On April 3, 2013, the Law Reform Commission of Ontario released a report (all 176 pages), Vulnerable Workers and Precarious Work: Final Report – December 2012. The report is, in essence, a policy-heavy document reflecting the Commission’s views on how the Ontario government can better “respond to the challenges faced by vulnerable workers.” The Commission came up with a list of 47 “recommendations” dealing with legislative and policy reform of the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA).
What is striking about the report (and what employers should be concerned about) is that the Commission repeatedly emphasizes that the Ministry of Labour should engage in proactive inspections and enforcement of employment standards and health and safety compliance, and should rely less on a “complaint driven” model. Some other interesting recommendations to the government are as follows:
- Review and “update” employment standards thresholds (e.g., number of hours of work to receive overtime, minimum service for severance, etc.).
- Amend the ESA to provide part-time workers with comparable pay to full-time workers (pro-rated) where “there is no justification for the difference based on skill, experience or job description.”
- Consider applying the personal emergency leave provisions of the ESA (unpaid job leave for 10 days if the employee or certain family members are sick) to workplaces with fewer than 50 employees.
- Increase the monetary cap on wages recoverable in an ESA complaint from $10,000 to $25,000 (the same threshold as the Small Claims Court).
- Amend the ESA to permit orders against employers to cover the costs of ESA inspections.
- Reduce instances where employees are “misclassified” as self-employed.
- Proactively inspect whether joint health and safety committees are in place and are “effectively operational”.
While none of the 47 recommendations are law, given the provincial government’s fondness for making changes to the ESA and OHSA, it is likely that these recommendations will be given serious consideration by the government.