Tuesday 10 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
Canadian Federation of Independent Business
Ms Judith Andrew
Ms Catherine Swift
Canadian Union of Public Employees, Ontario division
Mr Nick Milanovic
Mr Brian O'Keefe
Council of Ontario Construction Associations
Dr David Surplis
Employment Standards Work Group
Ms Jan Borowy
Ms Consuelo Rubio
North York Women Teachers' Association
Ms Heather Garrett
Ontario Restaurant Association
Mr Paul Oliver
OPSEU Members -- Ministry of Labour Employee Relations Committee
Mr Robert Rae
Metro Toronto Clerical Workers Labour Adjustment Committee
Ms Alice de Wolff
Ms Maureen Hynes
Canadian Council of Grocery Distributors
Mr Max Roytenberg
Ms Arlene Lannon
Mississauga Board of Trade
Mr Charles Coles
Mr Norman White
Human Resources Professionals Association of Ontario
Mr Mike Failes
Union of Injured Workers of Ontario Inc
Mr Phil Biggin
Mr Carmine Tiano
Mr Maurice Stewart
Union of Needletrades, Industrial and Textile Employees
Ms Alexandra Dagg
Ms Harwant Singh
Ms Yin Ping He
Automotive Parts Manufacturers' Association
Mr Ken MacDonald
Ms Fely Villasin
Ms Coco Diaz
Law Union of Ontario
Mr Malcolm Davidson
Mr Richard Blair
Olsten International BV
Mr Gary French
Andra Associates Inc
Mr John Andrachuk
Toronto-Central Ontario Building and Construction Trades Council
Mr John Cartwright
Ms Irit Kelman
Lumber and Building Materials Association of Ontario
Mr Stephen Johns
Mr Simon Dann
Community and Legal Aid Services Programme
Mr Barry Wadsworth
Amalgamated Transit Union Canadian Council
Mr Tom Parkin
Employment and Staffing Services Association of Canada
Mr David Stark
Mrs Karen Mugford
Unemployed Workers Council
Mr John Maclennan
Ms Valerie Packota
Mr Terry Kelly
Mrs Beatrice O'Byrne
Canadian Union of Public Employees, Local 79
Ms Anne Dubas
Ontario Liquor Boards Employees' Union
Ms Julia Noble
Mr Joseph Healy
Toronto Workers' Health and Safety Legal Clinic
Mr Daniel Ublansky
Ms Linda Vannucci-Santini
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 JohnO'Toole (Durham East / -Est PC) for Mr Carroll
Mr John L. Parker (York East / -Est PC) for Mr Maves
Mr E.J. DouglasRollins (Quinte PC) for Mr Murdoch
Also taking part /Autres participants et participantes:
Mr HowardHampton (Rainy River ND)
Mr PeterKormos (Welland-Thorold ND)
Clerk / Greffier: Mr Douglas Arnott
Staff / Personnel: Mr Ray McLellan, research officer, Legislative Research Service
The committee met at 0903 in committee room 1.
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. I would ask those present to take their seats if possible, please. We'd like to start. Welcome to the hearing process on Bill 49, An Act to improve the Employment Standards Act.
CANADIAN FEDERATION OF INDEPENDENT BUSINESS
The Vice-Chair: Just so that we go through the procedure, there will be a 15-minute time allotment delegated to each of the participants or intervenors who come before the committee. That time will be used as you see fit, in a combination of presentation and question and answer or straight presentation, whatever you wish. Any time that is left at the end of the presentation time, up to the 15-minutes, will be allocated and distributed evenly between the three parties for a question and answer session. So welcome. I'd ask that you introduce yourself so that Hansard and the committee members and the public can know who you are.
Ms Judith Andrew: Good morning. I'm Judith Andrew. I'm the director of provincial policy with the Canadian Federation of Independent Business. I am to be joined by a colleague momentarily, and when that happens we'll introduce her. We appreciate the opportunity to present today on behalf of CFIB's 40,000 small and medium-sized business members in the province.
Our members are quite representative of the business population by size, age, sector, and rural and urban split, so our survey results are indeed a reliable gauge of the views of the small and medium-sized business sector. I mention this because we do indeed have some fresh survey results to bring to the government's and the committee's attention. They're appended at the back of our brief. They do pertain to the upcoming comprehensive review of the Employment Standards Act and have some bearing on Bill 49, so we enclose them today.
CFIB is pleased to make the presentation on Bill 49 today. We feel that this first stage of reform is very important and we support the government's plan to undertake a comprehensive review in the two-stage overhaul. We are concerned that the ESA is a complicated piece of legislation which badly needs simplification and modernization.
I would like to quote from a 1987 report on just one piece of the legislation, and that was the Donner task force. I actually had the opportunity to serve on that task force so I remember this very clearly. The Donner task force observed that the structure of the legislation is so complicated that its totality is likely to be understood by only a few persons.
At the outset, we would note that the Employment Standards Act impacts smaller firms and their employees probably more than any other segment of Ontario society. Therefore, the small business perspective is of prime importance to policymakers. Large business representatives and their big labour counterparts are often quite vocal about the legislation, but the fact remains that the legislation has little, if any, relevance to the majority of these firms and their workers. A major exception to this rule would be the hours of work and overtime provisions. Accordingly, our submission will first deal with the amendments and then turn to the reasons why our members believe a more comprehensive review is necessary.
I've just been joined by our president, Catherine Swift.
Ms Catherine Swift: The late Catherine Swift. Excuse me.
Ms Andrew: On Bill 49, under the choice of procedure, CFIB is particularly supportive of the provisions contained in section 19 of the bill which are aimed at eliminating duplicate claims. We think it's reasonable to require employees to consider their options at the outset and decide whether they wish to file an employment standards claim or take the issue to court.
Smaller firms of course find that defending claims is more onerous because they have fewer resources to handle such matters. While large-firm executives can call up their legal department or call upon a major labour law firm for top-notch representation, small business owners don't have that luxury. They have to endure all the costs, delays and frustrations associated with these processes. We believe that tying up entrepreneurs' time in duplicative processes has the effect of diverting these business owners' time, attention, effort and money away from growing their firms and doing what they do so well, which is creating jobs.
On the limitation period, CFIB supports the proposal in Bill 49 to require the claimant to lodge his or her complaint within six months of the alleged violation. We believe it's reasonable and appropriate to make the employee responsible for lodging the claim on a timely basis so that the investigation can happen while the evidence is still fresh. We also favour extending the time limit for appeals from 15 to 45 calendar days.
We support the government shifting the 4% of cases above $10,000 to the courts, since these tend to involve higher-paid individuals and represent a disproportionate drain on government resources.
Under the area of pregnancy and parental leave, I think it's important that legislatures recognize that Ontario's comparatively generous provisions in this area have long since reached the limits of what smaller businesses can reasonably support, notwithstanding the fact that owner-managers are generally strong supporters of both family and community. Many small businesses will regard Bill 49's clarification in pregnancy and parental leave as an enhancement to an already generous arrangement.
This has to be understood against the backdrop of smaller firms having greater difficulty holding open positions for lengthy periods owing to the fact that such absences represent a significant proportion of their staff complement. When you think about it, one person on leave from a five-person staff represents a 20% void in that firm, and that's not easily filled. When you realize that 75% of all firms with paid employees have fewer than five staff members, the pregnancy and parental leave provisions do impact our sector dramatically. We're also concerned that the clarification in this area may have broader application than intended, and we would request that the government look into that aspect.
On collections, we believe the decision to contract out collection activities relative to moneys owed under the Employment Standards Act is an excellent example of the government concentrating on its core business while achieving better results more cost-effectively on an ancillary activity.
Use of grievance procedures: We support the proposal to require employment standards complaints to be dealt with through an available grievance procedure in firms having a collective agreement. We also join with others who have expressed concerns before this committee that the section 20 powers of arbitrators and process for appealing arbitrators' decisions need to be clarified in Bill 49.
Under the issue of greater right or benefit as a package, we are aware that this has been drawn from the bill and that it will form part of the government's discussion paper leading to the second phase of the reform process, and we do encourage this process. But it was with some bemusement that we learned of labour disenchantment with this provision, as we would have thought that negotiating better packages and representing their members was unions' raison d'être.
From the small business perspective, owner-managers making arrangements with employees respecting working conditions has always been the way both parties obtain the necessary flexibility to function together. We take issue with any suggestion that employees who are not represented by a union watchdog are by definition "vulnerable workers." It's simply not true that an employer can dictate unattractive terms and conditions of employment because they always hold all the power. It may be true in some time-limited circumstances, but in the highly competitive market with the volume of job changes that we have, it's virtually impossible for an employer to treat people badly and not suffer the consequences.
We believe the standards are too rigid in various areas and we feel it's important that consenting people can make arrangements that suit themselves on working conditions. A good example of this was brought forth in the Donner task force report. There were no lieu time provisions recognized by the act or the branch at that point despite the fact that there was widespread practice of lieu time going on, lieu time being where employees bank overtime for use at some later occasion.
We support the concept of permitting greater right or benefit as a package and we believe it should apply across the board and not just in unionized settings.
My colleague will now touch on the survey results that are appended.
Ms Swift: I just want to briefly touch on a survey that we did a couple of months ago in anticipation of there being a review of the Employment Standards Act. It presents some pretty interesting data, more so for the second phase, because these questions are sort of more general in terms of how small businesses deal with the Employment Standards Act. Some of the key findings we hope you'll look at with a little more time later. We did get just under 5,000 responses, so it's a fairly decent sample of firms, small businesses of varying sizes.
One of the key findings was, for example, that just under 60% of the members surveyed did have problems with the legislation. Needless to say, that's the majority, and it suggests that there are some changes that can helpfully be made here.
We found that about one third were concerned with the minimum standards themselves. About the same amount were concerned with the whole record-keeping issue, which is always very important for small businesses lacking the resources, as Judith mentioned. Just under another third said the attitude of government officials dealing with the act, as well as their competence, was also something they had serious problems with. And about 12% had concerns with the appeal system.
Some of the interesting tabulations, I guess, when we look at this from the standpoint that we would like this legislation to be a promoter of job creation, not a discourager of job creation, and permanent full-time job creation, if possible: Although the numbers weren't huge, we saw that, for example, just under 4% of the very smallest firms had workers on fixed-term contracts. I know there are a lot of reasons for that, some of which have been pretty logical business reasons, like before you're sure that a sales boost is going to be enduring and not just last for a short period of time and what not, you tend to hire people either part-time or on contract before you commit yourself. But there was no question that the stringent labour standards situation, which does make it extremely difficult once an employee is hired full-time to then downsize if economic conditions require it, was also a major motivator as to why smaller firms in particular, which naturally tend to be the younger, newer firms, were opting for the contract route.
We would leave these results with you for your further interest, we hope, and look forward to doing some more analysis of them in anticipation of the second stage of review of the act.
Thank you. If there's time left for any questions, we'd be happy to try to answer them.
The Vice-Chair: Thank you. We do have a bit of time left. We have a minute and a half per caucus, starting with the official opposition.
Mr Pat Hoy (Essex-Kent): Good morning and thank you for your presentation. On page 3 you're talking about maximum claim amounts over $10,000 tending to involve higher-paid individuals. I assume you mean they are paid more per hour or per month or whatever, but we've heard presentations from people who are on the very low side of the income scale who also have claims in excess of $10,000. Maybe they've been victimized and were in a more vulnerable position for a greater length of time and it does exceed $10,000. Do you have any comment on higher-paid individuals? Do you have any knowledge that many of the claims are from those who are paid, we'll say, at the higher income scale?
Ms Andrew: Just in discussions with the employment standards branch staff, the types of claims that would fall into that category tend to be things like executives who are pursuing $100,000 claims and perhaps using employment standards branch as an alternative to discovery before they move on to a court battle. Also, there are concerns like commission sales, people who have large commissions, and there's some dispute over when it was to be paid and that sort of thing. So the branch is getting into that kind of thing rather than focusing on the types of claims that one would normally think the employment standards branch would deal with.
But I would comment on your suggestion that the vulnerable individuals who could accumulate that amount over a longer period of time -- I do believe this provision would also work in conjunction with the limitation period and we think it's important that people raise their issues with the branch fairly promptly and not let a situation go on for several years and then make a large claim. That isn't serving the individual very well, it isn't serving the firm very well and it's better that these things are dealt with more immediately before the claim gets into that kind of high dollar figure.
Mr David Christopherson (Hamilton Centre): Thank you for your presentation. I wish we had more time. There's a great deal in your presentation that I'd like to talk to you about. However, I want to say at the outset that unfortunately there are many chambers and others who have felt that those of us who have concerns about this bill view all employers as bad employers, and that's not the case at all. This law is about the minimum standards and it's to deal with those bad bosses who do exist, and they are out there. As much as we all would like to think they aren't, they are.
When you comment on things like standing in the way of consenting adults making arrangements that suit themselves on working conditions and whether or not employers hold all the power in non-union situations, we only need look at the situation of the Screaming Tale where some were coerced, some were convinced that it was in their best interests to take on a job that didn't pay anything. All their remuneration was in tips. Of course there was a province-wide outrage at that.
A question for you on the issue of limitation periods. There's been a lot of focus on the six months reducing from two years and the concern that people have is that 90% of all claims are made after people leave the employment of the bad boss and they need the two years to go back because they've been fearful of making a claim while they worked there, because of worry about recrimination.
This is going to have the effect, and we've seen it time and time again, of costing employees money they've already worked for, and I'd like to know how you would comment on that, recognizing that these people are going to lose money that right now under the law they would be allowed to recoup.
Ms Swift: There are just two sides to the issue naturally, although there will always be a handful of individuals in any group who will try to circumvent the system, and of course we're in the position of hearing from our members about the employees who abuse the standards in the Employment Standards Act and elsewhere to take unfair advantage of employers. Goodness knows, we have many, many large files and long lists of these kinds of situations happening, and of course the vast majority of our members have eight to 10 employees and usually are put through legal costs and what not that are pretty heavy duty for them. So I think there are certainly two sides to this issue as there are to just about every issue.
I guess we see this two-year period, for example, leaving an inordinate amount of time. As Judith mentioned earlier also, it gets to the point that you don't necessarily even recall what happened if it stretches to a two-year point. We think to enforce, to educate, to promote the speedy resolution, six months should be enough. We've got enough hangups with our entire judicial system, let alone what happens under acts like these, and we see cases where employees come back in a sort of harassment way to employers because they're disgruntled ex-employees and there really is no case to be made.
Again, I think it's wise to just keep in mind that there are two sides to the situation and it's our members, given that they're small and typically lack a lot of money to throw at these things, who often are victimized.
Mr Christopherson: I hope you'll get a chance to see the Hansards and review some of the presentations we've had because some of them are quite frightening.
Ms Swift: We've seen them.
The Vice-Chair: Excuse me, Mr Christopherson. We've expired the time on the questions. As a matter of fact, we're well over time right now. We have one left to hear from, Mr Baird.
Mr John R. Baird (Nepean): Thank you very much for your presentation. I particularly appreciate the survey results of your provincial survey appended to the back. It's always good to see that some thought is going into it in terms of representing your members across the province.
The growth, and I guess continuing growth, of small and medium-sized business in the provincial economy certainly points to the need for an overall review of this ESA, given that it was written in 1974 and the growing importance of small businesses certainly has got to be reflected in the act.
One issue we've been talking a lot about is right now we're only collecting 25 cents on the dollar. Once an order is issued after the investigation and appeal period, we're only collecting 25 cents on the dollar. From your experience with your members, do you think that the act would likely be strengthened and taken more seriously if that abysmal rate were dramatically increased through bringing in collection agents? Would people be more likely to respect the act if it was actually enforced?
Ms Andrew: We think our members do respect the act. Right now, we're analysing the massive pile of comments that we have received in connection with this survey. They do respect the act in terms of compliance with it, but they have concerns about how it impacts them on the collection front. Obviously if there's an improvement in collection, that's got to benefit the employee involved, and as well the employer who owes the money is going to realize he has to pay up.
Mr Baird: Particularly with respect to competition, if company A is accepting the role and company B doesn't. So thank you.
Ms Andrew: Yes.
The Vice-Chair: Thank you very much for coming forward this morning.
CANADIAN UNION OF PUBLIC EMPLOYEES, ONTARIO DIVISION
The Vice-Chair: I would ask representatives from CUPE, Ontario division, to come forward, please. Good morning, gentlemen. For the sake of Hansard and those present I would ask you to introduce yourselves, please.
Mr Nick Milanovic: My name's Nick Milanovic. I'm a lawyer for the Canadian Union of Public Employees.
Mr Brian O'Keefe: I'm Brian O'Keefe. I'm the secretary-treasurer of CUPE Ontario.
The Vice-Chair: Welcome.
Mr O'Keefe: The Ontario division of the Canadian Union of Public Employees welcomes this opportunity to make submissions to the standing committee on resources development.
CUPE is Canada's largest trade union representing more than 450,000 members. Our members do a variety of jobs from coast to coast. We are organized into more than 2,650 local unions and are situated in nearly every major city and town. CUPE locals range in size from half a dozen to more than 18,000 members.
The Ontario division of CUPE represents more than 180,000 members. Ontario division members are employed by boards of education, municipalities, hospitals, universities, nursing homes, homes for the aged, electrical utilities, voluntary social agencies, the Ontario Housing Corp and the Workers' Compensation Board.
Employment standards legislation is the most fundamental piece of labour legislation for working people in Ontario. It has set minimum standards that protect workers from exploitation by the province's worst employers. We believe that any amendments must improve the legislation.
The Minister of Labour says that the proposed changes in Bill 49, the Employment Standards Improvement Act, are housekeeping amendments to facilitate administration and enforcement by reducing ambiguity, simplifying definitions and streamlining procedures.
Although the current Employment Standards Act is already a relatively weak piece of legislation, we maintain that the proposed amendments will diminish its minimum standards even more. Since the proposed amendments will let employers bargain for substandard working conditions, the Ontario division of CUPE is opposed to the key amendments. We see that the amendments will hamper the administration and enforcement of the act, increase uncertainty for those involved in a claim and complicate and limit its procedures. The amendments in fact will make employment standards legislation so ineffective for workers that employers will be able to legally circumvent basic employment standard guarantees.
The Ontario Federation of Labour's bad boss hotline has been flooded with calls from workers recently who are not being paid their wages, not being paid overtime, not being granted their vacation or statutory holidays, being forced to work too many consecutive days or beyond the legislated maximum of 48 hours a week. Other callers are complaining of harassment and firing without cause.
We have other concerns about the proposed amendments that we will not address here. The Ontario Federation of Labour's legislative brief speaks to these concerns, and the Ontario division of CUPE supports the OFL submissions.
A great majority of the proposed changes seek to limit even more the ability of workers to enforce their rights under the law. The substance of what may be claimed has been limited under Bill 49 with the imposition of new minimum and maximum amounts that may be claimed. The government's proposal to prevent workers from collecting more than $10,000 from delinquent employers, regardless of what they actually owe, is patently unfair.
Finally, the proposal to shorten the duration of acceptable claims reduces the total amount that may be recovered from law-breaking employers and all the changes will force many non-unionized complainants to abandon the Ministry of Labour's dispute resolution system and opt into the court system for resolution of their disputes. Many workers, however, will find it extremely difficult to enforce their rights in court, given the expense and time required for private litigation. As a result, workers will simply not be able to enforce their employment standards rights and have to abandon their claims.
At the same time, union members will be barred from launching a complaint under the investigatory and enforcement powers of the amendments. The changes mean that unions will face new financial and legal obligations that will make it difficult for them to enforce all of their members' employment standards complaints. Employers, on the other hand, will face fewer complaints.
Our second major concern is that of privatization. This act is an attempt to privatize two critical aspects of the legislation. First, the government wants to transfer the cost and responsibility of administering unionized amendment complaints on to the shoulders of trade unions covered by a collective agreement. It wants to permit the workplace parties to contract out the provisions of the act. These changes will result in a loss of jobs and create a more difficult labour relations atmosphere.
Second, the government wants to transfer the collection of non-unionized employee claims to the private sector. This provision will lead to employers receiving smaller settlement packages. In turn, this will serve to weaken the force of existing employment standards for unorganized employees.
The Ministry of Labour is clearly attempting to rid itself of the cost and responsibility of enforcing the act. Channelling complaints into the court or grievance arbitration system may help the ministry to reduce its budget, but it won't improve employment standards for workers. The alteration to the collection system also helps the ministry eliminate the cost of funding the enforcement mechanisms of the act.
The government is clearly telling us that it has little interest in maintaining employment standards. The amendments also repeatedly differentiate between unionized and non-unionized workers. Workers who happen to be union members are treated differently from non-unionized members. The changes to all workers' rights based on union membership signals the end of the basic universal workplace rights workers in this province have enjoyed for the last 30 years. Union members won't have the same minimum standards extended to non-union employees, nor will union members have their rights enforced through the same procedures.
These changes have negative implications for the equality of enforcement of employment standards legislation in unionized and non-unionized workplaces.
Finally, the elimination of a universal floor of rights for unionized workers, along with the numerous amendments limiting non-unionized employees from fully enforcing the law, shows the government's intention to erode employment standards in this province. Allowing employers with a bargaining agent to set workplace employment standards would only lead to an erosion of current standards. Employers will copy the lower workplace standards of their non-union counterparts or contracted services to private sector non-union workplaces. This trend to contract out and lower workplace standards for unionized employees is further aggravated by the government's new restrictions on non-unionized workers.
These changes will tempt unscrupulous employers to save money by abusing workers' rights under the act. Given the increased difficulty of enforcement for non-unionized workers, these employers will be enabled to disregard the substance of the law, and their unionized counterparts will be encouraged to go after workplace concessions or, alternatively, contract their work to unprincipled employers who do not respect the law. At the end of the day, the government's changes are detrimental to organized and unorganized workers throughout the province.
In the main, the legislation is no improvement for workers. It is a highly partisan, ideologically driven bill that is designed to further shift the balance of power into the hands of the employers. It is a format that has been tried in other jurisdictions and has succeeded only in weakening the economies and lowering the standards of living.
In light of the changes that have taken place in our economy in recent years -- the proliferation of small workplaces, the decline in the standard of living for working people in this province since the late 1970s, and the fact that 20% of jobs now are part-time jobs -- we find it extremely disturbing that this government would try to dismantle the standards that have been built up in this province. In fact, it's the structure of our society which has been built up here since the Second World War. We see this as the dismantling of the welfare state. We're extremely disturbed by it. We see it as an outright attack on working people to try to shift the balance of power and wealth from those who have not to those who have. We're going to oppose this with everything we've got.
The Ontario division is vigorously opposed to the changes and requests the committee to seriously consider our submissions during the process of redrafting this legislation. Please do not hesitate to contact us if you or your staff have any questions you want us to address.
All of the above is respectfully submitted for your consideration.
The Vice-Chair: Thank you. We have four and half minutes remaining to the 15-minute mark. Mr Christopherson, would you start, please?
Mr Christopherson: Thank you very much for your presentation. I'd like to comment on the aspect of the ESA claims now being the responsibility of unions like yours as a result of Bill 49. It's been suggested by some of the government members that they're surprised. They thought that unions would want this responsibility for reasons I'll leave to them to explain. Our position has been that all this does is effectively download responsibilities out of the ministry on to unions, and in conjunction with weakening the standards, allows the government to lay off employment standards officers, which is the name of the game. We know that at least 45 are going to be gone as a result of this bill.
First of all, could you tell me how much it costs you on average for an arbitration case to deal with from the beginning to the end? Secondly, just overall comments on why this is not a responsibility that is good for you and in fact you see the government as downloading and dumping responsibility off their shoulders to yours.
Mr O'Keefe: I'm going to let Nick comment on the cost aspect of it, but this is definitely a cost cutting exercise. It's designed to do some cost cutting in the ministry. It's going to burden unions that are already overloaded. It's going to be a very, very big cost item for unions, so basically what this is doing is shifting the costs of looking after these cases from the ministry over to unions.
As I say, this is something we're not in a position to handle. We're already overloaded, but I'm going to let Nick comment on some more details.
Mr Milanovic: Let's take the easiest situation, a straightforward case, which may last between one or two days and today that is often a rarity. If we were going to do an in-house, that is if someone in the legal department in CUPE were to do it, and the preparation for a case often lasts between three or four days of straight working time, CUPE would have to be out of pocket my wages, including a national representative responsible for the local and often the local president. We would spend that time preparing the case. We would have to hire an arbitrator whose costs would be split between the union and the employer. Arbitrator's costs run between approximately $1,500 a day to $3,000 a day. If we were to contract that out to a law firm, traditionally a lawyer would charge approximately $2,000 a hearing day. All told, we're talking about between $4,000 and $6,000 for a simple case.
Mr Christopherson: Is this something you've asked for?
The Vice-Chair: Excuse me, Mr Christopherson, we're now a minute and a half beyond the allocated time
Mr John O'Toole (Durham East): Thank you very much for your presentation this morning. There's seldom a day that goes by that I don't read the paper and read the names Sid Ryan and Gord Wilson, very popular, very powerful, very important people in the economy of Ontario and indeed Canada -- a very large organization, 450,000 members, a formidable company you might say, if one was to interpret it that way.
You stated this morning, I guess on behalf of CUPE, that you didn't want to see any changes, technically, in the labour laws. Is that basically pretty generic?
Mr O'Keefe: That's not correct. The point I'm trying to make here: This is the very moment in our history where we should be extending employment standards because of the changes that are taking place in our economy. I mentioned the proliferation of the small workplaces, substandard jobs, the huge number of low-wage jobs in the service sector, and what's happening here is the dismantling of everything we've built up over the past 50 years.
Mr O'Toole: I think we've heard from Professor Judy Fudge and others, rather militant positions, but they would all acknowledge that the world of work itself is changing. In fact, for organization, you might say that world work is fragmenting with home work, smaller workplaces. Is this a difficulty in your organizational efforts?
Mr O'Keefe: It presents us with some problems, but the issue here is that the structures that are in our society, our public institutions, are being dismantled -- the institutions that would protect these people.
Mr O'Toole: There's no reduction in the minimum standards.
The Vice-Chair: Excuse me, Mr O'Toole, time has expired.
Mr Jean-Marc Lalonde (Prescott and Russell): Thank you for your representation. I have a question. Let's say if one of your employees reports to the union rep in one of your shops and he finds out that he hasn't been paid vacation pay, overtime, stat holidays, and finally, your union rep tells him, "Well, the amount might be over $10,000, but remember we just cannot collect over $10,000, and also the fact that we have to go to private collections." What type of reaction would you expect from your employee if you are telling him, "No, you're not entitled if you're more than $10,000," and "No, you have to pay a certain amount of the amount of money that will be collected if it is over $10,000"? Do you think the employees will be happy? Do you think the employees will say, "Well, you people are there to represent me, to collect my money that is owing to me."
Mr O'Keefe: When this happened, employees who are in that situation are going to be totally outraged. I think there's absolutely no justification whatsoever for this $10,000 cap. If an employer owes money, they owe money. It's as simple as that. The fact that passing the collection of the money over to a collection agency I think is absolutely disgusting, and it's going to put all sorts of pressure on vulnerable employees.
Mr Lalonde: Do you think the employee's going to say, "Well, I've been paying union dues for you people to represent me and in this case, you cannot represent me properly"?
Mr O'Keefe: No, I think workers are pretty smart. I think they'll see it's the Harris government.
The Vice-Chair: Thank you very much for your presentation this morning.
COUNCIL OF ONTARIO CONSTRUCTION ASSOCIATIONS
The Vice-Chair: I would ask the representatives of the Council of Ontario Construction Associations to come forward please.
While that is happening, I would like to just reiterate, I guess for the sake of the public who are here, so that everybody has an equal opportunity to present their case and to have the questions asked, I ask for cooperation, not only from the members of the panel but perhaps those presenters as well. Where we are time restricted, we're now fully one behind. We were about six minutes late in starting. We've lost nine minutes in two presentations. That may not seem like a lot, but if we keep on that path, some people won't be able to be heard today and I think that would be unfortunate. So for the sake of those present and panel members, I ask not to have to have me interrupt you. If there's only time for a short question at the end, please use a short question time, and let's proceed.
Mr Christopherson: On a point of order, Madam Chair: Very briefly, I was going to say something yesterday and I let it go, not that one should play comparison games, but I thought that the previous Chair was serving us all well when he allowed, no matter how much time was over, unless it was extreme, at least people to make a brief comment, even if it was 15 seconds, and maybe, certainly for myself, I wouldn't feel that I have to rush in to get everything in there, and presenters the same way. It worked well and we didn't do it all day yesterday, but I'm raising it early today for you to think about, so that we don't have a situation where a presenter is faced with us making a comment and then they are shut down from even saying four words. I thought when Steve did that, it worked well.
The Vice-Chair: Mr Christopherson, I have yet to cut off an intervenor's response. In fairness to the Chair, I'm finding that all parties are abusing the lead-in time to the question. If there's a question to be asked, please ask it. I've never as yet cut off an intervenor's response, which I think is why we're here -- to listen. But I do ask for everybody to please help us out in being fair to the others who have to follow, whose time will be restricted. I do appreciate your comments and I will continue to try and be fair, but I'm asking for everybody's indulgence in being fair to the presenters and letting them have the opportunity to answer a question.
Having said that, welcome to the table. I would ask for the sake of Hansard and those present that you introduce yourself.
Dr David Surplis: I'm David Surplis. I'm president of the Council of Ontario Construction Associations, which is known as COCA more often than the longer term. We're a federation of the major construction associations across the province, which you'll see on page 7 of our brief. Our members represent approximately 8,500 companies or employers, which in turn represent the vast majority of non-residential construction in Ontario. You've heard from some of our member organizations around the province, as you took your hearings on the road, but we're here now to give voice to our other member associations that we're able to be present at your other hearings.
Right off the top, I want to say that the members of COCA are very pleased that the minister has started the two-step process of changing the Employment Standards Act to reflect the realities of the modern workplace. The goals of Bill 49 to us are clearly more efficient and effective use of government resources, while protecting basic standards for employees.
One of the principal reasons that COCA supports Bill 49 is the fact that the non-residential construction industry has been severely depressed since 1989. From 1989 to 1995, we've lost over half of the business in Ontario, and you probably know that full well, looking around your ridings. Try some time, this next weekend, to look for some construction cranes. At one point, I offered to give members $10 each for each construction crane they could find, with the proviso that you couldn't include public housing, which was then in force. So you get an idea how badly off we are. It's a huge part of the economy and we've been pounding this drum for some time. Our unemployment is still in double digits and some of our union halls are reporting more than 50% of their members still looking for work.
However, Bill 49 isn't about unemployment but it is about efficiency on the part of government, simplicity for the better understanding of employees and employers and effectiveness of enforcement regarding those who run afoul of the law, on either side. Of course, we view efficiency, simplicity and effectiveness as basic, necessary ingredients of any plan to enhance productivity, attract investors and improve the economy. To us, Bill 49 is not just housekeeping but it's also a signal that the government is intent on addressing the realities of the global marketplace, international competition and especially the changing nature of work in the workplace.
In fact, seeing Ron Saunders here earlier, I was reminded that many in the construction industry think the ministry's name should be changed as well to include some reference to the workplace, to portray a sense of balance. For years, people in the construction industry, or at least management, the employer side, have perceived 400 University Avenue as the Ministry of Organized Labour, and of course that's wrong.
As I mentioned in the beginning, Ontario's non-residential construction industry is very unhealthy. As you know, activity in our sector usually indicates the health of the economy as a whole, a bellwether effect, but unfortunately there's nothing going on. Yes, there are a few projects like Highway 407, the expansion of the convention centre, the trade centre and so on, but unfortunately, I have to remind you that $1 million spent on industrial, commercial, institutional or civil construction only produces between 12 and 16 person-years of work. To put things in perspective, a construction project valued at $100 million provides jobs for roughly 1,200 to 1,500 people, but we have over 50,000 skilled workers unemployed in Toronto alone, so we require huge amounts of investment to get our sector going again.
The changes proposed in Bill 49 will not directly address the economic depression afflicting our industry, that's clear, but they help, mainly by sending a signal. Construction is a derived demand and there is nothing that will help us so much as a healthy economy. The members of COCA are therefore in favour of all kinds of necessary changes, such as getting rid of redundant, confusing and job-killing regulations, as Mr Sheehan and others are looking into, and unloading activities and their costs currently undertaken by government which can be done as well or better, and I underline "as well or better," by the private sector. Of course, the obverse is true -- if they're better done by government, leave them with government. That's all partly envisioned by Bill 49.
Another step we support is devolving some of the government activities and responsibilities on to the workplace parties themselves, which is also anticipated in Bill 49, but is much more forcefully demonstrated in Bill 54, the previous minister's legislation in Consumer and Commercial Relations. We believe strongly in the concept of delegated administrative organization such as obtained in Alberta, and the concept of rowing your own boat -- responsibility for the industries sectorally.
Bill 49 holds promise of letting government attend to what it does best and leaving the sectors to do what they do best. By that, we don't mean unlimited powers for management with no consideration for workers. As you probably remember, certainly some of you remember, COCA was a strident opponent of Bill 40 in years gone by. The reason for that was, we saw it as killing the economy and discouraging investors. We thought there was nothing better for the financial and other health of workers than a healthy economy. That's the best thing. In fact, in a healthy economy, that's when unions do their best organizing and whatever as well.
So in a similar vein, we are supportive of Bill 49 because we believe it will give a positive message to investors that Ontario is a decent place to locate or expand, with decent employment standards arrived at by expanded input from the workplace parties.
From where we speak in construction, we have a long history of sectoral advancement, with progressive action fully supported by both employees and employers. Look at our world-class apprenticeship programs here in Ontario, look at our construction safety association, look at some of the innovations we have in collective bargaining. All of these things work well because the entire industry, labour and management, make them work.
In other words, what I'm saying is that the construction industry can be used to demonstrate that one of the motivating ideas we perceive behind Employment Standards Act revisions, and that is self-reliance, is completely well-founded. That is why we will be taking a very active part in the second stage of this review after this bill is passed.
Another thing we simply have to mention with regard to Bill 49 is the fact that construction is different. I know you've heard it before but it bears repeating. Employment conditions in construction are very, very different from those in other industries. Weather alone requires different patterns of hiring, different standards of hours of work and overtime and so on, and the time-limited aspect of almost all construction jobs requires different standards for severance and so on. You know that and we're just reminding you of that. We'll talk more about that later.
In conclusion, we firmly believe the Ministry of Labour and our industry can meet the challenges put to us by Bill 49. We anticipate even more significant challenges from the complete review that the minister has promised after its passage. Thank you for that. Any questions, Madam Chair?
The Vice-Chair: Thank you very much. We have just over two minutes per caucus, starting with the government side.
Mr Ted Chudleigh (Halton North): Thank you very much, Mr Surplis, for your presentation today. The act includes a redefinition of parental leave and pregnancy leave. It defines more directly vacation pay and what qualifies for vacation pay and severance pay. It talks about clarification of these definitions that have been put into the act in piecemeal fashion over the years. The fact that these things will change given the passage of this bill will require your organization and those organizations you represent to communicate with employers as to their new responsibilities under the bill. That educational process could go a long way, I think, in explaining some of the other aspects of the Employment Standards Act as well.
We have found over our Ontario tour that an awful lot of employers and employees don't understand their responsibilities under the act. Could you include some of those basic responsibilities in that educational process that you'll be going through over the next year?
Dr Surplis: We can guarantee that, any changes. In fact, when this bill is changed and the highlights are known, we'll communicate that to the members. We do that as a matter of course, and so do our unions and employee organizations on the other side. So yes, it's very important to get the message out, because I couldn't agree with you more, we get a lot of calls from people who simply don't know just even the basics. We welcome this clarification, because it's going to help cut down just on time alone.
Mr Lalonde: Thank you very much for your presentation. It just happened to be that you're touching something that is very close to my heart.
Dr Surplis: I know that.
Mr Lalonde: The construction industry is the heart of the economy all over, not only in Ontario, but on page 2 you refer to international competition. Do you feel that we should have a clause in there that protects Ontario construction industries in Bill 49?
Dr Surplis: The construction industry, as represented by COCA, has never been in favour of restrictive practices. We've always said we can compete with anybody on a fair, level playing field.
Mr Lalonde: Which doesn't exist.
Dr Surplis: Well, vis-à-vis Quebec right now, you're quite correct. But for instance, we've always opposed the Windsor area saying that only Windsor contractors can bid on something and nobody from Sarnia and so on. We've always opposed that routinely, saying that it should be open to everybody. But I know what you're getting at and we have led the charge. We asked the previous minister, Ms Lankin, and others, to put up barriers, or at least prepare to put up barriers, for Quebec in order simply to get a level playing field.
Mr Lalonde: I really feel that a clause should be added to Bill 49 to protect our Ontario construction industry because our biggest competitor at the present time is Quebec, which doesn't meet the health and safety standards. The Ontario government in three years has paid over $50,473,000 in WCB to Quebec. We have unemployment in some of the trades up to 70% in Ontario and still nothing's been done. I'm not blaming this government more than the Peterson or the Bob Rae government or the Davis government, but today the peak of construction is not there any more. So we need something and I really thought that Bill 49 could add a clause in there to protect our construction industry.
You said that at the present time the competition is international. We know it's within our own country. Just driving on Highways 401 and 416 and also in this area, what I see when the three largest hospitals were renovated here in Toronto. Who got the contract? Quebec construction people. They all came in. They don't pay half of the health and safety that they are supposed to be paying or the WCB. I think we have to look very closely in this bill, by the end, to see if there is something that could be added to protect the construction industry.
Mr Christopherson: Thank you very much for your presentation. First of all, thank you for the compliment on our previous government's initiative with Highway 407 and the expansion of the convention centre. It's appreciated.
I was somewhat surprised to see that you would think that Bill 49 is not just housekeeping. Do you really think it's not just housekeeping? Do you think there's more to it?
Dr Surplis: The reason we say it's not just housekeeping is, it's a signal that there's more coming and what kinds of things are coming, more emphasis on self-reliance. As I said, the construction industry is quite prepared, both the union and management, to take on these challenges. We anticipate them, not just in Bill 49 but in what's to come, and we welcome it.
Mr Christopherson: How would you explain, given your thought on this, that the minister tried to ram Bill 49 through the House last June, claiming it was just housekeeping? Since you believe it's not, how do you feel about that?
Dr Surplis: I have no idea about that, but when I say "not just housekeeping," I'm talking in terms of philosophical and public relations meaning to the greater community, not the internal --
Mr Christopherson: I don't disagree with you one bit on that.
The last point is that on your first page you talk about that the government should in this legislation protect basic standards for employees, yet part of what this bill will do is take away one of the basic standards right now, which is the right to claim for all money. There will now be a minimum put in place, and we've heard from enough presenters that people can't afford to take time off work, they can't afford to hire a lawyer to go after a lot of this money, which might be 80 or 100 bucks. That's a right they're losing. How do you square that?
Dr Surplis: The maximums have been changed. One of the things I answer to that, in all fairness, and I did want a chance to say it certainly publicly here, and that is to pay a compliment to Richard Clarke and the staff of the Ministry of Labour who are not asleep. They are very alert to outrages in the community and fight them from the inside, just as I expect members of the opposition and MPPs from all parties to raise these issues in the House and elsewhere when there's egregious examples of malfeasance or whatever. I just don't think these are going to go unnoticed. Things will be challenged and addressed.
The Vice-Chair: Thank you very much. Time has expired. We do appreciate your coming this morning.
EMPLOYMENT STANDARDS WORK GROUP
The Vice-Chair: I would ask that representatives from the Employment Standards Work Group come forward, please. Good morning, and welcome to our hearing process here this morning. I would ask that you please introduce yourselves.
Ms Jan Borowy: My name is Jan Borowy. I am a community legal worker at Parkdale Community Legal Services, and with me today is one of the longest-standing members of the Employment Standards Work Group, Consuelo Rubio, from the Centre for Spanish Speaking Peoples.
By way of introduction, the Employment Standards Work Group is a network of community groups, agencies and community legal clinics based in Metro Toronto. Our group is made up of front-line workers who work with, counsel and represent workers on employment standards matters, all workers who are not in unions. In any given year we work with 25,000 workers. We first formed in 1987 in response to a large garment factory closure. In this case, the workers were left with unpaid wages, no severance or termination pay. Interestingly, the company opened up under a new name shortly after its original closure.
We've been very active pressuring each government that has been in in the last number of years to improve the Employment Standards Act. Our demands have been consistent: We want to improve enforcement of the act and the loopholes and exemptions by mending the current weak legislation with a new and improved Employment Standards Act. Our demands today to you are no different: We want better enforcement and we want to see the introduction of a stronger law. Today we will present to you a simple alternative to Bill 49, a concrete action plan.
In May, when Bill 49 was first introduced, it was called minor housekeeping. The Minister of Labour claimed that Bill 49 changes are minor amendments to streamline the act. In August, at the start of these hearings, and publicly since then, we've been hearing that Bill 49 will actually in fact help the most vulnerable workers. The minister also claims that the central purpose of Bill 49 is to improve enforcement.
We've written a particularly detailed brief for you, which you have in front of you. It has been endorsed by over 36 organizations and individuals. These organizations have come together in their analysis and have drawn the same conclusion: Bill 49 will not protect vulnerable workers and will not improve enforcement. In fact, a close examination of the details shows that claims that it will are either false advertising or fabrication using the best Orwellian doublespeak possible.
In fact, Bill 49 introduces four profound and significant changes that we detail in our brief, directly and severely limiting the enforcement of employment standards: the new limitation periods for claims and investigations, the new ceiling and the new floor on the amount workers can claim, the limited avenues in finding access to justice, and the privatization of collections.
Without a doubt, the change with the greatest impact will be the new limitation periods: removing the two-year limitation period to make a claim and removing the two-year investigation period. The minister's claim that the six-month limitation period is cost-effective and efficient is simply, from our vantage point, untrue. The two-year period is absolutely essential because of the ineffectiveness of the ESA to protect workers from any employer's reprisals. Over 90% of workers make a complaint once they've left their employer. Most workers tolerate violations as the price for retaining a job. Workers know they face the choice between their rights or a job. Bill 49 enables an employer to violate the law for over a two-year period and be accountable for only six months.
Moreover, the new ceiling and the new floor to claims is setting a new standard for draconian legislation. The ceiling of $10,000 will have an impact on vulnerable workers in many sectors, even sectors with particularly low wages. We know of domestic workers and many others who are owed more than $10,000. The minimum cap is a licence for an employer to hire workers for a few days and then fire them and get away without paying them.
Some of the committee members clearly may not agree with this analysis, so in order to indicate to you the profound impact of Bill 49 and the current lack of enforcement of the ESA, we've collected a number of stories. These stories show the current lack of enforcement of the Employment Standards Act. It's the stories of the workers' real wages and working conditions here in Toronto. Many of the stories come off of our bad-boss hotline. It's a project that was started by the Employment Standards Work Group five months ago as a pilot; it's now supported by the Ontario Federation of Labour and it has now gone province-wide. You'll find that these stories cover most sectors of the economy. They demonstrate workers are not paid minimum wage, they're working long hours for no overtime pay, and there are many other significant violations of the act. Ongoing violations of the act are particularly widespread and we have many stories in here that when workers try to enforce their rights they are fired.
So the stories do show the profound impact of Bill 49: workers who will lose over $20,000; workers whose wages may be cut off the minimum; workers who are not aware of their rights and when they miss the six-month deadline.
Our stories were released yesterday at a press conference and after the story ran on CITY-TV news last night and late yesterday afternoon, what has been interesting is that the hotline rang off the hook, and these are report-backs from just yesterday. A worker called in to say: "I'm calling from a restaurant. You can't call me back at work. I'm getting less than minimum wage. I'm getting $3 an hour." A worker at a car company is owed $550 for work and has only been paid $65 in cash to date. A woman is still owed over $2,000 from her employer and the Bill 49 new time limit would erase her claim. That was just yesterday afternoon and that was in a 20-minute period after the airing of the CITY-TV show.
The overwhelming comments yesterday from the workers who called the bad-boss hotline is that "we cannot complain because my boss will fire me." In fact, even our own stories, 11 of them in our collection, are stories of workers who lost their jobs once they complained. So the existing enforcement is ineffective and the act, unlike other pieces of legislation, like the Canada Labour Code or even the Workers' Compensation Act here in Ontario, does not contain an effective reprisal section.
I know many of you have said that there is a reprisal section. Well, it's ineffective. Workers are not reinstated, because there is no just-cause protection. It's not the practice of the ministry to reinstate workers, because there's no just-cause protection, because an employer can turn around and fire them the next day.
We have recommendations for you to seriously consider to prevent the violations of the ESA and to make it truly more effective and efficient. Our immediate action plan for you today is that we want you to repeal Bill 49. This is a bad-boss bill and it will have an impact on vulnerable workers.
Our action plan has four steps. First we want you to remove the six-month limitation period and reinstate the two-year period for claims and investigations. Second, remove the ceiling and remove the floor on the amount a worker can claim. Third, we want you to stop employers' reprisals in two ways. We want you to implement Operation Spotcheck. We want 10% of employers audited in the next year. If you can do it in the trucking industry, if you can stop a truck, you should be able to stop an employer. The employers are speeding along the employment highways today and not being stopped. You can do this simply.
Combined with that, we want the option for workers to make anonymous complaints for a third party. The ministry knows many notorious employers. It's time the ministry did something about it. We want you to give all of those workers who called in just even yesterday afternoon an option for launching complaints, doing it anonymously and doing it through a third party.
Finally, don't privatize collections. Using a private collection agency does not do a thing to ensure workers have rights, and in fact the current suggestion that claims may be settled at less than 100% is absolute nonsense.
Given that the minister has called Bill 49 changes improvements, we feel that the upcoming announced review does not bode well for workers in this province at all. We know there are clear and simple ways to improve the legislation. For example, there shouldn't be any exemptions in the act. We should have overtime paid very clearly after a 40-hour workweek. We should have an option to sick leave. Right now if your child is sick, often you lose your job. You simply don't get paid if you leave the workplace to go home and take care of a sick child.
We want real equal pay for part-timers. We need a statutory minimum of three weeks of paid vacation. We want workers to have the option of paid breaks. We want, as I've said, the right to sick leave. We want more protection for home-based workers, especially teleworkers who are not covered in the act currently. Most importantly, we want you to introduce just-cause protection.
Bill 49 is a gift to employers. We expect you to give our recommendations serious consideration and we encourage you, as the employer groups come before you throughout the rest of the day, to ask these employer association reps to account for the stories that are in here. When the restaurant association comes forward, ask them how they account for the stories in here. I can expect that they won't have much to say.
There's no way that they can turn around and say Bill 49 will not have an impact. Indeed, as these stories show, they truly will.
The Vice-Chair: We have just under five minutes remaining for questions and answers, starting with Mr Hoy. I guess a minute and a half each.
Mr Hoy: Thank you very much for your presentation this morning. I had asked another group if we were going to get some indication on the bad-boss hotline and what might be called in to it, and I appreciate having this overview of what's happening. I would assume that this is not nearly the number of calls that you've had.
Ms Borowy: No, it's not, and in fact to ensure authenticity, this collection is both from the bad-boss hotline and some front-line workers. We put a call out to all front-line workers in our group to say, "Please send us your stories," and this is that collection.
But it's only the tip of the iceberg. Our phone line in the last five months has literally been ringing off the hook. Any time there is any publicity or advertising associated with a particular story, then it rings off the hook, literally with a call a minute.
Mr Hoy: Not having had a long time to look at this Bad Boss Stories but scanning through it, it appears to me, although it's not 100% accurate, that many of these people are perhaps working in the non-unionized service sector area. Many of these job descriptions that go with their complaints do seem to me to probably be from the non-unionized service sector. We've heard a lot over the last two weeks, and now into this week, from that group. Would you agree that these people, who by and large make minimum wage and are unorganized, seem to be the brunt of employee violations in regard to this issue?
Ms Consuelo Rubio: If I may answer that, actually, the reason perhaps why there is no complaint from unionized workers is because that is the group that we work with. It's not that we've left them out. It's just that those are our communities, the people that we work with and that we represented for a number of years.
The Employment Standards Act has traditionally been the only protection that those groups have had. They're not unionized; you're right in that. Domestics, as you know, didn't even have the right to be unionized until 1990. The retail sector, again, is not a sector that has been traditionally unionized. So that's probably why.
These are the calls that we have received. These are not the calls that the OFL received when the line went province-wide. They received, according to Mr Schenk, their researcher, thousands of calls in the province-wide 1-800 line.
Ms Borowy: Absolutely. I think that this --
The Vice-Chair: Excuse me, I will have to move on to the next question. We've exceeded that as well.
Ms Borowy: Can I add one other point in response to this?
The Vice-Chair: Maybe if you want to incorporate it in an answer to someone else's question, feel welcome at that stage. I'm sorry, we're now over.
Ms Borowy: The point I wanted to make that Catherine Swift, who actually had almost 25 minutes --
The Vice-Chair: Mr Christopherson for questioning.
Ms Borowy: Catherine Swift had almost 25 minutes, but the point I wanted to make that she has said that small employers are the victims. It strikes us that there's no other comparison that can be made. There's nothing -- these are the real victims.
The Vice-Chair: Mr Christopherson, would you like to ask a question. Your time is now running, please.
Mr Christopherson: I want to thank the Employment Standards Work Group. I think if anybody could take just a moment to look at appendix C and to see who has made up this group, they'll recognize the credibility that's here, and these are not the types of organizations and individuals that, if this bill really was going to make things better for working people, would put their reputation on the line to oppose it. There's a strong message there. I urge the government members to look at appendix C.
I want to thank you for this because it finally gives us a document that we can wave around that talks about what's really going on out there, and I think that's absolutely necessary.
I want to focus one bit on a new issue that you've raised that I think is crucial. This government has said they're interested in making sure that the reprisal mechanisms work properly. You've pointed out that right now there's no law that prevents a person from being fired. You can't get your job back through any means.
I'm from the labour movement. I'm not aware of a collective agreement that doesn't have a just-cause clause that says you can't fire somebody if you don't have a good reason, and if you don't have a good reason they get their bloody job back.
Could you just expand on why you think that would make a real difference, and I hope the government listens because you've asked for help on this, Mr Baird, and here's one that'll make a big difference. So if you folks are really serious, here's a way to do it.
Ms Borowy: Okay, the best way to stop and to protect workers from employer reprisals is twofold. We want administrative changes. We want Operation Spotcheck so you're going in and doing spot audits. You can do it for trucks; do it for workers.
Secondly, workers need the option of an anonymous complaint system through a third party, and we need legislative change which introduces just cause. Right now, unlike what Catherine Swift was saying, employers have the upper hand. If they don't like a worker, if they don't like what that worker is wearing, if they don't like the smile on that particular worker's face, they can get fired. We need a section that puts the onus on employers that says there has to be a reason why a particular worker is being let go, and that's just-cause protection. It's in the Canada Labour Code; we should have it here in Ontario.
Mr Christopherson: On behalf of all vulnerable workers, I want to thank you and the group for the work you're doing. I think you've made sure that the government has been called to task and they haven't been able to get away from the damage they're doing to vulnerable workers by either legal means or fancy means. We got them out on the public hearings and I just want to thank you for the leadership role that you play and assure you we're going to continue to fight at this level against action like this, which is part of a litany of attacks on unionized and non-unionized workers across the entire province. Again, thank you.
Mr Baird: Madam Chair, do I have three minutes or one and a half?
The Vice-Chair: You've one and a half and it'll be expended equally as the others have taken advantage of the same position.
Mr Baird: Thank you for your presentation. I guess the bad-boss hotline -- I think that's just a poster or it's a commercial for reform of the ESA. It certainly has got to be modernized definitely and I think the stories here will be an excellent part of the consultations with respect to an overall reform in phase 2 of the act. Clearly we've got to do a better job in a changing workforce.
Ms Borowy: Absolutely, so when you say that you want to improve the act, why are you taking away the right to a worker to claim all of the money they're duly owed?
Mr Baird: We're not.
Ms Borowy: Yes, you are.
Mr Baird: We're not.
Ms Borowy: The $10,000 cap --
Mr Baird: My second issue I'd like to talk about --
Ms Borowy: Mr Baird, the $10,000 cap is a complete violation of a worker's right.
Mr Baird: We're not removing --
Ms Borowy: You're stealing from workers, Mr Baird.
Ms Rubio: You're stealing.
Mr Baird: Thank you. You obviously don't want to --
Ms Borowy: I'm interested in real improvement.
Mr Baird: You have obviously come forward, you know everything. You don't want to discuss it with anyone.
Ms Borowy: We've been working with this for over 17 years.
Mr Baird: I look at your figure here, with great respect, under the NDP the claims tripled -- tripled. Were you here complaining at them? No, you weren't.
Ms Borowy: Actually, yes, we were.
Mr Baird: If it was such a good job --
Ms Borowy: We were.
Mr Baird: If the suggestions you raised were so easy to do, I wonder why Mr Christopherson's government didn't do it right away.
Ms Borowy: We put the same question to them. You're not alone.
Mr Baird: I wonder why they didn't do it right away. If they were so anti-worker, why didn't they do it right away? Some of these things are so easy, it's just a case of --
Ms Rubio: Mr Baird, if you're interested to know what we did under the NDP government, you should talk to Mr Richard Clarke, who was referred to earlier on. We were pressuring the government to enforce an act because enforcement then, as it is now, was lax.
Mr Baird: It tripled; it got even worse.
Ms Borowy: Yes. One pilot project --
Mr Baird: It tripled in three years.
Ms Borowy: -- on anonymous complaints was cancelled. That was a project we had in place that we wanted and should continue to be in place. You've got an option. If you're serious about improvement --
Mr Baird: We're not satisfied with 25 cents. We can do better than that. We're not satisfied with the status quo. I mean if they had frequent flyer points --
Ms Borowy: Then why are you putting a cap on it and announcing a minimum --
Mr Baird: If they had frequent flyer points --
Ms Borowy: Why are you announcing a minimum?
Mr Baird: -- for trips to Utopia and fantasyland, this guy could travel around the world 10 times.
The Vice-Chair: Excuse me. I think it would only be proper protocol if one person spoke at a time, and since time has expired, I do appreciate you making your presentation this morning. Thank you very much.
Mr Christopherson: Stop lying to the people, John --
The Vice-Chair: Mr Christopherson, I think that perhaps we have a protocol on how these hearings happen and we're not exercising it well. Please, if we could all cooperate in this procedure, I think we'd be doing a lot better.
NORTH YORK WOMEN TEACHERS' ASSOCIATION
The Vice-Chair: I would ask, please, that the representative from the North York Women Teachers' Association come forward. Good morning. I welcome you to our process.
Just in case you're a late arrival, I would like to remind those present that we are limited to a 15-minute presentation, including the presentation and question-and- answer period. As we progress through this morning, we can see that we're not necessarily getting the cooperation of everybody, so I will start cutting people off now. Our last four delegations, for the record's sake, the first one lasted 18 minutes and 45 seconds, the second 17:05, the third was 15:15; after having had a discussion the last one just went to 18:40.
The timekeeping is checked. We're trying to be fair. This is not your fault and I hope that maybe we can bring her back on track here. I will be cutting people off right in the middle of answers, right in the middle of questions from now on. I've asked for support in doing it the right way, but if that's not going to work, in fairness to all those who have to make a presentation, I will be doing that. So, please, I welcome you to our hearing process this morning and I would ask that you introduce yourselves to all present.
Ms Heather Garrett: Good morning. My name is Heather Garrett and with your permission, I would like to actually race through what I've given you because I'm actually a little bit delayed for another meeting at this point.
I have concerns about section 3 and the ongoing use of "greater right" as terminology. I would like to know what a definition of "greater right" is. I would also like to know, given the current amendments in Bill 49, what "assessed together" would mean in terms of being balanced off by greater rights and how that will affect people's collective agreements.
The repeal of section 5 is somewhat frightening to my group because of the effect it may have upon our collective agreements, in which case people could be again looking for tradeoffs of assessed together packages for greater rights and in the process losing things they have already gained through their collective agreements. We have an ongoing concern about maternity, pregnancy, parental leaves, and the fact that the probationary period is excluded from the pregnancy leave is disturbing to us as people continue to want children to be born and taxpayers to be born, yet for women to do this, they can put themselves at greater risk in their jobs.
I had heard a previous speaker discuss this. We also have a concern about the collector agencies and the scope that they're given to be able to negotiate agreements for people around their wages. There's a 75% factor that they can agree upon. We are concerned that might become the norm and in order to expedite getting agreements resolved, they will look to have 75% agreements made.
There's also a concern from our end on the electronic transference of information. Who ultimately will be responsible, should information go amiss? On top of that -- it's not within our brief; I didn't think I would have the time -- but we also have concerns about minimum and maximum wage settlements and floors and ceilings on them.
I have a question that I would like to ask. I'm afraid I didn't have much -- I was informed, I believe, on Thursday of this and my week has been booked. I apologize for the dot matrix printing and there is a spelling error, and I'm very sorry about that as a teacher. I would like to ask though: I was looking through the Internet for information from you, and given particularly that you have within this bill the idea that electronic information will become a process within the Employment Standards Act, I was looking on the Internet on your Web site, I could not find new information on Bill 49; I could not find anything on Bill 49. May I ask, is that information available on the Internet?
Ms Garrett: I take it that's no?
The Vice-Chair: I'm just checking with those who would be responsible.
Ms Garrett: Okay, thank you.
The Vice-Chair: Just two things. The gentleman here operating our equipment has asked me that you sit back a little bit from the speaker so we can pick it up for Hansard purposes.
Ms Garrett: Sorry.
The Vice-Chair: The response to the question?
Mr Baird: Clearly, we're wanting to expand that. Right now, all of the hearings, for example, the verbatim transcript of yours will be on the Internet, I think, tomorrow. It's regularly updated. Obviously we're just in the process, as the Internet grows, of expanding that.
What the provisions in the bill do is allow you to file electronically. They don't force you to file electronically because obviously many workers don't have access to the Internet. Only 11% of Ontarians do, so this bill just allows access. It's obviously a cost saving. We could publish the bill and a whole host of stuff. So only the three weeks of Hansard are on the Internet at this time.
Ms Garrett: May I ask a follow-up question? Given that you're going to be putting something on the Internet, will it be interactive so people can send you information regarding this bill as of tomorrow to the committee?
The Vice-Chair: Do we have a response to that? Hansard will be on. I think if you would like to react to anything you see on the Internet as a result of Hansard reporting on there, it might be best, right now, that in fact you do it through hard copy to the clerk of the committee to ensure that your concerns are taken into consideration.
Ms Garrett: Thank you.
The Vice-Chair: We are left with 10 minutes, which we will divide evenly, starting with Mr Christopherson around the range of two and a half minutes, please.
Mr Christopherson: Are your time constraints such that we can use the time available or do you need to get going?
Ms Garrett: I have to go in about five minutes.
Mr Christopherson: Fine. Why don't I just then give you the opportunity for the time I have to pose a couple of the questions you've asked here directly to the parliamentary assistant and maybe that way you'll get the most out of this that you can.
Ms Garrett: Okay.
Mr Christopherson: She's asked questions in here. Maybe you could answer some of them.
Mr Baird: Which ones would you prefer me to answer?
Ms Garrett: I'm sorry, regarding the questions within my presentation, the ones that I'd like to have answered? I would like to know who will determine what the greater right is when assessed together for collective agreements.
Mr Baird: The minister, on the first day of the hearings, withdrew section 3 of the bill, pending further consultation with the phase 2 review. Obviously, though, the best determinative of that would have been the union itself. For obvious reasons, they wouldn't enter into provisions in their collective agreement which they wouldn't be able to define, so obviously that would be up to the union and management to collectively decide how to interpret the provisions of their collective agreement as they do in the exhaustive measures of their current collective agreement. I don't know of any union in Ontario that would sign a provision if they didn't know what it meant.
Ms Garrett: Can I ask then -- I don't want to make this sound hostile, but what that would boil down to possibly then is the union having packages presented to it that it could determine are not of the greater good assessed together and yet, if they do not accept them, they will be forced to strike, which is the collective bargaining process currently, so --
Mr Baird: That would be the same for any other provision within their collective agreement, whether it was the wage level, whether it was benefit levels, whether it was other terms and conditions of employment, if they didn't like them, in your words, they would be "forced to strike." This provision wouldn't be different from any other of those negotiating --
Ms Garrett: Now that there are minimum standards --
The Vice-Chair: Let's just clarify our position. Would we all agree that for the full duration of the five minutes we allow open question and answer, or does each party want to have a --
The Vice-Chair: I'm sorry. We'll have to go on to the next member here.
Mr O'Toole: Thank you very much, Heather. As a teacher, I gather you're finished vacation and back to school?
Ms Garrett: I am on release, working for our union.
Mr O'Toole: Oh, I see. You're full-time with the union?
Ms Garrett: Yes.
Mr O'Toole: I was wondering. That is very interesting.
The greater rights provision, I think, given the fact that you're representing more or less the women teachers' federation, I guess the question I have to you is -- greater rights, section 3 -- I think we could learn a lot from the teaching unions. A standard workyear is 2,080 hours. I'm not certain there are that many hours in the nine or 10 months of the academic year. Do you understand what I mean? They already have a lot of exemptions. The standard workday traditionally is eight hours at the place of work, and in the case of salespeople and other kinds of profession, the hours of work here are quite different than the typical punch-clock hours of work. So I think the greater rights provision has been a long-standing contest to achieve more and more vacation and professional development days and all those things and the teaching profession certainly stands as a clear model of "I'd love to have one of those jobs" kind of thing out there. How do you respond to that kind of --
Ms Garrett: Do I understand that the member is asking that teachers would work an eight-hour day and perform none of the other responsibilities, that they would be released from every other responsibility that they do outside of their eight-hour day?
Mr O'Toole: No. I'm kind of saying that on traditional jobs the comparison -- it isn't comparable to a traditional job. Would you agree?
Ms Garrett: I believe teaching is quite a traditional job for many people.
Mr O'Toole: I think the point has been made though really --
The Vice-Chair: Mr O'Toole, I think your time has expired.
Mr Hoy: Thank you very much for your presentation this morning. I agree with you that this definition of what and who determines the greater right is going to be very difficult for the government. I think they're going to have considerable grief over that particular issue, and I share your concern with that.
You just answered that you are involved with a union background. If you became unemployed tomorrow and were not working for a unionized workplace, would your opinion of this bill change at all?
Ms Garrett: I would have to take more time to consider that. I find that very complex, and I would need to go back to the bill and check it out again, and the Employment Standards Act as it stands now.
The Vice-Chair: Thank you, Mr Hoy.
I'm sorry we've kept you behind. Thank you very much for being here.
The 10:15 Ontario Coalition for Social Justice has cancelled.
ONTARIO RESTAURANT ASSOCIATION
The Vice-Chair: We would now ask the representative from the Ontario Restaurant Association to come forward. Good morning, sir. For the sake of Hansard, I'd ask you to introduce yourself.
Mr Paul Oliver: Good morning. My name is Paul Oliver. I'm the president of the Ontario Restaurant Association. It's a pleasure to be here today to discuss our association and our industry's views on Bill 49.
Ontario's foodservice industry is a huge and diverse sector comprised of approximately 23,000 individual workplaces spread throughout all regions of Ontario. The industry is predominantly small business with independent operators accounting for approximately 78% of these establishments. The industry employs over 250,000 Ontarians possessing a wide diversity of backgrounds, including language skills, education and cultural backgrounds.
With this diversity in composition, location and skills, the restaurant and foodservice industry requires a unique and special approach to employment standards. The characteristics of the foodservice industry certainly are not conducive to the one-size-fits-all approach currently adopted. The diversity of the hospitality industry requires that flexibility be built into the system so as to achieve employment standards protection and flexibility for all employees.
The Ontario Restaurant Association and the foodservice industry welcome the introduction of Bill 49 as the first step to reforming, updating and modernizing Ontario's Employment Standards Act. We believe Bill 49 is a positive first step towards the desperately needed modernization of the current act. The current act, from the perspective of the hospitality industry and the small business community, does not adequately reflect the workplace changes and employment relationship changes which have transpired in Ontario over the last 20 years. Over this time we have seen a dramatic change in the composition, design and functioning of employment and of the employment relationship in Ontario as well as around the world, yet throughout this period the Employment Standards Act has not undergone any substantive updating or reforming to reflect these very real changes in our workplaces. Over the last 20 years we have faced small, short-term changes which have provided a patchwork around the original act. The time is upon us now to undertake the rewriting of the act, to redesign the structure and the operation of the act to reflect today's modern workplaces and today's modern employment relationships.
Bill 49 is a first step towards that. However, it is important to realize from the perspective of Ontario's hospitality industry that Bill 49 is merely the first step of a long journey which we must travel. We believe the more pressing and more important reform to the Employment Standards Act must be contained in phase 2 of this process, which we understand the government will proceed forward with later this year. We urge the government to move forward with phase 2 reform in an expeditious manner. We do, however, applaud the government's actions to begin this reform process with the introduction of Bill 49 and a number of administrative and enforcement changes which in the interim will improve the operational efficiency of the Employment Standards Act.
In particular, we'd like to lend our support to changes relative to preventing the duplication of employment standards claims in court actions, the enhancement of mediation and complaint resolution within the workplaces with the assistance of employment standards officers, and the expansion of the appeal process from 15 to 45 days.
The Ontario Restaurant Association is very supportive of the provision in Bill 49 which would encourage employees to decide at the outset whether they wish to file an employment standards claim or take the employment matter directly to the courts. As a result, this initiative will eliminate duplicate claims which in the past have left employers vulnerable, as they have been forced to defend themselves twice on the same claim and to incur the substantial financial costs associated with defending the same action in two different forums. This is particularly harsh on small business operators. This duplicate process also drains the public purse, as public resources are spent investigating, preparing and adjudicating the same claim under two different processes. The ORA strongly supports this reform initiative, as it will make the act more cost-effective as well as more time-efficient, and will free up additional resources that can be utilized in other areas where they are desperately needed.
Another area of change that the foodservice industry supports is the initiative by the Ministry of Labour that would give employment standards officers the power to mediate and resolve complaints upon mutual agreement of the workplace parties before conducting a lengthy and time-consuming investigation. The ORA believes that by encouraging workplace parties to resolve their own disputes or differences with the assistance of an employment standards officer rather than automatically going through a rigid prescribed process, the outcomes are more likely to be supported by both parties and be implemented in a more expeditious and cost-effective manner.
The ORA is also very supportive of the proposed change to increase the time limit to appeal a decision from 15 to 45 days. We believe this increase in appeal time will allow for the following situations to occur: a more reasonable amount of time for workplace parties to negotiate a settlement in place of proceeding with an appeal; more time to fully consider the weight and merits of filing an appeal, with the opportunity of decreasing the number of costly appeals; allow for workplace parties to assess the financial costs associated with an appeal; and most importantly, reduce the costs associated with a huge number of mid-process appeals that are terminated currently. The ORA believes this provision will benefit both employers and employees, as it will grant them more time, which is required when legal counsel is considering the possibility of an appeal.
We also believe this extension in appeal time will result in a cost savings to taxpayers, as many parties will be better prepared for an appeal. Also, the likelihood of frivolous appeals which are terminated partway through the process will decline.
While the nature of work and the workplace itself has changed and evolved dramatically, the Employment Standards Act has remained unchanged. As a result, there is inadequate flexibility within the act to permit all workplaces to provide adequate protection to employees without undue regulatory red tape. As mentioned previously, Bill 49 is only the first step in a long journey. The Ontario Restaurant Association strongly believes that the more serious and important reforms must be contained in phase 2 of the reform process and that this next phase must commence in an expeditious manner.
The ORA thanks you for the opportunity of appearing before the committee today and would like to re-emphasize our strong support for Bill 49 and our expectations for the second phase of the employment standards review process. Thank you.
The Vice-Chair: Thank you for your presentation. We have approximately two and a half minutes per caucus, starting with Mr Tascona.
Mr Joseph N. Tascona (Simcoe Centre): Thanks very much for your brief. I just have a couple of questions on this. As you're aware, union employees don't have the right to go to court with respect to claims. They go through their union. What's your experience with non-union employees going to court and at the same time lodging a complaint under employment standards?
Mr Oliver: Often what we see is a tactical process to put pressure on the employer to settle or just to cause controversy around an issue.
Mr Tascona: Are there a lot of cases, though?
Mr Oliver: There are some. Often you'll file both, and then whichever one you get a better settlement out of, you will accept.
Mr Tascona: I take it it would be a small percentage.
Mr Oliver: It's still a small percentage, but for employers, they never know what that certainty is. There's nothing that stops someone from going through employment standards, having all the employment standards provisions in force, and then turning around and saying, "I still don't like this; I'm going to go back to the courts."
Mr Tascona: What do you do with respect to educating your members on the Employment Standards Act?
Mr Oliver: We provide our members with an information service on inquiries that come in. As well, we have a publication on employment standards and we also distribute Ministry of Labour publications on employment standards.
Often one of the biggest things that we do is actually act as a gate or an entry, foray, into the ministry. Because employers may only have to deal with the Ministry of Labour once in their lifetime, they simply don't know who to contact, who to talk to. We try to act as that facilitator.
Mr Tascona: Is it widely used by your members?
Mr Oliver: We get a large number of calls on employment standards, things as basic as: "How do I calculate holiday pay? How do I do this?" They want to make sure they're doing the right thing, but they simply don't know who to contact and how to make that contact. So we either provide the information to them directly or act as a facilitator so that they are talking to the right people.
One of the things we have found in the past is that if you talk to numerous different employment standards officers, you can get numerous different answers. They're often not clear. That's part of the problem with the act, because it is very much interpreted by the ministry at this point because they're trying to take an outdated act, apply it to current work practices and say, "This is the outcome." But depending on who that officer is -- and it's no fault of their own; they're only interpreting what they see there. If we had the clarity put into the act, a lot of that confusion and different views and opinions coming out of different ministry branch offices around the province would hopefully disappear.
Mr Tascona: That should happen in phase 2.
Mr Hoy: Thank you for your presentation this morning. The restaurant business is one where actually I've had some complaints from constituents who are concerned about their rights in the employment area. I've asked others this prior to you being here. Some people in the restaurant business, employees, come in and maybe work two hours in the morning, another two hours in and around and after lunch, maybe another two hours, let's say, between 5 and 8 o'clock at night -- rush times, clearly. Could it be that the employees feel that they're different from those who work from 9 till 5 in a more structured way, and therefore they feel that their rights are lessened?
Mr Oliver: Some may interpret it that way. If you look at the employment composition of our industry, a lot of people are working in our industry as second employment, they're working at it as a supplement to their education, to family commitments. One of the largest groups that we have working in the industry are parents who have family responsibilities. They want to be home at 9 o'clock in the morning when the children go to school, and they want to be back at 3:30 or 4 o'clock when they arrive home. You can't do that in a traditional workplace, but our industry affords them that opportunity to go out and work the lunch-hour, work four or five hours a week, work 20 hours in the week or 25 throughout the week. That's a flexibility in our industry that the traditional manufacturing or other sectors wouldn't accord.
For people who go to school, they're not looking to go 9 to 5, because they're in university or college from 9 to 5, you would hope. They're actually looking to work evenings. So some people may look at it as, yes, you're not working the traditional 9 to 5, but a lot of people would look at it as, "That gives me an opportunity to work that I wouldn't be able to work otherwise."
Mr Hoy: I didn't want to leave the idea that they are being victimized that way. But I wonder if the employees, because of these less structured hours as comparable to 9 to 5, get a notion in their mind that they are being or could be victimized. They don't seem to want to know more about their rights. They accept these flexible hours and other problems that arise out of that just by the nature of the business and may not make claims because they think they are "different" somehow.
Mr Oliver: I wouldn't think so. I think that people entering the industry recognize the diversity within the industry. Some people do work traditional 9 to 5 in the industry and a lot of people don't. When I worked in the industry I went there because I had school commitments. I was going to university, and I was paying for my university degree that way. Had it not been for the restaurant and foodservice industry, I probably wouldn't have gone to university. So I certainly didn't see myself as victimized by the industry. I thank the industry.
Mr Christopherson: Thank you for your presentation. Earlier we had presented to us Bad Boss Stories by the Employment Standards Work Group. I went through here; there are about a dozen cases that refer to food and beverage services. You'll appreciate that people are not suggesting at all that all employers are bad. That doesn't even make any kind of sense at all. But there are problems out there. Here are at least 12 that are in your industry. The question they would like to pose to you is, and I will use this opportunity to do so, how do you account for these situations? You can get a copy of it, but each of them spells out a case where workers' rights have been violated in a very serious way.
Mr Oliver: I couldn't comment on that until I've had an opportunity to review it. I'd be more than happy to get a copy of that and look into those types of situations and follow up with you.
Mr Christopherson: Fair enough, but if you could at least accept the fact that there are going to be bad employers somewhere, and if these are reflective at all, it does make the case that this sort of thing can and does happen, unfortunately.
Mr Oliver: Yes, certainly. I don't think anyone is saying that every employer in Ontario is perfect. We know that there are problem employers, and that's where we need to focus the resources. We need to target the resources. We don't have these infinite resources that we can be out policing everyone and doing policing. The perfect example would be if you had an employment standards officer in every workplace monitoring everything that was going on. The reality is that we don't have those resources. The reality is that we need to focus on where the problems are.
Mr Christopherson: The difficulty we have is that you make comments like "the diversity of the hospitality industry requires that flexibility be built into the system so as to achieve employment standards protection and flexibility." As a standalone sentence, I don't think any of the people representing workers would disagree. The problem is that the proposals contained in Bill 49 take away rights and diminish the basic rights that would prevent this sort of thing from happening, and worse. That's our concern, making sure that those bottom-feeder type of employers have laws that stop them from doing that. The concern is that this law is taking away rights that help workers prevent that kind of situation, and you're supporting it. I find it contradictory.
Mr Oliver: But it also takes away jobs in some cases, and it also takes away the flexibility the employees may want. Keep in mind that in our industry we have a lot of people who work for two different employers because of hour restrictions, because of the cyclical nature of the industry, because of conventions being in town or not being in town. They would like to have some flexibility. If they know a convention's in town this week and there are 50 or 60 hours available to work, they may want to work that because they know next week there are only 10. That's a fact.
Mr Christopherson: I'm sorry; with respect, that's not what's in Bill 49. That part of it's been pulled back. That's been pulled back right now. It's not in Bill 49 right now. What we are dealing with, what you're supporting, is a bill that now says you can't claim for $50 that you're owed.
Mr Oliver: But what I'm saying is that's where the flexibility has to come in phase 2. The submission talks very much about the need for reform in phase 2 and that's where the flexibility comes.
Mr Christopherson: With respect, where do you get flexibility from somebody who's owed money and can't make a claim at the ministry any more? What's that got to do with flexibility? It's got to do with employees being ripped off.
The Vice-Chair: Excuse me, we have now expired the time. I'm sorry about that.
Mr Oliver: If I could just respond to the member's last question, if it was a question.
The Vice-Chair: I would like to be able to do that -- maybe you can do that on a personal basis -- but for the sake of others we have to go on. I'm sorry.
OPSEU MEMBERS -- MINISTRY OF LABOUR EMPLOYEE RELATIONS COMMITTEE
The Vice-Chair: May I please have a representative from the OPSEU Ministry of Labour Employee Relations come forward? Good morning, sir.
Mr Robert Rae: Good morning. My name is Robert Rae. I am chair of the Ministry of Labour Employee Relations Committee. I represent the OPSEU members who work in the Ministry of Labour. On behalf of them I'd like to thank the members of the committee for the opportunity to make this presentation before you today. We appreciate this chance to present our views on Bill 49 and the potential impact on the enforcement of employment standards in this province and the possible impact upon staff working in this program area and represented by the Ontario Public Service Employees Union.
Our members work at the front line, delivering and enforcing the provisions of the Employment Standards Act. We provide the public services that force employers to comply with the minimum set of legislated standards. We believe this enforcement should be fair, consistent, cost-effective and efficient. Those unscrupulous employers who fail to live up to the minimum standards in the act should be made to pay the cost of enforcement. These minimum standards and enforcement activity should not and will not restrict the economic growth of the province. On the contrary, we believe that vigorous enforcement of these minimum standards, together with meaningful penalties for violators, should put most workplaces on a level playing field and prevent those unprincipled employers from taking unfair advantage of the workers of this province.
The serious issues surrounding amendments to the Employment Standards Act before this committee will affect all working people, whether they work for a multinational corporation, a unionized workplace or a small employer. We applaud Minister Witmer's withdrawal of section 3 of the bill, which would have made employment standards negotiable for unionized workers. We strongly urge the minister, through her parliamentary assistant, to withdraw the other substantive amendments of Bill 49 and deal only with the so-called housekeeping changes. These substantive issues we feel more properly belong in the comprehensive review of the Employment Standards Act, which we expect later on this fall.
The Employment Standards Act currently provides a minimum set of standards that protects approximately 5.8 million workers in the province. In the fiscal year 1994-95, the employment standards program received over 700,000 inquiries regarding the Employment Standards Act. During this same period of time, almost 14,000 files were completed, which comprised 9,468 assessments. These assessments involved 26,830 employees with respect to 48,700 potential violations of various sections of the Employment Standards Act. The most frequent violations claimed were with respect to vacation pay, termination pay and unpaid wages. The amount involved in these assessments was more than $64 million owing to workers. This information is contained in the employment practices branch 1994-95 fiscal year report.
What this means to us is that in this fiscal year over 12% of the workers of this province were concerned enough about their rights and the minimum standards affecting their employment to make an inquiry with the ministry. At the same time, somewhere between 0.5% and 1% of the working population were victimized by employers who violated the Employment Standards Act.
The work of investigating these claims was carried out by 104 employment standards officer 2s. They were assisted by approximately 36 employment standard auditor 1s, who do primarily claims intake, and clerical support staff. In some areas of the province there is at least a six-month backlog, and this means that an employee filing a claim today is unlikely to hear from the ministry for six months. High caseload demands, poor staff resource distribution and the lack of technological resources are some of the root causes for this situation.
In spite of these obvious delays and workload demands, the ministry has eliminated 34 positions in the employment standards program through its expenditure reduction strategy. The ministry also intends to abolish another 12 positions which will result in fewer officer 2s and less clerical support to conduct investigations, which will likely lead to a longer case backlog.
OPSEU is proud of the work done by our members in the employment standards program in enforcing the Employment Standards Act. This is about the workers of this province being treated fairly and equally. It is the role of government to ensure that there is a basic set of standards to protect workers' employment conditions. This is what government should continue to do.
In the next part of this presentation, I'd like to discuss three main points: enforcement of the act, minimum and maximum amounts of claims, and the use of private collectors.
In its current form, the Employment Standards Act allows unionized workers to bring their complaints to the ministry for investigation and enforcement. This has worked well in dealing with plant closures and claims on severance and termination. The proposed changes will preclude this approach and require the grievance process to be followed.
Arbitrators will supposedly be doing the work now currently done by OPSEU members. While most arbitrators are good at what they do now, we believe that complaints under the Employment Standards Act require a specific set of investigation skills gained through experience in the field. Under the proposed approach, we feel significant inconsistencies in decisions are likely to result.
In a similar way, non-unionized employees will be faced with the challenge of choosing between making a complaint to the employment standards program that falls within the time limitations and the maximum amount recoverable of $10,000, or taking civil action. The ministry is simply downloading the cost of enforcement to the employee who has been victimized by his or her employer and to the court system.
Strong enforcement of the act is needed to protect workers. The ministry is abdicating its responsibility to enforce the legislation. There is nothing in Bill 49 that helps to detect employers who violate the Employment Standards Act. As a result, there is no change to the present situation that violators stand little chance of being caught other than through employees making complaints to the ministry. Few prosecutions are carried out now and there is even less time to do routine audits, given the overwhelming caseload for each officer and the emphasis from ministry management on closing files.
In some cases there can be little or no penalty for violations of the act. Generally, if an employer pays up after an investigation, it means just paying the wages due. It's only after an order to pay has been made that a penalty of 10% is added to the amount owed. As a result, there's a great deal of interest-free money available for some employers for a considerable length of time until an investigation can be completed.
The situation is not fair to the majority of employers in this province who obey the law and who must compete with those employers who violate the act. Employers who violate the act must be forced to pay for the cost of enforcement.
Minimum and maximum amounts of claims: There's currently no ceiling on the amounts that can be claimed through the Employment Standards Act. Bill 49 proposes a new statutory maximum of $10,000. This would apply to back wages, vacation, severance and termination payments. The ministry's expenditure reduction strategy report provided rationale that these higher-paid employees would use civil action to collect the outstanding amounts. The vital question here is whether an employee owed more than $10,000 is really a highly-paid employee.
Perhaps we could illustrate this by way of an example: A middle manager of a medium-sized manufacturing firm with 12 years of service is laid off without notice because of downsizing. This employee makes $33,800 per year, or $650 per week. Under the current act, the employee is entitled to eight weeks' pay in lieu of notice and 12 weeks' severance pay. It's a total of 20 weeks' pay, amounting to over $13,000. This "highly paid" worker would be forced to choose between filing a claim with the ministry and settling for a $10,000 maximum or pursuing a civil action through the courts. This would result in an immediate $3,000 loss, although it's probably less than what he would have to pay for a lawyer to get the civil action started. As a result, the employer gets a bonus of $3,000 while getting rid of the worker. How many more workers would be placed in that position?
On the other end of the scale, we must consider the minimum amount that could be prescribed at some time in the future. Again, the ministry's expenditure reduction strategy report suggests a minimum amount of $100. The reasoning would be to reduce the caseload by 800 to 900 cases per year. As an example, suppose you were working, at minimum wage, handling cash at a convenience store, where cash shortages are a possibility. An unscrupulous employer could automatically deduct any amount under that maximum of $100 every six months on the pretext of cash shortages. Under the proposed changes, the employee would have no recourse to recover lost wages.
Use of private collectors: The privatization of collections is an area of major concern to OPSEU as a bargaining agent representing members carrying out this responsibility. We are concerned for at least two reasons: First, there have been many concerns raised by the ineffectiveness of the collection process within the ministry. These concerns voiced without explanation tend to reflect poorly and unjustifiably on our members who are doing that work. On the second part, we are concerned about the government philosophy that private collection is more efficient and cost-effective than collections by the public service.
The employment standards branch did have a collections unit for less than three years. The unit was surplused in March 1993. The collections responsibility at that time was transferred to employment standards officers and staff in area offices. Although the duty was transferred, program management has placed little emphasis on this particular aspect of the program. The main focus today for employment standards officers is to close files. A file is closed either when an employer pays up or when an order to pay is made. There's no clear indication from the program for officers to follow up on the orders to pay to ensure that they are enforced. Closures are the name of the game for employment standards officers. This is how their performance is rated, not on how much money is collected.
For fiscal year 1994-95 there were roughly 9,500 assessments, of which 6,812 were collected. This was a 71% collection rate. Unfortunately, the 71% collected, which amounts to more than $16 million, is only about 25% of the total dollar amount of $64 million assessed. Of the 2,771 uncollected assessments, 1,035 were due to employer refusals to pay. The balance was due to bankruptcy, receivership and defunct companies. The largest dollar amounts are due to the latter three reasons. It's unlikely that a privatized collection service will have any more success at collecting these assessments. In terms of employer refusals to pay, our members believes that many of these files are ultimately collected on orders to pay. However, we believe that the recording system does not accurately reflect these additional collections.
In fact, we believe the ability of our members to do their job is affected by the lack of adequate technology. Paper and pen are used extensively in dealing with claims. Claims are generally recorded manually; information is entered into a database afterwards. The ministry has never allocated the resources in terms of technology to either the employment standards program or the health and safety program to automate routine tasks, make information available to those who need to deal with clients or minimize the steps and paperwork -- form filing -- necessary to do an efficient and cost-effective job.
Rather than privatize the collection function with profits going outside the government, it should be maintained within the ministry and provided with the resources, tools and management direction to adequately recover the moneys owing. Employers who are guilty of violating the act should know that it will cost them money to violate the act. They should pay an administrative penalty that reflects the degree of difficulty required to correct their violation of the act and recover the money owing.
In conclusion, I'd like to say that the OPSEU members working in the employment standards program are proud to serve the people of Ontario. We've provided the services required by the public to the best of our abilities, in spite of constraints, downsizing and lack of technological resources. We hope the committee will consider the opinions of those dealing daily with the public and employers on these issues in your deliberations. Thank you very much.
The Vice-Chair: I thank you very much for your presentation. We are now at exactly 14 1/2 minutes. I would invite anybody, if anybody chooses within the 30 seconds remaining, to make a short comment. I guess Mr Hoy would have first opportunity to do so.
Mr Hoy: Thank you very much for your presentation. It's unfortunate we don't have enough time here. The government has always stated that since there's only 25% of the total dollar amount collected, they fancy the idea of privatization. We had some people who are involved in collections suggest to us that they charge a fee of about 25% to 50% of the claim amounts or whatever the job requirement would be and that their success rate at the very best is only about 50%. Do you have any comment about those kinds of statistics?
Mr Rae: Again I say that the money that's charged to collect, someone will have to pay for collections, and we hope it's the people who are being collected from. We feel that rather than going into the private sector it should fund the enforcement of the act.
Mr Christopherson: I thank the union for making a presentation. As I've done before, I would acknowledge it takes a fair bit of courage to come forward. I think we can expect Mr Baird to again acknowledge that there won't be any recrimination against the workers who are coming forward and opposing their political masters at this time in the interests of the people of Ontario.
I would hope a lot of people would pay close attention to this document. This is from the folks who know. All of us can talk all we want, there can be a lot of outside experts, but these are the people who know, who deal with these issues and who understand very clearly what damage Bill 49 would do. I think they've refuted the arguments around minimum and maximum amounts. I think they've refuted the argument around privatization by pointing out that privatization isn't going to collect any more money than internally, if the improvements were made that are pointed out should be made.
I know you're going to rule me out of time soon, Chair, but I also want to draw attention to a letter that was sent to Mr Arnott on August 23 by Mr Rae, talking about comments that Mr Baird made, where the union didn't get a chance to respond to this, the workers' involvement in decisions of recommending Bill 49. I think it's an important document that needs to be noted on the record and I hope people would look at that also.
Just in closing, I want to thank you and your colleagues for having the courage of your convictions and your professionalism in coming forward publicly and pointing out that Bill 49 is not an improvement for employees and that's what's supposed to be happening over at the Ministry of Labour.
Mr Baird: Thank you very much for your presentation. It's appreciated. Given we don't have enough time for questions, I guess I'd just make one comment. One presentation we had on the first day, on August 19, was from Leah Casselman. I think in her remarks she spoke to the root of the issue with respect to collections. I think she said, and I'm paraphrasing her but I think it's the exact words, that the ESA officers as currently constituted don't have a pecuniary or a personal interest in terms of the collection, and obviously pointing out that a private sector collection agency would. We heard from one, for example, that not only do workers get a salary, they also get a commission on the amount they're able to return to the worker. Obviously, in this case the commission is paid for by the deadbeat employer. I guess that's something that we note.
You noted in your remarks that these reflect poorly and unjustifiably on your members with respect to collections. I guess I share your concern. It's what I would call the system rather than the people involved in it. I do, for the most part, agree with the concern you raise in that part of your presentation.
The Vice-Chair: Thank you very much for making your presentation this morning.
METRO TORONTO CLERICAL WORKERS LABOUR ADJUSTMENT COMMITTEE
The Vice-Chair: I would ask that a representative from Metro Toronto Clerical Workers Labour Adjustment Committee come forward, please. Good morning and welcome to our hearing process this morning. If you could just hang on one second, we're having your brief distributed now. If you'd like to introduce yourselves to the people present, it would be appreciated.
Ms Alice de Wolff: My name is Alice de Wolff and I have worked as a researcher with this committee for several years now. Maureen Hynes is a member of the committee.
The Metro Toronto clerical workers committee was established almost four years ago now and completed an 18-month study of clerical work and clerical workers in Metro Toronto in September 1995. We want to particularly tell you about the findings and the experience of this committee, because it represented the work of a particularly advantaged group of people who represented business and union people who represented workers and community-based training organizations that do work with clerical work. We spent time investigating what's happening with clerical workers and then worked through a fairly intensive process of coming to recommendations about what we think should happen, both at policy and program levels, for clerical workers.
The committee was established by the Canadian Labour Force Development Board and was funded by both the federal and provincial levels of government. The intention was that we study the employment patterns of clerical workers, that we take a look at what's happening with training for clerical workers and adjustment programs. Again, our intention was to make recommendations to employers, unions, trainers and governments based on these findings.
Clerical workers are shockingly invisible at all levels of policy and program in this area. Partly because of that, I'm going take a few minutes to tell you what we found in our study.
Clerical workers are the largest occupational group in the Metro Toronto region. There are 185,000 clerical workers in Toronto. They experienced, contrary to a lot of popular opinion, the largest job loss during the period of 1990-94. The only increase in office employment in that period was in the hiring of office workers through temporary agencies. Clerical workers experienced the highest unemployment rate that they ever had in 1994, and increasingly there are clerical workers on the permanent welfare rolls in Metro Toronto. That's something that has never really happened before, but the number of clerical workers receiving welfare in Toronto increased threefold during that same period.
Underemployment has increased in the occupation. Clerical workers are working at levels under their training, and there are more people who are trained in other occupations who are working as clerical workers. So we found considerable sort of underuse of this workforce, which actually is a fairly highly skilled workforce, wherever we took a look at it. These trends are not likely to change -- this was the assessment of the committee -- unless public and private sector employers and employees are able to constructively rethink their use of this skilled and quite knowledgeable workforce.
More clerical workers are teleworking, and I believe you've heard considerably about some of the experience of people who do this, that is, they work not on the same site as their employer, they often work at home. More clerical workers have two different employment relationships: one with the company that pays their salary and one with the company that directs their work and supervises their work.
The workers who are employed through temporary service agencies are not paid health and pension benefits. More clerical workers are doing the office equivalent of piecework, that is, they're being paid for a telephone call made or a contract made. Most clerical workers are insecure in their present jobs and can expect to change jobs in the near future. Many clerical workers work unpaid overtime hours and are vulnerable to other employment standards violations because of this insecurity.
The revolutionizing of office work is a central target of the information revolution; it's something that we talk about, and the sort of information economy is something that we talk about quite a lot. How this revolution is done is key to the success of the development of an effective information economy and to the prevention of a human resources and social disaster in this province.
There's a low road, which we saw happening in some offices, which can create, and this is what we're seeing, an increasingly contingent, insecure, underutilized workforce, and there's a high road which we see some employers trying to pursue, which could create sustainable productive jobs and consequently a population which can contribute to taxes and to what we often call consumer confidence.
There are definitely some employers, and we found them in our study, who understand that their best interests are in following the latter high road, and when we pursued this discussion in our committee, we felt that this was in fact the kind of both employment relationships and set-of-work practices that we wanted to support and recommend to all levels of policymakers.
The study you have in front of you highlights the best practices that we found in training clerical workers for this new economy, in keeping them in creative jobs, in creating new career paths for information workers and in adjustment programs in situations where layoffs cannot be prevented. The research and the subsequent intense discussion of its implications caused the committee to make recommendations that represent an opposite direction to that which we see outlined in Bill 49.
Our recommendations focus on the modernization of employment standards to meet the needs of workers and employers in a rapidly changing information-based economy. They proposed the strengthening of employment standards, more complete coverage and stronger government enforcement. They're based on a reassessment of the balance of the responsibilities and accountabilities between employers, employees, public education and social welfare systems in an economy where the employment contract is increasingly unstable and where employees no longer have a long-term relationship with one employer or have full-time or full-year employment.
We have concerns about each of the proposals in Bill 49. The study leads us to focus on the bill's proposals to weaken rather than strengthen the capacity of the government to enforce employment standards. Our assessment is that by the creation of minimums and ceilings for claims, forcing employees to choose between the courts and employment standards enforcement, by limiting the time period in which a complaint can be made and privatizing even one aspect of the enforcement of the act, the bill would do two things: It would make it more difficult for this large and vulnerable workforce to make complaints and it would create a penalty that is a competitive disadvantage for employers who make provisions for their employees that are beyond the enforceable minimum, those employers who we feel are trying to create the high road, the effective participation of Ontario businesses in this new information economy.
Maureen is going to speak about some of the committee's recommendations.
Ms Maureen Hynes: In speaking about the recommendations, I'd like to stress first of all that the committee was a very broad committee and had representatives of very large organizations -- the Royal Bank was a member, Bell Canada was a member, two temporary employment agencies were members -- and we reached consensus among all of us on all of these recommendations. So it represents a broad consensus among very diverse forces having to do with the employment of clerical workers.
The other thing I'd like to just comment on as an overview is that the committee, as Alice has outlined, developed three sets of best practices: one that has to do with best practices in training; one in adjustment issues -- what to do with clerical workers when they're facing downsizing or being laid off; and a third for companies to use, whether they're large or small, in assisting clerical workers to develop career paths.
So we developed those sets of best practices. We also developed recommendations in four areas: on the occupation itself and the government's policy development towards the occupation; some recommendations that are related to work redesign and the new employment contract; recommendations that had to do with training; and finally recommendations that had to do with adjustment.
Two of these areas, the areas of work redesign and the new employment contract and the adjustment area, have recommendations that are addressed specifically to the Employment Standards Act, and there are five full recommendations that are directed explicitly to the Employment Standards Act. I'd like to direct your attention, since you have copies, to page 21 of the summary, if you wish, and you can follow along with me as I detail them briefly for you.
Recognizing the high proportion of part-time and contingent workers among the clerical workforce, we stress that employment standards must be changed to ensure that contingent workers enjoy working conditions and benefits equivalent to those who are employed in full-time, full-year jobs.
Are you lost?
The Vice-Chair: We don't have page 21.
Ms Hynes: You don't have page 21?
Mr E.J. Douglas Rollins (Quinte): A clerical problem.
Ms Hynes: A clerical problem is right. You see how the world falls apart when the clerical part isn't attended to? It should be page 21, but you don't have those. We'll provide this to you later; we'll get copies to you.
Let me continue then. That one had to do with ensuring that contingent workers among the clerical workforce enjoy the same kinds of benefits and working conditions as those employed in full-time, full-year jobs.
All employment standards must be adequately enforced. We're really concerned with the enforcement of the Employment Standards Act, and that was our recommendation 8.
The recommendations that had to do with adjustment called for a modernization that recognized that when clerical workers are -- when we saw the layoffs and downsizing that affected clerical workers, we saw that they were not laid off in huge numbers, the way you might see in a manufacturing industry. They're laid off rather gradually, in slow increments, and gradually eliminated by either technological change or restructuring or redesign of the work.
So we made a recommendation that all employers -- this had to do with the labour adjustment provisions of the Employment Standards Act around notification -- must notify the government if they plan a permanent reduction in the workforce of 50 or more employees, as is in the act now, or 10% or more of the workforce in any six-month period. We've seen over and over in the labour adjustment field employers who will lay off 49 employees, thereby not being required to report to the Ministry of Labour over this.
Another recommendation was around the provision of notice. We recommended that there be a 12-month notice period because people are required to retrain and retool for the new economy.
We have recommendations around severance pay, that severance pay should recognize that all employees have a right to be compensated for irredeemable loss of benefits such as pension credits, salary increments, vacation entitlements and health and welfare benefits. Eligibility for severance pay should be reduced from five years to one or two years.
Finally, the mandate of the labour adjustment office of the employment standards branch should be strengthened, we feel, to include more regular public accounting of reductions in the workforce, with sufficient investigatory powers to ensure enforcement of job protection requirements.
The office should assist by establishing workplace action centres or regional or community-based centres and by developing alternatives to layoffs.
Specifically, we'd like to address ourselves today to our recommendations on Bill 49. We seriously urge this government to drop the proposal for a minimum and maximum ceiling on dollar amounts for claims. We seriously urge this committee to maintain the current time period for complaints, and we also seriously urge this committee to refrain from the privatization of the enforcement of the administration of employment standards.
Finally, just to conclude, we were very interested yesterday when the Bad Boss Stories came out. We hadn't seen this document so we wanted to look through it to see how many were clerical workers. There are several clerical stories in this and I'd just like to outline one. I think you do have this copy, so that's on page 55.
This is about a woman who was --
The Vice-Chair: Excuse me for a moment. I ask you to do so briefly, please. We are already over time. I don't mind if you summarize your conclusion when you finish. Thank you.
Ms Hynes: Yes, I will summarize.
This is the story of a woman who was a data entry clerk for a Toronto marketing company. We chose this story because this shows the new kinds of vulnerabilities of clerical workers and the new instabilities in their jobs. She was expected to work from the employer's home entering information into a database. She worked part-time, five days a week, five and a half hours a day. She worked for almost a month and then when she asked for her pay, she was fired.
The company, she felt, owed her $600 and she tried individually, on her own, to get that money back from her employer. The employer, however, disappeared. It took her a long time to figure out what routes were available to her, but she went to Parkdale Community and Legal Services about nine months later just wanting to know what her legal options were. Finally, she did make a complaint to the Ministry of Labour and now she's waiting for the fact-fighting meeting.
Under the new Bill 49, the provision limiting the complaint and investigation periods would completely wipe out her claim. We are concerned about clerical workers, not just in large companies but in situations like these where they are facing new vulnerabilities.
The Vice-Chair: I thank you very much for making your presentation today. We will not have any time for questions.
Ms Hynes: Thank you.
CANADIAN COUNCIL OF GROCERY DISTRIBUTORS
The Vice-Chair: I would ask that the 11:15 be revised. Just that; there's nobody to fill that slot.
I would ask that a member from the Canadian Council of Grocery Distributors please come forward. Good morning. I welcome you to our hearing process here today. I noted that you may have come in after we explained the process. Just to help out a little bit, I would remind you that delegations are here for a 15-minute period. Your presentation can be all of that or it can allow for question and answer at the end, at which time any remaining time within that 15 minutes is divided equally between all three parties. I ask you to introduce yourselves to those present.
Mr Max Roytenberg: Thank you very much. My name is Max Roytenberg and I'm vice-president with the Canadian Council of Grocery Distributors, and I have my colleague -- go ahead.
Ms Arlene Lannon: Arlene Lannon, Canadian Council of Grocery Distributors.
Mr Roytenberg: Members of the committee, thank you very much for giving us the time to make a contribution to your deliberations. The Canadian Council of Grocery Distributors represents the bulk of grocery distribution in Canada and has a strong presence, as I'm sure all of you are aware, in the province of Ontario. We are associated with a sister organization called the Retail Council of Canada. They will be making a full brief later on to this committee, a brief with which we associate ourselves, but there was an area that we felt it would be useful to lay before the committee for further discussion. It may not be top-of-mind in that it was not included in the material which has already been distributed to the public, but we believe it deserves some serious consideration as we go forward to complete the work on Bill 49. I'll proceed with a short, written brief and then we'll be available for questions.
The Canadian Council of Grocery Distributors, CCGD, is a non-profit, national trade association representing the interests of the food distribution industry across Canada, with particular emphasis on public policy issues, intersectoral relationships and business development. Among its members are small and large grocery wholesale and retail operations. In addition, there are allied members, persons or companies which provide a wide range of support services to our members and to the industry.
The council's membership represents approximately 85%, more than $54 billion, of the total sales volume of grocery products distributed in Canada. In Ontario, distributors are responsible for an excess of $16 billion in grocery sales and the employment of more than 125,000 individuals. In Ontario, CCGD represents A&P, Dominion, Miracle Food Mart, Knob Hill Farms, Lanzarotta Wholesalers, Loeb, Lumsden Brothers, National Grocers, Loblaws, the Oshawa Group and the subsidiaries of all these companies.
For the last number of years, retail grocery establishments have been committed to open on Sundays. In most cases, this has resulted in a generalized availability of grocery shopping for the public throughout the province. Sunday shopping has become of significant importance because the general public has now made Sunday one of the most active days of grocery shopping in the week. Sunday grocery shopping has become a fixture in the current marketing environment as a consequence of this general public acceptance and support.
When Sunday shopping was introduced, one of the elements of its introduction was the provision that in the grocery service sector, scheduling of employees was based only on voluntary acceptance. This is different from the situation in most other industries. The retail service industry has been singled out from other industries in this area. Most industries schedule employees on a seven-day-week basis in accordance with their particular needs. In some cases, agreements with unions govern the working conditions for employees working on Sundays. Under these arrangements, scheduled employees who accept work assignments on Sunday are required, as a condition of their work, to fulfil their scheduling obligations.
Under current arrangements in the province of Ontario for the grocery industry, scheduling remains voluntary, allowing employees to renege on their agreement to work on the Sunday at the last minute, leaving the employer without sufficient time for replacement. In many cases, employers in the grocery industry in Ontario can find volunteers to fulfil industry needs for serving the public in a satisfactory way. However, because of the voluntary aspect of such scheduling, employers can never be sure that the scheduled employees will indeed appear for the scheduled assignments. Indeed, some employers find that they must overschedule in order to avoid the risk of being left with insufficient personnel to meet the needs of the shopping public.
One of the objections that has been raised in opposition to scheduling Sunday work has been the lost opportunity for employees to avail themselves of Sunday worship. In fact, should this be an important factor, provisions could be provided for the assurance to employees that they might be scheduled at hours that would not conflict with this personal requirement.
The most serious problem in this area arises when Sunday coincides with a major holiday. The shopping public is often most anxious to patronize grocery stores during these periods, at a time when many employees would prefer not to be involved in a work situation. Scheduling problems are most acute at such times when business is called upon to be the most responsive to the public's needs and a significant portion of annual sales are being transacted.
The industry remains bound by its responsibility to respond to the needs of the consuming public in a competitive environment where those who provide the services demanded by consumers will succeed and those who do not will fail. Groceries are now marketed through a variety of channels, some of them significantly removed from the traditional grocery distribution channel, further increasing the competitiveness within the current marketplace.
The grocery distribution industry in Ontario seeks the approval of the government to permit Sunday scheduling of employees in the grocery distribution industry, as is the case for many other industries in this province. Where appropriate, such arrangements could be negotiated with unions within a generally accepted framework. It would be preferable if individual companies could have the ability to negotiate Sunday scheduling terms within their collective agreements.
Mr O'Toole: This is the first time, I believe, in the hearings across the province that we've had this drawn so clearly to our attention. It addresses the whole review of employment standards. The world of work and the demands of the economy are changing such that I would ask you a very general question. Do you believe it's appropriate, in the context not just of your industry but of the broader changing of the world of work, that we review employment standards and other labour legislation?
Mr Roytenberg: It's most appropriate. The world is changing in a most rapid way, and I think it's important that the legislation respond to existing realities. We will present specific positions in that regard, so I don't want to go into that, but yes, in response to your question.
Mr O'Toole: On a broader scale as well, most supporters of the industry that you represent are unionized workplaces?
Mr Roytenberg: That is the case.
Mr O'Toole: In those unionized workplaces today, is it an exemption or, as you say, is it purely voluntary that they agree to be scheduled for Sunday?
Mr Roytenberg: There are negotiated arrangements which touch on Sunday work.
Mr O'Toole: The point I'm trying to get to is that the negotiated workplace arrangement specific to the industry -- it's very hard for the province to look at everything from mining to clerical work and make standards that are so universal that they're applicable to all the specific sites. The point I'm making is that the right place to make those decisions is in the workplace, in the industries themselves. Would you agree with that?
Mr Roytenberg: That is what we're suggesting. We understand there is that opportunity for the parties to arrive at arrangements which are appropriate for their particular situations. Right now, with the prohibition in the act, that is not accessible relative to this situation.
Mr O'Toole: If I may get specific, do you pay time and a half or double time, whatever it is, for Sunday or is it just time off in lieu?
Ms Lannon: It really depends from company to company, but generally it's time and a half or premium, and it is voluntary.
Mr O'Toole: Do you use the term -- I hate to use the term, but there's no one from either opposition party here, so I can say it without being jumped on: Do you use replacement workers on Sundays?
Ms Lannon: We don't have replacement workers as such, but part-time workers.
Mr O'Toole: Part-time people who maybe only work weekends.
Ms Lannon: Yes, there is a very significant proportion of grocery employees who are part-time.
Mr O'Toole: And students, and you're helping them to --
Ms Lannon: That's correct.
Mr O'Toole: I know a couple of cases where -- I'll quote my legislative assistant, Steve Kay, who works for a grocery chain and for me. He works on the weekend for one of the grocery stores, and I can't believe his rate of pay. It's more than what I pay. His rate of pay I believe is $15 an hour -- not overtime.
Ms Lannon: That would depend, because each company has a collective agreement which may differ from company to company.
Mr Roytenberg: And it's affected by seniority.
Mr O'Toole: He's been with them all through high school, he's finished university and he's now working for the people of Ontario, like I am, and he's being well paid in both respects.
Mr Chudleigh: Thank you very much for your presentation, Mr Roytenberg. Having had some experience in the grocery business, it was always my feeling that people who misrepresented their employees in business also conducted their business in other areas with perhaps an equally high-handed attitude and therefore didn't last long in the business. I think of several of my competitors in the Niagara Peninsula who, when I was in the retail food store down there, didn't last long because they didn't treat their employees and their suppliers very well, and perhaps that fell through on to their customers.
By and large, do you find that the grocery industry today is filled with pretty reputable employers, or is there still an undercurrent of people who come and go rather quickly, or is the longevity of the retail operator greater today than it has been in the past?
Mr Roytenberg: There are no barriers to entry in our industry. Anybody who has the resources and the willingness can open up an establishment and present themselves to the public. As you said, those who garner a response from consumers are the ones who last. That is an amalgam of all the things you have to do to be successful. Among those things it has to do with the kinds of employees' reactions and interaction with the public. People whose employees are not happy in their work, who are not being treated in a satisfactory kind of way, are not likely to project to the consuming public the positive attitude that's likely to bring them back. This is more than ever a competitive factor.
We recognize that there may be situations of vulnerable employees and that you may want to consider how that situation is to be resolved; it's not for me to say. But there is a willingness of many people to work on Sunday if work is available. Our problem is that we need to provide it in a framework which will enable us to assure the consuming public that they will properly be served. That's our raison d'être.
Mr Rollins: Thanks for your presentation. It has a bit of a different twist to it than we have heard before. Do you have any statistics on the number of people who have had to go to complaints, from your association, the people who have been unjustly used? Do you have any numbers? Do you know if there's a large number, a small number, very few?
Mr Roytenberg: I don't have any knowledge of complaints of that kind. I can't help you in that regard. At the same time, I haven't canvassed for that information.
Mr Rollins: Okay. I was just wondering whether there was a large number. In some industries there are more people who predominantly complain about unfair practices and things of this nature, and I don't feel that in your sector, the people you represent, that happens.
Mr Roytenberg: I cannot assure you that there are no grievances.
Mr Rollins: I'm sure there are always some.
Ms Lannon: I think generally, if that were the case, it would show itself in labour unrest, and at this point within the industry we don't see that.
Mr Jerry J. Ouellette (Oshawa): Are you seeing significant increases in sales over seven days now, because of Sunday shopping, or is it just spread over seven as opposed to having the same amount on six?
Mr Roytenberg: It's hard to make that determination. Sales in general have been advancing in the grocery industry since 1991, when for the first time ever we actually had a decline. What we see is that the share of total sales occurring on Sunday has been increasing, so of all the weekdays there are out there --
Mr Ouellette: People are accommodating for the opening for the opening on Sunday but sales are staying roughly the same.
Mr Roytenberg: They responded in a very positive way. We think it was a plus. We looked at the timing. When this occurred it was our perception that we were actually increasing sales.
Mr Ouellette: Are you having any problems getting managers?
The Vice-Chair: Excuse me, Mr Ouellette; surprisingly enough, we've run out of time. Thank you very much for your presentation here today.
MISSISSAUGA BOARD OF TRADE
The Vice-Chair: I ask that representatives from the Mississauga Board of Trade come forward, please. Good morning. Welcome to our hearing process. For those present in the room it would be very helpful if you would introduce yourselves.
Mr Charles Coles: It's a pleasure for us to be here. We thank you for the opportunity to appear before the committee on this important bill. My name is Charles Coles. I'm the chairman of the Mississauga Board of Trade. Joining me today are Norman White, who will make the major part of the presentation; George Kairys, a member of our committee; and Jim O'Dell, the chair of the committee.
The Mississauga Board of Trade is a private sector, non-profit, volunteer-driven business organization representing some 1,300 companies with over 60,000 employees in Mississauga. Mississauga is Canada's ninth-largest city and, as you know, host to Canada's largest and North America's second-largest airport. As such, the Mississauga Board of Trade is the voice of business in Mississauga, the gateway community to the greater Toronto area.
We are pleased to be able to appear before the standing committee this morning to address certain issues arising from Bill 49, An Act to improve the Employment Standards Act. Our presentation will express our views concerning the enforceability of the act through collective agreements, the prohibition of duplicate proceedings in court and, pursuant to the act, increased flexibility for greater employment standards for employees and other matters addressed in Bill 49.
Mr Norman White, who was a member of our board and the committee, who has more expertise in this area than I have, will make the main part of the presentation.
Mr Norman White: I've been asked to summarize the board's submissions on Bill 49, which in essence is in support of all the provisions of the bill, and there are a number of reasons why we support them. I'd like to address them very briefly and summarize our submissions as follows.
The board of trade supports the initiatives to clarify certain employee entitlements.
First, the board believes it is just and equitable that all employees be entitled to vacation or vacation pay in their first year of employment regardless of any unintentional interruption or absences from work such as illness, pregnancy leave or parental leave.
Second, the board supports those sections of the bill that clarify once and for all the timing of any payments upon termination of employment.
Third, the board supports the initiative to recognize uninterrupted lengths of service which previously had been interrupted by reasons of illness, pregnancy or parental leave. Again, employees should not be prejudiced against for the purposes of calculating their lengths of service for these reasons.
Moving on to the next topic, the board supports the flexibility with respect to the collective bargaining process in permitting bargaining agents to bargain employment standards that, taken as a whole, are superior to any particular employment standard, even though a single employment standard may not be met. We support this for the following reasons: First, we believe that such flexibility meets the demands of a more sophisticated and ever-changing marketplace. Second, we support the initiative because it would decrease the bureaucratic and government costs associated with processing exemption requests. Third, the bill maintains that there's adequate protection for employees since such negotiations would only involve situations of collective bargaining where employees are represented by accredited bargaining agents.
The next issue is the enforcement of employment standards through the collective bargaining process, in essence replacing the present enforcement procedure, which is run through the employment standards branch. The board is supportive of these changes for the following reasons: First and foremost, resolving disputes concerning employment standards through the collective bargaining process certainly reduces government costs and staffing in that there is no duplication of processing of claims. Second, negotiated collective bargaining processes tend to lead to negotiated dispute resolutions, which involve greater opportunities for settlement and a process that is satisfactory to both parties. Third, employees again are protected in that they are represented by qualified bargaining agents.
The next issue I'd like to address is the board's support for the prohibition of filing disputes both through the court process and through the employment standards branch. The board is strongly supportive of this position for a number of reasons: First and quite obviously, it avoids duplication of claims and clearly reduces government costs. Second, it avoids conflicts between decisions of courts and decisions of employment standards referees. Recent case law has stipulated that decisions in one court or by one employment standards referee may be binding on the other, and that has caused great confusion among the practising bar in this area. Third, the court process has certain advantages in terms of discovery, full production of documents and procedures to enhance settlement that the employment standards dispute resolution system does not presently have. Fourth, processing disputes through the court process tends to discourage frivolous complaints, especially where the claimant may have to pay for the legal costs of the employer to defend such frivolous complaints.
The next issue I'd like to address concerns the sections of the bill regarding the privatization of the collection procedures and greater opportunities for settlement. The board supports these initiatives because clearly they reduce the government cost associated with collection. Second, they increase opportunities for settlement and compromise in certain situations. Third, the bill provides adequate protection for the employee in that no settlement less than 75% of the full amount of the claim could be made without director approval.
Last, I'd like to address the issue concerning the changes to the limitation periods in Bill 49. First, the board supports the initiative to reduce the limitation period from two years to six months for the processing of complaints. There are certain advantages to this initiative. Certainly it encourages the timely filing of complaints. Second, it is consistent with the notion that the filing of complaints through an employment standards system is to be one of a summary nature in that any more sophisticated claims should be done through the court process. Third and again important, it certainly reduces government investigative costs. The board supports the changes to the limitation period concerning the time for appeals for employers by increasing it from 15 days to 45 days, which we submit is a more reasonable time for employers to consider their options and seek advice.
In conclusion, the Mississauga Board of Trade supports all the proposals of Bill 49, especially where such legislation is designed to decrease government costs, enhance the collective bargaining process and avoid the duplication of claims where dispute resolution systems are mandated in other areas, such as court and in the collective bargaining process. The Mississauga Board of Trade is certainly pleased to assist in any further amendments or changes to the Employment Standards Act, which is an important piece of legislation, and we would welcome any opportunity to address further changes. Thank you very much.
Mr Tascona: Thank you for your presentation. You're a fairly large organization, as you say in your brief: 13,000 companies with 60,000 employees. Do you provide any education or support to your members with respect to understanding the Employment Standards Act?
Mr White: We do in a number of different ways: through various publications that the Mississauga Board of Trade puts out, not just to its members but to the business community in Mississauga at large, and through certain seminars and conferences. Part of our mandate is to keep our members and the business community educated with respect to legislative changes, and we have, with respect to this bill, made attempts to educate them as to the changes that are forthcoming. Once, hopefully, they're put into law we will make further efforts to make sure that our employer members are aware of the changes and the reasons behind them.
Mr Tascona: Apart from changes, though, just a general understanding of the Employment Standards Act: Have you dealt with your members on that through your human resources committee or seminars etc?
Mr White: The human resource committee of the board of trade keeps our members informed about all aspects of human resources on an ongoing basis, including employment standards.
Mr Tascona: I imagine you have some unionized companies within your membership. In the union sector do you find that the unions, in their collective agreements, have negotiated such matters as human rights and occupational health and safety?
Mr Coles: I represent a unionized company, and in our collective agreement we have, particularly with respect to occupational health and safety, a special appendix at the end with health and safety rules and that sort of thing. I don't know if that's general with a lot of companies but it certainly is with ours. We're a fairly big company.
Mr Tascona: The grievance procedure -- you have that in your collective agreement -- would that involve a complaint with respect to human rights or health and safety under your collective agreement?
Mr Coles: Yes, it would.
Mr Chudleigh: Thank you very much for making a presentation to us this morning. We appreciate it.
I'd like to emphasize your conclusions. You point out that in order to reduce costs and duplications throughout the government process -- our government has been involved in that for over a year now. Although there is much criticism about it, I'm sure that at the end of the day Ontario will be a better province for it.
In the collective agreements that you mentioned, could you tell me, in the grievance periods, how long an employee has to place a grievance before the committee before its time runs out? Are you familiar enough with the contract to point that out?
Mr White: I've assisted in negotiating a number of collective agreements and I don't think there is any standard, but it's probably safe to say that in most collective agreements there's a very short period of time in which an employee can file a grievance, although there are some collective agreements that I've negotiated where there is virtually no time limit with respect to a complaint or maybe a complaint regarding certain sections of the collective agreement.
Mr Chudleigh: By "a short period of time" do you mean six months?
Mr White: No. I'm talking two weeks.
Mr Chudleigh: I see. Two weeks, a very short period of time.
Mr Lalonde: You said you have approximately 60,000 employees. What percentage of them are with organized labour, affiliated with the union?
Mr Coles: That would be very difficult to estimate. I would say that the bulk of our member companies is small businesses that are not organized, but I represent St Lawrence Cement; we're a big member. There are other big companies as well, pharmaceutical companies and so on, but of that 60,000 how many are organized and how many are not I couldn't hazard a guess. Sorry.
Mr Lalonde: If we are going to eliminate a good number of enforcement officers, don't you think that non-organized labour will be left in the dark at times? We know that the most vulnerable people will not lodge a complaint until they find themselves new jobs, because knowing the state of the economy these days, people are going to stay on the job even though they know they are not being treated properly. You say that six months instead of two years as the time allowed is acceptable for the processing of a complaint.
Also, I really feel at this time that the $10,000 you are able to claim is an amount, especially in today's economy, that is very minimal when you know that some employers these days probably are not following employment standards.
My question is, do you think it is going to be fair for unorganized labour, the fact that we are reducing the number of enforcement officers?
Mr White: I can address that. Yes, we think it's very fair to the employee for a number of reasons. First, I think the intent of the act was to change the employment standards process to one of a summary nature so that smaller complaints of $10,000 or less could be addressed in a summary fashion.
For amounts in excess of $10,000, employees, just like anyone else, have a right to go to court to collect it. Any termination pay or severance pay or breach of contract action would have a limitation period, I believe, of six years, so the employee would have adequate time to get a new job and maybe collect the resources to pursue a court action to protect his or her rights. If they are successful in their claim, they would be compensated for their legal costs, so there already is a mechanism in place for employees who have significant claims.
Mr Lalonde: But even the organized group, the union people, says that Bill 49 will deprive employees of their rights because first they have to go through their union people, they cannot go directly without going through the union, and knowing the cost of a lawyer and the time it will take for the union, they have to hire lawyers to pursue their claim.
The Vice-Chair: The committee thanks you for being here this morning and making a presentation.
Seeing that there are no further delegations before us this morning, we are now recessed until 1 pm.
The committee recessed from 1156 to 1304.
The Vice-Chair: Good afternoon. A quorum has been noted and we can now proceed with this afternoon's proceedings. We welcome you to the hearings on Bill 49, An Act to improve the Employment Standards Act. For those who weren't present this morning, if I could outline how we proceed, there will be a 15-minute allocation for each party here to make a presentation today. That 15 minutes will be used as you see fit. If you use 15 for presentation, there won't be an opportunity for a question-and-answer period. In the event that there is remaining time, the time will be divided evenly among the three parties.
HUMAN RESOURCES PROFESSIONALS ASSOCIATION OF ONTARIO
The Vice-Chair: For the sake of those present, I'd ask that you introduce yourself, please.
Mr Mike Failes: My name is Mike Failes. With me today is Peter Waite. We represent the Human Resources Professionals Association of Ontario. Mr Waite is the executive director. I am the chair of the provincial government affairs committee.
I'd like to thank you for the opportunity to address you today about the Employment Standards Act reform. We have provided the clerk with a number of copies of our brief. It is a rather extensive brief dealing with our blueprint for reform of the Employment Standards Act as a whole, so I won't be dealing with the entire brief, but in appendix II of that brief, at the very end, there are a series of recommendations which we make with respect to the Employment Standards Act reform process which you're dealing with today. You'll find that as you go through those recommendations that there are a number of consistent principles which we're trying to follow.
First, we believe strongly in protecting employees' basic rights. We also believe you have to have special protection for those who are most in need of it. At the same time, we believe we have to enhance the internal responsibility systems in place in the workplace. Finally, we'd like to simplify the system and, if at all possible, reduce the multiple forums which our members face today.
Before I turn to a few specifics in our package of proposals, just so you understand what our organization is about and who we represent, these are human resource practitioners throughout the province. We have a little over 7,000 members. These are people who on a day-to-day basis deal with the Employment Standards Act and have to administer it and look after employees' concerns. We are neither an employers' group nor a group representing employees. Rather, we have a unique perspective which we can bring to this reform process.
What I'd like to do is to touch upon a number of areas which we believe strongly should be retained in Bill 49 and then touch upon a couple of areas which we think have to be modified significantly.
Some of the areas which we agree with and approve of include the electronic filing and recordkeeping provisions within the legislation. In some sense I suppose you might say, "Welcome to the 20th century." The provisions dealings with civil actions, once again, we agree with. It's important that the forum which is going to be utilized by the worker be identified. That allows all parties then to deal with one forum. Right now, of course, there are multiple forums which are involved in a variety of employment-related matters, including the Employment Standards Act. This leads to a duplication of process and the potential for employers and our practitioners having to appear in multiple forums.
For example, right now under the legislation, if you are contesting a dismissal based on wilful misconduct, if you do not contest it in front of the employment standards branch, you may be bound by the decision made there in a subsequent court proceeding. Surely it's fair that everybody proceed with simply one forum so everybody knows where the matter is going right from the start.
A third item which we agree with are the provisions with respect to the enforcement of the act through the collective agreement. We appreciate that this has had some controversy in the papers. However, we believe once again that this is going to reduce a multiplicity of forums. It's consistent with the prior government's and of course this government's legislative provision in the Labour Relations Act allowing arbitrators to enforce the Employment Standards Act in a collective agreement arbitration. Some of you may recall that the arbitrators at the time that Bill 7 was coming in were strongly in support of retaining that power, and it was retained in Bill 7.
The only argument against this would appear to be that unions either don't have the expertise or the time or don't care enough about workers to enforce their rights under the legislation. Quite frankly, we'd suggest that's simply not the case. That's not the way unions operate. More than that, there's already existing protection in the Labour Relations Act with respect to workers and their right to be represented fairly by trade unions. I might add that the number of complaints under that section are relatively few and far between, and I think that's largely because unions do a good job of representing their members.
Another area that we specifically want to mention we're in favour of is the provision in the act for allowing for the collection of claims to be in essence farmed out to third parties. This is simply something which you would have thought would have been done a long time ago. Government is simply not in the business of and doesn't have the expertise for conducting debt collection. The mechanism that's been introduced in Bill 49 is one which seems thoughtful, well-thought-out, and will allow employees who are owed money to obtain that money in an expeditious and reasonable fashion.
There are a couple of areas which we have some concerns with, and I wanted to address those now.
The first is the six-month limitation period contained in the act, coupled with a limit on claims. Let me take this in two parts. First of all, we strongly support and believe in the six-month limitation period. We like the way the legislation specifies now what it means to be brought to the director's attention; that is, you file a written complaint, either in electronic form or otherwise.
The portions of Bill 49 which we have some difficulty with are, first of all, the limit on monetary claims, and let me explain why we have a concern with that. First of all, we don't think there should be a limit. We appreciate there was a $4,000 limit not so long ago. The government is now suggesting a $10,000 limit. The rationale appears to be primarily based upon the fact that it takes a lot of resources to deal with expensive claims. There are two problems with that argument.
First of all, the legislation is there to deal with workers' complaints, and if they are properly brought forth within the six-month limitation period, we see no reason why they should have an upper limit put on them which may deprive the employee of an expeditious collection of the money owed.
Secondly, it appears to be a resources argument. It takes resources for the ministry to pursue those claims. It's going to take resources in any event if someone has to go through the court. We have a problem with the court system now. It's backlogged; it takes years. They are now trying to introduce ADR, of course, to resolve that.
It doesn't seem that either of the arguments which are being advanced in support of the monetary limit really merit the problem which employees will be facing if you do it. If you have a six-month limit, the concern with people sitting on their rights will be addressed.
You do need some work, I think, on the language which is used dealing with the limitation on recurring violations. There is a drafting issue, I'd suggest, which needs to be addressed within the legislation. But quite apart from the drafting concern, the legislation appears to impose what I think is a 12-month limit on going back on recurring claims. In general, we don't see why the two-year limit, which currently exists on how far you can go back on a recurring claim, shouldn't be there. The key thing is that a person has to bring it forward within six months. So you have that six-month period, and then if they've brought it forward, it may allow someone to go back further in terms of looking at a recurring claim.
The other area that we have some concerns with is the service of orders. The legislation would change the current system. Currently, if you're going to serve an order, for example, on an employer, before you go and enforce it you must either serve it personally or by registered mail. That means the employer has to receive it. Well, the branch has chosen to simply ignore what's in the legislation, and that's probably why you see this amendment being put forward. If you read the branch's policy manual, they say: "Well, that's all very well and good. That's what it says, but you know, we have a hard time serving people sometimes, so as long as you've sent it by mail, that's good enough." In fact, they make reference to the rules of civil procedure, which of course have no application.
This amendment appears to be directed at helping the branch out with a problem. Unfortunately, they have simply taken the easiest route out. They don't recognize that people have legitimate concerns in terms of being served properly with these orders. You can address the branch's concern. The branch's concern is: "Well, what if we can't serve somebody? We send it out by registered mail and it comes back undelivered. What if we try to personally serve them but we can't find them?"
The answer is that if you try that, if you make an attempt at service which is reasonable, either by registered mail or personal, then you can go ahead and enforce, but that the person against whom you are seeking enforcement shall have a reasonable period of time -- I'd suggest the old 15 days is just fine -- within which they can come forward and say: "Hey, I do object. I never received a copy of this order." That will avoid a situation such as one which I saw recently where they sent it by registered mail, it got returned as undelivered and they proceeded to enforce an order of $30,000 against an employer. The day after he found out they had deducted it from his bank account, he went down and tried to file an appeal. They said: "Sorry. You're outside of 15 days." It took them, in fact, three or four months before they enforced it. The only recourse he had, even though the legislation right now would support his argument, would have been to go for a judicial review of that decision and it simply was not feasible in that case because, frankly, he owed a good portion of that order. He was really only going to contest about half of that order and a judicial review application would take up virtually all of that money, so there was little value in him even trying to contest that.
Rather than taking the easy way out, which has been suggested by the branch, we suggest let's amend the legislation properly so that if you do have difficulties in serving somebody, you can go ahead and commence enforcement proceedings but their rights are still protected.
Those are the comments we wanted to provide you with today. I appreciate time is short so if you have any questions, I'd be more than happy to try to address them for you.
The Vice-Chair: We thank you for your presentation. We have just over one minute per caucus, starting with the official opposition.
Mr Hoy: Thank you for your presentation this afternoon. I had some experience with sending registered mail prior to being elected in June. You can send registered mail but you can't make people read it. That was a flaw we found in a previous life. You talked about the six-month period and we've had presentations from people who say that, in the main, they quit working for that employer before they opened a claim. Almost 90% of the people do that. Human nature being what it is and the unemployment levels being high, it causes them concern that they should -- they want to find other employment before they open a claim. In that you have represented both employers and employees in this area, are you still fixated on the six-month period?
Mr Failes: Yes, let me tell you why. First of all, probably the area which causes the greatest concern with the six-month period are things like terminations of employment because what happens is records disappear, recollections fade, people who worked at the company move on. It is a period of time -- if you've been discharged from employment or laid off, surely that's a reasonable period of time to come forward and that argument which has been made to you doesn't even address that concern. So, if you start off with termination of employment, there's absolutely no reason why someone shouldn't bring it within six months.
The concern which is being raised: "Well, what about something like a claim for vacation pay or a claim for overtime? I don't want to do that while I'm an employee." First of all, there's already a protection in the act. If someone has their employment adversely affected because of seeking to enforce a claim, that's a violation of the act and can be subject to prosecution.
Secondly, yes, there is going to be some tradeoff any time you have a limitation period. On one hand, you are weighing the employer's right to be advised of a concern within a reasonable time, on the other hand, an employee's right, if you will, to I guess wait until they have something lined up. The vast majority of these claims though, if you take away the severance and termination and pregnancy leave claims, you're dealing primarily with small claims or moderate amounts of money.
I'd suggest it's very unlikely that many employees actually quit their employment because they want to enforce the violation of the act. It may be that many of them don't do it until after they've quit their employment but, once again, there's a tradeoff there and the six-month period, frankly -- it's not six days; it's not six weeks. It's a reasonable period of time with which somebody can think over whether they wish to advance a claim or not. I'm not sure there's any right period of time but that's one which is frequently used -- the Human Rights Code as well.
Mr Christopherson: Thanks for your presentation, it was very thoughtful. Obviously you put a lot of work into it and it's appreciated. On page 4, just to repeat one of your principles, "The legislation should enhance" -- should enhance -- "the protection of employees, with particular emphasis on protecting Ontario's most vulnerable workers." I would suggest to you that would likely include people who are making minimum wage, do not have union representation, and could be working for some of the bad bosses, not the best places in the world to be working, and I would think that would be applicable. You didn't comment, at least I didn't hear you comment, on the issue of a minimum threshold that the government is introducing, recognizing they won't tell us what that is going to be.
Mr Failes: Let me be clear just on that point. When I talked about the maximum, the same goes for the minimum. There shouldn't be any thresholds on the claims. If you've got a claim, you're entitled to have it enforced. It's as simple as that.
Mr Christopherson: That's fine. No, that's what I wanted to clarify.
Mr Failes: But that really works hand in hand with a six-month limitation period.
Mr Christopherson: I want to pursue that a little bit with you. Hopefully, I have a little bit of time. Given the fact that 90% of all claims are made after people leave employment, based on that statistical fact and the submissions that we've heard all across Ontario, there are clearly circumstances where people are fearful of retribution, and the fact that you can make a claim in the ministry does not solve the fact that you've lost your job, because there's no just-cause clause in the Employment Standards Act as there is in virtually every collective agreement. You can't fire somebody without cause; if you can't prove the cause and you've fired them, they get put back into work usually with full retro benefits.
The Vice-Chair: Mr Christopherson, I'm sorry. We've again exceeded the time. I do apologize.
Mr Tascona: Thank you for your presentation. Your organization is very active in the education of its members with respect to legislation such as the Employment Standards Act?
Mr Failes: Yes, it is, very. Actually, seminars are held annually, if not biannually, on just the act.
Mr Tascona: In your experience, has it been that unions negotiate provisions such as in their collective agreements for human rights and health and safety?
Mr Failes: There are invariably provisions with respect to health and safety, the extent of which vary. Human rights: You'll frequently find provisions but not necessarily all the time because now -- for example, Bill 40, now Bill 7 -- arbitrators are explicitly authorized to enforce other pieces of employment-related legislation; you don't have to have a specific provision. They can enforce it anyway.
Mr Tascona: And that can be enforced through the grievance procedure?
Mr Failes: Absolutely, right through to arbitration, of course.
Mr Tascona: And the grievance procedures, generally the time limits -- what do you find? They range from 15 to 30 days to file your initial grievance?
Mr Failes: Yes. Generally fairly short.
The Vice-Chair: I thank you for your questioning. Thank you very much for making your presentation today and welcome back another time as well.
UNION OF INJURED WORKERS OF ONTARIO INC
The Vice-Chair: I would ask that the representatives of the Union of Injured Workers of Ontario come forward, please. Good afternoon and welcome to our hearing process. I would ask you, for the sake of those present, to introduce yourself, please.
Mr Phil Biggin: My name is Phil Biggin. I'm the executive director of the Union of Injured Workers of Ontario. With me is Carmine Tiano, a community legal worker, and Maurice Stewart, a community legal worker with our organization.
The Union of Injured Workers of Ontario welcomes the opportunity to provide a written submission and to appear before the Ontario Legislature's standing committee on resources development to make an oral presentation on the review of Bill 49.
The Union of Injured Workers is a non-profit community clinic with a mandate to represent injured workers on workers' compensation issues and to lobby for changes to labour legislation that affects the rights of injured workers and workers in general. We also represent workers in other areas such as unemployment insurance appeals, Canada pension, representation before the Social Assistance Review Board and assistance in employment standards claims.
As worker representatives, we view Bill 49 as another assault on workers' rights. The Minister of Labour, in introducing this bill, called the legislative changes minor housekeeping. We submit that the proposed amendments are not minor housekeeping but major changes that will have significant negative impact on the substantive rights of Ontario workers. We submit that in particular injured workers, the most vulnerable, will bear the brunt of this assault. We also submit that Bill 49 is a gift to the employers who violate the Employment Standards Act with very limited accountability.
Since this government took office in June 1995, it has introduced some of the most anti-worker legislation in almost 50 years. It is interesting and important to mention that most of the proposed or approved legislation to date is a mirror image of similar legislation passed from the Republican-run Congress across the border, a Congress that in recent months has become very unpopular and viewed as being uncaring and mean-spirited.
In both Ontario and the United States, the justification for regressive labour legislation is that present legislation is killing jobs and investments and creating an unfavourable environment for business.
The US Congress: In 1995, the Congress cut occupational health and safety administration by 2% after first proposing a 30% cut. It cut inspection funds by 10%, cutting inspections of hazardous workplaces. In Ontario, in September 1995, the government announced plans to dismantle the Workplace Health and Safety Agency. It was suggested that health and safety delivery organizations be sector-based, which would eliminate the Workers' Health and Safety Centre, and further, that complete responsibility for health and safety training be made the exclusive purview of employers. At the same time, it was made public that the government was planning on reducing the number of health and safety inspectors.
Congress's view on labour: Congress wants to kill overtime pay. They want to replace it with comp time. The present bill, HR 2391, would let workers get comp time, but not cash.
Not content with cutting overtime pay, Congress wants to make it harder to get overtime at all by abolishing the 40-hour workweek.
Bill 7, the Labour Relations and Employment Law Amendment Act, was introduced in October 1995, repealing Bill 40, the NDP's labour bill. It introduced far-reaching changes above and beyond the repeal of Bill 40. There is no need to rehash old memories.
Finally, Bill 15, the changes to the Workers' Compensation Act, was quite a draconian bill that introduced criminalization of the Workers' Compensation Act and made economic recovery of overpayments a priority over injured workers' benefits.
In 1996, this government has once again embarked on further eroding progressive legislation meant to help the working people of this province. As mentioned earlier in our presentation, we feel that the proposed changes are for the benefit of big business and its employer allies.
Our objective today is threefold: (1) to show how Bill 49 will affect Ontario workers; (2) to show how Bill 49 will affect injured workers and (3) to show what we feel would be meaningful improvements to the Employment Standards Act in order to make it effective labour legislation that is fair to both employers and workers in Ontario.
Mr Carmine Tiano: Good afternoon. My name is Carmine Tiano and I'll be giving the committee our views on how Bill 49 will affect workers in this province.
First, we feel that this bill will take away minimum employment standards. Bill 49 allows employers and unions to negotiate standards for hours of work, public holidays, overtime pay and severance pay that are lower than current minimum standards, a feature that this government calls flexibility. We acknowledge that in the last little while the Minister of Labour backed off on this somewhat. However, it has been mentioned that this proposal will come forth again once the government reviews employment standards later on this fall.
We feel that this idea of negotiating minimum standards is to the detriment of 80% of the workers in this province who are not covered by collective agreements. Basically, 80% of the workforce will not have the benefit of a collective agreement or union to fight for them. Employers arbitrarily could just implement certain reductions and minimum standards.
Secondly, we're opposed to the idea of shorter times for claims and investigation against employers. Bill 49 reduces the time for workers to file claims from the present two years to six months. Also Ministry of Labour investigations will be reduced from two years to six months. As has been mentioned today, a lot of workers do not file claims until they leave employment for fear of reprisal, for fear of being fired. What this limitation does is it's going to put a worker in a bad position. "Do I file a claim against my employer who's violating my rights and maybe be fired, or do I just keep my mouth shut and keep my job?" I think it's unfair, especially in a province like Ontario; the workers will have no protection in that sense.
Furthermore, we're opposed to the $10,000 limit. The maximum amount you can get under an employment standards claim is $10,000. This is a further blow. Basically, what this is doing is it's telling the employers in this province, "Well, I could violate my duty and the most I'll be accountable for is $10,000."
Even the lowest workers in this province -- garment workers, factory workers -- have had claims more than $10,000. I think it's unfair for the government to put a monetary award on how much someone should be awarded.
Our other concern, as legal workers, is that the ministry is forcing workers to choose. It's either you get recourse under the Employment Standards Act or you get recourse in common law. I feel that's unfair because at times the workers should have both opportunities. At the same time when they're being asked to choose, the government is putting limits on legal aid. "If you choose to go into the courts, we won't give you legal aid for a lawyer." I do not think that's fair; I think it's unfair. It's further reinforcing this idea that employers in this province right now can do basically whatever they want and there are no limits.
We're also opposed to the collection of settlements. As we've seen in workers' compensation, for years private consultants have been assisting injured workers in their claims and ripping them off, taking awards. This is similar to that. If a private collection agency is given the power to go in and retrieve this money, they'll settle quickly so they'll get paid. It shouldn't be like that. I think that should remain in government hands.
Another thing that has come to mind with this legislation is that Bill 49 does not take into account how an injured worker will be affected by these changes. The biggest effect is the six-month waiting period. Right now, if an injured worker is hurt, he puts in an appeal. An appeal takes between nine and 12 months to be heard. If his appeal is successful and he does get his benefits, if he or she finds out that there could have been an employment standards action brought against the employer, he can't do it because of the six-month waiting period. This is something that will hurt injured workers when they're appealing re-employment issues. That's something I think the government should think out, because it will really be to the detriment of the injured worker.
I'll take it over to Maurice Stewart.
Mr Maurice Stewart: I have the pleasure of suggesting what we consider to be some meaningful improvements to the Employment Standards Act. We submit the following as meaningful improvements.
We agree that the present act is weak and obsolete. We propose that it be strengthened by including certain basic employment rights that are currently not in the act itself:
The right to have a coffee break. Unfortunately, the present law only requires employers to give workers at least a half-hour break after they continuously work for five hours.
The right of workers to receive pay for sick days. The current law does not require employers to pay workers who become sick. Unless the worker is employed by a company whose benefit package includes a certain number of sick days with pay, he or she is dead out of luck.
The right to periodic pay increases: I met a man in London, Ontario, this week who told me that in five years now he has not had a pay increase. It so happens he works for a family-owned business. This should not be. The law only guarantees workers the minimum wage. Anything more is at the employer's discretion. The fact is that there are some employers out there who do not have any discretion. An employee could work for an employer for 20 years or more without getting a pay increase, as long as he or she is being paid the minimum wage.
Every worker should be entitled to the same employment rights and protection, irrespective of their job or age.
We also submit that the present minimum wage should be increased by at least a dollar so that no worker will earn an income below the provincial poverty line.
We also endorse more paid holidays, three weeks' vacation time after five years, just like other provinces.
Overtime pay after eight hours a day and a 40-hour work week, rather than after 44 hours.
We also endorse reducing the maximum hours after which workers can refuse work from 48 hours to 40 hours.
As far as injured workers are concerned, we submit that companies with more than 20 workers should reserve 5% of the jobs for injured workers. This is a fact that works very well in Germany.
That injured workers have the option of full compensation if he or she returns to work and finds that the injury is aggravated.
A stipulation that injured workers will not be subjected to first layoffs.
Secondly, we advocate stronger enforcement of the act, with the Ministry of Labour expanding its collection role rather than delegating this to private, profit-centred collection agencies.
Mr Biggin: We are strongly committed to government policies that foster a strong economy for Ontario, an economy in which both workers and employers are winners. We don't want to see a situation where our economy is brought down, as one columnist in the Star said, to the level of a southern state such as Alabama. This is not the kind of thing that we want to see. We've fought hard on behalf of injured workers and other workers for many years. We want to see a strong economy, a healthy economy where all the people of Ontario are benefiting.
Subject to any questions the panel may have, this completes our submission. We thank you for the opportunity to present it.
The Vice-Chair: Thank you very much. We have one minute and a half remaining in the time allocated for your presentation today. Therefore I would ask that if a comment is to be made, perhaps that's the way we should approach this, seeing as there won't be time to answer a question, I doubt, in that period of time. However, we would like to start with the third party.
Mr Christopherson: Thank you very much for your presentation. I think it was good that you pointed out what's happening in the United States, because many presenters have been talking about the fact that Bill 49 is just one more step in the race to the bottom, as employers and governments all across North America are racing to see who can have the lowest standards, the lowest wages and the lowest protection, and compete that way. I think you make that case.
The other thing I want to do, given that the time is very short, is to point out to the government, and I'm sure they're aware of it, that there was a news conference held just a couple of hours ago with Mr Donner, who's a well-known economist, headed up a federal task force, and Mayor Barbara Hall of Toronto, endorsing 32 Hours: Action for Full Employment, a process to review the Employment Standards Act in a meaningful way that really would put more enhanced protection in law for workers, not Bill 49, which is taking away rights from workers, as we've heard in every community across the province of Ontario. It would be good to hear today from the parliamentary assistant that indeed the recommendations such as we've heard from the injured workers and from the 32 Hours: Action for Full Employment people -- that their ideas will be part of your consideration too and that you really will look at making improvements for workers, rather than the continuing attack that we've seen.
The Vice-Chair: Thank you very much, Mr Christopherson. I'm sure you're aware you've crossed over the 30-second line.
Mr Rollins: Thank you, gentlemen, for your presentation. I have some disagreements with some of the things you are putting forth. You seem to think that Ontario is following the United States and it's going to be a terrible situation. However, the employment rate in the United States is very envious to the province of Ontario. I would think, at least on this party's part, that we would like to see a labour rate of somewhere around 5.1%. That's what the current economic statement is from the States now, that that's the number of people there working. You also are holding us against the States that we're worse off. How come their economy is growing so well and they're seemingly much further down the road than we are, to the better side, I might say? I know this does not give you an opportunity to answer a lot of these questions, but those are the parts that we as a government feel, on my behalf.
Mr Lalonde: On page 5 you mention, "Workers know that they may be fired if they complain to the ministry." We all know that and we also say that 90% of the employees don't put a claim until they have left their jobs. What's your position on this? If the government were to train properly their enforcement officers and keep them in place -- at the present time I would say it's not because those enforcement officers were not doing their jobs; it's because they didn't get the proper training. Would it help the people of this province if the government would keep those 45 people and train them properly so they would follow up on a complaint lodged to the Ministry of Labour?
Mr Tiano: If the government would first keep them and retrain them, I think it would go a long way in solving the problem. I don't think we need more laws. All I would suggest is keep the laws we have; just enforce them. Every time a government comes in, it goes about changing legislation. If we just enforced it, it might work. I think education is important in all aspects and if it takes training employment standards officers more, WCB adjudicators, let's do it.
Mr Lalonde: So all we have to do is enforce whatever we have in place.
Mr Tiano: Enforce what we have, more training and cooperation from all parties will go a long way.
Mr Biggin: One last comment, and commenting on Mr Rollins, if your government is using the United States as a model, then I would ask you to go down and visit the urban centres of the United States and look at what's really happening there, if you want to have a polarized society in which there are rich and poor. This is not the Ontario of Bill Davis; this isn't the Ontario of Bob Rae; it isn't the Ontario of David Peterson. But this seems to be the Ontario that you want to have, a polarized society.
Mr Rollins: Too many people are on unemployment.
Mr Biggin: We want as full employment as you can reach, but we don't want to see a society in which there are two groups of people, the very rich and large groups of the very poor, and that's what you've got in the United States.
The Vice-Chair: Thank you very much, sir, for your presentation this afternoon.
UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES
The Vice-Chair: I would ask that representatives from the Ontario district council of the Union of Needletrades, Industrial and Textile Employees come forward, please. If you would like to introduce yourselves to the panel and to those present in the room, we would appreciate that, for the sake of Hansard.
Ms Alexandra Dagg: Is my microphone working properly? Yes, we're going to introduce ourselves in just one minute.
Welcome to UNITE's presentation of our sweatshop fashion show. We wanted to point out that we're a little bit behind the times today, though, because we are modelling summer of 1996, but we want to make today a very serious point about employment standards legislation. Of course, if this were a real fashion show, we would have a runway down here and we'd have nice music too, but we'll make do today without all those extra props. But it's important for us to be here today and show you graphically what's happening to the women to sew the clothes in the Toronto area, and it's especially important since the Minister of Labour, Elizabeth Witmer, has said on more than one occasion that she's very concerned about trying to protect garment workers.
Well, Bill 49 certainly does not do that and in fact it will only help to create more sweatshops here in Ontario.
Ms Dagg: I'm Alex Dagg, manager of the Ontario district council of UNITE.
Ms Harwant Singh: My name is Harwant Singh. I was a sewing machine operator, but now I'm working with unemployed workers.
Ms Yin Ping He: My name is Yin Ping He. I'm a sewing operator working at Riviera.
Ms Dagg: Ping sews on men's pants at a large factory in Toronto with more than 100 workers. She's a pieceworker and she's very good. She makes on average about $10 an hour, plus benefits, and her employer contributes to an RRSP as well.
Harwant was a sewing machine operator, sewing garments for a British-owned company in Toronto primarily sold at Marks and Spencer. She used to earn around $9 an hour plus drug and dental benefits, but this factory laid off all the sewing machine operators and now uses lower-priced contractors in the Scarborough area.
The clothes that we are modelling here today were made in Toronto but not under the kind of working conditions that Ping enjoys or that Harwant used to enjoy. In many cases, the clothes that the three of us are wearing right now were made by workers earning less than minimum wage.
The clothes were purchased this summer at the Northern Reflections store at the Scarborough Town Centre. The Northern Reflections, Northern Traditions and Northern Getaway stores and labels are owned by Woolworth Canada, a division of the US-based company Woolworth. Woolworth Canada does not own any manufacturing facilities. They contract their production all over the world and in Toronto. In Toronto they send out work to at least eight different sewing contractors who produce clothing in small factories, and some of them contract directly to home workers. The two loons of the Northern Reflections labels, which are popular here in Canada, are known by Toronto home workers to pay unfairly low piecework rates. Experienced home workers sewing these garments typically earn between $4.50 and $6.50 an hour. The legal minimum wage for home workers is $7.37 per hour.
They also contract to sweatshops in Toronto. These are factories in the Toronto area. Fay, which is not her real name, is a highly skilled sewing machine operator. She recently worked at a contractor's in Scarborough with six other women in the Chinese community. She sewed denim vests, just like this one that I'm wearing today, for Northern Getaway. Over a three-week period she earned only $4.50 per hour. That's in a factory. This is 65% of the legal minimum wage.
First, we're going to look at Ping. Ping is wearing a lovely vest and matching shorts. The vest retails for $29.50.
The Vice-Chair: Excuse me just a moment. I appreciate the presentation you're making. However, props are not a part of the parliamentary procedure normally used in the House. I would ask that the signs be removed or put down and I would be pleased to have you continue.
Ms Dagg: Maybe you could give us a little latitude here. I understand about the rule of props, but these are not protest signs; these are something to aid us in our presentation, like an overhead for at an employer doing an overhead presentation. To me this isn't any different. We're trying to make a point about how much the clothes retailed for and how much the workers earned. To me this is just a way of making the presentation a little more visible for you.
The Vice-Chair: May I please just ask the indulgence of the committee members in such a thing.
Mr Christopherson: That's fair.
Mr O'Toole: No objections.
Ms Dagg: Thank you. I really appreciate your indulgence. I know it's a little unusual.
Ping is wearing a lovely vest today and matching shorts. The vest retailed for $29.50, the shorts for $29.95. The total retail price, as you see, is $59.45. This outfit that Ping is wearing was made by a home worker in Toronto. She was paid a piece rate of $2.20 to sew the complete vest and $2.32 to sew the shorts. The total sewing cost for these two pieces is $4.52, earning the home worker $5.40 per hour for the outfit that Ping is wearing.
Harwant's shorts set was made in a contracting factory here in Toronto. The shorts sold for $21.95 and the T-shirt for $19.95. A factory worker was paid a piece rate of 92 cents to sew the shorts and 56 cents to sew the T-shirt; total labour costs, $1.48. The worker earned only $5.50 per hour to sew these garments. She was not given minimum wage even though she's entitled to that under the law.
Myself, I'm wearing this dress that retailed for $54.95 and this denim jacket that retailed for $22.95. A home worker also made my dress and she was probably paid $4.40 piecework to sew the dress. Why I said "probably" is home workers are receiving different piece rates for the same garment. The woman who made the jacket in the factory was paid $2.37 to sew this jacket. The home worker never earned more than $5.50 an hour to sew this dress and the factory worker made $4.50 an hour on the jacket. The total labour cost of this outfit, $6.77; the worker never earned more than $5.50 an hour.
Our point that we're making is that the Employment Standards Act is not enforced already. We have home workers earning less than minimum wage and we have factory workers in sweatshops also earning less than minimum wage. There's absolutely nothing in Bill 49 that will help us, even though the minister says it will, and we honestly don't understand how she can say this. Bill 49 does not reduce our vulnerability. It does not help us get justice for garment workers. It makes it even more difficult than ever before to launch a complaint.
You will see that we have given you a brief today and in the brief we have our opinions and recommendations about the changes to the act. We're not going to go through all of them but just highlight a few of the most problematic areas of Bill 49. For us, one of them is the minimum-maximum claim provision. The other is the six-month time limit on filing a complaint.
Many workers are already afraid to come forward with complaints. They fear losing their job. Workers need to be protected. In our experience complaints do not come forward until the worker has already lost her job and so she has nothing more to lose. Putting a time limit of six months is a gift to the employer and she will never be able to seek all the back pay she's entitled to. Minimum-maximum claims also mean that it pays for an employer to be unscrupulous. They might as well break the law because there are no real penalties and chances are that they'll never get caught or that the law will never be enforced.
Bill 49, rather than reversing the sweatshop trend that's already happening in Ontario, will just escalate what's already happening. All of us will be wearing more clothes like the ones we're wearing today because the legitimate employers who are trying to abide by the law are continually undercut by the ones breaking the law and will go out of business in this race to the bottom. Ping won't be able to earn $10 an hour any more and she won't be contributing to the tax base of the province as much as she is now; she'll be earning less. Harwant will be very busy, though. She'll be very busy working with the unemployed members from the legitimate employers she's already working with now. Bill 49 will return us to the 1930s in Ontario when sweatshops predominated on Spadina Avenue. If this bill is passed and we continue to go in this direction, we really believe this will be a shameful chapter in the history of Ontario.
That's our presentation. I understand you need to ask us some questions.
Mr Baird: Thank you very much for your presentation. We appreciate to learn more. It's particularly shocking when we look at the final retail price versus what wage is paid for the construction of it. We also appreciated the submission by UNITE in our earlier hearings. Many of the issues you've described are obviously ones I know the minister sees as particularly important. I know she's met with your group in the past and with related groups on a number of occasions over the last 12 months.
I think more than anything, though, what it points out is the fact that the current act isn't serving anyone well, but probably no one less so than your industry in Metropolitan Toronto. I had occasion to watch a documentary I think you participated in. They had an employment standards officer and they went on the road with her, with you and with some others. It points to the need to modernize the act. The act was written in 1974 and clearly needs a thorough overhaul, which we've already begun consultations on over the next eight months. I appreciate your presentation and certainly we've learned a tremendous amount from it.
Ms Dagg: If I can just add a point, I'm glad that we can agree that the act isn't working very well. We're just concerned, though, that in the direction you're showing under Bill 49, in the review of the act we're going to have more of the same and we're going to not have the same kind of standards we have now. We're really concerned about making sure that in Ontario we have a minimum floor for working conditions and so that people are not competing on wages and by breaking the law but on other things -- on their products, on their design capability -- but that's not happening right now to a large degree.
Mr Baird: Your point is very well taken, particularly not just what the act says but how can we better enforce it. The city of Toronto released a report about two weeks ago that said one out of four workers is working at home. Clearly, that wasn't the case in as large a number as in 1974. We've got to find not just better ways to improve the act but to improve the way it's administered. The previous presenters said if we could just enforce it in a better way that would be half the battle.
Ms Dagg: You could also start by not moving ahead with Bill 49. That would show us that you're listening to people.
Mr Lalonde: Thank you for your presentation. Very quickly, did any of the employees ever launch a complaint to the ministry?
Ms Dagg: Yes. We have had home workers launch a complaint to the employment standards branch and unfortunately our experience hasn't been too positive. That's why a lot more of them don't come forward, when they watch what happens to people who do bring forward. We have a major complaint, over $10,000 in back wages for a home worker not paid minimum wage. It took the employment standards officer two years to write a report denying every single allegation that the home worker made and finding completely in favour of the employer. That case is being appealed. We had our first day of hearing in the spring, and you know when we've got our next days of hearings? It's in January. By the time this is finished it's going to be three to four years after the incident occurred. That doesn't exactly give a very good picture to other workers who want to come forward with complaints if that's the process that happens. We've been able to support this woman. Think about the people who are completely on their own and do not have support to help them.
Mr Lalonde: It's really unacceptable. I think you should go directly to the minister with this issue.
Ms Dagg: I met with her yesterday and we actually did talk to her about some of these things. I'm hoping the government will listen to us and hear what we have to say.
Mr Howard Hampton (Rainy River): I have a couple of things I'd like you to respond to. The government calls this An Act to improve the Employment Standards Act. I'm going to ask you about that. I see this act as essentially an insult to workers and an insult especially to workers like yourselves, mainly women and mainly employed under some very tough working conditions already.
Mr O'Toole: Why didn't you change it?
Mr Hampton: One of the Conservative members, if you're so proud of this, you'll have your chance, you'll have your time to defend it. If you think driving wages to the bottom, if you think creating two societies, one where some people are very rich -- and your tax cut is doing that -- and then picking on women and forcing their wages down, is the way to the future, you've got another thought coming in three years, my friend.
The government says this is An Act to improve the Employment Standards Act. Do you see anything here that's an improvement?
Ms Dagg: The thing we find the most difficult is the very title the government has used to bring forward amendments that actually go and hurt more and more of the kind of people it's actually saying it's trying to protect. We're very upset about Bill 49 generally and we're very concerned about the future trends and the future directions the government is moving in.
To call changes under Bill 49 an improvement -- it would be better if it would be more clear that it's an improvement for employers who want to break the law, and not even the decent employers, but the illegitimate employers. They're the ones that are going to benefit from this law, because they're going to have all these free gifts because they're never going to be enforced. With the time limit period of six months, they might as well break the law for two years, because if there's ever a judgement it will only be enforced for six months.
The Vice-Chair: Thank you very much for coming forward this afternoon. By the way, I would like to congratulate the group for the presentation they've made. Questions were asked of me as to how this might be handled. I think you've done an excellent proposal the way you've presented it.
AUTOMOTIVE PARTS MANUFACTURERS' ASSOCIATION
The Vice-Chair: I would ask the representative from the Automotive Parts Manufacturers' Association to come forward, please.
Mr Ken MacDonald: My name is Ken MacDonald. I'm pleased to have this opportunity to speak today on behalf of automotive parts manufacturers in Canada. Our association represents an industry that employs a little over 90,000 people, most of whom work in Ontario. Our members produce, largely on a just-in-time basis, the parts and materials used in the manufacture of cars and trucks. Most of that production is exported to the US, where Michigan, Ohio and some other states are our biggest competitors.
We believe that if the Big Three auto makers and the parts makers are to maintain their very considerable investments in Ontario, it's important that our employment laws be made more relevant to today's workplace and that flexibility be enhanced. These being two of the goals of Bill 49, we applaud this progressive piece of legislation. We are particularly glad to see the provision that requires non-unionized employees pursuing a claim to choose between the courts and the ministry, and the provision that requires unionized employees' claims to be dealt with through an existing grievance procedure under collective agreements. Bill 49, however, is but a first step in employment standards reform, and we encourage the government to be foresighted and courageous in phase 2 reforms.
We have one suggestion for fine-tuning Bill 49. Drop subsection 82.1(4), which is on page 14 of the bill, which says that the two-year limitation period for proceedings under the act shall not apply to an arbitration under a collective agreement. Otherwise, this provision would create an advantage for unionized employees that is unfair and perhaps unconstitutional, given that many occupations are barred from collective bargaining under the Labour Relations Act.
In closing, my main point is that the auto parts makers are pleased to see that the government is now addressing the need for employment standards legislation reform, a very worthwhile initiative. Those are my remarks.
The Vice-Chair: Thank you very much. We have approximately 13 minutes left, so why don't we maybe try it at four minutes and a bit each, starting with the official opposition.
Mr Hoy: Good afternoon, and thank you for your presentation. You discussed the just-in-time delivery basis that the automotive industry is currently in, and you're talking about flexibility. My estimation is that a lot of this type of discussion will come in the second phase of what the minister is perhaps going to propose. Notwithstanding that, though, would you agree that it might have been better to have this first phase and the second phase dealt with all at once so that we could see the total agenda that the government has as it applies to labour relations?
Mr MacDonald: We really haven't taken a position on whether or not phase 1 and phase 2 might have been better combined. I can't see a clear case made for either side.
Mr Hoy: We have a view within our party that it might have been better to have these consultations all at once, with both phases of the discussion clearly before all participants. However, the government has chosen to do otherwise. You're asking the government to be foresighted and courageous in their next reforms. Real courage would have been to put phase 1 and phase 2 together and let us see them all at once.
I take note of your two-year limitation period and the comment you make; it's the only specific one to the bill. I appreciate your comments today.
Mr Christopherson: Thank you for your presentation. Before I move to Bill 49 specifically, I would like to ask you about the first sentence in your second paragraph, wherein you say, "We believe that if the Big Three auto makers and the parts makers are to maintain their very considerable investments in Ontario, it is important that our employment laws be made more relevant to today's workplace and that their flexibility be enhanced."
I'm curious as to how you feel you can make that statement or argue it, given that under Bill 40, even prior to Bill 7, which is now the law, which revoked all of Bill 40 and indeed rolled back other rights that unions had that the government didn't even talk about in the election campaign, that's the current climate, but under Bill 40 in 1994 there was the highest level of investment in the manufacturing sector in Ontario in its history: $8 billion. That's in one of the most highly unionized sectors of our economy and under the full implementation of Bill 40. So I have some difficulty with that stat and your statement. Can you help me understand?
Mr MacDonald: What's referred to in that statement, and I won't speak particularly to Bill 40, is an issue that I gather will be dealt with primarily in phase 2. We're thinking of rules concerning overtime. The flexibility that we would suggest should be considered when overtime rules are considered in phase 2. We're thinking of manufacturers that have as short as a two-hour interval between completion of a given product and its delivery to the customer's workplace. Those kinds of constraints, not uncommon in this industry at least, I think make it reasonably apparent why sometimes overtime needs to be available on a flexible basis.
Mr Christopherson: I want to get into the specifics of that, but I still have some difficulty understanding why you feel that you have to dilute the minimum standards for workers in the province of Ontario in order to continue to attract investment in the auto industry when we had record levels of investment in the auto industry under Bill 40 -- never mind Bill 7, never mind Bill 49 -- under Bill 40. So I have some trouble understanding why you think it's so necessary to wipe away those rights that workers have gained in order to attract investment. We're already getting the investment.
Mr MacDonald: I haven't said that you'd strip away the role that employees have in the decision on how much and when overtime is to be worked. I wouldn't say for a moment that you'd strip away all protections. I would suggest that some flexibility be added. How that will be attained has to take into account both stakeholders, of course. Bill 40, with respectful submission, doesn't deal with overtime regulations in particular.
Mr Christopherson: Fair enough. It is the broader argument that you make. Now to deal with the specifics, because we've had a little bit of time in this particular case and I appreciate that. The specifics that you're talking about, indeed every labour organization, every group that represents workers, has come forward and said, "At the end of the day, there's going to be less rights for workers if you allow them to be negotiated away."
We've seen concessionary bargaining. I would expect that you have some experience in unionized background on one side of the table or the other and you can appreciate that just as unions sometimes make gains, they sometimes take losses during tough economic times when the employer is in a strong bargaining position. They put demands on the table, the same as the union does during good times. The one thing that's not on the table is how long somebody can be forced to work during a week, or when they're entitled to their rates of overtime.
You, by supporting this, would allow employers to put those demands on the table. Right now they can't be negotiated away and that's the concern. I fail to see how stripping away those rights, which is what would happen at the end of the day, is somehow going to make this a better place to live when the workers' health and safety, quality of life and basic fundamental protections have been taken away. I have some real trouble with that.
Mr MacDonald: A couple of things in response: One is I've been at pains to be fairly general in what we're saying about overtime in particular, not wanting to second-guess the thoughts that the government may have developed already at this point. I'm not suggesting that I know what they have in mind, in praising it or criticizing it, but only to say that we'd like to think that flexibility will be at least one of the factors they take into account in their review.
The Vice-Chair: Excuse me. We did go a little bit further, but if you don't mind, we'll go to the government side now. Mr Tascona, please.
Mr Tascona: I thank you for your presentation. I don't think you really need to explain the automobile industry and defend it. Certainly we appreciate the investments that are in Ontario and certainly we're looking for far more than has been put in it in the past.
There are some areas that I'd like to sort of quiz you on. You have a very large group you represent, over 90,000 employees. The education component for the employers: Do you actively get involved with making them familiar with the Employment Standards Act and matters such as how it affects them?
Mr MacDonald: We do have seminars on a regular basis on various aspects of the employment law.
Mr Tascona: So you're very proactive in explaining the laws of the province in the employment area to your members.
Mr MacDonald: In conjunction with some of the leading management-side labour firms that have seminars, as you must know.
Mr Tascona: In terms of collective agreements, is it your experience -- with the changes under Bill 7 which resulted in arbitrators being required to consider all employment statutes in deciding the case, and in fact the actual reality is unions do negotiate human rights provisions and health and safety provisions into their collective agreement -- do you find that the arbitration process works in those areas?
Mr MacDonald: I don't feel qualified to answer that question, to be honest with you. Sorry.
Mr Tascona: Okay. With respect to your third paragraph, you state that you consider maybe they should drop subsection 82.1(4). You say this provision creates "an advantage for unionized employees which is unfair and perhaps unconstitutional, given that many occupations are barred from collective bargaining under the Labour Relations Act."
We're talking about a proceeding. Why would you feel it gives an unfair advantage to unionized employees?
Mr MacDonald: The fact that there would be no limitation period?
Mr Tascona: Why is that a problem?
Mr MacDonald: Clearly, it will bar those claims that are brought out of time. Maybe I'm missing your question.
Mr Tascona: I'm just trying to ask you to explain your statement there in the third paragraph.
Mr MacDonald: That claims that are brought after that two-year period, but brought by a unionized employee, would not be barred, whereas those brought by a non-unionized employee after the two years would be barred.
Mr Tascona: I think what it is, though, is that you'd have a hearing. The grievance procedure would be active and perhaps the hearing wouldn't occur within a two-year time frame. That's what I think this is about. Whereas, under the Employment Standards Act, if you have a referee seized to hear the case and it doesn't get heard for two years, that's when the limitation applies under the act. So perhaps we're not maybe at the same understanding of that provision. The intent is that the provision will not give them an unlimited limitation. That's not the intent -- if that helps you.
Mr MacDonald: My reading of it would be that there is potentially no limitation in the case of a unionized employee. I can't read it differently.
Mr Tascona: There's a limit. The thing is they'd have to file their grievance and whatever, but it's talking about a limitation to have your hearing. Normally, most hearings would take place within two years for an arbitration.
Mr MacDonald: I'm sure that's so. But if there are mistakes made, if for whatever reason delay does take place -- and I certainly have seen that with some clients in the past. The world isn't perfect. It will happen occasionally that arbitration doesn't proceed in an orderly fashion. In those instances, if they be few or otherwise, the unionized employee will not be statute-barred in the way that a non-unionized employee would be.
The Vice-Chair: Thank you very much. The time has now expired. We do appreciate your being here today.
The Vice-Chair: I would ask that representatives from Intercede please come forward. Good afternoon. For those present, I would invite you to introduce yourselves to all of us.
Ms Fely Villasin: I am Fely Villasin. I am a coordinator of Intercede, the Toronto organization for domestic workers' rights. With me is Coco Diaz. She is a counsellor at Intercede. Intercede is an organization that works for domestic workers. We assist domestic workers individually with their problems. We advocate for their rights and we advocate for their equality of protection under all of the laws that apply to workers in Ontario. We would just like to begin with Coco reading from her notes.
Ms Coco Diaz: Maria is a domestic worker who was sponsored by a family to come to Canada. She was put to work the same day she arrived after a very long flight. She worked 13 to 15 hours every day. In addition to taking care of the family's children and doing all the housework, she had to car wash and shovel snow, which were not included in her job description. She was put to work seven days a week in order to repay the amount for her fare paid by the employers. No overtime was ever paid. The domestic received a total amount of $10,000 for three years' work with the employers. She was terrified of her employers because of a threat of deportation, considering that these employers were responsible for bringing her to Canada.
The domestic was referred to a women's immigrant agency which then advised her to discuss with her employers that her employment rights were completely violated. The result of asserting her rights led to her termination without any prior notice. She lost an employment and lost a home. The domestic's priority was to find an employment in order to have a home. She was then referred to Intercede, which encouraged her to assert her rights and claim what was due to her. After obtaining another employment and receiving extension of immigration papers, she decided to file a claim with employment standards.
The domestic filed in December 1995 the approximate amount of $30,000 plus, without overtime and holiday pay. She received acknowledgement informing that it takes an average of 10 months to investigate. Now under Bill 49, the worker will be raped two times if the maximum she can claim is $10,000. Her priority is to find another employment and home and not to file for a claim, so six months' limit is worthless. Bringing to court is closing the door for domestic workers. Bill 49 is a gift to employers, which legitimizes them for continued violation and abuse to workers.
Ms Villasin: The dreadful combination of temporary status and mandatory live-in requirements of the live-in caregiver program makes a foreign domestic worker extremely vulnerable to threats of deportation, fearful of reprisals and prone to tolerating abuses. Meanwhile, her ability to control her work life and her private life is marginal. It does not at all help that conditions of domestic work and caregiving, especially when done as a live-in worker, have continued to be unfavourable and vulnerable to many abuses.
A live-in caregiver/domestic worker is on call practically 24 hours of the day and night. Long and irregular hours and insufficient rest are commonly accompanied by inadequate compensation and unpaid overtime. Physical exhaustion, toxic products, sexual harassment and assault are occupational hazards in her job. She suffers from isolation, loneliness, racist and classist indignities, diminished self-esteem. Her stability, security and privacy are at the mercy of her employer. She does not expect to be paid when she is absent because she's sick. In fact, she gets scared she will lose her job because of it. She knows she's entitled to paid vacation or holiday, but many times she still feels she has to fight for these entitlements.
Yes, she may know her lawful rights but she is often helpless to exercise them because she would not want to jeopardize her immigrant status with any frequent change of employer. Besides, she has to be careful not to displease an employer with any complaint because a bad reference will keep her longer from acquiring a new job, and worse, a vengeful employer can accuse her of theft or child abuse and file a complaint that will go into her immigration file and delay processing of her landed status.
When a domestic worker loses her job, if she's live-in, she automatically loses a place to sleep. The domestic worker depends on her employer's goodwill to maintain her autonomy and her human dignity. She depends on her employer's good word to keep her immigration record clean, so she will have no trouble getting her landed status. She depends on her employer's compliance to respect the rights she's supposed to have by law. If she can no longer tolerate the abuse she suffers, she has no recourse but to leave her employment, and even after she leaves, she feels restricted from making a complaint. She prefers not to make waves. Her future and that of her family depend on it.
The stark dominance of an employer's power over the domestic worker, the isolation of workers in the home workplace, restrictions to their mobility and movement, these conditions make it difficult for domestic workers to enforce the rights they have or to negotiate for better working conditions.
Bill 49 will further diminish any chance for domestic workers to claim their rights and have them enforced. Bill 49 will give abusive employers a go signal to keep on abusing the rights of their workers. Bill 49 will reinforce the common notion that most women's work, particularly work in the home, should be done for free.
The laws that exist to protect workers' rights and workers organizing must not only include domestic workers in individual home workplaces, but they must be substantially improved. More important, enforcement mechanisms must be improved to allow domestic workers to benefit from minimum standards. If domestic workers are to effectively organize and negotiate collectively for better working conditions, then government measures must be implemented to enable them to exercise this fundamental right, not by taking away their right to organize their union but by giving them effective measures that will support such organizing.
Our principal opposition to Bill 49: In one year Intercede received 4,201 inquiries related to violation of domestic and caregiver workers' rights. Most of the inquiries were from women who live in their place of work. These inquiries were all related to non-payment or underpayment of wages owed: overtime, vacation, holiday pay, termination pay etc. Yet very few come forward and bother to make a claim. As far as we know, less than 1% of these inquiries resulted in a claim being filed with the Ministry of Labour.
Bill 49 will reinforce the helplessness of domestic workers and caregivers, especially live-in, to enforce their rights. It will discourage them further from making any claim against abusive employers. On the other hand, Bill 49 will legitimize the common practice of employers to cheat their domestic workers and caregivers.
The shorter limitation period will greatly discourage a domestic worker, especially if she's living in, from making any claim against her employer. It will encourage an employer to cheat on a domestic worker for long periods of time while being assured they will only have to pay for six months of violation, if at all.
A cap on ESA claims will legitimize non-payment or underpayment of money owed to a domestic worker, especially one who is in a more vulnerable and helpless situation such as slavery or bondage, while letting the employer off for more than $10,000 of violations. For example, a domestic worker who was brought to Canada by her employer, whose passport was withheld, who was locked in the house and had no contact with the outside world and who later escaped after three years, would not be able to claim more than $10,000 of what is owed her.
Going to court to file a complaint is less of an option for domestic workers psychologically, financially and timewise. As it is, domestic workers are not over-eager to make use of the Ministry of Labour enforcement mechanisms, because of the intimidation of the process, the delays and time-consuming process. There is no question they will be more discouraged from bringing an employer to court, which is a much more threatening prospect for any immigrant, much more for a temporary work permit visitor. The use of private collection agencies will create situations that will pressure a domestic worker to expedite payment and agree to lower amounts than can rightfully be claimed.
Bill 49 will not make employment standards enforcement more efficient; it will take away any remaining options for domestic workers and caregivers, especially those living in, to enforce the rights they are entitled to. We have suggestions for enforcement and they are part of our brief. I will stop there. Thank you.
The Vice-Chair: Thank you very much. We have approximately a minute and a half per caucus, starting with the third party.
Ms Marilyn Churley (Riverdale): Thank you for your presentation today. I think it's important that we hear from you directly. We've heard in the news over the years about the unique and difficult and different employment situations that domestic workers often have, and I think that your submission points out some of the real areas of concern. Can I ask you -- you did make some suggestions in this bill -- if you were to ask the government to do one thing today, what that would be. What do you think is the most important area for you to have changed here?
Ms Villasin: The most important area would be that the enforcement of the rights that domestic workers have be efficient and prompt and resolved quickly, not by taking away their rights but actually by making the process less intimidating. So the whole process should be made more efficient.
Ms Churley: So what you're saying is the existing laws need to be improved, but what this bill is doing is making it worse.
Ms Villasin: It's opposite.
Ms Churley: It's the opposite, actually going backwards instead of forwards.
Ms Villasin: Definitely, yes.
Ms Churley: Do I have another --
The Vice-Chair: About 15 seconds.
Ms Churley: Would you say that some women can be in jeopardy as a result of going backwards, given that this is mostly women domestic workers living in people's homes?
Ms Villasin: Jeopardy in the sense of -- right now, there's only 1% of those who complain to us who go and make a claim. The possibility is it will be even less than 1% who will ever make a claim after this.
Mr O'Toole: Thank you very much for your presentation. I don't think we've specifically heard from a domestic/home worker group in the past. I think it's a good, insightful presentation. I was just looking up some of the current employment standards acts on domestic workers. You're aware, I gather, that they're not covered directly, similar to most other working groups under the current act?
Ms Villasin: Under the current act, they're not covered for all of the act.
Mr O'Toole: That's right, yes. So there are a number of changes. In this act, you feel, because of their isolation, perhaps they're even further disadvantaged. Is that really the thrust of what you're saying? Because of their workplace itself, they're disadvantaged from the enforcement or entitlements?
Ms Villasin: Because of the non-consideration of the situation of women who are working in the home, they are at a disadvantage under the current employment standards. Yes, I'm saying that.
Mr O'Toole: How would you characterize the type of work? Are the majority of employers of domestics bad employers?
Ms Villasin: The majority of employers do not consider them real workers. This comes from the fact that for a long time they were not covered and protected as real workers. They were not covered under the employment standards, for example, until 1986, if I remember correctly. So there is a traditional look at women who do women's work in the home workplace, that their work should be free. When they are paid, they are paid less and when they're ever protected, they're protected less, as is the case now.
Mr Hoy: Thank you very much for your presentation. Is it fair to say that some of the employers of domestic help think they're doing the worker a favour simply by having them in the house and that they're not required to pay them? They're giving them a roof and someplace to live, therefore they think: "This is a great favour on my part. I don't have to pay these people as well." Is that what they believe?
Ms Villasin: In fact, one of our long-standing demands of the immigration program is that the mandatory live-in requirement be not made a condition of their permits, because for us, the migrant domestic workers should really have a choice to be able to leave a bad working condition and it's more difficult for them if part of their being able to stay in Canada is tied to their being live-in workers.
Mr Hoy: And if they could choose their place to live, perhaps they would make more claims?
Ms Villasin: If they could choose their place to live, then definitely they would live in a good employer's home workplace, because most of the time they consider that as saving more money. But certainly each and every domestic worker wants the choice to be able to live in or live out. Actually, some employers, maybe a lot of employers, especially more the middle class and not very, very rich ones, actually prefer that their domestic worker not live in.
The Vice-Chair: Thank you very much for your presentation this afternoon.
LAW UNION OF ONTARIO
The Vice-Chair: I would ask if a representative from Andra Associates Inc is present. Seeing not, I would ask if the representatives from the Law Union of Ontario would come forward, please.
Mr Malcolm Davidson: My name is Malcolm Davidson. I'm a representative of the steering committee of the law union. To my right is Mr Richard Blair, one of our members, who is going to be presenting the lion's share of our brief, or a summary of it. We'll both be available to answer questions and make comments if you have questions.
Mr Richard Blair: I'm not going to read the brief. I think obviously the committee will have time to do that and there are important things the committee has to do by way of considering the submissions of all of the presenters. So that there's some time for questions, I'm going to focus briefly on a number of the points that are of paramount concern for those of us who represent working people and trade unions and have had exposure from that perspective to the Employment Standards Act and its workings over the years and have something to say about these amendments.
We focused on a number of points in the brief and I want to take just a moment to recognize the authors of the brief, of whom I was not one. Their efforts are of course important.
We focused first of all on access to justice for non-unionized workers and for unionized workers. We have focused on access because it's obviously important, regardless of what the statutory entitlements are. They're not particularly worthwhile unless they can be enforced.
The bill provides, first of all, for a statutory maximum for claims to be enforced, by way of a complaint to the employment standards branch, of $10,000. That presents a number of concerns, from our perspective, the most obvious of which is that in cases where the entitlements which a worker has been denied exceed $10,000, the worker is then faced with the choice of either proceeding through the complaint mechanism and essentially forgoing the amount in excess of $10,000, or moving to the court system in an effort to obtain those entitlements to which he or she is entitled. The difficulty with presenting that choice is, first of all, access to the court system is a difficult and a time-consuming and expensive proposition for all except a fortunate few. Forcing people to trade off their statutory entitlement in exchange for an opportunity to pursue a statutory entitlement in excess of $10,000 through the court system is a choice which we feel is inappropriate. The courts are less efficient, in our experience, less cost-effective, than the mechanisms that currently exist for enforcement through the employment standards branch, and the net result is essentially a cost transfer to the Ministry of the Attorney General in cases where the statutory entitlement exceeds $10,000.
Similarly, there's a provision which prescribes persons from proceeding to complain for amounts under a stipulated minimum. Many of the same considerations apply for persons who wish to pursue amounts of less than whatever that prescribed minimum may turn out to be. The only avenue for enforcement will be essentially Small Claims Court, which, although it's more efficient than the courts at large, is certainly substantially less efficient than the current procedures under the employment standards branch enforcement and the Ministry of Labour mechanisms.
With respect to unionized workers, there is a serious difficulty, in our view, in providing that the collective agreement mechanism be the sole mechanism for pursuit of employment standards claim. One concern is that the mechanisms under a collective agreement, particularly in cases where collective agreements provide for tripartite boards of arbitration, come at a substantially higher cost than the pursuit of these entitlements through the employment standards branch. That cost is a real cost to the trade unions and a real cost to the working people and a real cost to the employer, all of whom will ultimately bear some share of the cost of the pursuit -- the union and the employer in strict dollar terms; the employee in the terms of their claim having to be considered among a number of competing claims that a trade union may have to advance.
What we are left with is a situation where unions will be forced to place competing priorities on the enforcement of statutory rights on the one hand against the important business of administering the collective agreement with the employer on the other hand, and the resultant tradeoff will be a net loss to the effectiveness of both the collective agreement enforcement and the employment standards enforcement. Trade unions do not have unlimited resources to pursue employment standards claims. They will have to make those tradeoffs. Those tradeoffs will surface in a number of ways if collective agreement considerations can't be addressed effectively through the arbitration mechanism. Because there are employment standards claims that have to compete with those, those concerns are going to be addressed at the bargaining table and they're going to show up in terms of industrial conflict and, again, in many ways it's just a cost transfer.
The other problem, of course, is that the arbitrators themselves may not feel compelled to do exactly what the employment standards officers do in terms of interpretation of the legislation. You can be assured, I think, that the employment standards officers will not necessarily consider themselves bound by interpretations of the legislation that are arrived at by arbitrators. The net result will be a less than consistent application of the employment standards legislation and these important minimum standards across the private and public sectors. One goal, it would seem to us, of public law is some consistent enforcement of public standards, which stands to be sacrificed if the enforcement in a collective bargaining relationship is transferred exclusively to the domain of arbitrators.
With respect to some of the provisions that were initially contained in a brief, there were moves to allow collective bargaining tradeoffs. I'm not going to comment in detail on that. Should that appear again in the form of further amendments to the act, it will be of concern at that time, but I would simply say that it's extremely difficult to measure monetary rights against non-monetary rights and it's extremely difficult to ascertain how a package of rights can be said to be better than or worse than, taken together, a statutory minimum. We would have grave concerns if that part of the bill were to find its way back on the table and into legislation because we feel the situation, as it currently is -- one knows, for example, that an employer can't put an illegal demand on the table that undercuts employment standards rights and if they do so it's a simple conclusion that they're bargaining in bad faith. Many employers, as soon as they realize that, simply take the illegal demands off the table. If there are going to be protracted arguments about whether the demands are or are not illegal taken together as a package, those are simply going to find themselves in front of the labour board at increased cost to the parties. They're going to find themselves in the place of industrial conflict as those issues don't get resolved easily and quickly in collective bargaining. We would not want to see those provisions back in the bill.
There are a number of recommendations we make for trying to prevent violations of the Employment Standards Act. These are important minimum standards. We have referred in our brief to Professor Arthurs and his comment, which is as timely now as it was in the 1960s, that there is such a thing as industrial citizenship, and there are rights that pertain to workers that should not be subject to easy erosion and there are minimum standards which all citizens and all workers, regardless of their citizenship, should be able to rely on.
We have some real concerns about any efforts, as we see here, to privatize, to move those standards out of the public sphere and into the private sphere. It seems to us that the most effective thing that can be done and the best thing the Legislature could do would be to take the steps that we, among others before this committee, have recommended in terms of ensuring that there are proper inspections and proper reporting mechanisms, proper enforcement at the front end so that people don't have to worry about the cost and where to place the cost of litigating violations to basic standards in the workplace at the back end.
I welcome questions that you may have. I think the most appropriate thing to do is to answer questions at this point, but before I do that I'm just going to ask my colleague Malcolm Davidson if he has anything that he would like to add before I take questions.
Mr Davidson: Thank you, Richard. I'd like to stress the points we've made in our brief at pages 5 and 6. We are aware of attempts by the legal profession and by the Ministry of the Attorney General to fix civil litigation to make it affordable within this province. There have been various initiatives taken by the legal profession and some of them by the Attorney General -- case management being one, ADR, alternative dispute resolution being another, simplified rules of civil procedure -- but the fact is there are no results from those programs yet. Civil litigation is a broken down horse. There are attempts to breathe life into it, but there are certainly no results from it and any move by the Legislature and by the government to force people to use civil litigation is a regressive move, in our view. Thank you. We would ask for questions, if you have them.
The Vice-Chair: We have a minute each per caucus, starting with the government side.
Mr Rollins: Thanks for your presentation. I think it puts a different light and twist to it than we've heard from different presenters. The time frame that most unions we have heard, and people I suspect you're affiliated with too, as a time period to grieve a grievance is approximately 15 days, two weeks, maybe three weeks, but in that time frame. Everybody seems to be concerned that when, away from those, we ask for a six-month period of time, because we've heard from other presenters that when it exceeds that six-month period of time all of a sudden records are a year and a half or two years old and people who were working there are not there. Do you feel that's taking away very many rights from the number of people who would be grieving it under that six-months condition?
Mr Blair: Let me address that. It's obviously been the case up to this point that whatever the time frames are for employment standards complaints it's been two years to this point, and of course it's proposed that it change, and it may change. The first thing I would say is that consistency is important. I'm not sure I understand why it is that a worker who has a trade union should be required to complain more quickly than a worker who doesn't. There will be cases where the trade union will contribute to the worker's understanding of the issue, and so a complaint can be made faster because there's a trade union there that knows a complaint should be made faster. But trade unions aren't all large, sophisticated organizations with sophisticated legal departments or legal counsel or non-legal people who are well trained. Some of them are very small.
We've heard a lot about workplace democracy under this government and I think if one were to examine trade unionism in Ontario, both in the past and today, you'd find that a lot of trade unions are really made up of small locals of rank-and-file people who don't necessarily have all of the specialized knowledge they need about statutory entitlements right at their fingertips. I'm not sure they should be less entitled to whatever the time frame is than someone who's not represented by a trade union. That strikes me as just unfair.
The other thing I would say --
The Vice-Chair: Excuse me. I am going to have to move on here. Mr Hoy, you only have two now.
Mr Hoy: No, but that's what it was.
The Vice-Chair: Yes, we had a minute.
Mr Hoy: Thank you very much for your presentation. I was very interested in your comments about access to the courts and how it can be difficult. I guess you were talking about both in time and in dollars and cents. I appreciate that, and some of the other statistics you provided. You did mention that the standards branch might be more efficient than the courts. Can you give us a quick reason why you feel that way?
Mr Blair: I feel that way because in part the employment standards people are well-trained, dedicated public servants. They know what their job is and, but for considerations of backlog, they do it as quickly as they can and they get good results. They also have access, by virtue of the statutory mechanism -- they can do inspections, they can get records, they can get results because they can get things that in a court process we're not going to be able to get until we get to pre-trial or discovery. Similarly in the arbitration process, we're not going to get until we produce a subpoena on the first day of hearing. That's a waste of time and it's a waste of money. There are well-trained people who do the job now to the best of their ability and they can do it much more cheaply than the courts because they have the knowledge and they have the access to the tools to do it.
Ms Churley: Thank you very much for your presentation. On page 13, just a minor point. I would say that you're talking about Ontario having joined the race to the bottom, although you don't use those words. That's part of what's going on on all fronts. I would mention that you should put declining labour, environmental and social standards in there, because the environmental deregulation and lowering of standards is just breathtaking.
Mr Blair: I think we completely agree with that.
Ms Churley: I think it's important.
I want to ask you a quick question. Earlier today, the Employment Standards Work Group suggested that one way to improve the situation of non-unionized workers who fear retaliation if they file claims would be to make it illegal to fire workers without just cause. The federal labour code already includes this, and of course workers who are unionized have this protection. So it's a simple question: Would you support adding the just-cause protection to the Employment Standards Act?
Mr Blair: Absolutely. There's no greater chilling effect on someone's ability to complain or enforce their entitlements, whether they be employment standards or workers' compensation or other basic workplace rights, than the knowledge that they might be fired, wrongly fired, for trying to do it. There's no reason an employer should be able to discharge someone without just cause. There's no information that it caused any problem in the federal sector. It works extremely well. There's really no human justification for not all standing up and saying anybody should be entitled to employment without fear of dismissal without just cause.
The Vice-Chair: I thank you for being here this afternoon.
OLSTEN INTERNATIONAL BV
The Vice-Chair: To assist committee members, we do have a representative from Andra Associates in the audience now. We also have a representative from Olsten International. To their agreement, we'll be hearing first from Gary French from Olsten International due to a need to catch a plane. Thank you very much, Mr Andrachuk, for agreeing to that.
Welcome to our hearing process. Just so you know, we have 15 minutes for presentation and question-and-answer period combined.
Mr Gary French: First of all, I would like to thank the next group, which has managed to make it possible for me not to incur too many traffic tickets on the way to the airport.
My name is Gary French and I am the managing director of Olsten International, one of the world's largest temporary staffing companies. I am a member of the government and labour relations committee and a director of the Employment and Staffing Services Association of Canada, from whom you will be hearing later this afternoon. As an individual who has had direct responsibilities for hundreds of millions of dollars of corporate revenues in the US, Canada and Europe, I am of course particularly interested in any legislation that impacts workplace relationships from both my corporate perspective and, I might add, as a proud Ontarian who would like to see Ontario prosper in the future.
I recognize that this committee is at this time considering only the most basic housekeeping issues. In my view, this is nothing more than the late application of common sense when one considers when the current act was enacted. I support the minister's approach and look forward to the next phase of reform of this critical piece of legislation.
The current legislation seeks to provide basic protection to workers in recognition of the fact that there is an inherent imbalance in the relative bargaining position of some workers as compared to employers. It seems to me that this is reasonable, but it is also fair to say that those addressing this committee for the most part do not represent those workers or indeed businesses least able to give you input, and this should be borne in mind when considering the briefs submitted.
Ontario is a part of the trend towards a global economy and needs to strike a balance that allows its businesses to compete cost-effectively while providing adequate levels of protection to the most vulnerable workers in society. To ignore this basic market reality and role of governments leads to the kind of problems Europeans face with high unemployment and with capital being exported to more favourable and flexible business environments. Ultimately the very people that we seek to help are the ones who suffer most. Flexibility must be the cornerstone of the review process in providing minimum standards.
The current act is difficult to understand and expensive to enforce. I support the initiatives in Bill 49 to privatize collections and clarify the language issues with regard to the entitlements around pregnancy and parental leave. Phase 2 will hopefully result in language that is more clear in so far as issues of substance are concerned.
The continued notion of application and enforcement targeted at those in need of protection must be preserved in phase 2. This means workers but also businesses in the sense that the act must not create biases in favour of small businesses over larger ones, as the inevitable result is to make today's big businesses tomorrow's small businesses. In the case of my own industry, the temporary help industry, it is important to keep a level playing field that not only doesn't create biases, but that recognizes the different nature of our workforce. Our employees work as much or as little as they choose and often for several different employers. It is important to remember that it is the assignment of the employee that is temporary, not the employment relationship. We need employment standards legislation that takes into account a myriad of non-traditional employment relationships and promotes self-reliance in the workplace.
It is important that employers have clear rules to follow without double jeopardy between the courts and administrative tribunals. At the same time, it must be recognized that those in need of protection have a responsibility to act in a timely manner and to receive help in an equally cost-efficient, timely manner. This is ultimately of benefit to both parties in an employment relationship and to the public purse that finances claims recovery.
The critical issues still lie ahead. Bill 49 sets the stage to begin phase 2, which will be part of an industrial strategy platform for Ontario's ability to compete in the 21st century as a modern, adaptable and globally competitive place to work and live.
I would certainly welcome any questions from members of the committee.
The Vice-Chair: We have just over three minutes per caucus, and we will start with the official opposition.
Mr Hoy: Thank you for being here. A fair bit of your presentation is talking about the phase 2 aspect, I believe, where you're talking about workers that may work for a time with multiple employers, various hours and so on, and I think those kinds of discussions are clearly going to be needed. We would rather have preferred that this phase 1 and phase 2 had been done all together so we could view the whole government opinion. They did have part of this phase 2 discussion in this bill and then withdrew it. I think it would have been good for all employers, employees and legislators to see everything all at once. I do agree with you that many of the critical issues will lie ahead. Notwithstanding that, there are many, I believe, in Bill 49.
We really don't have a lot of time to get into it, but you do recognize, and you say that you do, the position of vulnerable workers. I hope you maintain that attitude as we look at phase 2, and I'm sure you will.
Mr French: Let me just reassure you. I simply view this time as one to serve notice on the committee that this is something I'm interested in, and, as I wrote, I'm interested not just corporately but personally.
I spend a great deal of my time in Europe. I've had broad responsibilities in the US, and I think I have some knowledge of the impact of these kinds of pieces of legislation on people. I certainly look forward to hopefully being able to participate in the process and to comment.
I've been rather disappointed at the reactions to this first phase. I mean, half the stuff I read in the press talks about child labour camps and so on. It's been miraculously overblown. I simply viewed it, particularly with the minister's withdrawal of some provisions, as simply housekeeping.
With regard to whether it should be all bound together and linked, that's not for me to comment on, but I'll wait for the government to roll out its process.
Ms Churley: I agree with you that we should never blow anything out of proportion, and that sometimes can happen in the press either way. But this committee has been hearing time and time again from, in particular, the most vulnerable workers. We heard today from domestic workers and garment industry workers. You know from the press and other areas that these are particularly vulnerable workers, some of whom don't even make minimum wage.
You describe Bill 49 as housekeeping and common sense, and I'm sure you haven't had an opportunity to look at the whole thing, but I would say to you that it is the perspective -- and I'm not talking about the press here today but those vulnerable workers -- that this bill contains much more than housekeeping. I'll give you an example. With a cap of $10,000 and a six-month limit now, many of them, again especially the low-paid women, will be left out. And that's just one aspect to it. In my view and in many vulnerable workers' view it's not just housekeeping. How do you perceive that? How would you tell these workers that it actually is just housekeeping and not to worry about it?
Mr French: Well, you've got a bunch of concepts in your statement, but let me talk about the domestic issue which you raised. One of the things that concerns me there is that since the advent of basically the norm of two family incomes -- and that, I realize, sets aside the issue of single parents and so on -- we're facing things where, quite apart from the issue of employment standards, we have a multibillion-dollar underground economy just of cleaning ladies, for example. It doesn't take a rocket scientist to say that at $75 a day, which is pretty normal for a cleaning lady, times five days a week, you have a pretty good amount of money that is outside of the tax scheme, from which all of us in both levels of government are hurt. That's a related issue when I talk about a platform of industrial strategy.
Conversely, there are companies that are in the business of providing home cleaning services -- ours is not, by the way -- and they find themselves at a disadvantage because people will go to individuals whom they simply pay cash to outside of GST, outside of the tax framework, and who in many cases are probably claiming other social safety nets on the side.
So while I have a lot of sympathy for the issue of what I think you would probably term the exploited worker, there are other issues that are not quite as clear and simple as to say all domestic workers are in poor shape. Many of them are making $25,000 a year tax-free. Many people wouldn't mind that position.
The issue that is central to what you're talking about is, how do you allow for the kind of flexibility for those who are playing honestly in the game from both sides, employers and employees, while still making sure that those least able to protect themselves are not exploited and taken advantage of? I don't think there's anybody who from a business perspective would disagree with that statement.
Ms Churley: But those are the ones we're most worried about here. I take issue, but we don't have time to go into it, with what you said about domestic workers. But the most vulnerable people -- we're not worried about the good businesses and people who are playing by the rules. It's those others that we are worried about. Is my time up?
The Vice-Chair: Yes, it is. Sorry.
Mr Ouellette: Thank you for your presentation. Does your company provide home-based workers, workers who go into households or work from their own house?
Mr French: On the health care side of the business. We are the world's largest provider of home health care people.
Mr Ouellette: How do you as a business regulate that aspect of the business? Because, as has been mentioned a number of times, one in four new positions created in the Metro area is in the home-based industries. How do you as a business regulate that?
Mr French: I don't see what you mean by regulate it.
Mr Ouellette: How do you monitor what takes place? Earlier on, for example, the needleworkers were concerned they would be paid on piecework, but I have no idea how somebody could judge if that person stops for a break when they're doing the job. I don't know. I don't know how you would regulate something.
Mr French: But they're paid piecework. That's exactly the reason why that doesn't matter. They're paid for what they produce, not for the time they put into it.
Mr Ouellette: Okay. In your business it is the providing of a service?
Mr French: Our business is providing a service for which employees tell us how many hours they worked. On the home health care side, the patient would sign off that they agree with those being the hours they worked. On the staffing service side, the client company would sign off that they agree with that, which is the basis for our payment to our employee and our billing to our customer.
Mr Ouellette: So you monitor yourself and you have a good working relationship in that area?
Mr French: Absolutely.
Mr Ouellette: How would you envision the government stepping in to monitor some of the home-based businesses? Yours specifically, you may have some other ideas because you have experience in how this operates in other facets.
Mr French: How would I anticipate the government stepping in to regulate it?
Mr Ouellette: Yes. How would we monitor what takes place when people operate out of a home-based business?
Mr French: I'd have to think about why there's any demonstrated need to regulate that area of business. At this point in time it seems there are so many non-traditional forms of work going on out there that even this committee, in the numbers of days it's allocated for hearings, is never going to hear about them all. The interesting thing is that I don't seem to hear anything broad-based that would suggest that particular group of people feels they're taken advantage of in any way. Certainly from the point of view of our industry, which is non-traditional in the sense that we assign employees to work at a client's premises, almost never have I ever heard any sort of complaint or issue arising from that.
Mr Ouellette: Okay. I appreciate that.
The Vice-Chair: Thank you very much. Time is close enough to expiry that I don't think we should start with another question. Thank you very much for coming this afternoon.
Mr French: Thank you for the opportunity.
ANDRA ASSOCIATES INC
The Vice-Chair: I would ask that John Andrachuk come forward, please. Good afternoon. Welcome to our hearing process.
Mr John Andrachuk: Good afternoon. My name is John Andrachuk. I'm president of Andra Associates Inc. We're a general management consulting firm. I've got a pretty eclectic background in business. I've been everything from president of three manufacturing companies to CFO of a couple of insurance companies. I've been in the publishing business, the hotel business and so on, all at general management levels. So I've got a pretty comprehensive idea of how business works in Ontario. I've mainly been an employer, but when I was a young fellow I was an employee.
I'd like to start off with a personal anecdote. I've got six kids, and three of them are university age. A couple of years ago two of them were working at the Canadian National Exhibition, which you might think is a fairly well organized organization, having been around for longer than Confederation. Anyway, both of them got cheated, by two different organizations. These were the bad bosses we all cringe about.
My wife got really mad about this and she went after them. They refused to make the payments they were required to do. One was about $50 or $60; the other was about $175. She ended up going to the employment standards group and asked them for enforcement. To her surprise, they said, "Oh, that's no problem at all, ma'am. If you can just demonstrate this" -- which she did -- "we'll issue a cheque to your kids," which they did immediately. It was very impressive. My wife then said: "What do you want us to do to help you to collect the money from these bad people?" And they were bad people. To her chagrin, the officer told her, unequivocally and without any intention of doing anything else, that they would not go after these creeps. They wrote off a couple of hundred bucks, two or three hundred bucks, whatever it is, and the reason was that economically it made perfect sense in those two particular cases, because it would have cost more to go after the enforcement.
But what happened here? The good employers paid for this, the good people paid for this, and the creeps got away with it. If you don't act, if you don't enforce, then the bad guys get away with it, and these are the people we read about in the paper this morning.
That's interesting, but that's really not why I'm here. I think this is probably fairly boring and the fact that there's been virtually no press coverage except for yesterday really indicates that. This really is just housekeeping. Why wasn't most of this stuff done years ago? If this officer who went to my wife and blithely wrote off several hundred dollars of the people's money had had the enforcement powers, the time and the focus of being able to collect, to enforce, then it would have been a different story and maybe these bad people would have been driven out of business and some good people would have had a chance.
To me, unless I've totally missed the point of what's going on here, I think the fact that Bill 49 is calling for focus -- in other words, take the crap away from the enforcement officers and let them do their job -- looking for efficiency; taking away the silly things -- for example, if you've got a union contract, why not let the union contract rule? It's got a grievance procedure. I'm personally very familiar with how those operate. They work. Why not let them work? Why involve another party, to the cost of the people and, moreover, to the cost of the good employees working for bad employers?
So this thing this morning -- they showed it in the paper -- I found quite pitiful actually because that's exactly what this is all about, isn't it? To address exactly that kind of question and to make it possible for the ESA officers to go and do their jobs. Maybe in the question period you guys can take me on, because -- I don't know -- I might have missed something completely here.
Anyway, the real reason I'm here today is that I'd like to urge you, as the resources development committee of the Legislature, to get on with the real job here, which I understand you're going to do in the fall, of reformation of labour laws, practices and embedded inefficiencies, inflexibilities and rigidities, to let Ontario take its rightful place among the winning and progressive jurisdictions of the world. We should be up there with the winners. The way the game is set now, it's extremely difficult for people -- businesses and employees -- to do that. I think you can do that at the same time as improving worker justice and equity, because without a job there is no equity. It doesn't matter whether your job is at $8 an hour, $6 an hour or $100 an hour -- without a job there is no equity.
The world of work, as we all know, has changed fundamentally and irrevocably. We're never going to go back to the way it was. What's basically needed now is labour market flexibility to accord with the new game. I think you all know that there's a stunning comparison between the rate of job creation in the European Union and the United States over the past 15 years or so. There's a direct counterpoint here. They have labour forces of roughly the same size. The EU has had no net new jobs since at least 1980 -- no net new jobs. In contrast, the United States has created at least 15 million net new jobs. That isn't accidental. The central reason for it is labour market flexibility.
I'd like to deal with the question of the nature of the workplace and how I believe it's changed over the past 20 years or so. Here's how it's been for about the past 100 years. We've got supervisors and we've got workers. We've got managers and we've got employees. We've got owners and we've got workers. We've got masters and we've got servants. We've got the companies and we've got the unions. We've got us and we've got them. We've got actors and we've got the acted upon. That's the way the game was actually set up. That's the way it was designed. That's the way it was organized. That's the way it is. Therefore, I presume we could all say that's the way it has to be and should be forever.
I'm going to suggest to you that there has to be a fundamental change. There are a lot of interests, and some of them have probably been represented in your hearings here, in whose interest it is to continue the current practices. It's in their interest. People who've got union jobs, people who've got bureaucratic jobs that enforce the current practices etc. If you look at this pitiful response this morning, the only thing the press was given to talk about by what's come in front of you was about these bad bosses. Yet Bill 49, looked at in its essence, clearly intends to address exactly that question: to give the enforcement officers the ability to enforce basic labour standards, employment standards. Why don't you just get on with it?
To do this, to get on with the world of the future, you've got to get on with changing the frameworks, regulatory barriers, non-productive mandated costs, coercive practices and organizations, barriers to adaption to the new economic world. You've got to put your attention to getting rid of the baggage of the past. I'm going to suggest to you that the new world of work -- in contrast to the past century or so's paradigm, we need to create a new mindset about the organization of work where there is room for us and them, where everybody who is working for an organization is actually part of an economic unit, an essential part of it, and in fact is a partner in it. Then there's a common economic interest. We don't have masters and slaves. This is 1996, not 1910.
People should be able to move to where they can be most productive, earn the most, be the most satisfied and, yes, escape the bad bosses. If working as a domestic or in the unregulated economy or whatever is such a bad thing, let's put the situation in place -- you're the only people who can do it -- where they can escape and get good work at good pay for long term.
Wage labour is the concept you've got to get rid of. It was invented to suit the organization of mass production, but it no longer applies to the new world of work. Finite management was designed by the bosses to make their jobs easier. The worker was seen as an interchangeable unit. The mindset was institutionalized in their own self-interest by the unions, by the lawmakers, by the lawyers, by various management practices, management systems and so on. They all lead to the institutionalized adversarial labour situation we have today. By design, the labour laws are adversarial and confrontational -- by design. Smart, real smart. It may have been smart in 1955; it's dumb in 1996.
I'm suggesting to you that we need the work practice flexibility that Bill 49 is beginning to address. I believe there was a retraction of one of the proposals, and that proposal dealt with negotiated work practices; for example, working on a holiday. I personally think it's incredibly pitiful and silly that it was withdrawn. I don't understand why it would have been. Surely, in 1996 rational people can make an agreement as to when they're going to work and what their conditions of work are going to be. They don't need the interference of a base law that says you can't work on Canada Day or you need triple time or whatever on Sunday or a statutory holiday. It's silly, perfectly silly.
I'd like to congratulate you on your addressing the administrative cleanup items that are set in Bill 49, but you need to get on with the real job. You need to put in place the rules of the game that will create long-term, rewarding jobs for Ontarians and I look forward to your further deliberations later this fall.
Ms Churley: Thank you for your presentation. I think your last comments are ones we could probably all agree with, about well-paid jobs being available for everybody. How we get there I guess is the big question. I don't know we would agree fully -- I've been listening carefully to your presentation -- about how to get there. But certainly, in terms of this bill and some specifics, I found your story about -- I believe you said it was your children working at the Ex. What happened happened to my daughter. There was also sexual harassment involved. I know countless other people have had those kinds of problems over the years. It's a good example of why we need good laws and enforcement.
Bill 49, for instance -- and this is why I would say it's not just dealing with housekeeping here -- would allow the government to set a minimum level of claims recoverable. We don't know what that's going to be yet, but to me that's very crucial. That's not just housekeeping. Coming back to these young people who were exploited at the Ex, leaving aside whether or not they were in that case dealt with or not -- in the case I'm talking about they weren't either -- don't you think that setting a minimum is going in the wrong direction?
Mr Andrachuk: Ms Churley, that's the only item I saw when I read this stuff that I completely disagree with. I notice there is no specification of it. I think whether it's one cent or $1,000, the act should apply. There simply is no excuse for having a minimum, I don't think.
Ms Churley: So you would recommend that there be an amendment. Thank you.
Mr O'Toole: Thank you very much for your presentation. I concur that the real job is phase 2. That's the real job.
I don't espouse any more global competitiveness than is absolutely necessary, but I think this morning we did get some good information. It wasn't in the press; it probably will be picked up. But we've got the book here and we're getting it waved in front of our faces. It's Bad Boss Stories and it's out. But actually, as I was reading the report that was submitted, I have to thank the Employment Standards Work Group for giving me the statistics that during the period of the last 10 years, the history is that the number of claims has gone up by some 300%, and the amount of the claims has moved up 300%, and yet the collection has gone down by almost the same amount. So it's fine to have laws. My point is this: Is the current system working?
Mr Andrachuk: It sure sounds like it isn't.
Mr O'Toole: The number of claims is going up, the amount of the claims is going up by 300% -- you can quote me -- and the collection has gone down.
Mr Andrachuk: It sure sounds like it isn't.
Mr O'Toole: It's 23 cents on the dollar. The system's broken. Anyone who thinks the status quo is acceptable, I'm not sure where they have their head; maybe in the sand.
Mr Hoy: I appreciated your presentation. In the early part of it, you were talking about enforcement. Clearly we have to do a better job of that. The previous member's comments on the 300% range that he's talking about, I'll solidify that, and I think that's what you were trying to get across to us today.
We recognize that many of the employers are good bosses -- many of them -- and there are good working relationships, both unionized and non-unionized, in Ontario. However, we must look at those who fall through the cracks who are vulnerable or victimized. Maybe they're not vulnerable; maybe they were just victimized, like your children were. But I appreciate your comments and your thrust that enforcement could be a large part of the problem here.
Mr Andrachuk: Very definitely. Without power, it's totally ineffectual, it's impotent. Why have it on the books?
The Acting Chair: Mr Andrachuk, we appreciate your presenting to us today and appreciate your attendance here. Thank you very much for taking the time.
TORONTO-CENTRAL ONTARIO BUILDING AND CONSTRUCTION TRADES COUNCIL
The Acting Chair: If we could now call the Toronto-Central Ontario Building and Construction Trades Council, Mr John Cartwright. We have 15 minutes to spend together. If you'd like to make a presentation to us, we can use any remaining time in questions.
Mr John Cartwright: My name is John Cartwright. I'm the business manager of the Toronto-Central Ontario Building and Construction Trades Council. That represents about 40,000 unionized construction workers in central Ontario. With me is Irit Kelman, who I have asked to sit in with me to present a personal experience that I think is important for this committee to understand.
Mr O'Toole: Mr Chair, is there a written presentation?
Mr Cartwright: No, there's not a written presentation. There will be other presentations made by the provincial building trades and some other specific construction unions.
I guess when I'm looking at this bill, it's pretty clear why much of the response to Bill 49 has been to say that this is the bad boss bill, because from our perspective it certainly is about encouraging and condoning the activities of bad bosses.
When I think back to that famous old saying, and I'll try to paraphrase, that the law in its wisdom allows both the rich as well as the poor to sleep under bridges, it's almost an irony that Bill 49 allows the rich to do one kind of thing and the poor or the workers to do something else, in the sense that at this point in time, with the bill, you have the ability of an employer to steal from their employees. If it reaches over $10,000, there's no penalty and they're in fact rewarded for having stolen that much more from their employees. Of course, if an employee was to steal anything, they'd be facing immediate dismissal and probably a jail sentence.
Those are the kinds of frustrations we feel as an organization looking at this initiative, as well as a number of other initiatives of the government.
I want to cast your minds back to 1961 and St Patrick's Day, a wonderful historic day in Toronto. In 1961, five labourers died tragically in a tunnel disaster known as Hogg's Hollow disaster in Toronto. They died because of poor regulations, because of a lack of a health and safety regime and enforcement. Their deaths and the tragedy that surrounded it sparked basically an upsurge in the immigrant community in this town, among the Italian immigrants largely, demanding to be treated with dignity and to be treated as human beings. As a result, a whole lot of red tape was established: red tape around tunnelling, red tape around shoring and red tape around health and safety procedures.
This is 35 years later, and part of this government's interest seems to be eliminating red tape. Unfortunately, it's the red tape that in many cases protects our people, because what was happening in the 1960s, with young men lining up along Dufferin Street waiting to be picked up by pickup trucks to go and build the houses and the apartments and not knowing really who they're working for because they didn't have the language or the knowledge of the laws, being exploited and finding themselves being given rubber cheques week after week but not being in the position to complain because they were worried about what their status was, or their families' -- that's still being repeated today. Probably most of you who sit in the Legislature and come from perhaps other parts of the province don't know that that's being repeated today. But if you get up at 6 o'clock and you look up Dufferin Street in Toronto, you'll still see that with the new immigrants, be they Portuguese or West Indian or African or Latin American. That's still happening.
Our council is involved currently in a large organizing drive in the housing sector. The interesting thing that's happening is that we're not being faced with people who are saying, "Oh, yes, we want higher wages and benefits and pension." We're being faced with people who are saying, "I want a union because I've been promised a certain rate," or if I'm pieceworking, "a certain amount of money to do a house, and when the house gets done, or the third house or the fourth house gets done, the boss says, `I know you're supposed to get $1,100 for that but I can only afford to pay you $800; take it or leave it.'" That's still happening today in the construction industry.
We have experiences of asbestos tear-outs with fly-by-night contractors where immigrant workers who don't know the English language or don't know their rights are being involved in tearing out asbestos and being given dust masks to do the work, and then at the end of the day still not being paid properly. When the job is over, the company disappears and they have no rights to get anything that's owed to them.
So to see this government's initiative moving in the direction of taking away what protection workers have and not bolstering the protection of workers is really quite galling.
I'm going to touch on a couple of very specific things. The first is the aspect of the act that talks about the requirement to either take the act or take civil action in order to get the employee wage protection plan. In the construction industry, you must register a lien in order to be applicable for that. The amendments that are brought in through Bill 49 would put our people in a situation where they could jeopardize themselves by either not engaging in civil action and therefore forfeiting any right to an employee/worker plan, or trying to get ahead with what's there and basically being put in a catch-22. I would imagine that's an oversight of the drafting and I would want to point that out, as I imagine a number of other deputants from the construction industry will do.
We want to point out very strongly that while we applaud the government, realizing that one of the initial proposals about flexible standards that could be negotiated has been withdrawn, we are very concerned that anybody thinks they should bring that back in at some later date and in some other format. It's clearly unacceptable that the law would allow for contracting out of standards in that format, whether it be, from what we've seen in our industry, by so-called company unions that have been established to sign sweetheart deals with the company -- and the notion that they could go beneath employment standards is unacceptable -- or in fact even a legitimate trade union that's put in a very difficult bargaining situation where people are out on strike for weeks and weeks and being told that they only get an agreement back if they agree to conditions less than employment standards. Either of those situations is quite frankly immoral and we hope that does not see the light of day again.
I've asked Irit Kelman to join me, because she's a young woman who spent some time this summer working in the service sector. When I talk about our membership being construction workers, that's only one part of the picture, because of course all of our people, their wives or their daughters or their immediate family generally work in the service sector. The kind of intimidation that's in the service sector is far more problematic, I suggest, than we even have in construction, where there's no such thing as seniority.
Irit perhaps has the benefit of having an education and having English as a first language, which many of our members' wives and friends and girlfriends and daughters and children do not. But I'd like her to share an experience that she's had recently working in the service sector in the restaurant industry.
Ms Irit Kelman: Good afternoon. As was already said, my name's Irit Kelman. I'm a university student at York University and, like a lot of other students this summer, I had quite a bit of trouble finding a summer job, which obviously one needs to survive in university.
Looking around, I finally managed to find a job at a new restaurant-café that opened up in the Yonge-Bloor area. However, there was one catch to it: I had to agree to train without pay. Considering that time was moving on and I just needed something so that I could get some sort of money, I agreed reluctantly. Luckily, I was a fast learner, so after a couple days I had the coffee-pouring and cake-cutting down pat and I was actually able to start my paid shifts. Some of the other details of some of the violations that occurred in the restaurant are in -- this is one of the stories in the bad-boss hotline, the book that you were handed out this morning, on page 87.
Eventually, I did get my money. I was removed from the schedule because I had made it clear I wanted to try a different job. Because I'd made such a fuss the first time about being trained for free, the boss was afraid to approach me to suggest free training again, so I was just removed from the schedule without warning. It took a month before the first paycheque bounced and then I had to keep going back to get my money, which was given to me in small change -- lots of fun to carry around.
The most frustrating thing for me was that some people -- and not all of them; I've had a lot of good jobs. But there are a lot of employers out there who are consciously and purposely breaking the law because they know the enforcement is not as strict as it should be. I was told to my face that myself and all the other people could go and lodge a complaint with the Ministry of Labour. He doesn't care. He's not denying that he owes us money; he just doesn't happen to have it at the time and knows that it'll take a while before an order is actually made, and even then there won't be any punishment.
Another example is that he hired two students who were in from the UK on a work exchange program, so they are legally entitled to work in Canada. They eventually quit because the conditions in the restaurant weren't exactly pleasant, and he absolutely flat out refused to pay them and told them to go to the Ministry of Labour. But with a six- to nine-month time period before an investigation is begun, these students will be out of the country and there'll be no way for them to enforce their rights.
It's just interesting that this morning a lot of the employer organizations were saying that they were involved in extensive educational work with their members. It would appear that it's not that the employers don't know, that they aren't aware of the standards. It appears, to the contrary, that they are aware of the standards, and that's what makes it more insidious. All these breaches are done knowingly and almost strategically to try to increase their personal profit at the expense of people who need to pay rent and pay for school and other things like that.
Mr Cartwright: That's the kind of situation, as I said, and to some degree Irit is quite lucky because she has English as a first language. But many of our members' families work in the service industry and they face those kinds of situations time and time again.
That's our presentation, members of the committee. I'll be happy to answer any questions.
The Acting Chair: Thank you very much. That leaves us three minutes, with about a minute per caucus. We'll start with the government side.
Mr Baird: Thank you very much for your presentation; we appreciate it. Obviously issues like you encountered as a young person starting out as a student are particularly relevant. We've heard a tremendous amount, particularly about the issue of education and how we can best do that. It's certainly an issue we're looking at.
My question pertains to your thoughts on collection agencies. One provision of the bill, as you know, would contract out the collections component of the act. Right now the collections are attempted to be done by employment standards officers themselves since the collections branch of the ministry was disbanded in 1993 by the previous government, with the resulting staff discharge.
Would you have a problem if private collections agencies could bring in more money for more workers? Right now we're only bringing in 25 cents on the dollar. If that provision did stand and was passed and implemented a year from now and the rate were to go up considerably, do you think that would be a good move or a bad move?
Mr Cartwright: Why do you think the collection agency could get more money than your current employees? Obviously the question that leaps to mind is, the people who will be working for a private collection agency would be, I imagine, paid less than the current public employees, and we would oppose that move.
Mr Baird: They do right now. We as a ministry accept less. The reason, in answer to your question, would be pecuniary interest.
Mr Hoy: Thank you for your presentation this afternoon. It would be interesting to know the correlation between high unemployment rates and, we'll say, abuses of employees. We had a submission a week ago where an employer said he had approximately 350 job applications for five positions in the service sector area, so he had lots of people to choose from. It would be interesting to see how the statistics of abuse to employees increase with the unemployment rate, because obviously he has the power to say, "I have 345 other people who wanted these jobs, so you work the way I suggest." I appreciate your story and how you were affected by that, but I think it would be interesting to know.
Just recently, not before the committee but otherwise, I heard of job applications and the person said, "I had a stack this high" -- it was quite big -- "and I just grabbed the top of it and threw it in the garbage and looked at the rest of them." We can clearly see that some of this may be affected by the high unemployment rates and the abuse that follows through from that.
Mr Cartwright: There's no question that we've seen a correlation with that, particularly in the housing industry. When the bottom dropped out of the housing market in the late 1980s, people generally were being paid the fair rate. After three, four or five years of very high unemployment there wasn't the option of walking away from that employer who was cheating them. If that was the only person who had a job, the next time they had to go back to that person even though he'd just ripped them off for 30% of their wages on the previous project. That's how it's impacted on our people.
Mr Christopherson: Thank you both for your presentation. Two quick questions: One, earlier today we head from the Council of Ontario Construction Associations, who said, "The goals of Bill 49...are clearly a more efficient and effective use of government resources, while protecting basic standards for employees." I wanted to hear what your reaction is to that statement.
Second, in the restaurant, were other employees prepared to stand up for themselves as you did or were there people who were afraid to because of recrimination by the employer?
Ms Kelman: When I was working there -- I ended up only working there for a month -- an employment standards claim did come in at the time. I don't know what other people have done. I tried to get a copy of the phone list, but a lot of the phone numbers were wrong, and obviously, because everything happened so fast, it was too late to go back. Also, as Don was pointing out, I know that for a lot of people in the kitchen, who work at the back, English is not their first language, and in terms of paycheques bouncing and not being paid and schedules being shifted and breaks not being given they were even worse off than the people in front. But people need money; they need any money they can get.
Mr Christopherson: Do they know their rights?
Ms Kelman: Most of them do, but they're scared that if they complain, they're going to lose their jobs. When you've got rent cheques and a family to support, you take what you can get.
Mr Christopherson: Sure.
The Acting Chair: We appreciate very much, Mr Cartwright and Ms Kelman, your coming in and presenting to us today. Thank you.
LUMBER AND BUILDING MATERIALS ASSOCIATION OF ONTARIO
The Acting Chair: We now welcome the Lumber and Building Materials Association of Ontario, Mr Stephen Johns. Would you please identify yourself and your associates for the Hansard records.
Mr Stephen Johns: Thank you very much, first of all, for having us here today. My name is Stephen Johns and I'm here today in my capacity as executive director of the Lumber and Building Materials Association of Ontario. The LBMAO is the largest and most diverse regional building supply and hardware association in Canada.
Accompanying me today are Simon Dann, the president of Buildmat Distribution Ltd, one of our LBMAO associate members who is representing our government affairs committee, and Andy Schroth, LBMAO member services manager.
The LBMAO is a not-for-profit trade association that represents an industry comprised of some 850 retail lumber and building supply and hardware stores in Ontario. The LBMAO's retailer members, ranging from the major chains to small independents, generate over 80% of the industry's total annual sales volume in Ontario, which stands at approximately $4.5 billion. Our association also has some 240 associate members, of which Simon's company is one, and in that associate category we include manufacturers, wholesalers, distributors and buying groups, among others; in short, the suppliers to the retail side of the industry -- just a little preamble as to who we are.
Given the times and considering that our economy, from a provincial perspective, must be competitive vis-à-vis the other provinces, let alone internationally, we view the proposed changes contained in Bill 49 as bringing an affordable and effective balance to an act that may have become too heavily weighted to one side. Perhaps it had also become too costly and bureaucratic. It is possible, however, that as economic and social conditions evolve, further revisions to those contained in Bill 49, enforcement powers etc, may be required. For now, however, these reforms appear in our minds to represent moves towards a positive balance in the act.
I'll highlight and comment on a selected few key points.
First with respect to the amendments encouraging the workplace parties to become more self-reliant, we view this as a very positive move in that it empowers the workplace parties, and while there will on occasions be an unhappy party, we feel that this effectively places responsibility more in the hands of the workplace parties to negotiate mutually beneficial agreements and hopefully in the process develop stronger employee-employer relationships. What we don't see is an intrusive kind of government stance as aiding and abetting that particular situation.
On the point that the act will also be made easier to administer by giving enforcement staff access to employers' electronic records, this may be something to be uncertain about, especially access to electronic or what could be perceived as confidential or proprietary corporate records and information. However, having said this, in fairness, for those who are deliberately hiding information to avoid their obligations, this obviously could be viewed as a useful reform from the employee's perspective.
The same could be said about the handing over of collections to collection agencies, as employers would typically prefer not to be subjected to collection agencies. However, again in fairness, in today's cutback mode we feel that such a measure will help existing employment standards staff to operate more effectively and efficiently from the important investigation and enforcement perspective.
On the issue of reducing the limitation period for filing a claim from two years to within six months of the alleged violation, we feel this is a welcome change, as it forces the claimant to make a move in what could be called "current time" rather than two years later, for example, when everyone, including the claimant, conceivably has lost a clear view of the event in question and the associated issues. The shorter time frame should be supported, I believe, by employers and employees alike.
On the issue of increasing the limitation period for appeals to 45 days from the present 15, we again view this proposal as a welcome change since it really provides a more realistic time frame within which to consider all the information and evidence necessary to make a clear decision on whether or not to pursue recourse, pursue an appeal or whatever.
Further to that we suggest that this change theoretically should provide the increased flexibility to resolve problems. In the absence of revolution, after having spent an appropriate amount of time and effort, there is now the specific time frame within which remedial action must be taken. We think parameters of that nature are beneficial to all concerned.
On the issue of prohibiting employees from pursuing a complaint through both the ministry and the courts, this change is probably significant in so far as it simply enhances the overall efficiency of the process.
On the issue of clarifying employees' rights regarding seniority and the entitlement to vacation pay and time under pregnancy and parental leave provisions, we view the move towards clarification as a welcome change and a welcome move in that it reduces opportunities for creative interpretation of the act. It also provides comfort to the employer in knowing more clearly what his or her position is within the subject context. Having been there, as an employer I would appreciate that kind of clarification.
After six months employees will still be able to pursue their claims through other avenues, such as the courts. In a sense I believe this proposal implies a pay-as-you-go approach if the claimant has not been responsible enough to file during an "active" period. Again, it's just logical and makes good sense.
On the issue of minimum and maximum amounts for claims, there was previously a cap. The fact that over the last few years we've had no minimum or maximum, that left the situation open and potentially too expensive, as some employers may have discovered, not to mention, on the other side of the coin, potentially punitive to employees.
In conclusion, we feel there are two questions that must be answered within the context of the proposed changes inherent in the Employment Standards Improvement Act:
First, do the proposed changes enhance employer-employee relations and in the process reduce employer exposure to costly violations?
Second, will the proposed changes maintain employment standards as opposed to slackening them, to the disadvantage of the good, the fair and the honest employer and, conversely, to the advantage of employers who are tempted to cut corners?
We suggest that if the answers to these questions are yes, then we support and applaud the spirit and intent of the subject initiative and would look forward to its very early implementation.
Thank you for having us, for your attention and for affording us the opportunity to appear before you today. We're open to any questions.
Mr Hoy: I am interested in your comments about the electronic transfer of information and registering and so on. Most groups have rather favoured this type of action, but I wonder if there would be one or two or so come forward and have some hesitancy about it. Do you care to elaborate on your nervousness about that?
Mr Johns: We received a response to our reticence on that score from the minister, who suggested there was nothing to be worried about and that this was really within the spirit and context of efficiency. Having said that, I think Simon had a strong feeling on that one, so perhaps I'll defer to Mr Dann.
Mr Simon Dann: It's simply a matter that some companies will have proprietary and a competitive information product, financial information, and once you access an electronic or a computer database it's really quite easy to move around, so there could easily be some concern, perhaps paranoia, about visitors going into inappropriate areas. That might be misplaced paranoia, but let's face it, it's really easy to move around inside a computer if you know your way around, and all of a sudden information comes up in the marketplace that you didn't want. With honest employers, there's no problem on that score. There could be some concern. Obviously, let's face it, people being what they are, there are some out there who will be hiding information, so for them that's not a welcome area. But there are some legitimate concerns.
Mr Hoy: I can understand that because there are good employers and businesses that simply don't want to have their information shared with their competitors, so it's just a natural event.
Mr Dann: That's not to say that the person coming in to do the investigation is going to look around, but in today's environment everybody is going to be paranoid about keeping their information secret.
Mr Christopherson: Thank you for your presentation. I found it interesting that you felt the move to six months from two years is something that would be, because it's beneficial to both employees and employers, supported by both. I would suggest to you that if that indeed were the case, one would expect that after three weeks of travelling around the province we would have at least one presentation from someone, whether it's unionized, non-unionized, legal workers, community activists, somebody who represents the interests of workers, somebody, one group, who would agree with you that that was a good move. That didn't happen. Why? How do you square that?
Mr Johns: I'm not sure what the answer to that question is. Certainly it's our feeling that if there is an issue that has developed in the workplace that is not resolvable, apparently, through the respective parties or the affected parties in the workplace, I would think that both of those parties would want to see an early resolution one way or the other, not only an early resolution but an effective and appropriate resolution. I think the longer you drag these things out, the more negative the atmosphere becomes between the affected parties.
As I mentioned in my brief, memories tend to wane a little bit as time goes on. I would just think that fundamentally that kind of situation would be the type of situation you'd want to put to bed as effectively and as efficiently as possible, as quickly as possible.
Mr Christopherson: The reality seems to be, from presentations we've had in every community -- every community we've had a presentation, and usually a number of them, that because 90% of all claims are filed after a worker leaves the place of employment, and because of anecdotal evidence, most employees in these situations working for a bad boss -- not the good members you've had, but the odd bad bosses who are there -- are afraid to make a claim. Many times they have to wait until they've secured another job, which is difficult in this market, particularly if they don't have the greatest skills. The two years allows them a chance to secure new employment and then they can file the claim and claim back at least two years of time that's lost. This will prevent that from happening and people will either have to put their job on the line or forgo the money they're owed.
Mr Johns: Point well taken again.
Mr O'Toole: Thank you very much to the Ontario lumber and building association. As in all industry, I gather today that technology and concern for workers' safety are paramount in the workplace.
Mr Johns: Certainly in our industry, workplace health and safety is critical. It's critical from an insurance perspective, it's critical from a WCB perspective, it's critical from an operational perspective. It's clearly a priority in our industry.
Mr O'Toole: I am pleased to hear that. Do you believe this report is going to facilitate a more timely response to those bad employer situations -- the six months, for example? It's going to force those things to come in front of the employment officer earlier so that employees coming into the work setting, which may be a bad employer, don't accumulate a two-year diatribe of cases and complications. Do you see that as part of this?
Mr Johns: That's clearly our interpretation, and if I didn't make that clear, I apologize.
Mr O'Toole: I'm just trying to get more clearly that I understood it, not that you did.
Mr Johns: Really, I think one of the attractive features of Bill 49 is its commitment to expediting an early resolution of a process.
Mr O'Toole: You've probably seen this and you'll probably hear a lot about it from the union leadership in Ontario, which is going around about "bad boss" and "bad, bad, everything bad," and that this is wrong and it's draconian. Do you think this is good for Ontario's working climate or is it scaring away the small business person, this whole strategic kind of approach to negativism around that, as if the majority -- this suggests that the majority are bad bosses.
Mr Johns: If it suggests that then --
Mr O'Toole: Isn't that bad for the economy?
Mr Johns: I think that's offensive, but I think the question, with respect, is somewhat rhetorical. I don't know whether I'm answering the question, but I'd like to make a point, at any rate. One of the attractive features, we think, about this legislation is that it gives both the employer and the employee some credit. I think employees and employers have the ability to sort out problems with a view to resolving those things satisfactorily. I think sometimes legislation sells human beings -- employees, employers -- short on that score. But in terms of the document which you are referring to, I think your question is --
Mr O'Toole: I go to the Beaver Lumber store and the Millwork and all those places, and they're the real businesses in the community.
The Vice-Chair: Sorry to interrupt you, Mr O'Toole. Time has expired. I thank you very much for coming here today.
COMMUNITY AND LEGAL AID SERVICES PROGRAMME
The Vice-Chair: I would ask that a representative of the Community and Legal Aid Services Programme, Osgoode Hall, please come forward. Good afternoon, sir. For the sake of those present I would ask you please to introduce yourself.
Mr Barry Wadsworth: Good afternoon. My name is Barry Wadsworth. I am a division leader with the workers' rights division at the Community and Legal Aid Services Programme at Osgoode Hall Law School.
Mr O'Toole: You're standing in for Deborah?
Mr Wadsworth: I am. She was called away to court. Community and Legal Aid Services is a student-run poverty law clinic at Osgoode Hall Law School. It's funded by the Ontario legal aid plan, York University, and through private donations. The division in which I work, the workers' rights division, is staffed with volunteer students who advocate for clients in the areas of unemployment insurance, wrongful dismissal claims, some workers' compensation and employment standards claims.
The thrust of my presentation today is that there is nothing in Bill 49, An Act to improve the Employment Standards Act, which will do anything to assist my clients to redress their grievances against their employers when they breach the Employment Standards Act. In fact, it takes away several of those rights. The second point is that you already know that. You can't not know it. Bearing those two points in mind, I'd simply like to talk about what the changes will do and the effect they will have on some of the clients I have had and will have in the future.
First of all, the limitation period, the reduction from two years to six months: I have a client who had an employer -- we can talk about bad bosses and good bosses; I've had both. But the fact is, this is a person who had an employer who deducted $400 a month for Revenue Canada deductions. He never remitted it to Revenue Canada. Revenue Canada isn't going after that employer. She can go back, under this new legislation, only six months, which means she loses one and a half years for Revenue Canada deductions.
Can she go to court? She probably could. She would have to go to Small Claims Court if she came to us because we're only allowed to represent in Small Claims Court. If she went to General Division, she'd have to hire a lawyer. She cannot get legal aid because it's an employment matter. They don't give legal aid certificates. A lawyer would probably cost her the significant portion of what she would get in a General Division award. It's not worth her time. The Employment Standards Act is there to protect her rights against those people who would misuse the rights they have as employers. They violated the law, and because you're going to change the limitation periods, they're going to get away with it. That is not right.
The maximum claim: Currently there's no limit. The limit is going to be put at $10,000. I have a client whom employment standards awarded a $16,000 claim for wages and benefits that this person wasn't given by her employer. So what happens with a $10,000 cap? She could have taken it to General Division. It would have been a two- or three-year claim to try to get that money. What does she do in the meantime? There's unemployment insurance, but we'll get to that in a moment.
This person stole money from my client. He did it contrary to the legislation of this province. Because she can't get adequate legal representation, she's going to lose out on a significant portion of that. She can come to us and we can take it to Small Claims Court: $6,000. We can take it to employment standards; she gets $10,000 under the new legislation. That means he gets away with 6,000 of her dollars. That's not right.
As for a minimum amount, which it's suggested will go into the regulations, I have a client who was charged $98 to fix a machine that broke down while he was using it. It was a floor scrubber. I went to the Employment Standards Act, annotated version, to find what cases could be used to show that this was the wrong thing to do. The only case I could find was the same employer. He'd already had a decision made against him. He's done this sort of thing before. If you draw up and create a minimum, even of $100, this gentleman loses $98 to an employer who already knows that he's violating the act.
Avenues of redress: Currently you can go through the Employment Standards Act and you can do the wrongful dismissal claims. The problem? The first is the money. A lot of employers, believe it or not, actually put on their record of employment when they terminate an employee that it was for misconduct, whether or not there was misconduct, or they'll put down that they quit. Why? Because then they don't have to pay the statutory termination pay. The problem is that if it says "misconduct" on that record of employment and they try to go and get unemployment insurance, they don't get it. They don't get general welfare. They can get interim assistance, but that's the end of it. So what's he going to focus on? He's going to come to us and say, "I need money coming into my pocket because I have to feed my wife and children." So that's our focus.
Unfortunately, we have a client whose employer put "quit" on the record of employment. He doesn't speak English. They just handed him this paper and said, "Don't worry about it." He went home, took it to his son, who does read English, and he said, "It says on here you quit today." He didn't even know what the form was. He thought he was going back to work on Monday. He'd been there eight years. It took us from November until July to get his unemployment insurance. So we hit the limitation period, the six months, again. We're focusing on trying to get money into his pocket. If he'd filed a claim when he started, and we're focusing on his unemployment insurance, he'd be stuck because of that six-month limitation period and the 12-day period as well. He has to make a choice between employment standards or wrongful dismissal in that 12-day period.
As for the courts, obviously, as I stated, there's a limitation to the $6,000 in Small Claims Court that we're able to do. There's no legal aid. In the common law, you can go to the higher courts and get a higher award, but unfortunately it's a higher test. What do you sue them for? Do you sue them for breach of contract? How many of these small employers have contracts with their clients? So they talk about what the terms of the contract are. It's also a higher test. You go to court, you have to prove more than you do under the Employment Standards Act. Under the Employment Standards Act, all you have to do is show that the employer owed this money, and you get it. Under common law, it's a lot harder to get an award for a client; there are a lot more hoops that you have to go through. Essentially, there are also the Small Claims Court judges who, while they are very good, are far more into smaller commercial matters, and they're just not used to the sophistication that can be had through employment contracts.
Conclusion: There are the collection agencies, and there's the matter of getting a settlement as opposed to getting an order from an employment standards officer because it takes a little less time, so you settle for an amount that's less than what's required under the act. The collection agency will then be able to negotiate. Because you haven't got any money, there's a little more pressure on you, they can negotiate it down, and it doesn't come into review until 75% of what the settlement order was, which is already lower than what you would have got under the employment standards requirements.
Our position is that our clients shouldn't have to discount their rights to ensure the bottom line of a collection agency. That's what it comes down to. As I said, nothing in the act, as far as we can see, is going to assist our clients in redressing the grievances that they have against employers who have violated the act.
What I would ask is that you make changes based on a thought, and that is a thought of one of these people, any one of them, or go a little further: One of your daughters or your grandchildren is going to be in the workforce, and they're going to have their rights violated by an employer. It's bound to happen; out of the group that's here, it's bound to happen once. What do I tell them, or what does the person after me tell them, when they come and say, "Is there anything you can do about this?" and they had a six-month limitation period? I say, "Sorry, pal, you had a statutory right, but unfortunately you missed your chance because you were working, you knew that if you filed a grievance you'd probably get fired, and so you've lost that chance."
As in a paper I put in previously that I believe had been distributed, the end of it says, it's a paraphrase of Hippocrates, "If you can do no good, at least do no harm."
The Vice-Chair: Thank you for your presentation. We have about a minute and a half per caucus, starting with Mr Christopherson.
Mr Christopherson: Thank you for your presentation; it was quite interesting. I would agree with you. If we could get them to at least do the last thing you suggested, which is not to do any harm, I could live with that; it's the ongoing attack and damage they're doing to the most vulnerable that's so hard to stomach.
Earlier today, we heard the Canadian Federation of Independent Business make a presentation. In that presentation -- and I'd like your reaction to this -- they said, "Small business people complain to us that labour legislation is one-sided and that employees enjoy many rights but few responsibilities." What's your reaction to that submission?
Mr Wadsworth: In significant instances, it is one-sided, and unfortunately it's skewed the other way. A lot of people know their rights or don't know their rights, but they can't ask for them to be enforced, because they need to continue to be employed. Even if they're going to lose their job, they need some sort of letter that's going to tell the next employer, "Take this person." It's skewed all right, but it's skewed the wrong way.
Mr Christopherson: The government called Bill 49 "An Act to improve the Employment Standards Act." How do you feel about that?
Mr Wadsworth: I need to know who the improvement is for.
Mr Christopherson: What's your best assumption, based on your legal background?
Mr Wadsworth: My best assumption is that it's to improve the bottom line of the deficit of a government that's focusing on the wrong things. It should be focusing on the people and not the money.
Mr Christopherson: I'm sure I'm running out of time, but I would say to you that you should know that Bill 49 will allow the government to lay off 45 employment standards officers by virtue of the rights they take away that no longer need to be enforced and the downloading on to unions and into the courts, as opposed to upholding their moral and legal responsibility under the law. I want to thank you for your contribution to the fight to try to stop this.
Mr Wadsworth: If you could give them my card.
The Vice-Chair: Is there somebody from the government side?
Mr O'Toole: Yes. That was a very interesting presentation. I just take small exception with your opening comments. We don't have a written submission so I'm kind of going on memory here.
The Vice-Chair: In fairness, I think it was handed out in last week's package in advance of today's hearings. It's part of the reading from there.
Mr O'Toole: We got a fair amount of paper and I didn't get a chance to read this.
That we should have known, should be aware, that we were taking away rights, that's rather a presumptive statement. In my firm belief, I think I could make a substantive argument with respect to the six months. Let me put to you this question. It's an old axiom; you used a couple of them today. Doing something wrong for a long period of time gives it the appearance of being right. Have you ever heard it? It's the Hobbesian axiom of equality. Think about it: Doing something wrong for a long period of time gives it the appearance of being right.
I would put to you that the current act is -- think about it: doing something wrong. This current act, we're collecting 23 cents on the dollar. Is that right? I'm asking you simply, is that sufficient?
Mr Wadsworth: An individual's perception of what is right or wrong doesn't necessarily mean that it is right or wrong. You have currently an employee who can take two years to file a claim and you must recognize the fact that they can be working during that period and not want to file a claim for endangering their own employment.
Mr O'Toole: That doesn't make it right, though.
Mr Wadsworth: But it is a two-year period that they have, right? That is a right. They have two years, and you're cutting it back to six. Now, isn't that taking away a right, whether it's right or wrong?
Mr O'Toole: It brings it to the surface earlier and the claim period is all likewise adjusted. If it's going to go on for two years, you'll spend twice as much in legal fees collecting half as much.
The Vice-Chair: We have exceeded the time here.
Mr Wadsworth: Then they shouldn't have done it in the first place.
Mr Hoy: It was an interesting line of questioning we just had.
Mr O'Toole: I have to be entertaining.
Mr Hoy: You agree that the limitation on six months for recovery of moneys lost is a reduction in rights.
Mr Wadsworth: It is.
Mr Hoy: Limiting the maximum to $10,000, notwithstanding the fact you may be able to go to court -- and you're suggesting that some won't be able to afford it -- is a reduction of rights.
Mr Wadsworth: It is.
Mr Hoy: If the government is to put into place a minimum claim, would that not be a reduction of rights?
Mr Wadsworth: It is.
The Vice-Chair: Thank you very much for coming forward today.
AMALGAMATED TRANSIT UNION CANADIAN COUNCIL
The Vice-Chair: I would ask that a representative from the Amalgamated Transit Union Canadian Council come forward, please. Good afternoon and welcome to our hearing process. For those present, I would ask you to please introduce yourselves.
Mr Tom Parkin: My name is Tom Parkin. This summation is made on behalf of the members of the Amalgamated Transit Union, who are the employees of many public and private operators across the province. Our members are regular middle-class working people, like the vast majority of Canadians. We have families, rent, mortgages, groceries to buy, young children to raise, parents to worry about who might be aging, friends we care for, we have ambitions for our neighbourhoods and we have concern for our country. Because of all these things, like everybody else, we cannot separate our particular interests as members of an organization from those concerns for our general society and our families and friends.
When we speak with concern about legislation such as this, it is not simply for ourselves, because in fact this legislation doesn't have a great deal of impact on us as people working right now, with some exceptions. But I don't want to dwell on those because I do want to dwell on the very harsh attack that you are taking on people. You're hurting people like perhaps your children, perhaps your friends, maybe your family members who are trying to build a life for themselves and will have that hurt by this legislation.
This legislation will lead to greater disrespect by employer for the law and a stronger feeling among some employers that employees can be abused and stolen from with impunity. This is because through this legislation, the Conservative Party is giving a green light to bosses who want to steal from their employees.
We are indirectly hurt because someone I work with today who may get laid off in the future may well find himself or herself trying to recuperate from injury looking for a job and finding very little opportunity, and then finding themselves on the margin of society. Those are the types of workers you are striking at. So you are striking at people we care about and we try to speak for.
This legislation is part of a power shift and an attempt -- maybe not an attempt, but certainly it causes a more polarized province.
Workers who are hurt by this legislation are at the margins of the labour force. They are the poorly educated, the young people trying to get a start, the immigrants searching to provide for their families, older workers trying to rebuild their lives after being discarded and downsized, and workers who have been injured. These are the people at the edge of our society: people who have no benefits, no pensions and no vacations other than those provided for in the Employment Standards Act. And now, through Bill 49, you're gutting the enforcement of this act.
These people most likely won't be making a presentation to this committee because the reason these people have no pensions and no vacations and no benefits is because they have no union and therefore they have no voice. If their boss rips them off on their hours or on their vacation, they don't have a steward, they don't have a local president to stand up for them, as do employees in our workplace, and they don't have a fund that can find them a lawyer or hire an investigator. All they have is an employment standards office and employment standards officers, and you're taking those away. Congratulations, Conservatives.
The members of the committee know well what the amendments are to this act. I'm not going to dwell on them, but I want to raise a few points.
Between April 1, 1994, and March 31, 1995, there were over 14,000 employment standards claims. These claims covered everything of the usual variety. Investigations in that period determined that $64 million had been illegally taken from Ontario's employees, and we know that $64 million is a lot of missing cash and so we do know that there's a very, very big problem out there with employees being shorted. Anyone familiar with the workload in an employment standards office will know very well that the file backlog is terrible -- three months before you would get a callback.
In this situation, obviously we're looking for a response. Many would suggest that employers who break the law, particularly the repeat offenders, should not simply be told to pay back their employees but should be punished with fines, which would also serve as a deterrent to others.
As the situation stands today, lawbreaking can pay. If a crooked employer is caught, the worst that can happen is that he or she will be required to pay it back. But if not, the bad boss gets out ahead.
Another solution would be if the Conservative Party would actually make good on the promise of 750,000 jobs, because it's the desperation of people who fear joblessness that leads them to be easily taken in by those who want to take advantage of them in situations like this: people who are living at the margins of society. But instead what you've done is you've made it easier to deal with the backlog of claims not by creating jobs, not by enforcing it more toughly or putting fines on repeat lawbreakers; what you've done is you've just not allowed people to make claims. Thus, you've given a green light to certain employers to rip people off.
Today, if you were the victim of an employer who steals from you or otherwise breaks the Employment Standards Act, you can report it to the officer, just as you would report a house burglary to the police. And just as you would expect a police officer to investigate your house robbery, you would expect an employment standards officer to investigate if your boss stole from you on your paycheque. But now the Conservative Party has decided to exempt some lawbreakers. The Conservative Party believes that if your employee steals more than $10,000, or if your employer stole from you six months ago, the government shouldn't investigate.
Bill 49 also gives the Minister of Labour, to enact a regulation, this green light level -- the amount that an employer can taken from an employee at any time with really no impunity. The green light level is the amount under which a victim of a lawbreaker cannot make a claim. If it's set at 300 bucks, no one can make a claim of less than $300, since proceeding through the court, as I'm sure you have heard repeatedly, would cost far more than $300 and could take a long time. This is really not an avenue that makes any sense to a victim of lawbreakers. In effect, this is a green light to bad bosses, and it's shameful legislation.
Imagine if the Conservative Party told people that the police wouldn't investigate a theft of more than $10,000 or less than $300 or more than six months old.
Imagine if you came back in the spring and found your cottage had been ransacked but the police said they wouldn't do anything about it because it happened more than six months ago.
Imagine if you were stopped on the street and somebody stole $300 from you and the police said they wouldn't investigate because it was too little: "We have a lot of other crime to deal with."
Imagine if somebody stole your car and they said, "Well, it's worth too much money so we can't investigate that."
Nobody in their right mind would allow that kind of lawbreaking to go uninvestigated. Nobody would suggest to these people that they have to go to court, and that's why this is a green light to bad employers, to people who are employers but really they're thieves, or they're doing that.
Every student returning to school could get ripped off by $200 when they return to school, $300, whatever you're going to set this reg at. So unless you've got a brother, sister, father, mother who's a lawyer, you're kind of out of luck.
But let's be clear where the pressure for this is coming from; not just from the employer community, who are obviously rubbing their hands with glee, but it's from your own stupid tax cut. You're laying off 43, 46, 45 -- I've heard various numbers -- of the 150 claims officers. That was of course leaked in the business plan of the Ministry of Labour last -- I think August 18 was the date. But because of that, you can't keep these 46 people on, so now you're finding ways of stopping investigations from coming forward. What you've done is you've crucified the people on the margins of society so you can have a tax cut which benefits the richest the most. It doesn't square. It's unfair, shameful legislation.
If I were an MPP, I would be morally bound to vote against this. I know that you're only bound by the whip. I know that the whip is appointed by the Premier, and I know the Premier is very dedicated to his tax cut and getting the rules and regulations out of the face of employers. But this legislation, if it's allowed to go as it is, shows that this government is morally adrift. There is a problem here.
The labour movement and part of the political opposition are really the only voices for the people who are at the margins of society, the unorganized workers, who will suffer because of this legislation.
I urge opposition MPPs to do whatever you can to amend this legislation so as to eliminate the green light level, to punish repeat offenders, don't let them off, and to investigate all incidents of lawbreaking.
I appreciate the time and invite any questions.
The Vice-Chair: We're just up to the 10-minute mark. Given that there are two parties left in the room, I'll divide that evenly, which is two and a half minutes per party, starting with the government.
Mr Baird: Thank you very much for your presentation. We appreciate it. There's obviously a disagreement in philosophy with respect to the bill. Obviously our view is that the changes contained in Bill 49 will improve the administration and enforcement of the act, but I guess there's no point in debating that.
I did note, though, in your submission on page 4 something that I agree with completely: "Another solution would be for the Conservative Party...to deliver the 750,000 jobs your leader promised during last year's election." During the election, we promised to put in an economic plan that would see the economy create 725,000 new jobs. That would obviously do more for workers in terms of taking off the squeeze that employers often have in tough economic times.
I was pleased to read an article in the paper yesterday: "Ontario Jobless Rate Drops to 8.5%." We're number 1 in new jobs.
"Ontario once again is leading the nation in job creation. The province laid claim to 51,000 of Canada's 82,000 new jobs last month. Since August 1995, two months after the Tories regained power in the Legislature, Ontario has accounted for 150,000 of the nation's 215,000 new jobs." If you look at just 1996 alone, 102,000 jobs have been created in Ontario.
Even the official opposition is smiling: "`This is very solid job growth,' the Liberal finance critic, Gerry Phillips, said."
If you take a five-year economic plan, at the current rate we're set not just to match the promises made in the election campaign but even to exceed them at 750,000 new jobs. Ontario is now the economic engine of Canada. We're finally a magnet for job creation, investment and opportunity. By getting rid of regulation, by cutting taxes, by bringing less government in it's creating a climate for job creation. I guess I completely agree with you that if that promise is delivered on, that'll do more for employment standards, that'll do more people. The best social program is a job.
I think that's good news for the Ontario economy and I think that's in agreement with your comment that obviously people are desperate for work and the fear of joblessness really has an effect on employment standards and workers being hesitant to come forward. The best policy for that would be a strong, buoyant Ontario economy. That's very much the economy we're trying to create.
Mr Parkin: Is there a question involved?
Mr Baird: As I mentioned at the outset, just a comment.
Mr Parkin: Okay. I'll make two responses to your comment. Firstly, if you can't see exactly the point that I'm making there, then I don't know what your problem is. It's as clear as day what's going on and what you guys are doing. If you guys can't figure it out, that someday one of your children or your family or your friends is going to be hurt by this legislation or some of the other cruel things that you're doing, then you're only deceiving yourselves.
Secondly, yes, jobs are being created. It's amazing what lower interest rates will do. Maybe if we had done that a while ago, as the labour movement has been suggesting for some time, we'd have more jobs today. Maybe if we had inflation of 2% instead of 1.3% or whatever, we'd have more jobs, but I don't hear you advocating that.
Mr Baird: You're the one who says another solution would be to try to create 750,000 jobs, like we promised during the election. The economy is creating those jobs. We're having more hope and opportunity for a better future in this province. I agree with your comment in your paper.
Mr Christopherson: What a load of garbage from the parliamentary assistant. The fact of the matter is, with the changes that you're making to WCB, with the changes that you're making to the Employment Standards Act, with the changes you've made in the Ontario Labour Relations Act, the changes that you're going to make in the Occupational Health and Safety Act, we have to ask ourselves, what kind of jobs are they creating?
There's a joke going around Ontario that has someone saying, "Yeah, I'm thankful the Tories are creating some jobs; I have three of them." The fact of the matter is that you're not providing a future for people.
I'd like to ask Mr Parkin a question. On page 2 he states, "This legislation is part of a shift from a society based on respect for the laws and the rights of others towards a more polarized place, where the power of those who are greedy is no longer held in check by the laws of our society."
Would you please expand on that and tie it in with the overall Tory agenda as you see it.
Mr Parkin: As I see it, it's to basically lower everything that holds us together. Employment standards: What do you need them for, right? It just makes people lazy and greedy, eh?
What you're doing is you're beginning a big class war. You haven't even really got to the middle-class folks, but you've picked on everyone who's sort of low down on the totem pole so far. It hasn't got too bad, but it bothers some people.
Mr Rollins: It doesn't bother you?
Mr Parkin: It does bother me, very much.
Mr Christopherson: I'd like to ask you another question.
The Vice-Chair: Excuse me, one person has the floor at a time and right now the discussion is between Mr Christopherson and the presenter.
Mr Christopherson: Thank you very much, Chair. You also spend a fair bit of time talking about the minimum threshold that the government is bringing in, and I think it was excellent the way you presented it in terms of if you'd lost your wallet with $300 and the rationale of why it wouldn't be investigated. The government of course is giving itself the right to regulate by cabinet order in council what level that would be, but it's told us, "Don't worry," because it's not going to implement anything right now. I'd like to know how much comfort that gives you.
Mr Parkin: None. Could I tell you a personal story? When I was about 19 or 20, I worked as a summer student. At the end of the summer, I went to my employer in mid-August, whenever, and I said: "I'm leaving, I'm going back to school. This is the date on which I'm leaving and I'd like to get my vacation pay on that pay cheque." And they said: "Vacation pay? You don't get vacation pay. You're a summer student." I said: "No, no, I get vacation pay. I'm very, very sure I get vacation pay. I know I get vacation pay." "No, no, you don't."
The day after I left that job I went down to 400 University Avenue and I made a claim and I got my vacation pay. It took me three months and it was 200 bucks that I worked for, that was mine. I had worked for it and now you would've taken it away from me. I think that's shameful. It's shameful.
The Vice-Chair: Excuse me. I'm sorry that time has expired. I appreciate your coming here today. Thank you very much.
EMPLOYMENT AND STAFFING SERVICES ASSOCIATION OF CANADA
The Vice-Chair: I would ask that a representative of the Employment and Staffing Services Association of Canada come forward, please. Welcome to our process this afternoon. I would ask you, for the good of all, to please introduce yourselves.
Mr David Stark: Good afternoon, members of the committee. My name is David Stark. I'm the public affairs manager of the Employment and Staffing Services Association of Canada. With me today is Karen Mugford, who is our president-elect. She is also a VP of ECCO Staffing Services, which is one of the largest staffing service firms in the world. Karen, I turn it to you.
Mrs Karen Mugford: We won't go over our brief with you entirely today. You're quite capable of reading what we submitted, but I did want to highlight some points for you.
The temporary service companies are engaged in the business of supplying temporary help services in virtually every type of business and public institution today, regardless of what you read in the Star a couple of weeks ago. The aggregate sum of payroll paid to temporary workers in Canada in 1995 was approximately $1 billion. Therefore, the Employment and Staffing Services Association, formerly known as the Federation of Temporary Help Services, believes that the industry must be viewed as a major Canadian employer.
Bill 49 does not in any way, in our opinion, diminish Ontario's current employment standards. It is a thoughtful first step in reforming the Employment Standards Act. We support Bill 49 completely and look forward to participating in stage 2 of the ESA reform.
ESSAC supports basic rights and protections for its workers, and it is our belief that the government does too. We do not believe that Bill 49 will in any way diminish current employment standards and the protection of its workers. It simply speeds up the process.
Bill 49's limitations for claims, recovery periods, proceedings, prosecutions and appeals are reasonable. It is difficult to investigate claims that are brought forward long after the alleged violations occurred. By stipulating that all claims must be brought to the ministry within six months of the alleged violation, Ontario will be in step with Alberta, BC, Manitoba, Newfoundland and Nova Scotia, all of which have six-month limitation periods.
By setting a $10,000 limit on claims pursued through the Ministry of Labour, the government will eliminate the disproportionate percentage of resources it requires to settle the minority of claims exceeding this amount. Claims over $10,000 can and should more appropriately be pursued through the courts. After all, claimants with claims over $10,000 are not likely the most vulnerable workers. It is the most vulnerable workers to whom the government's resources should be directed.
Currently, an employee can pursue a claim through the ministry and the courts simultaneously or consecutively. This is not an effective use of public resources at a time when the province must rein in its deficit. ESSAC supports the end of unnecessary duplication that Bill 49 would bring about by requiring an employee to choose to pursue his claim either in the court or through the Ministry of Labour.
Bill 49 proposes to empower employment standards officers to resolve a complaint upon the mutual agreement of the parties before the complaint investigation is completed. Presently, officers must investigate a complaint and find that wages were owing before they are able to work with parties involved to settle a complaint. Giving officers the authority to settle complaints at the outset will result, we feel, in greater flexibility and will avoid high costs and delays in adjudication.
Speaking to the collection of owed moneys, it is best left to specialists instead of the employment standards officers. Currently the ministry undertakes collection work, a task which requires considerable expertise and is very time-consuming. About two thirds of orders to pay are not being collected. We would expect a much higher success rate with the involvement of collection agencies. The ministry's resources should not, therefore, be spent on collection. They should be spent on the investigation and enforcement.
The uncertainty that employers and employees have experienced in pregnancy and parental leave rights that are due to ambiguities in the act's current wording will be remedied with Bill 49's proposal to clarify the provisions. Bill 49 proposes to confirm that time spent on pregnancy and/or parental leave will be included in calculating the length of employment or length of service. This is a positive step.
Registered mail as a means to notify parties is not the only means available nor is it the most efficient. Bill 49 proposes to permit the use of newer technologies. Use of electronic means will expedite the filing of complaints and the notification of parties. It is a welcome change that updates the act to reflect today's methods of communication. Giving authority to officers to review electronic records in relation to the alleged ESA violation is also necessary, which Bill 49 proposes to do.
In conclusion, ESSAC submits this brief as the trade association representing proud and responsible employers, and there are still some of us out there. As previously stated, we support Bill 49 in its entirety, as it is indeed an act to improve the province's current ESA, and we look forward to participating in stage 2 of the ESA reform.
The Vice-Chair: Thank you. We have just over nine minutes left, so let's work with about three minutes per caucus, starting with Mr Hoy, please.
Mr Hoy: Thank you very much. I apologize for missing the first part of your presentation. I did note that you've been here quite a bit of the afternoon and have heard many of the points that have been made, particularly around some that you have.
You state that you support Bill 49 in its entirety. We see in this bill that employees at a number of steps throughout the bill and in the course of making claims have to decide about recovery times, whether or not they would go to court, yes or no, depending on their situation, how they're represented. They have to make decisions on what to do about whether a claim's over $10,000. There seems to be an overbearing shift to where the employees must make a great number of decisions. Do you have any comment about that? That's my observation of the bill, that many of the steps are placed at the employee's feet and there seems to be very little for the employer as far as responsibility goes.
Mrs Mugford: We're involved in a situation on a personal level right now with one of our major clients. If this law had been implemented at the time, what we're going through now with an employee wouldn't have been possible because he would had to have made is claim. There was a claim that is not a true claim; it's the last-ditch effort on his part to be compensated for something that he caused himself. He explored all other avenues and because of the time frame that he had, eventually came back to filing a claim under the Employment Standards Act. It will not go through but it has been a time delay, certainly, and if this was in place, he wouldn't have been given that opportunity. It's causing grief to a lot of people at the moment. So from a personal point of view, that's how I feel. David may want to comment.
Mr Stark: One comment I'd like to make: We're hearing a lot in these hearings about the bad employer and all these anecdotes about bad employers. Let's keep in mind that most employers are good employers, and also I want to make the point that we're not hearing much about bad employees.
A member company of our organization provided a 15-week assignment to an employee who quit after the 14th week of her assignment. She forged a signature on her time sheet, suggesting that she worked the 15th week when in fact she hadn't. Two years later, she is now filing a complaint because that is her right under the act. And really, it's now a question of the credibility of this member organization and the credibility of the employee. Had she been required to file earlier and if she went through that, then I question whether we would be in a situation here where it's a test of credibilities because, after all, it's two years and it's hard to verify the facts. Whereas, if it had been filed earlier, then our member company could simply make a call to the client -- Canadian Tire, as the case was -- to ask in fact if that employee had worked there. I think the six-month period of time will speed up the process.
One other point I might make, and I know that some workers feel vulnerable and that's why they maybe need the two years to file a claim, if it is fear of reprisal, that their employer might dismiss them or terminate them, whatever, suspend them, there are laws in this province and an employer cannot terminate someone unless there is just cause and --
The Vice-Chair: Excuse me, I don't mean to interrupt, but we're a bit overdue right now and our two other parties still have questions, if you don't mind.
Mr Stark: No.
Mr Christopherson: Thank you for your presentation. I note that on page 3 you were very categorical in saying, "We do not believe that Bill 49 will in any way diminish current employment standards and protections for workers." Then on the next page, when you talk of minimum and maximum claim amounts, you only make the case for the maximum; you don't even mention the minimum.
Given that previous statement, I'd like to hear your response to the fact that right now, if an employee is owed $50, which is not an unusual amount of money for minimum-wage workers to be owed for overtime, vacation pay or some other entitlement that they have worked for, they can claim it. They can call the Ministry of Labour and they will help enforce their right and they will make sure that money is collected for them. They will do that to protect that right.
Under this legislation, Bill 49, that employee cannot, if the government puts the line at $100, $200, in the case I'm offering, even $75 -- I don't understand how you can make the claim that workers are not losing anything, and yet you've got a case where that $50 is gone because a worker can't hire a lawyer, he's not going to take the time off work. They're going to forfeit it. Basically, money they're owed from working has been stolen from them. I'd appreciate your thoughts.
Mr Stark: Under Bill 49, the government, while it has not set a minimum claim, it is my understanding that it is providing I guess the regulatory authority to make a minimum claim, and certainly, if they did make a minimum claim and say that it should be $75, we would oppose that. Any wages that are owed to an employee should be paid.
Mr Christopherson: I would find it surprising you could think that any government would put in place the regulatory powers and then not plan to use them. At some point, they're going to bring in a minimum and people are going to lose something.
I'd like to extend the argument to another point: the limitation process that you spoke of. I notice you mentioned Alberta, BC, Manitoba as being other jurisdictions that have the six months. But the fact is that there will be five jurisdictions left over that are higher after Bill 49's in place. I think that makes the case that this is a race to the bottom. This government looks around and says, "Who has the lowest standards anywhere that we can compare ourselves to," and then races over to that. The fact is, 90% of all claims are made after people leave employment because they are worried about recrimination, and the fact is, they can't get their job back if they're fired through the current Employment Standards Act and this won't change that. Again, how can you support the limitation periods as contained in Bill 49 and still say there are no rights being taken away?
Mr Stark: Simply because I honestly believe that there are protections in the act for employees and that what the government's doing is not diminishing them. They have six months to file a claim. That's a reasonable period of time. Other governments in the country have obviously agreed with that line, including the BC government, which is headed by an NDP government.
Mr Christopherson: Not the point. The point is that if another jurisdiction makes it lower again, is it okay for this government to race to that bottom too? Is that the game we're into, sir?
Mr Stark: I don't think that's the game we're into. We're into the game of --
The Vice-Chair: If we could proceed, please. Again, time has expired.
Mr Tascona: Perhaps we can use our time that Mr Christopherson decided to use.
The Vice-Chair: We'll be using government time at this stage, a three-minute allocation.
Mr Tascona: Thank you for your presentation. I take it that a major asset for your employer groups is that you have satisfied and good workers, since the average duration of their work period is about three weeks. Is that correct?
Mr Stark: Yes.
Mr Tascona: It also would appear that you're very active in terms of educating your employer groups about the Employment Standards Act. What has your groups' experience been with the employment standards?
Mrs Mugford: We've certainly had some areas of frustration which is why we're extremely glad right now that it is being reviewed. Sometimes we're in a contrary position between the Human Rights Act and what they're telling us to do and what employment standards are telling us to do. But we can get into that at the next session. We're very involved with often interpreting the act, especially for our smaller companies that may not have a human relations director on board.
Mr Tascona: With respect to the changes in enforcement and compliance which are designed to protect workers, are you satisfied with the changes that have been made under Bill 49?
Mrs Mugford: I've been in this business 12 years. The only experience I've had personally in this is because it was anybody who had a justified complaint and was an honest employee could proceed with it. The ones who didn't were because there was some question as to the authenticity of what they were trying to report.
The Vice-Chair: There's one minute and 20 seconds left, if anybody chooses to ask. Seeing no questions, thank you very much for coming today.
UNEMPLOYED WORKERS COUNCIL
The Vice-Chair: I would ask that a representative from the Unemployed Workers Council come forward, please. Good afternoon.
Mr John Maclennan: Good afternoon. Just give us a second to get ourselves set up here. As you can see, we've brought a few friends.
The Vice-Chair: No problem. For the sake of those in attendance, I would ask you to please introduce yourselves and proceed with your presentation.
Mr Maclennan: My name is John Maclennan. I'm the coordinator of the Unemployed Workers Council. We've just come from a founding conference of the Unemployed Workers Council. With me are Teresa Dow, Valerie Packota, Beatrice O'Byrne and Terry Kelly. I'm going to ask Valerie to read a resolution that we have adopted.
Ms Valerie Packota: "Resolution Concerning Bill 49:
"Whereas Bill 49, the Employment Standards Improvement Act, introduced by the provincial Tory government, will make it more difficult for Ontario workers to get their minimum employment rights enforced by making it more difficult for workers to be able to make claims for moneys owed to them by bad bosses;
"Whereas the Tories have also declared that Bill 49 is the first step to eliminate basic minimum employment rights for both union and non-union workers in the areas of minimum wages, hours of work, statutory holiday pay and overtime;
"Whereas the first job of all governments should be directed towards full employment policies and strategies to assist the more than one half million unemployed in Ontario get decent-paying jobs;
"Be it resolved that the Unemployed Workers Council calls on the Ontario government to:
"Drop Bill 49 and to stop all plans to deregulate employment law in Ontario;
"Improve employment standards laws to improve the conditions of Ontario workers by raising the minimum wage immediately to $10 per hour, provide more paid protection for sick leave, establish just-cause legislation to protect workers from indiscriminate firings by bad bosses and establish equal pay rights for part-time workers;
"Provide decent-paid work or income now for Ontario's unemployed."
Mr Terry Kelly: As you can tell by our resolution, we've obviously just organized ourselves for the first time here in Metro Toronto. One of the reasons we organized ourselves was in the past we've listened to politicians and governments, including this government, the Harris government, the Tories here, the federal government, and you have all said you spoke for the unemployed and you have a solution: You're going to create jobs. You were going to create 725,000 jobs. After a couple of years it's obvious you have no intention of doing that.
This bill has got nothing to do with job creation. All it's going to do is lower the living standards of working people. It's going to make a miserable existence for hundreds of thousands of Ontario workers who are unemployed. It's going to make their situation even worse because workers who are working without any kind of bargaining unit protection are going to be in an even worse situation. To try and tell us that employers today are going to be negotiating fairly, whether it be hours of work or vacations, with employees is absolutely absurd. It's a very sour joke.
What is needed here and what we're demanding is not a program or policy of austerity, as this government has been putting forward, but is one of full employment. The only way of attaining 725,000 jobs over the life of this Tory government would be if you instituted such a policy. You haven't done it till then, and from now on, from this day forward we're going to hound you.
We're going to do another thing. We're going to do exactly what we did with your federal partners, the Tories under Mulroney. In the last election we put them out of existence. There isn't one elected here. Come another couple of years when you go to the electorate, the voters in this province are going to follow you around and you'll follow the way of the dodo bird, into extinction.
Mr Maclennan: I just want to make a final comment. I guess you can understand that maybe we have a few emotional upsets about the way the situation is. This is the first opportunity we've had to speak to a government committee. We are really concerned about the situation. The laws were bad enough as it was without the changes that are being proposed, because they weren't enforced and they needed to be improved. The situation, if you go through with these changes, will make it worse.
We want to take this opportunity, as an organization, to put you on record that we'll be back, that we want jobs and that we're not prepared to wait. We want jobs now and we demand that of all governments, the provincial government, the federal government and the municipal governments, and most of all we demand it of the Tories. Now that you've been in office for 15 months it's time enough. We don't want jobs that are minimum wage; we don't want jobs that are McDonald jobs; we don't want people forced on welfare; we want jobs that are good so that we can keep our families above the poverty line. That's where we're at.
I'd like to thank you for this opportunity to speak here today.
The Vice-Chair: Excuse me. Please put down the banner.
The Vice-Chair: If we could have some order, please, we could finish our presentation.
Mr Maclennan: Could we get the banner back, please? I think we've made our point.
The Vice-Chair: That won't happen, sir.
Mr Maclennan: What do you mean, "trespass"? This is public property. This belongs to the people of Ontario. Hold on. I'm making a presentation here. What's going on here?
The Vice-Chair: For those people who would like to continue, the place to address the panel is right where you were. I ask you if you would like to address the question-and-answer period. Would you like to finish the time remaining within your period?
The Vice-Chair: I ask those who are making the presentation if they would like to finish the time allocation for the presentation today.
Mr Maclennan: I would like the assurance that we'll get our banner back. You have to understand that we are people who are unemployed, looking for work. Some of us have been out of work for three years. I don't want to have another incident regarding the OPP. I think they have enough black things as it is against their name.
If the Chair would just make sure that we get our banner back right now. He says he is not going to give us it back. He's confiscating it.
The Vice-Chair: Sir, that is not with in my jurisdiction to do. If you would like --
Mr Maclennan: Could I have a recommendation from you that we get our banner back?
The Vice-Chair: If you would mind sitting down for just a moment, we can deal with how we can deal with the banner. The protocol of hearings follows the same protocol as that of the House. Within the House, banners are not acceptable. When the banner went up I asked for the banner to please come down. Nobody either was able to hear me or did drop the banner. As a result of that, it is normal procedure for what just happened, as it is the same procedure in the House. You will have to deal with that with the security people, who just removed the banner, once you leave this hearing process.
I stopped the time while I was explaining this position. I would be more than happy to allow us to finish the presentation time if you want to do so, which would allow us just over five minutes to share with the three parties in terms of the question-and-answer period. I would be very pleased to entertain that possibility, if that's what you want. If you're not interested in answering questions, then you may either expire the clock by continuing to do presentation or --
Mr Maclennan: Could I just ask Beatrice to say a few words.
Mrs Beatrice O'Byrne: I just want to make it clear that you need to know that we know the agenda of this government. It's not the agenda of the people. We want a democracy that is of the people from the bottom up. This government is being ruled by a corporate agenda and we are not going to accept that. We're being sold a lie and we're going to make people aware of that lie. You were put in position to work for the people, not to act on your own agenda. I think that is an important issue you need to hear here today.
The Vice-Chair: Okay. We still have just under five minutes. If you'd like to proceed with the question-and-answer period, the time will be evenly split between the parties, or if you would like to call that the conclusion of your presentation.
Mr Maclennan: I guess we'll go to questions.
The Vice-Chair: Okay. So hearing, we will allocate a minute and a half, and I ask you to respect that time parameter.
Mr Christopherson: The first thing is, could I ask for unanimous consent that we pass a motion that says we'll ask the security people to make sure the banner is returned? Let's not make a big deal out of this.
The Vice-Chair: I guess it's not something done by motion. If you would like me to ask the panel if consideration will be given that way and if the panel --
Mr Christopherson: All I want is unanimous consent.
Mr Peter Kormos (Welland-Thorold): Agreed.
The Vice-Chair: Please, let me finish my sentence. If the panel agrees unanimously, I will make a request of the security people to return it. Everybody agreed? May I see a show of hands, please? Okay, I'll make that request.
Mr Christopherson: First of all I want to thank all the people who are here, because you're telling this government exactly what we've been trying to tell them in the House, that you cannot continue to attack the most vulnerable people in the province and expect people to lie back and allow themselves to be run over like that.
I want to acknowledge the presence of my colleague Peter Kormos who, I understand, was at your conference earlier today and participated. You know you can always count on people like Peter Kormos to be there for you in that fight.
Also, I want to get on the Hansard record that apparently Bobby Jackson is here. In 1935 Bobby Jackson was part of the original trek to Ottawa. Stand up, Bobby.
The Vice-Chair: Thank you very much --
The Vice-Chair: Excuse me, sir. If you would like to make presentation to the committee, you can do so by applying through the clerk's office to be on the agenda.
The Vice-Chair: Mr Baird, you have one and a half minutes.
Mr Baird: I would just indicate, more as a comment than a question, that we as a government certainly share your strong concern, though not in the personal way that you each would have, that job creation has got to be a top priority. It has been the focus of our activities and initiatives.
One of your presenters mentioned the number, 725,000 new jobs, which is what this government promised during the election campaign. So far the Ontario economy --
Mr Kormos: John, please.
The Vice-Chair: Excuse me. Would you please give the same respect --
Mr Baird: I pass.
The Vice-Chair: Thank you. Mr Hoy.
Mr Kormos: The lie meter was going there.
Mr Hoy: Good afternoon. I appreciate your presentation. I have people coming to my constituency office who are also unemployed. I met a fellow not very long ago who hasn't had a job in four years. This is not only restricted to adults. The student population is very concerned about jobs. I have two in my family, but one was not successful in getting a summer job. They're both in university and they're very curious as to whether they will get employment when they've finished their education. There are no guarantees even at that level. I appreciate your concerns and having you here today.
The Vice-Chair: I would like to report about the return of the banner. The decision by the security people has been that they will pass it over to you upon leaving. Thank you very much for your presentation.
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79
The Vice-Chair: Would the representative from CUPE, Local 79, please come forward.
I ask those who would like to stay to please be seated. There are others who are also trying to make a presentation here. Are you okay for a few minutes?
Ms Anne Dubas: I'm okay for a few minutes.
I don't have that much energy.
The Vice-Chair: Welcome to our hearing process. I would appreciate very much if those in the room would introduce themselves.
Ms Dubas: I will introduce them for you, if you don't mind, Madam Chair. I would like to thank both you and the members of the committee for the opportunity to appear before you. Muriel Collins is a long-standing trade unionist, primarily with our particular local, CUPE Local 79. Margaret Watson is one of our researchers with Local 79.
We did get misguided into room 151 for a few minutes and got an excellent lesson on Rousseau, not too far off where we're all hunting for. Everybody has their own element of work.
I'm Anne Dubas. I'm the president of Local 79. Local 79, at this particular time, represents a little over 9,000 members in the city of Toronto, Metropolitan Toronto and Riverdale Hospital. When the municipal government starting downsizing four years ago, we had over 10,500 members, so we are fully aware of what happens in the real world. In fact, you may have been aware that we were the ones that were going to shut down Metropolitan Toronto up until a few days ago, because of course, as you know, you have water up here and we supply the water. You have toilets, to put it quite bluntly, and we take care of that. We run the Gardiner, the Don Valley, the stoplights, the traffic lights. You name it in Metropolitan Toronto, in the city of Toronto, and we are it.
We have been a union for more than 54 years and we have taken the role of our responsibility of representing our members very strongly. In that 50-year history -- 54 really; 1942 is when we got our charter -- we have had one strike of eight hours. We take very strongly and with great pride the work we provide for the community. When this particular government came in, we were devastated, and I'll be quite up front about that. Our members, yes, they voted for you, and many of them worked hard against this particular government. What is happening, and we're seeing it not just in the homes for the aged where we have workers, or in the 55 day care centres where we provide work, or those areas that I've just mentioned, whether it's communicable diseases, public health, environmental health or the regular clerical work -- planning departments -- we know what is going on and we see the effects of these proposed changes to the Employment Standards Act as really bad. We see what will happen in the community to those taxpayers to whom we provide services.
I would like to point out that I am going to expound only slightly on the letter we wrote on July 31, 1996, which the clerk has handed out. I will leave it for you for your records. As I mentioned, we won't have a full 15 minutes.
As you know, we find bargaining very difficult. With the kind of clout I've just described, the proposed legislation and the original would even devastate a union as powerful as us, so that those people out there who don't even have the right of having a union or are unable to get union representation would be devastated even more. These changes to the Employment Standards Act -- An Act to improve the Employment Standards Act -- we find very difficult to believe.
Recently, as you know, Anne Golden presented a whole report on restructuring the GTA which would eliminate metropolitan government. When we read the report we also looked upon what the future is, and one of the strengths of just the Metro area was the good working conditions, the good workforce, the ability of the workforce to meet the needs of the present and move into the future. Your proposed changes would destroy that. If this government is going to attract business -- primarily, we hope, to the Metro area, because that of course ensures work for our members -- if we're going to attract people -- you're talking to Germany these days. They work very closely with their unions. They don't bash them. They don't try and destroy the working conditions that exist in Europe. They try and improve them.
What is happening with this? If you look at it, what the current Employment Standards Act provides is a minimum in labour standards. It's a legal floor for workers' rights in a wide range of vital workplace issues. They discuss everything from overtime pay to statutory holidays, minimum wages, meal breaks, pregnancy and parental leaves, entitlements to termination and severance provisions. That is what will be the minimum and should remain the minimum, with improvements through this government, not destruction. It is through those improvements that you are going to have a better, dedicated workforce. Without that, you're not going to attract the industry and the business to Ontario, and hopefully primarily to Metro.
The proposed changes to subsection 4(2) of the act would eliminate this floor by allowing employers and unions to negotiate issues such as hours of work, overtime pay and public holidays as long as the package as a whole provides rights greater than those found in the act. What I tried to show at the beginning of my presentation was that even powerful unions would have difficulties with the changes you're doing. The Minister of Labour introduced these changes as part of the call for increased flexibility and self-reliance in the workplace, but we believe they can be more aptly referred to as, "Let's make a deal." What happens to those people out there who can't make a deal? There goes your dedicated workforce.
Minimum benefits that have been taken for granted by employees and unions and society at large will be thrown into bargaining. This is not self-reliance. These are changes that would give employers more bargaining power to eliminate the right of employees to the very basic protections. We don't want to be Alabama. Alabama does not provide the ideal working conditions that this government professes to believe they should have. We know that the minister announced that she will withdraw this section of Bill 49, but she's promised to reintroduce it. She has not given up on it. She's going to reintroduce it in the upcoming comprehensive review of employment standards. It's got to be killed now and forever. You've got to have the minimums upon which you can build.
There are other proposals in the current legislation that would be a serious setback for workers' rights, and that's what the rest of our presentation is all about. The legislation proposes a reduction in the time allowed to file an employment standards claim from the current two years to six months. This is a regressive move for several reasons. Many workers fear that they will be fired if they complain to the ministry. They must often wait until they've found a new job before filing an employment standards claim. The six-month limit will force workers to choose between enforcing their rights or keeping their job. You heard the presentation before us. People want jobs. They shouldn't be forced to make those kinds of decisions.
Other workers, the most vulnerable, may not be aware of their rights and what they're entitled to do. The six-month limit would give unscrupulous employers the very loophole they need to limit their own liabilities and profit on the back of the poor, the working-class poor you profess to want to represent. The working-class poor don't understand legislation. Our members in Local 79 work with these people in the community -- as public health nurses, as welfare visitors, in the day care centres where you deal with the working-class poor.
The next issue I want to raise is that the legislation proposes a minimum amount for employment standards claims, to be set by regulation, and a maximum limit of $10,000 on recovering money that employees are owed. You're letting employers off the hook. Even the most poorly paid workers have had claims larger than the $10,000, but with these amendments they would have to choose between filing a claim for less than what they are owed or a lengthy process of going to court which they can't afford, especially since there is no legal aid for employment law. What are these guys going to do? Are they going to sit on your doorsteps as you try and protect them from the very legislation you implemented? Silly.
On the other hand, establishing a minimum amount would mean that employers are free to violate the act if the amount of money at stake is sufficiently small. This can only lead to an increasing disrespect for the act's minimum standards and guarantees. Watch what you do. If you really believe in it, then don't screw it up. Meanwhile, leave it out. You have a good system here now that was developed over the years by your predecessors -- not that it doesn't need improvement.
The amendments would also deny unionized workers the right to make a complaint involving employment standards through the ministry and its employment standards officers. Instead, the union would have to file a grievance. We already have enough difficulties between employers and employees. Again, the economic and business climate -- you wish to see employers and employees working together, not turfing it out on a daily basis. This shifts the responsibility and the cost for enforcing legislated standards away from the government; you're offloading again. Such responsibility really belongs with the government. It is you people who have to provide the minimums across society.
One minor note: I have to say there is something positive in your package -- it is our role in a union to always dig as deep as we can to find something positive -- and that is the proposed change in the pregnancy and parental leave provisions. I hope that just because we've raised the issue you're not going to drop it. This will clarify a very troublesome ambiguity in the act, making it clear that the length of service and entitlements related to seniority will accrue while persons, particularly females, are on pregnancy or parental leave. They shouldn't be penalized for that.
We believe that Bill 49 could set back the rights of Ontario working people by decades because it will alter the fundamental principle that there is an absolute set of legally enforceable standards to which all employers must and will be held. It is that equality you are taking away. Non-unionized workers in particular could be subject to extreme pressure as employers begin to realize the kind of power you would be handing to them. The gap between unionized and non-unionized workers' ability to enforce their rights will just grow and grow. But the strain on the human and financial resources of unions like our own -- and by the way, with 9,000 members, I am the only paid person in the union. The rest of my executive are volunteers; the other 25 volunteer. The 168 stewards are volunteers. The clerical people are paid. We're not talking about this big monstrous thing that we have.
I'm concluding. It is an expensive process, the grievance and arbitration procedure, and so is collective bargaining. If you look, we have been in collective bargaining every single day since the first Monday in June. That's how long it took to negotiate with the city of Toronto and Metropolitan Toronto. It turns over to us your responsibility for enforcing standards and will no doubt spill over into lengthy, bitter labour disputes across the province. If we can't, then what about the smaller unions, your smaller communities, as they take up their fight with your local councils and yourselves as you go back to your own turf?
Unions and working people never asked for what this government is calling "self-reliance." Exactly the opposite. We rely on the Employment Standards Act and government enforcement to make the principle of minimum standards a reality. We urge you, this committee, to reject completely the direction that is being set in Bill 49 and to recommend amendments to the Employment Standards Act that will be actual improvements to the working people's rights here in this province.
The Vice-Chair: If I might interject, the time is now 14 minutes and 54 seconds, which does not leave any time for a question-and-answer period. However, we thank you for coming forward today and making your presentation.
ONTARIO LIQUOR BOARDS EMPLOYEES' UNION
The Vice-Chair: I would ask that a representative of the Ontario Liquor Boards Employees' Union come forward, please. Good afternoon. Welcome to our hearing process. I would ask for you to please introduce yourself for the good of all present.
Ms Julia Noble: Sure. My name is Julia Noble. I'm with the Liquor Boards Employees' Union and I'd like to thank you for the opportunity to address you in person today. I appear on behalf of 5,000 of our members. Our members are crown employees and also employees of small private sector employers.
We're deeply concerned by one aspect in particular of Bill 49. I'm just going to talk about one thing in particular today to you, and that is the provision that will not allow an employee to whom a collective agreement applies to file an employment standards complaint. As you know, section 20 of the bill takes away a person's right to file an employment standards complaint and it charges the person's union with enforcing the Employment Standards Act instead.
We're opposed to this change in the act for two main reasons. The first main reason is that this change would be totally unworkable for our union. The staffing complement at our union is also small, as the last presenter was saying. Her staffing complement is small; so is ours. Ours consists of five full-time staff members and five support staff. Each staff member is currently completely occupied with his or her job representing our members. All of us clock hours of unpaid overtime as it is. No existing staff member at our union is able to take on a new caseload in a new area such as employment standards.
Also, our union staff does not have the training and we don't have the experience required in the area of the law and jurisprudence relating to employment standards inquiries and appeals. Employees at the employment standards branch have that knowledge and experience. That's what they do. Furthermore, employment standards cases should be decided by employment standards adjudicators who have expertise, not private labour relations arbitrators under the grievance procedure, as Bill 49 proposes.
Unions are non-profit organizations. Our union has a full staffing complement, taking its resources into consideration. We are not in a position to pay private arbitrators to resolve disputes under the Employment Standards Act or to hire another staff member to take over the work of employment standards enforcement.
That is a firsthand point of view from the perspective of a real union that you would really affect by changing this act. The work that we're talking about has always been done by the employment standards branch of the Ontario government, and it should continue to do so.
I've read Bill 49, and nowhere in that bill is the issue of resources addressed. My union is not in favour of contracting out, but I think the irony of this bill is that it doesn't even propose contracting out the enforcement of the Employment Standards Act because contracting out is something you actually have to pay for. There's just no mention of resources or how this is going to be done in the bill. The bill sidesteps the issue of resources altogether.
For these reasons, and because our union does not have the resources to take over this type of enforcement, this section of the bill is unworkable. I submit to you that the government has the resources to enforce the Employment Standards Act. It is the government's job to do it and the government has to do it.
The second main reason that our union is opposed to section 20 in this bill is that it is totally unfair for our members. Our members are taxpayers in Ontario. The government of the day is their provincial government. It is you, as the provincial government, who are charged with enforcing the laws of the province on behalf of the citizens of Ontario. That means all the citizens, not just a few citizens, not just the people who don't happen to be unionized at one particular time. If this proposal becomes law, the government is basically saying to 5,000 people who are our members and other people in unionized environments as well, "When it comes to employment standards, we are not your government."
I submit to you with all due respect that this is irresponsible. What could be more fundamental to the role of a government than to uphold the laws of the land? Bill 49 proposes that the government will back away from this fundamental responsibility to uphold the law as it is enshrined in the Employment Standards Act of Ontario. This aspect of the bill quite frankly gives the appearance that this government does not care about law enforcement in this province.
In summary of all my points, we are opposed to this aspect of Bill 49 because it is unworkable for unions; it is unfair to our members, who are Ontario taxpayers; and it gives the appearance that the provincial government does not care about enforcing the law in Ontario. We urge you to amend the bill by removing section 20.
I'm sure that you've already had several hearing days and you've probably heard views similar to mine expressed before you, especially from the labour movement. I'm willing to certainly entertain any questions that you have about this in particular. But in the event that you don't have any questions, I would like you to answer my questions. I have two questions.
First of all, how is a union to find the extra resources necessary to take over the task of enforcement of the Employment Standards Act of Ontario? Secondly, how can the citizens of Ontario be reassured that the government cares about law enforcement when you've specifically indicated that you're unwilling to enforce this law against unionized employers? I'd be really happy to hear from people who support this bill on those two points.
The Vice-Chair: To put things in perspective, we now have about seven minutes left. The procedure normally is to allow the three parties to divide that time equally and to ask questions. I would think that if we do that and there is time remaining at the end, perhaps it might be then appropriate to answer the questions. If not, we could, I'm sure, find a way to ensure that the answers are forthcoming to you. I will, however, ask for input from committee members as to whether or not and how we would like to proceed, and I will stop the time while we're doing that. Is it the wish of those present to allow the answers to the two questions now and then divide the remaining time evenly?
Mr Christopherson: On behalf of my party, if the presenter would prefer to have that kind of dialogue with the government and the government is prepared to stay within the framework of those two questions, then I would certainly be willing to give up our time to let that happen.
The Vice-Chair: Do you agree, Mr Hoy?
Mr Hoy: Yes.
The Vice-Chair: Okay, we have six and a half minutes left and we'll proceed to answer those questions.
Mr Baird: Thank you very much for your presentation and questions. Your first question was with respect to how a trade union would find the necessary resources in order to accomplish the requirements under this bill. The vast majority of complaints from unionized environments with respect to the Employment Standards Act are already administered by the act. For example, how many Employment Standards Act complaints would be taken by your union through the employment standards process? Would you have any numbers on that?
Ms Noble: We tend to not get involved in that at his point.
Mr Baird: So if an employee were to come to you and say, "I'm supposed to make $18 an hour and my boss is only paying me $4 an hour," you would say, "I'm sorry, I can't help you," and send them to the government?
Ms Noble: This would pertain particularly to smaller, private sector workplaces. An employee who had a valid complaint under the Employment Standards Act about something that was not also covered in the collective agreement would go on their own to the employment standards branch, file a complaint and it would be handled that way.
Mr Baird: As their agent, your union would not in the normal course of activities represent them?
Ms Noble: As I would assume you're aware, a union enforces a collective agreement that it negotiates. It doesn't enforce the Human Rights Code. It doesn't enforce the Criminal Code of Canada. It doesn't enforce the Employment Standards Act. The government enforces those laws.
Mr Baird: The Employment Standards Act wouldn't form part of your collective agreement with respect to wages, with respect to vacation pay, with respect to holidays?
Ms Noble: That's right, it wouldn't.
Mr Baird: So if I was a member of your union and my employer was refusing to give me any vacation time, you as a union would not represent me to the employer to say, "Listen, this employee requires three weeks" --
Ms Noble: As I explained to you, this would become an issue when an employee has a problem that is an employment standards problem that is not also covered by a collective agreement. And, yes, that happens.
Mr Baird: Give me an example.
Ms Noble: An example would be in a small workplace where the union had not negotiated, say, a minimum vacation entitlement, so the floor for that benefit would be provided by the Employment Standards Act. If there is a violation by the employer, the employee has recourse under the act, not under the collective agreement.
Mr Baird: Can you give me one single example in the province of Ontario where vacation pay has not been part of a collective agreement?
Ms Noble: What I can tell you, Mr Baird, is that there have been lots of times when employees who are members of our union have gone to the Employment Standards Act and asked the employment standards branch to enforce the law, and that has been done.
Mr Baird: Sure. But is there one collective that you're aware of anywhere in the province of Ontario any time in the last 25 years which would not have contained provisions with vacation pay?
Ms Noble: You asked me for an example.
Mr Baird: I did, and that's the example you gave me, so I'm just following it up.
Ms Noble: That's the example that I gave you off the top of my head. You're going to have to believe me that I wouldn't be here saying that this is problematic for our union if it weren't something that had come up in the past.
Mr Baird: Your question was, how would a union find the necessary resources to complete this?
Ms Noble: I feel like I'm -- could someone else maybe answer one of my questions, because --
Mr Baird: No, that was your question. Your question was, how would a union find the necessary resources to administer the Employment Standards Act?
Ms Noble: And you're trying to say that this isn't a problem?
Mr Baird: I asked for an example where any employment standard would be taken to the employment standards office that wasn't covered in a collective agreement. You gave me the example specifically of vacation pay. I'm asking you, is there any collective agreement anywhere in the province of Ontario for the last 25 years that wouldn't include that?
Ms Noble: Could I stop you? Because my time is running. How about this? May I get back to you --
Mr Baird: Certainly.
Ms Noble: -- and provide you with examples of complaints that have been filed where the employment standards branch has been the enforcing mechanism, not the union?
Mr Baird: In particular with respect to vacation pay, that would be interesting.
Your second question was, how can the citizens of Ontario be comforted that we are serious about law enforcement when we won't be enforcing some laws? I guess right now today, for the last five years, we haven't been enforcing the Employment Standards Act with respect to orders that are issued. Right now and for the last five years it's been at 25 cents on the dollar, or worse in some years. Once an investigation takes place, once an order is issued, someone has been found guilty and the appeal period has expired, workers are only getting 25 cents on the dollar on average; 75% of orders are not being filled right now. So there's an example where --
Ms Noble: That doesn't answer my question.
Mr Baird: I'll continue. There's an example where that hasn't happened, where the government hasn't been enforcing it.
Ms Noble: So you're saying because it's been badly enforced in the past, it's not going to be enforced at all now?
Mr Baird: No, no. I'm just --
Ms Noble: That's completely irresponsible.
Mr Baird: Just follow me. I'll give you an example. What we're seeking to do is to try to give more flexibility to the workplace parties, to put more responsibility to the workplace parties. We did hear from CUPE Local 87 in the city of Thunder Bay. When I brought up the example of how right now in Ontario we're only collecting 25 cents on the dollar -- that's been the case for many years under this government and both previous governments which have made attempts to --
Ms Noble: And you're proud of that? Is this an answer to my question?
Mr Baird: No, I'm not proud of it; I'm ashamed of it. That's why we're making --
The Vice-Chair: Excuse me a second here. What we agreed to do, if I recall, was you asked two questions to be answered. I think it's only fair that we then allow those questions to be answered and then maybe --
Mr Christopherson: He doesn't answer the question.
Mr Baird: I'll answer it if you let me continue.
The Vice-Chair: Excuse me. It is not normal procedure and I asked the wishes of the committee. We all agreed that the remaining time would be spent as best as somebody at this table could respond to the questions would be doing so. It doesn't mean we have to agree on the answer. What it means is that there is a time allocation, which everybody forfeited, in this case to Mr Baird to respond. There is one minute left in that response time and all I ask is that we allow for that to happen, agreeing that we don't all have to agree.
Mr Christopherson: It would be nice if in that one minute you gave one straight answer.
Mr Baird: I'll finish responding to the question. Why would we ask the trade unions to enforce the law? Because they are best able to do so. We talked to CUPE Local 87, the city of Thunder Bay. He said that his claims rate is 100%. Another local we said, listen, they're on the ground, they're on the shop floor, they know the workplace best.
We spoke to a former Algoma Steel worker in the city of Sault Ste Marie, Mark Klym, who on August 27 said the large unions are capable of taking care of their members. This is what we've heard during these committee processes --
Ms Noble: Well, you're not hearing it from this union.
Mr Baird: I look forward to getting your response. If you could forward it not just to me but to the clerk so that all the members of the committee could have it, I'm sure we'd be very pleased to receive it.
Ms Noble: My response to what?
Mr Baird: You said you would get back to us with a specific example of where vacation pay isn't covered in a collective agreement.
Ms Noble: I see. I must say I get the distinct impression that in the presentation I've made on behalf of my union, my credibility is being challenged here by Mr Baird. I'm making this presentation in all honesty and with all sincerity. I'm telling you the perspective from our perspective and that of our 5,000 members, and I don't appreciate having my credibility challenged in this way. Do you think if this law helped us I would be here making this submission?
Mr Baird: I look forward to getting your response to the questions.
Mr Christopherson: It's like that all the time. Trust me.
Ms Noble: How can you stand it?
Mr Baird: On a point of order, Madam Chair: I'd like to make a research request. Could we find any collective agreement in the province of Ontario where vacation pay has not been included, any collective agreement anywhere in the province of Ontario in the last 25 years?
The Vice-Chair: Would all committee members support the request?
Mr Christopherson: Do you need unanimous agreement to that?
The Vice-Chair: No, I don't need unanimous agreement for that. Just a moment, please.
As a point of order, we will make the request to the research department and we'll hear back whether or not it's possible to obtain that information.
Mr Christopherson: Are you going to make that request in writing?
Mr Baird: I'm happy to.
The Vice-Chair: I would ask that Joe Healy come forward, please. Good evening. I would ask for those present -- I guess I have identified you, seeing as you represent yourself. I don't know if you're familiar with the process, but in short, there's a 15-minute presentation time. If there's any remaining time at the end of your presentation within that 15-minute scope, we divide the time evenly for questions and answers for all parties.
Mr Joseph Healy: Very good. Initially I was going to read verbatim from this, but seeing how the proceedings have gone, I'm probably going to edit from this, so you'll have to bear with me.
Good afternoon. My name is Joseph M. Healy and I'm a concerned citizen. I'm an employee of the Toronto Hospital in the field of medical technology. Presently I sit on the complaints committee of the CMLTO, which is the College of Medical Laboratory Technologists of Ontario, which is my professional college. I will take a seat as an elected member in January 1997.
The name of this bill confuses me. "Improvement" normally means that those affected will see a benefit. The Employment Standards Act provides a certain minimum level of protection for employees from abuse by their employers. Therefore, an improvement should see an increase in that level of protection, not a dramatic removal of those protections.
For myself as a working medical technologist, I see primarily harmful items in this bill. If this is housekeeping, then I am very worried about the major changes to come later.
The laws of this land were built over time. They are to prevent the horrors of abuse that society cannot allow to continue. The labour laws have changed over the years in a similar manner. Labour laws are to ensure that confrontations between labour and employers be carried out in a manner that does not disrupt society's functions. The violence that in the 1930s we saw cannot and should not be repeated. The present labour laws have prevented most of those excesses from happening.
When a large group of people feel they can no longer benefit from society's rules, they have three options: (1) They can hope it goes away, which just usually leads to frustration and to greater pressures when it finally explodes; (2) they can move to either change the laws or the government by legal means; (3) they can move to change either the laws or the government by non-legal means.
I'm here today as part of that second option. From what I've seen, I don't believe it will be successful, and I'm afraid that when you are stripping rights from those who presently have them, they will then resort to option 3. When this happens, I truly hope they will follow Gandhi's methods of non-legal civil disobedience rather than those espoused by Malcolm X, which is basically by any means possible.
The proposed changes to the act 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 that they have had under the Ontario law for decades. Workers will not be denied these rights without a fight. The level and severity of that struggle will be determined by the laws that allow workers to fight for them within the law. If there is no effective means within the law, then that struggle will go outside the normal relations. If you pass these bills as is, labour will have no other option than to move outside the realm of normal legal recourse.
The following captures part of my views on the key amendments:
(1) Flexible standards: The very idea of a flexible standard is an oxymoron if I've ever heard one. In laboratory medicine I work with standards all the time. My duties as a college committee member mean that I have to ensure that those technologists who fall below the standards of performance are brought to standard. These standards of practice are written in black and white. They are not subject to flexibility. A minimum standard is an immovable marker that one must not fall below. A standard cannot be flexible. It is either a standard or it is flexible. It cannot be both.
The proposed changes remove the minimums as standards and replace them with nebulous statements such as "confer greater rights...when assessed together." Who decides the "greater rights...when assessed together"? What is "greater rights...when assessed together"? I'm afraid this will become a situation where two wrongs will become a greater right when assessed together. This portion of the act is a danger in itself. It encourages the point of view that the law is simply a guideline, that it can be bent or even disregarded.
Society requires a fixed minimum standard to exist. If there are no minimum standards, then where will you start to negotiate under the act? The flexibility will allow employers to use this act as a ceiling for employees. The act should be a floor. The Employment Standards Act has held labour relations in a stable condition for as long as I and the bulk of the workforce have been alive. This act will destroy those conditions.
The first labour councils marched in Toronto 125 years ago. We celebrated the anniversary on Labour Day. They marched for a nine-hour workday. Your proposals are removing that, so you're removing rights that workers have had for over a century and a quarter. People will not stand for that. This act will destroy those conditions. This act encourages that the laws be bent or broken. Its measures erase the historic component of overall minimum standards in the workplace for unionized workers. Employers are now free to disregard the previous floor of rights. They can attempt to trade off such provisions as overtime pay, paid holidays, vacation pay and severance pay in exchange for increased hours, increased duties, increased fears and worries. All they have to do is scare their employees into doing anything.
In my profession as a medical technologist, I am subject to an enormous number of rules and regulations. They control my work, my performance, the standards that I must live up to. Unfortunately, the only protections I have concerning my hours of work and other working conditions is my collective agreement, the Labour Relations Act and the Employment Standards Act.
Due to your recent introduction of Bill 7, I've lost many of the rights and protections I previously enjoyed. This makes me more inclined to support actions that are more political in nature than would be normal in a labour-management relationship.
The greatest fear you should have right now is not the group that came in here and protested earlier. They will always be here, they will always protest, because that is their right and they advocate. What you've got to be scared of is when people like me, who come in here in a tie as a working professional, come in here and have to stand up and denounce this in front of you. I am the type of person -- I am the professional in Ontario. Normally we should be an ally in a government like yours, but we cannot. This bill will mean enmity, and it will mean basically that we will not have peace until either this bill goes away, you go away or, preferably, both go away.
The labour movement is becoming more polarized. Under the Davis Tories, the idea of an economic shutdown of a city for a day was a joke; it only happened in other countries. Labour is now considering a general strike. It would have been laughed away as the pipedream of a few diehard anarchists and Communists a few years ago. But this is the reality that this government's policies have unleashed. Four previous cities have been economically shut down. The economic engine of the province, Toronto, is target for the fifth.
This level of resistance you are seeing with the Harris Tories changes on a daily basis and escalates. If this bill passes as it stands, that level will escalate dramatically. More and more of the workforce will have nothing left to lose by staging struggles and protests.
The normal purpose of labour law is to ensure the smooth function of the labour market to ensure that Ontario is attractive to labour investors. This amendment will ensure that peace is difficult, if not impossible, to achieve. It sets the stage for conflict, not the resolution of conflict.
Large employers will have all the advantages with this bill. They have more money, more resources, and limiting the unions' ability to access the resources from the Ministry of Labour will tip the scales in this forum severely against them. If the labour movement cannot win in the courts, labour will go back to the streets, where it has won before.
The unions will have to look where they can win and will force those situations. Many small employers will be caught in the squeeze. The small employers do not wish to destroy the fragile peace that exists but, unable to cope with the larger firms that exist, they will have to seek major concessions. Labour will then back these strikes at the smaller employers with great vigour because they can win those easier. You will see the destruction of small employers and small business, which is the normal mainstay of the Ontario government, Mike Harris revolting sense of common revolution.
Given a few years of this, labour could be seen like Mexico, and $5 a day will seem great; or the whole thing will blow up, with labour united into an unstoppable force that will sweep aside everything in its way. It will either leave a new society or a wake of destruction that this country has never seen in its history.
Regardless of the outcome of that struggle, there will be definitely a struggle. The proposed legislation places labour in a situation that it will have to fight for its life. As seen with the recent OPSEU strike, even a mild, normally apolitical union will fight when threatened.
The potential of this amendment alone to erode people's standard of living should be enough to make the drafters of the amendment rethink, if not radically alter, Bill 49; it is certainly enough to make me stand in opposition to the bill as a whole. The potential for greater harm to society as a whole forces me to stand and make my stand part of public record here today.
The shortsighted may see this rush to the bottom as helping employers to become more competitive. But the more sane question is whether this makes for higher productivity, better workplace relations, increased consumer purchases or quality of life in Canada's most industrial and populous province.
Enforcement under a collective agreement: The single basis of common law is that the law applies equally. All are equal under the eyes of the law. Even the law states that there will be no discrimination based on race, colour, creed, age, sex, marital status or sexual orientation. So why are unionized workers being discriminated against by affiliation? A law that does not stand equally and apply to all should not be a law.
The proposed changes to the enforcement place respect for the law in danger. Once that respect for the law or its authority is removed, society as a whole no longer functions. Respect can only be earned, not enforced. A society can have order without respect. Unfortunately, that's a police state under essentially martial law. It only lasts a short time on the stage of the world before those that are repressed remove it.
If Ontario is the economic engine of Canada, then are not the employees the source of that power, the fuel that keeps the engine running?
Asking the unions to enforce employment standards through the collective agreement and pay for it is akin to the victim of a crime being told by the police that they can't investigate the crimes committed against them because they belong to a church, and that church, which is supported by its members, has the duty to look after its members and the church should pay for the investigation. Unfortunately, that church also doesn't have the powers of investigation.
If you had framed the legislation in that manner, the outcry would have ripped you from power and you would have been flogged down the street by an angry public. The enforcement of the laws must remain with the government. Only the government has the resources, the legal and moral authority, as well as the neutrality -- at least normally the neutrality -- to ensure that all receive fair and equitable treatment under the law.
I work in a hospital. The union cannot access information on patient care, nor should it have to, unless the employer hides behind the mask of confidentiality to hide other matters. The union does not have the right to this information. An enforcement officer can enforce the act, previous to these changes, and get access to information. Will I be denied an employment enforcement officer and thus denied access to all outside intervention? Will my employer be able to hide wrongdoings because the collective agreement does not give me the right to look at certain information?
The Vice-Chair: Mr Healy, I hate to interrupt at this point, but we have exceeded almost by a minute now the 15-minute time frame. I trust that you will allow us to keep your proposal and your submission here and read it as we go through these hearing processes. I thank you very much for attending today.
Mr Healy: I just wish to state one thing, that basically if your proposed changes go through, the people in Ontario who are affected by them will end up in a situation that they will have to defend themselves. Whether you give them the recourse to defend themselves within the legislation or whether they take that outside the legislation and use other means, it will hurt. I would prefer to make sure that those other means do not have to occur because there will be violence on the street --
Mr Tascona: Madam Chair, who's next?
The Vice-Chair: Thank you very much.
TORONTO WORKERS' HEALTH AND SAFETY LEGAL CLINIC
The Vice-Chair: I would ask the representatives from the Toronto Workers' Health and Safety Legal Clinic to please come forward. Thank you for attending and welcome to our hearing process. I would ask that for the good of those remaining that you please introduce yourselves.
Mr Daniel Ublansky: My name is Dan Ublansky. I'm the director of the Toronto Workers' Health and Safety Legal Clinic. With me is my colleague, Linda Vannucci-Santini, who is a staff lawyer at the clinic. I want to thank you for the opportunity to address the committee today.
Just by way of introduction, the Toronto Workers' Health and Safety Legal Clinic is funded by the Ontario legal aid plan to provide legal and technical advice and representation to unorganized workers who face health and safety problems at work. Our activities are controlled by a board of directors elected from the community.
The clinic provides workers with information about health and safety hazards of their employment, advises them about their rights under the law and provides legal representation when that is required. In addition to individual advocacy, we undertake community education and outreach programs aimed at unorganized immigrant workers primarily and we engage in law reform activity, such as the brief we're presenting today. Our activities touch over 2,000 unorganized workers every year.
I will try to cover as much of the brief as time permits. I'll deal with part of it and my colleague will deal with other parts.
The employment standards branch, which administers the act, receives roughly one million inquiries annually; almost 20,000 formal complaints result from these inquiries. In 1994-95, over $64 million in back wages owing was assessed against Ontario employers in respect of violations of the act. Of that $64 million, $47.8 million or 74% was not collected. Thirty-four per cent of the uncollected amount was due to employer refusal to pay.
These statistics point to the deplorable extent of non-compliance with the act, as well as the need for stricter enforcement. Certainly, a compelling argument could be made for the need to introduce legislation which strengthens and improves enforcement and achieves better compliance with the act.
Instead, the government has proposed a set of amendments in Bill 49 which move in the opposite direction. It is as if the government had decided to control speeding on the highways by increasing the speed limits and lowering the fines for its violations.
Bill 49 will encourage more employers to violate the act. Fewer workers will be able to file claims for moneys owed to them and the amounts they can recover will be capped by arbitrary limits. How does this meet the labour minister's stated objective of "helping the most vulnerable workers"? I'd leave that as a question.
We'll now deal with individual proposals and I'll turn that over to my colleague Linda.
Ms Linda Vannucci-Santini: I'm going to talk about the limitation periods under Bill 49. Before I start, I should say that this brief is peppered with situations concerning bad employers. We know there are good employers out there. We just don't hear about good employers. We're a legal advice service in employment law and workers call us who are angry and upset because they've been denied either their rights under health and safety law or just basic minimum standards under the Employment Standards Act. I just wanted to explain that bias right from the top. That's what we hear about day in and day out.
Again, the aspect of focusing attention on the most vulnerable workers, this bill reduces the limitation period, both for bringing claims and recovering money from two years to six months. In addition, the bill proposes to impose a maximum monetary limit of $10,000 per employee per claim. I fail to see how this helps the most vulnerable of workers.
If we look at the area of six months to make a claim, many of the workers we hear from, Ontario workers, are in marginal, insecure, low-paying jobs. They have no union protection. Ninety per cent of workers seeking to enforce their rights to minimum entitlements under the Employment Standards Act only do so after they're no longer working for the employer who owes them money. Why? Because they think they'll be fired if they complain.
The fact is, the Employment Standards Act does not provide an adequate remedy for workers who are fired for trying to enforce their rights. A case in point: A few years ago, I represented three Spanish-speaking demolition workers -- actually they worked removing asbestos -- and they were discharged when they complained about unhealthy working conditions. They had refused unsafe work and they had made a video about their working conditions and they had the nerve to do that because it was either their job or their life basically.
We went before the Ontario Labour Relations Board and they found that their employer had broken health and safety laws in firing these three workers. However, what came out -- why I represented them -- was that they were shortchanged on overtime hours. They were paid straight time instead of time and a half and that's a very common occurrence, particularly in the hours between 44 and 48 hours worked per week. In two of the cases the employer benefited for over six months and in the third case for well over two years. The three workers didn't know their rights concerning overtime. They didn't know they were owed time and a half, and if they had known they would have been afraid to risk their future employment with the company by complaining about it to the employer or by making a report to employment standards. Of course, after their discharge, they filed claims with the employment standards branch and eventually they received the overtime pay owing them.
If their claim had arisen now, the new six-month limitation period for bringing a claim would have barred these three workers from claiming at all. It would allow that employer to get away with cheating them and probably all the other people working for him. So, in my view, reducing the limitation period for making a claim from two years to six months will probably reduce the number of eligible claims but not the number of employers who violate minimum standards. In fact, it seems to encourage violation of the law.
Another case involved a sales woman. She was actually a travelling sales woman, selling fabric three years for the same company. She was quite surprised when she found out that she had overtime rights and that her employer wasn't paying her for overtime, but she again was afraid to complain about this and afraid to file a complaint to the employment standards branch. She also would lose her right to claim within six months of the overtime payment being due.
Concerning the amount recoverable, six months owing: If a worker manages to bring a claim within six months, the amount they can recover is reduced from two years under the current scheme to six months.
How much do workers actually stand to lose if this aspect of Bill 49 becomes law? If we look at the very common occurrence I mentioned earlier, and that is working 48 hours a week and being paid straight time instead of time and a half for the four hours between 44 and 48 hours, and the wage of those three asbestos removal workers, they were earning $11 an hour, they would have been entitled to $16.50 for four hours a week. Over a six-month period for each one that would have been about $572 and over two years, well over $2,000.
I know the argument exists that it's not very cost-effective to have the government involved in collecting such small amounts of money. Under Bill 49, it would have been the $572 collectible if they'd made their claim in time, and under the current law it's $2,288. But really, this kind of attitude is demoralizing for working people who earn $11 an hour. That $2,288 for somebody earning $22,000 a year, which is more or less what $11 an hour comes to, represents 10% of their annual income. These vulnerable workers shouldn't be left to feel that the government doesn't care about them or it's not worth the government's while to help them assert their basic rights.
Under Bill 49 in this case, the one worker's loss, about $1,700, was a corresponding gain to the employer, and if you multiply that by 10, 100 or 1,000 workers, the amount becomes significant. To add insult to injury, the protection from reprisals under the current Employment Standards Act and under Bill 49, and would remain under Bill 49, is inadequate.
I outlined section 76 that prohibits employers from dismissing, disciplining or penalizing workers for trying to force their rights under the act, but it must be pointed out that this can only be enforced by way of prosecution in the provincial court.
The Ministry of Labour rarely prosecutes employers who offend section 73. Of course, a worker can lay an information before a justice of the peace and represent himself or herself before the provincial court in the prosecution of the employer, but workers don't tend to do this. Most people are reluctant to represent themselves in formal courtroom settings and they feel, and they're probably right, that they are unfamiliar with the procedures and the substantive law. So workers really seek this remedy.
A positive feature about section 73 prohibiting reprisals is that a provincial judge can order reinstatement to work or compensation in lieu of reinstatement, and that's a very important remedy. But sadly, as I said, that section is rarely resorted to.
Employment standards could have better protection against reprisals if it was more like other legislation in the provincial jurisdiction in Ontario such as the Labour Relations Act or the Environmental Protection Act, the Occupational Health and Safety Act. It's a civil tribunal setting where workers can apply for reinstatement and compensation for lost wages. Proceedings take place before a specialized tribunal and not a court; it's a more worker-friendly setting. The burden of proof is on the employer to show and the standard is the balance of probabilities that no part of the reason for the discharge, discipline or penalty was related to the worker trying to enforce their rights. Reinstatement is also a remedy under those pieces of legislation. It is a strong deterrent to employers who violate the law because there is an uplifting effect, and we've seen it in our own work when a worker is reinstated to the workplace.
Now I'll turn it over to my colleague for the other areas that we wish to outline.
Mr Ublansky: Thank you. Bill 49 proposes to require non-union employees to decide whether they wish to file an employment standards claim or take the matter to civil court. Once a claim has been filed, the worker then has two weeks to reconsider.
The stated rationale for this change is "to eliminate duplication and make better use of resources and encourage self-reliance." Presumably, these objectives are to be achieved by forcing non-union workers to undertake long, costly and complex legal actions rather than file employment standards claims.
The workers most affected by this change will be those who have already been adversely affected by the previously discussed amendments which limit the amount that can be recovered through an employment standards claim. By forcing these workers to make an immediate election between an employment standards claim and court action, the government will be denying them the opportunity to recover the minimum amounts owed to them in a more timely and less expensive manner while still pursuing any additional amounts beyond the legislated maximums.
Allowing a worker to pursue both remedies does not involve duplication since any amounts recovered in one proceeding would be offset against amounts received in the other. In addition, any issue determined in one forum would be binding on the other. In any event, if either of these matters were truly of concern to the government, the government could introduce amendments to ensure that this takes place.
So what you're left with -- and the chief beneficiaries of putting the squeeze on non-unionized workers to choose between employment standards claims and legal action again are the employers who refuse to pay their workers the full amount owed to them. In all likelihood, the majority of workers, as Linda says, will file employment standards claims rather than undertake an expensive and time-consuming lawsuit, and in so doing these workers will be forgoing the additional moneys that are owed to them. Again, all this does is provide more incentive for unscrupulous employers to shortchange their employees.
With respect to the use of collection agencies to collect, again our comment on that is that the government has put forth as an article of faith that private collection agencies will do a better job than the ministry. However, since the enforcement mechanisms that are available to the private collection agency are the same as what is presently available to the ministry, there is no particular reason to expect that more money will end up in the pockets of workers as a result of that change. Indeed, the pressure will undoubtedly be on workers to accept less than the full amount owing since the collection agency is primarily motivated by the need to make a profit. It will act in its own interest to promote settlements rather than invoke the traditional time-consuming mechanisms for seizure of assets to collect the full amount owing. In addition, Bill 49 will create the possibility that the worker who receives less than the full amount owing will have to absorb part of the collector's fee.
I presume the speakers from organized labour have addressed the provision that has, I guess, since been withdrawn with respect to negotiation of standards and collective agreements. I won't address the issues that labour has already addressed, but speaking --
The Vice-Chair: Excuse me just for a moment.
Mr Ublansky: I may not address any of those issues.
The Vice-Chair: It might help out. There are about 30 seconds left, if you would like to summarize it or continue.
Mr Ublansky: Thank you. By way of summary, I'll say most employers obey the law and pay their workers what is owed to them under the act. These law-abiding employers are not the cause of the problem with the act and they will not be affected by the changes that are proposed in Bill 49.
The employers that will be affected and in fact will benefit from the major changes proposed in Bill 49 are the very same unscrupulous employers that the Employment Standards Act is designed to control. Why should these employers who have flouted the law by refusing to pay their workers what is legitimately owed to them be rewarded for their inequities at the expense of their workers?
If the government is concerned about the growing volume of employment standards claims, then it should put forward a set of proposals that are directed at recalcitrant employers who refuse to comply with the law. That is what one would normally expect to see and, indeed, this government has demonstrated this kind of determination in dealing with the issue of truck safety on the highways which is, I believe, the headline in the Toronto Star today. We believe the same kind of aggressive approach to lawbreakers is what is needed in the Employment Standards Act.
The Vice-Chair: The time has expired, sir. I do appreciate you coming forward. Thank you.
Seeing there are no other presentations to be made today, hearings will resume tomorrow morning at 9 o'clock in this room. Thank you.
The committee adjourned at 1808.