52 LEXPERT MAGAZINE
|
JANUARY/FEBRUARY 2017
| THE MODERN WORKPLACE |
Is employment law keeping up? In gener-
al, employment law in Canada is governed
by the provinces. Ask most employee-side
lawyers whether the provincial statutes re-
flect the changing reality and most would
say no. ey suggest, rather, that the mod-
ern workplace has created an underbelly
of so-called "vulnerable workers" — oen
forced by ethnicity, race, gender, ability,
age or immigration status to take tempo-
rary work that gives them no security, no
say over their hours and few or no benefits.
ey argue that this type of worker is not
protected nearly well enough by the law.
Many management-side employment
lawyers would disagree, arguing that the
laws that have been in place for decades are
reasonable and principled, offering a bal-
ance of freedoms and protections. Barbara
Johnston, head of the Calgary labour and
employment group at Dentons Canada
LLP, for example, says that in her view "ro-
bust employment policies" combined with
common law make overhauling the legisla-
tion unnecessary.
Robert Sider, a management-side labour
and employment lawyer at Lawson Lundell
LLP in Vancouver — who is also called in
Alberta — is not so sure. He says it's fair to
say that, aside from targeted efforts here
and there, employment laws across Canada
are not substantially different from the
time when people used a quill and ink to
work. And all the changes that an iPhone
or a laptop imply? "e legislation's not
keeping up with the reality."
One province, however, is trying to do
something about it: Ontario. Last sum-
mer, as part of its Changing Workplaces
Review, the province's Ministry of Labour
released an interim report on how it could
modernize the workplace. e report
ommend changes to the Employment Stan-
dards Act, which covers non-unionized
employee rights, and the Labour Relations
Act, which governs unionized employees
— the first such review in over a generation.
In late July, special advisors Michael
Mitchell and John Murray — aer 12 days
of hearings and 300 written submissions
— issued an interim review. While only
the final report (which is expected in the
new year) will contain recommendations,
some of the suggestions and observations
in the initial review are already causing
some business people and their legal coun-
sel conniptions.
Acknowledging in the introduction that
the existing legal framework was designed
largely for an economy "dominated by large
fixed-location worksites, where the work
was male-dominated and blue-collar, espe-
cially in manufacturing," the report notes
that today's landscape is vastly different.
Technology has changed everything.
Computers and the internet paved the way
for just-in-time delivery systems, robot-
ics, 3-D manufacturing, movie streaming,
bar-code scanning systems and the new
so called "sharing economy," manifested
by such companies as Uber and Airbnb.
While Ontario's once mighty manufactur-
ing sector has been severely weakened, the
service sector has grown — along with the
kind of employment that, the report states,
is the sweet spot for low-wage, temporary
jobs, "many of them unstable with little or
no security, and mostly without benefits."
e advisors said aer the first round
of consultations that they heard again and
again this "significant and growing" part of
the workforce includes "a disproportionate
number of women, racial and ethnic min-
orities, immigrants and youth" working
mainly in areas such as food services, home
care, child care and custodial services, as
well as agriculture and temp agencies. e
review notes there is a greater degree of
"social isolation" in this vulnerable popula-
tion and "a disproportionately high level of
mental health issues … as well as a deteri-
oration in their overall physical health."
So what does the province have in mind?
No one will know for sure until recom-
mendations are released, but observations
like this have management-side lawyers
concerned about what the advisors are go-
ing to recommend — and what Ontario's
makes a number of provocative sugges-
tions, and uses politically charged language
to describe inequities and social issues that,
until now, had been considered part and
parcel with contract work.
Formal recommendations are not yet on
the table, but even the thought of expand-
ing entitlements for non-employees has
sounded the alarms for businesses — not
only in Ontario, but across the country. Be-
cause if sweeping new labour laws do take
hold in Canada's most populous province,
how long can it really be before other legis-
latures start to take a look?
INEQUITY MANDATE
Ontario's decision to tackle its antiquated
employment regime, which dates back to
the mid-1880s (with occasional revisions)
can be traced to July 3, 2014, when then
Ontario Lieutenant Governor David On-
ley rose to his feet to make the new Liberal
government's speech from the throne.
Onley said a changing economy means a
changing workplace, and announced that
the new government would be consult-
ing with Ontarians "in the context of our
labour and employment law regime." Any-
one who assumed this meant a mere tweak-
ing was disabused of that notion when, in
her mandate letter to Labour Minister
Kevin Flynn, Premier Kathleen Wynne
wrote that "leading a review of Ontario's
system of employment and labour stan-
dards" would be his top priority.
She instructed Flynn to consider reforms
that reflect the realities of the modern
economy, "such as the rise of non-standard
employment and the reduction in the prev-
alence of employer benefits and training."
Two independent special advisors were
appointed to lead consultations and to rec-
KARINE DION
NELLIGAN O'BRIEN PAYNE LLP
"IT WOULD BE hard to argue that
a company with 200 contract workers
doesn't have employees. … [When these
contractors are let go], they have no
income, and they have no job. They are
the least financially equipped to mount
a legal challenge. The system's unfair."
