Law Times

Law Times • May 25, 2015 Page 7 www.lawtimesnews.com COMMENT Private sector unions courted as wynne launches labour law review P olitics is about giving and tak- ing away and trying to convince all of the parties that everyone came out a winner. Facing a massive battle with the public service unions, Premier Kathleen Wynne has embarked on a strategy to woo their private sector counterparts to shore up support as the government launches a re- view of both the Employment Standards Act and the Ontario Labour Relations Act. Wynne has appointed Michael Mitch- ell, formerly of Sack Goldblatt Mitchell LLP, and John Murray, a former Ontario Superior Court judge and a prominent management labour lawyer, to advise on how both pieces of legislation could "be amended to best protect workers while supporting businesses in our changing economy." They're now in the consultative phase and their mandate is to specifically look at the issues around precarious jobs com- prising "non-standard working relation- ships such as temporary jobs, part-time work, and self-employment." More importantly, they'll also review the service sector because it's no secret that as Ontario bleeds high-paying man- ufacturing jobs, most of the positions re- placing them are in that lower-paid sector and usually offer fewer benefits. Other issues include globalization and trade agreements, technology, and workplace diversity. Certainly, among the presentations will be a call for changes to the Labour Rela- tions Act's controversial s. 125 that treats municipalities as businesses under the pro- visions governing the constru ction sector and forces them to accept bids from unionized firms only. The City of Hamilton, for example, saw costs for its water treatment plant jump 83 per cent after a group of workers obtained certification with the United Brotherhood of Carpenters in 2005 because with just one union on board, it meant it had to contract all of the work to union shops. The reality, however, is the government won't change that section given that an effort through a private member's bill to designate mu- nicipalities and school boards as not-for- profit agencies distinct from for-profit businesses was unsuccessful last fall. In- deed, big unions like Unifor want to loos- en the rules around certification in favour of organized labour and ban replacement workers. More likely, says veteran labour rela- tions and grievance arbitration practitio- ner Brian Shell, will be a focus on revamp- ing the legislation to give the most vulner- able employees not just better protection but a mechanism to obtain speedy justice. "Unions have undergone a dramatic change in terms of membership and aren't providing the answers in wage increases and the standard of living," he says. "They're no longer securing the growth of the middle class." With a fragmented workforce, employ- ees at small companies are much more at the whim of their employers, he adds. Many employees, such as those in the retail sector, taxi drivers, landscape gar- deners, and office staff, are particularly vulnerable and have few op- tions for unionization because they work across the province for thousands of different em- ployers. While the Employ- ment Standards Act theo- retically provides them with protection, few employees will challenge their employer while still working when it comes to issues like overtime, says Shell. "The ESA provides a veneer but not an enforcement mech- anism," he says. As a result, it's important to harness both pieces of legislation so they work more in tandem with the Ontario Labour Relations Board uniquely qualified to be the platform for dispute resolution, ac- cording to Shell. In his opinion, the board should be able to designate sectors of employment and, with counsel from both employers and employees, set the employment pro- tocols around standard workdays and weeks, overtime policies, and provisions for issues such as vacation and sick days. It's a bit like the original guilds of the Middle Ages that were the forerunners of today's unions and, he says, something similar to how Quebec's workforces or- ganized themselves up to the 1970s or so, especially in the needle trades. When it comes to the Employment Standards Act, Stuart Rudner, a founding partner at Toronto employment law firm Rudner MacDonald LLP, says the issue is that the underlying premise is archaic and doesn't recognize that not only has society changed but so, too, has the workplace. "Part-time work is the reality of work today," he says. "And technology has blurred the lines between work time and personal time. It's one thing for a manager to plan his vacation at work and deal with e-mails at home — he's on salary — but for someone else to be given a mobile and be expected to respond on vacation, how much of that is overtime?" The courts have also moved past the wording of the Employment Standards Act and are focusing more on issues on a case-by-case basis, a situation that some- times further confuses the landscape. Even when foreign companies come to Canada and try to be innovative by setting up a pool of paid days off that em- ployees can use as they want, they can fall foul of the act. "If they did do it and were challenged under the ESA, they could argue they're giving an equal or greater benefit, but no one has because no one wants to be first," says Rudner. Talking about going first, with Los Angeles having moved to raise the mini- mum wage to US$15, will that open the door for Wynne to again goose the wage f loor in Ontario? When you're cu rrying favour with the private sector and battling wage costs in the public arena, there's nothing like sweetening the pot in a way that would precisely target those precariously em- ployed workers. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@ rogers.com. employment standards reforms don't go far enough A s we progress through 2015, Ontario's employment stan- dards laws are slowly evolv- ing as the provisions of Bill 18, the Stronger Workplace for a Stron- ger Economy Act, come into force. The government has repealed the cap on recovery of unpaid wages. The removal of the cap is a welcome change as there was never any real rationale for a $10,000 limit. Still, the retention of the cap for wages due prior to Feb. 20, 2015, is unnecessary. The increase in the maximum time period for the recovery of wages is an- other welcome change. Employers may now be on the hook to pay wages that became due in the two years prior to the filing of a complaint or the commence- ment of an inspection, although there's again an unnecessary exemption for amounts due prior to Feb. 20, 2015. There are many amendments to the temporary help agency provisions of the legislation. Chief among the chang- es is a beneficial provision permitting employees of temporary help agencies to make joint and several claims against both the agency and the client for out- standing wages. This and other amend- ments to assist employees of temporary help agencies will come into force in November. There are several other significant amendments, but what puzzles me is the lack of reform to significant aspects of the employment standards legisla- tion dealing with termination, sever- ance, and the many odd exemptions r elating to hours of work and overtime. Minimum employment standards relating to notice of termination or pay in lieu are in need of major over- haul. Capping notice or pay in lieu at eight weeks regard- less of the length of employ- ment beyond eight years of service remains a major de- fect in the legislation. Even minimum notice periods for workers em- ployed for less than eight years require strengthening. Admittedly, the notice requirements are minimum standards. But many employees and even some em- ployers aren't aware of the common law requirement to provide reasonable no- tice for contracts of indefinite duration. Capping the notice requirement at eight weeks results in uninformed em- ployees receiving inadequate termina- tion packages or, if they are aware, forc- ing them to retain counsel to obtain their common law entitlement. The severance pay requirements of the Employment Standards Act are an inadequate response to the miserly notice provisions. That's because they only apply to employees with at least five years of service. Also, the severance pay require- ments only apply to employers with an annual payroll of at least $2.5 million, thereby excluding many employees. But even if the employer owes severance pay, the maximum payout for notice and severance, regardless of the years of service, is 34 weeks (eight weeks in lieu of notice plus 26 weeks of severance pay). That falls well below the soft cap of 24 months at common law. For the purposes of this discussion, I'm ignoring the controversy over whether the payroll calculation cov- ers employees only em- ployed in Ontario. Having said that, there's no reason why we shouldn't amend the legislation to broaden the severance pay require- ment and remove any uncertainty by either eliminating the payroll threshold or making it explicit that it's the world- wide payroll that governs. As it is, the current minimum-no- tice and severance-pay standards create a trap for the uninformed. Many em- ployees don't challenge packages pro- viding the legislated minimums. Many employers require prospective employ- ees to sign employment letters incorpo- rating the minimum standards, thereby releasing them from their common law obligations. They know that wrongful dismissal awards invariably exceed the minimum standards. To prevent this injustice, we must strengthen the notice and severance- pay requirements under the Employ- ment Standards Act. This would serve to provide better packages to terminat- ed employees and in some cases elimi- nate the need to litigate to recover a wrongful dismissal award. By reducing litigation, both employers and employ- ees would benefit. Along with reform of the termi- nation and severance requirements, there's a need to examine and eliminate many of the unfortunate exemptions to the provisions for hours of work and overtime in the legislation. The act's myriad special rules and ex- emptions to the provisions are creatures of ancient history intended to benefit special interest groups that have been successful in their lobbying efforts. How else can we explain exemp- tions for those who install or maintain swimming pools, information technol- ogy professionals, certain workers in the entertainment production industry, landscape gardeners, employees who transport or lay sod, fishing or hunting guides, employees who breed and board horses on a farm, and those working in a host of other widely diverse areas? While Bill 18 provides many wel- come amendments, the government must go further in modernizing this legislation, especially when it comes to protecting employees when they need it the most — upon termination — and with respect to working hours and overtime. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail. com. Social Justice Alan Shanoff Queen's Park Ian Harvey

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