Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Protecting Ontario's vulnerable workers unionized workplaces. A second tier are those whose employment falls under the minimum provisions of the Employment Standards Act. Th e have-nots are clearly those who benefi t from neither the common law nor the act. And according to an interim report on vulnerable workers released by the Law Commission of Ontario last week, an increasing number of people are falling under the have-not category. As the commission noted, about 22 per cent of jobs in Ontario in- O between the haves and the have-nots. Th e haves are generally those with employment contracts that fall under the common law as well as employees in volve precarious work, something the report defi nes as employment with low wages and having at least two of three other features: no pen- sion, no union, and small fi rm size. As Ontario teachers battle the provincial government during contract should be paying the most attention to. Th e act, the report noted, exempts certain categories of workers while some businesses misclassify staff as self- employed and thereby leave them with less access to basic statutory pro- tections, including certain employment insurance benefi ts. In challenging economic times, it' s important to remember that it's the vulnerable employees that we Th e report, then, makes a number of reasonable recommendations for addressing the issue. Th ey include reviewing the exemptions from s easy to see how the problem will worsen. J ntario's labour market has increasingly become fragmented COMMENT augusT 20, 2012 • Law Times negotiations and other workers fi ght to retain hard-earned wages and ben- efi ts, it' the act, looking at extending the personal emergency leave provisions to employees at workplaces with less than 50 employees, and making greater eff orts to re- duce the misclassifi cation of employees as self-em- ployed. What' sectors, as the report recommends, is certainly a rea- sonable approach. It' ment. While many workers don't have the benefi t of the statutory minimums due to the exemptions, the act doesn't do much for those who fall under it if there' little enforcement. Focusing on the most problematic s also key, the report noted, is enforce- s be feasible. But given the probable increase in vulnera- ble employment, it' report seriously. With the commission seeking feed- back on the interim report, there' to have those discussions now. Dumb and dumber: Both teachers and Liberals could be hoist on their own petard ust when it thought it had found calmer waters, the Liberal govern- ment the vault is empty, and the defi cit and debt are piling up faster than electricity bills in a heat wave. It' Contracts with teachers are expiring, storm. 1 and unless new deals conclude by then, the old ones roll over and stick the prov- ince with average pay increases of 5.5 per cent. Th at' s a tough spot. Contracts expire Sept. can't aff ord. To top it off , there are two bye- lections set for Sept. 6 that could determine the government' s a fi scal imposition the treasury line stance against the wind, the Liberals have dictated to teachers aſt er setting the template with the 45,000 members of the Ontario English Catholic Teachers' Asso- ciation and then cutting a similar deal with 10,000 French teachers. Th en there are the 75,000 Ontario Sec- Taking an uncharacteristically hard- s future. ondary School Teachers' Federation and Elementary Teachers' Federation of Ontar- io members who have yet to make a deal and say they'll negotiate with their boards directly over the next few months. With the clock ticking, Premier Dalton McGuinty isn't happy. His option is to act Law Times LT Masthead.indd 1 is heading into the perfect on his threat to call the legisla- ture back and legislate a contract. Th e province has no authority to lock out the unions as it' employer. Th e boards can't do so either because they haven't spent enough time in good-faith bar- gaining as required by law. It' s not the s an extraordinary stance and not just because it's a 180-de- gree political shiſt . As Kevin Banks, director of the Centre for Law in the Contemporary Workplace at Queen' sity, notes, it sets the stage for some far- reaching dynamics both at the workplace level and in defi ning how far the right to collective bargaining extends. "It upsets the dynamic of collective bar- gaining," he says, noting that unless both s Univer- parties buy into an agreement, the chances are it will fail. "Th ere' this. But there will be a Charter argument." Th ere' he says, noting that while the Supreme Court of Canada decision in Health Services and Support — Facilities Subsec- tor Bargaining Association v. British Co- lumbia held that the right to collective bargaining was intertwined with the s no law which says they can't do s no clear jurisprudence here, Ian Harvey Queen's Park der s. 2(d) of the Charter of Rights and Freedoms is al- most a guarantee. Meanwhile, recalling the right to free association in the workplace, there are still grey areas. As such, a challenge un- to the mat. In eff ect, he's being hoist on his legislature won't be easy. For one, the NDP wants no part in this battle given its partnership with the unions. Th e Conser- vatives, however, will relish an opportunity to take McGuinty chapter that deals with the stalemate in a recently published book on labour rela- tions in the educational fi eld. "Th is was inevitable, "Th ey've been bargaining outside the legal framework for years." " she says. by the Mike Harris government, restruc- tured collective bargaining with teachers, it was McGuinty and his Liberals who took things to the next level by enshrining a cen- tralized process in which agreements go to While Bill 160, a law passed in 1997 Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ...................... Mallory Hendry CaseLaw Editor ................. Adela Rodriguez Art Director ...................... Alicia Adamson Production Co-ordinator ............. Catherine Giles Electronic Production Specialist ....... Derek Welford Advertising Sales ............... 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With a $15-billion defi cit, there' money this time around but the province must still fi x what' s no However, she suggests, the remedy is not for the politically faint of heart. "Th e technical answer is that the gov- s broken, says Shilton. ernment needs to make a decision whether they want provincial bargaining or a two- tier system and then align that with the le- gal framework," she says. McGuinty and his party have pulled s likely that not all of the recommendations will s time to consider the issue and the s a good opportunity — Glenn Kauth some remarkable rabbits from the hat in the last few years but they'll have to outdo themselves to survive this time or we'll be heading into another general election soon. LT Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com

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