Enhancing access to justice for precarious workers
Ryan Newell
Amendments to the ESA could be significant for low wage and precarious workers
On November 6, 2014, the Ontario government passed Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014. The new statute, which received Royal Assent today, amends several pieces of labour- and employment-related legislation that could be significant for low wage and precarious workers.
The feature of Bill 18 that has received the greatest media attention is a provision that indexes minimum wage to inflation. While the Ontario minimum wage remains woefully low at $11 per hour, tying it to the Consumer Price Index will ensure low wage workers’ purchasing power does not continue to diminish over time.
This post examines a couple of Bill 18’s amendments to the Employment Standards Act, 2000 (ESA) which have been the focus of less attention. These changes are likely to have a large impact on the working lives of low-wage and precarious workers.
It’s worth acknowledging at the outset that these amendments, including the minimum wage indexing and other amendments which are beyond the scope of this post, would not have been won without the diligent efforts of grassroots organizations like the Workers’ Action Centre and the Migrant Workers Alliance for Change. These organizations, and many others, have been working hard to extend and expand upon basic employment law protections for marginalized workers for many years.
The ESA establishes a statutory floor of protections for employees in provincially regulated workplaces. The ESA is the legislation which guarantees, among other things, minimum wage, overtime pay, public holiday pay and vacation pay, for example. The ESA also establishes an administrative procedure operated by the Ministry of Labour (MOL) which provides a cheap and relatively accessible (emphasis on relatively) legal mechanism for workers to enforce their rights.
During my time working as a student caseworker in the Workers Rights division at Parkdale Community Legal Services, it was clear that there were two particular features of the MOL ESA enforcement mechanism which provided employers with incentives to ignore statutory minimum standards while also erecting barriers to workers who wished to take legal action to recover their unpaid wages.
First, since at least since 2000, the ESA placed a $10,000 limit on the total amount of unpaid wages that a worker could recover through the MOL. The term “wages” is defined broadly under the ESA and includes all entitlements under the Act. As a result of the $10,000 cap, non-unionized workers who were owed sums in excess of $10,000 would be forced to turn to the expensive and inaccessible court system to pursue recovery. For most low-wage workers, litigation in the courts simply is not an option. As a result, employers could flout the law with confidence that they would only ever be forced to pay a fraction of what they owed or never be forced to pay at all.
Second, the ESA previously required that a worker bring a claim for unpaid wages within 6 months of the wages becoming due. Unpaid wages which became owing outside of this 6 month window (extended to 12 months in the case of repeated contraventions) would not be recoverable through the MOL.
Significantly, Bill 18 amends both of these features of the ESA, enhancing the ability of low-wage and precarious workers to access justice through the MOL.
Workers’ MOL claims will no longer be subject to an arbitrary $10,000 cap. This amendment will allow workers to pursue claims against their employers for the total amount of wages they are owed subject to the applicable time limits.
Furthermore, Bill 18 extends the window for recovery from 6 months to 2 years, bringing the MOL process in line with the standard limitations period in place for most lawsuits in civil courts.
These two amendments may appear trivial, but I expect that they will have a huge impact on the working lives of precarious workers. It is safe to assume that the removal of the $10,000 cap on liability in the MOL procedure will create a greater deterrent for employers considering whether to pay their workers in accordance with their basic statutory entitlements. The extension of the time limit on ESA claims through the MOL to 2 years will likely have similar effect.
However, Bill 18 certainly does not address all of the features of the ESA which limit precarious workers’ access to justice. For example, in 2010, the Liberal government amended the ESA to require workers to prove that they have attempted self-enforcement of their rights before they are permitted to pursue a MOL claim against their employer. This barrier is left untouched by Bill 18.
That said, it’s important to celebrate the victories for precarious workers at a time when it often feels as though such victories are few and far between.