Northern Exposure

Ontario government proceeding with review of its labor and employment laws

by Marc Rodrigue

In February, the province of Ontario appointed the Honorable John C. Murray, a former judge of the Ontario Superior Court of Justice and management-side labor lawyer, and C. Michael Mitchell, a former union-side labor lawyer, as special advisers tasked with reviewing both the Ontario Employment Standards Act, 2000 (ESA) and the Ontario Labour Relations Act, 1995 (LRA).

Concerned about the changing nature of employment in Ontario and about the province’s ability to attract and retain business, the Ontario government has given the special advisers a mandate to consult broadly with the public and various interest groups regarding Ontario’s labor and employment law regimes. Following the consultations, the special advisers will provide the Ontario government with specific recommendations for legislative change.

According to the province, this detailed review has been prompted by a number of factors, including:

The impact of the removal of mandatory retirement. According to the province, the percentage of workers aged 55 and older in Ontario workplaces is projected to be 24 percent by 2031, up from 10 percent in 1997. As the workforce matures, the province also expects a rise in the percentage of workers with disabilities.
The growth of Ontario’s labor force will be driven by the addition of immigrants. By 2031, a full 41 percent of workers in Ontario are expected to be foreign-born.
The rise of the use of technology, and especially information technology, in the workplace. Since the last major revisions were made to the ESA and the LRA (in 2000 and 1995, respectively), the use of information technology (e.g., smartphones, personal computers, etc.) has proliferated in Ontario workplaces, presenting both new challenges and new opportunities.
The growing percentage of Ontario workers employed in the service industry. As of 2014, approximately 59 percent of Ontario’s private-sector workers were employed in service-producing industries.
The rising trend in non-standard employment (e.g., temporary employment, self-employment, part-time employment, on-call work, telecommuting, etc.). The province is specifically concerned about the potential vulnerability of workers holding these types of positions.
The decline in unionization rates. In 2009, only 19 percent of workers in Ontario were unionized, down from 27 percent in 1987.

Employee and union interest positions

Several employee and union groups already have publicly voiced their recommendations for legislative change to the special advisers. For example, The Ontario Federation of Labour has called for reforms such as:
• A $15 per hour minimum wage;
• Binding arbitration for newly certified bargaining units; and
• Union certification by card check rather than a vote (e.g., if the majority of a proposed bargaining unit members sign union cards, the unit should be certified without a further vote).

The Workers’ Action Centre has published its own report consisting of almost 50 recommendations for the special advisers, including the following:
• A maximum eight-hour workday and 40-hour workweek;
• A repeal of all exemptions from eligibility for overtime pay;
• A six-month limit on the use of a temporary agency employee, after which time the temporary agency employee would automatically become a full employee of the client employer;
• A requirement that shift-work schedules be posted at least two weeks in advance of the applicable work period; and
• An expansion of the enforcement rights of the Ministry of Labour by allowing it to work in tandem with other government agencies to suspend registrations, permits, or licenses held by the employer for noncompliance with the ESA or LRA.

To date, employer groups have been less active in voicing their recommendations for change to the special advisers.

Current status of the review

The special advisers are currently conducting open public consultations throughout Ontario. These public consultations continue through September 18. Any party interested in attending the consultations can register online. Comments also may be submitted directly to the special advisers by e-mail (CWR.SpecialAdvisors@ontario.ca), facsimile (416-326-7650), or mail. Further details can be found here.