Pre-Budget Submission
on
Improving the Enforcement of
Workers’ Rights in Ontario
to the Ontario Legislature’s Standing Committee
on Finance and Economic Affairs
and the Ontario Minister of Finance
January 2017
Income Security Advocacy Centre
1500 – 55 University Avenue
Toronto, ON M5J 2H7
The Income Security Advocacy Centre (ISAC)
The Income Security Advocacy Centre is a provincially incorporated specialty legal clinic funded by Legal Aid Ontario to advance the rights, interests and systemic concerns of low-income Ontarians with respect to income security and employment. Founded in 2001, we are the only legal clinic in Ontario wholly devoted to systemic advocacy on income security issues. We carry out our law reform mandate through test case litigation, policy advocacy, community development and public education.
We are governed by a community Board of Directors with representation from all regions of Ontario and composed of low-income individuals, academics and advocates with expertise in issues of income security and poverty. Our fifteen Board members include legal clinic caseworkers and people who identify as low-income, with representation from Indigenous communities, racialized communities, people with disabilities and recipients of income support benefit programs.
We work closely with sixty local legal clinics who work every day with the challenges faced by low-income people relying on Ontario’s income security programs. We also work in coalition with other advocacy groups and organizations. Our analysis and recommendations are informed by ongoing consultation with our partners.
Recommendationson Improving Access to Employment Standards for Low Wage and Precarious Workers in Ontario
ISAC haspreviouslyprovidedpre-budget submissions for 2017-18 on investments in the health and dignity of Ontarians who rely on Ontario Works and the Ontario Disability Support Program, by increasing incomes through an increase in rates and by making rule changes that would improve theseprograms. This additional submission addresses our recommendation that government invest funds directed at protecting and enforcing the rights of all workers in Ontario. Our recommendations are:
Improve Enforcement of Employment Standards
a)Fund an increase in the number of Employment Standards Officers
b)Improve collection of orders for unpaid wages and other monetary awards
Improve Supports for Workers to Make Claims
a)Increase funding for employment law assistance
b)Increase funding for interpreters
Investing in Improved Enforcement of Workers’ Rights in Ontario
Government has embarked on a critically important review of employment standards and labour relations legislation through the Changing Workplaces Review. This important process provides a crucial opportunity to address both the negative impacts and root causes of precarious work in Ontario.
Increasingly, workers in Ontarioare experiencing an erosion of their rights and an increase in precarious and low-wage work. Employers often seek to limit their legal obligations to workers by misclassifying them as independent contractors, thereby disentitling these workers from the protections available to them under the Employment Standards Act, 2000. We have endorsed calls by the Workers’ Action Centre, the Migrant Workers’ Alliance for Change, and the Ontario Federation of Labour to expand the scope of minimum standards protection for all workers in Ontario.
At the same time, wealso believe that there are steps that government can and should take in Budget 2017 – before the final recommendations from the Review’s Special Advisors are received – in order to enhance enforcement and protection of workers’ rights under the current legislative framework. It will take time to craft a legislative response after the Special Advisors recommendations are received. In the meantime, government can take steps to better protect vulnerable workers today by making immediate investments in Budget 2017 to ensure that low income and vulnerable workers’ rights are better enforced.
Failing to enforce basic employment rights has the greatest impact on already historically disadvantaged groups and communities. Women, racialized workers, recent migrants, including temporary foreign workers, and single parents are more likely to be working in precarious jobs[i]. As the Special Advisors to the Changing Workplaces Review observed, “such employment is generally characterized by low pay and low fringe benefits, little or no job security, limited training, few opportunities for career development and advancement, little control over one’s work environment, uncertainty over work scheduling, and little or no protection through unions”[ii].Workers in these forms of “non-standard” employment are more vulnerable to employer exploitation and abuse[iii],[iv]. Not surprisingly, employment standards violations are more likely to be found in workplaces with these features; for example, in the accommodation and food services industry.
We commend government for taking steps in 2016 to increase prosecutions for those employers who fail to meet employment standards[v].However, we note that the Changing Workplaces Review Interim Report indicates a level of “significant non-compliance with basic legal obligations” and “serious” problems with enforcement of basic employment rights. As the report notes,
Labour standards ultimately succeed or fail on the issue of compliance. Widespread non-compliance destroys the rights of workers, destabilizes the labour market, creates disincentives for law-abiding employers who are undercut by law-breaking competitors, and weakens public respect for the law.[vi]
An even stronger response, which would only result from sustained investment in the enforcement system, is therefore warranted.
Enhancing protection and enforcement of the rights of Ontario workers is an investment not only in these workers and their families but also in the Ontario economy. Given that household consumption accounts for a significant proportion of the Ontario economy – 58% of Ontario GDP in 2015[vii] – improving the income security of workers through improving their rights in the workplace means investing in the health of Ontario’s economy. Increasing the minimum wage, which does not have budgetary implications but which is still an issue for Ontario’s low-paid workers, is another way to improve the province’s economic health. We continue to advocate that the minimum wage be increased to $15 / hour immediately, as a central part of lifting workers out of poverty.
The Workers’ Action Centre (WAC) report, Still Working on the Edge: Building Decent Jobs from the Ground Up[viii], outlines in detail the variety of issues that workers in Ontario face and the systemic remedies that Ontario can and should be pursuing to resolve them. Further, the report from the Migrant Workers Alliance for Change (MWAC), Ensuring Migrant Worker Fairness[ix], delineates the issues that are most relevant to the lives of migrant workers and their families, and the important changes that are needed to protect them in the workplace. ISAC’s recommendations to the Changing Workplaces Review[x], on both enforcement-related and other issues, took our cues from those of the Workers’ Action Centreand the Migrant Workers Alliance for Change in their reports. Our recommendations for budgetary investments are also based on those recommendations.
We make the following recommendations for Budget 2017-18:
1. ImproveEnforcement of Employment Standards
a)Fund an increase in the number of Employment Standards Officers
Studies suggest that minimum standards violations for low-wage and precarious workers arepervasive[xi]. And while violations are found in more than 75-77% of instances where the Ministry proactively carries out workplace inspections, only about 0.6% of Ontario’s 400,000 workplaces are inspected annually[xii]. Increased funding is required for Employment Standards Officers to handle complaints and investigations as well as engage in proactive inspections of workplaces, particularly of employers that have been the subject of multiple employment standards complaints.
As the WAC report outlines[xiii], the current reactive system of ESA enforcement means the rights of many workers aren’t properly protected. Many workers, particularly those who are in vulnerable and precarious situations, may face reprisals for complaining about their working conditions. This is particularly the case for migrant workers, many of whom have a legitimate fear of deportation and other forms of reprisal from their employers. More funding for Employment Standards Officers to investigate complaints and conduct proactive investigations is required to ensure that employers are complying with their legal obligations and to ensure that the most vulnerable workers have access to both rights andremedies under the Employment Standards Act, 2000.Proactive inspections of migrant worker workplaces must also be done carefully, in order to ensure that inspections do not lead to job loss or deportation[xiv].
b)Improve collection of orders for unpaid wages and other monetary awards
The WAC report indicates that many orders to pay unpaid wages go uncollected and that workers face barriers in enforcing and collecting on orders they may obtain against their employer.Indeed, the report notes that a survey undertaken in 2011 of people in low-wage and precarious work indicated that 33% of workers surveyed were owed unpaid wages[xv]. The Changing Workplaces Review Interim Report indicates that an annual average of $21.5 million in unpaid wages, and other moneys owing, is assessed by the Ministry[xvi].
Many workers go through the long and stressful process to obtain an order from the Ministry of Labour for unpaid wages, only to find that the employer fails to pay. For this reason, we recommend that funding should be directed towards improving the Ministry of Labour’s collection efforts for unpaid wages and other monetary awards.
2. Improve Supports for Workers to Make Claims
a)Increase funding for employment law assistance
Marginalized workers face significant barriers in enforcing their rights, as outlined in both the WAC and MWAC reports[xvii]. As the WAC submission notes, “In a changing labour market, it is becoming more difficult for workers to make complex legal arguments when, for example, they are misclassified as independent contractors”[xviii].As such, we recommend continuing to increase funding for employment law assistance for low-wage and precarious workers.
b)Increase funding for interpreters
As the WAC report indicates, workers who do not speak English or French are disadvantaged by the claims process because no interpretation services are provided[xix].To improve access to justice for marginalized workers, we recommend that government fund interpreters for the Ministry of Labour complaint process to ensure access for employees and employers who do not speak English or French.
Conclusion
The findings of the Changing Workplaces Review have the potential to make important positive change for Ontario workers. We look forward to the final report of the Special Advisors and the subsequent work of government to put in place a much more robust employment standards and labour relations system tobetter respond to the realities of work in Ontario in the 21st century and improve the income security and workplace conditions of all Ontario workers, thereby making the promise of the Review a reality.
In the interim, however, we urge government to make investments in Budget 2017-18 that would improve the current employment standards system as it stands, and provide better supports to allow workers to have their existing rights protected and enforced.
End Notes
1
[i]Noack, A. and L.Vosko.2011. Precarious Jobs in Ontario: Mapping dimensions of labour market insecurity by workers’ social location and context. Toronto: Law Commission of Ontario. p. 27. Available at:
[ii]Mitchell, C.M. and J.C. Murray. 2016. Changing Workplaces Review: Special Advisors’ Interim Report. Ontario Ministry of Labour.p. 36. Available at:
[iii]Metro Toronto Chinese and Southeast Asian Legal Clinic. 2016. Sweet & Sour: The struggle of Chinese restaurant-workers. p.4. Available at:
[iv]Vosko, L.F., A.M. Noack, and E. Tucker. 2016.Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and Their Resolution under the Employment Standards Act, 2000. Prepared for the Changing Workplaces Review.p.29. Available at:
[v]Mojtehedzadeh, S. 2016. Ministry of Labour cracks down on law-breaking bosses. The Toronto Star. December 27.
[vi] Professor Harry Arthurs, quoted in Mitchell, C.M. and J.C. Murray. 2016. Changing Workplaces Review: Special Advisors’ Interim Report. Ontario Ministry of Labour. p.261.
[vii] See Table 9: Ontario Gross Domestic Product, Expenditure-Based in Ontario Economic Accounts – Second Quarter of 2016 (April, May June), Ontario Ministry of Finance:
[viii] This report is available at the Workers’ Action Centre website at:
[ix] This report is available at the Migrant Workers Alliance for Change website at:
[x]Income Security Advocacy Centre. 2016. Response of the Income Security Advocacy Centre to the Changing Workplaces Review Special Advisors’ Interim Report. October 14. Available at:
[xi] See particularly: Noack, A. and L. Vosko. 2011. Precarious Jobs in Ontario: Mapping dimensions of labour market insecurity by workers’ social location and context. Toronto: Law Commission of Ontario. p. 27. Available at: Vosko, L.F., E. Tucker, M.P. Thomas and M. Gellatly. 2011.New Approaches to Enforcement and Compliance with Labour Regulatory Standards: The case of Ontario, Canada. Toronto: Law Commission of Ontario. November. Available at: Law Commission of Ontario. 2012. Vulnerable Workers and Precarious Work. Toronto: Law Commission of Ontario. December. Available at:
[xii]Mitchell, C.M. and J.C. Murray. 2016. Changing Workplaces Review: Special Advisors’ Interim Report. Ontario Ministry of Labour. p.279.
[xiii] Gellatly, G. 2015. Still Working on the Edge.Building decent jobs from the ground up. Toronto: Workers’ Action Centre. p.35-37.
[xiv]Migrant Workers Alliance for Change. 2016. Ensuring Migrant Worker Fairness: Response to the Changing Workplaces Review Special Advisors’ Interim Report. Toronto. p.29. Available at:
[xv]Gellatly, G. 2015. Still Working on the Edge.Building decent jobs from the ground up. Toronto: Workers’ Action Centre. p.34.
[xvi]Mitchell, C.M. and J.C. Murray. 2016. Changing Workplaces Review: Special Advisors’ Interim Report. Ontario Ministry of Labour. p.302
[xvii] See particularly p.38, 46, 56 in Still Working on the Edge (WAC) and pp. 6, 10, 11, 18 in Ensuring Migrant Worker Fairness (MWAC).
[xviii] Gellatly, G. 2015. Still Working on the Edge.Building decent jobs from the ground up. Toronto: Workers’ Action Centre. p.39.
[xix] Ibid.