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4.1 Approaches to Stakeholder AssessmentsApproximately 55 interviews were completed with stakeholders and professionals associated with labour-market policies and labour standards. The purpose of the interviews was to provide the evaluation with qualitative information complementing the literature review and adding to understanding over and above the information that was collected through surveys and other study activities.9 The Canadian stakeholders selected for interviews ranged across the federal/provincial labour-market scene, including HRDC managers, provincial/territorial labour standards officials, other labour standards experts, employers, union representatives, and representatives of First Nations. A number of public officials associated with labour standards in the United States, Western Europe, and Australia were also interviewed for their views on the evolution of standards in their own jurisdictions. Interviews by telephone or in person were conducted with nine provincial/territorial members of the Labour Standards Committee of the Canadian Association of Administrators of Labour Legislation (CAALL), nine representatives of Canadian trade unions; nine public officials responsible for labour standards in the United States, Europe and Australia; eight officers of First Nations Bands, Councils and Aboriginal businesses; seven officials of federal-government departments and agencies (regarding methods of obtaining compliance with regulations); three members of the Labour Standards Client Consultation Committee, plus three additional representatives of federally regulated businesses; and six Labour Affairs Officers (LAOs) and Technical Advisors (TAs) in various regions of Canada. This section focuses on the results of interviews with employer and union representatives, with some information from interviews with government officials. Most other interview results are reported in Sections 6-9. International results are reported mainly in Section 6.10 The focus of the stakeholder interviews was on labour standards and how they could work in light of the changes occurring in the CWW. Added emphasis was placed on the key study issues — quality of the workplace, life-long learning, security and harassment, and balancing work and family responsibilities. Overview: An important theme which resonates from the interviews is the recognition that the context in which labour standards operate has changed dramatically in a very few recent years and that labour standards have fallen far behind changes in the labour market. For example, many representatives of Canadian unions whom we interviewed felt they were excluded from influencing much of what is happening today. This concern is reflected both in the changing workplace (which they feel has cut into not only their traditional employee/union support base but also their access to sympathetic governments). However, it should be underscored that unions are generally in favour of labour standards legislation and enforcement.11 Section 5 will deal more directly with the views and suggestions of employers and employees, with some cross-references to the views of other groups. Once again, it is useful to juxtapose some of the major conclusions from the stakeholder summaries with the information gleaned from the survey material, as will be illustrated in the next section. 4.2 Non-Standard Work and Labour StandardsThere was a consensus among virtually all of those interviewed that the expansion of nonstandard work was the paramount challenge for labour standards effectiveness and enforcement. While recognizing the importance of maintaining some minimum standards, private-sector stakeholders generally favoured hands-off/minimal regulation and interference. In contrast, representatives of organized labour favoured heavier government involvement in regulating the CWW. Government officials were very preoccupied with the question of how to make labour standards more relevant to the CWW and how to do so in a way that is not detrimental to competitiveness or job creation. Unions felt that the CWW, together with NSW, was a threat to the broad progress that unions have achieved in the past. Unions see the separation of the real employer from the people doing the work as a monumental change in the world of work and a key challenge to their effectiveness and for labour standards. That is, unions in general felt more comfortable when the interface between management and labour was more direct —rather than through the somewhat less direct interface which now occurs because of the separation of head offices from branch operations and the greater distance between the CEO (who makes ultimate decisions) and the plant worker. One union official described the CWW and NSW as separating the employer from the employee and therefore resulting in decreased power of employees. Union representatives were also concerned that the disappearance of traditional (permanent full-time) work and the trend towards contracting out have been stripping away workers' past gains in pay, benefits, and working conditions. Union officials who were interviewed were critical of governments, which they believe have helped to encourage this perceived adverse direction by allowing labour standards to become disconnected from these workplace changes. At-home working and contracting out in the garment trade (generally in the provincial sector) are generally seen as an example where labour standards have fallen behind, in terms both of working conditions and of such issues as the employment of child labour and workplace health and safety concerns. Unions also blame themselves for not paying enough attention to the importance of labour standards as a social-policy tool. CAALL committee members were not quite as fearful of the current direction as other stakeholders, though there were a number of frank concerns expressed about the difficulty of eliciting co-operation and compliance with standards because of government cutbacks and changes in government priorities. There was general recognition that enforcement, education, and compliance are far more difficult in the 1990s than they were in the 1970s and 1980s. A number of provincial respondents indicated that their governments were reviewing regulations in light of the changes going on. There was also a consensus among CAALL officials that the effectiveness of labour standards has been eroded by the CWW and the rapid growth of NSW. Nevertheless, the practical need for labour standards remained intact in their view. That is, the erosion of effectiveness was not seen as reducing the need for minimum standards to protect the workers falling behind. CAALL officials were virtually all in favour of looking for alternative levers to improve effectiveness, including a heavy interest in improving the flow of labour standards information to employers and employees. 4.3 Improving Life-Long LearningThere was general agreement among labour and management stakeholders with respect to the importance of life-long learning (i.e., training and education). However, in practice it has proven very difficult to interest employers in the general objective of life-long learning and training. Funding and incentives are universally seen to be problems, and government moneys are generally seen to be the solution. There was mixed support for entrenching life-long learning in labour standards legislation. The union position is very much tied to benefits for their members in general. Union stakeholders place a great emphasis upon the need for public and private investment in employee training. The core of this union position was articulated throughout our interviews. The basic belief is that the good jobs of the future will require high levels of formal-education qualifications and/or vocational training. As one union official expressed the view — without constant training, non-skilled, routine jobs in the trade sector of the economy will be lost to foreign competition, automated out of existence, or will pay very low wages. Unions see a kind of supply-side justification for public and private investment in training and upgrading of the workforce. They also see this as generating stronger economic growth and higher wages and salaries over time. For example, most experts see the need for public-sector investment in training because of the tendency of most firms to underinvest in training. (See OECD, The Future of Work: Towards Jobless Employment, November 12, 1995). It follows that even in an internationally competitive global market, those countries which best develop their human resources will be in a preferred position for attracting the good jobs created by highly mobile transnational companies. Thus, labour standards are seen as having the potential in this area to support international competitiveness. Representatives of the employers interviewed also accepted the competitiveness case for a highly trained and literate workforce. However, differences which emerge with the union position can be traced to the following:
In sum, employer representatives shared union assessments of the importance of training but were hesitant about the best ways to achieve these goals. These findings pointed towards a need for a more detailed examination of worker attitudes, as are examined (along with views of employers) in Section 5. 4.4 Minimum Protections for Non-Standard WorkersGenerally, management representatives interviewed were not keen on extending the reach of labour standards in new directions, such as protecting non-standard workers. Large firms which had sophisticated human-resource policies and managers were more understanding of the role of the Code in providing minimum standards in the regular workplace but were worried about the possible extension of the Code in a biased way into the at-home-work area. A number of the larger financial firms indicated that most at-home-work situations were voluntary and that the companies were simply accommodating their employees. In terms of the issue of how the Code impedes adapting to CWW and NSW, for example, one bank official observed that the bank was having difficulty in coping with employees' requests for compressed and/or modified workweeks while meeting the daily overtime requirements of the Code. The bank felt that it required more flexibility to meet employee requests and that labour standards should accommodate working arrangements mutually agreed on between employers and employees. Once again, there seems to be a high-technology story which is somewhat different. For high-technology firms, the issue of labour standards is almost a non-issue. One firm observed that telecommuting is the wave of the future, and the company sees the telecommuting program as the key to worker satisfaction and to attracting talent when talent is scarce. Union representatives interviewed offered a number of interesting suggestions on this subject. They noted, for example, that labour standards legislation should guarantee prorated benefits, not penalize part-time workers. This is consistent with an European Union Directive that stipulates that part-time workers cannot be treated less favourably than full-time workers. Who is an employee and who is a genuine independent contractor? Some employers are trying to get around legislated standards by classifying all of their subcontractors (who are employees in real terms) as independent contractors. One union interviewee suggested that a dependent contractor (employee) who works for a single employer should be redefined and covered for basic protection under employment standards as a "vulnerable contractor." In essence, it was argued that this dependent contractor would/should be provided with the same set of rights as a regular employee. Nevertheless, Revenue Canada might still consider these individuals as self-employed.12 On the subject of worker definition, one provincial official felt strongly that departments and agencies of all jurisdictions with an interest and influence in this area — provincial, federal, etc. — should come together to agree on standard and consistent definitions and concepts.13 In closing this section, it should be underscored once more that the views of government officials interviewed emphasized that the issues of dependent contractors and part-time workers should be addressed in any future changes to the Code. Government officials also were concerned about the difficulties with widening the application of the Code to nonstandard workers.14 While unions in general were in favour of widening the Code in this direction, management stakeholders were generally unwilling to see an expansion of the Code to non-standard workers. In this regard, as will be seen in Section 5, the views on NSW by employers and employees from the survey will also prove helpful, particularly in illustrating the diversity of the management position. 4.5 Eliminating Harassment in the WorkplaceMost stakeholders (whether employer, labour, government, domestic, or international) seemed to regard harassment (sexual or otherwise) as being addressed (and apparently better addressed) by legislation outside labour standards regulations — e.g., through human rights or OSH legislation or (in Britain under the definition of "bullying" and in Saskatchewan if the matter is hard to prove) in the courts as a civil action for damages. Even the European Union appears unable to reach any consensus on how to address sexual harassment in the workplace, and the matter is currently left to the discretion of member states. Yukon and Saskatchewan officials reported that they have reduced employer-instigated harassment (designed to force an employee to quit and thus avoid the regulatory complexities of dismissal) by instituting a "constructive dismissal" arrangement for payment in lieu of notice. In a related vein, Nova Scotia is working on amendments to its OSH legislation to cover workplace violence and threats of violence. Additionally, one large employer (a major bank) saw a need for "the respectful workplace" and developed a half-day "Respect in the Workplace" program for all its employees/managers.15 Another large employer expressed concerns about harassment but once again emphasized the existing protections which fall under human rights legislation. There was general recognition among large employers that sexual/racial/ethnic harassment problems might be minimized by better training of managers. Most firms indicated an awareness that sexual/racial/ethnic harassment problems might be minimized by better training of managers. To the degree that there was a separation in terms of attitudes to harassment between business and labour, one can roughly draw out the following: Sexual harassment was unacceptable to all. Moreover, the problem, when it exists, might not simply be viewed as a management/worker problem. So unions and management were roughly in tune on this issue. The issue of workplace harassment and stress related to the workplace elicited somewhat different responses. To some extent management viewed the stresses of the workplace as normal and not confined to employees only. The hours-of-work issue and to some extent the flexibility and leave situations cause stress to both managers and employers. However, many managers came up the ladder of working extremely long hours; in other words, it has become the norm for a manager to accept long hours as a reasonable entry fee to pay for promotion and higher pay. Some union representatives saw this as a "culture of work" issue. The new culture of work endorses long hours, regularized overtime, and they know that their own members are often feeling so insecure that they will likely not refuse overtime work when it is offered. Union representatives worry that the new culture of work (which they associate with the CWW) places too much stress on their members. Stress shows up in poorer health and poorer family relationships. It was felt that women seem to find the hours-related stress problems even more severe than men. The increase in female labour-force participation, together with the aging of the population and the increase in single-parent families, has resulted in significantly heavier stress in recent years. Overall, these results were most interesting in highlighting the importance of training as a partial remedy to combat harassment, and thus a potential strategy for the Part III program. 4.6 Improving the Quality of Family LifeUnion representatives expressed considerable concern with improving the way in which family life and work are harmonized. Unions are strongly in favour of entrenching in the Code improvements with respect to hours of work and family-related leaves. Unions, it appears, worry about the impact on family life of extended, long-hour shifts and 24-hour operations. They feel that governments should educate employers to see the social costs of some of their practices. Employers desire more flexibility in the enforcement of labour standards and see this as the direction to move in. Employers see flexible schedules as adapting to family needs but generally want to control the type of flexibility obtained. Several employers suggested that the lower pay and benefits awarded to part-time workers will change over time as the economy becomes even stronger and overall unemployment falls. In other words, it was felt that the self-corrective mechanism to this problem is already under way. Employees, in contrast, emphasize the need for additional voluntary choice in terms of hours of work. The case of the small-business employer was made very strongly in some of the interviews. That is, many small businesses are family concerns, and the longer working hours worked by family members may be voluntary.16 4.7 At-Home Work and Labour StandardsSome stakeholders felt that labour standards officials in the provincial sectors had more experience dealing with the at-home-work issue than their federal counterparts. As well, it was felt that the provincial/territorial experience might provide important insights to the federal government in its own jurisdiction. The union perspective is that labour standards support for at-home workers today is minimal, since it is so difficult to separate the work from the family environment. Workplaces in homes are not always conducive to health and safety goals, and there is also the isolation factor which may not be healthy. One large bank which encourages and/or accommodates at-home-work arrangements has developed a set of safety/security checks, including smoke detectors and fire alarms for their employees working at home. The bank has also developed a method for documenting working time, though time monitoring is judged more on the basis of results than spot checks. In other words, it is recognized that working time is more difficult to monitor away from the work site, which is why there is the emphasis on output and results. Companies also worry about the impact on productivity of the shift towards at-home work and away from the main office. Some of the company stakeholders see at-home work "as critical to making employees happy, to saving increasingly scarce office space, and to attracting new, highly qualified professionals." An article in the Globe and Mail ("Nortel Leaves Employees at Home," May 27, 1998, p. B27), for example, indicated that Nortel, which carried out its own survey of employees working at home, found that on average their at-home employees said that they were about 26 percent more productive than before, while their managers indicated that their at-home workers (in telecommunications work) were about 16 percent more productive. The Canadian, United States, and European government officials who were interviewed commented on the jurisdictional confusions in labour standards created by at-home workers and teleworkers. For example, a Manitoba-based firm wants to develop a telephone call centre for a New York-based head office company. If the Manitoba employee has a grievance on a labour standards issue, where is a claim filed? Where is the proper jurisdiction when the actual employer is located in the United States? Some government officials also commented on the inability to monitor minimum standards for at-home workers. There was a general sense that labour standards objectives were probably being realized better by larger employers who rely on at-home workers, than by smaller firms. The issue of exploitation was raised, often in the context of new immigrants and particularly in relation to the garment trade. Several suggestions arose among some government officials, including better monitoring of the total number of workers involved in at-home work and identifying the benefits paid to these workers. It was generally felt by the officials interviewed that the reporting on the characteristics of at-home workers was insufficient for public-policy purposes. 4.8 Dependent Contractors and Labour StandardsUnion representatives mentioned that the tendering and retendering of contracts result in employment insecurity (e.g., janitorial services) and has created many dependent-contractor situations. Unions are definitely in favour of using the standards approach (or any other measures which would work) to provide some minimum protection for dependent contractors. Indeed, this theme, first raised in the literature review, arises throughout this report. Unions desire to establish relevant subsector councils or groupings, for example, under employment-standards legislation. Their idea is that within a sector arrangement a core bundle of minimum standards could be provided. They see weaving dependent contractors in under this kind of mechanism. Employers resist this direction because they believe that it could spur increased unionization (or some equivalent) and consequently a loss of competitiveness and flexibility in their operations. Employers believe that broadly based policies are needed to encourage vigorous firms in the private sector. That is, they feel public policy should remove regulations and practices that impede entrepreneurship and competitiveness. They see the dependent contractor as the "entrepreneur in waiting." They also acknowledge a cost saving in terms of this new direction. Consequently, they are not keen to see labour standards move in the direction of expanding minimum standards for dependent contractors. Most government officials interviewed were sympathetic to the need to provide new protections for dependent contractors. The issue of how to do this in a practical way continually surfaced. Several options were raised, but the key concept which surfaced often was the notion that a dependent contractor should have the same minimum rights as a regular employee. On the practical side, some jurisdictions mentioned the difficulty in deriving from the firms an accurate picture on the number of dependent contractors. Several CAALL officials observed that there was considerable abuse of workers' rights in the CWW. Definition itself appeared to be a key part of the problem: there was a general sense that an employee was defined rather adequately in most jurisdictions, but the same did not hold for the dependent contractor. In New York State, for example, the law does not define a dependent contractor; however, court decisions have held that the common-law tests of master and servant are to be applied in determining whether services rendered by an individual are in the capacity of an employee or an independent contractor. 4.9 Role of Unions in Compliance with Labour StandardsIt is widely accepted that unions play an important role in enforcing labour standards. But it also stands to reason that their role in labour markets is influenced by the size of their membership. Structural shifts in industrial employment partly explain the decline in unionization which seems to be occurring in the private sector. Unions are trying to organize in non-traditional areas — however, with varying degrees of success. Unions see their membership coverage as the key and obviously desire to expand their focus to expand their membership in the CWW.17 Unions see sectoral bargaining as the wave of the future for dealing with some of the issues embedded in the CWW. Unionized employers fear unfair competition from non-union firms, and thus unions are trying to sell unionized firms on the idea of establishing a minimum-standards "floor" for each sector. This stance could be useful for reforms of labour standards. In particular, if unions' strategies are affected by the CWW, does this mean that compliance and enforcement of labour standards will or should change to correspond? Employers tend to see the world of work quite differently than the unions, which also affects their views on the interface of unionization and labour standards. This theme resonated from the interviews and is also a key aspect of the literature review. Employers are gripped by the structural trends associated with heightened competition —globalization, technological change and organizational change. These firms see themselves as caught up with these trends (i.e., CWW) and view unions as impediments to flexible competition. While acknowledging that unions help to maintain labour standards, larger employers observe that meeting labour standards is not an issue in their workplaces. Their actual practices usually exceed the minimum which exist (i.e., vacations, minimum wages, etc.). Thus, the role of unions in labour standards may be in flux, at a time when new objectives and strategies may be developed for the Part III program. 4.10 Alternative Mechanisms for Achieving Part III ObjectivesThe general assessment of virtually all of the stakeholders contacted was that employment standards were extremely important for maintaining minimum standards. Differences emerged, however, where employers expressed the need for flexibility to devise their own methods of meeting the minimum standards — and many of the government officials interviewed wished to see that kind of flexibility. Labour unions tended to emphasize the importance of relying on standards and enforcement, rather than voluntarism or new methods. Employers, stressing the need for flexibility, were more willing to consider other vehicles aside from labour standards — e.g., human rights tribunals, tax incentives, etc. Thus, the corporate sector seeks much more emphasis on voluntarism and prefers that the labour standards become guidelines, rather than regulations. In the same vein, the corporate sector desires that the legislation and regulations be as simple as possible and clearly transparent. One interesting idea proposed by a bank official outlined a need for a true partnership approach among government, business, and workers to develop and adapt best practices as guidelines for corporate behaviour, rather than regulations alone. The same official observed that the Labour Program might want to consider the introduction of alternative dispute-resolution (ADR) methods to deal with complaints such as unjust dismissals.18 Consistent with the priority placed on encouraging alternatives to classic "enforcement," there was a tendency among the CAALL officials interviewed to stress the priority of education and communications over enforcement. This direction was seen to be more cost-efficient and more efficient for achieving the objectives of labour standards. Other innovations were also suggested.19(See Appendix C.3.) In sum, both unions and employers have labour standards-related concerns that extend beyond labour standards, which affect their approach to labour standards greatly. In effect, unions desire to see the scope of labour standards change and catch up with the CWW. But they do not see labour standards as the complete answer to this problem. In their view, there are positive features of labour standards regulation with respect to accommodating technological change and globalization. They see the problem facing workers as many-sided — an unemployment-rate problem, an income-security problem, and more generally reflecting a lack of worker power in the workplace. The adoption of a union-friendly approach to work arrangements relies heavily on a supportive public-policy context. Consequently, unions tend to emphasize broader policies — full employment, strong social programs, and of course wage determination though collective bargaining. They seem unready to consider alternative mechanisms and want the expansion of labour standards to cover non-standard workers. Employers tended to stress the level-playing-field argument on a global basis. They point out that Canada's most important competitors reside in the United States, not Europe, and in the United States labour standards are not being reviewed from the perspective of decreasing company flexibility. These firms reject the European model, with its emphasis on employment security, and its limited ability to lay off workers. 4.11 Concluding Comments on Stakeholder ViewsThere is a clear consensus among the government officials interviewed that most employer violations spring from lack of awareness, rather than deliberate flouting of labour standards. This explains why there is such a heavy provincial emphasis on information and education to ensure compliance with standards legislation. There is also a clear suggestion that employees (including unionized workers) are often quite unaware of their rights under the Code — and apparently some (notably in areas of high unemployment) even enter into impermissible agreements (regarding non-payment of overtime, etc.) with employers in order to retain their jobs or to retain workplace harmony. Reflecting these concerns, many jurisdictions have identified vulnerable employees through risk assessment techniques and have devised new forms of communicating with vulnerable employees. Employers continue to view labour standards as more of a burden than a benefit in an environment requiring adapting flexibility to the CWW and competitive pressures.20 At the same time, the current environment has made organized labour very insecure in terms of not being able to deliver to their traditional constituency significant wage and benefit gains or arrest the trend towards contracting out and downsizing of jobs. Consequently, unions' interest in protecting the concept of labour standards is even higher today than in the past, while exact approaches may be unclear because of the rapid rate of change in the CWW. At the same time, certain common concerns can be found among employer and union stakeholders (as will be illustrated in our survey results in the next section). These findings suggest good potential value in synthesizing employer and worker/union views to identify areas which could be developed jointly by employers and workers/unions. Quotes from the Surveys
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