again, you've noted that people were afraid to make a complaint, and we've tried to say that over and over, that shortening the time will deny people rights because they're afraid. Can you talk to us a little bit about went on at the Screaming Tales?
Ms MacKenzie-Nicholas: What I can say in that one case is that individual was terrified and didn't make the complaint and continued to work there. She was only 19 or 20 years of age, somewhere around there. It was her first job and she wanted the money. It sounds like there was some opportunity there, it sounded good what maybe they could do, but when she found out that this was a violation of the act, she would not go forward. She worked in that workplace and never got paid and never laid a complaint.
Two of their previous employees did lay a complaint and the government did respond to it, but this woman who didn't do it, at the end of the day, what happened is that Screaming Tale in Port Hope closed down and here's this woman who had worked all along, saying, "Well, maybe this'll work out," didn't lay a complaint, and that employer left. It snuck out the back door; you're probably aware of that. It literally snuck out the back door. She went to work that night and she didn't even know she no longer had a job. It was very frustrating. It was very conflicting in the community. There were lots of arguments in between. But not all employers are like Screaming Tales, thank God for that, but very despicable.
Mr Christopherson: I think it's fair to say that points out why you're here fighting to protect these rights --
The Vice-Chair: Mr Christopherson, I think that it's fair to recognize the minute was expired, and another minute as well. Mr Ouellette?
Mr Jerry J. Ouellette (Oshawa): I believe Mr Baird has a question.
The Vice-Chair: Mr Baird, any questions? Mr Tascona?
Mr Tascona: Thank you very much for your presentation. Does your grievance procedure work very well at your company?
Ms MacKenzie-Nicholas: I think our grievance procedure works very well. The problem is once it gets outside of the workplace and it goes to an arbitrator.
Mr Tascona: How many arbitrations do you have a year?
Ms MacKenzie-Nicholas: How many arbitrations have we had recently? One.
Mr Tascona: Do you cover health and safety act matters in your collective agreement?
Ms MacKenzie-Nicholas: Yes, as well as the act.
Mr Tascona: Do you cover the Human Rights Code in your agreement also?
Ms MacKenzie-Nicholas: As well, yes. The Ministry of Labour comes down, though, from health and safety. It was just there yesterday.
The Vice-Chair: Thank you very much for your presentation.
BUILDING A STRONGER INVOLVED COMMUNITY
The Vice-Chair: I'd appreciate it if the representative from BASIC would come forward, please. Good afternoon, sir. I would ask you to introduce yourself to the panel and the public, please.
Mr Rob Hutchison: My name is Rob Hutchison. I'm here as a member of the steering committee of BASIC, which is a community organization representing 42 agencies, organizations and labour locals and 300 affiliated individuals who are affected by the provincial government's austerity program in many different ways, of which Bill 49 is one.
The Vice-Chair: Excuse me. Could I just ask if you have a prepared presentation for the members of the committee?
Mr Hutchison: No, I don't. I'm just reading it into the record.
I'm not going to go into the specifics of the act, because a number of people have already addressed them. I'll just say a few things about it.
The first aspect is the Bill 49 items of concern.
Bill 49 makes an inadequate piece of legislation even worse for employees. We are sure that other presenters will have given detailed analyses and objections to Bill 49 to the committee. Particularly, we wish to endorse the position taken by Parkdale Community Legal Services in their submission of August 19, 1996.
I would like to pass to some general recommendations which have come up.
The Employment Standards Act should be amended to change the court system, if you're worried about small amounts, so they can be dealt with in the manner of Small Claims Court, provided there are changes to the legal aid plan and increased funding for that plan that allows the legal aid plan to cover employment cases. In that way you can get rid of the objection that people don't have the money to afford lawyers.
Third-party complaints through legal agents such as the legal aid plan. Lawyers would act as the gatekeepers to the system to weed out frivolous claims.
Full audits of employer practices triggered by individual complaints against employers by job category through full company audit on an escalating scale depending on the frequency of non-compliance.
Fines for employers who are in non-compliance, after the first instance, to discourage repetitive occurrences; who are in repeated non-compliance; and who do not pay orders within fixed time periods.
Mandatory posting of the act in all workplaces. This should be a basic requirement.
Shorter time limits on ministry investigations.
Heavy penalties for firing workers attempting to enforce the act; otherwise the act is relatively worthless.
What I would like to address in a little bit more detail is the economic context and the motives or assumptions that appear to be behind Bill 49.
The provincial government's presentation of Bill 49 proceeds from the assumption that the workplace, in the words of the Minister of Labour, needs greater flexibility and self-reliance in the procedures for compliance and enforcement of the Employment Standards Act. The minister apparently wishes to make the employment standards complaint system work more efficiently; that is, release employers from red tape so they may have more time to produce their companies' products. In its rush to achieve these perceived efficiencies, the government appears to be missing possibly unintended but still pernicious effects of the bill when placed in combination with other economic and social factors.
The government's presentation of Bill 49 takes place in an economic context of persistent high unemployment and falling real wages. Economists from banks to labour unions are saying that unless consumer confidence is revived, the economy cannot be revived. Those economists cite high real interest rates, high unemployment, plus government cuts and falling real wages as the main causes of low consumer confidence. They are the largest drag on the economy today.
Some statistical and analytical evidence is worthwhile here.
It is widely recognized that real wages have been dropping over the last 20 years. According to the Canadian Council on Social Development, 1996, the average income for most families -- that is for the lowest 60% of families by income -- dropped between 2.7% and 31.9% between 1984 and 1993. Only social program transfers prevented the drop from being worse. Recent cuts to social programs at both the provincial and federal levels will exacerbate this trend and further weaken economic demand.
The effect of unemployment has been massive, pervasive and vastly underestimated by most governments and commentators. Unemployment has been over 9% for 71 consecutive months in Canada. In Ontario, unemployment has persistently ranged from 8% to 10% in the 1990s. Based on a Statistics Canada survey of consumer finances, the current reported Ontario unemployment figure of 8.5% represents 526,000 individuals -- that's actual, unadjusted figures -- and between 789,000 and 946,000 family members affected by unemployment. Is it any wonder that consumer confidence is undermined, tax revenues have dropped and government deficits have increased?
Underemployment has also become pervasive. In 1992, across Canada, 42% of workers were employed part-time, employed full-time on a temporary basis, or unemployed for part of the year. That's from the Ontario Royal Commission on Learning. Similar figures persist into 1996. For example, recently the Toronto Star reported that the use of temporary workers has risen by 421% since 1971. This is a direct result of dropping employment opportunities. Ontario has not escaped this development.
Employment insecurity has soared. Between 1984 and 1994, the proportion of new jobs that lasted between one and five years dropped from 21% to 16%. The average length of one-year-plus jobs today is only 3.8 years. Over the same period, new jobs lasting less than one year increased from 59% to 64%. Given these numbers, it is hardly surprising that most Canadians -- 56% -- believe that the middle class is shrinking and they are next, according to a Vector Research and Development poll.
The general effect of Bill 49, however inadvertent, will allow employers more latitude to avoid their legal responsibilities to their employees if they are so inclined. It will make employees more vulnerable to exploitation and undermine their bargaining position for better wages and working conditions. This in turn will undermine the worker's confidence in the security of his or her work placement and their economic expectations. It will, perforce, undermine workers' confidence as consumers.
Fundamentally, Bill 49 proceeds from the unspoken and untested assumption that less regulation -- call it flexibility, self-reliance or efficiency -- leads to more economic activity, which will lead to greater profits, which will lead to greater prosperity. Wages, benefits and working conditions do not enter the equation of the government's assumption except as indirect byproducts of economic activity and profits. There may be some truth to this assumption, but it is partial at best. Wages and benefits, and the consumption they represent, are an essential counterpart to profits and prosperity in the economic cycle, especially for small business.
In short, the government's position assumes that the role of consumption is a given. But workers are consumers, and worker confidence directly affects consumer confidence. Workers not secure in their employment and employment prospects do not make confident consumers.
As indicated here, the latest evidence demonstrates that unemployment, underemployment and job and wage insecurity persist at high levels for a majority of the population. That's the primary source of the lack of consumer confidence. Two thirds of demand on the spending of the Canadian economy is based on the spending of Canadian households and their investment in housing.
At least 75% of Ontarians are workers working for a wage. As a class, they will be negatively affected, directly or indirectly, by the changes proposed to the Employment Standards Act.
Bill 49 will tend to have the effect of further undermining worker-consumer confidence even beyond the effects of high unemployment and declining wages. This in turn will tend to undermine incomes, tax revenues and lowering the deficit. It will tend to create conditions that undermine aggregate demand and thereby exacerbate conditions that lead to more business bankruptcies.
If the government is serious about lowering the deficit, what purpose can Bill 49 possibly serve? Or, as some critics suggest, is the government really only interested in giving some of its business supporters a quick fix?
If some businesses demand government create conditions to help them cut their costs at the expense of wages and benefits, as the government indirectly has through Bill 7 and now Bill 49, it enters a vicious cycle. You get cuts, then the fix cuts wage and benefit costs and that satiates the situation momentarily. But effect of the fix is unintentionally pernicious. It also cuts demand, and when demand falls, so does business revenue and we're in that cycle now. Gasping, desperate, business demands another fix and more cuts. Does the government give it to business, or some business we should talk about, or does the government realize the supply-siding the junkie just doesn't work? At best, the government's actions that induce lower wages and benefits is a short-term fix which undermines the solid mid- to long-term recovery.
On the contrary, prosperity depends on spreading largess around and letting demand work through the economy to everyone's benefit. Bill 49 is not part of the solution; it almost certainly could be part of the problem.
If the government really wants to improve the economic situation, it could do all or some of the following:
The persistent causes -- and there's not a lot of talk about the real causes -- of unemployment and underemployment and low consumer confidence are high real interest rates, free trade and the effects of semi-automation -- computerization and robotics etc.
The Ontario government could pressure the federal government to adopt a policy of pursuing the lowest possible real interest rates; pressure the federal government to renegotiate the free trade deal to allow for performance agreements in key sectors to protect our own sectors and our own jobs; create jobs in the non-profit social sector in areas such as education, infrastructure, housing, fisheries, forestry, agriculture, health, social services, communications and transportation.
I refer you to The End of Work by Jeremy Rifkin and The Jobless Future by Aronowitz and DiFazio where they point out that semi-automation in material production, distribution and finance has created a permanent lack of jobs in those areas. The government is currently going in the opposite direction in the mistaken belief that enough material production and distribution work can create a sop for unemployment. For most Ontarians, that is the road to ruin.
The government could also try limiting overtime to cause full-time job openings; shortening the workweek in selected sectors at the same pay, the difference in costs to be made up in productivity gains, especially in the strong export sector which is the main beneficiary of current government policy -- you can see the results in any newspaper these days, as this has been done successfully in Europe; promoting work sharing; limiting the use of part-time work to promote full-time employment; advancing benefits to full-time and part-time workers on a pro-rated scale to promote worker-consumer confidence and economic demand. Thank you.
The Vice-Chair: Thank you. We have just over one minute per caucus. I would like to start with Mr Christopherson, please.
Mr Christopherson: Thank you for a fascinating presentation. We don't have a lot of time, so I'll just ask just a very simple question. Given all that you've researched and understand, and it's quite impressive, what do you think a young person sees right now who's seeing the end of their school career looking at adulthood, employment and their life? What's in front of them the way we're going with this?
Mr Hutchison: We know that youth unemployment is really high and we also know that those -- I believe the stat is up to 29 years -- who are 29 years old or less are earning less than their parents did at a similar time in their life. That does not bode well for the future of the province or the country because that means we're going to be looking at even further weakened economic demand and so everyone will suffer.
I don't think small business has thought this out. I really don't. I talk to small businesses, I deal with small businesses myself and frankly I don't think there's the unanimity of opinion out there that the government seems to think. A lot of small businesses are scared. It's like this: When I worked for business, costs are one thing, but you've got to have revenues. You can have the lowest costs in the world, but if you don't have revenues, you've got to close up shop. I've worked in the private sector. I've worked in the non-profit sector. I've worked for government. There are good, creative people and good enterprise in all sectors and really the mythology that it's one or the other is nonsense. Please, let's be realistic about this.
Mr O'Toole: Thank you very much, Rob, a very complex presentation. I would like a copy of it and if you want, I'll give you my card afterwards.
Mr Hutchison: Sure.
Mr O'Toole: It's very difficult to sit here and listen, but I want to make a couple of points in the few seconds. Posting the act in the workplace is a further cost to business. That implies that every employer's bad. The reality is that very few employers are bad bosses and if the OFL has statistics and data, I want to hear it and see the numbers and verify them, because why should we discourage more jobs by more red tape? That's not a solution. That's one.
Small claims and minimum standards: The minister has clearly said there is no minimum standard. I also ask the question: Should we spend $1,000 to collect $50 or should we just have a process to pay the $50?
You talked about economics. That's my background. When you said when demand is low, what happens? Price falls. If demand is low for labour, the price should fall.
The Vice-Chair: Thank you, Mr O'Toole. I'm sorry.
Mr O'Toole: I want to discuss your paper with you. It's very flawed. Thank you.
The Vice-Chair: Thank you very much for making your presentation to this committee this afternoon.
SISTERS OF PROVIDENCE OF ST VINCENT DE PAUL
The Vice-Chair: I would ask the representative from the justice of the peace office of the Sisters of Providence of St Vincent de Paul to come forward, please. Good afternoon. Welcome to our hearings and I would ask you to introduce yourself, please, for the sake of Hansard, committee members and the public.
Sister Pauline: My name is Sister Pauline and I'm the director of the justice and peace office of the Sisters of Providence of St Vincent de Paul of Kingston.
The Vice-Chair: I'm sorry to interrupt again. Could you just allow us time here to pass out this so that we can follow along with you? Thank you. Sorry for that interruption. Go ahead, please.
Sister Pauline: My name is Sister Pauline and I'm the director of the justice and peace office of the Sisters of Providence in Kingston. With me are one of our members, Lucy Myers, and my backup here on the front row, Sister Mary. This is the first time I've ever done anything like this, so with the people who sat with Linda I'm a little bit nervous myself.
We thank you for the opportunity to speak regarding the amendments to the Employment Standards Improvement Act, especially how it is affecting Ontario's working poor. You may be wondering why a religious is speaking here today. Work is about living, an essential and noble part of living. Religion is about living, too -- a way of living.
The churches have a long history of powerful and liberating social teachings. In 1971 at the World Synod of Bishops we were called to act on behalf of justice as an important part of the gospel.
Traditionally, we sisters have been involved with works of education and charity, with children, the ill, aged, orphaned, poor, prisoners, marginalized. Today we recognize that we must not only continue these works, but go beyond them to the practice of social justice; that is, why do we have prisoners, homeless, marginalized? Charity is bestowed on an individual. Justice is an inherent right of an individual. The right to work is an inherent right, including dignity and justice on the job.
When people are without the means to earn a living and must go hungry, even homeless, they are being denied basic rights. Similarly, when workers who have jobs are denied minimum employment standards, they are being denied basic rights. Society must ensure that these rights are protected, that minimum conditions of economic justice are met for all our sisters and brothers. The test of any institution, any society, any government is whether it enhances or threatens human life and human dignity. The worth of a society -- and the worth of a government, I'd say -- has always been tested by its treatment of the poor and the marginalized. People are more important than things.
The most serious long-term effect of the alarming unemployment situation in our world today is the damage to the soul of an individual, of families, of neighbourhoods. As despair and hopelessness grow, there will simply be less regard for social values and norms. This has led to and will continue to lead to collective actions of civil disobedience and upheaval.
On August 19, the Minister of Labour told this committee that we have to confront what she called "the dramatic changes we are seeing in the nature of the labour market and the workplace." We agree completely with her assessment of the fundamental changes in the world of work.
We see it all around us, in the country at large and here in eastern Ontario. The national trends are by now well known. Canada is becoming a country more unequally divided between rich and poor, with a middle class that is seeing its once-solid prosperity erode. One of the main reasons for this is the changes in the labour market that the minister cited last month.
Most of the good jobs that were once the wellspring of the dignity of working people are disappearing. In 1994, there were about 74,000 jobs in the pulp and paper industry. By the end of this decade, between 15,000 and 20,000 of these jobs will have vanished from workplaces like the Strathcona Paper Co near Newburgh, just northeast of here. Last Tuesday, this company stated that 16 positions will be eliminated from this facility by October 18, as the first phase of a two-part downsizing. Most of the good jobs that once existed in Kingston at K D Manufacturing and Kingston Spinners have now disappeared. Alcan, which once employed thousands, now has a few hundred. Layoff notices have been issued to workers with over 20 years of seniority.
The jobs that are replacing work in our mills and factories are concentrated mainly in the service sector: some high-end jobs as consultants and investment analysts and a lot of low-end jobs working as security guards, cleaners, waitresses and so on. It is no wonder that the landmark report by the Economic Council of Canada that pointed out these trends was titled Good Jobs/Bad Jobs: Employment in the Service Economy. The council reported that temporary help agency work, mostly done by women, tripled during the 1980s.
The number of Ontario workers earning only the minimum wage has risen by 40%, to 420,000, in the past five years, according to the labour ministry. Statistics Canada tells us that the number of young men working for less than $13,000 has doubled in the past two decades.
The kind of work now available is familiar to anyone who has looked for a job in recent years: part-time, temporary, contract. It might involve doing home sewing or informal home day care. It might mean keyboarding data for a numbered company, contracted by a major transnational corporation. It might be a matter of being always on call, beeper at your belt, should you be needed any time, day or night.
One thing that such jobs will involve is that wage levels are well below those of full-time workers, such as those who remain at Strathcona Paper or Alcan. Benefits will be minimal, if they exist at all. The only protection that our emerging just-in-time workforce enjoys is the rules set by the government in legislation like the Employment Standards Act. As the economic council put it, and this was before the massive recession of the early 1990s and the major losses of good jobs and the restructuring that followed, "The labour market is offering economic security to fewer Canadians."
How does this play itself out in Kingston? Two years ago the correctional workers program at St Lawrence College received 547 applications for 54 places. The Corrections Canada regional office has 3,000 applications on file for 100 openings. It's a tragic comment that the people in our community have realized that one of the few jobs offering any security is that of a jail guard. With a possible shutdown in the Quinte Detention Centre at Napanee, even that looks less solid.
Hospitals will be closed or have their staff reduced. The public sector, once a key to Kingston's labour market, is being decimated. Our order runs two health care facilities in Kingston. Forces beyond our control have imposed a now common austerity regime on us. Reluctantly and after much agonizing, we have been forced to reduce employment.
In the future the health and educational services that remain will be increasingly supplied by contingent workers with contract or temporary jobs. Because of the insecurity in today's working world, people in such jobs are extremely vulnerable. Pope John Paul reminds us that what he calls "the plague of unemployment" constitutes "a basic moral disorder."
Today's unemployment, even at the top of the business cycle, has not fallen much below 10%. There is a vast pool of potential applicants for any job. Job fear stalks the land. People are more afraid than ever to stand up for their rights to decent employment standards. This means that the balance in the employer-employee relationship, historically skewed in the direction of the employer but tilted in the general direction of equality by improvements in the labour standards laws over the past 30 years, is again tipped in favour of the employer.
Companies are just as aware as their employees of the conditions in the labour market. Some, particularly the bigger firms and institutions, can be expected to continue shedding regular workers and purchase the service of people on an as-needed basis. Other employers, spurred on by increased competition or simple greed, or both, will use this opportunity to take advantage of vulnerable workers, violating their legal rights with respect to minimum wages, overtime, vacation pay, maternity leave and so on. Just this year, as we've heard today, we hear the news that two restaurants have been forcing their employees to work for no wages at all, telling them to content themselves with tips.
Our concerns about Bill 49 are grounded in these changes in the world of work. Our response is framed with a number of questions that we hope the government will be able to answer before proceeding with Bill 49.
As many presenters have stated over and over again this morning and again this afternoon, the labour standards act is the only defence against unscrupulous employers that is available to the growing pool of unorganized contingent workers, many of them women, in the service sector. The proposed changes are a clear signal that the province of Ontario wishes to be less involved in enforcing minimum standards, leaving it up to contending parties to resolve their own disputes. The changes would send disputes over labour standards to court, an expensive place where the working poor feel powerless, to say the least, particularly when they speak little or no English.
Is the government prepared to add the necessary new money to the legal aid budget to enable the working poor to seek legal representation when their rights are violated? Can the government tell us how such workers, many of whom juggle two or more jobs, together with family responsibilities, will be able to take time away from work to pursue the time-consuming process of private litigation?
Private litigation as a means of resolving any and all disputes is very popular in the United States. Is the government's intention to move in the direction of an American style of labour standards? Has it done any analysis of the effect of using the courts to enforce labour standards on the position of the working poor in that country?
The proposed changes would also privatize the collection of claims under the Employment Standards Act. The fees of private collection agencies may be deducted from any amounts owed to workers. According to press reports of the government's own internal reviews, it is better at collecting debts owed to it than are private agencies.
If the government is concerned with making the process more efficient, as the minister stated before this committee last month, has it done any analysis of the efficiencies generated by private collection of ESA claims?
Litigation and privatization are only two outstanding concerns. We are not experts in labour relations, but we are concerned about the retreat from active enforcement signalled by this bill. We have several other questions we hope the government will be able to answer before proceeding with it.
Given the major changes in the world of work we have described and that the minister has acknowledged, changes that are likely to mean more hardship for the most vulnerable workers, would it not make more sense to move in the opposite direction, with more direct enforcement of the Employment Standards Act? After all, as has been said, this act is the only real protection available to the unorganized working poor. Why not creatively and vigorously enforce the Employment Standards Act so that it supports the growing number of working poor, in particular single women and their children, indeed all children?
Should we not be making it more difficult and costly for employers to violate the law rather than making it more difficult and costly for workers seeking damages from lawbreakers?
Should we really be concentrating on the courts and private collection agencies preventing violations of the law from happening in the first place? Our experience in decades of health care delivery has taught us that prevention is much more important, not to say efficient, than treatment.
The Employment Standards Act is vital to a healthy workplace characterized by fairness. Why not enforce it? Isn't this why we have laws in the first place?
The proposed changes indicate that the government regards the cost and responsibility of enforcing the labour standards act as too onerous. Active enforcement of its own laws by the government will no doubt decline.
We seem to be offering the following advice to the working poor in their encounters with unscrupulous employers who are far more powerful than they are: "You're on your own." This is apparently what the minister means when she speaks of the need for self-reliance. When the labour minister appeared before you last month she also underlined the need to help the most vulnerable.
The whole sad affair brings to mind the Orwellian world described in Jan Wong's current bestseller Red China Blues. The party "said black was white and white was black...and there was not a single murmur of dissent."
At least here in Ontario there has been some dissent, and it has not taken the form of murmurs.
Our Canadian bishops state, "By creating conditions for permanent unemployment...there is a tendency for people to be treated as an impersonal force having little or no significance beyond their economic purpose in the system."
To this one could add that the new class of just-in-time workers, contingent workers, call them what you will -- they're really the working poor, the term that ought to be used here -- is seen by those who concocted Bill 49 as having little or no significance beyond economic purpose.
For these remarks I take inspiration from the reluctant Jeremiah of old, when confronted with injustices of his day: "If I say, `I will not mention this...' then within me there is a burning fire shut up in my bones. I am weary with holding it in. I cannot."
This must be said.
Thank you for this opportunity.
The Vice-Chair: Unfortunately we will not be able to address any questions. We're two minutes over the allotted time.
KINGSTON AND DISTRICT CUPE COUNCIL
The Vice-Chair: The Kingston and District CUPE Council. Before you start, please identify yourself.
Mr John Platt: Needless to say, I'm not Gloria Morris. Gloria is a school board worker and is unable to get the time off. My name is John Platt. I'd like to thank the committee for the opportunity to speak.
I work as an electrician at Queen's University and I'm a member of CUPE Local 229, Kingston Heating, Maintenance and Dietary Workers Union. I am here on behalf of the Kingston and District CUPE Council, which represents 24 locals covering approximately 5,000 workers, which includes municipal, hospital, school board, university and utility workers, to name a few.
The council believes, as do most working people, that the Employment Standards Act is a minimum standard which was created to provide basic rights for all working people in Ontario. The Minister of Labour has described these changes as housekeeping amendments that will facilitate administration and enforcement by reducing ambiguity and streamlining procedures. We believe that these proposed amendments will significantly undermine workers' rights by frustrating their legitimate claims. Even the title, Employment Standards Improvement Act, might leave one to believe that minimum standards were being improved, but only employers will see any improvement.
Due to time and other restraints, this presentation is limited in scope, but the council supports the positions presented by the Ontario Federation of Labour and the Ontario division of CUPE.
The first point I'd like to speak to is the restriction of the enforcement of the act. The change requiring unions to enforce employment standards is an unfair shift of the burden in both financial and human resources. As a past chief steward and president of my local, I know all too well the long hours spent investigating and preparing grievances after having worked my regular shift. There is always pressure to settle grievances before going to arbitration because of the cost and time required, which usually means settling for less than the full entitlement. If unions proceed to arbitration, there's no guarantee that the results will be consistent, as is the case with employment standards officers. If a member is not satisfied with representation by the union or even the ruling that results, that member could file under section 74 of the Ontario Labour Relations Act, which would require more time and financial resources from the union even if there is no merit to the complaint.
With the elimination of being able to file both a civil suit and an employment standards complaint, non-unionized employees will lose their leverage to force an early settlement. Generally, the cost of litigation would deter many from pursuing civil action, but now, with only two weeks to withdraw an employment standards complaint, many will lose their opportunity to collect the full damages owing to them if they decide to go through with a civil suit.
Next I want to deal with the allowable maximum and minimum claim amounts. Although no minimum has been set, it has been suggested that $100 might be an appropriate figure. This would force a person working for minimum wage to go to Small Claims Court if an employer refused to pay for a statutory holiday or for, say, 12 hours of overtime. People who make minimum wage generally cannot afford the time off work to attend or pay any of the associated costs of filing a claim in court. Similarly, an employee who is owed over $10,000 would have to bear the cost of litigation to recover the full amount that is owed. Worse yet, this limitation allows the employer to keep any amount that falls below or above these set points, which could encourage some employers not to pay their workers for the full value of their labour. Why should any employer be allowed to legally steal from their employees?
New limitation periods: Currently an employee has up to two years to file a complaint. The ministry had two years to investigate and a further two years to collect the money owing from the employer. The only change was to restrict the amount of time the employee has to file the complaint from two years to six months. Despite the act's prohibition against discipline or discharge of employees who have filed a complaint, many employees file only after they have found a new job. In this tough job market with such high unemployment, workers will be forced to wait and perhaps forgo filing for their rights.
I experienced just such a situation when I was a second-year apprentice working on a non-union construction job in the mid-1970s. My employer refused to pay for New Year's Day. When I questioned him, he responded with, "Why should I pay you for not working?" and elaborated on how grateful I should have been to be paid for Christmas and Boxing Day and the bottle of rye that he gave each of us as a Christmas bonus. I raised the issue again when Good Friday was coming around. His response was to lay everyone off on the Thursday before and brought them back on the following Tuesday, thereby trying to get around the qualifying days.
This time I took my complaint to the ministry. I was awarded the pay owed to me and I told the other workers all they had to do was file a complaint. They were afraid of losing their jobs, so they did nothing. They were married and had children. I was laid off a week before Victoria Day and was never recalled. By then construction had picked up and I found other work. I later found out the employer had stuck at least two of my fellow co-workers for over two weeks of pay. He just vanished. We need to have iron-clad protection for workers who come forward, without restrictions or reductions on the time they have to come back and file a claim.
Employment standards to be determined through concession bargaining: I understand this has been pulled back by the government, but I'm afraid it'll come up in phase 2 of this review. Employment standards are considered to be minimum standards of workplace rights which were intended to provide minimum standards of decency for all workers. This change will erode these standards, as employers are allowed to roll back long-established, fundamental rights. Some locals will resist this type of concession bargaining, with the inevitable increase in strike action, but smaller, weaker locals may succumb, which will lead to differing sets of standards in different workplaces. With recent funding cuts to many of the employers that bargain with CUPE, there's been added pressure to accept these kinds of concessions.
If employers are unsuccessful in bargaining concessions, they will turn to contracting out to private employers who will exploit the changes in this bill to the fullest. An example of that is Queen's University. They hired Marriott 20 years ago to get around having to pay those people pensions and other benefits that other workers at the university now enjoy.
Private collection of ESA awards: This proposed amendment releases the government of responsibility of enforcing the act and will lead to employees receiving considerably smaller settlements. Employees will now be required to pay a fee to the collector and be pressured into settling for less than what is owed to them. It doesn't seem fair or just.
In conclusion, these changes negatively alter the manner, duration and substance of claims under the act and will limit the ability of workers to enforce their rights. Therefore, employers will face fewer complaints and will even be given a break at the workers' expense. The government will transfer the cost and responsibility of administering unionized complaints on to trade union, and the collection of non-unionized employees' claims to the private sector. Clearly the Ministry of Labour is attempting to rid itself of the cost and responsibility of enforcing the act.
These changes are detrimental to workers and to unions. The Kingston and District CUPE Council opposes these changes and respectfully requests that the committee seriously consider a retraction of this bill. Thank you.
The Vice-Chair: I thank you for your presentation this afternoon and we'll start off with the government side. Mr Tascona, there are approximately two minutes.
Mr Tascona: Does your collective agreement deal with health and safety?
Mr Platt: It has a very general clause covering health and safety as it pertains to the act.
Mr Tascona: Does it deal with human rights, your collective agreement?
Mr Platt: Only around sexual harassment at this time. We've been trying to negotiate updated language.
Mr Tascona: If there was a problem with those provisions, they would be covered by the grievance procedure?
Mr Platt: To the degree that provisions in the collective agreement cover it. They are very limited at this point in time.
Mr Tascona: But your grievance procedure, does it work successfully or are there problems with it?
Mr Platt: There's difficulties with it. It's a long process and the employer, of late, has decided to take more cases to arbitration rather than settling them, and then when we get to the arbitration hearing, comes down with settlements at that time and the pressure is on.
Mr Tascona: How many arbitrations would you have a year, normally?
Mr Platt: In my local?
Mr Tascona: Yes.
Mr Platt: In the last year, I'd say we've had about five.
Mr Tascona: About five, and that's the normal amount you have, or is it less?
Mr Platt: The year before we were in a strike situation so we had many more. Prior to that, there were many less.
Mr Tascona: And you have expedited arbitration under your collective agreement?
Mr Platt: As is allowed in the Ontario Labour Relations Act, yes, we can address that.
Mr Tascona: With respect to the changes to pregnancy leave and vacation pay, do you have any problem with those changes?
Mr Platt: No. That's one of the very few areas that adds an improvement. My only concern is, if it's not enforceable and members still fear for their jobs, they will not come forward.
Mr Tascona: My understanding is that the one thing they have prioritized is dealing with pregnancy leave and they've been quite successful in that area. Other than that, our difficulties with it are not so much the enforcement, because employment standards officers now have responsibility for collection, and we're putting it into another area for that to be done. But it's the insolvency that we're having the problem with, because of the fact that bankrupt employers don't have any money.
The Vice-Chair: Excuse me, Mr Tascona. I'm sorry, we've expired time. Mr Lalonde.
Mr Lalonde: Did your council ever have to file a complaint before about a claim?
Mr Platt: A claim for what?
Mr Lalonde: A claim for, let's say, severance pay, holiday or overtime?
Mr Platt: Our local's never had to file one.
Mr Lalonde: Never had.
Mr Platt: For overtime, yes, but not for severance pay or --
Mr Lalonde: For the overtime, what was the longest period for your claim? Was it over six months or over a year?
Mr Platt: To be filed?
Mr Lalonde: Yes.
Mr Platt: Our collective agreement requires us to file within 15 days.
Mr Lalonde: Yes, but for the period of time that the overtime wasn't paid for?
Mr Platt: It's usually just a few hours, a few days at a time.
Mr Lalonde: Because you seem to be saying that the system doesn't work, the actual system that we have in place doesn't work.
Mr Platt: That's right. For non-union people; for the unorganized.
Mr Lalonde: How about the union people?
Mr Platt: For the unorganized it does not work. For unionized people we have grievance procedures and it's much more efficient. And they have the protection of the union not to be fired.
Mr Lalonde: Do you think the fact that we'll we going to the private sector for collection purposes -- is it going to be better?
Mr Platt: No, I don't.
Mr Lalonde: It won't be better?
Mr Platt: No.
Mr Lalonde: Why would you say it's not better?
Mr Platt: Because the private sector's going to take a cut off the top, a fee for collecting the money. I'm not sure what their fee will be or whether it will be based on a percentage or on a flat rate, but certainly they'll be wanting to get their fee as soon as they can so there'll be pressure to settle for less than the full amount.
Mr Lalonde: You also said you were laid off just prior to a stat holiday. How many years, or how long were you with that firm?
Mr Platt: I was with that firm less than a full year. I'd started the previous summer.
Mr Lalonde: And were you aware of the employment standards at the time?
Mr Platt: I was aware of parts of it. I certainly looked into it more when he denied us the pay for New Year's Day.
Mr Lalonde: And you did file a claim after?
Mr Platt: Not until after he pulled the stunt around Good Friday.
Mr Lalonde: The fact that you had --
The Vice-Chair: Excuse me, Mr Lalonde. Sorry to cut you off, but going over again.
Mr Christopherson: Thank you for your presentation. Mr Tascona asked a couple of questions I'd like to follow up on. One is the issue of insolvency and the responsibility of the federal government. You would be aware, being a labour leader, that this government shows in Bill 7, where they didn't hold any public hearings and didn't talk about it during the election campaign, to gut the employment wage protection plan so that you can only collect $2,000 instead of $5,000. You can't collect for termination or severance. I would argue -- and I don't know if you agree -- that if the government really cared about workers getting wages from bankrupt employers, they wouldn't have gutted that plan as a first step.
The second issue is, he has a couple of times now asked the question about whether or not collective agreements cover human rights and the Occupational Health and Safety Act, and there's a distinct difference here because there's already involvement by those ministries whereas now there won't be any. But I want to ask you, if this is such a great thing you've already got, did you ask the government to do this? Did you ask them to give you the Employment Standards Act?
Mr Platt: No, I didn't.
Mr Christopherson: Why didn't you ask them to do this to you with the Employment Standards Act?
Mr Platt: If anything, I would want them to improve the protection for workers, not to take away benefits or take away from the workers.
Mr Christopherson: What does it cost for an arbitration case to take it all the way, roughly?
Mr Platt: Roughly, about $10,000.
Mr Christopherson: And you've got five a year, so that's $50,000. That's one local alone. In order to pay for that, is it possible that you either have to reduce services to your members somewhere else or increase union dues, thereby giving them another tax that, thanks to the provincial government, they didn't have before?
Mr Platt: That is true.
CANADIAN UNION OF PUBLIC EMPLOYEES,LOCAL 131, LOCAL 4200
The Vice-Chair: I would ask that a representative from the Canadian Union of Public Employees, Local 131, come forward, please. Good afternoon. For the sake of the panel and those of the public, would you please introduce yourselves.
Ms Marie Boyd: Just before I start, does everyone have a copy of our document?
The Vice-Chair: Yes, we do. Thank you.
Ms Boyd: Could you please turn to page 2, the third paragraph, section (a), the fifth word. Could you please change that word "the" to the word "her." On page 3 of the document, the fourth paragraph --
The Vice-Chair: Excuse me. Could I just ask for one point of clarification. On page 2, section (a), the fifth word? The first correction you just made, you said "Page 2, section (a)."
Ms Boyd: Yes.
The Vice-Chair: Could you read that line, please.
Ms Boyd: "On page 3 of her document" rather than "the."
The Vice-Chair: Thank you.
Ms Boyd: And then, on page 3 of our document, on the fourth paragraph, change the word "not" to "now."
The Vice-Chair: Could you please read the line, for a point of clarification. "Parties to a collective agreement will now..."
Ms Boyd: "Parties to a collective agreement will now be expected..."
The Vice-Chair: Thank you very much.
Ms Boyd: Good afternoon, everyone. My name is Marie Boyd. I am president of CUPE Local 131, which consists of three different workplaces: Anson House Home for the Aged, Fairhaven Home for Senior Citizens and Empress Gardens Retirement Residence, in Peterborough. I am also president of the Kawartha-Haliburton CUPE Council.
Sitting to the right of me is president of CUPE Local 4200, Mr Bert Rollings. Mr Rollings represents the employees at the Peterborough County Board of Education. He is also the regional vice-president of the Kawartha-Haliburton CUPE Council. Together we represent more than 800 members.
Mr Bert Rollings: It seems that since the Tory government was elected in Ontario all legislation presented thus far has had a negative impact on the working class. This bill appears to have the same effect. The Employment Standards Act was originally introduced to set a minimum responsible standard for the working-class people. Removing the flexibility from the Employment Standards Act for the employees, we revisit some of the same pain felt by the same caring working-class people who visited Peterborough on June 24, 1996. The idea of simplifying legislation to the point where it limits labour to get results is not responsible. If in fact we are worried about the tax base, we should be looking at other options, such as a fair taxation base for the million-dollar corporations rather than on the backs of the working class.
At this time we would like to address some concerns that we have with the statement from the Hon Elizabeth Witmer to the legislative standing committee on resources development on August 19, 1996.
Ms Boyd: Some of the changes proposed and the possible impact under Bill 49 are as follows:
(a) On page 3 of her document, it refers to a six-month limitation to file complaints. If the complainant is not satisfied with the outcome, then they are forced to go to court. Does Ms Witmer not understand that the average working-class person cannot afford court costs?
(b) Page 4 of the document refers to an employee who may have tried to address their claim through the ministry and the courts at the same time. The options are now reduced, therefore limiting employees' flexibility to not more than one avenue.
Mr Rollings: The employment standards officers will now have the power to mediate and resolve complaints. We question whether -- is everyone listening to me here? We put a lot of work into this and it doesn't seem like we have your attention, some of you.
Mr Tascona: We're listening. We're reading your document.
Mr Rollings: I see people looking at their watches and looking at other things. It's very distasteful.
The Acting Chair (Mr Ted Chudleigh): Could you please proceed with your presentation.
Mr Rollings: We question whether the decision is binding and if there is an appeal process. The bill appears to be silent on that issue.
The time period in which claimants can appeal decisions has been lengthened from 15 days to 45 days. We see this as a positive move.
On page 5 of the document, it refers to an employment standards officer having the right to refuse to issue an order. Are there other avenues that employees have if the employment standards officer refuses to issue an order? If the only other option is court, then it is not a feasible option to most working class people because of the cost factor.
Bill 49 attempts to clarify an employee's rights under the pregnancy and parental leave provision. We agree with this clarification.
Ms Boyd: Parties to a collective agreement will now be expected to manage the resolution of all disputes in the workplace. The grievance mediation process is a process which is of great value to both the employer and employee. A grievance mediation officer can shed new light on a situation. Eliminating this process will be of great cost to both parties.
This bill also proposes to utilize private collection agencies to recover money owed to employees by employers. Again, this is a move by this government to privatize this province.
On page 6 of the document, it states that employees will now be able to file their complaints by fax. Let's be realistic: Most rank and file members do not have access to faxes or computers.
Mr Rollings: This document also speaks about provisions intended to increase the flexibility of unions and management to negotiate certain employment standards as part of their collective agreement. In actuality, this process would be a downgrading of the collective agreement, because Bill 49 is not an improvement to the existing act.
This concludes our presentation today. We wish to thank all the committee members for the opportunity to present our views. We hope our concerns will be taken seriously before this bill is passed.
Mr Lalonde: On page 1, removing the flexibility from the Employment Standards Act, what effect will this have when it comes down to negotiation for a collective agreement? Do you, in the future, have to follow the Employment Standards Act, and will it eliminate some of the negotiation that was taking place in the past?
Mr Rollings: Let's face it, everything that's used and all our documents go through the government, and they listen to that. If they limit it, they'll be looking for more concessions from our people. The bigger unions have no problem coping with some of the costs involved in that, but the problem is the people who don't have collective agreements and don't have unions. I think one of our responsibilities as unions is to protect those people as well.
Mr Lalonde: But the non-union ones will have difficulties?
Mr Rollings: That's right.
Mr Christopherson: Thank you for your presentation. I want to follow up on the idea of the flexibility, because I don't think we've had quite enough discussion today about it. We need to have some, because the government is bringing it back. It's a fight that's going to have to be fought.
It's been suggested in other communities that part of the concern is that this is the slippery slope. Anybody who's ever sat at a bargaining table understands what it's like to negotiate during concessionary times. The employer loads up the table with takeaways they want. Now they'll be able to put on the table, and in some cases force acceptance of, standards that are below the Employment Standards Act now, below the floor. In two stages, if you get into two rounds of concessionary bargaining, you could end up losing two pieces you thought you were trading off.
For instance, if you gave up hours of work in exchange for vacation in one round of negotiations, in the next round of negotiations they could put those very vacations back on the table; they're up for grabs. By the end of a decade, your collective agreement is virtually wiped out, particularly as Bill 7 and other things take effect and unions and their effectiveness are watered down, which seems to be the goal here. I've heard that in other communities. It's certainly something I'm very concerned about. What are your thoughts about that happening in this area, in the labour movement here?
Mr Rollings: Where I have a problem with it is that labour has been in our family for decades. It goes back a lot of generations. I see my grandfather years ago, 50 years at least. I still have some of the documentation and some of the memories. They fought hard and fast for things they thought were right.
This year I had the opportunity to work with someone I respect very much, by the name of Karen Haslam, the former cabinet minister. She said something to me that I'll never forget and maybe I'll share this with the rest of the group. It was, "Regardless if we can change it, or whatever's happening, let's do what's right." We forgot about doing what is right.
Labour makes up a great deal of this country. Let's treat them fairly. I heard the honourable John O'Toole say he's worried about the upper 4% of the $10,000 money, the awards, that it only accounts for 4% or better. If it's right, then it's right. I'm sorry, but we have to be responsible. Thank you very much.
Mr O'Toole: Thank you for your presentation. Just commenting on a couple of things: You both represent well-organized and highly regarded unions in this province and in this country, so I take your presentation as being reflective of them. We've heard from them pretty well every place we've been.
What is your grievance process today, the time line? in your collective agreement, how long does an employee have the right to file a grievance after the violation?
Ms Boyd: In my collective agreement, it's 15 working days.
Mr O'Toole: Fifteen working days. Have you ever thought of extending that? We're talking six months. Really, there's a good point to be made on that six months. How about, in a bad employer situation, where you allow it to go on for two years, which gives the business more opportunity to exploit more people if they're a bad employer? It also allows the business perhaps to suck as much out of the local economy as it can and then leave town. The six-month provision, if you look at it in all honesty, brings the issue to the fore and to the public much quicker. In that respect, fewer people are violated. So there is a positive. If you look at it expeditiously, it does really force the issue to the front sooner than it was buried now for two years. Most provinces have six months or a year. Most claims are in the first six months. It's honest and I think it will work. Thank you for your presentation.
The Acting Chair: We thank the Canadian Union of Public Employees, Local 131, for your presentation today.
LINDSAY AND DISTRICT LABOUR COUNCIL
The Acting Chair: The Lindsay and District Labour Council, Mr Rick Denyer.
Mr Rick Denyer: My name's Rick Denyer. I'm the president of the Lindsay and District Labour Council. My partner is David St Jean, chairperson of CAW 2225.
Mr David St Jean: Good afternoon and thank you for the opportunity to bring to your attention the grave concerns felt by the members of the Lindsay and District Labour Council about Bill 49. We believe this bill will have enormous negative ramifications for workers across Ontario. The effects of the proposed changes have been presented to you by our colleagues at the Ontario Federation of Labour, and it is our intention to avoid redundancy while wholeheartedly endorsing that brief. It is our intention today to discuss with you the local problems which will arise from this legislation.
The members of the Lindsay and District Labour Council are charged by their membership with defending their legitimate interests. The passage of Bill 49 will make that job much more difficult. The provision to contract out of minimum standards will introduce a number of new issues to what is already a contentious bargaining environment.
In the last few years, organized workers in Lindsay and Victoria county have been beset by concessionary demands from employers in both the public and private sectors. As employers inevitably introduce new demands based on the new legislation, the relatively small locals in our area will be facing an uphill battle to protect the minimum standards our parents and grandparents gained.
The provisions of section 64.5 of the act, which require union members to exhaust grievance procedures, will increase costs to these same local unions. With the Employment Standards Act virtually deemed to be a part of every collective agreement, this change in the act effectively downloads the enforcement of the Employment Standards Act on to the employees' union through the grievance procedure. A previously expeditious and effective investigation procedure, when applied through the government's Ministry of Labour, will now become a prolonged and needlessly contentious battle.
Perhaps surprisingly, the members of our unions we have spoken to are less concerned about these provisions of Bill 49 and their effects on themselves as organized workers than they are about the other provisions which will impact more directly on unorganized labour. It is interesting to note that this attack on labour standards is viewed by our members as not just an attack upon themselves, but as a bully-boy tactic aimed at workers in our community who do not enjoy the benefits of unionization.
High levels of unemployment have increased the ability of unscrupulous employers to take advantage of those in our community. The president of our labour council, Rick Denyer, will elaborate on some of the conditions which presently exist.
Mr Denyer: I have a couple of examples for you today. In one establishment alone, the unorganized are expected to come in and work for free for the first couple of days, for training. Even if they've worked there five years previously, they're expected to come back again and work free for training, and only earn their tips, as with the other bar we've talked about. Also, you're supposed to start your shift at 7 o'clock, and if it's not busy you wait until it gets busy, and then you start being paid for your shift then.
In another case I have as an example, the workers were paid in cash. They had no holiday pay, they received no WCB, no unemployment insurance, no overtime, no statutory holiday pay. When they asked their employer about their rights with the Employment Standards Act, they were all fired. Under Bill 49 they would have to pursue the employer through civil court. These workers have no time, no money; they just want to earn a living. To follow up on these kind of actions, an employer would still continue with the same practice as he has in the past.
Mr St Jean: Under the present proposals of Bill 49 it will become even more difficult for the unorganized in Victoria county to defend themselves and successfully pursue remedy from these employers. The use of private collectors, limited period changes and the necessity of proceeding through civil actions against the employer who is in contravention of the act will increase immeasurably the cost and time necessary to obtain just remedy for many workers. These proposals, initially presented as housekeeping measures, will have a catastrophic effect in our workplaces and our communities.
Those of us involved in organized labour are not surprised by its intent or tone. We are used to this government's attacks and know that our struggle against its ideological agenda is just beginning. We know this legislation is flawed in its stated aims, we know it will raise the level of labour unrest in our community, but we will take on the fight to preserve the gains we have won in the past. We are outraged by this attack on our hard-won union position in the workplaces of Ontario.
However, our greatest anger is over the government's betrayal of those who have no union to protect them. The proposals of Bill 49 are an abdication of the government's responsibility to protect the unorganized from the excesses of the owners of capital. These amendments to the ESA will further marginalize those in low-paying part-time employment. We take this opportunity on behalf of all the workers in Victoria county to demand that the Conservative government abandon its attacks on the workers of Ontario. Thank you very much.
The Acting Chair: Thank you. That leaves us with about four and a half minutes for each caucus, being only two caucuses, and we start with the NDP.
Mr Christopherson: Thank you for your presentation. A number of things came to mind as I listened to your comments. The first one is that I think it should be officially on the record that the labour movement be given its recognized credit for playing the leadership role that you are in defending the rights of the unorganized. Many people who oppose the concepts of unionism or unions being an effective part of our society try to paint them as a special-interest group, that they're only concerned about the dues-paying member. It's labour leaders like we've had here today who have dispelled that and have shown that you're there for the rights of working people, not just those who pay dues, and that that's the main thing you care about.
I want to ask you if you think there's any chance, given the comments of the minister -- I'm not going to go through it because the time goes too quick. But the minister alluded in a scrum -- the government's heard me quote the document often enough; they know it's there -- that there's a chance that some type of flexible standards might occur in non-unionized shops, which might in my mind suggest the idea of some form of collective action other than certified, bona fide unions as we have now. Is that something that concerns you as much as the idea of concessionary bargaining where there are collective agreements? The employee associations that pretend they are unions but really are run by employers -- that's the sort of thing that comes to my mind. What are your thoughts on that?
Mr St Jean: I think if unorganized workers who are not members of, as you say, bona fide unions are asked to negotiate with their employers on labour standards, pretty much they're dead meat on a hook. As Rick pointed out, there are a number of instances of employers taking advantage of employees in Victoria county. These cause us great concern, but they're also indicative of the desperation of many employees to find decent-paying work. We have a local grocery store in our town where people have been going in and offering to work a month for free for a recommendation rather than a steady job because they're so desperate for work. Those people are desperate enough that they'll go right down to the bottom floor on any kind of negotiation over any labour standards, wages, you name it.
Mr Christopherson: It's something, I would suggest, to keep an eye on, because either the minister didn't know what she was talking about -- and I give her the benefit of the doubt and say that can't be the case. Then there is something there to be very, very frightened of in terms of what the future for unorganized workers holds in terms of the ability to go below employment standards if they start walking down that road.
The other thing I want to come back to, and I'm going to keep coming back constantly until the government either admits or successfully refutes, and they haven't done either, is that the six-month limitation from two years takes away a right from an employee who right now is too afraid to file while they're working, because 90% of all claims are made after people leave work, and that without the two years they either give up the money or just continue to stay in a sweatshop situation that's untenable to most of us.
You've given a few examples. Is that all there is? One of the members has said: "Show me how many. Tell me the examples." Is that all there are, just two or three, or are you concerned that there is much more than that -- certainly any amount would be unacceptable, but that there's even more than you've got? Or have you really had to bend over backwards to find one or two here?
Mr Denyer: Myself, I can even go to a unionized place where their part-time employees don't get paid for paid holidays. And you can look further. It's all over the county, the workers being taken advantage of. But the hard part to accept is, in unionized workplaces, part-time people not being paid for paid holidays. That's really hard to swallow.
Mr Ouellette: Thanks very much for your presentation. I'd like to follow up on that unionized workplace with part-time employees. Are they not unionized employees as well?
Mr Denyer: Yes, they are.
Mr Ouellette: I don't understand how your organization wouldn't represent them or get that so that doesn't take place.
Mr Denyer: They've taken them to court many times, the union has, and more or less the company has fought to say that they don't have to be paid. There's a spot under the provision, and that is they have the right to refuse hours, so that spot declares that they don't have to pay for those --
Mr Ouellette: But you still represent the part-time people. I would think that in your bargaining agreement, you would negotiate for that.
Mr St Jean: There seems to be a general impression on the government side that when labour leaders -- I'm with the CAW and I'm not talking about Buzz Hargrove. When we go to negotiate with our employer, my members are negotiating through me. There seems to be this misunderstanding on the part of the government that I go in to my employer and put what I want on the table and the employer says, "Oh, yes," and signs merrily on the dotted line. Under your government, as I said in the brief, it has become harder and harder for unionized workplaces to defend the legitimate interests of our members, and it's becoming impossible for anybody unorganized to defend any kind of interests of their own against employers who are increasingly emboldened and armed with the regressive legislation your government has provided them with to do nothing but beat on workers.
Mr Ouellette: I see the local unions as being a very strong representative. I can't see how that would take place, although I take your word for it that it does take place.
You mention about the workers going in and basically working for cash or working under the table. I would view that as working under the table. How, as a government, should we address that or get involved to address those issues?
Mr St Jean: I think one of the reasons employers do that is to get away from what the right wing has called payroll taxes. I think obviously we're going to have to have more enforcement. That's not what Bill 49 does. Bill 49 takes away enforcement. Bill 49 makes it harder to make sure employers live up to the laws in this country, even the weakened laws that your government has given us.
Mr Ouellette: I agree, but I think the employees who are willing to take on those and work under the table are the ones who should be taking some of the responsibility there too, and saying no.
Mr St Jean: If a worker has three kids at home, was just laid off his job, and his employer says, "I'm going to pay you cash," and that's the only opportunity that man has to put food on the table for his kids, he'll take it.
Mr Ouellette: If that employee came forward and said that this is unacceptable to the labour board and that employer was not allowed to pay cash, that wouldn't take place. Somebody has to take the step forward to stand up for what they believe in and not allow those things to happen. I realize that these things take place. I hear about them all the time in our riding. But I think we look at the situation and we have to make a judgement: Is this the way it's going to be, or do we want to change that?
Mr Denyer: I believe they did take a stand. They did step forward and they went to the government about it and they all lost their job because of it. They had to put up picket signs right in front of the restaurant telling them why.
Mr Ouellette: But if somebody had taken a stand before them, they wouldn't be in that position now. The people after them are probably not in that same situation.
Mr St Jean: If employers weren't put in the position where they had incredible power over unorganized employees, it wouldn't have happened either. All this bill does is give that power to the employers. The employers are the ones who are dealing with the power here. They are the ones who have the jobs. And if you're expecting employees to fight battles -- in any democratic system, your government has the responsibility to fight for those who are weaker in our society, and your government is not doing that. Indeed, your government is doing the opposite. Face the facts.
The Acting Chair: Thank you very much. We appreciate the Lindsay and District Labour Council coming before us today.
HASTINGS AND PRINCE EDWARD LEGAL SERVICES
The Acting Chair: The next group is the Service Employees International Union, Local 183, Mrs Laura McWaters. Oh, I'm sorry. I skipped one: Hastings and Prince Edward Legal Services, Mr David Little. My apologies, sir. I didn't mean to skip a lawyer.
Mr David Little: Thank you. Time goes fast enough here.
We are the local legal clinic offering poverty law services to our community. Our mandate is to work to improve legal rights and access to legal services for our poor people.
What have we learned in our practice? We have learned two simple realities: that low-income workers either tend not to know their rights or, if they do, they are powerless to enforce them. I've set out reasons why workers tend not to know their rights. I'm sure you've heard this comment before and I offer our own observations.
In terms of workers who know their rights are being violated and view those violations as a price to pay for the time being for keeping their jobs, this is realistic for the reasons I've set out below. Retaliation, as you've heard, is a very real concern and takes many different forms. Commonly, it takes the form of being fired for a spurious reason. I've seen that many times. And workers know that an allegation of misconduct causes no end of problems with their employment insurance claims and causes problems with their welfare claims.
It's not a part of workers' experience that the no-retaliation provisions of the act are effective. Amazingly, the employment standards officer has no power to make an order of reinstatement or payment of wages. The only recourse for retaliation is by proceeding before a provincial judge in Criminal Court. The employment standards branch, to our knowledge, is not prosecuting these, the local crown attorneys don't have the resources, and the worker certainly can't do it himself. If somebody does prosecute, the burden is "beyond a reasonable doubt," which means that unless the employee is virtually given a letter saying, "We've retaliated against you," you'll never win the case, the consequence being that the retaliation provisions are simply ineffective.
Given these two workplace realities, I want to look at the six-month limitations in Bill 49. Currently a worker can make a claim for up to two years, which we have found to be quite reasonable. We've found that the worker needs this time, especially in small rural areas like this, to find out what his rights are and to find another job with a new employer who complies with the law.
Bill 49 would limit claims only to six months' wages. In our experience, there would be many cases in which workers have claims for overtime pay, minimum wage and holiday pay that must be taken to court because they exceed six months.
Is sending this to court an improvement? From the worker's point of view it's very unattractive compared to making a claim to the employment standards branch. The result, I would suggest, is that many workers will simply abandon their full claims and settle on the six-month claims that they can pursue through the branch. The reason is that there is inadequate access to justice. I've set out my observations on inadequate access to justice, and this I think has been acknowledged even by Minister Harnick. So from the worker's point of view it is very unattractive.
From the employer's point of view even, the prospect of claims going to court is not an improvement either. Employers would have to retain counsel or spend days sitting in Small Claims Court waiting for cases to be heard and preparing them. If it goes to General Division, they have huge expenses. When the case finally is heard, it may be heard by a Small Claims Court judge who by his or her own admission does not have expertise in reading payroll records, does not have expertise in statutory entitlement. The result may very well be, even from the employer's point of view, inconsistent and unacceptable results.
From the province's point of view, sending cases to court is not going to be an improvement either. Indeed, the irony of removing disputes to court is striking because in virtually all areas of public law, labour relations etc, and perhaps now even in landlord and tenant, the province has realized that it's more cost-effective to set up administrative bodies than it is to overburden courts with these types of claims. The reality is that sending claims for more than six months' back pay to court is unattractive to workers, unattractive to employers, and unattractive to the province for these reasons.
Who then gains by the six-month provisions in Bill 49? I would suggest that Bill 49 is an improvement only from the point of view of employers who violate basic rights and then get away with it because of the workers' inadequate access to justice. To say that Bill 49 is an improvement, though, the employer must say something rather twisted. He must say: "We may violate basic minimum employment laws, and if we do, we think we should only have six months to be held to account, even though Revenue Canada, UIC and CPP hold us to account for six years, and workers' compensation virtually forever. If we decide to pay at all, we want to be able to strike a deal for less, thereby vindicating our decision in the first place to violate our workers' rights."
Consider this example which I have modified from my practice to show my point. It's a case of two tire mechanics who worked overtime, one for Good Tire Service and one for Shady Tire Service. This has been modified to protect both the innocent and the guilty. But in each case, the mechanic worked overtime for an average of eight hours a week for the past two years, and their regular pay was $12 an hour. Now, Good Tire Service pays overtime to the employee of $6 an hour, the overtime premium times eight hours times 104 weeks, and has spent $5,000 in overtime costs. Shady Tire Service doesn't pay overtime premium and pays zero. Under Bill 49, the amount of overtime that Shady Tire would pay, if the complaint is filed one month after the employment ends, is $6 an hour times eight hours a week times five months, 21.5, an administrative charge, for a total of $1,135. The result is that there's a net benefit to Shady Tire Service, by failing to pay overtime, of $3,900. This is no improvement from the point of view of Good Tire Service, which, like most employers in this province, wants to abide by the law. In fact, Bill 49 creates a less-than-level playing field, to the benefit of employers who violate the law.
The second aspect I want to talk about is that Bill 49 proposes to take away a worker's current right to pursue termination pay for an employer required under the act and still sue for wrongful dismissal damages, which are usually higher. I suggest that there is a fundamental flaw here, the result being again unfair to workers and again being a benefit to violating employers and a penalty to good employers.
Going back to my Good Tire Service example, in both cases we'll assume that these workers get terminated after three years. Good Tire Service, being law-abiding, pays termination pay, $1,440, within two weeks, as required by subsection 7(5). Being law-abiding, they still leave themselves open to a court action for wrongful dismissal, which is a liability for possibly three months' wages, perhaps $4,800. Shady Tire Service does not pay termination pay and is rewarded for doing so by Bill 49. This is because Bill 49 allows the employer to put the employee in a real bind. Either the tire mechanic goes after termination pay under the act or sues for wrongful dismissal, but can't do both.
Now, for reasons that I've noted earlier, the employees are going to file for termination pay and give up the right for a wrongful dismissal suit. So I fear, and I think you should understand this, that a crack lawyer may very well advise his client, "Look, if you pay termination pay to this person, they can turn around and sue you, but if you don't pay it, you may have to pay a 10% surcharge, but that will be gained by the chance of foreclosing the employee's right to sue." It simply is an unacceptable conclusion from the point of view of the worker. Again, even on the employer's side, the level playing field that currently exists is tilted in favour of abusive employers by Bill 49.
If the act were to be true to its name of being an improvement to both workers and honest employers, there are several initiatives that I think would be called for: first, a series of spot-checks and audits that I'm sure other people have spoken about. Secondly, the act could be amended to receive complaints from an agent of a worker. You could receive third-party complaints. Enforcement could be on an abuser-pay model, with penalties for enforcement that reflect the cost of enforcement, such as, for example, in workers' compensation, where there are huge penalties for non-compliance with the act.
The no-retaliation remedy has to be taken out of the provincial court (criminal side) and put into the employment standards branch process on a fast-track basis, the way it is, for example, in labour relations.
In conclusion, I've focused only on two parts of the bill because of limited time and shown how they detract from, rather than improve, access to justice for vulnerable workers and do a disservice to honest employers. We suggest that other initiatives are likewise flawed and we respectfully request that this committee recommend that this bill be withdrawn.
I thank you for the opportunity of making this submission.
The Acting Chair: Thank you very much, Mr Little. We have two minutes per caucus.
Mr O'Toole: Thank you for your legal presentation. Sometimes I believe that the legal profession sometimes makes it more complicated than necessary. I'm going to point out to you one thing that I find flawed in your presentation. It may mean the whole presentation hinges on this interpretation. If you've read this Bill 49, you'd be clear that your example in the overtime paid is wrong. This is absolutely, categorically wrong. This bill actually says that on a recurring violation, you're eligible to claim up to a year. So if you're using this as information to the people who come to your legal aid office, you, as a lawyer and a professional, are giving them wrong information. I'd hope you correct that, and if you have a problem, we'll talk about it right after the meeting.
Mr Little: I suggest, though, that this is not a recurring violation.
Mr O'Toole: On a recurring violation, you're eligible up to one year. So as a lawyer, you have a professional duty to your clients.
Mr Little: There is a real question about whether this would be considered to be a recurring violation.
Mr O'Toole: It's over time, it's recurring. It can be substantiated.
Mr Little: Even if it's one year, you still have a significant problem.
Mr O'Toole: The other comparison was 104 weeks, which is two years. So that information is wrong. It's 21.5 weeks you used. At any rate, I'm just clarifying it. When I look at that and I think of the interpretation you've given a couple of the clauses, my interpretation is contrary to yours. I believe that most of the provisions in this bill expedite justice more timely and more appropriately focus the resources of the ministry to actually collect the money that's owing. Twenty-five cents on the dollar now is being collected. Is that a system that's working, in your opinion as a lawyer?
Mr Little: In my opinion, that's a system that reflects the resources that the government is putting into that.
Mr Christopherson: I want to take exactly the opposite approach and suggest to you that this is exactly the sort of example that the public needs to see, because this is exactly the sort of thing that's going to happen out there. In order for Mr O'Toole's premise to be correct, it would have to be interpreted that there was a recurrence and that it was deemed to be that way. There's no guarantee that's going to happen, because lawyers get battling things; anything can happen. Even if it were -- and I'm not sure that it would -- you've still got one year to account for, which is rights that have been taken away.
So I want to thank you and ask you whether or not you think that this kind of circumstance is one that will increase, because right now we're dealing with circumstances that exist. But with your experience, do you think it's likely that even those who can't hire the sharpie lawyer at first to get that advice, over a period of time, that will work its way through the business community and they'll all learn what the tricks of the trade are, and that there's so many loopholes in here for employers that we'll see more of this sort of thing?
Mr Little: I think that's correct. That certainly corresponds to the experience at the legal clinic: There is more and more of this happening, and it becomes graver and graver as it happens. There's no question about that.
Mr Christopherson: I want to focus just a bit too, if I have the time, on -- you talk about what people fear in terms of retaliation. I thought it was very useful for you to talk about the range of retaliation; that it's not just the extreme, which is to fire someone outright and leave yourself open to that charge, but, as you note, you can change the work schedule, you can change employment duties. The atmosphere itself can be made poisonous, and then you can just lay the person off.
Unless you've worked in a small shop and not had any power and not had any union, it's probably hard to understand what it means to have somebody just mess around with the kind of job you're doing because they're ticked off at you that day. There's good jobs and bad jobs in every shop and they can change a lot of your hours. Even within the laws, they can do favours for those they like and go after those they don't like. Is that an accurate reflection of what you see?
Mr Little: Yes, and this retaliation is notoriously impossible to ever prove. In my opinion, there is just no remedy for that.
The Acting Chair: Thank you very much, Mr Little. Thank you for taking the time to appear before us today. We appreciate it very much.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 183
The Acting Chair: Now we move to the Service Employees International Union, Local 183, Laura McWaters. Welcome to the committee, Ms McWaters. We have 15 minutes. If you'd like to start with the presentation, we could finish off with questions.
Ms Laura McWaters: I've already handed in a presentation of my brief. What I will be doing is going over the cover page and a couple of excerpts through the brief, then making some comments based on a lot of what I've experienced and heard today.
We wish to present the following brief in regard to the proposed changes to the Employment Standards Act. We also wish to highlight, as part of this submission, the need for the employment standards inspectors to have the authority to lay charges against negligent employers without the employees having to make a complaint first. This is for two reasons:
First, the employees are often intimidated about making complaints against their employers, as they are afraid of the repercussions. Secondly, some employees do not even realize that the law is being broken. We believe that making any changes to the standards as they are now, unless they improve what is there and not take away from it, will only hurt employees.
If you would turn to page 2, Service Employees International Union regards these changes as bringing more benefits to the employer while stripping workers of their existing minimal rights. SEIU questions the objective behind the government's amendments to the Employment Standards Act that are outlined in Bill 49. Is it not the intent of the Employment Standards Act to provide workers with a minimum standard by which workers could define their rights in the workplace? Were not the existing provisions in the Employment Standards Act regarded by employees and employers alike as a minimal floor whereby anything inferior was not only illegal but downright shameful?
On page 3, if Bill 49 is passed, these changes to the Employment Standards Act will see to further unrest in the province of Ontario. Service Employees International Union anticipates that this legislation will fuel a fury among a vast group of vulnerable workers throughout the province. This group includes women, visible minorities, health care workers, foodservice workers, cleaners and home workers. Most SEIU workers fall into one or more of these listed categories.
On page 4, SEIU opposition to Bill 49 is further accentuated when considering that our health care workers are not in a position to strike. If perchance disputes arise between a bargaining unit and an employer during negotiations at the renewal of a collective agreement, the parties may only resort to interest arbitration in an attempt to settle any disagreements. The union foresees enormous conflicts arising between the two parties and subsequent injustice directed at our members during negotiations. Undoubtedly in these instances, the parties proceed to interest arbitration in an attempt to resolve the contending issues. To our knowledge, Bill 49 does not provide any standard by which arbitrators may follow as a measure in assessing an equivalent, in not superior, package than what is provided in the Employment Standards Act. Thus, our members are at the mercy of an arbitrator's own assessment of a "comparable or better package."
On page 9, bottom of the page, the amendments introduce in section 21 of the bill, subsection 65(1) of the act, 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 violation 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 health care workers and food services. Indeed, 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 will take before their case is settled. In effect, therefore, this provision will encourage the worst employers to violate the most basic standards while at the same time compounding the problems for those workers with meagre resources.
On page 11, a fundamental problem with regard to the act has for some time now been the failure to enforce standards. This is no less true with regard to collections. The most frequent reason for the ministry failure to collect wages assessed against employers has been the employer's refusal to pay. The answer to this problem, according to the proposed amendments, is not to start enforcing the act, but rather to absolve the government of the responsibility to enforce the act by farming out the problem to a collection agency.
On page 14, in conclusion, SEIU finds that once again the Harris government is victimizing Ontario's most vulnerable citizens in an attempt to cater to the wealthy. The Ministry of Labour will be downsized and rid of its current public services. Thus, according to sources, approximately $10 million will be salvaged from the Ontario budget that will in turn be issued as a tax break that benefits the wealthy. The increased demands on trade unions posed by Bill 49 are coming at the same time that labour relations in the province have taken on a decidedly anti-union tone, with the challenges posed by Bill 7 in terms of acquiring and maintaining bargaining rights and with the limits on unions' powers to bargain effectively through the combination of bargaining units.
In an attempt to avoid further unrest and conflict for a large majority of Ontario citizens, we encourage that Bill 49 be reconsidered and structured in such a manner that the legislation will achieve a fair balance between employees, unions and employers.
I am the health and safety and WCB coordinator for my office. I work two part-time jobs. I'm also a nurse at a local hospital, and I've been there for 20 years. I also happen to be the president of the Quinte Labour Council.
Both through my union office and through the labour council office, as of approximately December of last year the complaints and concerns that have come in have quadrupled, or even more, of unorganized workers, for the most part, who have no one to turn to for help. They can't afford legal help; they don't have a union in their workplace. They have no one to turn to for help when they have problems with the employer.
One of the most common complaints that I have been getting since that time -- and we have been getting about 45 calls a day on this, whereas we used to get one to two calls a week -- is that the employers have been hiring employees to work eight hours a day and making them work twelve, the last four hours worked without pay. They're being told, "You either work the eight hours and the last four without pay or you can find yourself another job."
People have to put food on the table; they have children to support; they have bills to pay. Unfortunately, it seems that the government has a problem understanding and grappling with the concept that there are employers out there doing these things. There are some good employers out there. However, more and more, we have been finding that the employers have become quite bold over the last few months just to see how far they can push things and what they can get away with.
For the most part, people are afraid to complain. We've heard that all day today. They are also having a hard time understanding the fear that these people face, because if they do complain or challenge their employer, we have had case after case where they have been fired. They have been helped as much as we can, if they're unorganized workers, by being sent to the Ontario Labour Relations Board, the Ministry of Labour and the local legal services.
People can't continue in their lives having to worry that if they are entitled to things under the law and they make a legitimate complaint or a legitimate challenge, they're going to lose their jobs. Therefore, they're going to continue to work in horrible working conditions just to pay the bills.
I heard a comment this morning about frivolous trips to arbitrators. I highly doubt in the eight years that I've worked in my union office that there has ever been a frivolous trip to an arbitrator; not that we've experienced. In the union movement, we know exactly how much it costs to go to an arbitrator, and we don't consider anything frivolous. That has been granted to us under the law.
I've heard mentioned and asked many times of labour people sitting here during the day what is covered and what is not covered in their collective agreements. Before the questions are put to me, I will simply say that we have many clauses under our collective agreement that pertain to health and safety, WCB, the grievance procedures and everything else. However, they are only there because the government has allowed them to be there under legislation.
It's very sad to me that we are sitting here today having these hearings on legislation which should be a given. Employers should be treating their employees fairly and justly. We shouldn't have to be sitting here having hearings, bargaining back or forth or debating the issue of morality in the workplace. We have had to legislate morality in the workplace. That's basically what it has boiled down to.
Most workers cannot afford a lawyer. The legal clinics are overflowing, and what you have is that workers who make more money than is allowed to be covered by the legal clinic but not enough to cover their cases on their own are left hanging in the middle somewhere with nowhere to go.
The employers' refusal to pay: It is amazing to me that the government wants to put this out to a private collection agency. Why is the government not able to collect on their money? That's their job.
I'll give you an example. We have had two nursing homes in the last year where the employers literally left the country with the money from the nursing home, including the wages owed to our workers. In one nursing home they worked for three months without pay after the employer left, never mind before the employer left, and in another one for six months without pay while we were trying to sort out with the police and the courts what was going to happen, because the clients and residents had to be looked after. Do you know what we collected for these people? Seven cents on the dollar. After all the other bills were paid to the banks, those workers got seven cents on the dollars that were owed to them. That is appalling.
We point fingers at Third World countries about what their working conditions are like there. I'm telling you that's exactly where we're headed right here. We have no future for our children. The quality of work life and home life, which we have a right to -- I think we need to start putting a face on these people that we're talking about. These are your next-door neighbours. These are your children. These are your co-workers. These are the people who live in your community, and you're talking about them in such an abstract sense, as if they were robots or something. If the quality of the home life and the quality of the workplace does not continue as it has been over the last couple of decades, we are going to slide into a Third World way of life. I am not an economist, but I can figure out that if half the population is unemployed and the other half is making minimum wage, businesses will have no one to purchase their goods and services.
We have five local hospitals within the Quinte area. In the last two years, we are now going through our fourth round of layoffs. We have less than half the staff and half the beds that we had before. So the staffing levels have gone down; people are unemployed; the services have gone down.
Trenton was an industrial town. We have almost 23% unemployment in the Quinte area, which I believe is the highest in the province.
All of our plants have either closed down or downsized, from approximately 400 to 600 workers down to 25 to 50. A good majority of our people are now on welfare. They don't want to be on welfare. They want to get jobs. There are no jobs to be had in this area.
If you take a good look going through our fast food restaurants, you won't find teenagers working there any more. You're going to find people 40 to 50 to 60 years old working in those places because there are no other jobs to be had.
The hallmark of any society is how it treats its weakest members, and to sit here and debate on the morality of how people should be treated in their workplace with regard to fairness of working hours, pay and health and safety issues is appalling to me. It's something that shouldn't even have to be debated.
Posting the act: To say that it's going to cost money to post the act is -- I can't even get past that. For the few pages that it's on, to have it posted in the workplace, it is negligible. To deny a worker the right of knowledge of their rights is very distressing to me.
I suppose that's probably where I will end my presentation, except to say that I certainly hope the Employment Standards Act is not going to be downgraded. If anything, it's going to have to be upgraded, because whether this government believes it or not, there are many, many workers out there, especially in this climate of low employment, who will do anything and everything it takes to put food on the table. To say that a worker should be reporting the employer for offering them cash under the table is wonderful. However, the worker still has to put food on the table, and whether you understand it or not, unless you've been in that position, how hungry people can get -- just because this is Canada and it's the 1990s does not mean these things don't happen here. I think people have a hard time getting their head around that, because they do happen here.
The Acting Chair: You have used exactly 15 minutes for your presentation. Thank you very much.
KINGSTON COMMUNITY LEGAL CLINIC
The Acting Chair: The Kingston Community Legal Clinic, Mr John Ross Done. We have 15 minutes to spend together, if you'd like to start with the presentation. We can conclude with questions.
Mr John Ross Done: Good afternoon. Do all members have a copy of my paper? It looks something like this.
The Acting Chair: They will have shortly, yes.
Mr Done: Perhaps the most important thing I've learned listening to the other speakers is that when I ask to be scheduled to make a presentation, to make sure I do it at 10 o'clock in the morning, because it's hard to think of something that you haven't said by the time 4 o'clock or 5 o'clock rolls around.
What I'm going to be speaking about I've summarized on the first page. I'm going to be speaking about three perhaps now familiar issues. One is the effect of the limitation period for filing a claim to change from two years to six months within which the worker must file the claim. I'm going to be speaking about the limit of $10,000 as the upper limit, the upper amount that the employment standards branch can order be repaid. Finally, I'm going to be speaking about removing the workers' right to sue in court for unpaid wages in circumstances where he or she has filed an Employment Standards Act claim.
Perhaps rather than simply repeating some of the concerns that some of the other speakers have raised, I would like to focus on how these changes affect my clientele. I, of course, work in a legal clinic. I'm a lawyer. I'm the director, and my job isn't entirely dissimilar from what David Little or Lois Cromarty does or the work that Melinda Rees carries out. Those people have already spoken to you, no doubt, about some of these same concerns.
However, among my clientele there is a concentration of people with mental disorders. We have a large psychiatric hospital in Kingston. Many of the people who are admitted remain in Kingston. They live and they work there to the extent that people with mental disorders can find jobs, and it's not easy.
We also have a significant immigrant population in Kingston. I'm privileged to have among my clients many people who are Spanish-speaking, Vietnamese and a number of new Canadians whose first language isn't English. Not only do these clients of mine often have language difficulties, but there are cultural barriers as well. Understanding the Canadian judicial system and how it works in Ontario is a formidable cultural barrier.
Against that background, I'd like to make a few comments about how the new limitation periods affect what I call vulnerable workers, these people with disabilities or people with language and cultural barriers.
First, the problem with imposing a six-month limitation, as opposed to the current two years that is now the law, is that for any money accumulating beforehand, the only recourse will be a civil proceeding. Members of the committee might say: "Well, our Small Claims Court system has changed. During the past few years its jurisdiction has increased to $6,000. People don't need a lawyer to bring a Small Claims Court claim. The rules are relatively informal. People can fill out the form and get a relatively speedy trial."
That might be the case for those of us who are educated and articulate, but for someone who is Vietnamese and doesn't write English, for someone who's just finished his or her English-as-a-second-language class, the courts are a real barrier. Even in the Small Claims Court the rules of procedure can be somewhat daunting. Some people have lawyers; some people don't. Often the other side has a lawyer, and that makes it even more important.
I suggest that people with mental disabilities, people with these barriers must have a lawyer. So what about legal aid? Traditionally, this province has had the best legal aid system in the world and legal aid provided those services. For people who needed a legal aid certificate to pursue an action against the employer, that was often available. In other situations sometimes they could turn to their legal clinic or their student legal aid society for assistance. Has that changed? It certainly has.
The number of legal aid certificates in this province is now drastically reduced. The Ontario legal aid plan does not issue legal aid certificates in matters involving employment. In those circumstances, one must either be able to hire a private lawyer or get legal services elsewhere, or they're out of luck.
In the city of Kingston, the only legal clinic, Kingston Community Legal Clinic, does not provide those services. Since the reductions in legal aid, we've had to look at all of the areas for which low-income immigrants and the people who typically come to us for service need legal services and we haven't been able to provide that service yet.
Essentially, what this change will mean is that for people seeking unpaid wages beyond the six months, if these are people who can't proceed themselves -- such as people with these disabilities or language or cultural barriers; they can't afford a lawyer, most of them -- they'll be out of luck.
What about the matter of people not wanting to bring a claim within the six-month period because they don't wish to jeopardize their employment position? This situation is more acute among people who are new Canadians and people with disabilities. People with psychiatric disabilities are usually glad to have whatever job they can. Often it's the first job they've had. They certainly don't wish to jeopardize that by making a complaint. People from other cultures who are new Canadians often learn very quickly: "Don't complain about your job. If you do so, you might not have it."
People are fired for complaining, and I say that despite the fact that our current Employment Standards Act makes that an offence. However, there are limitations on the employment standards branch's authority to reinstate a worker who has been unjustly fired, and that's not something a civil court can do either. Absent a collective agreement for people who are unionized, this is a real fear people have. But more acutely, people often just don't know what their rights are during those six months.
I'm proud that at a legal clinic we often have the means to communicate with people who have traditionally been disfranchised from the legal system. I'm proud that what community legal clinics do is that often in the course of speaking to somebody about a landlord-and-tenant claim or a welfare problem we can convey information about other issues that are involved in their life, including workplace issues, but it's often not until somebody arrives at our doorstep for another matter, a power of attorney or a landlord-and-tenant matter, that we get an opportunity to speak to them about this. For these people, the two-year period is quite important and I suggest that must be preserved.
What about the $10,000 limit in the amount of money that the employment standards branch can order? I would make a few comments here. First, of course the same remarks that I made about access to justice apply to this, and in situations involving more than $10,000 people can't proceed in Small Claims Court. The upper jurisdiction is $6,000. Their choice will be limited to commencing a civil proceeding in the Ontario Court (General Division). In that court, the rules are quite daunting and that's regardless of whether you're disabled, whether you have a cultural barrier; they're complex. I suggest that, practically speaking, people cannot commence those proceedings without the assistance of a lawyer. Again, legal aid is no longer available for that purpose.
I'd like to focus on a change that's encompassed in section 19 of Bill 49. What section 19 says is that the worker must make a choice. You can proceed with a civil proceeding and sue your employer for unpaid wages, or you can proceed under the Employment Standards Act and go the route with the employment standards branch, but you can't do both. Currently, you can and it's not unusual for a worker to bring proceedings in both forums. Is that duplication? I suggest that it isn't and that there is good motivation for a worker to want to look to both forums for justice. As I'm sure you've heard, in every wrongful dismissal proceeding there are typically two issues: (1) Was the worker wrongfully dismissed; and (2) if so, what notice period should that person be entitled to? Because it's that notice period for which the worker will be paid.
Of course, litigating this matter, the question of whether they were wrongfully dismissed and the notice period, in a civil court proceeding is quite daunting and quite expensive. That's the sort of thing you typically need a lawyer for. The advantage about the employment standards branch is that it can do much of that for you. A lawyer is nice, but if you don't have a lawyer the branch will investigate it. It can prosecute it and it provides an adjudication forum for it that's quite consumer-friendly. The Employment Standards Act is access-to-justice legislation and it's against that background that all of these changes are measured.
What the worker can do is proceed before the employment standards branch, and if he or she succeeds and the adjudicator says, "You were wrongfully dismissed," then of course it will follow that he or she is entitled to the minimum pay and the minimum notice period under the act. Of course, at that point the act says that for a person who has worked for, let's say, one year, he or she is only entitled to one week, and it's quite modest thereafter. What workers have done in the past is they've succeeded before the employment standards officer and then they've said, "Now that I have that finding that I was wrongfully dismissed, I'm going to go to court because the court acts under the common law and the court has the authority to award me more than I got."
Some of my colleagues who practise employment law extensively say the rule of thumb is that for most workers you should get a month's notice for each year, whereas under the Employment Standards Act it's more commonly one week a year. If after succeeding before the employment standards branch one only proceeds to court to get a longer notice period, that's not a complex issue. If one has a lawyer, that's good, but perhaps it's easier to prosecute even without a lawyer. Further, if there is a trial, it's much shorter; it's confined to one issue.
That's why I suggest that people should continue to have the right to proceed with both forums, because otherwise what it will mean is that for low-income workers, the sort of people who often use the employment standards branch, they'll only be permitted, practically, either to proceed in the employment standards branch for that minimum notice period or to try to find a lawyer somehow and go to court. That's not a good choice and it's not a choice that, practically speaking, some of the people who are better off in our society face.
I'll summarize. What's the Employment Standards Act all about? It's about protecting workers, and it's against that policy position that all of these changes are measured. I suggest that it's no coincidence that workers' groups, legal clinics and unions aren't coming here today and saying, "These changes are good." What they seem to be saying is the opposite. I suggest that this is the time for the committee to listen and to reconsider those changes. Those are my remarks.
The Vice-Chair: Thank you. We have just over 30 seconds per caucus.
Mr Christopherson: Well, 30 seconds is not a long time. Let me say, first of all, that I appreciate some of the language you've used, and I wrote it down, that the idea of being able to go in two places is a worker seeking justice. We have high principles so far in this province and it would seem to me that shouldn't be something the government would be afraid of. You also coined this the "access to justice" legislation, which I thought was very well put. I want to ask you how you would respond, in the few seconds you'll have after I say it, to the government and others who would say to you that this is all just legalistic doublespeak coming from you and the fact is that workers aren't really losing anything. That's what the government's contending: Workers aren't losing anything. How do you respond?
Mr Done: What they lose is the difference between the notice period at common law and the Employment Standards Act legislated minimum periods. For somebody like myself, I'm privileged to have a middle-class job. If I am fired unjustly, I can go to court and I can afford to ask the court to give me the that I'm entitled to at common law. I can afford to go and get a lawyer. But the people I serve right now can't, and they'll be stuck with the minimum notice periods.
Mr Christopherson: Thanks for fighting for them.
Mr Baird: Thank you very much for your presentation. It's appreciated. I just have one comment in response to my colleague the member for Hamilton Centre. Particularly, he speaks of the high principles. I guess for too many workers, though, those high principles don't hit the pavement. After someone is educated to their rights, makes a complaint, it's deemed to have enough merit to conduct an investigation, an investigation is conducted and an order is issued and appeal time has expired, after all that, we're only collecting 25 cents on the dollar. If I was a worker in this province, I don't know whether it would be worth all your while to go through all that process, when there's a 75% chance if I win every single stage I'm not going to get my money. We've got to translate those high principles into reality for working people in this province, because it's just not there today for too many.
Mr Done: My response is short: There are two themes in this province, that disadvantaged people often haven't had many rights and that our government has continually tried to improve those. I encourage this government: Look at the legislation critically. Try to improve it. This legislation isn't going to save a nickel; it's going to cost people by forcing them to go to court or forcing them to turn to social agencies to recover what would otherwise be theirs by legislation. Let's continue the positive theme of improving workers' rights.
Mr Lalonde: Do you think the fact that those who cannot afford to hire a lawyer -- services from legal aid are not permissible in this case -- do you feel the ministry should keep some of the enforcement officers in place to handle those cases for people who cannot afford a lawyer and also are not represented by the union?
Mr Done: Yes, I certainly do. What the enforcement branch often does is provide services that lawyers would otherwise do. Much of what I do in my office doesn't involve reading statutes; it involves investigating, speaking to people, finding out what happened and calling people who owe the money and saying, "Gee, honour your contract and do what you're supposed to do." It seems that the answer is to strengthen the enforcement branch.
Mr Lalonde: So you would agree that unorganized groups should be entitled to have an enforcement officer take over their cases?
Mr Done: I agree categorically.
The Vice-Chair: Thank you very much for your presentation.
The Vice-Chair: I would ask that Alan Whyte please come forward. Good afternoon, sir.
Mr Alan Whyte: Good afternoon, Madam Chairman, members of the committee. Thank you for fitting me into your busy schedule today. I am a local, meaning Belleville-based, employment labour lawyer acting exclusively on the management side. We were retained late on Friday by a group of local employers who wish their collective voice to be heard at this particular committee. Unfortunately, the date only came to our attention late in the day. I've only had time to prepare an outline of my submissions, as opposed to a full brief.
Our labour and employment practice is largely but not entirely composed of small and medium-sized employers; in other words, businesses that don't have human resources. As a consequence, I think what I can bring to the committee is the perspective of that employer group, small and medium-sized; that's the focus.
I have prepared the presentation on the basis of three main areas. As you can see from my outline, paragraphs 2, 3 and 4, I have some brief comments to make about provisions that are endorsed, I have some comments with respect to problems that I can see in the act as it's now drafted and I think there are some other areas in the current act that need to be addressed that aren't anywhere in Bill 49. Let me go through it quickly.
With respect to those items that are endorsed, section 18 of the act requires an employee to elect between the filing of an Employment Standards Act complaint and a civil action. I would suggest that from the employer perspective, especially that of the small employer, this is a step in the right direction. What we have seen in our practice in recent years is what lawyers anyway call a multiplicity of proceedings. You have one event, let's say it's a termination of employment, and from that come forth two or three legal proceedings, all aimed at the same employer, all driving at the same thing, but all requiring different processing, additional cost and so on. Especially for the small and medium-sized employers, frankly, it's very difficult to deal with and we endorse the effort to focus the claim in whatever form it's going to be; the employee has to decide.
The next section is the one that indicates that unionized employees, in effect, must process their employment standards complaints through the union and through the grievance and arbitration processes in their collective agreement. Once again, for primarily the same reasons as I just gave you, we endorse this. I say that because we have seen over the years a multiplicity of proceedings. There's a grievance file; there's an Employment Standards Act complaint; if there's a human rights overtone to the matter there may be a human rights complaint. Once again the employer is hit on a number of fronts and the processing and costs and the risk and exposure are all over the place and are out of proportion to the problem. This is a beneficial change because it will focus the claim and have it dealt with.
The next area I'd like to comment on is the interplay of the collective agreement and the Employment Standards Act. That's dealt with in section 3 of the act. That is an area that is generally endorsed but somewhat problematic in application. It says that if certain provisions of the collective agreement prevail over the act, that is permissible as long as, when assessed together, the collective agreement exceeds the act.
Our employer clients have some concern about the proof of all that: How are you going to sort out what's superior, what's inferior and so on? I can see a lot of litigation, a lot of extra cost over that issue, and we think the government should go back to assessing it on an issue-by-issue basis; in other words, if holiday pay is the issue, then let's look at what the act says, let's look at what the collective agreement says and decide what is a superior benefit. The global approach, which I appreciate is designed to increase flexibility, is going to lead to some problems in practice.
Finally, the $10,000 cap on wage recoveries, I've heard only some brief submissions on that today. My read of the act is that this section only deals with wages. It doesn't encompass termination pay, it doesn't encompass severance pay and other entitlements owed under the act; it's just a cap on wages. I don't think the critics of that section need be too concerned, because in most situations the employees are going to realize that they're getting unpaid, if I can put it that way, well before the $10,000 ceiling will be reached. I don't feel that will be much of a problem in application.
Moving on to the areas of Bill 49 that we see some problems in, section 24 echoes a current provision of the act, that employer who has received an order to pay must pay the full amount ordered to be paid under the order plus the administration cost, which is usually 10% or something in that range. I know of no other appellate system in the system of law in this province that requires the party who is appealing to pay up front and then get his appeal. It is fundamentally unfair and punitive, and I have seen it work in that fashion against small employers. If you're appealing, you feel that the order is wrong. You shouldn't have to comply with it first and argue about it later. It doesn't work that way in the general system of law. That should be changed.
Moving on to limitation periods and recovery of money periods in section 32: My read of the situation is that the two-year limitation period which exists in the act right now, under Bill 49 as currently drafted, has been changed into something different. It's now a time frame that speaks to how the matter is going to be processed by the ministry. It's moved away from what it was originally, which is the time frame for an employee to file a complaint. There is value in that. Generally, in the system of law, limitation periods have value. They require things to be dealt with and brought forward within a reasonable time frame. My read of the situation is that the Bill 49 provisions have moved away from that. If the limitation period is going to be six months or one year, I don't make any comment about that. It should be made clear that this is the time frame applicable to an employee who has a complaint to file.
With respect to the recovery-of-money period -- I won't take you through all the language -- the effect of that as I read it is that the six months currently under consideration run from the filing of a formal complaint on the official piece of paper. I can tell you from my own practice that the worker will send a brief letter to the ministry, the ministry, because of the backlogs, doesn't get to it very quickly -- a number of months, usually -- then there may be an investigation, more months, and only then is a formal complaint initiated. I'm suggesting that whatever period is selected, be it six months or one year, the language of the act should say that the recovery is limited to the period of time, let's say six months, from the filing of a written complaint -- not the official complaint, but the filing of the written complaint. That is what the intent should be.
Finally, there is in section 5 a proposed section that says, as I read it, that all moneys for termination, severance pay and everything else arising out of termination must be paid within seven days. I can tell you that for a small employer, in the case of a long-service employee being terminated, that is a very onerous, overly onerous task. As you know, the current operation of termination and severance pay can amount to a global entitlement of 34 weeks. Let's say you had someone who's earning $30,000. That 34-week payment required under the act comes out to just under $20,000. I appreciate that this is a bit of an extreme example, but it's there to make the point that a hit of $20,000 that may have been unexpected to the employer in a small business is excessive.
What I would suggest is that for small employers, and as we all know, employers with less than $2.5-million payrolls are referred to in other parts of the act as being "small" employers, maybe that is the criterion that should be used. The employer should be able to pay out what is owed under the act over the course of the statutory notice period. That's the one- through eight-week sliding scale set out in section 57. That, for small and medium-sized employers, would be more fair and more appropriate.
Areas in the act that are not addressed at all: Section 32 is equal pay for equal work. We have no objection to the principle at all, we're simply saying that's redundant. We have a Pay Equity Act in this province which is very full and complete. It has enforcement mechanisms and is quite effective in relation to the idea of getting female wages up to male wages. That can be pulled. Section 32 should just be deleted completely.
Section 58.19 is a lengthy section that deals with a director's liability. I can tell you from personal experience that the director's liability provision is scaring off people who would otherwise be prepared to sit on, for example, boards of directors of community-based social service agencies. They are very concerned about their personal liabilities, which as you may know can be as extensive as six months' wages, 12 months of vacation pay and certain other provisions.
We suggest that the director's liability either be deleted completely or that it be scoped back significantly, because there is evidence that good people who would otherwise serve are being kept out.
In a lot of organizations, small, medium and large, it's unrealistic to expect directors to have all the information at hand so that they can prevent a default on wages or vacation pay. That isn't realistic. Directors don't have access to that day-to-day administration type of information. It's another reason to think hard about the directors' liability.
Section 64.2 talks about the meeting with the officer. All we're looking for there is an obligation on the part of the officer who's dealing with the complaint to give a copy of the complaint to the employer. That doesn't happen now. All that comes out is form letter that says, "Your former employee has filed a complaint for," then there's a blank and it might say "holiday pay" or "overtime." Usually you don't get any more particulars. If you're the employer, you don't get any more particulars. It's very difficult to deal with. If you had a copy of the complaint, you would be much better off in dealing with the matter and possibly resolving it at an early stage. Thank you.
Mr Tascona: Has it been your experience in collective agreements you deal with that there are provisions dealing with human rights and health and safety?
Mr Whyte: Yes. In both areas. Most collective agreements cover them, and what has happened since Bill --
Mr Tascona: Let me just ask you, since you respond to that: Why do you think unions want them in the collective agreement?
Mr Whyte: I think they may want the protection or access to the grievance and arbitration processes, and that is what has happened. Especially in the human rights area, issues which in the late 1980s would have gone to the Human Rights Commission have now come out through the grievance arbitration process which, at least in relation to the human rights process, is a lot speedier and more effective. I think that change is beneficial both ways.
Mr Lalonde: I need some clarification. Section 22, limitation period for the recovery of money: You mentioned that the claim should be from the filing of the written complaint.
Mr Whyte: Yes.
Mr Lalonde: This would mean that if an employee has filed a complaint, let's say two months after he has quit his job, there would be only four months for him to claim his overtime or additional statutory holidays?
Mr Whyte: No. In your example, if he filed the claim two months after being terminated or whatever it was, then I'm saying it should go back six months. As I read the act now, the six months operate from the filing of the formal claim which often, in my experience, comes after a lengthy investigation. The two years as it is now becomes much greater than two years in practice. I've seen examples of that where you end up dealing with cases that are three and four years old. I'm saying the six months, or whatever period of time is ultimately selected, should run from the filing of the first letter by the employee.
Mr Lalonde: Even if the filing was done a couple of weeks after he terminated his job?
Mr Whyte: Yes.
Mr Christopherson: It's really too bad there's such limited time, because you get into a fair bit of detail, and I wouldn't mind engaging you in some of that. I want to suggest something to you and ask your comment. One of the things you don't deal with is the new minimum threshold that workers would have to cross in terms of the money they're owed before the Ministry of Labour would kick in. The government is going to give itself the power to impose such a threshold. It won't tell us what that is.
For the sake of the argument -- as you like to use extremes to make your point I'll do the same -- if it's $500 and a worker is owed $80 -- minimum-pay job, can't afford to take time off, can't afford to hire a lawyer -- that worker effectively is probably going to lose the $80. First of all, would you agree they're going to lose that $80? Second, if you agree with that, would you agree there are therefore elements of this bill that take away workers' rights?
Mr Whyte: I agree the effect will be that the $80 will go unpaid, as I understand the bill. I don't agree that this is necessarily taking away rights. I don't see anything in the act to say that the present interpretation of the Ministry of Labour, which is clearly pro-employee, is going to be altered. That is my experience in that the decision-making at the branch is pro-employee. I don't see anything to alter that. You don't find that in legislation; you find it in the day-to-day approach of the officers.
The Vice-Chair: Thank you very much, Mr Whyte, for coming forward today. Given that this ends presentations to the committee here in this city, I would like to adjourn with notice that we will commence tomorrow morning at 9 o'clock in committee room 1 in Toronto.
The committee adjourned at 1730.