New legislation will weaken workers' rights

On Tuesday, November 14,  Labour Minister David Piccini introduced omnibus legislation that will further erode workers’ rights under the Employment Standards Act. 

The new legislation will weaken existing laws that protect workers, strengthen the hand of multinational corporations like Uber and Lyft, and divert attention from the government’s ongoing failure to enact and enforce existing legislation that would make a meaningful difference in workers’ lives. 

The government’s omnibus legislation is intended to address a number of issues such as: illegal deductions & wage theft; discrimination against women; discrimination against newcomer workers; unfair treatment of temporary agency workers; and exploitation of platform workers. Far from addressing these urgent issues, Piccini's Bill makes workers more vulnerable.

BACKGROUND:

Illegal deductions and wage theft 

• Today Minister Piccini announced “ground-breaking” legislation to prohibit employers from making deductions for stolen property. Unfortunately, these provisions are already included in the Employment Standards Act.

In fact, Part V (Wages), Section 13 makes it illegal for employers to deduct wages “because of faulty work or because the employer had a cash shortage, lost property or had property stolen and a person other than the employee had access to the cash or property…” 

Despite this legislation, as Minister Piccini mentioned, these illegal deductions are widespread. One reason this kind of wage theft continues is the failure of the Ontario government to invest in claims investigations and pro-active enforcement of the law. The government has also failed to impose penalties for wrong-doing that act as a deterrent to employers who violate the law and who know workers have less power and security to enforce their workplace rights.

Since the Ford government took office in 2018, basic enforcement of workplace laws has dropped dramatically, as these tables show (source: Employment Standards Enforcement Statistics,  Ministry of Labour).

Individual Claim investigation numbers from 2023 to 2018:

Proactive Inspection numbers from 2023 to 2018:

Part III Prosecution numbers from 2023 to 2018:

To be effective, employment laws must be enforced, which means better protections for workers against unjust dismissal and workplace reprisals so their employment is not at risk when they ask for their workplace rights. For those who do make claims, timely investigations of claims is essential, which means hiring an adequate number of  employment standards officers so they can investigate and follow-up to ensure stolen wages are actually paid. More staffing is urgently required to ensure laws are enforced proactively and penalties for employers who break the law must be substantial enough to deter those and other employers from breaking the law because it is still profitable to do so.

It should also be noted that more robust legislation that would actually prevent gas and dash in the first place has been tabled twice under the Ford government’s tenure. In 2020, Bill 231 was a private members bill introduced by Conservative Party MPP Deepak Anand and it died on the order paper. MPP Anand introduced this bill again as Bill 88, where it sits awaiting debate at committee.  

• Minister Piccini also admitted today that unpaid trial shifts are common ESA violations in the restaurant sector. Yet this practice is already prohibited under the ESA, where employers are required to pay at least minimum wage for all hours worked. This holds for people that perform work but have not entered into a formal employment contract. It also holds for workers who are receiving training. 

Nevertheless, “unpaid trial shifts” occur when employers require people to work shifts before they formalize an employment contract. Although this practice is illegal, it is widespread. This speaks to the ongoing failure of the Ford government to enforce employment laws. Furthermore, as noted above, without real protections for workers from unjust dismissal, few workers will have the confidence to make a complaint or access any other of their rights under the ESA, knowing employers can fire them at will.   

Discrimination against women

• Minister Piccini has already announced his intent to introduce new legislation that would call on employers to include the expected salary range in all job postings offering less than $100,000 annually.

This symbolic gesture is intended to distract members of the media and the public from the fact the government has refused to enact existing -- and much more robust -- legislation that already requires employers to include wage rates and salary ranges in all job postings (not merely those offering less than $100,000). This 2018 legislation titled The Pay Transparency Act also:

• Prohibits employers from asking applicants about their pay rates in previous position; 
• Requires employers with over 100 employees to produce annual transparency reports that track workforce composition and compensation in order to proactively detect discrimination on the grounds of gender or other prescribed characteristics; 
• Prohibits employers from intimidating, dismissing or otherwise penalizing employees for making inquiries about or disclosing information about compensation rates in the workplace. The Pay Transparency Act specifically allows workers experiencing reprisals to complain to the Ontario Labour Relations Board.    

• The Minister has announced a consultation on proposed legislation that would restrict the use of non-disclosure agreements in the settlement cases of workplace sexual harassment, misconduct or violence. 

However, such a consultation side-steps the real issue of the government’s ongoing failure to fund and adequately staff the Human Rights Tribunal of Ontario. This matters because the Ontario Human Rights Code is the only form of protection workers have against discrimination and harassment and complaints are adjudicated by the HRTO. As it stands, there is a backlog of almost 9,000 cases and workers wait three to five years to have their cases heard. 

Discrimination against newcomer workers

• The Minister announced that his government would prohibit employers from requiring Canadian experience for employment. Once again, there is nothing new. 

In 2013, changes to the Ontario Human Rights Code made it illegal for employers to ask applicants any question that directly or indirectly would ask about Canadian experience as it classifies them under prohibited grounds for discrimination. However, violations of this provision are widespread. This is because there is no proactive enforcement of this law, and, as noted above, the Human Rights Tribunal of Ontario is the only source of remedy for workers filing complaints. As noted above, the HRTO is woefully understaffed and the system is complicated and difficult to navigate.

Unfair treatment of temporary agency workers

• In 2021, the Ontario government passed legislation to protect migrant workers and other vulnerable workers by requiring temporary help agencies and recruiters to have a license to operate and to ensure employers are legally obligated to use licensed recruiters and temp agencies. These requirements were scheduled to take effect January 1, 2024 -- just six weeks from now.
• Now we learn Minister Piccini is halting the implementation of the new licensing requirement with the stated intention of reducing the protections that have already been legislated. Once again, the government is siding with recruiters and temp agencies over workers.  

Meanwhile, the Ford government has failed to enact Section 83.4 of the Workplace Safety and Insurance. This existing law, if enacted, would make companies that use temp agency workers responsible for the cost of workplace injuries and death. Only when there are meaningful financial penalties will companies begin to protect workers' health and safety.  

Exploitation of platform workers

• Minister Piccini has also announced changes to the deceptively named Digital Platform Workers’ Rights Act, 2022. 

This Act carved platform workers out of the Employment Standards Act (ESA) for minimum wage and was a step backward from the OLRB decision that recognized platform workers as employees, protected by the Employment Standards Act. The amendments contemplated by Minister Piccini would see the creation of a new “regulatory authority” that would drain resources from the OLRB and ESA and redirect resources into a new bureaucracy that entrenches app-based workers’ second class legal status.