Law Times

Page 12 November 14, 2016 • Law Times www.lawtimesnews.com FOCUS Enforce existing act before changing it: lawyers BY MICHAEL MCKIERNAN For Law Times T he provincial govern- ment should focus its attention on enforcing the Employment Stan- dards Act as it stands before making any of the major chang- es contemplated by an expert re- view of the legislation, according to some employers' lawyers. Special advisors Michael Mitchell and John Murray re- cently released the interim re- port of their Changing Work- places Review, a panel struck to look specifically at issues faced by vulnerable workers in precar- ious jobs. The interim report ad- dressed a number of potentially significant changes to the ESA and the Labour Relations Act, but the panel has yet to come out with its final recommendations after accepting another round of submissions from interested parties last month. "If you're trying to help vul- nerable workers in precarious jobs, putting in new rules is not going to help people working for employers who are already breaking the old rules," says Paul Broad, a partner in the London, Ont. office of management-side labour and employment bou- tique Hicks Morley Hamilton Stewart Storie LLP. "There should be a lot more resources going to enforcement and education, so that people know what the law requires, and so that they know it will be en- forced," Broad adds. Mitchell, a former union- side lawyer turned arbitrator, and Murray, a retired Superior Court judge who was previously a management-side lawyer, de- voted an entire section of their interim report to problems with ESA enforcement, one of the few areas of agreement between em- ployee- and employer-oriented interest groups. "While we have not reached conclusions about the specific policy responses on enforce- ment that we will recommend, we conclude that there is a seri- ous problem with enforcement of ESA provisions," the advisors wrote. There are too many peo- ple in too many workplaces who do not receive their basic rights. Compliance with ESA standards ought to be a fundamental part of the social fabric. Indeed, at- taining a culture of compliance with the ESA in all workplaces is one of the fundamental policy goals guiding our recommenda- tions in this Review." The report notes that the overwhelming majority of em- ployment standards complaints — 90 per cent of around 15,000 annually — come from people who have left their jobs either voluntarily or involuntarily. Af- ter investigation by the Ministry of Labour, a large majority — around 70 per cent — of those complaints are upheld. Mitchell and Murray con- clude that fear of reprisal sup- presses complaints from cur- rent employees, leaving some unscrupulous employers free to "violate the law as part of a de- liberate business strategy or be- cause they think their competi- tors are not complying." The authors add, "Some em- ployers are confident that be- cause their employees will not complain, and the likelihood of government inspection is very low, non-compliance is a risk worth taking." "Larger employers take compliance very seriously, and they are frustrated at the lack of enforcement, because every- one knows who a lot of the bad apples are," Broad says. "They should be going after those who are already breaking the rules, because that might give them a reason to change." Jason Hanson, chairman of the employment and labour law practice group at Osler Hoskin & Harcourt LLP, says stream- lining the ESA would allow the ministry to target enforcement more efficiently, and says he would have liked to have seen more radical ideas coming out of the review, such as exempting workers earning over a certain level from some of the provi- sions of the act. "If you pick a number, say $80,000 or $100,000, which is the amount in the public sec- tor where your salary has to be disclosed, and take those people out, then you can focus your en- forcement dollars at the lower end of the economic spectrum. Those are the people most in need of protection, not the ones earning $100,000," Hanson says. Instead, he says many of the suggestions raised for discus- sion, particularly on the labour relations side, were "a bit old school." Proposals in the interim review included a return to card- based certification and a ban on replacement workers during strikes. "A lot of this stuff was raised 15 to 25 years ago," Hanson says. "It felt like rehashing old debates, and I think a lot of employers see it as a missed opportunity." Hugh Dyer, a partner with Miller Thomson LLP, says the high level of union engagement could help explain the focus of the review on areas tradition- ally of concern to them. He says employers are often reluctant to take the public stand on legisla- tive proposals that a formal sub- mission would require, and rely instead on industry groups to advocate for them. Still, he says relatively few have made their voices heard. According to Dyer, the inter- im review's proposal to extend ESA protection to dependent contractors and to provide "just cause" protection to non-union workers are among a number that have the potential to cause a "seismic shift" in the relation- ship between employers and their employees. "It concerns me, because the special advisors can't be expect- ed to guess what they're wor- ried about. Employers have lots of other things on their priority lists that need to be addressed. While I wouldn't say this should be top, it perhaps should be clos- er to the top than it appears to be," he says. LT Jason Hanson says streamlining the Employment Standards Act would allow the ministry to target enforcement more efficiently. REGISTER ONLINE www.lexpert.ca/cpdcentre For more information, please contact Lexpert® at 1-877-298-5868 or e-mail: lexpert.questions@thomsonreuters.com EXECUTIVE PROFESSIONAL DEVELOPMENT FULLY ACCREDITED IN-CLASS PROGRAMS & LIVE WEBINARS 2nd Annual Duties and Risks for Directors The Board Game: A World of Infinite Risks Aaron Emes & Stephanie Stimpson Partners of Torys LLP Toronto & Webinar November 15 8th Annual Dealing with the Lease: A State of the Art Update Innovation + Ideas in Leasing Stephen J. 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