An analysis of the Ontario Chamber of Commerce Submissions  to the Changing Workplaces Review.

By Jamie Parkinson

On July 27, 2016, the Special Advisors to the Ontario Changing Workplaces Review issued their interim report which outlined the range of issues they had been asked to consider as part of their review.

The Canadian Freelance Union represents many Ontarians, indeed many Canadians, who find themselves in a precarious work situation. That is, work where contracts (if they exist at all) are short-term, relatively low-paid, without benefits or job security and with little control over their own scheduling.

As a result, the Canadian Freelance Union undertook an analysis of the submissions of employers organizations in order to critique these submissions and provide precarious workers with an insight into what these proposals would mean to them if they were adopted by the Government of Ontario following the Changing Workplaces Review process.

Employers organizations, such as the Ontario Chambers of Commerce, have proposed a number of measures designed to limit the ability of individuals and unions to organize both inside and outside the workplace. For example, Employers have asked that the Labour Relations Act be amended as follows:

1. That lists of employees provided in response to a union certification application only be used for that application.
   

2. That construction workers need to be employed with a company for at least three months before they have the right to vote in a certification application.

Both of these provisions are aimed squarely at the right of employees and unions to organize in the workplace. Freedom of association, the right to join a union, the right to collective bargaining and the right to strike are constitutionally-protected rights that have been upheld time and again by the Supreme Court of Canada. Changing the Labour Relations Act in the way that the employers want would almost certainly be ruled unconstitutional by the courts and would face the prospect of being struck out or set aside until legislation is amended to comply with the Charter of Rights and Freedoms.

However, employers also know that a legal challenge would take time and it is very likely that they would use the time to engage in wholesale union-busting activity - blocking certification applications, amending contracts, laying off known union troublemakers and so on.

The Employers have also made submissions around scheduling that are worth looking into:

1. That changes to the Employment Standards Act do not include specific provisions regarding employers scheduling obligations.
   

2. Maintaining the working time limits of 8 hours a day, or 48 hours a week with overtime paid after 44 hours.

A 48 hour work week means that an employee is away from their home and families for more than nine hours a day each work day. This limits their ability to participate in family life, for example by attending parent-teacher conferences and also limits an employee’s ability to access education or other opportunities that enable them to improve their employment and career prospects.

In addition, zero hours contracts with little or no notice of changes to schedules effectively place employees on call even at times when they are not working. Contracts that require employees to be available for work for a set number of days or hours per week prevent people from working two jobs to make ends meet and instead force people onto social assistance.

The combined effect of these provisions traps people in precarious work situations. This is, of course, entirely acceptable to employers who use words like ‘flexibility’ to mask the fact that these proposals deny people social mobility and a chance to pursue their own careers and family lives.

Indeed, the Employers also propose that the Ontario Government also explore the Guaranteed Annual Income program to provide people in precarious work situations with a social safety net. This is not an altruistic proposal from employers but a shifting of their social responsibility to pay pension and healthcare benefits onto the shoulders of taxpayers.

The Employers also propose that changes to the Employment Standards Act do not include a provision whereby a worker is considered an employee unless the employer shows otherwise. This is a direct attack on precarious workers who are often classified as independent contractors by employers in order to avoid paying EI, healthcare or pension benefits and as a means of avoiding the working time limits set out in the Act.

Employers also want to reign in the unpaid leave provisions in the Employment Standards Act - so that instead of an employee having 10 unpaid leave days, these days would be sub-divided into three categories with three or four days of leave allocated to each. For example, three days for personal illness, three days for the death of a relative and four days for unspecified urgent matters that affect unspecified certain relatives.

Of course what this really means is that employers want to force you into work even when you are sick. The average adult in Canada has a cold six times a year - so these proposals will mean that you’re coughing and spluttering all over your colleagues at least three times a year. And what of the provision for unspecified emergencies concerning anonymous relatives? Who gets to pick the emergency and the relative? Will adoptive parents and half-siblings count or will employers limit leave to biological relatives?

The one thing that really sticks out in the employer’s submissions is their whiny insistence that employees and unions are abusing the system and disrespecting the spirit of the Labour Relations Act and Employment Standards Act. That’s rich, coming from the tax-avoiding elites, but like the playground bully sniveling to the teacher that little Johnny hurt his fist by putting his face in the way of it, it’s nonsense.

Improving benefits to employees, giving them a chance to schedule their own lives, plan their own careers and participate in the education of their children bring nothing but benefits to society as a whole. Likewise, increasing trade union membership doesn’t kill off an economy, it enhances it. Wages rise for everyone (except the top 10%), income inequality drops, democratic participation increases, kids do better in schools, crime drops, life expectancy goes up. Studies (such as Card et al, 2004; the International Labour Organization’s World of Work Report, 2008 and Weston and Rosenfeld, 2011) all show that increasing union participation benefits society across the board.

The Employer’s position in unconstitutional, anti-social, regressive and just plain wrong. They rely on anecdotes from unnamed companies who are being held hostage by workers who are apparently abusing the system and unions who are apparently disrespecting the spirit of the law. It is time that the Employers were called out on this rhetoric and it is encouraging to see that the Special Advisors have indeed highlighted the fact that the Employers submissions have “...little appreciation of - and perhaps little sympathy for - the Constitutional right of Canadians…”

The Canadian Freelance Union calls on members and workers in freelance, temporary or contract jobs to make a submission to the Changing Workplaces Review Committee to let them know that it is employees, and not employers, who are in need of legal protection from exploitation.