Wednesday 11 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
Whitby Chamber of Commerce
Mr Marc Kealy
Mr Jeff Crump
Downtown Legal Services
Ms Catherine Glaister
Ms Anita Bapooji
Oshawa-Clarington Chamber of Commerce
Mr Peter Mitchell
Metro Toronto Chinese and Southeast Asian Legal Clinic
Ms Avvy Go
Board of Trade of Metropolitan Toronto
Mr Sandy Douglas
Mr David Brady
32 Hours: Action for Full Employment
Mr Anders Hayden
United Steelworkers of America, Local 5296
Ms Renate McIntosh
Society of Ontario Hydro Professional and Administrative Employees
Mr Mario Germani
Ms Mundy McLaughlin
Labour Council of Metropolitan Toronto and York Region
Mr David Kidd
OPSEU Lesbian and Gay Action Committee, Region 5
Ms Robin Gordon
519 Church Street Community Centre
Ms Alison Kemper
Ontario Public Service Employees Union, Local 525; Parkdale Workers Without Wages
Mr Bart Poseiat
Ms Marjorie Frutos
Alliance of Seniors to Protect Canada's Social Programs
Mr Joe Jordan
Mr Tony Michael
United Brotherhood of Carpenters and Joiners of America
Mr Daniel McCarthy
Committee on the Status of Women, City of Toronto
Ms Pam McConnell
United Food and Commercial Workers International Union
Mr Bryan Neath
Mr Brian McArthur
Ms Belisa Paulo
Committee on Monetary and Economic Reform
Ms Sydney Marcus-White
Durham Regional Labour Council
Mr Tim Eye
Amalgamated Transit Union, Local 1573
Mr Andre Monette
Mr Tim Rourke
Workers' Information and Action Centre of Toronto
Mr Rob Maxwell
Canadian Auto Workers, Local 222
Mr Mike Shields
Power Workers' Union
Mr John Murphy
Service Employees International Union, Local 204
Ms Judy Christou
Ms Joy Klopp
Labourers' International Union of North America, Local 183
Mr Keith Cooper
Mr Michael O'Brien
Mr Gerard van Deelen
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 BertJohnson (Perth PC) for Mrs Fisher
Mr JohnO'Toole (Durham East / -Est PC) for Mr Carroll
Mr E.J. DouglasRollins (Quinte PC) for Mr Murdoch
Mr WayneWettlaufer (Kitchener PC) for Mr Maves
Also taking part /Autres participants et participantes:
Mr ChrisStockwell (Etobicoke West PC)
Clerk / Greffièr: Mr Douglas Arnott
Staff / Personnel: Mr Ray McLellan, research officer, Legislative Research Service
EMPLOYMENT STANDARDS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES NORMES D'EMPLOI
Consideration of Bill 49, An Act to improve the Employment Standards Act / Projet de loi 49, Loi visant à améliorer la Loi sur les normes d'emploi.
The Chair (Mr Steve Gilchrist): I call the meeting to order. Good morning on this, the second-last of our days of hearings on Bill 49, An Act to improve the Employment Standards Act.
WHITBY CHAMBER OF COMMERCE
The Chair: Our first presentation is ready to go, I understand, from the Whitby Chamber of Commerce. Good morning. Welcome to the committee. Just a reminder that we have 15 minutes for you to divide as you see fit between either presentation time or question-and-answer period.
Mr Marc Kealy: Thank you, Mr Chairman. Seeing a full contingent of people on this side, we'll make our statements very, very brief. My name is Marc Kealy. I'm the chairman of the government relations committee at the Whitby Chamber of Commerce. With me today is Jeff Crump, who's a director on the government relations committee and a general manager at The Office Place in Whitby.
As I said, we'll make our presentation very brief. We know you've had a long time sitting through this thing and, surprise, surprise, I think we support what you're doing, not because we're philosophically aligned or anything like that, but because we think this is the right legislation at this time. Let me just begin.
When the Minister of Labour, the Honourable Elizabeth Witmer, rose in the Legislature to announce changes to the Employment Standards Act, she suggested that the pith and substance of the amendments to the act were what she quoted as "housekeeping." In our view, we couldn't disagree more. In fact, we were quite surprised at her choice of word. No philosophical argument or cliché about the change in the nature of work or the workplace in this province and in fact in the world could be stated strongly enough. In fact, in our view the changes being proposed to the Employment Standards Act are strong enough to warrant the attention of both employers and employees at a time when the status quo can no longer be acceptable. This is a principle in the Common Sense Revolution, which I'm sure many of you here know, and with infinitely more credibility than just housekeeping.
Bill 49, in our opinion, addresses the ever-changing nature of work. We're particularly pleased with the major changes highlighted in this legislation. To suggest that the current system of settling claims under the act is a nightmare is a massive understatement. Our chamber's government relations committee has been very aware of the changes to the work environment for quite some time. We're pleased that this piece of legislation has made it clear that it intends to meet several objectives. Many of you are very aware of those objectives, so I'll just briefly glean them: a more efficient and effective use of Ministry of Labour resources in the administration of the act; the promotion of more localized settlements between employers and employees, meaning a greater need for flexibility; and of course an improvement in the language of the act, making it more user-friendly.
From the Whitby Chamber of Commerce perspective, these amendments hit at the very heart of the issue in the workplace, and that is an employer's ability to pay.
Coincidental to the amendments to Bill 49, we are pleased that the government moved swiftly to amend Bill 40 through the introduction and subsequent passage of Bill 7. At that time, the legislation being presented addressed a concern over an employer's ability to pay. We strongly believe this principle should and must be reflected in Bill 49. For example, if an employer in a unionized workplace has cash flow problems due to the struggles of his work environment, a more suitable arrangement other than a collective agreement or a local agreement about overtime payments or premiums might be better resolved in a greater severance package to an employee, if that is the case, or another benefit in lieu of those payments. This may be a thorn in the side for some unions, but the basic premise we wish to argue today is that an employer's ability to pay must not be overlooked in the larger picture of creating a more favourable workplace and more opportunities for expanding business, which ultimately increases employment and creates wealth.
The bottom line for us is to keep business in business. While there may be vulnerable employees, and we all know stories, there are also vulnerable employers. So let's create an environment where partnership between employers and employees is the order of the day, rather than rigid legislation that pits one against the other.
Mr Jeff Crump: The Whitby Chamber of Commerce is very supportive of those provisions of Bill 49 which eliminate duplicate claims and limit recovery of money by a claimant to a six-month period. Employers are increasingly faced with defending claims of the same nature or for the same remedy in multiple forums.
The problem is not restricted to employment standards complaints; it also spans a variety of employment-related statutes. However, strictly dealing with the Employment Standards Act, non-unionized employees are able to have employment standards disputes dealt with by the court in wrongful dismissal actions, as well as the employment standards branch.
Unionized employees are able to file grievances under a collective agreement, if applicable, to be dealt with in the grievance and arbitration process of that collective agreement, and may also file complaints with the employment standards branch. Employers are often left vulnerable to defending the same dispute in multiple forums and must bear the associated costs.
We believe these resources would be more efficiently utilized in one single forum. Given these facts, the chamber supports provisions of Bill 49 which would eliminate the ability to pursue duplicate claims in multiple forums.
The Whitby Chamber of Commerce is also very supportive of the proposed provisions of Bill 49 which would limit the entitlement to recover money under the act to six months instead of the current two years. The proposed provision quite properly places an onus on employees to make complaints in a timely manner. Delays in making complaints often create an unfairness to the employer in providing a defence. The longer the process, the more difficult will be the investigation and, consequently, the greater the costs.
Further, we agree the increased appeal period provides a more reasonable time in which to (1) allow the parties to negotiate a settlement in lieu of an appeal; (2) more fully consider the merits of filing an appeal; and (3) make the necessary payment of the amount of the order and administration costs to the director in order to apply for the appeal. In many cases, the current 15-day period in which to make the payment causes a hardship to employers.
Mr Kealy: Flexibility is the key word to this new legislation. We in business and those who work are witness to some of the most significant changes in employment and in the nature of work. So this is not merely housekeeping; this is focusing on the future. We in business want to create a better environment, one where quality and pride in the work or service we provide is one of the primary goals. Our greatest asset is our creativity and those who help us achieve our goals; namely, our workforce.
The current environment in the global workplace demands more than a philosophical difference of opinion between employer and employee. We find ourselves as citizens of the world in a vastly complicated and ever-changing world which demands partnership and creative understanding from all sides to resolve disputes. There will always be disputes among differing peoples; it's part of life. But we must deal with disputes in a manner which is equitable to both sides and based on the principles of fairness and common sense.
We support your efforts, Mr Chairman, and those of your committee to streamline the act. We encourage employers and employees everywhere to work in partnership. We applaud the amendments in the bill which bring clarification, flexibility and, above all, an ability to the pay to the forefront as we all strive to meet the challenges of the next millennium. Striving to make Ontario open for business indeed makes good common sense. Thank you very much.
The Chair: Thank you, gentlemen. That leaves us now with two and half minutes per caucus for questioning. As always, we'll commence with the official opposition.
Mr Jean-Marc Lalonde (Prescott and Russell): Thank you for your presentation. I'm just going to ask you a question. At the present time, the actual ESA regulates the number of hours that are permitted to be known as regular working hours. It is at 44. Knowing the problems that small businesses have to meet both ends at the present time, don't you think it should be regulated to at least 48 hours, and also unless it is at the request of the employee? Because at times the employees are asking if they could put in more time at the regular rate because their wives have lost their jobs and they have to meet the payment. Don't you think there should be a cap, though, at 48 hours before you start getting paid the overtime?
Mr Kealy: Mr Lalonde, I think the important point is, again, it goes back to the whole issue of an ability to pay. I agree with your premise. If there were a cap, I think that could be something in a local agreement that could be worked out. But in our view, it's very important that you take account of the bottom line in an employer's situation. If an employer said, "We'll cap it at 48 hours," but he can't pay you for 48 hours, what do we do?
Mr Lalonde: You can pay. If he works 40 hours, he gets paid 40 hours. It's just the fact, with opening of Sunday shopping now, some of the employees are forced to work 60, 65 and 70 hours a week. This is a killer and it also affects the quality of life in the family.
Mr Kealy: I agree with you. In my business, I deal a lot with contract services. We paid a lot of our contract services on an hourly basis. At the end of the day, we're looking at this and we're thinking: "Oh, my God, we're paying these people 60 or 70 hours a week. It's driving us into bankruptcy." So we had to change the focus, and the focus was that if we're going to pay you on a contract, fee-for-service, it'll be this much per week or this much per month, which makes a heck of a lot more common sense for us, because if we're paying them on an hourly rate, the cost to the employer is far too high.
Mr Lalonde: But this bill will not eliminate the minimum salary. What we saw yesterday, people getting paid at $5.40 an hour, I just hope that this won't continue.
Mr Kealy: I think those are isolated cases in a lot of senses, Mr Lalonde. Mr Crump runs a very successful business with 40 or 50 employees, and I don't think he has those kinds of disputes. More and more we're hearing that the media will represent the case of five or 10 people when 5,000 or 10,000 people are not really affected by this.
Mr David Christopherson (Hamilton Centre): Thank you very much for your presentation this morning. I appreciate that you start by saying you're pleased to be here and then move to say that you're pleased the government moved so quickly with Bill 7. Just for the record, so you know, there are those of us who aren't so pleased that they chose to ram through Bill 7 without a single day of public hearings and left a very bad taste in the mouth of an awful lot of people who have a right to be heard, and with the fact that we, quite frankly, had to drag the government kicking and screaming into the public arena to debate Bill 49, which they've already started to change as a result of our hearings. Just so we understand where we all start from.
I was also pleased to hear you sort of take a rather lofty position referencing yourselves and all of us as citizens of the world. I think that's a good approach, because many of the people who have come forward across Ontario have been extremely concerned that the agenda of this government, particularly its agenda as it relates to working people, is one that has this province racing to the bottom in terms of standards. Rather than trying to make things better, especially for those most vulnerable, we seem to be looking for the lowest common denominator in terms of environment, work standards, health and safety and other things, and that's caused an awful lot of concern.
I'd like to ask you a question, since you do focus on the fact that there are both vulnerable employees and vulnerable employers. The Employment Standards Act is the only real bill of rights that a working person has if they don't have a union. One of the things you don't mention but that is in Bill 49 is a minimum threshold that says from now on, if the government pegs it at, say, 200 bucks, if somebody's owed $50 or $75 from one of those unscrupulous employers, of which I'm sure you don't have very many members, but they exist --
Mr Kealy: They do exist.
Mr Christopherson: They exist, and that's why the law is there to protect people from them. If they put it at $200, then especially minimum wage employees who perhaps don't have English as their first language are afraid to file a complaint for their job, but even if they did, the Ministry of Labour wouldn't accept their complaint if it was for $50 or $75. They can't afford to hire a lawyer, they can't afford to take time off to go to Small Claims Court, and in effect, they're beat for that money. I just wonder how you see that in your overall view that this is a fair and good piece of legislation.
Mr Kealy: I think your premise is right. I just want to preface my remarks by saying that we spoke to the committee when your government was in power on Bill 7 and there were some instances in the legislation where we agreed with your direction, and I think philosophically it doesn't necessarily follow that because we're a business association, therefore we're opposed to employees or unions, if that's the case.
But in terms of this, our understanding of the amendments to Bill 49 is that it will make it actually easier for a dispute to be resolved. You're actually given the choice now as an affected employee or an affected employer to resolve your dispute. I guess from my perspective of the Whitby Chamber of Commerce, we see it as a localized agreement in a lot of ways.
Mr Christopherson: Too bad we didn't have longer, but that's fine.
Mr John O'Toole (Durham East): I'd like to thank you, Marc and Jeff, for coming all the way from Durham this morning.
Mr Kealy: It's always good to see you, Mr O'Toole. You're one of the best MPPs at Queen's Park.
Mr O'Toole: I know. I'm working very, very hard here.
Mr Christopherson: You haven't been watching the hearings.
Mr O'Toole: In response to Mr Christopherson's comment, this government was elected to repeal Bill 40 and that's exactly what we did. There were public hearings all during the process and the people clearly stated that on June 8, just over a year ago.
I want to draw to your attention a couple of things in your report. I think it's the first time I've seen it said so succinctly. We all know about vulnerable employees, but what about vulnerable employers? I like that distinction. There are two groups in this particular group and we're looking for balance in all of the legislation we've brought forward.
Are you familiar with the Carr-Gordon report, issued by Frank Sheehan of the Red Tape Review Commission, which cited the Ministry of Labour as being one of the barriers to growth and jobs creation?
Mr Kealy: Actually we've gleaned it, yes.
Mr O'Toole: It's a good report. Yesterday we had a very interesting presentation from the Employment Standards Work Group, and I thank them for bringing to our attention some really relevant statistics. In the last several years the number of claims have gone up some 300%, the amounts of the claims have gone from $800 to $2,400 or $2,800, and yet the collections have actually gone down. Don't you think that those three statistics indicate that the present system is broken, claims going up, amounts going up and the actual settlements going down?
Mr Crump: I think it certainly shows that. It also shows that there has been a great deal of responsibility and perhaps onus put on employers, more specifically of large companies, to realize the needs of their employees, to act on them and to be responsible to the employees with management and working more in a team environment than they have in the past.
Speaking specifically, my personal work experience is that that's exactly what's happening, and I think you'll see that continue to grow. In fact our corporation and I know past companies I've worked for have done nothing more than increase the human relations side of the business.
Mr Kealy: Yes, it's certainly grown.
Mr O'Toole: We were in Hamilton and they were using the theme there, "Our product is steel and our strength is people," and I think that says a lot about the industry.
Mr Crump: We're finding that's a common theme certainly in the retail environment and in the general workplace. The common theme now is certainly that the strength of most companies is the people working for them, and I think maybe it's just taking a little bit of time for the working environment to realize that.
Mr Kealy: If I could too, Mr O'Toole, just to --
The Chair: Very quickly.
Mr Kealy: Just very briefly. We made the point in our presentation that there's been a change in the nature of work. People are more transient, employees are more transient. There's a lack of loyalty. We're screaming for this. If somebody were to come in to us as an employee, in a lot of ways we may invest in them but we may not have them around for too long. I think in a lot of ways that's another issue we're trying to bridge in terms of partnerships between employer and employee.
The Chair: Thank you very much and sorry, but in the interests of moving along to the next group I have to cut you off.
Mr Kealy: Hey, no, this was great.
The Chair: We appreciate your taking the time to make a presentation before us.
Mr Kealy: Thank you for having us. We'll see you soon. Good luck.
DOWNTOWN LEGAL SERVICES
The Chair: That leads us now to our second presentation of the morning, Downtown Legal Services. Good morning and welcome to the committee.
Ms Anita Bapooji: My name is Anita Bapooji. I'm an executive member at Downtown Legal Services.
Ms Catherine Glaister: I'm Catherine Glaister, a third-year law student and a case worker at Downtown Legal Services.
We have what we think is a fairly brief presentation, so we'll go through that and we'd welcome any questions, if that's appropriate.
We'd like to start by explaining a little bit about what Downtown Legal Services is and why we're here. Downtown Legal Services is a poverty law clinic at the University of Toronto faculty of law and we represent clients in many different areas of law, including unemployment insurance, social assistance, employment standards and criminal matters. Case workers at the clinic are law students at the school, and we have a full-time review counsel lawyer for all non-criminal matters.
As a poverty legal clinic, our clients include social assistance recipients, people living on pensions, unemployed people and the working poor. As mentioned, we provide legal advice and representation for people making claims under the Employment Standards Act. Our clients are unorganized workers who have no other representation and we believe that changes to the Employment Standards Act will therefore affect the rights of our clients.
Downtown Legal Services is one of the few clinics in the city that will provide legal advice and sometimes representation on wrongful dismissal claims. Because law students do not have standing in the Ontario Court of Justice (General Division), any wrongful dismissal claim that we assist with must be made in the Small Claims Court of Ontario where the maximum claim is $6,000.
Therefore, when a client is owed money by an employer, we may advise proceeding either by means of a small claims action or by pursuing a claim under the Employment Standards Act. The common law provides for a longer notice period than does the act and may also award punitive damages to the former employee, but proceeding to court is not appropriate in many circumstances, such as when employees are not claiming to have been wrongfully dismissed but are simply owed back wages that they haven't been paid, overtime, vacation pay and so on. In addition, the court procedure is extremely lengthy and puts a strain on our resources as a legal clinic as well.
With respect to the submissions we're making this morning, we're making them with respect only to a few select issues that we feel will be most important to our clients. Therefore, our comments will be restricted to the impact of some of the proposed changes on unorganized workers and low-income people.
As we all know, as presently written, the Employment Standards Act provides a basic minimum for workers in the province. Our clients, as workers in Ontario, are entitled to receive a basic minimum wage, overtime pay for every hour worked in excess of 44 hours and 4% vacation pay.
The basic problem with the act at present is that it is complaint-driven and that employees are at risk of losing their jobs if they attempt to enforce their rights under the act. Additionally, the enforcement mechanism is very slow. When employers do not meet the requirements under the act, employees do not have a realistic chance of enforcing their rights and keeping their jobs, and there are no changes in Bill 49 that we feel address this major problem. However, it is significant that the act applies to most workers in the province and that it provides a mechanism to enforce workers' rights.
We'd like to turn to just a few of the proposed changes in Bill 49.
Limitation periods for filing a claim: The act presently allows a claim to be made for money owing dating back two years from the date of filing the claim. Claims are not made only for one-shot events such as termination, but also for long-term violations of the act. Therefore, the change from two years to six months, as proposed in Bill 49, is not merely a procedural or a housekeeping change but a substantive change. A two-year limitation period does not prejudice employers because they are mandated to keep employment records for much longer than that.
Many clients come to Downtown Legal Services with claims that are more than six months old, and under Bill 49 they would have no redress under the act. Their reasons for delay are varied, such things as trying to find a new job after they've been terminated, attempting to get unemployment insurance and so on. In addition, we've found that many workers are not adequately informed of their rights. If the ministry is concerned about providing Ontarians with basic rights as workers, then the ministry must ensure that the act is acceptable to them. Reducing the limitation period from two years to six months is a huge step backwards.
Limitation periods for appealing an order: There is presently a 15-day limitation period for an employer to submit notice of appeal of an order issued by an employment standards officer and, correspondingly, an employee has a 15-day limitation period to appeal an order issued or the failure of an order to be issued. Bill 49 proposes extending this limitation period to 45 days from the 15. This would result in an additional one-month delay for the worker, who would have been owed her wages for months already by the time an order is issued. We feel this is an unnecessary change to the legislation, as the purpose of the act is to provide for speedy enforcement of rights.
Minimum amount of claim: As we know, there's currently no minimum amount for a claim filed under the act, and Bill 49 proposes a minimum which is not specified yet. The establishment of a minimum claim amount would mean that a worker would have no way to claim the money owing to her up to that minimum amount. Not only could employers steal this minimum from their workers, but they could do so every six months. Students who earn a lower minimum wage than other workers could be particularly hurt by this provision. The only way to receive money up to this minimum would be by going to court, which would clearly be impractical both for the worker and for us as a legal clinic to represent people on those kinds of matters.
Maximum amount of claim: The act presently has no upper limit on the amount of a claim, and Bill 49 proposes the imposition of a maximum amount of $10,000. What recourse does a worker have if she's owed more than this amount? From our perspective as a poverty legal clinic, she cannot obtain the $10,000 through the Ministry of Labour and then pursue the rest civilly; therefore, if she wishes to make a claim for an amount in excess of $10,000, she must pursue the claim in court, in General Division. This is again because Downtown Legal Services can only represent clients in Small Claims Court where the maximum claim is $6,000. The Ontario legal aid plan does not give legal aid certificates for wrongful dismissal or this type of issue. Therefore, a low-income client who has a claim in excess of $10,000 will have no alternative but to forgo the excess amount.
Workers' options for enforcing rights under the act: Bill 49 proposes that a worker be barred from making any civil claim against an employer once the worker has filed an employment standards claim, unless the claim is withdrawn within two weeks of being filed.
This two-week period could be read as an opportunity for the worker to obtain legal advice to decide which route to pursue the claim. If so, two weeks is inadequate. Downtown Legal Services is one of the community legal clinics where a worker would go to obtain this kind of advice. We generally book appointments at least one month ahead and additionally, as a student clinic, we're closed for approximately six weeks at a time twice a year during the examination periods. Therefore, we feel that two weeks is not long enough for a worker to make a decision about her options, but it may not even be enough time to find out what her options are. The proposed amendment is also overinclusive, as it bars workers from making any kind of claim under the act if any redress is sought in a civil court, and this undermines the procedural purpose of the act as well.
We'll finish up our brief comments with our conclusion that Downtown Legal Services is strongly opposed to the proposed changes under the Employment Standards Act that we've discussed. We believe that our clients who file employment standards claims are at risk of receiving less than their true entitlements and that they may have to wait even longer for their money once an order has been issued. Furthermore, we believe that these changes may make it more difficult to enforce workers' rights and that our clients will be less likely or less able to make a claim for what they're owed.
Workers in Ontario should be able to reasonably expect that their rights in the workplace will be enforced. Unorganized workers often have no representation unless they can afford to hire a lawyer or unless they can afford to proceed by way of civil suit. Workers in Ontario who cannot afford to hire a lawyer should not be further disadvantaged by these changes to the act.
Because Downtown Legal Services deals with such a wide range of legal issues, we are able to see how they interact. A worker who's not paid wages may have difficulty paying the rent or may have to turn to social assistance, for example. This could result in an increase in evictions, an increase in shelter costs, an increase in court costs and an increase in welfare costs. The social costs of unpaid wages are far greater than the dollar value of unpaid wages; therefore we feel it's extremely important that employers be deterred from violating the act in the first place.
The proposed changes will weaken the deterrence value of the Employment Standards Act, and Downtown Legal Services opposes such changes, which would allow unscrupulous employers to declare open season on workers.
Mr Christopherson: Thank you very much for your presentation. It's probably safe to say -- I haven't done the calculation -- that the overwhelming majority of lawyers and those who are close to being lawyers have come before this committee across Ontario opposed to this legislation and have made very effective cases. You've joined that long, hopefully influential line. I particularly liked your line that said "...social costs of unpaid wages are far greater than the dollar value of unpaid wages." I haven't heard it put so succinctly and I think it's a case that needs to be made over and over.
My comment or question to you, in the time that's allowed, would be to draw attention to your statement on the third page, "The real effect of a minimum claim amount is increased when seen in conjunction with the proposed change to the six-month limitation period." You need to know that this government has still not admitted, after all the public hearings and all the submissions, that those two items of Bill 49 are taking away rights of workers. They just will not admit it. Could you expand a little on why you believe that's the case?
Ms Glaister: How we believe that it would take away the rights of workers?
Mr Christopherson: That it diminishes rights that workers currently have in the Employment Standards Act.
Ms Glaister: As it currently stands, the Employment Standards Act is a basic floor for workers in the province. To start with, if you establish a minimum claim amount, there's simply no recourse for workers to claim money that they're owed.
If, for example, the minimum claim amount were $100, if workers work for one day and they're not paid for that day, they may simply have no recourse. You can't go to Small Claims Court, effectively, for an amount under $100 when the filing fee for Small Claims Court is currently, I think, $60 or $75, and we believe that the act is there to enforce workers' rights. If workers have no recourse, then they have no right to the money they've earned. The six-month limitation period means this can happen every six months, time and time again. We feel it's fairly obvious that workers' rights will be curtailed by the proposed changes.
Mr Christopherson: I hope they challenge you on it. They won't, because they know they're wrong, but I wish they would, because I'd like to see you wipe the floor with them. Thanks.
Mr E.J. Douglas Rollins (Quinte): Thanks for the presentation. I too am interested in the six months and the two years, because I sit here with a little bit of amazement to think that you object to moving the two-year period back to six months to hurry up the expedition of making that claim and making the thing happen a little bit quicker for the person who's objecting, and you turn right around within two or three breaths and tell me that extending it from 15 to 45 days is the wrong thing. Is it like the windshield wiper? Are you wrong on one side and right on the other, or which way? I don't think you can have it both ways. If we want to make this system work better, we've got to shorten that period of time, yet you object to the opposite way. I'd just like to point out to you, as a person sitting here and listening, that I think you should be able to say it's either one way or the other. You're trying to tell us that it's both ways. That's my comment on it.
Ms Glaister: Our objection to the change from two years to six months is that the proposal is that you can only go back six months from the date of the claim to claim wages that you're owed. If you've been working in a job for five years and you've been paid $5 an hour, you're out a lot of money. As it stands now, you can only go back two years from the date of the claim and claim money for those past two years, and that's only if you file your claim the moment you're terminated. Being able to go back only six months means that you're only able to claim a quarter of that amount.
Mr Pat Hoy (Essex-Kent): I too agree that the legal opinion of this bill is unanimous in its opposition as we go through these hearings.
I'd like to ask you a question, though, that is maybe cause and effect a little bit. Through your legal services, do you have any knowledge of evictions either going up or down at the current time in your service area?
Ms Bapooji: I can say they've increased. We get a lot of calls. We also do a lot of referrals at Downtown Legal Services. The tough thing is, we get calls at the last minute from a number of people who have been evicted and not known about it, and those numbers have increased. The problem also is that our ability to assist those people has been frustrated just because of the demand for our services. While we've seen an increase in evictions, our ability to assist those people has also decreased or at least has been challenged. We're referring a lot of people to other legal clinics in the city. It's been difficult, I know, for these people. But I would say we have seen a pronounced increase in evictions and eviction proceedings. A lot of times we're acting last minute, going into court to try and avoid an eviction at the last minute, so we have seen an increase.
Mr Hoy: In your opinion, the bill could make that situation worse, that evictions would potentially go up.
Ms Bapooji: Yes. As Catherine pointed out, I think there's a correlation between how much workers earn and their ability to receive their wages and then in turn their ability to pay their rent and avoid being enrolled on welfare. I think that's a correlation which needs to be pointed out. The effect of these changes is not so limited to an employment sphere and employment actions; it actually goes broader, more social assistance matters, landlord-tenant matters etc and also potentially criminal matters. If people aren't being paid, that can have an adverse effect.
The Chair: Thank you both for taking the time to come and make a presentation before us this morning.
OSHAWA-CLARINGTON CHAMBER OF COMMERCE
The Chair: That leads us now to the Oshawa-Clarington Chamber of Commerce as our next presentation. Good morning. Welcome to the committee.
Mr Peter Mitchell: Good morning, ladies and gentlemen. My name is Peter Mitchell. I'm executive director of the Oshawa-Clarington Chamber of Commerce. The Oshawa-Clarington Chamber of Commerce is the largest business organization in the region of Durham and represents over 800 members. Our membership constituents include businesses and organizations ranging in size from one to three people to large organizations such as General Motors, which employs many thousands of individuals. We greatly appreciate the opportunity to present our views on this important matter and hope that in some small way our comments will add to the discussion and serve to improve everyone's understanding of the issues at hand.
No system, procedure, methodology or for that matter ideology is perfect. For this reason we all try, in our daily endeavours, to improve the quality and efficiency with which we conduct our affairs, be they personal, business or political. The call to analyse and improve this piece of legislation is very probably long overdue, and if one considers that our organization represents businesses employing in excess of 25,000 people, the outcome of this analysis will have a direct bearing on the lives of many of our members and the individuals who work with them and for them.
The government of the day is to be applauded for its businesslike approach to legislative reform in this area. A two-stage process with a primary emphasis on administrative issues is both practical and desirable. A solid working platform for further analysis and improvement is critically important, and we believe that the stage one amendments will permit this to occur.
Relative to stage one of this process, we agree with the government that the three most important elements of administrative efficiency in this instance are language and the need to ensure that the bill speaks to the resolution process in a manner that is easily understood by all the parties involved; expediency both in terms of resolving employees' claims and creating an environment that supports the employee's obligation to mitigate employment, salary and wage-related damages; cost effectiveness relative to the taxpayers' demand that the system actually work and that his or her investment in that system is not wasted.
We believe that Bill 49 will support these objectives while at the same time protecting and enhancing the minimum employment standards of our workers.
The Oshawa-Clarington Chamber of Commerce supports the either/or proposals which would permit an employee to make a choice of pursuing a claim through the courts or through the ministry. There is little doubt, we believe, that the majority of claims management activity will be conducted through the ministry. The elimination, in most cases, of the multiple-option provision is both practical and desirable in that employees and employers can avoid unnecessary costs and delays in arriving at a settlement of the issue.
Further, we firmly believe that any proposal that supports complaint resolution through the mutual agreement of the parties involved in the dispute will expedite the process. The cost saving that could be realized as a result of the implementation of this proposal could be significant and would inure to the benefit of the employer and the employee.
The proposed alterations to the claim notification period are both pragmatic and desirable from this organization's point of view. As a practical matter, an employee has a primary obligation to himself or herself to seek advice as required to make a decision as to a course of action appropriate under the circumstances and get on with it.
From the employer's and employee's point of view, a six-month claim notification period instead of the current two-year framework will alleviate a great deal of uncertainty and allow both sides of the issue to deal with matters that are still fresh in their minds.
One area of concern we feel should be addressed concurrently with the changes in limitation periods is the amount of time given over to employment standards officers to make decisions regarding the issuing or non-issuing of orders. Retaining the two-year time frame for this important function is impractical, and we would respectfully suggest that a nine-month to one-year time limit be adopted.
We agree with the proposed extension of the appeals period on orders from 15 to 45 days. Simple logistics come into play here, and it is entirely conceivable that an elevated level of claims resolution will actually occur during the increased appeals period.
The proposals speak to a maximum claim amount of $10,000, with claims in excess of that amount being dealt with by the courts. As previously noted, we support the resolution of claims by ESOs prior to a full investigation. This process saves time and money and should result in an expeditious settlement of the issues. The $10,000 limit is reasonable. Claims in excess of that amount usually involve a lengthy examination and litigation process and probably belong in the realm of the courts.
We respectfully recommend that some consideration be given to a minimum claim amount to avoid nuisance claims. We would suggest $250 or an amount perhaps equivalent to one week's minimum wage.
This chamber strongly supports the proposal to contract out collections. Second only to the federal and provincial revenue ministries, the private sector collection industry has the best resources and the expertise to facilitate collections of amounts so ordered. ESOs are dedicated professionals whose primary function is to facilitate solutions to the broader issues that arise between employers and employees. They should be allowed to remain focused on this. Outsourcing this function and giving collection agencies some flexible guidelines within which they can negotiate settlements makes sense and will result in more claims being settled at an earlier stage in the process.
The Oshawa-Clarington Chamber of Commerce supports the Ontario Chamber of Commerce initiatives which speak to the provisions of Bill 49 allowing for a greater right or benefit assessment as a package to the second stage of this process. The Ontario chamber is correct in its belief that allowing for a greater right or benefit as a package is a reasonable and fundamentally sound component of allowing workplace parties the freedom to negotiate and mutually agree to arrangements which, if viewed separately, would not be in compliance with the act.
The proposed amendments will give benefits to workplace parties who wish to negotiate standards that, when taken as a package, provide greater rights or benefits than those spoken to in the amended Employment Standards Act.
The proposed bill includes a number of additional recommendations which are necessary to improve the processes by which information is obtained, definitions are refined and uncertainty is reduced. We support these reasonable initiatives.
The Oshawa-Clarington Chamber of Commerce supports this significant undertaking on the government's part and would offer that it is reasonably well-thought-out and promotes reliance on processes that already exist in the workplace. Additionally Bill 49, when passed into law, will make better use of the very finite resources available to the staff at the ministry departments responsible for managing this important piece of legislation.
We thank you for the opportunity to participate in this very important endeavour.
Mr Jerry J. Ouellette (Oshawa): Thank you very much for your presentation. We regularly hear about what has been classified as a race to the bottom. How many members of your organization have actually moved to other locations? Alabama is the one that's used. How many have moved to Alabama?
Mr Mitchell: None that I'm aware of.
Mr Ouellette: How many do you expect, when we hit this so-called bottom, as we're being classified, to attract or bring in directly from Alabama because of it?
Mr Mitchell: I think there are certain initiatives taking place in the greater Toronto area, for example, that would see a marketing authority being established that in fact will bring businesses from US centres into the greater Toronto area. I don't see that as hitting the bottom. I see that as aiming for the top.
Mr Ouellette: So then would you classify this as actually a race to reality, as opposed to a race to the bottom?
Mr Mitchell: I think any race to the top is probably where reality is located.
Mr Ouellette: I think my colleague Mr O'Toole has a couple of questions.
Mr O'Toole: I just want to ask you a question, Peter, thank you very much. The $250 minimum amount -- we've heard from a number of poverty and coalition groups and I'm sympathetic to their concerns that whatever an employee has earned, an employee is entitled to. We're looking to be punitive with the bad employers. What kind of response do you have to that kind of an impression?
Mr Mitchell: I think a minimum has to be established, but I also think that common sense comes into play here. I think someone at the ministry, whether it be the ESO or some other individual working at the ministry, has to have the ultimate decision-making power to decide whether a claim is frivolous or not. But I think, if it is in writing that a $250 limit, or whatever number is eventually chosen, I think it in fact will lead to a lot of people not making frivolous claims.
The Chair: Thank you, Mr O'Toole. Moving to the official opposition.
Mr Hoy: Good morning. It's not a criticism of your brief at all, but I was surprised that the government didn't ask you whether you weren't acting a little bit like a windshield wiper. You like the reduction from two years to six months, but you favour going from 15 days to 45. So the same question was brought up a moment ago. I thought the government would have asked you the same line of questioning.
I take note of your $250 suggestion. It's quite true that we've had many presentations saying that there should be no minimum, but I appreciate the fact that you've given this some thought as to co-relating a minimum-wage earner and a full workweek. However, when you start drawing lines, people start falling through cracks. I think our responsibility here is to make sure that people don't fall through those cracks. But I do appreciate your thoughtfulness in that regard.
Mr Mitchell: Well, Mr Hoy, I think it's absolutely everyone's responsibility to ensure that people don't fall through the cracks, but I think some guidelines have to be set. They have to be reasonable guidelines, but there has to be a mechanism that ensures that the human side of this is not ignored.
Mr Christopherson: It's interesting that you quite effusively say you greatly appreciate the opportunity to present your views on this important matter and hope your comments will add to the discussion and serve to improve everyone's understanding.
I agree with that. I guess I wanted to ask you, do you think the government was wrong in their initial position of trying to prevent public hearings and ram this through by the end of last June?
Mr Mitchell: No, I think everyone who is involved in this process is involved in a learning process too and I think public opinion is obviously very important and I think it's led towards what we see here today. I don't have a problem with that, no.
Mr Christopherson: So you would agree the government was wrong to initially say they weren't going to hold public hearings?
Mr Mitchell: Well, you know, Mr Christopherson, I think at the end of the day all that matters is that we are in fact sitting here. I would suggest there are probably examples in any government in the past 100 years that their public consultation record has not been fabulous, but I think we all improve.
Mr Christopherson: You make the statement about nuisance claims. We've heard an awful lot of people talk about situations where a relatively small amount -- particularly compared to those with very high incomes -- perhaps $100, would not have any recourse to get back money that they're owed. You make the case that you'd like to see somebody have the ability to decide, but one could argue that was the whole purpose of having the law there without a minimum before, that an ESO would come in and make a determination on whether or not there was a legitimate claim. As the law is written now, proposed to be enacted, there will be no opportunity for someone who is owed $100, who really can't afford to take a day off work, can't afford to hire a lawyer, and if English is not their first language, couldn't, even if they had the time, go in and make decent representation for themselves, who quite frankly will just be out that money. I put that in the context of this is an unscrupulous type employer, not the type that I'm sure you would want to be associated with, but they exist. What about that employee? What happens to their right as a result of this minimum threshold?
Mr Mitchell: As I previously stated, I think it's incumbent upon all of us to ensure that people like that don't fall through the cracks, and I would also suggest that at the end of the day there will be some mechanism in place. I'm not here to tell you what that mechanism will be, but I don't think people will be allowed to fall through the cracks.
Mr Christopherson: I'm sorry. With respect, all the presentations from people who represent workers, especially unorganized workers, in that circumstance, have pointed out -- a lot of them are lawyers themselves, who understand these things better than I -- make the case that Bill 49 will leave someone in the situation I have described, just out in the cold with no recourse. They're just beat for that money.
Mr Mitchell: I think we can all think of anecdotal situations that might relate to that, but I don't think they're the governing issue. I think the whole point behind these hearings is that the government is listening, has proven that it can listen and that at the end of the day people will not be allowed to fall through the cracks.
Mr Christopherson: I would suggest to you that all the evidence we've heard so far points to quite the opposite. We'll find out whether they're listening on Friday when we see the government's amendments, but I just want to point out to you that the claim that somehow a minimum threshold enhances this bill -- you went and made the case that Bill 49 enhances rights -- even if it's questionable whether someone falls through the cracks, I think it's a bit of an exaggeration to claim that this somehow enhances the rights of the most vulnerable workers.
Mr Mitchell: I think too that it's important for the sake of efficiency that some minimums be set, just to keep those nuisance claims away. They're costly, they're expensive, they tend not to be dealt with expediently, and I think that detracts from the value of the system overall.
Mr Christopherson: I worry that --
The Chair: I'm sorry, Mr Christopherson, but we're over time there now.
Thank you for your question, and thank you very much for taking the time to come and make a presentation before us here today.
Mr Mitchell: It's my pleasure. Thank you very much.
METRO TORONTO CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC
The Chair: Which leads us to our next presentation, the Southeast Asian Legal Clinic. Good morning. Welcome to the committee again. It's good to see you. Again, we have 15 minutes for you to divide as you see fit.
Ms Avvy Go: My name is Avvy Go, and the correct name of our clinic should be Metro Toronto Chinese and Southeast Asian Legal Clinic. We were established in 1987, and since then we have dealt with over 20,000 people who live in the Metro Toronto area, low-income people from the Chinese, Vietnamese, Cambodian, Laotian communities, so our clientele are people who are non-English-speaking. Many of them are new immigrants but also many long-time residents and citizens of this country.
Because of the clients we attract and we serve, we see a lot of people who are working in low-income, manufacturing, service industries, many garment factory workers, restaurant workers, people working as domestics, blue-collar kinds of jobs, and from our experience, these people, usually because of the language problem and the lack of familiarity with the system, very often don't know what their rights are under various laws, including employment standards. Even when they do, many of them are unable to enforce their rights on their own because of the various barriers they face and because of the lack of power they have vis-à-vis the other party, and in this case it will be the employer. So a lot of times the Ministry of Labour, the employment standards branch in particular, is the only way, the only body that can really assist these workers in order to get the money they have already earned.
The problem we have seen with the ministry in the past is the lack of enforcement, that the law is there but very often it is not enforced for one reason or another. I have included in my brief a very particular case which involved Lark Manufacturing Co. I included that case because this is the only case in which the ministry has actually prosecuted a particular employer for their violation of the Employment Standards Act.
The story of Lark is very simple. There are 148 workers. Most of them are Chinese-speaking. Many of them have lived here for a long time. They've worked for the same employer for a long period of time, and one day they went to work and found out that the company had closed down, the factory closed down. Many of them have been owed months of wages and they were not given any severance pay, termination pay. They had no choice but to go to the Ministry of Labour through a communities agency, and it took the ministry two years to decide whether or not they were going to do anything about this, and in the end they did issue an order. The employer refused to comply with the order, and it took another three or four years before the case went to trial. Then the provincial court judge found that the employers were indeed liable for the half-million dollars that was owed to these workers, but it took another level of court and finally to the Court of Appeal before the workers got the final victory that it's confirmed that they should get the money back. But as of this time -- it's seven or eight years now after Lark closed down -- they have not seen a cent of the money, because the employers in the meantime declared bankruptcy but also opened and closed several factories, employed some of the same workers and even scammed the landlord. They didn't even pay for the rent.
It's that kind of situation that we are seeing, and Lark, unfortunately, is not an exception. We are seeing cases like that every day. Since Lark, we have dealt with three other cases of this nature and of this scale and scope, and on a day-to-day basis we see workers being denied minimum wage protection, denied vacation pay. It's just as common as traffic violations almost. I put down in my brief the comparison, that we spent so much money going after people who didn't pay for their parking tickets, and yet we are not paying as much attention to some very fundamental rights here, the right to be paid for the work that you have done.
Of course, there are many workers' rights advocates who have come before you and talked about the importance of maintaining and enforcing workers' rights, but even if we put aside these fundamental questions and we try to understand it from the perspective of the political reality of the day -- this government over the last year or so has been talking about how people should work for their pay, whatever the source, that people have been penalized, welfare recipients have been penalized for not having worked for their welfare cheques. Here we are, we have a group of people, a sector of workers who have worked in order to get paid, but the government is telling them, "Sorry, we're not going to help you to make sure that you get your money back." Of course, in the end, it is the taxpayers who are paying for them, because many of them already are getting minimum wage. If they are not even getting that, what other alternatives do they have but to apply for welfare?
Even in that context, forget about workers' rights; just looking at the political agenda of the day, it doesn't even make sense. In particular, some of the objections that have been put forth, which we also included, and the recommendations that we adopted from groups such as the Employment Standards Work Group -- some of the particular points are of critical importance to be addressed: the limitation period, the six-month limitation period. Many of my clients, the day before they lose their job, they still would not go to the Ministry of Labour. They would only go because they have no other resource. They would only go because they have nothing else to lose, they don't have a job to protect, which is what happened in the Lark case, which is what happened in many other cases that I'm dealing with.
With respect to the minimum cap, I would suggest to you that whether it's minimum or maximum, employment standards violations -- I guess in a way it's different from going to civil litigation and trying to assess the damages, you know, should we pay $50,000 or $20,000 punitive damages or whatever. Employment standards violation is very particular. Either you get minimum wage or you don't. Either you get severance pay or you don't. There is nothing magical about these numbers. It's very easy to assess and calculate, so there is really no reason why the cap should be put.
I think the only issue is how much resources you want to put into the ministry to ensure that whether it's a $100 claim or a $20,000 claim, you deal with them and in an efficient way. I guess that's the only point I would agree on with the previous presenter, that we do have to make sure the claims are being dealt with in a very efficient way and expeditiously. It's to the benefit of the employees as well as the employers.
I close with a comment that a client of mine made to me one time. He was just amazed how difficult it is to get your money back, the money that he has already earned. So he made the comment about how it seems like it's easier for him to win a lottery than to get his money back. Unfortunately, sometimes that's how people feel. I guess maybe the government is saying, "Either we have a choice of helping you get your money or we'll build more casinos and you go and collect your money there." But that's absurd. The point is if people have to come to that kind of conclusion, it's really very sad.
I think we would urge the committee to really seriously look at some of the issues here, whether you are trying to deal with it as a workers' rights issue or whether you are trying to deal with it as an issue that will be consistent with the rest of your agenda.
The Chair: Thank you very much. That leaves us with bang-on two minutes per caucus for questioning. This time we'll commence with the official opposition.
Mr Hoy: Thank you very much for your presentation. You did very well speaking away from your notes, and you understand the issues quite well.
You have a concern for protection and then, coupled with that, enforcement. Enforcement of the act has been an ongoing problem. Would you have any opinion, if there were repeat offenders of the Employment Standards Act, that those companies' names would be made public? Do you think that would be of any advantage?
Ms Go: I have a stronger opinion than just making their names public, but I think that would be one way of going. Honestly, look at the offences that these people have committed. In effect, they are stealing the labour of the people; profiting by not paying the money.
In a way, I see it the same way I see theft under the Criminal Code. They, in effect, are stealing from these people, but I guess in our society we don't recognize it as such yet. A lot of times when I look at these people -- and some of them are from my community -- I say, "If we are deporting drug dealers, we should be deporting these people." This is how strongly I feel about people who violate workers' rights. But I think a very good place to start would be to make their names public and just shame them.
Of course, we could also do the carrot-and-stick thing. We could also publicize names of employers who protect and honour their workers' rights, who work cooperatively with their workers. There are people like that. One example would be a Chinese restaurant, which is one of my favourite restaurants, that's run as a cooperative. It's one of the most popular restaurants in town. So I think it's both: We publicize names of employers who violate the law but also people who honour the law.
Mr Christopherson: Thank you very much for your presentation. We appreciate it.
You may have been in the room when the previous presenter was here, Mr Peter Mitchell of the Oshawa-Clarington Chamber of Commerce. In his submission, he talks about the fact -- one of the few who has actually been forthright enough to say and try to characterize the minimum threshold as a prevention of nuisance claims. Based on what we've heard across the province, I think many people would find that, at the very least, difficult to swallow and probably feel much more strongly about it being characterized as nuisance claims. I think this may get referenced a fair bit during today's hearings, so I'd like to know how you feel about the idea that a minimum threshold is necessary to avoid nuisance claims and how you see the reality of that.
Ms Go: Because the reality, as I see it, is that many workers would not actually come forward unless it becomes a very serious violation, I wonder how many claims the ministry actually receives are of such an insignificant amount. Even if there are workers who are courageous enough to say, "I'm not getting minimum wage paid, and even though I'm still employed, I'm going to file a complaint," I think that's all the more reason that the ministry should come forward to protect the workers and deal with the claim seriously, because if it doesn't there will be continued violation in that same workplace. It's only a nuisance claim to the employer. It will not be seen as a nuisance claim for people, as you mentioned, who are making only $200 a week or whatever. Any money, even $1, would not be a nuisance to them.
Mr Joseph N. Tascona (Simcoe Centre): The government's thrust with respect to Bill 49 essentially -- and I think the consensus out of these hearings -- is that the most vulnerable workers are non-union and not the union workers. The government resources here, the thrust of Bill 49, is to put in protections for the non-union workers, because the unions have the procedures and they have the resources to protect their own. That's where the government thrust is going in terms of all our resources, to protect the non-union workers, because the non-union workers can be represented by the government and the union members can be represented by the unions. That's where the thrust is and that's where the resources are going.
There's also a consensus that there's need for change with respect to the enforcement. I frankly believe that the employment standards officers are doing a good job of enforcement. The problem is that the collection rate is not satisfactory for anyone. The collection rate is 25 cents on the dollar. The change and the thrust here is going to be to put it into the hands not of the employment standards officers, which is a new function they were given in 1994, but into the hands of professionals. So what we're trying to do is change the collection process but also put the government resources to protect the non-union workers.
What I'd like to say about the Lark Manufacturing case is that I had some involvement in that in a legal capacity with the receiver at that time and I would say --
Ms Go: Yes, I think we were in the same firm.
Mr Tascona: That's right. In 1988 that case started and it finished in 1996.
Ms Go: Right.
Mr Tascona: I'd have to say that the government's commitment to bring those owners to heel under the circumstances -- I think I have to commend them. The bankruptcy laws -- they've gone bankrupt twice, as you noted -- are the problem with them. We have no control over bankruptcy laws. That's under the federal jurisdiction, and we'd like to see some changes there. I think if we could see changes in the bankruptcy laws, that might protect workers from employers like that, because 50% of the time we can't collect because the employer goes bankrupt. That's a very important area that we don't have control over.
Ms Go: I agree with your last comment. There are certainly changes around the Bankruptcy Act that need to take place. However, I disagree with your comment that Bill 49 would actually enforce or enhance the rights of non-unionized workers for the reasons that I have outlined and many workers' rights advocates have outlined before you. However, just looking at the --
Mr Tascona: Why do you say that when we're going to put all the resources in non-union workers?
The Chair: Could Ms Go just finish her comments. We're over the time already.
Ms Go: For one example, the fact that you limit the six-month period, assuming that people would actually file the complaint right within that period of time when in reality many workers would not wait till they lost their job, for example, before they would file a complaint -- and that could be two years or three years down the road. Even the two-year limitation sometimes doesn't cover all the assessment that could be made against the same employer.
Mr Tascona: But there has to be a time frame. You just can't let it wait.
Ms Go: But there's nothing wrong with the existing --
Mr Tascona: Thirty days --
The Chair: Sorry, Mr Tascona, but our time has expired. Thank you, Ms Go. We appreciate your taking the time to appear before us today.
BOARD OF TRADE OF METROPOLITAN TORONTO
The Chair: That leads us now to the Board of Trade of Metropolitan Toronto. Good morning. Welcome to the committee. You have 15 minutes for you to divide as you see fit between either presentation or question-and-answer time.
Mr Sandy Douglas: Thank you very much. My name is Sandy Douglas and I am the director of employee relations for Consumers Gas and also a co-vice-chair of the board of trade's labour law committee. With me is the committee's chairperson, David Brady, who is with the legal firm Hicks Morley Hamilton Stewart Storie. On behalf of ourselves and our peers on the committee, we thank you for allowing us to address you today. David will be presenting our brief, after which we'll do our best to answer any questions you may have, but before he starts I would just like to point out that the outline of the board of trade is included in the kits that we have provided to you, along with a copy of our presentation.
Mr David Brady: The principles we see in Bill 49 the board of trade supports. I think one of the things that shines through is that workplace disputes, to the extent possible, should be solved in the workplace by the parties directly and at the parties' expense. I'm thinking of course about unionized workplaces when I make that point.
Obviously minimum standards have to be established and maintained, as they have been in the Employment Standards Act, for all employees, but in unionized settings where compensation packages are negotiated in collective bargaining, the parties to collective bargaining, and particularly the bargaining agents, ought to be able to trade as between compensation elements such that the compensation package exceeds the minimum standards but can be configured by the parties themselves. Why is it that people away from the collective bargaining process think there is an answer, and a better answer, as long as there's a minimum standard that has been achieved from a compensation point of view and there are lots of elements to the compensation package?
In terms of adjudication and remedial ability, that was the focus of the previous speaker and obviously it is extremely important. The thing that ought to be endorsed -- and it makes sense -- is that if there is a workplace mechanism that is already in place and works, then that should be one that is built upon in terms of its use, and the remedial powers ought to include employment standards remedies.
The suggestion of course is that the grievance arbitration procedure be used, and that makes sense. You have a whole list of Ministry of Labour arbitrators who have had vast experience. They're knowledgeable. They're acceptable to the parties. They are known to the parties. Many collective agreements have rosters in them of the arbitrators that have been chosen at the collective bargaining table. These arbitrators have employment standards experience. It is not rare -- in fact it can come up in the regular course of terms-of-employment grievances -- that employment standards issues are front and centre.
Arbitrators know collective agreements because they appreciate the collective bargaining process. There's no cost to the public because it's a workplace issue that ought to be solved there, and the thing is, you'll have better results. You've heard many presentations and I would be surprised in those presentations that someone has not addressed what referee decisions there are out there on a variety of subjects, in a complex circumstance that you're trying to simplify, that are simply inconsistent with each other. It depends on who the referee is with respect to where the resolution may come to by way of bottom line. There has to be more consistency. People have to be in a position to advise clients from a worker point of view and from an employer point of view with some sense of reliability.
When you have a labour arbitrator or a board of arbitration do this kind of work, you will have the cases reported in the labour arbitration case law. There will be consistency and precedent that are built up in a system that already exists, that's well respected and has been in place for I think 30 years. The grievance arbitration process works and it can work for the benefit of the workplace parties and for the benefit of employees and employers.
Combined with that, and perhaps a little out of sequence and maybe anticipating step 2 of employment standards reform, we think employment standards and occupational health and safety are prime candidates for best practices and accreditation, and we would hope that the focus on workplace and the focus on best practices coming out of the workplace is continued and made more complete in the next phase.
Coming back to arbitrators, since that is a very enforceable and familiar mechanism, there are a couple of questions that need to be sorted out. I know you've heard these questions before, but please bear with me. We have three. When you're looking at arbitration under the Employment Standards Act, you have to have the Labour Relations Act side by side and go through sections 48 and 49 to see what the powers are and how things work.
Will, for example, an employment standards circumstance have access to expedited arbitration that's provided for in the Labour Relations Act? Will there be, in an arbitrator's jurisdiction or a board of arbitration's jurisdiction, the power to extend time lines and deal with time lines? If you have a mixed matter between a collective agreement and employment standards where there is a knot of issues that has two different sets of time lines, a collective agreement and an Employment Standards Act time line, how do you sort it out? In our view, the best way to sort it out is probably to go to one set of time line rules, and that would be as negotiated in the collective agreement.
The last thing is, will decisions of arbitrators be, in a sense, reviewable or appealable? We would say that the section in the bill has to have within it the provision that the decision is final and binding in the same fashion that presently exists for a number of the employment standards officer provisions.
The next thing that we think is important as far as making things user-friendly is concerned, and I'm talking about from the entire community, employers and workers, is that we can't have a continuation of duplication of process. The civil action provisions as they relate to employment standards complaints are very important. I think they're very important for everyone. I'll give you an example, and this is not an employment standards example but I think it hits the nail on the head. I was involved in a 40-day case having to do with sexual harassment. We were at the Workers' Compensation Appeals Tribunal. We were there for that length of time because it was associated with stress. In an office blocks away, at the same time, we were involved with a human rights complaint that was operating, separate track, concurrently.
There is the prospect in that circumstance of a complaint under the Occupational Health and Safety Act before the Labour Relations Board. There's also the prospect of a grievance under the collective agreement if there's a non-discrimination clause and some reference to human rights or, indeed, employment standards.
That cannot be allowed to exist because it breeds disrespect for the systems. It is too expensive. It is used by way of adversarial tactics, and I'm not critical of that. If it's there to be used in an adversarial tactical way, there can't be criticism, because that is how the systems operate. But I think you have an opportunity to make, in employment standards circumstances, as between the act and civil proceedings, something that works better, and hopefully you'll continue with that approach as you proceed with other amendments and other acts.
There's a lot of discussion about the $10,000 and the minimum threshold that a claim might be required to have. We think that $10,000 is a reasonable limit. It's not something that is brand-new to the act. There has been a limit in the past. The $10,000, I think, would probably deal with over 95% of claims. There would be a very small percentage that would be seeking moneys in excess of that. Moneys in excess of that would likely attract someone to seek some legal advice, and there are I think now abbreviated processes in the courts for that to be followed there, which would include employment standards and any common law rights. We think the $10,000 makes sense, because in terms of minimum standards I think the resources and the focus have to be where they are most needed. If you're looking at more than $10,000, it would be, as I say, 4% or 5% of the claims, and there are remedies there with the legal advice that would presumably go along with it, in any event.
As far as minimum is concerned, I think any system has to have some practical definition. By "practical definition," it means it has to be workable and enforceable. By "practical definition," it means that the resources that go to support the claim and the enforcement of it are appropriate in the circumstances. I don't know if there's a magic number, but to the extent that the person who made the presentation ahead of us has said that there will be monetary issues that might be small in one context and large in another, there ought to be some mechanism. If that can be done by way of regulation or done in a way which is not hard and fast, where judgement can have an ability to be applied, then that to us makes sense.
The time limits: The two years is presently in the act in a couple of ways, so there's not, I think, a dramatic change there. The 15 to 45 days makes sense to us because there is an opportunity in that 15 to 45 days to settle, to get advice, and that would be both with respect to employees and employers. Again, we see something that has to have definition, that can be workable, that people can rely on. That has been what the system suffered from in the past.
We had one question in our brief about the government's statement of seeking to clarify vacations. In subsection (1) of that bill provision, it says "whether or not someone's been on the active payroll." You go down to subsection (3) and it talks about a calculation based on what someone has earned. They seem inconsistent to us. If someone has not earned any income, 4% of no income is still no income. At the same time, the message is, whether you're active or not, you have an entitlement.
So we think that there are conflicting messages. Expectations will be raised, but the practical application will be simply confusion for workers and for employers. We think that if someone has a vacation entitlement, it has to be identified and the 4% is there, but it should be on active employment, because, after all, it is a calculation that's based on what has been earned before. As it presently sits, in our view, it's simply not clarity. It is lack of clarity.
We are very supportive of the pregnancy and parental provisions that clarify the distinction between service and seniority; there is one, there always has been. It hasn't been appreciated in the statute, but I think, like referees, as I said earlier, we'll find different decisions blending the two concepts. It ought to be very clear in the statute, and I think a great stride has been made to bring that clarity.
I won't spend a lot of time in collections, just to underscore what you've heard before just this morning. It makes sense that resources go to where the best chance of collections are. I think any record better than 25% has to be a huge accomplishment, because at this point it's simply not acceptable. Thanks very much.
The Chair: Thank you. That leaves us with fewer than 30 seconds, so we appreciate you scheduling your time very efficiently there and certainly appreciate you coming before us and making a presentation on Bill 49 this morning.
32 HOURS: ACTION FOR FULL EMPLOYMENT
The Chair: That takes us to our next presentation, 32 Hours: Action for Full Employment. Good morning and welcome to the committee.
Mr Anders Hayden: Good morning. My name is Anders Hayden. I'm with 32 Hours: Action for Full Employment. I would like to thank the committee for the opportunity to speak today. Our group is a member-driven organization committed to a reduction and redistribution of work time in pursuit of a more economically just and more ecologically sound society with a high quality of life for all.
Our group is composed of citizens from a wide variety of backgrounds. What unites us is a deep concern about the intolerably high levels of unemployment in this province and in this country and a belief that the solutions that we've relied upon in the postwar era to solve our economic problems are no longer up to the task as we enter the 21st century.
With respect to Bill 49, we are concerned about the proposed amendments to the Employment Standards Act, which we believe threaten to exacerbate the irrational situation of some people working excessively long hours while others remain unemployed. As an alternative, we suggest the government begin to move in an opposite direction, towards a reduction and more rational distribution of work hours.
We're concerned about two features of the government's agenda. First, the amendments in Bill 49 serve to weaken the enforcement of all employment standards, including those related to hours of work. Secondly, the government has made clear its intention of eroding the existing standards for work hours, overtime pay, public holidays and vacations.
With regard to enforcement, as I said, we're concerned about enforcement in this province and the lack of enforcement currently. Among the most common complaints on the Ontario Federation of Labour's bad-boss hotline are abuses of standards for hours of work and overtime pay. We were struck by the testimony in this committee by an anonymous individual from Sri Lanka who was working 56 hours a week before his employer pressured him to work 70. This lack of enforcement of employment standards is not a new problem; however, rather than improving the situation, we believe this bill would actually worsen it.
Bill 49's provisions regarding enforcement of employment standards have been very well critiqued by others, such as Osgoode Hall law professor Judy Fudge, whose analysis we have endorsed. We would just like to highlight some of our main concerns.
If Bill 49 is passed, the one third of Ontario workers who are unionized will not have access any more to the enforcement system that's currently in place. We believe that this will put increased pressure and burdens on unions. Those unions with limited resources and negotiating power will not always be able to succeed in pursuing employee rights. This amounts to making the enforcement of the act a question of might rather than right. The result can only be weaker enforcement and a greater number of violations of employee rights.
As for the more vulnerable non-unionized workers, we find it difficult to understand how the government can express so much rhetorical concern for them on the one hand, while at the same time putting more obstacles to the pursuit of their rights. The time limitations, for example, limiting the time for which employees have to make a claim to six months, put a major new obstacle to employees, who often will not make a claim until they feel secure in new employment. Six months does not give them adequate time to find that new employment. The limit of $10,000 for money that the employees can claim through the ministry, as well as the clause allowing the government to introduce a minimum claim, will make it more difficult for employees to recover money owed for wages, vacations, overtime pay and so on.
Also, with respect to the privatization of collections, we agree with the government that something has to be done to improve the very low rate of collections; however, we're rather sceptical about whether this is the answer. We see no evidence that privatizing collections will improve it. In fact, we've seen evidence to the contrary. There was a recent article in the Globe and Mail which provided such evidence. Furthermore, the privatization of collections could create new pressures on employees to settle claims for less than they are owed.
It's difficult to understand the rationale for these changes in terms of their benefit to the people of Ontario, but we believe there's little doubt about their effect. Employers will have less and less to lose and less chance of being caught if they ignore the law, including making their employees work longer hours, not paying overtime premiums or not providing vacations. This isn't just bad news for the people in Ontario who work for unscrupulous employers; it's terrible news for the unemployed, who would benefit most from stronger limits on overtime and long hours.
The first thing that got us concerned about this legislation was a clause that is no longer in there, temporarily. That was the clause that would allow the negotiation of flexible standards for hours of work, overtime rates, vacation pay, statutory holidays and severance pay and that would allow negotiation of standards that are weaker than what's in the act. Although the minister has since withdrawn that clause, she has stated that it will be resurrected in the comprehensive review. The government has made its intention very clear with respect to the oxymoronic idea of flexible standards. I think this deserves at least some brief comments.
With hours of work, overtime rates, vacation pay and public holidays about to be up for grabs in collective bargaining, the result, in practice, would be a disappearance of the guaranteed minimum protections on these matters. Although it would require agreement by the union in question, in today's economic climate of high unemployment and high capital mobility there will be considerable pressure for workers to agree to less than minimum standards, and employers would almost certainly expect any flexibility agreed to by unionized workers to be matched by non-union members as well.
If any significant erosion in minimum entitlements regarding hours of work became widespread in those workplaces where employees do not have sufficient bargaining power to resist employee demands, it would put downward pressure on standards for all Ontarians. Avoiding such a destructive race to the bottom is exactly the point of employment standards, but in the name of flexibility the government seems to be considering wiping out the basic floor protections that have limited excessively long hours.
Every workplace that increases hours of work is taking away employment opportunities from those who are unemployed. A year or so ago there were about 20,000 people lining up on a bitterly cold day outside GM trying to get a chance at work. None of them have been hired to date. What chance will those people have of being hired in the future if GM is successful in getting what it has said it wants in a collective agreement: 10-hour days and a 56-hour week?
In short, these amendments will make it more difficult for employees who are victims of employer abuse with respect to hours of work, overtime pay, vacations and other matters to have their rights enforced. This amounts to a signal to unscrupulous employers that abuse is tolerated, while scrupulous employers who respect their employees' rights will be put at a competitive disadvantage. This is troubling enough, even without taking into account the government's future plans for negotiation of flexible standards.
We ask whether this is the Common Sense Revolution. Common sense tells you that if you're making it easier for employers to make their employees work 50 or 60 hours a week, you're going to be eliminating jobs rather than creating them. By furthering the irrational trend towards polarized hours of work in which many workers are working long hours while unacceptably high numbers of people have had their work hours reduced to zero, the government will also be needlessly worsening its own financial picture. These measures will lead to higher costs for social assistance and other public expenses related to unemployment, resulting in higher government deficits.
These proposals are not about cleaning up the excesses of recent governments. They are a rollback of some things that Ontarians have taken for granted for over a century. If you go over to the Whitney Block on the grounds of this Legislature, you'll see a historical plaque commemorating the printers' strike of 1872 which led to a nine-hour workday. If the original amendments in Bill 49 are implemented, even that modest achievement will not be secure.
We in 32 Hours: Action for Full Employment think a very different and bold approach is required, one that will address the problem of unemployment and the situation of the unemployed and the underemployed.
We see a world today where there is more and more division between the haves and the have-nots. One of those inequalities is between those working excessively long hours of work and those who have no work at all. In many families, you have a total workweek of over 80 hours in the family now, both partners working full-time. Many people are faced by a time squeeze, an unmanageable one, which has negative effects on mental and physical health and very significant detrimental effects on family life. At the same time, we see the number of unemployed and underemployed rising.
There's a major job crisis in this province and in this country. We know that official unemployment statistics are still around 10%. There's also a much higher rate of unemployment for youth. I'm a student myself. I see future job prospects out there to be pretty bleak. I'd like to ask the members of this committee as well to consider whether they believe that the job prospects for their own children are very positive in the future and whether we can resolve the job problem while relying solely on conventional measures.
It's worth taking into account the historical record of the reduction of work time. Between 1800 and 1950 work hours were reduced significantly through achievements like the 10-hour day, followed by the eight-hour day and the five-day week. Sharing the work helped to ensure that labour-saving technology created leisure, not unemployment. After the Second World War, we seemed to have abandoned that winning and proven strategy and Canada's level of unemployment has been rising since then.
In the late 1940s and early 1950s the norm for unemployment was 2% to 3%. Now our norm is around 10%. In the next recession unemployment could skyrocket even further because governments don't have the financial resources available to run fiscal expansion to moderate a crisis. We've been moving up an unemployment staircase and it's time we got off it. Reduced work time has been a big part of our history and it needs to be part of our future too.
I'd just like the government and the opposition members of the committee to think for a second about the high financial costs of high unemployment in addition to the human costs. We have very high costs for unemployment insurance and for welfare programs, as well as the additional health costs related both to overwork and unemployment. We also have higher costs for crime and policing in addition to lower consumer confidence and the sluggish domestic economy that's being held back by high levels of unemployment.
If we had full employment in this country, along with stronger controls on long work hours, we might have no federal or provincial deficits. We are already paying an enormous cost for the fact that many workers have had their work hours reduced to zero.
The members of the committee should also be aware that there are a number of examples, not only historically but also currently in the world today, where work hours are being reduced. There are cases of BMW and Hewlett-Packard, for example, in France and Germany that have managed to reduce work hours, keep pay constant and actually improve competitiveness because this was done in a way that allowed for more effective use of capital and longer operating hours. We have examples in Canada at the Chrysler minivan plant in Windsor where work hours were reduced, overtime was reduced and a third shift was added. These are the kinds of measures we need today.
We believe that a better distribution of work time can open up jobs for the unemployed and can improve the quality of life for the overworked. At a time when many suffer from a severe time squeeze, shorter work hours can give us time for family, community and ourselves. It can create new opportunities and hope for young people struggling to enter the workplace. By putting people back to work it provides a humane alternative for reducing government spending on unemployment and social assistance, thus helping to reduce deficits, and it can do this without increasing our demands on the environment.
Getting back to the employment standards in Bill 49, we have some alternatives we would like to suggest to what the government is doing.
We believe that the most direct and effective way to reduce unemployment is a reduction of the workweek. We therefore call on the government to begin the process of moving towards a 32-hour standard workweek. An immediate move to a 40-hour standard workweek, as recommended by the 1994 federal Donner report and the provincial Donner report in 1987, would be a positive first step.
Also, to ensure that a shorter standard workweek leads to new hiring, there's a need for better controls on overtime. We would encourage the government to introduce a maximum of 100 hours of overtime per employee in excess of regular working hours per year, for which compensation could be paid. Any overtime above that 100 hours would have to be compensated through time off in lieu of overtime. This was something that was also recommended by the Donner report. Employees should also have the right to take all overtime as time off in lieu if they so choose and employees should have the right to refuse all non-emergency overtime.
Reduction of work time is not only a question of a shorter workweek. There are other ways in which work time can be reduced, allowing social needs to be met, quality of life improved and opportunities for new hiring to be opened up. The Employment Standards legislation should be revised with this in mind. Some of these measures could include:
-- The right to three weeks' paid vacation. This would still leave us far behind most European nations where the norm is four to six weeks.
-- Guaranteed rights for employees to take unpaid extended vacations.
-- Improved parental leave, as recommended by the Donner report, and the right for employees to take at least five days of family leave per year, linked to the care of children or elderly family members, as also recommended by the Donner report.
-- Improved rights to sick leave and a basic entitlement to unpaid education and training leave are measures that could be added.
Furthermore, the employment standards legislation needs to take into account the increasing number of workers who do not have regular full-time employment. Improved standards are needed both to protect those in non-standard employment and to make the option of working part-time a more attractive one for those who wish to do so.
We urge the government to ensure that part-time, temporary and contractual workers receive the same hourly pay as regular full-time workers, the same employment standards protections, a fair share of benefits, and seniority rights. We also believe there should be a guarantee for individuals who want to work fewer hours to have the right to do so. No employee should be denied a request for reduced hours unless it is absolutely not feasible for that particular job.
Furthermore, we call on the government to vigorously enforce employment standards, especially for part-time workers and those outside the normal workplace environment, as recommended by the Donner report and by others. We believe this should include routine inspections of employers and real protections from employer reprisals for employees who lodge a complaint.
There should also be aggressive education about worker rights. For example, many salaried workers have the right to overtime pay under the legislation, but they're not aware of this. Many people aren't aware of this. This type of education should be provided by the government.
You will notice I've quoted quite extensively from the Donner report. It's come to my attention that some of the previous submissions to this committee have used the Donner report to argue in favour of flexibility regarding work hours. I'm not sure which Donner report those people would be referring to and which Arthur Donner they're referring to. The Arthur Donner who was with us at a press conference yesterday is definitely not in favour of flexibility upwards in terms of work hours. He came out very strongly in favour of nothing longer than a 40-hour week, no flexibility above a 40-hour week.
The Chair: Excuse me, Mr Hayden, we're well over our time, if you could make any brief, concluding comments.
Mr Hayden: In conclusion, I urge the government to reconsider its proposals and to start moving in the opposite direction, towards an Ontario with a rational distribution of work hours, where everyone has a right to a job at a fair standard of compensation, balanced by the right to leisure and time for oneself, family and community.
The Chair: Thank you very much. We appreciate your making a presentation before us here today.
UNITED STEELWORKERS OF AMERICA, LOCAL 5296
The Chair: That now takes us to the United Steelworkers of America, Local 5296, security officers. Good morning and welcome to the committee. Just a reminder, we have 15 minutes and you can divide that as you see fit between presentation or question-and-answer time.
Ms Renate McIntosh: Good morning. I'm Renate McIntosh. I'm president of Steelworkers Local 5296 representing 1,400 security guards who work for six different employers at over 600 sites across the GTA.
In the security industry it's difficult enough to police the employers because of the large number of sites and their locations which are dispersed throughout the GTA. There are as little as two or three officers working at some of the sites and they're all on different shifts. Most of our members make just above the minimum wage, at slightly above minimum standards. Now this government is threatening to remove these hard-fought standards and drag my members down in a rush to the bottom of the wage scale.
Prior to the election of this government, it was illegal for a collective agreement to have any provisions below the minimum standards set out in the Employment Standards Act. This government intends to allow a collective agreement to override the legal minimum standards concerning severance pay, overtime, public holidays, hours of work and vacation pay.
We the union members and the employers are being asked to value and compare non-monetary rights such as hours of work with purely monetary rights such as overtime pay and severance package and mixed rights such as vacation pay and public holidays. Given the economic power employers have over employees, the removal of basic employment standards can only result in circumstances in which detrimental tradeoffs are "agreed to" despite the measurement problems referred to above.
This will allow employers to put more issues on the bargaining table which were formerly part of the floor of legislated rights. It will also enable employers to roll back long-established fundamental entitlements such as hours of work and the minimum two weeks of vacation. Our union just finished negotiating three weeks of vacation for employees with more than eight years of service. Many guards are looking forward to this benefit, and now even this small gain may be eroded if traded off for better wage rates or changed hours of work.
The security industry is a very competitive industry. There are many small overnight security companies that are underbidding the more established firms that now pay their guards above the minimum wage. These new firms offer no benefits, no training and pay minimum wages to their workers, thus undercutting the firms that are providing more than minimum wage and training. Armed guards are generally the better paid in the industry, averaging $12 per hour. How long will it be before these people are paid just the minimum wage? How would you feel knowing someone who is required by the employer to carry a gun and risk his or her life is being paid minimum wage with no benefits?
With this government's desire to privatize, more and more jobs formerly done by well-trained public servants will be contracted out to these so-called more competitive security companies which, in an effort to make a profit and cut costs, will put inadequately trained people into these new positions at substantially less pay, and ultimately put the employee's and the public's safety at risk.
How would you as MPPs feel knowing that the guards guarding this Legislature were paid minimum wages with little training, or for that matter, the guards in the private prisons this government wishes to establish? You've already done this to your cafeteria staff. These guards, if you contract out, would be faced with a significant cut in pay and benefits. These are going to be the people protecting you. Think about this.
The short-sighted may see this rush to the bottom as helping employers to become competitive and governments more efficient, but the more sane will question whether this makes for higher productivity, better workplace relations or a safer society.
Currently under the ESA, organized employees have access to the considerable investigative and enforcement powers of the Ministry of Labour. This inexpensive and relatively expeditious method of proceedings has proved useful, particularly in situations of workplace closures and with issues such as severance and termination pay.
At present labour-management relations are relatively harmonious in my local. Both the Steelworkers and the employers are working to unify standards in the security industry so that security officers can receive better wages and the employers can compete on a more level playing field and provide a good-quality service. If this government brings in the changes it intends to legislate, this harmonious situation will go in the opposite direction and could become very adversarial between us, the union, and them, the employers.
The government's so-called minor changes to the act allow it to unfairly pass off the obligation and associated liability involved with administering a public statute on to employees and their unions when it is the employers who have violated its provisions. Costs will also increase for the employers because more complaints that the employment standards branch could have handled more efficiently and cost-effectively will now go before a private sector arbitrator that costs about $2,000 per day for the union and the employer.
Not only will security companies have to compete with firms undercutting them unfairly on bids, they will also have the added costs of paying for more arbitrations. This avenue requires all unionized workers to use the grievance procedure under the collective agreement to enforce their legal rights. The union will bear the burden of investigation, enforcement and their accompanying costs. The director can make an exception and allow a complaint under the act where he thinks it appropriate, but for all practical purposes, the enforcement of public legislation has been privatized.
Arbitrators will now have jurisdiction and make rulings that were formerly in the purview of an ESO, a referee or an adjudicator. They will not be limited by the maximum or minimum amounts of the act. However, arbitrators lack the investigative capacity of the ESOs and will not be able to match the consistency of result that the act has had under public enforcement.
Most important, employers could argue that as boards of arbitration do not have the critical powers to investigate whether particular activities or schemes were intended to defeat the intent and purposes of the act and its regulations, such cannot be determined. In such circumstances unionized employees could well be left with no recourse whatsoever. This is particularly evident in cases of related employer or successorship provisions of the act. It is difficult to see how such provisions can be applied when the successor or related employer may well not be party to the arbitration proceedings.
Security officers are especially vulnerable to this change because of the nature of the business. Clients and contracts are won and lost on a regular basis. Guards can change employers several times in short periods of time because of this. Some guards may be employed with three different companies in a three-year time period and never have their wages increased. Usually wages are cut because their successor employers are not obligated to guarantee them the same working conditions they had with their previous employers.
In conclusion, as noted in our introduction, these amendments come on the eve of a comprehensive review of the act. The proper and just procedure would have been to include these changes as part of such a review and not to try to pass them off as housekeeping changes. But beyond this, the core of the problem is the very nature of the amendments themselves.
As our comments already made clear, established standards should not be eroded, should not be made negotiable, basic rights should not be made more difficult to obtain, and enforcement of such basic rights should not be contracted out and privatized. The bottom line means slashing $10 billion from Ontario's budget in order to pay for the tax break for the wealthy, while at the same time demanding from security guards, that are paid just above the minimum wage, to give up their basic rights benefits.
In addition, most of my members can't afford to own homes and therefore live in rental accommodation. Now this government wants to not only take away their basic minimum standards at work, it also wants to take away another fundamental right, the right to attain and maintain a decent standard of living.
In closing, I would like to thank the committee for allowing me the opportunity to present our concerns regarding the issues that I've chosen to speak on. But I would like to re-emphasize that this government's gutting of employment standards will lead only to more adversarial working relationships and much more labour strife in this province of Ontario.
The Chair: Thank you. That allows us one minute per caucus for a brief comment or question, starting with Mr Christopherson.
Mr Christopherson: Thank you very much for an excellent presentation. I want to focus on the issue of the flexible standards because although it's been pushed off for further review, we've already heard from the minister that it's coming.
We heard this morning from Mr Brady of the Board of Trade of Metropolitan Toronto, who talked about this as something that -- and I'm paraphrasing -- he believed employers and employees and their unions should be interested in and pleased with. In fact, yesterday Ms Swift of the Canadian Federation of Independent Business in her brief said, "It was with some surprise 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."
Why are unions so concerned about this and why don't you see this as some big gift that this government's offering you?
Ms McIntosh: I think it will probably slow down the bargaining process. Previously you weren't even allowed to include in a collective anything that was below the minimum set out in the act. But this new provision would allow the employers to bring things to the table and try to trade off with something that isn't going to give them any hardship, but it's going to make it slow down.
There are several collective agreements now in place. With one in particular, the United Plant Guard Workers of America, whose collective agreement is your basic employment standards which now they would be able to try to negotiate an agreement that's even below your basic minimum rights. It's just going to slow down the process and give the employer an extra added advantage over the employee like the guards who are already at the bottom end of the scale.
Mr John R. Baird (Nepean): Thank you very much for your presentation. We appreciate it.
Just a comment more than anything. You mentioned a few times in your presentation about the privatization of collections, to farm that out to collection agencies. I guess just to explain our rationale in doing that is -- you mentioned it on the second-last page of your brief -- our concern is that right now and for the last five or six years we've only been collecting about 25 cents on the dollar. After an employee gets the courage to come forward, learn their right and complain, after investigation, after the appeal expires -- right now out of about $64 million we're only collecting around $16 million for them, only 25 cents on the dollar. We're not satisfied with that and our view is that tinkering isn't going to bring about remarkable change.
If there was a way of making it better, certainly we would have been keen to do it. I know the previous government would have been equally keen. The Liberals would have been equally keen when they were in government. We're hoping that privatization, bringing in professionals, someone with 25 or 35 years of experience, to go after these deadbeat companies will lead to an increase in the collections rate, because we've got to do a better job than 25 cents for workers. It's a real disincentive to the whole process with respect to enforcement. If people know they're only going to have to pay 25 cents on the dollar or not pay anything, they're less likely to obey the act. That's certainly a priority for us.
Mr Hoy: Good morning. I appreciate your presentation today. Your local represents 1,400 security guards who make near the minimum wage. The perception that those would belong to a trade union or a union making large amounts of money is not true in this case, so it's very good that you're here.
The MPPs being guarded by people on minimum wages actually appeared in a movie once. It wasn't MPPs, it was a political person. In a humorous vein it livened the theatre, but on a more serious side people with such responsibilities have to be paid well.
The creative nature of employers was shown in the news this morning. I didn't get to see the whole report, but there was an attempt to unionize a workplace in British Columbia. The employers are saying that the employees are part owners, so therefore they can't become unionized. I did not see the whole report.
But it's very clear that employers are creative with their employees and circumstances can happen, and I appreciate your brief as it pertains to security guards.
The Chair: Thank you both for taking the time to make a presentation before us here today.
SOCIETY OF ONTARIO HYDRO PROFESSIONAL AND ADMINISTRATIVE EMPLOYEES
The Chair: Leading us to our next group, the Society of Ontario Hydro Professional and Administrative Employees. Good morning and welcome to the committee. Again, we have 15 minutes for you to divide as you see fit.
Mr Mario Germani: Thank you for having us here this morning. We're just going to really have a summary of our submission to the committee. I believe the committee members have both the full submission and our oral presentation today.
The Society of Ontario Hydro Professional and Administrative Employees has been representing professionals at Ontario Hydro for over 50 years, and we currently represent over 5,000 engineers, scientists, supervisors, other professionals and administrative employees at Ontario Hydro. We are committed to working cooperatively with Ontario Hydro management in the delivery of an essential service to the people of Ontario.
The society is opposed to the passage of Bill 49. We feel that the majority of this bill would cause harm to working professionals in Ontario, and especially unionized professionals. The changes will cause severe labour relations difficulties for both employers and for the unions. The pressure on minimum standards will reduce the quality of labour in Ontario.
The most alarming aspects of Bill 49 are those aimed at unionized employees. Subjecting Employment Standards Act minimum standards to possible erosion through the collective bargaining process, and shifting the burden of enforcement and adjudication to employers and unions, are changes with only negative implications. It is fundamentally unfair to deny avenues of recourse to unionized employees that are available to other employees. Subjecting unionized workplaces to different and potentially lesser protection under the act would have a negative effect on labour relations in the province.
I will address first the proposal that only unions have responsibility for enforcing employees' rights under the Employment Standards Act in unionized workplaces.
At present, where employers in a unionized setting violate the Employment Standards Act, employees have the option of addressing the problem through the grievance process or by calling an employment standards officer of the Ministry of Labour. This is perfectly sensible because often employment standards issues are linked to other employment-related issues and the grievance arbitration process is appropriate so that issues can be resolved globally.
Nevertheless, there are many cases where it is preferable for employees to resolve their problems through the employment standards process. There may be complex issues which an employment standards officer would be uniquely qualified to resolve. An employment standards officer has extensive powers to investigate under section 63 of the act, and there's also the advantage of having a neutral third party responsible for mediating a solution or conducting a thorough investigation.
I think the members of this committee are aware that employment standards can be extremely complex and that the act can be subject to different interpretations. Government enforcement ensures an even, consistent application of the act's provisions.
The grievance arbitration process does not provide for investigative procedures, and certainly there would not be the intervention of a neutral third party unless the complaint does proceed to arbitration.
Given these differences, unionized workers would undeniably be subject to a lesser standard of investigation and neutral mediation than other employees in the province. There would be less consistency in application of the act across the province, given that the grievance-arbitration process could develop different approaches to the act than those of the Ministry of Labour. Finally, unionized employees would be denied the freedom to choose their preferred avenue of recourse.
Under the Ontario Human Rights Code, employees may elect to pursue their complaints either through the Ontario Human Rights Commission or through union representation in the grievance process. The code permits the commission not to deal with the complaint if it is more appropriately dealt with in another forum. The society proposes that a similar power be given to employment standards officers, that is, to reject a complaint if it is in fact more appropriately dealt with in another forum. This could be the case if there are multiple interrelated issues, not all arising under the Employment Standards Act, or if a grievance has already been filed dealing with the issue.
We submit that this is a much fairer approach than to limit the freedom of employees in Ontario to choose the avenue that is most appropriate for them. Above all, it is inappropriate to set up a system which denies unionized employees the advantages that the government system provides in other cases. In fact, this approach is inconsistent with the principles of workplace democracy which the Minister of Labour espoused during the promotion of Bill 7.
I now turn to the issue of negotiable standards. The proposal to make employment standards negotiable clearly runs contrary to the long-standing principle reflected in the current act that certain minimum mandatory standards should apply to all workplaces in Ontario.
We understand that the Minister of Labour has proposed that the provision for negotiation of employment standards be removed from Bill 49 but remain concerned that this proposal will be back on the table in the next bill. The proposal would place incredible burdens on the collective bargaining process. If minimum employment standards are put on the bargaining tables of Ontario, the following outcomes are likely:
Before discussion commences, the parties will debate the appropriateness of negotiating employment standards, and stand-offs are likely to occur.
If employers insist upon renegotiating minimum standards and unions insist on maintaining these standards, parties may have to apply to the Ontario Labour Relations Board to determine whether one or the other is bargaining in bad faith.
If parties do enter into discussions around negotiating a new package, unresolvable differences are certain to arise as to how the total package will be measured and whether it satisfied the requirement that it confers greater rights in the specified areas.
If management insists upon a package which reduces some entitlement under the act, will employees have to go out on strike to maintain a minimum standard that non-unionized employees have by right?
Given these difficulties, it is understandable that the minister has proposed to postpone this amendment. Nevertheless, it would be preferable to discard the amendment altogether. It would, as illustrated above, cause extreme disruptions in collective agreement negotiations, which in turn would have a negative impact on labour relations in the province. More importantly, opening up these legislated standards to bargaining goes against the tradition of fair treatment for all employees in Ontario, of which we can be currently proud.
Other changes in the proposed Bill 49 are far from a mere procedural house cleaning. Introducing limitation periods, restricting avenues of recourse and placing limits on the amounts recoverable will all effectively reduce the employees' entitlements.
These changes are taking money out of the pockets of innocent employees and putting it in the pockets of guilty employers. We find it somewhat astounding that the government would be promoting changes which reward lawbreakers, but that is exactly these procedural amendments would be doing.
The society also opposes the privatization of collection under the Employment Standards Act. We have genuine concerns about granting independent operators, who have no political accountability, this important responsibility.
I will now turn to a proposal which the society feels could positively address the current trend towards job erosion. We propose that in the interest of balancing legislation, the government should consider measures that would have a positive impact on employee productivity and employment levels in the province.
One area of concern to our members at this time is increased expectations of overtime work. This trend is a direct result of the severe reductions in employee numbers in many workplaces over the last several years. As a result of these reductions, employers are putting increased demands on employees to work excessive overtime hours. These demands have a negative impact on employee health and safety and effectively mean that there are fewer Ontarians working.
Engineers and many professionals are exempt from overtime and hours-of-work provisions under regulation 325 of the act. In the current climate which we have described, we suggest that professionals need these protections as much as other employees. The government should revisit the rationale for this exclusion and consider repealing it.
Two measures which have positive impact for those not exempt from these provisions would be: requiring employers to pay overtime rates for hours worked in excess of 40 hours per week, instead of the current 44, and raising the minimum overtime rate to double time from the current time and a half for overtime worked on weekends and statutory holidays. If employers could not rely so easily on requiring employees to work overtime, layoffs would decrease and employment rates would not be at their current alarming levels. If the government is dedicated to balance in labour relations and to improving Ontario's employment levels, it should be addressing these issues.
In conclusion, we submit that the Bill 49 provisions aimed at unionized employees would make unionized workplaces subject to differential treatment under the act, would put additional burdens on employers and unions in both the bargaining and the grievance process and would cause labour relations difficulties. We are also concerned that the proposed procedural amendments would reduce employees' entitlements under the act, and that this will benefit no one but employers who have violated the act.
For these reasons, we urge the government to reconsider the amendments we have discussed above and to consider our proposals respecting overtime provisions.
That's the end of our presentation. If you have any questions, we will gladly respond to them.
The Chair: That leaves us four and a half minutes, or a minute and a half per caucus. This time the questioning with commence with the government.
Mr Baird: I appreciate your presentation. In your situation, could you tell us, how many Employment Standards Act complaints would you deal with in a year? Do you have any idea?
Mr Germani: We don't have the statistics on that since they would be done directly through the labour ministry itself. We don't get involved with those.
Mr Baird: Can you repeat that? I'm sorry, I didn't hear that.
Mr Germani: We don't have information on the numbers that are involved.
Mr Baird: Would you expect, in your experience just in general with trade unions, that most employment standards complaints would be dealt with through the regular collective agreement process in terms of the bargaining agent? For example, if a company that has had a collective agreement to pay the workers $15 an hour decided it will only pay them $4, that they wouldn't go through their bargaining agent to say: "Listen, the agreement says $15; I'm only being paid $4. That's obviously below the minimum wage and not living up to the collective agreement"? Generally speaking, many of those provisions will -- obviously the contract in their collective agreement would be greater.
Mr Germani: Certainly any provisions that are part of the collective agreement would be subject to the grievance arbitration process. Here we're talking about things that aren't in the collective agreement, and that would increase the possible numbers of cases that could go to the board.
Mr Baird: Do you have an example of something that wouldn't go through the collective agreement now?
Mr Germani: I guess one employment standards area would be perhaps in the nature of parental leave, maternity leave. There are some fairly complex areas in that, and that's perhaps an area that the employment standards people are more expert at dealing with.
Mr Baird: Certainly in the provisions of the act we've attempted to clarify the parental leave and pregnancy entitlement.
Mr German: That's right, and you're aware of course that most of the Employment Standards Act provisions are themselves bare minimum, so most union agreements would have provisions above those. We wouldn't expect a lot of those to be part of the complaints to either ourselves or to the employment standards officers.
Mr Hoy: Thank you very much for your presentation. The government has coined this phrase, "flexible standards," and we're getting a number of submissions that frankly don't think the two words go together. When that comes back later on when the minister brings her plans back, I expect the government will change that to some other name so that it fits better. I wait to see what they do with the phrase "flexible standards." It is done quite often that when you have a phrase that is not well received, people simply change the word. "Publicly funded" has become other things to other people as they change the word to get away from things that aren't accepted well.
Shifting the burden of enforcement and adjudication to the unions: There's a perception I think within the government that the unions can well afford to do this; they either have the money right now to invest in the enforcement or they can accumulate dollars. Do you have any comment about that?
Mr Germani: I can't comment on whether unions have a lot more money available to investigate, but it's clear that there would be some shifting of costs and expenses from a regulatory agency that is imposing the minimum standards to some other body. We have no problems with enforcing our own provisions of the collective agreement if they are part of the collective agreement, but we do not want to be involved with a lot of other areas that aren't part of the collective agreement.
Ms Mundy McLaughlin: I just want to add something to that, and that is that it's obvious there would be increased costs to employers as well as unions, because if these sorts of complaints end up going to the arbitration process, that cost is covered by both employers and unions. It's not merely a shifting of costs to unions; it's to employers as well. As well, all the investigation that is now handled by the government would have to be dealt with through the grievance process somehow.
Mr Christopherson: Thank you very much for your presentation. I think it's helpful that you're here, given that you are the antithesis of what I think some Tory backbenchers envision when they think of people representing unionized workers or other workers. They often think of them as wild-eyed Trotskyite reactionaries or just poor little simpletons who don't understand the broader meaning of the world and therefore couldn't possibly comprehend why this legislation is necessary. The fact that you represent scientists and engineers and other professionals I think adds a great deal of credibility to those who are arguing that this is not good labour legislation.
After you see the impact on the organized labour movement in terms of the effect of this bill, what do you think ultimately that will do to the working poor, who don't have the benefit of a union and who only have the Employment Standards Act as the barest protection available?
Mr Germani: Some of the changes that we have seen in the act would seem to be taking away some of those rights of the working poor, who do not have access to unions. It would limit, first of all, the amounts they can collect under the act. It would limit the time frames in which they can claim redress for some of the past problems. In fact I think you're quite right; some of these changes in the act would have as many or in fact more implications for people who are at the bottom end of the scale and do not have the protection of the unions than those in some other areas, although it does have impact for both unionized and non-unionized employees.
The Chair: We're at 17 minutes. I'm afraid I'll have to cut things off. Thank you very much for taking the time to make a presentation before us.
LABOUR COUNCIL OF METROPOLITAN TORONTO AND YORK REGION
The Chair: That leads us to our next group, the Labour Council of Metropolitan Toronto and York Region. Good morning and welcome to the committee. We have 15 minutes for you to divide as you see fit.
Mr David Kidd: Thanks for inviting us. My name is David Kidd. I'm a delegate to the labour council and I'm attending here with our treasurer of the labour council, Shannon Hall, Canadian Union of Public Employees.
The Labour Council of Metropolitan Toronto and York Region has over 400 local unions affiliated with us in the Toronto area. We represent approximately 181,000 members.
First of all, we'd like to go on record in attending this hearing as calling clearly for the elimination of Bill 49, the so-called Employment Standards Improvement Act that we are here to discuss. Contrary to its name, Bill 49 does not provide real improvements to the Employment Standards Act that would enhance workers' rights at work and improve their economic wellbeing.
The labour council of Metro Toronto for many years has worked in coalition with numerous community organizations on diverse social issues of mutual interest. We were encouraged that the pressure of organized labour has been successful in having the articles of Bill 49 deleted that would have allowed employers to bring to the bargaining table the issues of hours of work, overtime pay, statutory holidays and severance pay for now. We understand that the minister and the government intend to bring this back later with the further review. We are still here today to call for the elimination of Bill 49 because of the negative impact the remaining amendments will have on non-organized and organized workers across Ontario.
We contend that the provincial government was elected with no mandate to deregulate or weaken the provisions of the Employment Standards Act. There's no reference at all in the so-called Common Sense Revolution. Bill 49 starts this process and the government has gone on record to declare that it will establish a full review of the entire Employment Standards Act later this year with the stated intention of further deregulation. This stated aim of the government is simply a pandering to special-interest groups that are convinced that driving workers' wages down and weakening employment standards will be a boon to economy activity.
Our members produce a lot of the goods and services that are the basis of the Toronto economy, and we are also the consumers whose spending patterns are an important dynamic of the economy. We reject the idea that attacking workers' employment and living standards will increase the capacity of our economy to generate social wealth that the community at large will benefit from. Bill 49 is part and parcel of misguided and ideological politics presented in the guise of legislative improvements.
We'd like to start off by talking about the rhetoric and the reality. On May 13, 1996, this bill was introduced by the labour minister, Ms Witmer, who made three promises concerning this bill. She stated that this bill (1) would eliminate years of accumulated red tape, (2) encourage the workplace parties to be more self-reliant in resolving disputes and (3) help the most vulnerable workers.
First, we don't believe that Bill 49 is a good example of legislation intended to eliminate red tape. The bill actually establishes more restrictive time limits for workers to be able to make claims for moneys they are owed by their employers. It also sets limits for the amount of money a worker can make a claim for, thus eliminating the opportunity to receive the full amount that is owing. It limits the flexibility of workers in making claims by stipulating the sole course of action that a worker may take to pursue a claim.
The minister's promised streamlining of the Employment Standards Act within the amendments of Bill 49 is simply a transfer of the burden and cost of the enforcement of a provincial statute from the Ministry of Labour on to the shoulders of individual workers and local unions. Is this not, in the words of backbenchers, the establishing of a deadbeat ministry that is absconding from its responsibility and passing it on to the shoulders of others?
We would suggest other remedies if the sincere intention is to eliminate the red tape, streamline the delivery of employment standards and increase compliance. A massive public education campaign on the Employment Standards Act that would educate each employer as to their responsibilities and each employee as to their rights would be a more efficient and cost-effective means of achieving this goal. It should be mandatory for the Employment Standards Act to be posted in every workplace in Ontario.
In conjunction with the public marketing campaign of the Employment Standards Act, a significant increase in the number of industrial audits by employment standards officers would also greatly increase the effective compliance with the Employment Standards Act. Increasing the amount of fines that would be levied for repeat offenders and publicizing the prosecution of violators would also greatly assist with the ability of the ministry to do its job. I'd also suggest that you have a number of creative minds within the ministry. Maybe you could establish a boot camp for bad bosses.
The ESA contains a long list of bureaucratic rules and regulations so that many workers are not even covered by significant sections of the act. For example, landscape gardeners are excluded from the provisions on statutory holidays, overtime and hours of work. This is similarly the case for teachers, domestic workers and building superintendents. The elimination of the red tape, restrictions and barriers that exist for many workers would be a good example of a sincere commitment to the streamlining of the ESA, which is not included in Bill 49.
The minister's second promise was to encourage self-reliance in the resolution of workplace disputes. These are simply code words for the abdication of responsibility. The government has already eliminated close to one third of the employment standards officers and dropped the use of legal aid funds to be used in employment law disputes. The workplace, contrary to what a number of you believe, is not a level playing field where employers and employees have equal power and equal rights. To ensure a fair and equitable workplace, we call on the government to increase the number of employment standards officers, provide more legal aid funding for employment law disputes and provide more resources for workers to assist in the settling of disputes between workers and their employers.
This legislation also does not provide any reprisal protection for workers when they make a claim against their employer and as a result they are fired. Study after study has shown that well over 90% of claims to the employment practices branch of the Ministry of Labour are made by workers no longer in the employ of the employer the claim is made against. It's difficult to consider the Employment Standards Act provisions as legislative rights when workers are not protected for exercising these rights. The Employment Standards Act must include provisions that will protect workers to be able to make just claims without fear of losing their jobs. Bill 49 does not include any provision for this.
The third promise was that Bill 49 would help the most vulnerable workers. Part-time work is some of the only work available in this province; one third of part-time workers these days are only working there because full-time jobs are not available. In 1995 there were 350,000 part-time workers in the greater Toronto area. This growing segment has few applicable provisions contained in the Employment Standards Act. For example, part-time workers who work less than 12 shifts a month are excluded from statutory holiday pay provisions in the ESA. Part-time workers are not granted the same or even prorated benefits that full-time workers receive. Bill 49 does not look to make any improvements in this regard.
In terms of actual amendments that were made under the bill in terms of the enforcement of violations, Bill 49 places the responsibility for the enforcement of the Employment Standards Act on to the individual worker and the union. Unionized workers currently are able to make claims to the employment practices branch for violations by their employers. The Employment Standards Act establishes the conditions of employment for many unionized workers for provisions that are not otherwise clarified or improved upon in their collective agreement. More commonly in the case of workplace closures, unionized employees utilize the enforcement measures of the ESA in accessing their entitlements to severance and termination pay.
Bill 49 proposes that unions now utilize the grievance procedure under their collective agreement to enforce these legal rights. The union will now bear the responsibility and actual costs of the enforcement of these rights. This change will also now give arbitrators the jurisdiction to make rulings that were previously under the auspices of employment standards officers. The ability of arbitrators to do a reasonable job without the investigative capacity, resources or experience of employment standards officers will curtail and limit the ability of arbitrators to do a fair and equitable job.
Bill 49 also restricts the options non-unionized workers have to enforce their employment standards rights. Workers owed money who wish to seek recourse will have to choose between pursuing their claim under the Employment Standards Act or taking their employer to civil court. They will only have two weeks after they have initiated the claim to make this choice.
As mentioned earlier, this situation is exacerbated by the cuts this government has made to the Ontario legal aid plan and by the elimination of employment standards officers. In forcing workers to choose a restrictive route to seek redress, the ministry is simply reducing its own responsibilities and passing the onus on to individual workers.
The time limit is extremely restrictive as well. Will workers be provided with the appropriate information as to their best options when they pursue a claim? With all this talk you are making in this and in other statutes you are looking at, you are saying self-regulation is the route to go. But we're also going to ask you is, in an example that may strike a chord, are you suggesting now that if on my street there are speeders or repeat people going through Stop signs, I'm the one to take a driver like that to court, as opposed to a police officer? Employment standards officers are there to provide a purpose and a function in terms of looking at standards for all Ontario residents. It should not be up to individual workers or the local unions to have that responsibility.
In relationship to limitation periods, Bill 49 places further restrictions on workers' ability to receive justice by stipulating that workers will only have six months to make a claim for moneys owed to them instead of the current period of two years. In this economic climate, it is our experience that many workers are forced to stay with jobs where they are not being compensated fairly because they would rather have half a wage instead of no wage at all. A worker cannot afford to walk away from a job when the employer is breaking the law, as there are few other jobs available.
Many workers keep detailed accounts of unpaid wages and unpaid overtime compensation and then file a claim for the entire amount owing when they are successful in landing another job or when they finally decide that they cannot afford to take this any longer. Instead of assisting workers who are forced to work in this manner, Bill 49 penalizes workers and establishes new red tape that restricts workers' ability to collect the money that is owed to them.
On the other hand, Bill 49 has not shortened the ministry's own time limits to be able to force employers to pay debts owed to employees sooner. From the date that a claim is filed, the ministry still has two years to investigate and an additional two years to get the employer to pay the moneys that are assessed to be owing. A sincere attempt to streamline this process would have shortened the investigation and prosecution time limits, not the claim limitation periods.
Bill 49 sets a maximum limit of $10,000 that a worker can claim, and the minister has indicated that a minimum limit will be established as well. This is outrageous. Bill 49 rewards the worst offenders of the Employment Standards Act in terms of those employers that owe workers over the limit. A worker has the option of pursuing an employer through the civil courts for amounts greater than $10,000, but again this puts the onus on the individual worker.
The proposed establishment of a minimum limit is ludicrous as well. Most workers just discover, when they are on the job on the first day or during the first hour, that the employer who has made expansive promises of high wages to them in the job interview has no intention of delivering. Are they to be penalized for making a claim for the moneys owed them regardless of the amount? Bill 49 will send a message to workers that it's acceptable for an employer to lie in job interviews and that the Ministry of Labour will take no responsibility around this. It's no wonder that this bill has been dubbed both the Bad Boss Law and the Don't Pay a Cent Event, because what it is telling employers is basically: "You can get away from it. To be competitive, just break the law."
In one of the most controversial amendments of Bill 49, the Ministry of Labour proposes to make use of private collection agencies to process moneys assessed to be owed to workers. We believe that this is not going to address the issues and the interests of workers and we believe that a public collection agency will be more interested in going after the full amounts a worker is owed as opposed to cutting a deal so that the private collection agency can actually obtain its fee.
I think the onus is on the ministry itself to prove that the private sector will be more efficient. This isn't a question of ideology or whether we prefer public or private sector delivery; the question back to you is, what would be the most efficient system? A report of another ministry of the provincial government disputes the notion that the private sector is more efficient. The Globe and Mail reported on July 29, 1996, that a provincial government report indicated that public collection services have been more than twice as efficient at recovering moneys owed as private collection agencies have been. An Ontario Management Board document that reviewed collection agency effectiveness in October 1995 revealed that the provincial government's own collection agency recovered $6.30 for every $1 in expenditures, compared with only $3 recovered by private collection agencies for every dollar spent.
Finally, we again call for the dropping of Bill 49. We suggest that you go back to the drawing-board and come back with an Employment Standards Act that would meet the needs of Ontario workers going into the new millennium, not one that's more in line with the last century. The Employment Standards Act needs to be modernized; it needs to be brought up to date. Ontario workers are the ones who produce the goods and services of our community and they are the consumers. They deserve a real employment standards law, and we expect this government to throw out this law and come back with real improvements to the Employment Standards Act.
The Chair: Thank you very much. We appreciate your taking the time to make a presentation before us today.
OPSEU LESBIAN AND GAY ACTION COMMITTEE, REGION 5
The Chair: That takes us to our next presentation, the OPSEU Lesbian and Gay Action Committee, Region 5.
Ms Robin Gordon: My name is Robin Gordon. I work with the office of the worker adviser as a legislative interpretation officer. I'm a member of OPSEU Local 528 and I'm representing the OPSEU Lesbian and Gay Action Committee for Region 5. I believe you have a brief before you that I'm going to go through. Hopefully there will be a little time at the end for questions.
Labour Minister Elizabeth Witmer claims that Bill 49 will bring self-reliance, flexibility, efficiency and relevance to the regulation of minimum workplace standards in Ontario. In reality, this bill would not only reduce the rights workers have on the job, but also make it more complicated, costly and, in some cases, impossible to enforce what minimum standards remain. The provisions of this bill are particularly devastating to workers in sectors most open to employer abuses and corruption, where wages are low, benefits rarely exist, there is no security and employers routinely break labour laws to increase their competitive edge. The workers in these sectors are often women, immigrants, members of racial and ethnic minorities, and gays and lesbians.
The Ontario Public Service Employees Union Lesbian and Gay Action Committee of Region 5 exists to address the concerns of gay and lesbian workers, both within our own trade union and as trade unionists in the community at large. We are concerned with the ways in which historical discrimination and systemic disadvantage influence the treatment of gays and lesbians in our workplaces and in government legislation. We identify with other groups of particularly vulnerable employees, such as women, immigrants and members of racial and ethnic minorities. Many of us belong to more than one of these groups.
We approach the question of employment standards as union members representing our own concerns as members of both the public service, including the Ministry of Labour itself, and the private sector, including privatized services, and as advocates for gay and lesbian workers and, more broadly, vulnerable workers.
Statistics on gay and lesbian workers are difficult to find due to the historic problems of invisibility and a climate of hostility and the methodological problems of identification and definition. Our knowledge derives instead from our individual and collective experiences as members of the lesbian and gay community. From this, we know that gays and lesbians are overrepresented in many sectors in which workers are underpaid, overworked, receive few benefits and have virtually no security. These are sectors in which violations of minimum standards are common -- foodservice, retail, social services like health care and day care, and the sex trade industry, such as phone lines. Thee are industries in which members of visible minorities, including gays and lesbians of colour, are also often overrepresented.
In our brief, we highlight our most pressing concerns, though not all of our concerns, with Bill 49 regarding both unionized and unorganized workers.
Regarding unionized employees, the labour minister announced on the first day of these hearings that the government has decided to postpone the amendments in Bill 49 which would allow employers and unions to contract out of minimum standards on severance pay, overtime, public holidays, hours of work and vacation pay. We reiterate our opposition to these provisions -- both now and in the future, given that we understand they will reappear -- which has been voiced at these hearings by OPSEU, the Ontario Federation of Labour, other unions, labour councils and community groups.
For the government, this provision represents flexibility. For employers, it represents an opportunity to reduce labour costs. For unions, it represents a blow to fair, efficient and productive collective bargaining.
The principle of minimum standards is to establish a basic level of legal protection which workers are entitled to. By establishing a floor of rights, the Employment Standards Act helps to protect workers from an unlimited downward pressure on wages and benefits. Without this floor, employers' efforts to increase profits or gain a competitive edge may focus on taking advantage of a difficult economy, and the most vulnerable workers within that economy, to get workers to agree to increasingly exploitive conditions.
The requirement that the total package bargained between the parties, where they agree to terms lower than the minimum standards, must "confer greater rights" provides us with little comfort. There is no guidance as to what the standard of greater rights is, and it seems extremely likely that whatever is agreed to in a collective agreement will be presumed to be of greater benefit because it's the product of bargaining. We have little hope that adjudicators would be able to recognize the vast inequality of bargaining power that exists between employers and employees, particularly where the bargaining units are small or newly organized.
Even where unions are able to resist employers' proposals for terms lower than the minimum standards, precious bargaining power will be wasted on maintaining rights that were once guaranteed. Unions' ability to push for other benefits, such as job security, sick leave, health insurance, same-sex spousal benefits and anti-discrimination and harassment policies will be severely undermined. By increasing the number of issues on the table, this amendment would burden unions and widen the power gap between organized workers and their employers.
As union members, we are also strongly opposed to the provisions of Bill 49 which remove the rights of unionized workers to pursue employment standards complaints through the Ministry of Labour. The requirement that unionized workers grieve over violations of the act rather than make a complaint with the employment standards branch is unjust, discriminatory and can be understood as part of this government's financial attack on unions. There is no justification for this amendment other than to cut government costs by requiring victims to bear the cost of investigating and prosecuting employers who break the law.
It is the responsibility of the government to police and enforce the laws it enacts to protect its citizens. We do not require the victim of a theft to pay for the investigation of the crime, hire a prosecutor or pay the cost of a trial. A violation of the Employment Standards Act is essentially no more or less than a theft of money legally owed to a worker by an employer. That is why, in the past, the government has established and funded the employment standards branch to investigate and prosecute employers who steal from their employees in this way. Now the government proposes that unionized employees be denied access to this publicly funded system.
Unionized employees bargain a contract with their employer which includes a private dispute settlement mechanism; that is, the right to grieve a breach of the agreement. The cost of a grievance is borne by both parties. Each retains its own representative or lawyer, conducts its own investigation and pays for half the cost of the arbitrator or panel of arbitration. By requiring unionized workers to grieve violations of the Employment Standards Act rather than making a complaint, this bill shifts part of the cost of prosecuting employers who break the law on to the victim.
This is much the same thing as is happening with regard to human rights complaints. Human rights complaints by unionized workers against their employers are now routinely dismissed under section 34 of the Ontario Human Rights Code on the basis that those workers could bring a grievance against their employer on the same issue. Unionized workers are denied access to the government-funded enforcement of the law and instead must pay the cost themselves, through union dues, of prosecuting employers. The parties may also be disadvantaged by being denied the investigative aspect of the ministry's procedures and the greater expertise of specialized adjudicators.
Unions do not have access, as some may believe, to an endless source of funding. We are financed through the dues of members. Particularly small unions, or small bargaining units within unions, and newly organized units, often in sectors with low wages, such as foodservice and retail, struggle to provide the services that their members need with the minimal resources available to them. Shifting the costly obligations of prosecuting exploitive employers for human rights abuses and employment standards violations from the government to unions is a direct attack on unions and their members. Workers who gain the right to grieve these issues through organization into unions should not be denied the right to use the specialized government-funded enforcement procedures if they choose. All workers in Ontario must have equal access to justice.
With regard to unorganized workers, particularly those in the foodservice, retail, social service and sex trade industries, we have two major concerns with the amendments in Bill 49: Minimum and maximum caps, and the six-month time limit.
Bill 49 would establish a maximum of $10,000 on a claim pursued through the employment standards branch and give the minister the power to set a minimum through regulation. What possible justification can there be for denying workers the right to recover the full amount owed to them by an employer who has broken the law? Any worker who is owed over $10,000 by their employer is, by definition, one of the most exploited and abused workers in the province. Unfortunately, it is often the most vulnerable workers who have the largest claims -- domestic workers, telemarketers and foodservice workers. Only the worst employer engaged in the most heinous and flagrant violation of minimum standards in the exploitation of their employees would be assessed as owing more than $10,000. So what does this bill propose we do to these worst and most abusive employers? We arbitrarily limit their liability. They are forgiven any amount over $10,000 which they have stolen from the labour of their workers. There can be no sufficient policy rationale for this.
The government proposes that workers owed over the $10,000 cap can pursue the total amount owing through a civil action against their employer. But this is not a real substitute, as you've heard before. Imagine a woman who workers in a small telemarketing operation. Somehow she is owed more than $10,000 by her employer, who has perhaps paid her less than the minimum wage, nothing for overtime or public holidays, and finally laid her off with no notice. She approaches the employment standards branch. She might not even know how much she is owed, but within two weeks she must elect to withdraw her complaint and launch a lawsuit or forfeit any money over the maximum which is owed to her.
Suppose she does elect the way of the courts. To recover anything over $6,000, she must make her claim in General Division, which means she is required by law to have a lawyer. There is no legal aid available to her for this kind of case. If, miraculously, she finds a lawyer who will take the case on a delayed payment basis, she could wait up to six years for a judgement. After all of that, if her employer has bankrupted or disappeared, she has nothing, not even access to the meagre $2,000 she could get from the wage protection fund. All she has is a lawyer's bill.
The introduction of a maximum amount recoverable will provide no administrative or cost benefit to the government. The ministry itself has said that claims over $10,000 represent only about 4% of the total. In most of these cases workers would, for very understandable reasons, still lay a complaint with the ministry and forfeit the extra amount. This policy will not result in fewer complaints, and a complaint is just as expensive to investigate and prosecute with or without a cap on damages. The only benefit here is to the employer who has committed the greatest violations of the law.
On the opposite end of the scale, Bill 49 empowers the minister to set a minimum amount for claims. We've heard $100 thrown around. Unfortunately, and to my surprise today, we heard $250 proposed. If either of these were the amount, any worker owed less than that would be denied the right to recover the money owed to them legally by their employer. The government has indicated that workers owed less than the minimum can sue in Small Claims Court. This is not a real substitute. However, it costs $70 to file a claim against a single defendant in Small Claims Court. This is not a real substitute.
What is the rationale for establishing a minimum amount which a worker can recover under the ESA? Perhaps the government feels that anything less than $100 or $250 is a trivial amount. It may be to someone with a secure job with decent wages and a respectable employer, but for a part-time waiter, a minimum-wage store clerk or a phone-line worker it is a lot of money, money they have earned and are legally entitled to.
By denying workers with small claims the right to bring a complaint, the government would likely save some administrative cost. But those savings are at the expense of workers' rights. An employer who breaks the law but owes no more than the minimum within the limitation period is merely allowed to continue with no penalty at all. But in our criminal law system, charges are routinely brought against individuals who shoplift items of as little value as $5 or $10. Why should employers be allowed to break the law, stealing from their employees up to $100 with immunity? In order for minimum standards to be a reality, the government must prosecute all violations of the law and not give a free pass to employers who commit supposedly minor violations.
The final issue we wish to highlight is our opposition to the reduction of the time limit for bringing an employment standards complaint from two years to six months. In this economy of high unemployment, people are desperate to hold on to any job they find. Employers know that almost anyone can be replaced with minimal effort. This is particularly true in industries where no specialized training is required. We're talking about low-paying, insecure, often part-time or casual jobs. If you bring a complaint, you're likely to lose your job. While there is an anti-reprisal provision, it's not effectively enforced, which is why workers wait until they have another job. Workers need a fair limitation period. Once a worker leaves an employer, they should be able to claim money owed to them back at least as far as two years.
The government has suggested that its rationale is that employers may not have records sufficiently far back or it may be a nuisance for them to prosecute these claims, but under subsection 11(1) of the Employment Standards Act employers are required to keep a record of wages and vacation pay for five years after the work is performed and must keep even more detailed records for at least two years after the work is performed. An employer who is following the requirements of the law will be able to provide records in their own defence.
If any change is to be made to shorten the length of time it takes to hold a hearing under the act, perhaps we should be concerned with the two years the ministry may take to investigate the complaint. Efficiencies should be found within the practices of the ministry, not at the expense of workers' rights.
In conclusion, we'd like to reiterate our support for the submissions which have already been made to this committee by the Ontario Federation of Labour and the Ontario Public Service Employees Union. We hope this committee will take seriously all the concerns which have been voiced by unions and community organizations on behalf of the diverse workforce of this province.
The Chair: Thank you very much, at exactly 15 minutes.
Ms Gordon: Well, there you go.
The Chair: You're to be applauded for having the best timing yet so far today. Thank you very much for taking the time to make a presentation before us.
519 CHURCH STREET COMMUNITY CENTRE
The Chair: That takes us to our next group, the 519 Church Street Community Centre.
Ms Alison Kemper: Actually, I'm not a group. I'm just a whiny small employer.
The Chair: Good morning anyway, and welcome to the committee.
Ms Kemper: Thank you. I'm going to be very brief because there's not a lot to say, but I'm certainly speaking as a manager in this and not from the perspective of the most recent deputations. I'm here to speak to you as the chief manager of a busy unionized workplace. We have about 30 staff who belong to CUPE 2998. We negotiate collective agreements in biennial cycles. Most of the time, the negotiations are extremely straightforward and uncomplicated. We are able to hire a single negotiator at a reasonable cost and spend a couple of days reaching renewed agreements. The process is not onerous because we have a focused agenda.
When additional considerations are added to our agenda, the negotiations become much more time-consuming and costly. We cannot engage in the business of running a community centre while we are bargaining from scratch about new matters.
If the Employment Standards Act is amended to make statutory holidays a point of negotiation, it will be a nightmare. I run a centre which is open almost every day except stat holidays. If I needed to negotiate with a union determined to end equivalent days and to redefine them as generously as possible, I would need vastly increased bargaining hours and support. For obvious reasons, this is not at all attractive to me.
Such a proposal would become a full employment program for labour lawyers. I urge you to forget this proposal was ever made. Its implementation could be nightmarish for small employers. Thank you.
The Chair: Thank you very much. You've left us lots of time for questions, if you're so inclined. In fact, we'll say four minutes per caucus. This time the questioning will commence with the official opposition.
Mr Hoy: Good morning. I'm pleased to hear your presentation on a staff situation which is small by comparison to other large unionized workplaces. Thirty people work there, as you say. We've had many submissions say that workplace harmony is going to be eroded by this bill and there are going to be frictions and tensions and difficulty in negotiating certain aspects if this bill is passed. You have stated that clearly in the third paragraph, and in that that is your main thrust here, we appreciate your comments.
Ms Kemper: There won't be additional problems in workplaces if people get it all worked out on the bargaining table, but the bargaining table is a very expensive way to get things worked out. It costs lots of staff time and lots of consultants' time and lawyers' time and all that sort of thing. We could get it right, but it would be so expensive to add up this hour and this double time and, you know, "Are we open for this program?" It's just inconceivable to me that we could do that in the relatively inexpensive, quick time frame that we have been doing.
So we have two options. One is to spend a lot of money and work it out so everybody can see it's fair, or the other is to do it fast and have it a source of friction. I'd rather just say, "Take Boxing Day off because that's the law," and that's really easy and cheap and simple.
Mr Christopherson: I'll be as brief as the presenter. I think it's a different point of view that adds credibility to the argument that this is not something that people want in this province in terms of taking these standards and making them something that can be negotiated. I think you've added an important element to that debate and I thank you very much for being here today.
Ms Kemper: You're welcome.
Mr Tascona: Thank you for your presentation. I take it you are familiar with what's in your collective agreement?
Ms Kemper: There are always nuances. I'm fairly familiar.
Mr Tascona: But you have an understanding of what's in it.
Ms Kemper: Yes.
Mr Tascona: I think that your collective agreement probably would cover all the standards that are in the Employment Standards Act.
Ms Kemper: It refers to the Employment Standards Act.
Mr Tascona: It actually has a provision referring to the Employment Standards Act?
Ms Kemper: Yes, and the Human Rights Code and that sort of thing. It says, "Nothing in this agreement goes against the statutes of the province of Ontario," including ESA and OHRC.
Mr Tascona: And does it have the health and safety act referred to there too?
Ms Kemper: I think it's the legislation of the province. I'm not sure if it refers specifically to the health and safety standards.
Mr Tascona: So your grievance procedure covers all matters in the collective agreement.
Mr Kemper: In the collective agreement only. If you have a human rights complaint, you can take it to the Human Rights Commission or you can use an internal process that is not part of the collective agreement to deal with harassment or whatever.
Mr Tascona: But if there's a grievance dealing with harassment, it's covered under the grievance procedure.
Ms Kemper: There are anti-harassment provisions in the agreement, as well as in the Human Rights Code, as well as in the policies.
Mr Tascona: I would take it your grievance procedure works fairly well.
Ms Kemper: Yes.
Mr Tascona: Have you had many arbitrations during the year?
Ms Kemper: I've had one in four and a half years.
Mr O'Toole: Thank you for your presentation. As everyone has said, it's an interesting proposal. You're the manager in a very small workplace which happens to be unionized. You make agreements in your workplace in partnership with the people who work there.
Ms Kemper: Yes. It's pretty face-to-face.
Mr O'Toole: It's pretty face-to-face and it sounds like it's fairly functional. You may not have all the same provisions and rights and entitlements as a larger OPSEU local, right? The rate of pay and various things might be different than larger, more organized workplaces, would you say? Or do they bring to the table preconceived standards, like community centre people get $12.15 an hour or whatever it is?
Ms Kemper: One of the ways that we save on the cost of this is that CUPE 79 and 43, which just ratified last weekend, are city of Toronto locals and we are a city of Toronto agency, so the city says, "We did that already with CUPE." So anything around cost that's in those agreements we can basically know that the city is starting from that.
Mr O'Toole: That's called ratchet negotiation, when you take on the --
Ms Kemper: Well, the city ratchets, you know. It's an employer-based ratchet.
Mr O'Toole: I guess that's a good point. I think it's important to the workplace itself. For example, don't you think it's important for you and the people who work in your -- you're an employee as well.
Ms Kemper: Yes. I'm excluded from any bargaining.
Mr O'Toole: I know you don't have any rights or entitlements; it's all performance-based. But I guess the point I'm trying to make is this: I fundamentally believe that the place to make the decisions about whether or not your community centre is open on statutory holidays -- I don't think you need the Big Brother province telling you that in Kemptville or in Bowmanville or in Toronto, "Thou shalt do these things." I think what you need to do is make the decisions appropriate to the community and the workplace that you're serving in. Would you agree that's the way it should be idealistically, as opposed to the province saying, "These shalt not be statutory days"?
Ms Kemper: What we do now, which works pretty well, is we know what it will cost to open on whatever statutory holiday and we know which ones it's worth it to us to remain open on and which ones it's not. But to spend two weeks of my life every two years totting it up to determine which new ones or which auxiliary ones or which substitution, it just wouldn't work at all for me.
Mr O'Toole: I'll give you an example. What if a competitor came into your community from a non-unionized sector to offer a swimming program and perhaps other kinds of fitness or whatever activities you do at your community centre, for a somewhat more reasonable rate and more flexible hours? In a world of competition, that's really what we're talking about in this. We're saying that your decision is to either save the jobs by working with the employees and the managers or to be locked into a framework that gives you no flexibility to say, "Well, Mary Kay's Gymnasium just opened and we can't compete."
Mr Christopherson: You really are a lunatic, aren't you?
Mr O'Toole: That's because you don't understand the reality. You're so locked into a mindset, Dave, that you've stopped thinking.
The Chair: Order.
Ms Kemper: Mr Chair, shall I answer the member?
Mr O'Toole: You're not thinking, Dave. That's a very bad sign.
The Chair: Please. Ms Kemper.
Mr O'Toole: He doesn't think. That's the problem.
The Chair: Mr O'Toole, please let Ms Kemper answer.
Ms Kemper: As I understand it, this proposal won't reduce my costs, because I have to bargain an equivalent. As I understand it, I am certainly able to open on any statutory holiday I choose now, and I make a decision about whether it's worth it to provide a meal to the homeless on Christmas or Boxing Day at double time and a half or whether I want to do it on the Saturday after at straight time. Those are my decisions to make. I'm going to have the same costs, because you can be sure that CUPE's going to keep me to an equitable tit for tat on that. The issue for me is the enormous costs of measuring what's equitable. That's just, as I said, a full employment program for labour lawyers.
Mr O'Toole: I hear your argument.
The Chair: Thank you, Ms Kemper, for taking the time to appear before us and make a presentation this morning. We appreciate it.
Before the committee rises, there is one brief procedural matter. Apparently in Belleville on Monday you had two requests for speaking time at the last minute that you dealt with unanimously. We have a similar request today. The Committee on Monetary and Economic Reform would like to send a speaker, and we have a break. I would propose the break at 2:15 where we've had a cancellation would be the most likely slot. I would ask for any comments or whether it's the unanimous decision of the committee to allow them. Okay? Thank you. The clerk will take the appropriate steps.
With that, the committee is recessed till 1 o'clock.
The committee recessed from 1157 to 1301.
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL
PARKDALE WORKERS WITHOUT WAGES
The Chair: Our first group this afternoon is OPSEU Local 525. I invite them to come forward to the table. Good afternoon and welcome to the committee. Just a reminder that we have 15 minutes for you to divide as you see fit between either presentation time or question and answer.
Mr Bart Poesiat: We'll do the best we can, Mr Chair. I'd like to introduce somebody we have brought with us from a community group, the Parkdale grass-roots organization of unemployed workers. Her name is Marjorie Frutos and she will represent the Parkdale Workers Without Wages, which is a catchy name for unemployed workers. We'll both do the submission.
Ontario Public Service Employees Union, Local 525, is the front-line local of community legal workers, as well as administrative assistants, who work in Metro Toronto legal clinics, and we also represent the administrative staff at the Ontario legal aid plan. Our local appreciates the opportunity to speak to the committee today. We also want to introduce the grass-roots community organization Parkdale Workers Without Wages.
We are the workers who work with and represent non-union workers in social assistance and welfare, tenant rights, immigration and work-related matters. We are the workers who see the real impact of the present government's agenda. We are the ones who see the impact, for instance, of the 21% cutback in welfare rates. We are the ones who see the impact of the economic evictions that happen as a result of that. We also work with an increasing homeless population on the streets of the city of Toronto. We will also see the impact of the proposed changes in Bill 49, if they happen.
We're often expected to pick up the pieces of the government's devastating changes and we are the front-line workers who often receive the anger and frustration of the single mother whose welfare cheque has been cut back and who has tried to work, only to end up in a job scam and not be paid. These things happen every day. Our daily jobs involve ensuring that the most vulnerable workers have some rights in their jobs when they lose their jobs and are forced to go on welfare, and in their homes.
Ms Marjorie Frutos: Parkdale Workers Without Wages is a group concerned with issues of unemployment and poverty arising from unemployment. We know that unemployment is a problem not because people don't want to work, but because there simply aren't enough jobs. We believe it is important for the committee to hear from us.
In Parkdale there is very high unemployment, estimated to be at 60%. We know that when people try to get a job, an employer is more than willing to exploit someone, knowing there are many in the unemployment lineups. We know the Harris government calls Bill 49 mere housekeeping. We think the government is wrong. The Employment Standards Act is a critical cornerstone of workers' rights in Ontario. The ESA sets the minimum floor for workers' basic rights in Ontario. In today's high unemployment economy, the Employment Standards Act has become even more important. Bill 49 is an attack on workers' basic rights, both union and non-union workers. Bill 49 should be withdrawn.
Mr Poesiat: We'll dwell briefly on the changes introduced in Bill 49. The Bill 49 proposal to contract out rights would enable employers to approach us for a longer work week, to work on public holidays and to develop an alternative severance package. We understand that the ministry removed this section from being reviewed at the upcoming review of the Employment Standards Act, but we want to mention it because our recommendation is that the government not even consider such a proposal. This proposal would have an impact on non-union workers. A non-union employer will follow the same standards used by a union employer. A non-union employer in the same sector as a union workplace, where for instance a 56-hour workweek is used, will be forced to compete with the 56-hour workweek. No non-union employer will turn down an opportunity to extend the workweek.
Bill 49 also introduces other changes such as the new limitation periods for complaining. Workers will have only six months to make a claim against an employer, and that's a change from the current two-year period. In periods of high unemployment, workers need a two-year period to complain. Many workers endure great hardship just to have a job, any job. If a worker wants to launch a complaint against an employer, they know they will lose their job. There's no protection from a boss's reprisal. Bill 49 further pushes the workers to choose between their rights and their job. We strongly recommend that the government remove this section of Bill 49 and reinstate a two-year complaint period.
We support a call for new mechanisms to protect workers from employer reprisals. That is what is necessary. We would support a call for something like an Operation Spotcheck, where 10% of employers are to be investigated in the next year.
Ms Frutos: The overall changes to the Employment Standards Act -- the shorter investigation period: The Bill 49 proposal states that investigations will scan back only six months of a worker's history at the workplace, shortening it from two years. Employers may have been violating a worker's rights for years, but under Bill 49 they will be accountable for only six months of violations. Our demand is to reinstate the old investigation period of two years.
The new $10,000 cap on claims: A worker owed more than $10,000 because an employer has violated the act and literally stolen money from the worker will not have access to wages and money they are owed. Our demand is to remove this cap from Bill 49.
A new, unannounced minimum claim: Workers who work for an employer for a few days or a few weeks and are owed wages will be denied access to an investigation and to the money they are owed. This opens the door for employers to hire workers for a few days and violate employment standards with no penalty. With high unemployment, many employers hire a worker for a few days, try them out, then fire them, often for no wages. Other workers are being told to come and be trained for a few days for free. We want this proposal dropped so that workers will be entitled to their wages and no employer will be able to get away without paying a worker what they are owed.
Access to justice is denied for low-income workers. Bill 49 changes the administration of the act so workers will be told at the start of the investigation to use either the Ministry of Labour or go to court. They will have to make this decision at the beginning, often without knowing which option would be better for them. Low-income workers cannot get legal aid for taking employment law cases to court. We want this proposal dropped so that workers have access to a full range of services from the Ministry of Labour.
The private collection agencies: While the Ministry of Labour is notoriously weak at collecting moneys owed to workers from an employer, there is no guarantee that contracting out collections to a private agency will improve the situation. Most critical is that private collection agencies will have the power to encourage settlements between workers and their employers. Workers will lose as collection agencies will push for a quick settlement and quicker payments of their own accounts.
Mr Poesiat: In conclusion, what we are asking for is to improve this law so that men and women will have access to real rights. We're asking for basic rights such as coffee breaks, the right to a living wage, the right to sick leave, the right to a minimum wage for all workers in all jobs, the right to just cause or the employer needing a reason to fire a worker added to the Employment Standards Act.
Above all, we're asking for better enforcement. Enforcement is a real problem. It's already a problem under the act. Now it will be even worse if these changes go into effect. When a worker finally comes forward to launch a complaint, the Ministry of Labour offers no protection to the worker against being fired for trying to enforce the law. Workers don't get reinstated in their old jobs. As a result, 90% of workers complain when they have left the job they want to complain about.
Workers know the choice they face. If they complain about the fact their rights are violated, they will lose their job. The current employment standards system forces a worker to choose between their rights or a job. To make matters worse, as a result of the government's changes to welfare, if a worker quits because of his or her job, they must wait three months before receiving any support. A worker is left with nothing.
The impact of both Bill 49 and welfare changes means workers are pushed more and more into jobs where they are mere chattel with no rights. We see Bill 49 as a serious attack on workers. We urge you to repeal Bill 49. We want jobs with rights.
The Chair: Thank you very much. That leaves us just under a minute and a half per caucus for questions. The questioning this round will commence with the third party.
Mr Christopherson: Thank you very much for your presentation. I noted early on you said that the government's aware there are many in the unemployed lineup and it reminds me of another presentation in a community where one of the presenters said that if you took all the policies of this government and took them in their totality, what we'll end up with in Ontario is a large pool of desperate unemployed workers. That I think is exactly the type of people who will be preyed upon by unscrupulous bad bosses.
We've heard others say that a lot of bad employers, bad bosses, will be emboldened by this government, feeling they have the sanction of the government at their back. How do you feel about that? Do you think there's a message from this government to unscrupulous employers that things are getting even easier for them?
Mr Poesiat: Yes, we feel that certainly is the case, that the creation of an underemployed and underpaid industrial reserve will depress wages even more, and that in a situation where costs are high and rents are high such as in Toronto. Even now, in Parkdale it's a desperate community. In south Parkdale we have an unemployment rate of 60%. People will do anything. We know situations where people have worked as telemarketers for months without getting paid a penny. What are these people going to do? How are they going to pay for the food? How are they going to pay the rent?
I would also like to add that we're not offering any great economic expertise here, but you don't have to be a rocket scientist to know, in the long run, what this is going to do to the economy, to the retail sector at least. There are probably other sectors that want to level the playing field with Brazil and Mexico. Certainly, I've been in Brazil for a while, and I know what the situation is there: You have 10% of the population living in opulence, a very small middle class and the rest just don't earn anything at all.
But there's a strong retail sector in Canada which is bleeding, so one might well consider what that does to the buying power of the average consumer. Certainly, in Parkdale nobody is buying. You go to Queen Street West in Parkdale, and one store after another goes belly-up, people go bankrupt. Small businesses trying to eke out a living selling this or that, it isn't working. It's a very depressed thing. Parkdale is almost like a pilot project to see what happens in a high-unemployment economy where everything is being cut.
Mr O'Toole: Thank you for your presentation today. Also, we had a presentation yesterday from the workers without jobs group. It was a sensitive presentation. I don't think anyone on this committee would be supportive of abusive employers. That's been clear throughout the government's response and from the members here on both sides. Nobody here on this committee wants to tolerate abusive employers; that's clear. That's why we want to focus on collection and improving the climate. This legislation says that collection now becomes an important focus. We're not satisfied with 25 cents being collected on the dollar.
I just want to bring to your attention some positive news that I hope spills over to Parkdale. I'm reading a release from the Ministry of Finance. "Statistics Canada reports that Ontario job gains were broadly based across the economy. The unemployment rate fell to 8.5% in August from 9.2% in July, matching the largest monthly decline since 1984." I'm pleased that these signs are showing some signs of recovery.
The bill here is really to focus the resources of the ministry and this government on the most vulnerable. I sincerely believe that. I don't think there's any other agenda except to say that organized workplaces have a lot of collective agreements and a lot of resources and are quite competently able, with their leadership, to take care of many important issues in this changing world of work. But don't you agree that it's important to help the most vulnerable?
Ms Frutos: I disagree. This is not going to help the most vulnerable. I think our presentation just showed that the most vulnerable will be badly hurt by these amendments and by this act.
Mr O'Toole: By improving collections --
The Chair: I'm sorry, Mr O'Toole, but we're over our time already. Moving to the official opposition, Mr Lalonde.
Mr Lalonde: Good afternoon. You've just said that the people aren't working because there aren't any jobs. Do you think Bill 49 will help create jobs?
Mr Poesiat: Sorry, could you repeat that?
Mr Lalonde: Will Bill 49 help create jobs if there aren't any jobs at the present time?
Mr Poesiat: No, it won't. This is not a job creation measure. It simply unlevels the playing field even more. It might encourage some very marginal type of employment, where the opportunity for exploitation is great, but that does not really create any meaningful jobs. It might encourage some low-wage type of activity that has no meaning at all in the civilized society that we live in.
Mr Lalonde: I'm pretty sure you are concerned with one of the points in Bill 49. Those who are fortunate enough to have a job and who want to lodge a complaint because of bad employers, workers will have only six months to make a claim for money owed to them, and the maximum is $10,000. Do you think it's fair to the employees that we have a maximum of $10,000?
Mr Poesiat: Absolutely not. There are even claims from domestic workers that we know about -- these are no secrets; we've read about this in the press -- where the claims are much larger than $10,000. A maximum of $10,000 is absolutely nothing. People sometimes work for a very long time really because they have no choice, and then the claim is much larger. They will never be able to recover this.
Mr Lalonde: I fully agree with you that $10,000 is not very high. When we say there are no jobs, 90% of the people do lodge a complaint after they have found themself another job. They could be working for bad employers for a number of years before they are able to lodge a complaint. Six months is not long enough; probably two years was very long in the past, they were saying, but six months is not.
Mr Poesiat: Six months is certainly not long enough.
The Chair: Thank you both for taking the time to make a presentation before us here today. We appreciate it.
Mr Poesiat: Thank you very much for letting us speak.
ALLIANCE OF SENIORS TO PROTECT CANADA'S SOCIAL PROGRAMS
The Chair: That takes us to our next group, the Alliance of Seniors to Protect Canada's Social Programs, if they could come forward, please. Good afternoon. Welcome to the committee. Just a reminder, we have 15 minutes. You can divide that as you see fit between a presentation or question-and-answer time.
Mr Joe Jordan: Mr Chairman, we are very pleased to approach this committee here today on Bill 49, the Employment Standards Improvement Act. We are the Alliance of Seniors to Protect Canada's Social Programs, with a submission by the Alliance of Seniors to the standing committee on resources development on Bill 49, the Employment Standards Improvement Act, 1996. I believe you all have copies of our submission.
On introduction, we as a retiree organization, namely, the Alliance of Seniors to Protect Canada's Social Programs, are a group of representatives from many retiree groups or organizations and are speaking on behalf of over 500,000 seniors. We are very concerned about what is happening to our beloved Canada.
We were shocked to read the article in the Saturday and Sunday Star on August 31 and September 1, 1996, entitled, "Race to the Bottom."
"Downward pressure on wages has put the squeeze on many Canadians over the last decade -- most dramatically on those at the bottom end. Consider:
"The number of people in Ontario officially working at minimum wage has increased by 40% in the past five years. No one knows how many work for less but they're considered a significant part of the underground economy.
"Temporary employment firms have blossomed across the job spectrum, with many specializing in minimum-wage jobs. Of those, some ask few questions and pay in cash." I think we're all aware of that. "The vast majority of these workers have become permanent `temps.'
"The picture isn't always negative. Electronic technologies are revolutionizing a number of industries providing many, including those making the minimum, with new opportunities and the convenience of working at home.
"But in the garment trade, historically a barometer of the state of worker rights, `home work' is raising concerns about new forms of exploitation."
"Home Sweat Home...Ontario's garment industry, hard-pressed by competition, now employs about 5,000 homeworkers, two thirds getting less than the minimum wage and many angry about it."
It is incredible that the government of Ontario should sit back and permit unscrupulous employers to get away with such practices, and the changes in the Employment Standards Act will permit the employer to further abuse the workers' rights.
We, the elders of Canada, remember the Depression of the 1930s, the widespread unemployment and poverty, the devastation of a serious illness, the ominous absence of economic security and the scandalous lack of care in all ages.
We supported legislation and paid the taxes to develop comprehensive and universal government programs which provided pensions, unemployment benefits, health care, affordable education and a welfare safety net. We made Canada a caring nation, recognized throughout the world for its justice and humanitarianism, and we see these social programs falsely blamed for Canada's debt and deficit.
In introducing Bill 49 in May 1996, Labour Minister Elizabeth Witmer claimed she was making housekeeping amendments to the Employment Standards Act. The Alliance of Seniors feels she is not merely doing housekeeping: she is wrecking the house and rebuilding it in favour of the employer.
Enforcement for non-unionized employees -- whom we are very concerned about -- sections 19 and 21, sections 64.3, 64.4 and subsection 65(1) of the act: With these amendments, the minister is proposing to end enforcement where they consider violation may be resolved in the courts. These amendments would put the responsibility for the enforcement of minimum standards for non-unionized workers on the worker. Simply put, the employees would be forced to choose between making a complaint to the employment standards branch or filing a civil suit in court, an expense the employee could possibly not afford.
Maximum claims, section 21, subsection 65(1) of the act: This amendment of a maximum amount of $10,000 to be awarded to the employee, if indeed the employee could collect. In many cases, the claim would be in excess of $10,000, taking into consideration wages and benefits such as vacations, statutory holidays, sick benefits, pensions etc. We just don't understand the reasoning in such an amendment. If a person is owed a certain amount of money, why, then, would the government set a cap for a claim on that amount? It sounds dictatorial to us.
The use of private collectors, section 28, the new section 73 of the act: The proposal to privatize the collection function of the Ministry of Labour's employment practices branch. This would absolve the responsibility of the government to make sure the employer paid what the employee was awarded. This is an important change. It takes away the task which has traditionally been a public function. That has not worked well in the past. The most frequent reason for the ministry's failure to collect wages assessed against employers has been the employer's refusal to pay. This change is an attempt by the government to absolve itself of the responsibility to enforce the act by farming out the problem to a collection agency. In addition, the employment standards director can authorize the private collector to charge a fee to persons who owe money. This allows the collector incredible leeway with someone else's money.
In conclusion, we urge this committee to recommend against these proposals. As it used to say on our Ontario licence plates, "Keep Ontario Beautiful." But as we see it now, it's turning ugly. I thank the committee for its attention.
The Chair: That leaves us about a minute and a half per caucus for questions. This time, it will commence with the government benches.
Mr O'Toole: Thank you very much. I'm pleased to see the seniors taking a proactive stance. A lot of your comments were directed more at a federal attack on benefits to all Canadians.
In terms of this particular act, do you feel that, for instance, the one section on the six-month claim will speed up the process so that claimants will come forward more quickly, so that workers entering that same workplace won't be disadvantaged for two years?
Mr Jordan: When I look around this room, I see that there are a lot of people who will soon be seniors like myself.
However, in answer to your question, we believe that in fact there are many, many people, especially a lot of ethnic groups, who do not understand their rights under the Employment Standards Act. By the time they could possibly get to know their rights, if they do at any time -- six months is certainly not long enough. At the present time, it's two years. By the time they're there two years, there's a possibility they'll have found out their rights and could exercise their rights, but six months is certainly not enough.
Mr O'Toole: I think your group and other groups can make that point of educating the general population, outside of indeed their membership, of their rights and entitlements. I think that's a duty of the government as well, and these hearings, and part 2 will serve to educate the population of their rights.
Mr Jordan: Believe me, sir, we certainly try.
Mr Tony Michael: Maybe six months from after the claim has been put in, not six months for the claim to go in.
Mr Lalonde: Thank you for your presentation. When I look at the first page, you say the number of people in Ontario officially working at minimum wage has increased by 40% in the last five years. This is really scary. It is scary for you people. It is going to be scary for all of us five years from now too, because there might not be any money there to pay for our pension plan. I notice also that it's really ever since the Liberal government has not been in power that the percentage of minimum has increased.
I really feel that the government should have kept in place the enforcement officers we have there. They will be releasing around 45 of those enforcement officers. With proper training, those people could render a lot of services to the vulnerable people. In this case, it's going to go to the collection agencies, the private sector, and I don't think the private sector is going to work for nothing. At the present time, a collection agency charges -- the average is 33% of their collection, and when the maximum amount is $10,000, do you feel that the employees who are owed money by the employers will be able to collect the $10,000?
Mr Jordan: Sir, the unfortunate part about this is even a person who is collecting minimum wage, over a period of time, with benefits and all that could occur, severance pay and what have you -- I plead with this gentleman here who mentioned the ethnic groups -- there are many, many people who do not understand that the minimum wage is $6.68 an hour.
Mr Lalonde: It's $6.85 an hour.
Mr Jordan: Sorry, $6.85. I got my figures crossed up.
A lot of these people don't understand that. In a recent survey, they found out that there were many of these ethnic groups who were actually working on home work for $1 an hour, and this is absolutely something that's incredible to happen in Canada.
You may have noticed that -- with my accent, you knew I wasn't born in Canada, but I came to Canada in 1953, and at that time, even in backward Ireland where I come from, they were working a 40-hour week, and if you worked more than 40 hours, you got paid overtime for it and you were guaranteed a minimum wage. When I came to Canada in 1953, you weren't paid overtime until you worked 48 hours. Then, eventually, it was brought down to 44.
The Chair: Excuse me, but we're going to run out of time, and I've got to allow Mr Christopherson time for his question.
Mr Christopherson: Thank you for your presentation. You should be aware, in the context of your referring to you and many of your members remembering the Depression years and what that meant particularly to working people and their families, that a lot of community and labour leaders have come before us and have acknowledged the contribution of the generations that came before them, their parents, grandparents and great-grandparents and what they fought for and how we got to have the great society that we do here in Canada.
I want to ask you how you feel about the government's audacity, quite frankly, in even attempting to call this bill An Act to improve the Employment Standards Act. You've already had one question from a government backbencher trying to get you somehow to agree that somehow this improves things, and that's what they've actually called this bill. How do you feel about that and how do you feel about what this bill will do to working people?
Mr Jordan: We would not be here if we thought it was an improvement. We would certainly not be appearing before this committee if we thought it was an improvement, so doesn't that answer the question itself, the very fact that we are here, the very fact that we are not going to be union or non-union employees? We're finished with employment. We don't have to worry about that, but we are worrying about what's going to happen to Canada, and sincerely, we are pleading with you people not to allow these detrimental changes to happen. It's just something that's not of the Canadian nature, and as people on this panel, we say to you, please do not allow these changes to go through. I think that answers your question, sir.
Mr Christopherson: It sure does. Thank you very much.
Mr Michael: No, we do not believe this is an improvement at all, Mr Christopherson. We think it's a gutting of the employment standards, to even the minimal degree that's there now.
The Chair: Thank you both for taking the time to make a presentation before us here today. We appreciate it.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
The Chair: That leads us now to our next group, the United Brotherhood of Carpenters and Joiners of America. Good afternoon. Welcome to the committee. Again, the 15 minutes are yours to divide as you see fit.
Mr Daniel McCarthy: I'll begin by introducing myself. My name is Daniel McCarthy. I'm the Canadian director of research and special programs for the brotherhood of carpenters. On my left is Mr Ucal Powell who, in addition to being a vice-president of the Ontario provincial council, is also the business manager of our largest local here in Toronto, Local 27.
On behalf of the 18,000 members of the United Brotherhood of Carpenters and Joiners of America, the majority of whom are in construction, we welcome the opportunity to address our concerns to the standing committee. We have a brief that we have submitted to the committee. What we would like to do is highlight three points.
Under "Adjudication and Enforcement," on pages 4 to 6 of our presentation, which deals with sections 19 and 20 of the bill, the twofold effect of those sections is to divide workers into two groups on the basis of whether or not their workplace is subject to a collective agreement and to restrict access to a public institution, the employment standards branch. In the case of unionized workers, they are denied access to a public institution. To be blunt, section 20 of Bill 49 violates workers' fundamental freedom of association guaranteed under subsection 2(d) of the charter.
Section 20 is worded carefully to try and avoid infringing the charter. However, for all intents and purposes, a workplace with a collective agreement is a virtual proxy for union membership. There is an adage in law and in common sense that one cannot attempt to do indirectly what one is prohibited from doing directly. Further, this is not about the recognition of a collective right under the charter. It is clearly distinguishable from the case law on subsection 2(d). It is about a coercive intrusion into an individual's exercise of freedom of association. It is about a categorization of workers and the denial of access to a public institution.
You are familiar in the press with the term "libel chill." This amounts to union chill. This is a direct statement to an individual, "Before you consider becoming a union member and moving on to a collective agreement, think about your access to a public institution, which will be taken away from you."
The second point I would like to make is on the limitations, the maximum and minimum claims, which are found at pages 7 to 9 of our presentation. This deals with sections 21 and 32 of the bill.
There is a perverse logic at work in the treatment of limitations, maximums and minimums. It seems to be: Too many workers are making claims under the Employment Standards Act because employers are breaking the law and not paying what they owe; too many workers are applying for public funds under the employee wage protection program because they cannot collect from employers; too many non-complying employers means too many employment standards officers are required for enforcement.
Therefore, the following proposals are introduced: maximum and minimum awards; retroactivity reduced to six months; restrictions on enforcement through the employment standards branch; and a reduction in employment standards officers by one third.
This is a contradiction, notably for a law-and-order government -- punish the victim, not the perpetrator of the crime. This government has taken a very strong and a very public stand against deadbeat dads who do not pay what they owe, who do not live up to their responsibilities, who abandon their dependants on to the public purse. Why is this government unwilling to take an equally strong stand against deadbeat employers?
In 1994-95, of the $64.3 million assessed against deadbeat employers, $47.8 million was not collected. The reason? Deadbeat employers refused to pay. Deadbeat employers should not be rewarded for non-compliance with the act. They should not be unjustly enriched at the expense of workers, and deadbeat employers should not be given a competitive advantage over the majority of employers who do comply with the act. Sadly, Bill 49 does not exhibit the same political will or enthusiasm in securing payments from deadbeat employers as the government has expressed in the pursuit of deadbeat dads.
The third point I would like to make is to do with the collectors, which covers sections 2 and 28 of the bill. In evaluating the proposed introduction of private collectors, it is instructive to look at the powers that are given and the powers that are withheld. Powers given include the power of the director of the employment standards branch. A collection agency can go to a third-party employer, demand money owing to a party with the violation, an employer or director with the violation, not only demand collection of the money but can give the receipt for discharge of the original liability. I am not too sure I know too many employers out there that will be happy about a collection agency giving discharges of liability on a third-party proceeding.
They have the power of the administrator of the employee wage protection program. In other words, they can subrogate all the rights of an employee and bring an action against an employer. The collector also becomes a de facto employment standards officer. They can substitute a binding compromise or settlement and render void the order of the officer. Clearly, the collectors have adjudication and enforcement powers. They have both. It's not just collections; it's not just enforcement; it's adjudication.
So what are the powers that are being withheld? They have no power to demand information. They may void penalties as a part of a standards officer's decision or order, but they may not impose new ones, and it's interesting to note that if a penalty is collected, the subsection that deals with the disbursement of funds has no mention of collectors ever turning over the penalties.
This is somewhat alarming. This curious combination of powers given to and withheld from the collector who is an agent of the government -- as an agent of employees chosen for employees by the government -- raises important issues of selection, accountability and liability, and this is certainly exacerbated by the fact that the collectors will not be required to be registered under the Collection Agencies Act.
What will the selection criteria include? Will there be provisions for bonding? How will a collector be accountable to employees? There is no route for redress. If there is coercion in a settlement, the only option open for an employee is to sue the collector, and I suppose any lawyer would advise you to sue the government as well in Small Claims Court. And who pays in case of bankruptcy? It would appear to me that the sections of this act have not fully thought out what is going on with privatizing collection with the government being ultimately responsible.
We would submit in conclusion that section 3, the collective bargaining, to which I did not allude, section 73, the collector, should not even be submitted to a comprehensive review of the Employment Standards Act. The construction industry can ill afford legislation which makes it easier and more profitable to enter the underground economy. Workers cannot afford new barriers to collecting what they earned.
Denying unionized workforces access to a public institution is a violation of the charter and it sends a clear message to union members and to those contemplating union membership that there will be disadvantages. You will not have access, as a taxpayer, to what other taxpayers have access to.
Changes to the Employment Standards Act should penalize the problem deadbeat employers, not the victims. If the costs of public enforcement and collection are considered too high, the solution is to increase administration fees and penalties to the problem employers. The solution is to find the political will and conviction being expressed against deadbeat dads.
One slight comment on the section which was withdrawn at the beginning of the hearings: There's a problem that individual standards within the Employment Standards Act are being lumped together as if they're interchangeable. They're not. They were gradually, historically evolved to address certain problems. A problem in health and safety which is created by long overtime hours or longer work hours cannot be compensated by an extra day off.
Mr Lalonde: Thank you for your presentation. The group that made a presentation from the same organization as yours yesterday stated that Bill 49 is also a sign that the government is intent on addressing the reality of the global marketplace, international competition and especially the changing nature of work in the workplace. Do you agree with this?
Mr McCarthy: I have read all the economic arguments and I know they've been made by several groups. This does not address changing globalization. It's simply saying, "If they can get away with it in the Third World, let's adopt it here." We have minimum standards in this country for a very important reason, and that is because we have expectations, I think very important expectations, and we have principles. I think it's unprincipled to say the only way we can compete is by the lowest common denominator and, "Let's look at the slums of Calcutta."
Mr Lalonde: You say you're representing a union group. Your people are unionized?
Mr McCarthy: That is correct.
Mr Lalonde: I've always said -- and we have a maximum of $10,000 -- that the vulnerable are going to be the most affected. To my knowledge, if I do calculations it will be the ones who are unionized because they have higher salaries, and they are going to be the most penalized when it comes down to the limit of $10,000. If you're at minimum salary, it takes a long time to add up to $10,000. A minimum salary is only $274 a week if you work a 40-hour week.
In this case your people are going to be the most penalized. Also, your group will not have a representative or an enforcement officer taking care of your employees. You will have to get hold of a lawyer or have an expert within your group to debate the case.
Mr McCarthy: You're right. I would add one refinement. Unions, and our union included because we also have industrial -- we have a spectrum of wage ranges within union presentation. It's going to be the workers we take who normally earn just above minimum wage and we manage to bump them up a dollar or two over time and finally get them some kind of minimum benefits introduced who will be the most vulnerable. In any union structure, if you're trying to offload the costs of administration of a lower wage unit, then it becomes impossible to service them properly, and they should not be penalized for being in the lower wage spectrum of the unionized workforce.
Mr Christopherson: Thank you for your presentation. We heard yesterday from the Council of Ontario Construction Associations that they believed this was good for the industry, good for individual companies and good for construction workers. You say that this bill will damage the construction industry.
Just for the edification of the government backbenchers, wouldn't it make sense that if this bill did help the industry and companies and your members, you would either be here supporting it or, at the very least, staying away and being quiet for whatever reason? You certainly wouldn't come forward and do something that would deliberately hurt your members. Doesn't that make sense?
Mr McCarthy: It's precisely the reason we're here. It's of interest to note that in the construction industry the regulations in the back -- we are already one industry where the 44-hour week has been waived. Sewer and water main is 50 hours, bridge building is 50 hours, roads is 55. If you're looking at an industry which is under attack because of changes to the employment insurance act, where we now have to say, how do we manage to produce good apprentices without training money coming from the federal government and how do we get greater utilization rights of our members, then it makes absolutely no sense to weaken the negotiation process and the minimum hours and the other minimum standards so that when a project is being done you can work astronomical hours at great personal risk and not enhance your future employability and not enhance your security.
Mr Baird: Thank you very much for your presentation today. I was particularly struck by your comment with respect to deadbeat employers. I think you're the second or third trade union who has brought that up and it's one that I agree with. Obviously the principal purpose of the Employment Standards Act and its enforcement is enforcing what we term to be some basic rights.
Your second comment that I think is very valid, and it's particularly noted that it came from a trade union, is something I've believed in for some time. If you're going to establish these rules that a business that is honest, pays the minimum wage, accepts all the responsibilities under the law shouldn't be at a competitive disadvantage from a deadbeat who chooses to pay their employee $3 or $4 an hour. That's something I wholeheartedly agree with.
One of the other issues you brought up was with respect to the collections branch, saying that the government is ultimately responsible. Under the legislation the government is, of course, ultimately responsible for the collection. Just to comment, it's our feeling that we're only collecting 25 cents on the dollar today: $64 million worth of orders, and we're only collecting about $16 million. We think we can do a better job than that. If there were some ways to do that in-house, certainly if we were to do it -- the previous government would have done it over five years. Regrettably there's just not a pecuniary or personal interest there that I think the expertise a collection agency would have to bring to the task to deliver for workers. That's just a comment more than anything.
Mr McCarthy: In response to your first comment, you're absolutely right. The level playing field is critical, especially in construction, which is project-oriented and on competitive bids on tenders. It's absolutely critical that everybody knows what the baseline is.
With regard to your second point, in terms of enforcement: The point I tried to make in my presentation is that you're actually giving the collectors powers of enforcement without the requisite powers to execute them properly. It's one thing to say, "They've got an order; they've got to go out and collect it." But they can go out with an order, substitute an order and void the original one by up to 25% and it can be lowered later by reg. They can go out and subrogate an employee's claim and bring an action in court against an employer without having access to records. They don't have that power.
The fundamental flaw to collectors is not simply a privatization issue. It's that if you're going to lump together enforcement and collection in the collector, then call them an adjudicator and give them the powers of adjudication.
The Chair: Thank you both for making a presentation here today. We appreciate your coming in.
Mr McCarthy: Thank you.
COMMITTEE ON THE STATUS OF WOMEN, CITY OF TORONTO
The Chair: That leads us now to the Committee on the Status of Women, city of Toronto, if they could come forward. Good afternoon. Welcome to the committee.
Ms Pam McConnell: Thank you, Mr Chair. I'm Councillor Pam McConnell from the city of Toronto. With me are some staff members to our committee and some committee members, all of whom worked on our brief and our presentation. Kara Gillies is here from our committee; Catherine Leitch and Priscilla Cranley are staff to our committee.
Thank you for allowing us to make the presentation today. The city of Toronto's Committee on the Status of Women works cooperatively with city agencies and other levels of government to advocate and develop policies to achieve access and equity for women working and living in Toronto.
Bill 49, the Employment Standards Improvement Act, was introduced by Elizabeth Witmer, the Minister of Labour, to simplify administration of the Employment Standards Act. The Committee on the Status of Women strongly believes that Bill 49 goes well beyond this stated purpose and in particular that it will have a devastating impact on working women of Ontario.
The current employment standards legislation sets out minimum wages and working conditions for the majority of working people in Ontario. The standards have never been very generous, in our opinion. The role of the legislation has been to stop the worst forms of employment abuses and create a level playing field on which employers can compete.
Other than changes regarding vacation entitlement, seniority and service as they relate to pregnancy and parental leave, it is the view of our entire committee that the bill is regressive and erodes many safeguards that are contained in the current legislation.
Bill 49 denies access and equity of a significant number of working people who rely on Ontario's employment legislation for fairness in employment.
Bill 49 will allow employers to negotiate standards for hours of work, public holidays, overtime and severance pay that are lower than current minimum standards. This will lead to an unfair competitive advantage to employers who choose to deny fair and reasonable conditions of work to their employees. It will also have a disproportionate negative effect on the most vulnerable workers in our province.
Second, Bill 49 reduces the time for workers to file claims. Bill 49 limits the amount workers can claim. Bill 49 allows the Ministry of Labour to get out of enforcement. Bill 49 gives private collection agencies the job of settling claims and collecting moneys owed to workers.
These measures, in our opinion, will diminish access to justice and erode protection for a number of working Ontarians. In particular working women, visible minorities, people working in the garment and textile industries, in food processing, foodservices and cleaning, domestic workers and home workers, those will be the people most harmed by Bill 49 as it removes assurances that employers of designated groups will not compete simply on the basis of decreasing wages and deteriorating conditions of employment.
The committee believes that denying rights to vulnerable working people will not make the ESA more effective and more efficient. Changes to the Employment Standards Act should focus on enforcing the rights of working people while making the legislation more effective and more efficient. The committee strongly urges the government of Ontario to reconsider and amend Bill 49 so that it may serve the purpose of continuing to protect and improve the rights of working Ontarians.
Many organizations have suggested a range of proposals with a view to enforcing the rights of working people and increasing the effectiveness of this act. The Committee on the Status of Women supports these proposals and suggests changes to the act in the following areas: Prevent violations by providing public education regarding the obligations of employers and the entitlements of employees. Require posting of the act's essential points in the workplace. Implement an audit/investigation system to detect violations. Implement a system of inspections in industries that are known to violate the act, including provisions to detect and deter further violations. Implement a policy for prosecuting those who violate the legislation, including penalties that serve as a disincentive for those who violate the act. Consider and investigate anonymous and third-party complaints of violations. After all, there is no protection under the current legislation for people to keep their jobs after they have complained, and we know that about 90% of them do not.
Improving enforcement and collections: Shorten the time limits on ministry investigations, proceedings and prosecutions, and commit to timely, orderly settlement. Increase the use of the certificate procedure currently provided in the ESA to increase collection of assessments against employers. Permit the Minister of Labour to establish an escalating schedule of administrative charges tied to time and complexity of procedures needed to recover money owed by employers, instead of turning the collection function over to private agencies. Compromises or settlements should be pursued as a last resort to recovering full amounts of money owed to employees. Have all parts of the ESA apply to all workers in Ontario. Include a prohibition against unjust dismissal in the ESA. Strengthen the joint and several liability provisions of the act so that employers cannot avoid responsibility related to contractors and subcontractors.
These improvements would make it easier for workers to gain access to their rights under that in a timely manner without fear of reprisals or being fired.
These are suggestions our committee has worked on for many years to protect the workers and to ensure that within the marketplace there is fair and equitable treatment.
I'd like to submit this to you.
Mr Christopherson: Thank you very much for your presentation. As you probably know, our party has maintained throughout the tenure of this government that its agenda has disproportionately impacted on women, particularly the 22% cut to the poorest Ontarians, its attack on pay equity, its attack on employment equity and now, as we see it, Bill 49. How do you feel about that contention that Bill 49 is just one more piece of legislation that not only hurts the most vulnerable but disproportionately hurts women in Ontario?
Ms McConnell: It's certainly our contention that it does hurt the most vulnerable and that the most vulnerable are the women. With regard to the work that we do and that I do in my own community, as many of you know, I represent an area called Regent Park and St James Town. These are areas where women work at home, and it is these workers who will be most affected by this particular legislation. These are the same areas that suffered great social cuts in the last round. I would urge that when looking at this legislation you look at it in that context. If it is not your intention to erode the rights of these workers and to unfairly target them, then I would suggest that changes to this bill are necessary, because the implication of the implementation of this bill is that they will be the most vulnerable.
Mr Christopherson: As you know, the government continues to shamelessly defend the fact that it put forward this as an improvement to the Employment Standards Act. The two years to six months is one of the things that jumps out the most, and you've commented on it. Could you just expand on it a little and try to convince these people that it is indeed going to hurt the most vulnerable workers to move from a two-year time frame to claim down to six months? Because they won't admit it.
Ms McConnell: Maybe what you need are some real examples. I have a woman in my community. It took us quite a number of months to convince her, first of all, that she had a claim and, second, that the claim should be proceeded on. It's very easy for us who are very used to demanding and taking our rights not to understand how difficult it is if you are the most vulnerable and to look at what the most vulnerable workers look like. They are women. They generally don't speak English. They are isolated. They don't have at their fingertips that ability to make quick decisions.
In addition to that, she had lost her job as a result of her claim anyway, so had you not changed the amount of time that she had to come to the realization that these were her rights and here's how to exercise them, but rather looked at how much quicker you might have investigated her claim and come up with a solution so that she would have been paid, as she eventually had the right to be, I think that would have dealt with your time frame.
The other problem is that of course if it's only six months, by the time I get this woman in front of your body the time has already elapsed and you're looking at only one or two or three days of her working history. You're not looking back at the entire working history, two or three years where, over and over again, her rights and her wages were abused.
Mr Baird: Thank you very much for your presentation today. We appreciate it. You're one of very few presenters who has put forward, I think with good intentions, some recommendations as far as changes in the ways to improve not just the act but the enforcement of the act and even preventing violation in the first place are concerned. Certainly that's appreciated. We're trying to draw on some of the experiences of not only the last year but of previous governments, many of which have had problems with enforcing the act. Obviously today we're only collecting 25 cents on the dollar, which sends out such a terrible message both to workers and employers. To workers it says, "Don't bother complaining; you're not likely to get your money anyway." To employers it says, "Just go ahead and violate the act because there's only a 25% chance you're going to have to pay the whole order." That's obviously something we're trying to work on. There's some disagreement on that.
We know we can be more helpful to workers if they come forward quicker, we know we can be more helpful to workers if we can deliver the money for them -- things like the private collections and what not -- but we'll certainly take back many of these suggestions. There's a comprehensive review that the minister's undertaking over the next period of time, eight months or so, that's already started to try to update the act. It was written in 1974 and there hasn't been a comprehensive review. All three parties have amended it numerous times, but there hasn't been a comprehensive review. She's going to conduct one. We'll take many of these suggestions back for consideration in terms of the review.
Ms McConnell: Thank you very much. We appreciate it. We'd be happy to follow up on any of the other questions you may have later.
Mr Lalonde: Good afternoon. Do you think Bill 49 will affect mostly women more than men at the present time, especially the fact that the number of maximum regular hours you're able to work will be taken out of the employment standards? At the present time it's a maximum of 44 hours. Will the fact that we are going to pull out this section have an effect on women?
Ms McConnell: Absolutely. First of all, what I've described really in terms of the people who most need this legislation are people at minimum wage. We know that a larger proportion of women are working at the minimum wage. The largest concern for me is women who are working in isolation at home and women who are working in the food and service industry. For them the number of hours becomes very important.
I'm sure that you read, as I did, the big Bad Boss Stories. This reminds me: To me it doesn't look like Ontario, and yet I know these stories because these are real people in my community who have spoken about some of these horrific circumstances. For many of them 44 hours was really 60 hours because enforcement was not terrific, as we know. To erode enforcement and then to remove some at least of the barricades so that when you got somebody you could put them against the wall is to me really very dangerous.
That's what concerns me. Wouldn't it be awful if all of the work we did around child labour in the garment industry overseas came back to roost here and we discovered that many of our women workers had as few rights as those children and as little money being passed in through to their children?
Mr Lalonde: I must say in closing that I really support your preventing violations in there, the five points that you have indicated in there. I think every one of us should support what you indicate in there.
Ms McConnell: Thank you very much. I would hope that we would be looking at large-scale violations, so we wouldn't have the most vulnerable come forward and investigate one case at a time, but rather put those things together and know where the problems are.
The Chair: Thank you all for taking the time to come make a presentation before us today.
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION
The Chair: That leads us now to the United Food and Commercial Workers International Union. Good afternoon. Welcome to the committee.
Mr Bryan Neath: Good afternoon and thank you very much. My name is Bryan Neath. I'm the Ontario assistant to the Canadian director of the UFCW. With me today is Brian McArthur, who is the staff representative for the RWDSU, which is the Retail, Wholesale and Department Store Union division of UFCW for the northern region. Also, so that you do know, there is a group of people back here who are also members of UFCW, rank-and-file members who haven't come up here but have come here to listen, make sure that our views are put forward and that hopefully the people in this committee are listening to the things we are saying.
Perhaps as an opening, I'll introduce to some of the people who may not know what the United Food and Commercial Workers International Union is. We're the largest private sector union in North America, representing some 1.4 million members. In Canada we have over 185,000, of whom 80,000 are here in Ontario. We're probably the most diversified union around. We represent well over 20 sectors. We represent people in agriculture. In the industry we have the food and meat packing process. We have retail, hotel, education people. We have health care. We have garment workers. We have home care workers. We have hospitals and we have funeral homes. It's a saying in our union that we represent people from the cradle to the grave. Perhaps for the benefit of the Tory members, we also represent several workers at golf courses as well. I add that we feel confident that when we come here today we speak with a great deal of authority on workers' issues.
Let me first start off by saying again, as in most hearings that take place now in Ontario, that we'd like to thank the opposition parties. Certainly in this case we want to thank the NDP for having this opportunity for being here today. I'm sure, as the labour minister would have thought, by this time we'd already have this piece of legislation and it would be law and it would be just another attack on workers, and especially the most defenceless workers of all.
Unfortunately, what has happened at this committee meeting is that you've only allowed us 15 minutes for our presentation, which is impossible. It's really quite a joke, as a matter of fact. We don't have time to really fully review Bill 49 and have a chance to expose all of the damages it will cause to the working people of Ontario. We have a brief, which you all have in front of you now, and of course we don't have the time to go through the brief.
Bill 49 has been presented to all of us as just housekeeping, with a full review to come later. We know that's not true, absolutely not true. What we'd like to do is just to point out a few examples from our brief. What I'm going to do is have Brian review a few of the things. Then I'll conclude and we'll open it up for questions.
Mr Brian McArthur: I want to speak to the issue of the collective agreements being the enforcement mechanism for the purposes of employment standards complaints and I want to give you an example. It's a real, factual example that I experienced about a week and a half ago at a membership meeting in Blind River, Ontario, where I had a young, part-time individual who works in a food store come to the meeting and ask me a question about whether or not he was entitled to three hours' pay when the company was scheduling him for two hours' work on a daily basis. I said, "Yes, the Employment Standards Act gives you the right to be paid for a minimum of three hours for each period that you're working," in this case two hours of work. He would be entitled to three hours under the legislation. He said to me, "How do I go about claiming the retroactivity going back three years since I've worked here?" I said, "The only thing I can do for you is file a grievance at this point under the agreement to put a stop to it and to make sure the company doesn't do that to you in the future," ie, get the extra hour's pay.
Under the scenario the government is proposing, the fact of the matter is that this person would be disentitled to make a retroactive claim under the terms of the collective agreement. The reason I say that is because under that particular agreement there's mandatory time lines for filing a grievance, right? There are no mandatory time lines, with the exception of the two-year limitation, for filing claims with the ministry when it comes to those kinds of claims for retroactivity.
So how the government can say that this does not affect employees, that these changes are housekeeping changes, just baffles me, because this particular individual was entitled and is entitled under the current legislation to make a retroactive claim going back some two years. Under the scenario for enforcement through a collective agreement, there's nothing he's entitled to other than to make sure in the future it doesn't happen again.
So this is the kind of problem that I don't think the committee has really envisioned by way of some of the impact, the changes, that the legislation will have on people in the province of Ontario. Yes, it's maybe an hour, maybe it's two hours or five hours, but it's still their entitlement. I think that if the government's taking the position that there are no significant changes to the detriment of employees, they have to understand that these are the kinds of things that do happen and people will be affected by these kinds of changes.
The other issue I wanted to speak about as well is the whole concept of utilizing the collective agreement for the purposes of enforcing the act. The last time I checked, arbitrators are running about $2,500 a day, plus expenses. To me, that's a tremendous burden and a hardship imposed in terms of an additional cost that is now provided by the Ministry of Labour through the referee process. So what the government is proposing, in my opinion, is going to create more of an economic hardship for small businesses than what currently exists if there is a claim with the Ministry of Labour by way of the enforcement methods that are currently in effect through the no-charge referee system. So there is an economic deterrent in terms of this proposal as well.
Finally on this topic, in reality, if the government is proposing that the unions are going to be the employment standards cops, then at the very least I would think the government should give us the same powers as employment standards officers to demand the records, to be able to audit these companies for violations under the act, because currently we don't have that kind of power. If we don't have those kinds of powers, this of course will be of detriment to the companies because we're going to end up taking claims that are not necessarily valid to arbitration at a significant cost when otherwise they would not be processed if the Ministry of Labour would be doing the investigations.
So I wanted to bring those points to your attention, because I really don't think you folks have thought this thing through to such an extent whereby the individual employees and employers in this province are going to gain anything from it. I think it's a terrible step backwards for this particular piece of legislation.
Mr Neath: Just to wrap up in a conclusion, because I would hope to leave lots of time, we looked at this and thought that if you were truly looking at housekeeping in this act, if this truly was housekeeping, why didn't you clean up the appeals sections of the act? For a lot of members here I'll perhaps give you a little lesson here.
Why does the Employment Standards Act state that an employee who is dissatisfied with an order has the right to file an appeal -- it's for wages only -- and that appeal goes to an adjudicator, which is an internal review, and that the director may or may not appoint an adjudicator to review this, but in the reverse, an employer who is dissatisfied with an order has a right to file an appeal not only for wages but also for provisions under the act that deal with lie detector tests, pregnancy leave, Sunday working and also a court order for garnishment of wages? That appeal goes to a referee, which is an external review that they don't have to pay for, as Brian mentioned before. Furthermore, in the act the director has no choice, but according to the act he or she "shall" appoint a referee to hear the case.
With a little housekeeping, if you changed "may" to "shall" and you added some of the same sections of appeal and made the appeal process the same, you would tip the level back to some form of equal justice in terms of the appeal system.
But we in the UFCW know that this is not about housekeeping and this is certainly not about justice. Bill 49 is just another example of the government's attack on workers' rights to further the battle of the haves and the have-nots. We know that if you work together in true partnerships, you can create desired changes and results. But unfortunately, in Premier Mike Harris's Tory revolution, you have to pick sides. We in the UFCW know which side we're on. To the three parties here, the question I'll ask to all of you is, what side are you on?
Again, at the end, I think we should see Bill 49 go away completely. You're going to do a review of the act anyway, and you can review the changes there. Thank you.
The Chair: Thank you very much. That leaves us one minute for questions per caucus. This time we'll commence with the government.
Mr Baird: Thank you very much for your presentation. You mentioned on page 9 of your presentation with respect to section 5 and the use of private collectors that you would like to improve and maintain the current system of public enforcement. Is there anything you can suggest to us that if we didn't go to private collectors -- and we know the current system isn't working. We're only collecting 25 cents on the dollar. We've got to do better than that; the status quo is not an option.
Is there any specific solution or solutions that you might have for us that would improve that 25% rate, very specific, something that the previous government under Labour Minister Bob Mackenzie thought was not doable or that the Liberals couldn't do, that we could do? Because I guess we're just at a loss as to what we could do on a cost-effective basis to increase collections. That's why we want to farm it out to collection agencies to go after these deadbeat companies and make the deadbeat companies themselves pay.
Mr Neath: There's a couple of things that you could look at when you're dealing with this question. To be honest with you, at this stage we haven't done an in-depth investigation, but there are a few things that can be done. One of the things that in my view you should do or could do is that everybody who gets hired in the province of Ontario could be given a copy of the Employment Standards Act, that the employers must give it to them as part of being hired in this province and that it be done in every language, the language of the working people. You would then have people educated to the act. You would then perhaps have fewer challenges of the act.
I've been watching with interest and listening with interest lately as the Ministry of Transportation is taking on the trucks. You're being proactive in that case. If you were proactive in the Employment Standards Act instead of just running after claims, perhaps you would have then another opportunity of where you would increase the opportunity of the dollar.
I don't believe you simply privatize, for all the other reasons that you've heard. Certainly the presentation of the carpenters before us, I think their answers were dead on and I don't you're going to get any more --
Mr Baird: I'm just cautious that if some sleazebag employer is paying his worker $1 an hour, they're not likely to obey the law by handing him or her a copy of the Employment Standards Act. But there's got to be more education, that's a clear message, and I agree.
Mr Neath: That is a clear message. One other thing I might add: If the government is truly worried about sleazebag employers, let's get rid of them.
Mr Lalonde: I'll be very brief. You referred to that little boy in Blind River. Do you know if those people in small communities like that are fully aware of the Employment Standards Act?
Mr McArthur: No, I don't believe they are aware of the specific provisions of the Employment Standards Act. They all know essentially that there are minimum standards in the province, but they're certainly not cognizant of any specific level of entitlement or benefit to the degree of understanding the act and the regulations to that extent, no.
Mr Lalonde: I really feel it must be a necessity that all commercial places have posted the ESA. The Employment Standards Act should be posted at every business, industry, any place that has an employer.
Mr Neath: There is not anywhere that I am aware of in any act that forces anybody to post any notices in respect to employment standards. Under the Occupational Health and Safety Act, notices are supposed to be posted, but if you went into the workplaces now, you probably wouldn't even find them, and that's under legislation.
Just a little bit in response about the fellow in Blind River as well. He wouldn't know anything if he didn't have a union. Imagine the workers who don't have a union. Where do they even go to ask the question, period?
I, through the last government, had a committee. We were reviewing the Sunday shopping working as an advisory committee. Part of that committee, which was made up of government, management and labour, was to go around the province to discuss how the new legislation -- legislation, I might add, we weren't happy with on Sunday openings -- was affecting workers. In our brief here we've mentioned this. One of the recommendations was stronger enforcement through the Employment Standards Act under the Sunday working provision.
Right in the report it indicates very clearly that we could hardly get any non-union workers to come to this hearing because they were terrified of being discharged by their employer. Also on this committee, what happened is people who filed charges under this provision of the employment standards, none of them were returned back to work. One of the workers dropped their claim because they had gone to work to a competitor and they didn't want the competitor to know, because they knew that if they found out they actually filed a complaint to employment standards, they'd lose their job with the competitor.
People just don't know about it. One of the things is education. People need to be educated on it.
Mr Christopherson: Thank you, Mr Neath and Mr McArthur, for your excellent presentation and particularly your comprehensive brief, which I hope the government will take the time to read.
I want to focus a bit on the flexible standards, because although it's not part of Bill 49, that monster's coming back over the next year. The minister has already said that. Given that you do a lot of chain bargaining across the province and across the country, are you possibly looking at and concerned about the domino effect, for instance, of bargaining in a concessionary mode?
The government seems to think that unions have all this power and they walk in and lay their demands on the table and the company sits there and shakes and shivers and says, "Yes, yes, yes, we'll sign as quick as we can." The reality is that it's tough bargaining these days and it's tough to hang on to what you've got. In a round of concessionary bargaining with those kinds of flexible standards, you could be forced into a situation where you've got a collective agreement that contains standards below the Employment Standards Act that you don't want but you had no alternative but to accept.
My question is, is there a concern for you that when you sit down with the next chain employer, that demand is now on the table but you've also got the added effect that it's in a competitor's collective agreement and that you might be looking at a domino effect, and over a period of years the thousands of people you represent could be working in conditions that more and more are below the standards that are there now? Is that a fair concept of sort of the nightmare scenario?
Mr Neath: Absolutely. It almost sounds like a setup question, David, and I'm sure you didn't do that.
Mr Christopherson: I'd never do that, Bryan.
Mr Neath: Oh, no. But I don't think anybody opposite to us, unless you actually worked in a union, understands -- and I am saying in the retail sector. I'll talk about that for a sec, and you talked about that. In the retail food sector, the profit margin is 1%. So any particular change and any advantage that happens to the competition because of that 1% margin could potentially put the other competitors totally out of business.
Even in the chains, it's the smaller ones, perhaps the independent franchise owners, and we have many of them on contract as well. There's also a variety of unions that are involved. It's not just our union that has all of the retail; there's other unions that have them. So if a small independent signs a collective agreement in which they lower the standards on overtime hours, as an example, or hours of work, period, because they're open almost seven days a week, 24 hours a day in retail, you're going to have that competitor perhaps sign off on something like a severance package, which really isn't a cost until actually at the end of the business. That's definitely going to have an effect on the cost of doing business for the employer who's got the stricter standards in negotiations. You've got to have the floor. If you don't have the floor, then you have nothing.
The Chair: Thank you both for taking the time to make a presentation before us here today.
The Chair: With that, we go to our next presenter, Belisa Paulo. Good afternoon. Welcome to the committee.
Ms Belisa Paulo: I haven't made a presentation before so please accept any misappropriate wording or any misappropriate language I might use since I'm not used to talking in front of a committee.
My name is Belisa Paulo. I am a resident of Ontario, as you can guess, a voter. I'm a mom of two children. I'm an immigrant woman. I've worked in the amusement field, in the restaurant field, in hospitals. Where else have I worked? I've also worked as a community worker. I also provided sometimes support and information to people who needed translation, as I am actually a Portuguese immigrant woman -- I'm a bit nervous, as you can tell. I also am a woman with a learning disability. I have attention deficit disorder, so occasionally the wrong words come out, and I also have problems with attention. What else? I'm also one of those people they call late. I'm always perpetually late. But I'm actually a very hard worker, so most people love me anyway even though I'm five minutes late to work.
The reason I came and I also presented those things is so you know sort of where I come from. The reason I actually came is because the title of the bill is to improve the Employment Standards Act. I fear that what's occurring in the last years and truthfully also before Harris was elected and also after Harris was elected is that employment standards have actually been deteriorating, that actually they have not been kept up to. I remember when I worked for Conklin at Exhibition Place, on numerous occasions my employer kept me overtime and I was actually a minor. He kept me overtime. I remember staying there till 11 o'clock at night and I was supposed to have an eight-hour shift, so I think I stayed like a 12-hour shift as a minor at the Exhibition.
At various places I've worked, on numerous occasions I haven't had my breaks. Some of it was out of my own recognition of other employees' -- specifically, for example, when I worked at the hospitals as a ward clerk, and this is back in 1989-90, the hospitals already were under extreme stress because of budget cuts, because of nurses and floors and rooms being cut, and we as ward clerks and as nurses already had a large workload. Thinking I guess of patients' health and the nurses' workload, I often would not take my 15-minute breaks and I would also miss my lunches so that they could keep on working. I'd have to answer the phones or deal with other questions that would come to them. I would also occasionally have to stay overtime. For example, deceased people: When you have a deceased person you have to close up their file and books before the day is over, and my shift was usually the last shift so I had to do it and I would stay half an hour or an hour overtime.
When I presented that information to the head nurse, she told me it was my responsibility to do it within my time frame and that I was not entitled to any of that -- that I was not entitled to those 15 minutes. Actually, usually it was like an hour, or whatever, 40 minutes or 45 minutes, that I had worked overtime -- that it was my responsibility to do that within the work frame. Truthfully, I knew, because of my lateness, they could use that against me and so I didn't feel that I had a foot to stand on to really complain, especially since I wanted my job and I wanted to get paid. So on a normal basis, I just did the overtime and didn't get paid. It was not because of me not keeping up with the work; it was because that work was required and it was needed.
I did some notes. I did not write anything for you because unfortunately I've been under quite a lot of stress lately and writing takes a lot of my time. That's another thing that comes with attention deficit disorder. While I can write reports and write grant proposals and things like that, it takes me, generally speaking, double the time a normal person does. Lately, I can't help it but I've been suffering from burnout and it truthfully came on around after the Harris government got elected. I don't know why but it did, but even so I took on two jobs. Also, the last years I've worked on contract basis as a community worker because that's basically what I've been doing: community education and community worker-type work. Lately all you can get is contract.
Since 1990, because of the cutbacks -- cutbacks have actually existed on government services and government professional services since at least 1990, if not before -- it's very hard to get full-time work as a community worker. I've worked on a contract basis. I worked as a mom support coordinator and my contract was for 21 hours. I actually worked on average 30 hours a week. But those contracts only pay for those specific hours, okay? I could, if I wanted to, just forget about what was needed or what the people I was serving needed and left my job after 21 hours and gone home. I could have gone home, and who cares that this woman needed advice or support because she just lost her job or because she had problems with immigration and she couldn't get the required worker's permit to go work? Actually, a lot of these women wanted to work who were on welfare. But she couldn't get it so was in despair talking to me. Am I going to leave her because my 21 hours are up? No. I stayed. I stayed and I never got paid any of that. The only reason is because there were those contracts. There is no pay for overtime. Government contracts to public community services -- most of them, unless they're old-standing employment contracts before 1990 -- very few of them, if any, have anything for overtime. You have to do your job within that time limit no matter who comes to your door or whatever. Otherwise, you're giving of your own time.
Within the act it also talks about maintaining contracts, yet I know for certain tons of women who are cleaning apartments. As a Portuguese woman I know about women cleaning apartments and cleaning the Ontario Legislature and cleaning the banks, the high-rises on Bay Street. There are many women who have been laid off or who lost their jobs because of age or maybe they got lucky and they got a better job. When those jobs became vacant, nobody was hired to replace those women. What they did is that they put the extra load on the women present and so the contracts were actually changed. But the women couldn't say anything about it because they want their job and they want their work and they need their pay, so what they had to do was just double their workload. That is a change in contract. Those contracts are not being maintained. They are being changed. Their workload is being doubled or tripled sometimes, depending. Where once they did four floors, now they're supposed to do five or six floors within the same time frame for the same pay. They're not given extra hours. They're not given extra pay for that.
That was a ward clerk. It goes the same thing for nurses. They have to do the same work. Also, the idea that you could hire people to do their job or an assistant and therefore let go of more nurses because you don't want to pay people the money that they are worth, so you hire -- it's changing their contract. It's changing the employment standards contracts by doing that. I've got to admit, I know how to give a bath to a patient and I know how to change a thing, but there are certain things that nurses are trained to do and if you're changing their contract and giving a part to someone else, you're changing their contract and you're also changing the safety to us all. That's another thing.
Something the speaker prior to me said, that we should get this, the Employment Standards Act, I think that's true. People should get the Employment Standards Act. I myself had trouble reading this and understanding it and putting which parts went with the old act. Basically I'm a literate person, but I admit I had trouble transferring these things. I also don't know all my rights. For example, I don't know when I should or can complain about wrongful dismissal. I didn't find anything in here about wrongful dismissal.
I think employment safety should be adjacent. Over here you have things that -- and the following are added on to this as parts that should be read or go along with this act. I believe the employment safety act should go along with the Employment Standards Act. I know construction workers right now -- there's a pair of bricklayers who are working in a northern town around Newmarket and they're working on scaffolding that is totally inappropriate for the height of the building. They're working on town houses four feet high in front of the city hall and no building inspector has come over and told them that they are working under wrong safety standards. They have not said anything because first of all they need the money and they need work, and so they have not said anything to anyone. But they are in danger of falling off and those safety standards are not being complied with. I think they also should be part of the Employment Standards Act.
I know a woman who worked providing a library -- what do you call it? -- it's called a toy library. She would go to location and location. She injured her back and her employer has basically ignored the fact that she injured her back, saying it was her fault when they actually never talked to her about proper safety standards.
I think environmental law should also be adjacent to the Employment Standards Act. The environment in which we work can be a hazard to our health. I think the smoking bylaw that passed just recently in Toronto is good and it's good not just for us as people who go into bars and discotheques. I like to go to a discotheque that's smoke-free. They're good for the workers in those environments. I think there are other environmental laws about chemical plants, sewing, whatever, all different places like that. To add to that, the smoking bylaw reminded me of something.
I actually went and listened into that and when I was there someone actually told me to go home to where I came from. I was with my two daughters and I happened to mention I was pro for the smoking bylaw and they told me to go home to where I came from. I guess they obviously realized I was not of English extraction or Canadian extraction, or something, because they knew I wasn't born in Canada. They told me to go home. I said, "Thank you, I'm very happy to be here and this is my country." What that brings up to me is discrimination and why I bring the next one. Employment equity, which this present government dismantled, is important and is needed under the Employment Standards Act. Just like this woman discriminated against me and told me to go home in a public meeting, this sort of thing happens at places of work. It happens not only for people of different colour and of different ethnic origin, it also happens for people with disabilities like myself with attention deficit --
The Chair: Excuse me, Ms Paulo. I don't mean to interrupt, but I just wanted to alert you we are just about at the 15 minutes, if you want to make some closing comments.
Ms Paulo: I'm almost finished. I worked at a community centre where the seniors' department had been run by people from South Asia. Their population had basically changed the seniors to basically English-speaking. The executive director, during the committee, said, "Well, it looks like we need to change staff in that department." I asked him, "Why do we need to change staff in that department, because they're all South Asian and now the majority of the population is of English, basically Canadian-speaking background?" And I said, "Well, does that mean that because I'm Portuguese I can only serve Portuguese-speaking people?" That's what he was implying. The South Asian couple can serve anybody. That was breaking employment standards.
Employment standards should also include being free from being discriminated against, allowing for people with disabilities to have flexible work or bring up other suggestions so they could work in the environment if there is problems with their work performance or whatever so they can be employed.
For example, myself, I like to work evenings because it's quiet, less distracting for me. Also, I've had health problems related to stress, so sometimes I'm sick during the day, but then I come in the next day and I work in the evenings and I catch up. Yet sometimes my employers, a few of them, have not been flexible enough to do that with me and I've lost jobs because of that even though I was doing my job. I might not have been the most excellent employee, but I was a dedicated, hardworking employee and I shouldn't have had to go through that.
Another thing --
The Chair: I'm sorry, Ms Paulo, but we're now past 17 minutes, so I'm going to have to cut you off. Thank you very much for taking the time to come and present before us today.
COMMITTEE ON MONETARY AND ECONOMIC REFORM
The Chair: Committee members, be advised your agenda has changed. The next group is the one you had voted to take -- it was a last-minute addition -- the Committee on Monetary and Economic Reform. Good afternoon, and welcome to the committee.
Ms Sydney Marcus-White: Good afternoon. I'm pleased to be here. I only heard about this yesterday. There was a cancellation and I thought I should come in and speak.
We at the Committee of Monetary and Economic Reform are concerned that the people of Ontario do not understand how we arrived at this desperate economic situation and the devastating loss of jobs. A lot of them don't understand.
Remember the game where you had to connect the dots when you were a little kid? You had your colouring book, and when you connected so many dots you saw a picture. We have some answers for the problems, at COMER -- we call it that in short form -- but first we want to give you a few of these dots so you can connect them.
In 1989, the free trade agreement came into force, the Trojan Horse of the free trade agreement. Now, if any country needs a few tariffs, it's us. Mulroney had no mandate to do this, nor a popular vote. He did, of course, get a lot of foreign money to overthrow Joe Clark. That's one dot.
In 1991, when the Reichmanns claimed bankruptcy and the private banks lost billions in Mexico, the governor of the Bank of Canada, to help them out, said, "Well, boys, you don't have to put any more collateral deposits into the Bank of Canada." Of course, the speculation then got even wilder. So as of 1991, we have no reserve in our central bank. There has even been talk at the Fed, by Greenspan, that at some point our bank should be rolled into the Federal Reserve, but of course we might have some say. Very nice of him. And Gord Thiessen and Paul Martin seem to like it that way. Of course, you could say that Paul Martin has a bit of a conflict of interest.
Two other countries in the world have no reserve in their banks. They are both small tax havens.
In June 1995 Harris was elected as Premier of Ontario. One month later, he was on a two-week fishing trip with Georgie Bush, the George Bush of the S&L loan scandals where thousands of retired people lost their life savings, but his sons came out of it smelling like a rose. One's governing Texas; the other one almost got in in Florida. On that fishing trip, I always wonder, which one was the bait there?
The winter before Harris's election, he spent many hours at the Bradgate Apartment Hotel. I live near there. He and his corporate cronies, with the governor of New Jersey -- which has the filthiest water in North America, I might add, and is totally ghettoized -- traded ideas about how this province would be run when Harris was elected. I have been to New Jersey and Michigan, much against my will. I didn't stay long.
Have you got the picture yet? We do not want to go over the cliff with these corporate lemmings.
If you want a recipe for total poverty and destruction, here's the recipe: How to dismantle a country and sell it to your neighbour.
Step 1: You force something like NAFTA into Canada, with a loss of not thousands but millions of jobs.
Step 2: You take away social services, with no excuse but the deficit myth -- which is a myth, by the way, because this government never counts its capital investment, which more than balances out this deficit. So you take away the social services, using that as an excuse, so that people will work for anything.
Step 3: You remove the powers of the Bank of Canada so that this manufactured depression will be permanent.
Step 4, which is coming up: You divide the people by making an issue out of language and forcing apart the two societies that built this country together. They both sweated, they both lost blood, and this wouldn't be happening if it weren't for a few special interests instigating this.
The people who have done this are still doing this. They're being paid well. Harris is on the same retirement plan as Mulroney. Maybe he has an apartment in New York in the same building. I don't know.
But to get on with it, here are some answers to the problems that corporate influence and greed have created.
We can disengage ourselves from NAFTA with six months' notice. This is right in the agreement. I doubt if anyone here has bothered to read it. It costs $150 to buy and there's something like 4,000 pages.
We can disengage. However, the corporate media -- I've been on the corporate media. They will allow me to speak, but when I look at it the next day after the taping they have blanked out the part where I have announced to the public that we can back out of this. That's never in there. And that goes for the CBC too. They have prevented this news from reaching the public, as a lot of people are benefiting in their course of suck up and kick down.
We would not need cuts to our social programs if the Bank of Canada took on our debt, and it could also take on the provincial and municipal debt. The Bank of Canada still has the same charter that established our central bank for this purpose, it has the same mandates, but Gordie Thiessen and Paul Martin have both decided to ignore the charter of the Bank of Canada and its mandate to relieve recession and depression.
Another suggestion: Third, any party that has as its platform the introduction of a financial transaction tax of one tenth of one per cent -- that's all it needs -- would definitely be elected, as this financial transaction tax would do away with the hated GST and pay down the deficit.
Paul Martin says, though, that a financial transaction tax would be too difficult to administer. Well, maybe he would like to administer a depression. Is that easier?
This tax would also make sure that the corporations that now pay only 8% of the total tax burden would be paying their appropriate tax to the country that is making them their absurd and bloated profits. This tax would slow down the runaway speculation that the bank and the traders are indulging in to the detriment of the real economy.
The so-called experts say we can't demand the corporations to pay a fair tax or they will leave the country. Meantime, they are downsizing, and the ones that have done the most downsizing have their names at the top of the list for workfare people to come in and do this labour at below minimum wage.
And they're not cleaning up their toxic waste. They don't even add it into the cost of their product. They leave that to us to do.
I ask, does a body die when you remove the leeches? I think not. Honest corporations, or those willing to give a little leeway to our citizens, will stay. Money is the blood of a country, and as such it needs to circulate, not rest in the hands of a few who have become an élite, through no virtue but that of compound interest. There's nothing élite about them, certainly not their ethics. We need low interest rates, not the usury that is choking off this economy, and the Bank of Canada could do that. The vertical monopolies and the media cartels have silenced all the news that would remedy the haemorrhage of this country.
I say to you now that this government does not need Brown-shirts. Maybe that will come later. At present, as we speak, two American companies, Great-West Life and a company called UNISYS -- which by the way, has been banned from operating in several states for unethical standards, bad product, all the rest of it -- with the Royal Bank are arranging or trying to arrange with Metro council that they will institute a system to fingerprint all persons who are on any kind of government assistance, and they will be paid millions to do this. This is not to end the 1% fraud in welfare. If they want fraud, let them go to Bay Street -- forget about welfare, that piddling amount. This is to keep track of the huge, cheap labour force that NAFTA and the corporate downsizing have created. Fifty thousand more jobs in banking alone will disappear within the next three years, and as these people lose their jobs and eventually have to go on some kind of assistance, they will be fingerprinted.
In the 1930s and back to Socrates the definition of fascism, and I will give it to you here, has been -- everyone who thinks of fascism thinks, "Oh, Hitler, Brown-shirts, torture, big parades, all that." No. That's how it ends. The definition of fascism is -- listen now, it might be of some help -- a business and government alliance, enforced by the military and domestic police. That is the definition of fascism.
There's nothing wrong with our government. We don't have too much government. We pay taxes to a government; they give us services. What do the corporations give us? There is a difference. You cannot involve business for profit into a government, and you have got to learn the difference between value and price. We cannot measure everything by the marketplace and price. We are losing things that have value because we have confused the economic definitions of "price" and "value." There are certain things of value that can never be measured, and those things are being destroyed.
In Queen's Park last year -- to get back to fascism -- I was there. Nine students, all girl students, one pregnant, from the university, ran up the steps and at the top of the steps were four rows of OPP. All the media were there. It was a huge rally: 7,000 people, buses. They were all there. The speeches went very well. All the media were represented. Towards the end, a few students ran up these steps, maybe 20 or 30, saying, "We demand Mike to come out and speak with us." Of course, Mike always went in the back door and never came out to speak to anybody. He didn't even do what the Pope does. He didn't even come out and wave his hand and say, "Get off the lawn" -- nothing. We never saw him. They ran up the steps without even pencils in their hands, totally bare-handed, to ask Mike to come out. I saw this with my own --
The Chair: Excuse me, Ms Marcus-White, we're already at the time. If you have any brief closing --
Ms Marcus-White: Yes, I will be brief. I was there. I'm still talking about the results of this government. I saw nine female students beaten about the head until the blood flowed to the ground. The unconscious ones were taken away in ambulances. They had nothing in their hands, not even pencils.
None of this was talked about by any of the eight corporate news channels represented there that day. One channel only showed a picture, which they quickly cut off, of the one pregnant woman beaten to her knees with blood obscuring her face.
As a member of the Council of Canadians, a Newfoundlander and a poet, I say to you that this country was and is still the light of this continent, and in the words of another poet, we will rage against the dying of this light.
The Chair: Thank you very much for taking the time to make a presentation.
DURHAM REGIONAL LABOUR COUNCIL
The Chair: That takes us to our next presentation, the Durham Regional Labour Council. Good afternoon and welcome to the committee.
Mr Tim Eye: Good afternoon. I'd like to thank the committee for allowing the Durham Regional Labour Council the opportunity to voice some of our concerns on Bill 49 as proposed. My name is Tim Eye and I'm the first vice-president of the Durham Regional Labour Council.
Before I get into what is wrong with this bill as proposed, I would like to commend this government on a couple of provisions that are, in our view, overdue and proper. We support the minister's efforts regarding vacation entitlements and welcome those provisions under pregnancy and parental leave. These steps are positive ones in view of what people have to face day to day in Ontario.
I do, however, compare this bill to a barrel of apples with the aforementioned provisions as county fair award winners, the rest of the barrels being grounders of fertilizer grade, with this government being the owner of this barrel selling or trying to sell this rotten bunch of apples with three good ones to the customer or the public. I believe that the public, if they were as informed as all these stakeholders who regularly come before this government, would in general hold their noses and walk away, having been enticed by three good apples and seeing what was at the bottom of the barrel with their noses.
One mistaken assumption this government has made is that workers and employers are somehow equal. The fact is they are not. Even in so-called powerful unions, like the CAW of which I am a member represent them, the employer has the power to hire and fire, not the unions.
Another assumption this government is making is that the grievance procedure will resolve the differences between the workplace parties, when in practice that conjecture is the farthest thing from the truth. This assumption goes hand in hand with the supposition that all employers will treat their employees fairly.
I can and will cite some well-known truths in what I am implying with the common knowledge in General Motors, Oshawa, where I work. The grievance procedure is a joke. Management in our plants have taken the attitude, "When you don't like how we violate our collective agreement, file a grievance," knowing full well that it takes years, in most cases, to resolve them. Don't take my word for it, call CAW Local 222 at (905) 723-1187 and ask any union representative how long the grievance procedure takes to resolution.
This government will give multinational corporations a licence to steal from unionized workers if the enforcement powers of the Ministry of Labour are removed or watered down with inane assumptions like those before this committee today. It is irresponsible to let the fox guard the hen-house, which is exactly what Bill 49 will allow if enacted into Ontario law.
What labour legislation presently ensures is far from adequate today, let alone the regressive measures this government is now considering in order to placate the business community, which, by the way, is a voting minority at election time. To move backwards over a century of labour relations history is ill-conceived and this government never had a mandate from the people of Ontario to regress a century of labour law reform.
The Employment Standards Act places an onus of social responsibility on employers in this province: In order to participate in the people of Ontario's economy, minimum standards ensure a level playing field for all participants in our economy. To pull the field from under the people this government is supposed to represent, that being all Ontarians, goes against the grain of the values our grandparents espoused.
In our opinion, the act suffers a major flaw now. That flaw is enforcement. It is sadly lacking and, to add further injury to the working poor, places limits on moneys owing. Non-unionized, minimum wage workers are now being told to resort to the tort system of lawsuit against their former employers who have in most of these instances fired their minimum wage worker for seeking financial redress for moneys owed for work performed in good faith, or unjust discharges by employers who in the real world have the upper hand with hire and fire powers and financial clout.
Tell me, with the bankrupt legal aid system, how unemployed workers who are owed money, who are ineligible for unemployment insurance benefits, who are waiting for cut back welfare benefits, can seek justice from a millionaire franchise owner in the service sector of the economy? I'd like to know that one.
I am presently dealing with a case of a franchise coffee shop owner and his minimum wage female employees in Oshawa. They're all single moms, the ones who are mothers. This irresponsible employer hires help, then expects them to work their first 15 hours for free. He demands any shortfall from the till from his workers, even when he has the key to the drawer, when he has access to the till during their shifts. That's a violation of the act. He also demands any surplus from his workers in the food and beverage industry and places further hardships on his staff by demanding their tips as surplus that belongs to him.
Can you not see the monster you're creating with Bill 49? I think not. By caving in to organized business and regressing to the 19th century concerning working people whom you purport to represent is disgusting, in our view. Would you consider putting a maximum cap on profits for Ontario corporations?
This government is not a government of the people of Ontario. I hope you can meet your maker some day and know in your hearts that you did do the right thing with your lives, the right thing being, you made your world a little better for those less fortunate than you.
This whole matter is not a legal issue; it is truly a moral one. This bill should be scrapped in light of the fact the working poor will ultimately be left to fend for the table scraps off the banquet table you are setting for those in this province with the financial clout to buy their legislators like you.
You should all hang your heads in shame for even considering such a regressive move. Brian Mulroney preached, "Free trade, free trade." The government of the day spent millions on a slick ad campaign. The workers in this country witnessed the exodus of jobs. Government tax revenues went down. Unemployment, crime and poverty are the fruits 10 years later of a policy that will take two generations for this country to recover from. The sad thing is you continue to preach, "Free trade, free trade."
Open your eyes, open your ears, open your minds to the truth. The problem with our economy is simple human greed. The few with the most want the rest from the host. If they can't elect a government to do their dirty work, they'll try and buy one. I truly hope you're not for sale.
In conclusion, the Durham Regional Labour Council wholeheartedly supports the Ontario Federation of Labour's position regarding Bill 49. Despite the fact our council represents unionized workers in the region of Durham, we also fight for those who do not have the benefit of belonging to a trade union. If a royal commission is called regarding the labour standards act, the Durham Regional Labour Council would request standing before the commission to have workers' voices heard. I hope the minister will do what is right and scrap this bill and keep the three apples.
I will try to answer any questions you as a committee may have now. Thank you for your time.
The Chair: That leaves us two minutes per caucus for questions. That would mean that this time the third party, I believe, is the first up.
Mr Christopherson: Thank you very much for your presentation. I want to first of all credit you and acknowledge the leadership you and your council are showing in fighting for those who don't have the benefit of a union. Oftentimes, one is left with the impression that some government members think of the union in the same way they think of a corporate entity, that it's there strictly for its own internal purposes and to see how much dues money it can collect. Those of us who have a background in the labour movement know it's quite the opposite, and every time a union comes forward and speaks on behalf of those who don't have the benefit of a union and who are under attack by this government it makes me very proud of my background. I think you're continuing that great tradition.
Earlier in your brief you talked about the fact that the government seems to think workers and employers are somehow equal. I've seen that in these hearings through their comments and the way they seem to view what happens at the bargaining table. I don't know how many government members have actually sat at a bargaining table. I have, many times, as you have. It's not equal. The whole idea that scabs had to be made legal again to create a level playing field is just so far from reality that it's not hard to understand how Bill 49 could get in front of us.
I want to ask you one thing about Bill 49 and its impact on the unorganized, the working poor. Other than the three apples you mentioned, is there anything in there that's actually going to help the working poor? Because the government has labelled this bill An Act to improve the Employment Standards Act. Is there anything there for the working poor?
Mr Eye: The three apples are the only improvements I can see. I think what they're trying to do with Bill 49 is put out a campfire with napalm. If you think organized labour is a problem in the economy of Ontario, you're looking in the wrong place. You don't put fire out with gasoline; you put fire out with water, the water being a fair society where everybody has an equal and fair and just opportunity to partake in our economy. As free market players, if you preach the market, practise it, but don't preach it if you're not going to practise it.
Mr O'Toole: Thank you very much, Tim. It's nice to see you here with a fresh and enthusiastic presentation. Much of what you say we've heard before.
On page 3 you say, "In our opinion, the act suffers a major flaw now." You go on to state specifically the enforcement portion. I completely agree with that. If we can only agree on one thing, that we would be judged on the changes to the enforcement mechanism, putting it into a collection agency where they don't get paid until they collect, I believe, Tim, will improve it, meaning today we only get 23 or 25 cents on the dollar of the judgements that have been made. That isn't acceptable.
To me, if a person has worked, they're entitled to be paid. I don't that's disputable, but as a government, for the last 10 years, rates have been actually falling. Would you agree and I agree -- you made the statement that it's flawed -- that is one approach, to improve the collections, the collections have to be paid.
Mr Eye: I would agree, on condition, the condition being that instead of giving the money to a collection agency, ensure the worker has all of it. Instead of collecting only 25 cents on the dollar, hire three times as many more collectors under government auspices with the clout and the power of the government of the people of Ontario behind it so that they can collect. Hire three times as many enforcement officers at the Ministry of Labour.
Mr O'Toole: I think if you look at collections and those amendments in this proposed bill here, the employer, the violator, the offender, the bad boss is going to pay for that collector, not the people of Ontario who aren't really privy to this. It's the bad employer. That's what our minister said in here. I don't want to just get carried away with that we see things differently. I think there are some things we could agree on.
I believe the person who has violated the act, that is the bad boss, should pay the bill. I believe the employee who has worked the hours in a well-intended way deserves to be paid, and I believe all members on this side agree with that, and we're going to be held accountable for that.
Really, you'd have to agree the current collection system isn't working. I ask you to give us a chance for this new collection system to work. We need to work together. We need your support. But it can't be just an ideological battle. The collection agency won't get paid until they collect. Their actions are directed by the director of employment standards, so there is a connection. There is government responsibility and it's to help the most vulnerable. I have faith in it. Some things we'd certainly disagree on, but I think there are some parts we could agree on.
Mr Hoy: Thank you for your presentation today. I take note that you support the Ontario Federation of Labour's position regarding this bill. I'd like to ask you a little bit about the employees you say you're representing or trying to help who worked at this coffee shop. You say that the employer was demanding their tips. Was he demanding their tips in total?
Mr Eye: Any surplus at the till. In the real world, surplus is a tip to the worker. I'm a frequent customer at this particular coffee shop and I'm not going to name names because I don't want to prejudice the case before it gets heard, but what happens is that if I go in for $1.50 doughnut and cup of coffee, I give the girl at the till two bucks and say, "Keep it." So here's a small tip in appreciation, because every time I walk in there that girl knows exactly what I want to eat and what I want to drink, and for remembering me, that's my token of appreciation.
At the end of the day -- this girl is not a university graduate by any stretch of the imagination. She's doing what she can to stay off the government dole. She's an honest person, hard-working and means well. However, she's being unjustly turned on by an employer who is not very scrupulous in the real world of business. There are honourable businessmen, but this guy definitely is not one of them.
We're going to ensure, through our labour council and through our political action committee and through the Ministry of Labour, that this guy either straightens up and flies right or he's going to get his wings clipped, big time.
Mr Rollins: Good idea.
The Chair: Thank you for taking the time to make a presentation before us here today.
AMALGAMATED TRANSIT UNION, LOCAL 1573
The Chair: That takes us now to our next presentation, which will be from the Amalgamated Transit Union, Local 1573. Good afternoon.
Mr Andre Monette: Good afternoon to all. My name is Andre Monette. I originate from northern Ontario, 240 miles north of here. I'm a little closer to the Employment Standards Act than most people for a lot of reasons, one of which is that, being from the north, we're sort of remote in a sense from government offices. It's kind of difficult to get into some professional's office to try and get somebody to look after our problems.
Another fact is that I am a member of a family of 15 kids, which means that most of us didn't get a big education in school. There are a few teachers in the family, a few professionals, but I'm one of those who, being one of the oldest, gave up my education to help with raising the young ones.
My father was a school teacher. He taught school for 42 years. He was also a farmer and, obviously, a father. He was in his younger days an organizer with the Liberal Party federally, and I knew a number of the federal members personally. They used to have their meetings right in the house. I'm also related to some pretty heavy-duty guys federally. You all know the Desmarais family from Sudbury. Paul Desmarais is a cousin. Pierre Trudeau is also related, but even a bit further. You're probably thinking, "This guy is a Liberal. If he ain't, he's got to be something else." I'm not going to tell you what I am.
I started working at the age of 18. I didn't bother with unions for quite a while. I ended up working for an auto plant in Oakville and started to tinker with the union a bit, and from there became a bus driver for the city of Brampton. I got involved a lot more there. I organized the local union. I have a good working knowledge of the Labour Relations Act and the Employment Standards Act because I've had to wring the employer's tail a few times. That's why I'm here.
I'll read you my introduction, which is a page and a half, and then I'll go through the conclusion, which is about the same.
This submission is made on behalf of the members of Local 1573 of the Amalgamated Transit Union, who are the employees of Brampton Transit in the city of Brampton.
The members of our local union are regular working people, like the vast majority of Canadians. We have families, rent or mortgages to pay, groceries to buy, children to raise and very often aging parents to worry about, friends we care for, ambition for our neighbourhoods, concern for our country's future. Like others, we can't separate our individual interests from those of our families, our extended families, our friends, our neighbours and our society.
When we speak with concern about legislation such as Bill 49, it is not simply concern for ourselves that we are expressing, because in fact this legislation does not have a great direct effect upon us in our present occupation, meaning that at this point we are a union and we sort of try to look after our own problems.
We are indirectly hurt because Bill 49 hurts people like our children and other friends and family members who are trying to build a life for themselves. We are indirectly hurt because this legislation will lead to a greater disrespect by employers for the law and a stronger feeling among some employers that employees can be abused and stolen from with impunity. All this is because, through this legislation, the Conservative Party is giving the green light to bosses who want to steal from their employees. We are indirectly hurt because someone whom I work with today may be laid off or forced to leave because of a workplace injury or find himself or herself trying to rebuild and relying on the enforcement of the Employment Standards Act.
This legislation is part of a shift from a society based on respect for the law 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. Indirect as it is to many, this legislation will have an impact upon every middle-class working person in Ontario.
You can review my submission at your leisure. In conclusion, this is shameful legislation. If I were an MPP, I would be morally bound to oppose this bill. Unfortunately, I know that the members of the Conservative caucus are bound by the whip, who is appointed by the Premier, who is indebted to the wealthy special interests who believe they are the givers of morality and not subject to it. This is the "do as I say and not as I do" mentality. Just over 50 years ago, a war ended that defeated this mentality, and here we are again hinting at a resurgence of this ideology.
Members of the committee, this legislation shows that this government is not only morally adrift but has also become a gang out of control, crucifying the scapegoats and punishing the weak and defenceless. The labour movement and parts of the political opposition are the only voices for those unorganized workers at the margins of the workforce who need strong enforcement of the Employment Standards Act and who will suffer because of the elimination of a third of the act's enforcement officers through Bill 49. This piece of legislation will be called a gift to the unscrupulous employers at the expense of the most vulnerable citizens of our society.
Remember, a society and a nation are judged on the manner in which they treat their minorities, their poor and their less fortunate. After Bill 49, if passed, this province will cause this country to fall a good number of rungs in the ladder that we now sit on top of as the best in the world. I ask you to think about that.
I urge opposition MPPs to use every means at their disposal to force the Conservative Party to amend this legislation so as to eliminate the green light level, to punish repeat offenders against this act and to investigate all incidents of lawbreaking upon the complaint of a victim. Common sense dictates that the present legislation should be improved with stronger enforcement mechanisms rather than weakened by diluting it.
I appreciate the time that you have given me to speak to you and to express my views.
The Chair: Thank you very much. That leaves us just over a minute for each of the caucuses. This time the rotation starts with the government members. Mr Baird.
Mr Baird: I just want to thank you for your presentation. I don't have any questions.
Mr Hoy: Thank you very much for your presentation. You have done well. Coming from a large family, there must have been some difficulties in that but no less joyful experiences. My father is 10th of 11 and they had a joyful household, but none the less it was difficult. They had to work very hard.
Mr Monette: I'm fifth of 15.
Mr Hoy: You make mention about "crucifying the scapegoats and punishing the weak and defenceless." I read an article not so very long ago that would agree with that, that when governments really are struggling, particularly with unemployment, deficits, huge debt, the easy way is to point fingers at the lower class. It's historically been done. It goes back into even the Middle Ages, as this article shows. I think maybe there's a little truth in that in what we see in what's going on in North America, not only in Canada but the United States as well. It's very easy to blame the poor and the defenceless for the problems and the ills of the whole country. I'd just make that comment, and I appreciate your presentation today.
Mr Christopherson: Thank you very much for your presentation. I want to take a little different approach this time. Yesterday, there was a news conference held by a group called 32 Hours: Action for Full Employment, I believe is the name. They're talking about lowering the number of hours, not a Bill 49 version of improving the Employment Standards Act but really improving it: Lower the number of hours that people work without a loss in pay for those at the lower end of the scale; at the higher end, they might be able to afford that more.
Mayor Barbara Hall was there. Her reason for being there was that if enough people had decent-paying jobs and had enough income, it would affect all aspects of our community, and she specifically mentioned public transit. Of course, that's the area of workers that you represent. Her thinking was that if the transit system was used more, then they would have more money to provide a better quality of life, because public transit is an important part of quality of life for a lot of people. Therefore she felt it was appropriate for her to be a part of a move to have people get jobs, create jobs, and do it through this means.
Just give your thoughts on that, given that you represent the public transit sector, and how that relates to the ability of people to have enough money to use your service.
Mr Monette: In this day and age, take an average family that may have two, three or four mature young adults at home. You could conceivably see three, four, five cars for a lot of people. I know one particular family with three kids, and there are five cars in the family. Put an average price on five cars. You don't buy a regular vehicle today for much less than $18,000 to $20,000. Add the cost of insurance on top of that, then the cost of maintenance of all that, then the other cost of building roads and upgrading streets on a regular basis to keep all these cars on the road, add the cost of trying to control the pollution and everything else that goes into this thing, regular maintenance.
If this family was to cut that cost down to a couple of cars and invest, I would think, a quarter of what they spend on the rest, somehow through some kind of distribution either through the tax system or whatever, and improve public transportation, improve the whole chain of a grid of transportation, they would be further ahead, every citizen in the province would be further ahead and I think the country as a whole would be further ahead. And our health would be better, as a long-term effect.
The Chair: Thank you for taking the time to appear before us today.
The Chair: Our next presentation will be from Tim Rourke. Good afternoon. Welcome to the committee.
Mr Tim Rourke: I guess staff has gotten copies of my thing to everybody. I haven't had time to make it all fancy; it's basically notes.
Why am I here? I'm pleasantly surprised at being invited here to talk about Bill 49. I think I'm here because somebody on the committee confused my name with somebody from London whom they really wanted. However, I wouldn't waste my time coming here if I didn't have something to say about it. What I have to say is exactly what most of the power suits around here, whatever the interest they're representing, are not going to want to hear, so it should be a lot of fun.
I'm originally from Alberta. I've been in Ontario for about two years. I think I really should have left about 20 years ago, but I'm rather disappointed to see all the rubbish that I was hoping to escape from starting to happen here. It's the same kind of deranged philosophy that Klein was putting into effect back in Alberta happening here. I am determined to do what I can to stop the whole thing.
I am one of these people who haven't worked steadily for almost 15 years, and there are three reasons for that. One is health. That was probably due to the impossibility of obtaining any kind of proper health care in my home province. I've had better care here, so I've got better health and energy, but that's all in jeopardy now. The second reason is because of economic reality. Any bloody fool who is confused about what economic reality I'm talking about can stay confused. The third is just philosophical reasons. I think I'm going to be dead before I'm ever somebody's employee again, because of philosophical convictions that developed out of my experiences with labour standards in Alberta.
I still have some dreams of having both a worthwhile job and a reasonable income, although I no longer expect the former to supply me with the latter, so I spend a large part of my abundant leisure, scarce energy and scarcer funds doing my small part to bring about a change in that economic reality to make that dream a personal reality for myself and every other marginalized person. I'm involved in a lot of different groups, but I'm not a true believer in any.
I've done some reading about economic matters in order to broaden my understanding and I'm familiar with all the trendy ideas about technological unemployment, reduced work time. I have developed strong views about the rights of truly free individuals to do what they damned well please with their own time and have a reasonable income with which to do it.
I should also briefly say what I don't believe in. I have no use for any of the conventional economic theories, including Marxism or anything like that.
Corporoids these days tend to throw this cliché, "You're a conspiracy theorist," at people. No, I'm not a conspiracy theorist. I mean, that's kind of cute. You associate the target with anti-Semites and redneck militia and so on. I am a subscriber to Murphy's law number 29, never to attribute to malice what can be adequately explained by stupidity. The trouble presently in Ontario, and in the world generally, can be as easily explained as a result of the mismanagement of educated idiots, especially ones with economics training, as it could be by the product of some malevolent influence in a command post somewhere.
I'm not a union guy either. It's not that I'm against them; they've just never given me any particular reason to be for them.
What I'm going to say, how I'm going to say it and why: I have not read Bill 49 and have no interest in reading it. I think it is important to point out that anything I or anybody else has to say at these hearings about what a labour bill should really be like is pretty much hypothetical. There's no shortage of good ideas. There's just a complete lack of any means to achieve them over the corporate will. Achieving any of this will require some constitutional reform, electoral reform, including things like proportional representation, to prevent the present fiasco we have of fanatical minorities hijacking the government. I've got four topics that relate directly to labour laws and one to changing laws generally. The more enlightened members of the panel can feel free to indicate which in particular are interesting to them and I will focus on them.
Abusive employee relationships: You might have guessed that would be my simplest beef about this legislation, its trashing of labour standards. As I said, I'm from Alberta where they specialized in this stuff way before it was ever thought of in Ontario. I've never worked in Ontario or have gone out looking for work in Ontario, so I just don't know how extreme things can be. I don't believe it could possibly be any worse than Alberta.
I am owed lots and lots of money by slime-ball employers from back there that I'm never going to get back. They've used the welfare system and these job-find systems as almost perfect methods of making people work for nothing. I don't know why they even need to bother with workfare. It's just work. You either go and participate in this thing or you're cut off and you just get forced to work for nothing, and then, when you quit because you're not getting paid, you're cut off any kind of welfare assistance and you have absolutely no recourse. There's no government office that will do anything. There is no enforcement at all and never has been, really. You go to some government office and they tell you to take it to court, and you've got to spend $200 or $300 on that. There are all kinds of employers out there who just never pay their employees. They just hire a new crew every couple of weeks, and why not? Who's going to stop them?
Reduced work time: I know that 32 Hours was in here this morning. Somebody has been talking about them, so I won't belabour the relationship between technological change, reduced hours, unemployment and lowered living standards.
I have a lot of ideas about some possible limitations to that as a strategy for eliminating unemployment. I don't think full employment is really the objective. Slaves all had full employment. Nazi Germany, Stalinist Russia, they all had full employment. They had full employment in the gulag. What people need is control over their lives, to work where they want, when they want, basically to have some control over the terms of it. The only way that's ever going to be achieved is by a guaranteed minimum income, and that's outside the Ontario government's powers and outside Bill 49, but there are ways that an enlightened Ontario government could precipitate that. I'll get into that maybe in a minute.
Here's the core of what I want to say. Here's the kind of labour bill that I think is really needed. As far as workers' compensation, I don't see any reason why employers should not be required to insure all their employees. If they had to pay the costs themselves of private insurance for employees, they'd soon be screaming for workers' compensation.
I know this isn't in Bill 49, but it's in this other bill they've got that isn't even being discussed, this thing about taking away any rights in that regard. Employees should have the right to sue their employers for injuries caused by their negligence.
Reduced work time is not a perfect weapon against unemployment. It can't be used as a paring knife. It's going to have to be used as a chainsaw. The workweek must be cut, cut, cut until unemployment disappears. We'll have to go down probably to a lot less than 30 hours because there are so many hidden unemployed coming out of the bushes and because employers will try to make the same people do the same work in less time and use more labour-replacing technology.
Of course, this would require actually mandating a legal workweek, which doesn't exist right now. They didn't include a ban on overtime so that a gain does not develop or the reduced workweek doesn't become a mere excuse for more time-and-a-half work. You could have a system where hours are banked over fixed periods so that a person could work long hours at certain times and then take time off. The key to it is that the total number of hours worked in this society has to stay the same or go down.
Minimum wage would have to go up to protect the people at the bottom, to shield the bottom. I've put a little bit of a formula in here for calculating what the minimum wage should be to keep minimum wage earners above taxes and what not. Those are my ideas of what a good labour bill would be like.
I believe also -- I'm not going to get into this too much -- this would produce sort of a chain reaction of events that would force reform of the income tax system, personal income tax system, maybe the sales tax system that would force the federal government to produce reforms that would greatly solve the problem of impoverishment. All this stuff, of course, takes a completely different kind of government than we've got here right now. It's not going to happen for the time being at all, which brings me to my last subject.
I don't like any of the parties here. All of them have been co-opted by the corporatists, but there are enlightened factions within each party, and I think these people need to start to focus their minds a little bit on coming together in some sort of coalition across party lines to just get this nonsense out of here, all right? Then we begin some serious political reforms and start to have a structure whereby we can stop monstrosities like this Bill 49 and get the type of labour legislation that we really need. That about covers it. Who's got questions?
Mr Baird: It's just a comment, not a question. I noticed number A(2): "I am pleasantly surprised at being invited here to talk about Bill 49. I think I am here because some tyro in the committee office confused my name with somebody from London who was of the type they really wanted to stack these hearings with."
We've been accused of a lot of things, but I don't think anyone has accused the government of stacking the committee with its own persons. Actually, you're here because we, the government, put you on our list; we put both business and labour groups on our list. We wanted to hear from both sides.
Mr Rourke: I've noticed there are some pretty good people talking out here.
The Chair: Thank you very much for taking the time to make your presentation before us, Mr Rourke.
WORKERS' INFORMATION AND ACTION CENTRE OF TORONTO
The Chair: That leads us now to the Workers' Information and Action Centre of Toronto, if they could come forward, please. Good afternoon. Welcome to the committee.
Mr Rob Maxwell: Good afternoon, gentlemen. I want to thank you for the opportunity of presenting to you today. My name is Rob Maxwell. I am a member of Toronto city council and I am the chair of the advisory committee for the city's Workers' Information and Action Centre of Toronto. With me today is the coordinator of the centre, Shelly Gordon.
The Workers' Information and Action Centre has endorsed the brief that was presented to you yesterday by the Employment Standards Work Group, so we won't be presenting a formal brief this afternoon, but a few remarks based on our experience that will reinforce the points that were made in that brief.
The Workers' Information and Action Centre of Toronto is a unit of the city of Toronto that works to maintain and promote the quality of working life in the city. WIACT, as we call it for short, provides the public with information and referrals concerning employment problems, provides education to the public about employment rights and issues, conducts research, offers city council policy advice on employment issues and advocates for maintaining and improving the quality of working life in Toronto. WIACT is concerned most specifically with the most vulnerable workers in our city: non-union workers who are new Canadians, youth, low-paid workers, visible minority workers and women.
We agree with the government and with various employer groups who have come forward that Toronto, and the province as a whole, indeed, needs a healthy and vigorous economy. We also agree that the world of work has changed and the Employment Standards Act has stood still. So as you have said, we have to address how to have a healthy economy and how to modernize the act.
Developing a healthy economy is more than creating jobs. A healthy economy has enough jobs, but they are jobs that pay enough for people to make a living and to support their families in a decent manner. If the economy we are creating has everyone working part-time or part of the year or more hours for less pay or in minimum-wage jobs in personal and business services, we won't have the most liveable city in the world any more or the most liveable province. We'll be living in a polarized city and province of haves and have-nots. It matters what kind of employment we create. If people living in this city don't earn enough to purchase the goods and services we produce, we will not have a healthy economy.
The city of Toronto has always felt it has an important role to play in creating good jobs. Over a century ago, the city adopted a fair-wage policy for the employees of companies that do business with the city. Our official plan and other council policies clearly establish our commitment to creating a city where people can work at jobs which provide a wage or salary which allows them to afford to live here. Our work with local business improvement areas and the film industry, to give but two examples, is further evidence of the importance that successive councils have placed on improving the economic climate in Toronto.
Clearly, the responsibility to provide jobs that provide decent wages is one that is shared by all levels of government.
The greatest proportion of jobs created in the last 15 years are part-time, part-year, contract, temporary and self-employment, the kind of new work arrangements that we all agree the Employment Standards Act has to address. Some of these new jobs are great jobs, but many of them are bad jobs.
You all received copies of the Bad Boss Stories yesterday. A number of those stores were contributed by the Workers's Information and Action Centre. They give some pretty typical examples of these new jobs: telemarketing, for instance. They also show that these can be bad jobs. You've also heard from garment workers who work at home, which are more bad jobs in the new economy. In the case of the garment industry, the new organization of the workplace is the same as the organization of the workplace at the turn of the century, with lots of the same working conditions and wages that are too much the same as they were then.
The first thing governments have to do to ensure that jobs in the new economy are good jobs, jobs that pay enough for people to support themselves and their families at a decent standard of living in Toronto and the rest of the province, the most basic thing we need is minimum employment standards and enforcement of those standards. Minimum standards are the bottom line for creating and maintaining decent jobs.
The city of Toronto also has an ongoing commitment to promoting equity for our residents and citizens in a number of different ways, including the Workers' Information and Action Centre. Like the minister, we have a particular interest in making sure that the most vulnerable workers have access to justice and access to decent jobs.
As you know, Toronto has a large proportion of Ontario's most vulnerable workers. We have most of Ontario's new Canadians. We have a large population of people who don't speak enough English to compete in the open job market. The big city is a magnet for unemployed youths from all over the GTA and the rest of the province. While most employers do more than meet employment standards, there are too many unscrupulous employers in our city who will take advantage of these vulnerable workers in a different time.
WIACT's focus is on a assisting vulnerable workers. That's who our staff spend most of their time with. And employment standards is the law that our staff deals the most often with, both in answering public inquiries about employment rights and in educational presentations to groups of workers throughout the city. Our staff also answer public inquiries about other employment legislation and issues, and conduct education on other employment issues, but it's employment standards that we'll talk about today.
In the first six months of this year, WIACT's staff answered over 2,000 inquiries from the public about the Employment Standards Act and made educational presentations to another 2,000 people about employment standards.
Every day, our staff talk to workers in this city whose employers are not meeting minimum employment standards from all sectors -- retail, manufacturing, service and sales -- and almost all are non-union employees. They call, as they say, to find out about their rights. Our staff explain the law to them and then explain the procedure for enforcing the law. That's what Bill 49 addresses and that's the experience we have that we wish to share with you.
It's a very frustrating experience to have to explain how ineffective the enforcement of the act has been. Most employees don't need anyone to tell them that if they file a complaint with the ministry, they will probably be fired. Many have seen their co-workers fired for doing so. Our staff believe they have to be honest with people who call and so agree that is most often the case.
Employees also call expecting that someone can go and prevent a bad employer from breaking the law. For example, they think if they tell the ministry that company X is hiring 30 new people per week and then not paying them, the ministry can intervene and stop the company from doing that. Our staff have to explain to them that in fact the ministry cannot accomplish that.
Many others call and their paycheques have bounced. They want to know what they can do. It's pretty sad to tell them that they have to go and file a complaint, that someone will look into that complaint in six or eight months, conduct an investigation, write an order, wait to see if the employer pays and then finally refer the order to the wage protection fund. Knowing that you'll get a paycheque or two in a year or two will not pay the rent, or in the case of the recent story about the young people who worked at a children's summer camp, that cheque in a year or two's time won't pay this year's tuition fees.
Enforcement of the rights that do exist under the act is the primary issue for non-union workers. We've evaluated the proposals in the bill based on our experience, and would like to comment on a number of them.
The proposal that our staff identify as being the most detrimental to vulnerable workers is the six-month limitation on complaints and investigations. Most of the people who call cannot and will not gamble on losing their jobs. They'll put up with almost anything to keep even the most miserable job in order to support their families and stay off social assistance. They're calling to find out if someone can help them without endangering their job, and up until now, our staff have been able to explain to them that they don't have to give up their rights by not filing a complaint right away.
When they find another job, they can take their records to the ministry and apply for the money that's owed to them. With the two-year claim and investigation period, they don't have to choose between their jobs and their rights. If the claim period is shortened to six months, they're going to have to make that choice more frequently.
Other people who call simply didn't know what their rights were for some time. Our staff hope they don't end up telling people that they've lost their rights under the law because they didn't know what they were.
Other employees call who have given their employers the benefit of the doubt for several months, for instance, if their cheques have bounced. If the claim period is shortened to six months, as is proposed, we would have to advise them not to give their employers the benefit of the doubt at all and to proceed with the claim immediately.
From the point of view of employees who haven't received their due under the law, the better way to streamline the administration of the Employment Standards Act would be to shorten the ministry's investigation time to six months from two years, not the claim period.
The fact that employees can be fired for making a complaint under the act is a huge problem now and it will get even worse if the six-month limitation is brought in. We know the act says that employers can't take reprisals, but it places no limits on terminating employees. It simply requires employers to give them notice or to pay in lieu of notice.
Ministry officials explain to us that non-union workers are never reinstated because they can be let go again the next day. So instead of reinstatement, non-union workers fired for exercising their rights under the act just get their pay in lieu of notice. That would most often be one or two weeks, which is not enough for one to give up one's job.
In order to offer real protection to workers for complaining under the act, there has to be a prohibition against terminating employees without just cause, particularly those who have made an ESA complaint. There are precedents under the Workers' Compensation Act for this kind of protection.
The other way the ministry could improve enforcement is to initiate a program of spot checks on employers and industries known to have past violations. There are a few employers who deliberately break the law and a few industries where we know that employers are more likely to violate employment standards, and we can document that. Your ministry staff know what industries these are and often what employers these are. So do our staff and others in the city. If the ministry had an active program of auditing these employers and quickly escalating penalties so that bad employers worried about getting caught, that would mean employees wouldn't have to risk their jobs to file complaints.
The other thing that vulnerable workers really would like to see is some way of stopping them from proceeding with their business if they continually violate the law. One example from our office is a fellow who called who was owed about $8,000 in back wages, most of it from cheques that had bounced. Everybody in his workplace was owed money. This fellow quit and told the employer he'd file a complaint. The employer laughed and she said, "I'll declare bankruptcy before the ministry can contact me and then you'll get nothing." The others still working there were too scared to complain. He wants the ministry to go to that workplace now and ensure that he and the other workers get their pay before she makes good on her threat.
This brings us to the proposals in the bill that there be lower and upper limits on the amount that employees can claim. I'm not sure I know why someone would keep going into work when an employer owes them $8,000, but if they do, the employer should have to pay up. They are owed for the work they've done.
When I think about some minimum claims, I think about students and minimum-wage earners. Minimum wage for a 40-hour week is $275. That's a pretty small amount. I certainly hope you wouldn't consider telling minimum-wage earners that they can't claim a week's worth of pay or any portion of it. Then I think about students who work part-time. Maybe they only earn $50 a week and they don't get paid for two weeks. Aren't they owed that money and aren't they entitled to some sort of enforcement of the law?
Finally, we want to address the proposal in the bill that unionized workers can contract out of minimum standards. I know the minister has deferred the consideration of this proposal, but I do think it should be addressed. It's always been very important to staff of the city to explain that in Ontario you cannot sign away your rights. If the boss comes to you one day, or in order to get a job someone asks you to sign a paper that you're not really an employee but an independent business, for example, you can sign that paper, get the job and file a complaint later. It's the employer who is breaking the law. If unions and companies, and later individuals, are allowed to contract out of minimum standards, it is the vulnerable workers who will suffer.
In conclusion, the staff at our Workers' Information and Action Centre have a great deal of experience with the Employment Standards Act. We wish that we could have consulted with the minister before she introduced the bill about ways in which enforcement could be improved for vulnerable workers. We've got a lot of ideas, some of which I have presented today, but the proposals in the bill will not protect the most vulnerable workers. They will make it worse for people who are already the worst off.
Thank you very much. I'd be happy to answer any questions.
The Chair: Thank you, but with only 15 seconds left in our 15 minutes, I'm afraid there won't be time for questions. Thank you very much for taking the time to make a presentation before us today. We appreciate it.
CANADIAN AUTO WORKERS, LOCAL 222
The Chair: The next presentation will be from the Canadian Auto Workers, Local 222. Good afternoon. Welcome to the committee. Again, a reminder we have 15 minutes. Anybody who is going to be speaking, could they introduce themselves for the benefit of Hansard, please.
Mr Mike Shields: We are presenting this submission on behalf of the over 25,000 members of the Canadian Auto Workers union, Local 222, in Oshawa. In preparation of this brief, we found that Bill 49 was described in the Ministry of Labour press release as "facilitating administration and enforcement by reducing ambiguity, simplifying definitions and streamlining procedures." It is the view of the Canadian Auto Workers, Local 222, that the changes proposed in Bill 49 are being driven for purely ideological and fiscal reasons.
The changes as presented as minor technical amendments by the Mike Harris government contain very major changes. These changes clearly benefit employers while ignoring the rights of both organized and unorganized workers, particularly the most vulnerable in the workforce. The proposed changes will make it easier for employers to escape penalties where they violate basic standards and harder for the average working person in Ontario to enforce his or her rights.
These amendments will also strip unionized workers of the historic floor of rights or minimum work standards which have existed under Ontario law for decades. Under Bill 49, basic standards will become additional items to be negotiated at the bargaining table.
Our local union roots started with the struggles in the late 1920s. Workers in Oshawa fought with General Motors to improve working conditions in the union's first negotiated collective agreement in 1937. These struggles represent our role in the history of organized labour, along with other unions across the province that worked with government to create minimum work standards for all working people in Ontario. This base of industrial labour laws and regulations has been achieved through a broad consensus that exists in advanced industrial societies, inclusive of Canada and Ontario, that an effective, equitable floor of employment rights is not only feasible but also socially and economically beneficial.
Our union membership has battled on the picket lines for decent standards of pay and working conditions. These changes and improvements have been regarded as having a central part to play in reducing exploitation and poverty while encouraging a more effective use of working people's labour. Through the struggles and gains made by labour for all Ontarians, it is no small wonder that Canada has been named by the United Nations as the best place in the world to live.
The Mike Harris government has the view that legislated standards, regulations and the various other roles of government enforcement have caused a stranglehold to people doing business in Ontario. We do not believe for a minute that our current Employment Standards Act prevents businesses in Ontario from making necessary adjustments to changed economic circumstances and thus leads to reduced economic development and higher unemployment. This government is of the opinion that the costs of social services are excessive overhead costs that need to be offloaded to a lower level of government that can ill afford to maintain them, rather than acknowledge them, like the United Nations has, when it comes to the vital role of government programs for the long-term benefit of everyone. With Bill 49, we see the Mike Harris government offload good labour market policies on to individual workers and to unions to negotiate in collective agreements.
Flexible standards: The bill also allows a fundamental change to Ontario labour law by permitting the workplace parties to contract out important minimum standards. Prior to Bill 49, it was illegal for a collective agreement to have any provisions below the minimum standards set out in the Employment Standards Act, minimum standards that responsible governments in the past have established. Bill 49 allows a collective agreement to override the legal minimum standards concerning severance pay, overtime, public holidays, hours of work and vacation pay if the contract confers greater rights when those matters are assessed together.
We would like to remind the committee members that General Motors of Canada has been after the Ontario government to extend the workweek to 56 hours per week. This provision appears to give General Motors its request by allowing a negotiated change to the current legislated workweek.
We would hope that the committee members would think about the health and safety of any employee being asked to work for extended hours beyond what is the norm in the current Employment Standards Act. Can you imagine an employee in an auto assembly plant who works eight hours and has built 560 cars being told to work for two more hours and build another 150 or more vehicles? This aging workforce must carry, lift and secure parts on a never-ending assembly line, which subjects them to injury, exhaustion, repetitive strain and constant stress. Consider the request for extended work hours, keeping in mind the workers' physical and mental wellbeing.
Let's look at the impact that increased work hours will have on a community where these employees live. In a time when governments are cutting back on services to people in need, our membership is continuing to build on the network for the social needs of the greater community. Our members currently volunteer at their church, the hospital, Girl Guides, Scouts, hospices, coach children's team activities, service clubs etc. The list has no end, until Bill 49.
For example, Gilles has worked at General Motors for over 17 years, and he currently spends approximately 16 to 20 hours per week coaching a local hockey team. He spends his valuable free time away from his place of work to provide quality coaching that these children would miss if he was unable to keep his level of time commitment. If his workweek was increased by 16 hours per week, he could not continue to coach the team.
Our members enjoy helping others during their time away from their workplace. Where does the government plan to find replacements for all the volunteers in the province currently working 40 hours per week? These changes could mean that a person currently providing hospice care to your dying parent or friend is gone and their client is sent to the hospital to die -- not a good care choice for the client or the government in these fiscally challenging times.
At a time when we have record unemployment year after year, it makes absolutely no sense that a government would be telling employers to stop hiring people and get their current employees to work longer hours. Increased work hours will only lead to a smaller base population with full-time employment. How many new jobs will be created by this backward-thinking approach, not to mention future loss of productivity? What we have here is a government that is choosing who and how people will be allowed to participate in our community.
Never has a government made changes to the Employment Standards Act that would erode people's standard of living. The erosion of minimum entitlements will begin in many of the bargaining units where employees do not have sufficient bargaining strength to resist employers' demands. These changes eventually have an impact on the standard of living of all Ontarians.
Enforcement under a collective agreement: Today, all members of our local union or any unionized workers in Ontario have access to the considerable investigative and enforcement powers of the Ministry of Labour. We have found this inexpensive and a relatively speedy method of dealing with workplace closures and particularly issues such as severance and termination pay.
Plant closures are not new to our local union or Durham region. Houdialle is a good example of corporate downsizing without any regard for its employees. Back in 1980, when the company decided to close the Oshawa operations and move the business back to the United States, they had no regard for their employees. Once the union found out that the majority of employees would be left without access to their pension or a decent minimal severance, it occupied the Oshawa plant. This occupation was the focus of media attention, and public support was very strong; a radical action for an intolerable situation.
Without the government offering this protection to all unionized employees in Ontario, unions will virtually have to negotiate the inclusion of the entire Employment Standards Act. The limited resources of small unions will ensure that there is no possible way that they can have the personnel trained to carry out the burden of investigation, not to mention enforcement. Even if the union carried out the investigation, any employee could still force it to arbitration, in which case, does the arbitrator have the investigative power of an employment standards officer? No.
It is our considered opinion that this section of the bill is being included only for fiscal reasons. The Harris government wants out of another area of enforcement. We do not believe that it is prudent for the government of Ontario to turn enforcement of public legislation into private hands.
Enforcement for non-unionized employees: With these sections of the bill, the government is planning on walking away from its responsibilities of enforcement and telling an employee to resolve it in the courts. The minimum standards that working people in Ontario have relied on have now been left up to the individual to enforce. These are dollars owed to the employee, and this amendment will force them to try to recover all their money through the courts or to take this new statutory minimum. For the employees, who are clearly held up for ransom, the choice is to spend money, that they likely don't have, on a lengthy civil action or to forgive some of their entitlement under the Employment Standards Act. We feel this is simply more downloading, and in this example you are picking on the employee who can least afford it.
With regard to maximum claims, with this amendment we are seeing a maximum amount an employee may recover under the act limited to $10,000. We would like the committee members to understand that this amount is owing back wages and other moneys such as severance, termination pay and even vacation pay. By putting a cap in place, we feel that the government is going to encourage the worst employer to violate a basic minimum work standard. Every employee in Ontario, whether he or she is a garment worker, domestic or in food services, is entitled to fair and just compensation in a reasonable time frame for their hours worked.
The bill also gives the government the right to set down a minimum amount to be set by regulation. We would like the government to tell us what it sees as the minimum amount. Will an employee owed one day's or one week's pay be told, "Hire a lawyer; we won't help you"? Who can these employees complain to when the government turns its back on them?
Use of private collectors: These proposed amendments are clearly just another example of the government in a hurry to privatize; in this case, the collection function of the employment standards branch within the Ministry of Labour. The ministry doesn't have the best track record when it comes to collection, so instead of dealing with the problem, the minister is walking away from it. If the government of Ontario can't get an employer to pay back wages owed, how does it expect a private collection agency to succeed?
Let's look at an example of a minimum-wage worker who earns $6.85 per hour. If she has to hire a collection agency to reclaim wages owed from a bad employer, she may only see 75% of her money owed. What will stop the collection agency from discounting the moneys owed simply to get a quick settlement? If the employers find that they can discount moneys owed, obviously they change their business practices, which encourages them to continue to violate minimum standards. This clearly shows that the government is walking away from another person living near the poverty line.
Limitation periods: The proposed amendments in Bill 49 significantly change a number of time periods in the act. This change appears to place a vulnerable worker, who often finds it necessary to file after quitting or having changed employers, at further disadvantage. These new time limits may force the employee to choose the courts for compensation, and we realize that your government has already scaled back the Ontario legal aid plan so that employment-related cases are no longer covered.
There are several positive amendments in Bill 49. Entitlement to vacation pay is one of the few amendments in Bill 49 that our membership at CAW Local 222 can support. With the inclusion of this amendment, the act will clearly provide that the vacation entitlement of two weeks per year will accrue whether or not the employee actively worked all of this period or was absent due to illness or leave. The amendments to seniority and service during pregnancy and parental leave ensure that all employees are credited with benefits and seniority while on such leaves. With the passage of this amendment, the length of an employee's time on leave will be included in calculating length of employment, length of service or seniority for purposes of determining rights under a collective agreement or contract of employment.
In closing, our comments today on the main elements of Bill 49, we feel that you have failed to address some of the most serious problems facing working people today. For this piece of legislation to be presented as a minor housekeeping bill is a shameful use of the English language. This bill appears to be a direct attack on the minimum working standards of the employees of Ontario as related to severance pay, overtime pay, hours of work and public holidays.
We feel that this bill was written to erode the minimum standards of working people not fortunate to have a negotiated agreement and will make collective bargaining more difficult. At a time when we are fighting greedy corporations like General Motors on issues of contracting out, we have a government that has brought in outsourcing as a way to solve a revenue problem. This bill is clearly part of the Mike Harris plan to walk away from the government's role in enforcement as a means to pay for the tax break for the wealthy.
The Chair: I didn't want to cut you off, but we've gone over the 15 minutes. Thank you very much for taking the time to come before us and make a presentation here today.
Mr Shields: Mr Chair, I would like to introduce myself. I believe on the original program it had Larry O'Connor down. My name is Mike Shields, president. I did have Bill Mutimer on my right, Larry O'Connor and Jim Freeman.
POWER WORKERS' UNION
The Chair: That now leads us to our next presentation, which will be from the Power Workers' Union. Good afternoon. Welcome to the committee. Good to see you again. We have 15 minutes for you to divide as you see fit between either presentation or questions and answers.
Mr John Murphy: We certainly appreciate this opportunity. I'd just like to introduce who is with me. We have Chris Dassios who's our legal counsel for the Power Workers' Union, and we have Bob Menard who's with our communications department in the Power Workers.
I think everybody has copies of the brief that we've prepared. I'll try to go through as quickly as I can the key points that we've outlined in our brief and hopefully they'll be of assistance in terms of considering the recommendations around the Employment Standards Act changes.
Let me start with just a quick overview of the Power Workers' Union. We represent approximately 15,000 employees in the power sector in Ontario. The roots of the Power Workers' Union go back to about 1944. The Power Workers' Union was one of the founding members of the Canadian Union of Public Employees, Canada's largest union, and continues its affiliation with CUPE, the Canadian Labour Congress, the Ontario Federation of Labour and nearly 40 local labour councils throughout Ontario.
I'm the president of the Power Workers' Union since 1993 and also vice-president of the Ontario Federation of Labour and a member of the board of directors of Ontario Hydro.
The PWU is greatly concerned with the substance of the Employment Standards Improvement Act, 1996. What the government has called minor technical amendments cannot be viewed as merely technical matters by the PWU, its members or indeed any employee in the province. The effect of the proposed changes is to sacrifice the rights of employees in the province and to make it more difficult for employees to enforce the rights they have against unscrupulous employers.
Now I'll go through what we consider our main areas of concern.
First is what we call the privatization of enforcement in a collective agreement context. Currently, all employees in the province have access to the offices of the Ministry of Labour to enforce the standards set out in the Employment Standards Act. The bill proposes to prohibit anyone in a unionized workplace from having access to a publicly funded enforcement mechanism under the Employment Standards Act. This is a flagrant discrimination against unionized employees. It also prohibits a certain segment of the taxpaying public from having access to publicly funded enforcement mechanisms under the act. If the standards in the act are truly minimum standards, they should be enforceable in a like manner in respect of all employees in the province.
Arbitration is not a substitute for a complaint under the Employment Standards Act because there is no investigative component by a neutral third party in the arbitration process. The effect of the proposed amendment is to simply privatize the enforcement of the act and make employers and unions pay for such enforcement in organized workplaces. In the past, a union's duty of fair representation has not required a union to represent employees in respect of employment standards. The proposed changes would expose unions to a duty of fair representation complaints in respect of enforcement of a public statute and transfer the cost of enforcing the public statute to the trade union movement for no good reason. If cost savings need to be made, they should be made in an evenhanded manner and not in a manner which punishes a certain segment of the workforce disproportionately.
The second point we'd like to make focuses on the limitation of avenues of enforcement by non-unionized employees. The Ministry of Labour is proposing that enforcement of any provisions of the Employment Standards Act be ended where such enforcement can be resolved by the courts. Furthermore, the amount recoverable will be limited to $10,000. Bill 49 also gives the minister the right to set out a minimum amount for a claim through regulation, which would result in employees being prohibited from filing a complaint or having an investigation in respect of a claim below the minimum amount.
The net effect of the proposal is that employees with claims exceeding $10,000, who are usually the most powerless employees, harmed the most at the hands of unscrupulous employers, will be forced to go through a court system which requires them to hire a lawyer and expend large sums of money in the hope of obtaining some recovery months or years down the line. On the other hand, employees who have suffered less harm will be able to have access to a publicly funded and more expeditious enforcement mechanism under the act. It makes no sense to discriminate against those who have been most harmed. The message being sent to unscrupulous employers is that if they are going to violate the Employment Standards Act, do it to the greatest extent possible so that, to obtain full recovery, their victims will be forced into the court system where enforcement is much more expensive and less likely to succeed as a result of the expensive delay involved. Surely this cannot be consistent with a reasonable public policy.
Furthermore, employees with small claims will not have access to the enforcement mechanisms under the act, which will simply mean that their claims will essentially be unenforceable because it will not be worth hiring a lawyer and entering the court system in order to enforce their rights. Again, if the ministry is serious about having the Employment Standards Act enforced, it is hard to understand why it would implement the proposed policy.
The third section deals with privatization of collection. The proposed amendments would give private operators the power to collect amounts owing under the Employment Standards Act. In effect, the ministry is proposing to deal with the problem of employers who do not pay not by bolstering the ministry's enforcement efforts but by contracting out the enforcement work to a private agency that will charge a fee for enforcement. Anyone who has had any experience with private collection agencies knows that their prime objective is to obtain a quick settlement, even if that means taking a substantial amount less than what is owed as a settlement. Although the proposal is that, where a settlement is under 75% of the amount owing, the collector is required to obtain the approval of the director, there would still be a wide scope for abuse by private collectors. The spectre of a collector telling an employee who has a legal right to compensation that they should take an amount lower than what they are entitled to or the collector will simply give up on their case is truly frightening.
Even after the employee has been found to have a legal right to compensation from an employer, they will not be able to fully exercise that right until they have finished dealing with a for-profit private entity in respect of obtaining satisfaction. The private collector's objective will not be identical to those of the employee or indeed those of the public. The profit motive will be paramount and that will put the collection in direct conflict with the interests of the employee.
The net effect of this will be that employees will receive less than the amounts to which they are entitled under the act. The money will be put into the hands of the collection agencies which, we would submit, are less in need of the funds than the employees who are seeking to have the act enforced. Furthermore, the greatest pressure will be exercised on the most vulnerable, which again will result in the most needy employees getting the least amount of satisfaction under the act.
In the end, the proposed amendment in this area will be sending a message to employers that it would be most cost-efficient for them to simply ignore the Employment Standards Act. Even if an employee has the temerity to litigate the issue and an order is made against the employer, the employer will simply pay off the amount owing to a collection agency at a discount that may be well below the actual amount the employer would have had to pay if he had to comply with the act in the first place. This would make a mockery of the minimum standards protection that has been part of the fabric of this province for decades.
The fourth section deals with limitation periods. A six-month limitation is being imposed in place of the current two-year period. As the ministry knows, limitation periods in the employment standards context are of a different character than those of general law. Employees who cannot find alternative employment often have to live with violations of the Employment Standards Act until they can find another job. Thus, a two-year limitation period is realistic. Those employees who have the worst prospects for alternative employment will be forced into a court system which is more expensive and less likely to result in a proper enforcement of the act due to the cost and delay of the court proceedings. Once again, the most vulnerable employees will have the least chance of effectively enforcing the act.
The six-month period contrasts with the two years the ministry is given to conduct its investigation and the two years the ministry is given to get the employer to pay moneys owing. So while the employee has only six months to file a complaint, it can take four years for the matter to be concluded. If the government is truly interested in streamlining the process, why do it on the backs of the employees as opposed to getting the ministry's house in order?
Our conclusion: We have set out above our main concerns with the proposed amendments. The essence of Bill 49 is to make substantive amendments to the Employment Standards Act which discriminate in both purpose and effect against unionized employees and the most vulnerable employees in the non-unionized sector. The proposed amendments are not mere housekeeping but a dramatic watering down of the minimum standards that have been accepted by all persons in the province as fair and equitable for many years.
The purpose and importance of labour law, as set out in a statement adopted by the Supreme Court of Canada -- and maybe I'll go right to the statement -- says: "The main objective of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship. Most of what we call protective legislation...must be seen in this context. It is an attempt to infuse law into a relation of command and subordination."
Seen in this context, the proposals to amend the Employment Standards Act weaken the protections in the act and increase the subordination of employees who are already in a subordinate position. This sort of activity can hardly be deemed action for the public interest.
The amendments set out above are simply unacceptable to the Power Workers' Union and, we would submit, to the vast majority of working persons in this province. The Ministry of Labour should reconsider these amendments immediately. All of which is respectfully submitted on behalf of the our 15,000 members of the Power Workers' Union.
The Chair: Thank you, Mr Murphy. That leaves us a minute, but I'll give 20 or 30 seconds to each caucus. The questioning or comment will commence with the official opposition.
Mr Hoy: Thank you very much for your presentation. It's a very comprehensive one. It's unfortunate we don't have more time, but I'd just make a comment that we see the government withdrawing from enforcement in more areas than just employment standards and labour laws. It seems they have the notion that two parties in dispute can solve this themselves, and I've had representations made to me in other areas, including labour, that third parties are required. I just simply state that the government is in this mode currently.
Mr Christopherson: Thanks very much, John, for your presentation. We don't have a lot of time to get into what you've raised but you've certainly done, as always, an effective job of focusing in on the issues that matter.
I think what's really important is that you've joined a long list of important, well-known, respected labour leaders and community leaders all across Ontario who, when we finally forced this government into bringing this bill out into the light of public scrutiny, have pointed out that it's detrimental not just to union members but, more importantly, to the most vulnerable, those who don't have benefit of a union. I think it says a lot about you and your union and the rest of the labour movement that you come forward and put your reputation on the line and, quite frankly, take on this government when it continues to say that this is good news for working people and that this improves the Employment Standards Act when the reality is it's just one more piece of a litany of attacks on working people since they've taken power. I want to thank you for being here.
Mr Tascona: Thank you for your presentation. I'd like to just make a few comments. Certainly I understand your position with respect to the minimum claim. I certainly can share that in terms of setting up a principle of saying that we're not going to tolerate any employer getting a free ride with respect to enforcement under the act, and certainly I think that the government is serious about having the Employment Standards Act enforced. In that regard, certainly the consensus we're hearing is that there's a need for improving the enforcement under the act. I guess the approach that's being taken is that the government resources are being shifted towards the non-union workers who don't have the benefit of having representations such as a strong union like yourself.
But at the same time, section 20, which you comment on, there have been positions that have been taken, but that will be something that will benefit the parties. What we heard this morning from another distinguished labour lawyer, including the one you have with you, David Brady indicated that he felt the changes under section 20 would result in greater self-reliance in the workplace parties and improvement in the enforcement of the standards for employees; in other words, internalizing and making the workplace parties look after their problems, because they have a collective agreement and the process --
The Chair: If there's a question, could you move very quickly to it, Mr Tascona.
Mr Tascona: That's basically it. Do you have a comment on that?
Mr Murphy: Okay, just a quick comment and maybe if there's time permitting, I'll get Chris to make a quick comment as well on it. I think the basic premise that we're coming from is that yes, there are different strengths. If we look at the unionized environment, there are different strengths. But the reality is, in any workplace -- and as a union leader, I am the first to admit this -- the strength that a union has doesn't compare with the strength that an employer has.
Now, if we look right across the unionized structure within the province of Ontario, we go from what can be sort of strong unions to very weak unions. Our argument is that if the government determines that the people of this province should have a minimum standard, that minimum standard should be enforceable right across, regardless of the strength of the bargaining unit that you happen to be within, if you happen to be in a unionized structure.
Right now we have a situation in this province where in particular public sector unions are under increasing pressure in terms of a multitude of issues that they have to deal with in the collective bargaining context. To add these issues into that mix, the net result will be that people would not get what they would otherwise get under the statute in terms of minimum standards enforceable by the province.
The Chair: Thank you. I'm afraid, Mr Murphy, we're already over 18 minutes, so in deference to the three groups that are still left to appear before us, thank you very much for taking the time to appear before us today.
Mr Murphy: We appreciate the opportunity. Thank you.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 204
The Chair: The committee may amend its agenda. We've had a last-minute cancellation from the Labourers' International Union of North America, Local 597, which means our next group up is the Service Employees International Union, Local 204. Good afternoon. Welcome to the committee. Again, there are 15 minutes available for you to divide as you see fit.
Ms Judy Christou: Mr Chair and committee members, Service Employees International Union, Local 204 welcomes this opportunity to present our submission concerning Bill 49 regarding the changes to the Employment Standards Act. Although granted reluctantly, we would appreciate more such opportunities to consult with this government.
First, I would like to give you some background on this union and this local, and our interest in the Employment Standards Act will become self-evident. SEIU represents approximately 45,000 workers across Ontario; of those, 27,000 are employed in hospitals and 11,000 workers are employed in nursing homes and homes for the aged. These members are covered by the Hospital Labour Disputes Arbitration Act and do not have the right to strike.
We also represent private sector workers such as cemetery, racetrack and day care workers, hairdressers, waiters and waitresses, maintenance and cleaning staff. SEIU has a slogan, "We care for you from the cradle to the grave," and it's true. Our members are the ones who look after your parents and your children and you when you become ill. It is in your best interests to protect these people.
Local 204 is the largest local of SEIU in Canada, representing 20,000 workers. Further, an estimated 85% of SEIU members are women, a significant number are from minority groups, many work part-time and all these workers are concentrated at the lower end of the economic scale. They have already suffered through the repeal of employment equity and part of the pay equity legislation.
They face cutbacks in day care, both as workers and consumers. On an ongoing basis, our health care members must deal with the funding cuts, not knowing whether they will have a job from one day to the next, and if they are lucky enough to have one, they are sadly overworked. The Employment Standards Act has protected all these workers at some point in their working lives.
Bill 49 is titled An Act to improve the Employment Standards Act, but there is no improvement here except perhaps for employers who wish to take advantage of the workers they employ. When the bill was introduced, the Minister of Labour claimed that the amendments would cut through years of accumulated red tape, encourage the workplace parties to be more self-reliant and allow the ministry to focus attention on helping the most vulnerable workers. Instead, we are faced with the possible gutting of this bill of rights for workers.
The Employment Standards Act is just that, legislation to set minimum working standards for the people of Ontario. The act has evolved out of years of exploitation of workers which previous governments have responded to. It has developed with the moral, historical and cultural support of the people of Ontario.
In her brief, Professor Judy Fudge outlined the historical development of the law from the 19th century culminating in 1968 with the Employment Standards Act. What makes this government assume employers have changed since the 19th century or that protection of workers is no longer necessary? The employment standards branch receives roughly one million inquiries a year and nearly 20,000 formal complaints alleging violations of the act.
In a one-year period, over $75 million in back wages owing was assessed against Ontario employers who failed to meet the minimum standards provided in the act. This simply demonstrates this legislation is highly necessary and the process is heavily utilized. Over 90% of complaints filed are by workers who no longer work for the employer they complain about. It seems fairly obvious only employees who have terminated their employment feel comfortable laying a complaint. This does not say much for the ability of employers to self-regulate.
One of the goals of the legislation, as stated by the minister, is flexibility. Flexibility is a polite way of saying employers want to do anything they desire in the name of the mighty dollar. Employers have always wanted flexibility, and indeed we unions are willing to give it to them as long as they meet decent, reasonable standards and/or the requirements of a collective agreement. The minister said also that unions were entitled to flexibility. Well, our members want the flexibility to earn a decent wage, work reasonable hours, take a vacation and enjoy holidays such as Canada Day with their families. This minimum standard is a signature of Canadian life.
Even with the current minimum protections workers have, some employers will go out of their way to avoid the laws, as you are aware from reports of the OFL hotline. A case in point is the Local 204 retirement home which, in the name of flexibility, scheduled its employees on split shifts, with the result of no rest breaks or lunch-hours. An employee could be required to work from 7 am to 10:30 am and then from 4:30 pm to 7:30 pm. It is hard to imagine a situation more disruptive to one's life. How could a parent, for example, arrange day care for such a schedule, thus avoiding the financial and emotional burden of leaving a child for 12 hours?
Another small nursing home we have has a consistent problem with bouncing paycheques. Our members live from hand to mouth. If their paycheques bounce, they have no recourse and, as a result, they face increased bank charges, mortgage penalties, car insurance problems and on and on.
Many thoughtful and insightful briefs illustrating the deleterious effects these amendments will have on working people have been presented to this committee. We heartily endorse the brief presented by the Ontario Federation of Labour on behalf of its affiliates.
We are aware the amendment on the so-called flexible standards has been withdrawn, but there is no guarantee it won't be raised again during the second phase. Given that we don't know if we will get another opportunity, we will persist in making our opinions known on this issue.
Local 204 prefers a minimum standard as set out in legislation and will forgo the opportunity to negotiate below those standards. The employers we deal with would undoubtedly bring such issues to the table. This union will not concur voluntarily to such requests, but more issues on the table will only add to the logjam characterizing health care bargaining.
Health care bargaining has always been difficult. A centrally negotiated collective agreement has not been negotiated in the Ontario hospital sector in years; for SEIU, the time period is close to two decades. With hospital restructuring and funding cutbacks, the parties have enough to deal with at the bargaining table without extra issues.
Problematic too is the fact that no criteria were given as to how the parties are supposed to judge whether the overall package negotiated is comparable to the package of standards legislated in the Employment Standards Act. As Professor Fudge put it, "This suggests that the purpose of this provision is to allow employees to waive minimum standards rather than to negotiate greater flexibility in achieving minimum standards."
Local 204 maintains we have already had experience in negotiating a similar concept. When we bargain centrally, some homes or hospitals have conditions superior to those of the central provisions. The union has always attempted to preserve these superior provisions at the bargaining table. Needless to say, these negotiations have been a struggle, as the employer never wishes to preserve superior conditions and often we are in dispute as to what is in fact superior. Given our experience with this concept, we have no desire to increase the number of issues that must be determined superior either in whole or in part. Even when we do evaluate superior conditions in this venue, at least we are comparing similar benefits.
This amendment would have required the parties to compare unrelated benefits, which is impractical and unfair. This suggested amendment, among others, would make negotiations more fractious, prolonged and complicated -- just the opposite of what this government claims are its goals.
Ms Joy Klopp: My name is Joy Klopp. I'm going to speak briefly to the enforcement section of our brief. I'm not going to read it. You've got it before you. I just want to flesh it out a little bit because there was a question about strong unions versus weak unions and who can enforce these provisions. I just want to make it clear that there are enormous practical difficulties with this, whether you are a weak or a strong union.
The first point I want to make is the general point that I've heard two prior speakers make, which is that these are minimum standards. They should be enforced across the board in an evenhanded way. That means that unionized and non-unionized employees should have access to the same public machinery to enforce their rights. That's the first point.
Now the practical difficulties. First, section 20 of Bill 49 would add enormous pressure on an already overburdened grievance and arbitration system. That's likely to be especially true where the employer is violating minimum standards.
I'm a business agent for Local 204. That means that I represent employees in part by pursuing grievances in the arbitration system. In my experience, where an employer is violating basic minimum standards, there is going to be a whole host of collective agreement issues that are a problem as well. You can have in a facility like that 20, 30 or 50 grievances pending at any one time; if that includes employment standards grievances, there are going to be delays; there's no avoiding it. If unionized employees had access to the public machinery, they'd have access to a potentially more efficient system to get those grievances resolved.
There's also a second problem, and that's priorities. Which claims go to arbitration first? Do we send ESA claims to arbitration first? Do we send them as individual claims so that we've got maybe 30 notice claims going to arbitration at once or do we send them as a group? If we send them as a group, are these individuals going to get their due with respect to these very basic statutory rights before an arbitrator?
The third practical problem is the cost factor. Nobody wants to quite address this directly, but it's extremely expensive to go to arbitration. We pay for half of the arbitrator's cost, the room, the travel cost, the counsel in most circumstances. In the context of our sector, where we've had layoffs due to nursing home funding changes, we've had hospital closures, there's a major financial constraint on health care sector unions in any event.
The fourth practical concern is that Bill 49 does not give unions or unionized employees the investigatory powers that ministry officials have. In section 63 of the act, ministry officials, ESOs, can go in, look at audit records, look at books of account etc. No such powers are given to a business agent. I can't go to the employer and say, "Give me all of your payroll records for the last six months." That's especially critical where we have newly certified bargaining units where we haven't been there and haven't seen the practice. The union may be able to ask for those kinds of records through an arbitration, but I have to have a case to get to arbitration.
Also, I want to note as an aside that there's no support in Bill 49 for the union's role in this. There's no training, there's no access to solicitors' opinions from the ministry, no special access. In fact, access even to the jurisprudence is difficult. They're not readily available like labour arbitration cases where you can just go to the library and look them up in the bound volumes that are well indexed. These are cases that are kept in the Ministry of Labour libraries and three mornings a week we have access to them.
Consistency of result is a very serious problem. The employment standards office and appeals tribunals have access, again, to their own policies, to their decisions, to their historical knowledge of their own jurisprudence. Arbitrators will be deciding these cases without the benefit of this support. We can end up with inconsistent decisions -- in fact, I would suggest that we will end up with inconsistent decisions -- as between arbitral jurisprudence on behalf of unionized employees and ministry jurisprudence with respect to non-unionized employees.
There also may be in fact inconsistent decisions within one workplace. If there are numerous violations in one workplace, in order to expedite proceedings, we may have to send them to several different arbitrators. Several different arbitrators can decide several different ways on the same subject. Obviously they try not to, but the cases are coming out. It's new law. It can happen. In Local 204's view, it's totally inappropriate to have inconsistent results where you have basic minimum standards that are supposed to evenly applied.
The Chair: Excuse me, Ms Klopp, not to interrupt, but we're are at our time. If you have any closing comments, I'll entertain those now.
Ms Klopp: I better let Judy then go ahead.
Ms Christou: We'd just ask you then to look over the remaining issues in our brief.
In conclusion, SEIU Local 204 maintains that the direction the government is taking with regard to the Employment Standards Act is wrong. The argument that these amendments will focus ministry attention on helping the most vulnerable workers is false. The most vulnerable workers are in fact having the rug pulled out from under them by their own government.
If you consider the number of assessments made against employers in the 1994-95 period, 29% went uncollected, and when the actual dollar amount is looked at, 74% went uncollected. The most frequent reason given for the ministry's failure to collect wages was the employer's refusal to pay. There is a problem here, but it isn't with the worker. The ability of the employer to self-regulate is seriously called into question.
That concludes our comments, respectfully submitted by SEIU Local 240.
The Chair: Thank you both very much for taking the time to make a presentation before us here today.
That leads us to the next presenter. Is Gerard van Deelen here? As we had that cancellation at 4:30, he may still arrive at 5.
LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
The Chair: I believe the Labourers' International Union of North America, Local 183, is present. Welcome to the committee. Just a reminder, we have 15 minutes for you to use as you see fit, divided between either presentation time or question-and-answer period. With that, the floor is yours.
Mr Keith Cooper: My name is Keith Cooper. I'm appearing on behalf of the Labourers' International Union of North America, Local 183.
The Labourers' International Union of North America, Local 183, is the largest construction local in North America. We represent nearly 15,000 members and their families, predominantly in the Metropolitan Toronto area but extending north to include Simcoe county as well. Our members perform work in all sectors of the economy. We represent not only construction workers but cleaning, maintenance, factory and countless other workers also.
This diversity allows Local 183 a close look at how employment standards are presently being observed and enforced. Although the present enforcement system is not perfect, it does work. Indeed, it has benefited thousands of employees who have obtained their legal entitlement without having to resort to high-cost legal counsel, which quite often would have been too expensive for those very persons to afford.
This and other enforcement issues will be addressed later by Mr O'Brien. As countless others have submitted point-by-point analyses of the proposed bill, the first part of our submission will instead take a more broad-based approach.
As it presently stands, observance of the Employment Standards Act by employers is fast becoming more of the exception than the rule in many sectors. Every week, reports of unpaid vacation pay, missing or shortchanged hours, endless overtime and a host of other ESA abuses cross the desks of our representatives.
Usually those workers who are most affected by employer dishonesty are those found working in the lowest wage bracket. For all non-unionized and for many unionized workers in this category, the ESA is their best, if not only, recourse. Most workers earning minimum wage depend on every dime every week to continue their existence. Even in a unionized situation the inevitable delay caused by the conducting of interviews, gathering of evidence and appointment of an arbitrator may well add up to several months. This is time a low-wage earner simply does not have.
Section 20 of the proposed bill will deprive unionized members of this avenue, which at best is discriminatory and at worst disastrous. Landlords, banks, utility companies and other creditors will not extend an unspecified grace period for payment while a worker fights their way through grievance arbitration. Additionally, quite often the amounts of money in dispute are such that proceeding with arbitration is simply not cost-effective. In this instance, the affected worker may be left with no remedy at all.
Pawning a public responsibility to a private union is not common sense, particularly when not all of the public loses its rights. More importantly, the powers enjoyed by an employment standards officer are not the same as those at the disposal of a union representative. This disparity is evidence of further discrimination against union members.
Just as alarming as this obvious injustice is the apparent lack of thought and coordination being given to the reform itself. The legal ambiguities contained in the bill are various and open to interpretation in so many ways that, after examination, one cannot be even reasonably certain of what the proposed changes will eventually mean. In all likelihood, the end result of these uncertainties would be increased litigation at an understaffed labour relations board.
Low-wage earners, organized or not, are hit in other ways with Bill 49. For the reasons stated, these workers cannot live other than paycheque to paycheque. Being denied the right to pursue both an ESA claim and civil action, tied together with the proposed maximum dollar limit, six-month limitation period and minimum dollar limit could easily ruin the lives of thousands of families. With this lattice in place, a low-wage worker is virtually blocked no matter what their particular situation. If the worker is a long-service employee, they may be entitled to significantly more than is required under the act, yet will not be able to afford to await the outcome of a civil trial. An employee who needs every penny to survive usually doesn't argue with their boss.
A case in point is a recently organized bargaining unit at our local. In this instance, it was discovered that many employees were owed vacation pay dating back two years. Their employer regularly dropped hours from their paycheque without valid cause. Under the changes mentioned, these workers would have to choose between accepting a maximum amount, thereby losing money, or going to court, thereby losing money. It certainly does not appear to be an easy choice.
The concept of a minimum claim amount for wages is nothing short of insulting. To place a cut-rate pricetag on someone's life is disturbing. To a young mother who needs the money to buy formula, there is no minimum amount she would overlook. To a family which needs money to pay the rent, there is no sum too small. With the cutbacks in social assistance, the WCB, unemployment insurance and other support programs, every employment dollar takes on added significance. If the stated aim of this ubiquitous government restructuring, that is, to allow the poor to improve their lives through work, is true, then this bill should strengthen the sections dealing with the standards and options which would most affect this class. Instead, what emerges is yet another attempt at undercutting the very people who can least afford it.
As witnessed daily in the workplace, many employers are not presently observing the standards and are circumventing the legislation whenever possible. For this reason alone, any changes to the ESA should support greater enforcement and better standards, not the opposite.
Although subsection 3(3) has been temporarily withdrawn, the inevitability of its future reappearance leaves it a topic for discussion. Contracting out of minimum standards is, stated simply, dangerous. The proposed system is fraught with inconsistencies, uncertainties and an apparent lack of regard for most workers.
With the workplace reality now being one of endless hours, stress and tension for many employees, the minimum standards now in place are of little comfort. To allow an employer to trade one right for another is, again, discriminatory to the unionized worker. If, as was suggested by the labour minister at the outset of this bill, these tradeoffs become applicable to non-unionized employees, employment chaos will follow.
To address this point for a moment, imagine an average retail store clerk refusing to work overtime in exchange for an extra week of severance pay. The outcome? The clerk is fired, has no recourse via the ESA and may not be entitled to unemployment insurance. It would be difficult to characterize this as an improvement.
In its form as set out in Bill 49, this balancing act is decidedly lopsided. If the proposals seen thus far are resurrected in the fall, it will inevitably lead to an increase in labour conflict, confrontation and job action. If nothing else, the ability to bargain over basic rights adds one more strain to the always delicate give and take of contract negotiations. Unfortunately, the impact of these plans will be much greater.
In construction, at least in Canada, the weather governs your year. Many contractors would echo the government's assertion that these changes to the ESA will increase workplace flexibility. They would point to their need for more hours in a workday or week to take advantage of good weather. Even now, constant enforcement is required to ensure the contractors do not work their employees beyond accepted limits. With the ability to bargain for those additional hours, an otherwise standard set of negotiations would take a new turn. Add to this the other changes to the act precluding unionized workers from making claims directly to the ministry and the entire union management dynamic is disturbed. Would any worker wish to work 20 hours of overtime a week in exchange for some improved benefit which they may never use?
These provisions have been characterized as a race to the bottom for employers intent on taking maximum advantage of their workforce. The irony is this government seems to believe that taking maximum advantage of their workforce is the newest corporate euphemism for success. This belief is neither new nor successful. It was the exploitation of workers a century ago that ultimately led to riots, strikes and terrorism. This cannot be deemed success by business or government.
From a social perspective, it can be seen in no other way than dangerous -- dangerous because those who feel that society shuns them will, in turn, shun society. This will create significant numbers of dispossessed persons who will have little regard for legislation, authority and the sanctity of conventional business wisdom. Add to these numbers a sizable group of workers who feel they are under constant attack and you have the recipe for civil unrest. Pushed far enough, certain confrontations will undoubtedly turn violent.
This is not a future any should envision, yet every day it becomes increasingly probable. Bill 49 is designed to facilitate that future, whether purposely or not. It will have the greatest negative impact on those who are even now dangling by a thread. More importantly, however, it will affect in some unfortunate way the majority of Ontario workers and, by extension, their families. The effect of this bill does not stand in isolation from society but rather it interacts in countless ways, visible and invisible.
Disable minimum standards and weaken workers' rights and you increase the working poor and doom the disadvantaged. Not to be alarmist, but at some point in time a critical mass of working and non-working poor will be achieved and the inevitable violent explosion will occur. Riots and bombings in Canada have not accompanied most major policy shifts, but in recent years scenes more common to our southern neighbours have played themselves out from coast to coast. Right here at this building, in this year, Canadians witnessed a scene which would have hitherto been thought impossible. These are indicators that the lack of workplace stability is manifesting itself in many different ways. It also indicates where that instability is ultimately headed: to a violent clash of some kind between economic classes.
Despite the common assumption in government and business that this is overstating the case and preaching doom and gloom, any examination of the reality of the 1990s workplace and a changing society cannot avoid reaching this conclusion. The irony of the present situation is that what is needed to improve our economy and its competitiveness -- namely increased productivity, consumer spending and smooth labour relations -- is being undermined by a piece of legislation claiming to do the opposite. If this act is new and improved, most Ontario workers will live with the old and flawed.
Mr Michael O'Brien: The focus of my presentation will be on the diminishing capacity of the Employment Standards Act to recover lost wages by workers in both the construction industry and every other industry within the working force of Ontario.
The employee wage protection program was set up at the ESA to work in conjunction with the Construction Lien Act for the recovery of funds due to bankruptcies and delinquent or deadbeat employers. Present practices of the Employment Standards Act make it necessary to have a valid lien and commence an action for lien recovery to be in place before the EWPP will kick in. However, with the new legislation, the government sees fit to force the employee to make the choice of either choosing one route or the other: either having the EWPP pay out a claim on behalf of each worker to the amount of $2,000, which is not guaranteed, or to have the Construction Lien Act be pursued in the event that you can recover the full amount. The position is much better for the employee.
However, there are underlying circumstances which are not known at the time when you have to make this election of choice. Revenue Canada could step in at any time and make a third-party demand for the recovery of GST and source deductions, at which time the pool of holdbacks, as they will be, at the payor, would be depleted insurmountably. The amount for recovery would be left at basically nil. With present practices being what they are, the EWPP would have kicked in and would have facilitated the recovery of the funds to the employees. However, when you have to make this election or choice, as it may be, of choosing the Construction Lien Act or the EWPP, you're not given that ultimate choice should the situation arise.
Notwithstanding the fact that this would basically erode the rights of the employees to recover their funds, it's also becoming or making a lengthy and expensive recovery process for both the employees and for the unions.
Presently the EWPP does not require, when in conjunction with a lien, for the union to have an order by an adjudicator or an arbitrator to validate their entitlement to wages. However, under the new system, this would be a requisite or a requirement for you to file an EWPP.
As Mr Cooper alluded to in his presentation, this would greatly put more pressure on the Ministry of Labour, more specifically the Ontario Labour Relations Board. As we well know from the most recent cuts to all government sectors, the Ontario Labour Relations Board was substantially depleted in its workforce. Forcing us, as employees and unions, to go that route would no doubt put a greater strain on this depleted part of the Ministry of Labour.
The Chair: We're at time, so if you have any brief concluding comments, I'll allow them.
Mr O'Brien: In conclusion, I'd just maintain that Bill 49 is counterproductive to everything that would recover funds for employees. It's counterproductive to a good working society, as Mr Cooper alluded to, and basically it just has no part in a harmonious labour relations society within the province of Ontario.
The Chair: Thank you both. We appreciate your taking the time to make a presentation before us here today.
GERARD VAN DEELEN
The Chair: With that, we come to our last presentation of the day. I'll go back on the agenda to Gerard van Deelen. Good afternoon. Welcome to the committee. Again, we have 15 minutes for you to divide between presentation or questions and answers.
Mr Gerard van Deelen: Let me start off by saying that my expertise in this matter is not as great maybe as it once was when I was more employed in the province. I'm actually a federal employee, but all the same a temporary employee, and I'd just like to address a few things in that area.
When you're fired unjustly or laid off, in my position as a temporary employee, you don't necessarily get severance pay. If you're laid off, you don't get a layoff notice. You have no chance of becoming a full-timer based on calculation of hours, as occurs in the present system, and therefore no chance of part-time.
I'd hate to see temporary employees or temporary status become more reflected in the act as it stands now. Basically, I'm proud of the labour act we have at the moment -- well, not the labour act so much any more, but the Employment Standards Act. I think it's something to be proud of when you compare it to the federal one which has a lot of vagueness attached to it.
The work I do, of course, as a temp is even worse than your own definition of a temporary worker might be who has a contract for a certain period of time, like six months, a year, whatever. I live day by day. That's as long as my contract lasts. We have little rights except for the rights that are given to us by the union I belong to, and they're not the same rights by any measure.
Now I'd like to address some of the areas of the act that I think need criticizing.
The claims area, changing it to six months instead of two years: I have a problem with finding out where the data is -- perhaps it's out there -- to support that only 10%, from fact sheets I've received from the government, file later than two years; that it's such an undue hardship that we have to deal with this 10% out of the 90% that are dealt with in a shorter period.
The problem with cutting the two years' limitation is something that relates to the education of people in this province. There's not a lot of education given people on their rights in the workforce. You don't get that in school. I don't know exactly where you pick that up, but that's what you do, you pick it up somewhere. So I would guess that the longer the limitation period, the better, because it takes people that long sometimes to even notice that they're being violated.
If the government's bound to proceed with this -- I haven't seen the formalized wording, but because it's not clear as to when this six months' limitation, if that's what they go with, would start, I would ask them to perhaps add the limitation period to start from when the employee first became aware of the violation.
The other aspect of sending it to the courts instead, if you wanted to go past that limit, I can't agree with that, because I don't think the courts are the venue for this type of problem. The cost involved -- the knowledge once again is even probably more obstructive or unhelpful, let's say, than the employment standards people, which I have dealt with in the past.
The $10,000 limit: Once again, I've tried to figure out some examples for you, although it was hard, because I was dealing with if someone pays someone a dollar less than the hourly wage, infractions of that kind, and you're coming up to maybe over a year, maybe $3,000, stuff like that. Apparently, from your fact sheets once again, it involves more executives who are getting a lot higher pay. I don't want to close the book on that. I'm sure there are instances where the $10,000 or more is necessary. Once again, your fact sheets say 4% of the claims are higher than $10,000, so I'm wondering what the big deal is just to knock it off at that point just because the number is 4%. Is it that much to justify installation of a cap?
The other area that's not addressed is firings or unjust dismissals, which is not addressed in the act. Obviously there you're going to come into something more than $10,000. Whether or not people are going to take that to the courts every time, once again, I refer back to the problem with education in this area. People just don't know that they have that avenue, and once again, it's a more costly avenue.
The mention of private agencies taking over collection of fines etc: I'm not sure how that's going to work, because I don't know if we have any specialists in that area. You talk about putting it up to tender to specialists. Who are the specialists in collecting from employers for these fines? I've always thought it was the government. So I don't know if I will trust anyone myself who enters into that business. Are they guaranteed to be impartial? The chance for them to be swayed by an employer, I think, is a lot more possible, rather than the government.
The same goes for the right to mediate complaints before investigation. I don't think that's a wise choice either, because once again you're giving the employer a bit more chance to change things without a full investigation happening. I've known a few employers, and by that, I think it extends to more than a few. It puts the intimidation into their hands, and that is not a good thing.
The improvements: I came to just some of those, but I understand now there's going to be a bigger overhaul of the act in the future, so I'll leave that and won't address that today. That's not to say I don't hope to be here again in front of you. I've many suggestions for improvement in the areas of overtime, lunch breaks and the minimum wage.
That completes my presentation. Thank you very much.
The Chair: Thank you very much. That allows us just under two minutes per caucus for questioning. This time it will commence with the third party.
Mr van Deelen: Actually, if I can just say one more thing -- sorry, third party -- I found one more discrepancy on your fact sheet where it talks about not setting a minimum claim at this time. But in one of the last paragraphs it says employees will be able to go to court to settle claims above the maximum or below the minimum limits on claims. So in one paragraph you've said there is not a minimum at this time, but then the other one refers to a minimum. I just bring that to your attention. Sorry.
Mr Christopherson: Thank you for your presentation. Just on your last point, let's not kid anybody: You don't put in enabling legislation that allows you to regulate something unless you have some plan to regulate it. So the fact that they're not going to do it right away, you're right to point out, is not the issue. The fact is, they're planning to.
Our concern, of course, is that over the years, when there's some political public attention on when they first do it, they may do less than where it would ultimately be after a few years, and it slowly starts to creep up so that we're up into the hundreds and hundreds of dollars, which of course is, in some ways, just legitimizing theft, because there are workers who, as you've rightly pointed out, don't use the court system or couldn't afford to, or the amount of money they've been ripped off for is less than the cost of going to court. I understand it's about $65 or $70 just to initiate a claim. So if you've been ripped off for $50, which happens to be half the amount of money you're getting in a week's pay, because it's part-time work, you're out of luck; you're beat. So that's a real concern for us.
I want you to know that as we've travelled around the province, the government members on this committee have consistently refused to admit all the points that you raise today about things that are takeaways in terms of rights. The vast majority of people who have made presentations have been taking that position -- the overwhelming majority. Still, this government will not admit to you right now, no matter how hard you push, that you're going to lose rights and that other workers are going to lose rights. You might want to take whatever time you have with them to see if you can push them to admit that this is not an act to improve anything; this is taking away and gutting rights that I think you're correct to be proud of.
I wanted to ask you one question, and that was the six months and two years. In your experience, do you think there are people who will lose money because they're afraid to make a claim while they're still working for a bad boss, because they're worried they'll get fired if they make a complaint to enforce their rights?
Mr van Deelen: Yes, clearly. I also think the amount of time from when they actually find out that they got screwed, to put it bluntly -- there's no guideline that I can see there. They could go on for a year at this job without knowing that they've been getting the shaft, and then it's going to be too late.
Mr Christopherson: Watch for the dodge. They're not going to deal with that stuff, so get ready for it.
Mr O'Toole: Thank you very much, Gerard. I appreciate your presentation. You seem very sincere and I think we all are as well.
At the end you alluded to the improvements you could make in overtime and lunch breaks etc. It's important to recognize that the world changes through technology, through government, whatever. Do you think the act is really in need of change? It's some 20 years old. You suggested there could be changes.
Mr van Deelen: In those areas, yes, and hopefully you'll invite me back.
Mr O'Toole: Flexibility sort of thing?
Mr van Deelen: No, I wouldn't say flexibility, I would say change. To give you one example, let's look at something like lunch breaks. Right now it stands at five hours. I used to be in a position under these regulations where a lot of the time we only worked six and half hours in a day, so we would be pushed not to have lunch at all, to get finished the work faster and go without lunch. So I would suggest moving it to four hours. The normal shift, unless that gets changed, has been an eight-hour shift. Let's move it right to the middle. For people who only work six hours, at least they're more likely to get their lunch if it's closer.
Mr O'Toole: Most government jobs today, though, aren't 40 hours either.
Mr van Deelen: Most what jobs?
Mr O'Toole: Most government jobs aren't 40 hours; they're 32 or some combination thereof, 32 to 35, 36.
Mr Baird: Eighty-five.
Mr O'Toole: All I'm saying is you have to modernize it. You've recognized that there should be workplace discussion. There's a very important section in part 2 of these employment standards debates or discussions. That's what we really want to hear: what will work. We don't want, at the end of our term, to have something that doesn't work. You'd think a little more highly if --
Mr van Deelen: Of course, I wasn't addressing government jobs. I think you're talking about government jobs, you're saying?
Mr O'Toole: I thought you said you worked for the federal government.
Mr van Deelen: Yes. Okay.
The Chair: Moving to the official opposition, it would be Mr Hoy.
Mr Hoy: Thank you very much for your presentation. You mentioned the $10,000 maximum cap and that the fact sheet from the government suggested that executives or people with high incomes generally are claiming in those amounts, but we've had significant numbers of presentations that suggest otherwise. To reach those dollar amounts, perhaps the people were given NSF cheques. They waited for a while in hopes that the employer would eventually have good cheques, and that's how they exceeded those amounts. They were asked to give the employer some time to come up with the money and it just simply didn't happen. So when you were looking at a dollar less than the minimum wage and trying to work out figures, there are examples, and I wanted you to know that there are significant numbers of examples where low-income earners exceed $10,000.
I was in a store one time, and on the back of the door there were suggested questions to ask people who were making purchases for the employees to memorize, to learn and to refer to in order to increase the sales of the store. It also had instructions on how to clean the lunchroom and how to pay to buy your pop or sandwiches or whatever. There were all manner of suggestions in that lunchroom area. You were wondering about awareness and how people know their rights. Do you think it would be helpful to have employment rights published in the workplace prominently somewhere in the building?
Mr van Deelen: Yes, a good suggestion. I should have thought of that. Yes, much like the WCB health and safety guidelines. I think that's a good idea.
Mr Hoy: I appreciated your presentation.
The Chair: Thank you for making your presentation before us here this afternoon. We appreciate it.
Mr van Deelen: Thank you.
The Chair: With that, the committee stands recessed till 9 o'clock tomorrow morning in this room.
The committee adjourned at 1718.