A long-awaited interim report that will help inform the upcoming modernization of Ontario's antiquated labour laws has pointed out flaws in the current state of affairs — and has drawn preliminary mixed reviews from labour and employer groups.

On Wednesday, the labour ministry published its 300-page interim report on the Changing Workplaces Review, following consultations with stakeholders last year. The veritable tome is the first tangible step in rewriting the decades-old labour laws, including the Labour Relations Act (1995), which governs certification of unions, rules for negotiating a collective agreement and the right to strike, and the Employment Standards Act (2000), which outlines basic job conditions like hours of work, minimum wage, holidays and vacation leave.

While no recommendations were made by the government's special advisers explicitly, their report does reach some conclusions on current labour laws, and highlights some possible routes for remedy. To wit, that's about 50 issues and more than 225 options on how to address them. Among the preliminary findings was a "serious problem" with the enforcement of the Employment Standards Act. Of the complaints that were proactively investigated between 2011 and 2014, the ministry found ESA violations about 75 to 77 per cent of the time.

“While most employers likely comply, or try to comply, with the ESA, we conclude that there are too many people in too many workplaces who do not receive their basic rights,” the report reads.

There are also 85-plus exemptions and special rules under the Employment Standards Act, effectively allowing some employers to get away with not paying employees a minimum wage or overtime pay. Most of the exemptions apply to industries with vulnerable workers in precarious jobs – for instance, the report estimated only 29 per cent of low income employees are fully covered by the province’s overtime provisions, compared to 70 per cent of middle and higher income employees. While the report does not call for the wholesale elimination of all exemptions “without further careful review,” it does say they should be subject to scrutiny.

"Some exemptions are decades-old and have been present in some form since 1944. Many were introduced ad hoc over the years, largely as a result of lobbying by stakeholders in opaque processes and with no or little significant employee involvement ... We accept that a standard in the act could be modified or amended in particular sectors without sacrificing fairness or the legitimate interests of employees where there are compelling reasons for differential treatment," it noted.

The interim report was lauded by labour unions, which have long demanded action to address the changing nature of the workforce, especially precarious work. The Ontario Federation of Labour, which made submissions for the review, said the interim report was a “once in a generation” opportunity and should be a springboard for government to make meaningful employment law reforms.

“Workers and their families need greater stability — in job status and working conditions, scheduling, hours worked, and pay, as well as the meaningful ability to join a union and exercise their rights to collective bargaining," Chris Buckley, the OFL’s president, said in a statement.

Unifor president Jerry Dias said that, if implemented, the report's solutions "would be a historic step towards ending the race to the bottom." The United Food and Commercial Workers (UFCW), another union that provided feedback on the interim report, said it would like to see the card-check certification extended to make it easier for employees in all sectors to unionize, as well as “sectoral bargaining” in the retail and service industries, which would pattern wages.

"The workplace has changed tremendously over the last generation. The labour laws need to catch up to ensure that all workers have the fairness and protection they deserve,” added Paul Meinema, national president of UFCW.

On the other hand, employers are less optimistic, warning the report contains options that could hurt businesses and employees, and could spell rising costs for consumers. Instead, they say the government should conduct a cost-benefit analysis and a demonstrated-need test to assess the impact of the review.

“[If]the government fails to take an open, inclusive, and evidence-based approach to studying these proposals, it will compromise the ability of Ontario's labour force to take part in flexible workplaces that accommodate workers' individual needs and the demands of the global economy,” said a statement from Keep Ontario Working, an umbrella group that includes the Ontario Chamber of Commerce among others.

One concern cited by the group is that changing the exemption rules for certain sectors would "ignore the unique needs of important industries like agriculture and information technology when it comes to flexible scheduling and compensation."

Labour Minister Kevin Flynn said he is hoping to balance both interests.

“Some of the changes seem fairly sensible ... Will every change that’s suggested take place? Probably not. I think it would be unrealistic for one side to think we wouldn’t do anything at all, that the status quo was fine. It would also be unrealistic to make every single change," Flynn told QP Briefing.

Flynn added that most of Ontario employers follow the law, and most of those who appear to flout their obligations do so unknowingly, but a small number of "bad" employers must be held accountable - and tweaking legislation might be one route to better enforcement.

"My job is to get after the bad guys, and I'm prepared to do that. I'm looking forward to some recommendations that are going to suggest what are the better ways of doing that," he added.

The two special advisers tasked with modernizing Ontario’s labour laws – C. Michael Mitchell (formerly of Sack Goldblatt Mitchell) and John C. Murray (a former Ontario Superior Court justice), have asked for feedback on the paid emergency leave issue by Aug. 31, with overall submissions due Oct. 14. The final report, with formal recommendations, is expected by the end of this year or early next.

Labour laws face scrutiny in interim Changing Workplaces Review report

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