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Ontario Government Releases the Interim Report of the Changing Workplaces Review

August 05, 2016

The much anticipated Interim Report of the Special Advisors to the Changing Workplaces Review has been released by the Ontario government.

The Changing Workplaces Review arose from the Ontario government’s promise to consult Ontarians about whether amendments to the province’s labour and employment law regime are required given the changing nature of the workforce, the workplace, and the economy.  Two Special Advisors were appointed, Michael Mitchell (formerly of Sack Goldblatt Mitchell LLP) and John Murray.

The Special Advisors held 12 days of public hearings around the province, in which over 200 organizations and individuals appeared, and received more than 300 written submissions. They were also been aided by ten academic research projects commissioned by the Ontario Ministry of Labour.

Before making final recommendations to the government, the Special Advisors issued an Interim Report which presents a range of possible options for reforming the Labour Relations Act, 1995 (the “LRA”) and the Employment Standards Act, 2000 (the “ESA”).

The Interim Report is meant to “advise Ontarians of the range of issues that have been identified and the options for change that we are being asked to consider.” The Special Advisors have invited further feedback on the options set out in the Interim Report. Interested parties must provide their feedback in writing by October 14, 2016.

Options for Reform: What Proposals are on the Table?

Most of the options for reform suggested by stakeholders (as well as some that were not) are on the table for further discussion. One notable exception, which will surely disappoint worker advocates, are most of the exemptions to the ESA.  Given their sheer volume and complexity, the Special Advisors decided not to make recommendations on the merits of the exemptions to the ESA. Instead, they will recommend that the government undertake a separate review process to determine whether the many ESA exemptions should be maintained, modified or eliminated. While understandable, this decision means that much of the “Swiss cheese” approach to the ESA’s protections will persist unaddressed unless and until a further review process is initiated.

In presenting the various options for reform, the Special Advisors are careful to note that they have come to no conclusions, have not made any recommendations, and have an open mind on all issues. Maintaining the status quo is invariably one of the options on the table.

Options for Reform to the LRA

The options for reform to the LRA canvassed in the Interim Report range from relatively focused issues, such as the remedial powers of the Ontario Labour Relations Board, to high-level questions involving broader-based bargaining structures and alternative models of worker voice. Each and every option should be given careful consideration, and this summary cannot do justice to the breadth of options set out in the Interim Report.

However, some of the options for reform that would strengthen access to meaningful collective bargaining include the following:

  • the restoration of card-based certification outside of the construction industry
  • the introduction of electronic membership evidence to bring the LRA into the 21st century
  • enhanced access to first contract arbitration
  • the introduction renewal agreement arbitration along the lines of the model currently in place in Manitoba
  • the introduction of joint employer provisions to address the “true employer” issues raised by the use of temporary help agencies in union certification campaigns

The Interim Report also sets out options for alternative models of broader-based or sectoral bargaining that would expand access to collective bargaining to hard-to-organize workers who have been largely excluded from access to collective bargaining under the North American “Wagner model” of labour relations. The Special Advisors canvass a range of possible alternative models enacted or proposed elsewhere, including the Ontario construction industry model, the “Status of the Artist Act” model, the model proposed by John Baigent and Vince Ready in British Columbia in 1992  (see p. 32), and “extension” models (such as Quebec’s decree system or that of Ontario’s former Industrial Standards Act). The Interim Report proposes a range of options inspired by the alternative models discussed above.

Another important option for reform, reflected in a number of submissions from stakeholders, is the introduction of a provision similar to s. 7 of the American National Labour Relations Act to protect “concerted activity” by non-union workers. In the Interim Report, the Special Advisors question, as Professor David Doorey and others have, “whether, in the wake of the Supreme Court’s Decision [in Saskatchewan Federation of Labour] concerted activity by non-union employees is protected under the Charter and whether it would carry with it the right to strike.”

Options for Reform to the ESA

The Special Advisors engage in a thorough review of the ESA that looks at best practices and comparators from the United States and other provinces. As with the options for reform the LRA, all of the options presented by the Special Advisors deserve careful consideration and this summary cannot do the breadth of options justice. However, some of the more notable options for reform include the following:

  • Expanding the scope of coverage of the ESA by introducing a “dependent contractor” provision into the Act
  • Placing the burden on the employer to prove that an individual is not an employee in disputes regarding employment status
  • Eliminating the “trainee” exemption for unpaid interns
  • Reducing the overtime threshold from 44 to 40 hours per week
  • Various options regarding equal pay and benefits for temporary and part-time employees

Other important options for reform focus on enforcement and compliance mechanisms to address the “serious problem with enforcement of ESA provisions” identified by the Special Advisors. In their section on enforcement, the Special Advisors acknowledged that:

It is apparent there is substantial non-compliance. Misclassification (including illegal unpaid internships) appears to have become widespread and along with some of the most frequent violations of the ESA – failing to pay wages on time or not paying overtime pay – is evidence that there is significant compliance with basic legal obligations.

Specific options for reform presented include the elimination of the requirement that individuals approach their employers regarding ESA violations before filing a complaint, the introduction of procedures for anonymous and/or third party complaints, and increased monetary consequences for violations, including requiring that employers to pay liquidated damages to the employee whose rights have been contravened, interest, or increased administrative fees to the Ministry of Labour.

The Future of Labour Law in Ontario: Let the Public Debate Begin!

While employers were notably absent from the public debate during the consultation process, the employer lobby was quick to make its voice heard upon the release of the Interim Report, urging against “one-size-fits-all solutions, like many outlined in the interim report” and launching an online campaign in defence of the status quo.

The public debate in the coming months will be shaped by the clash between the business community’s opposition to reform on the one hand, and the labour and worker-led Fight for $15 and Fairness and Make it Fair campaigns on the other.

As noted, the Special Advisors are seeking submissions on the Interim Report until October 14, 2016. The timing of the release of the Final Report is uncertain.

Lawyers

Joshua Mandryk

Practice Areas

Employment Law, Labour Law