Commission Research

Does One Size Fit All? Employment Standards and Special Treatment

Prepared by Ron Saunders

Executive Summary

Minimum standards of employment play an important role in economic and social policy in Canada. They set a floor for terms of employment in such areas as minimum wages, rules regarding overtime pay, the provision of paid vacations and public holidays, and job protection for employees who take maternity or parental leave.

However, employers differ in the nature of their work processes and the demands of their customers, and employees have differing needs and wants with respect to terms of employment depending on, for example, the demands on their time for care-giving and the presence of other earners in the household. Can minimum standards be set for all in a way that appropriately accommodates this diversity? To what extent should employment standards laws allow for exceptions or special treatment?

There are many examples of special treatment in employment standards laws in Canada, especially in the area of hours of work and overtime rules. However, there are fewer general exclusions and special treatment provisions under the Canada Labour Code than in the three provincial jurisdictions examined. In some cases, employees' consent is required to depart from the standard, but the issue of consent is not dealt with consistently either across Canadian jurisdictions, or within the Canada Labour Code.

The two Conventions of the International Labour Organization that deal with hours of work provide a lot of room for "flexibility," based on such factors as continuous operation, emergencies, difficulty of monitoring hours, managerial status, or simply the pressure of work.

The published literature on the issue of uniformity versus special treatment in employment standards seems thin, yet there are fundamental disagreements within it. Some favour a "cafeteria" approach to workplace standards, based on the diverse needs of both employers and employees in a changing labour market. Others see a continued need for standards that are generally applied, with few exceptions (but recognizing that there are circumstances where special treatment is needed).

To supplement the literature review, interviews about special treatment under employment standards laws were conducted with government officials in several Canadian jurisdictions. Questions were asked about the historical rationale for existing measures as well as the criteria used to assess new questions for exemptions or variation from the general standards.

Interviewees agree that special treatment is warranted when the nature of the work is such that applying the standard would undermine the feasibility of doing the work at all to a reasonable standard of quality. For example, with respect to hours of work limits, technical aspects of the work process may make it necessary to continue a process to completion with the same person, and the start or end time of such processes may be unpredictable. Special treatment is also warranted when the employer cannot control the working conditions related to the standard.

Those interviewed disagree about whether competitiveness arguments are a valid reason for special treatment and about whether bargaining power should be considered. Some take the view that employees with a great deal of bargaining power do not need protection. Others argue that employment standards represent basic rights that should be in place for all, that individuals or groups with bargaining power may still be vulnerable to coercion, and that standards should not be traded off, as each one is a minimum standard.

Some interviewees pointed to the importance of transparency in the rules and administrative decision-making regarding special treatment, as well as to the need for a periodic review of exemptions and variations from the basic standards.

In light of the sparse literature on exceptionality in employment standards and the differing views about principles, it is difficult to put forward specific recommendations with confidence. The analysis suggests that broadly applicable employment standards continue to be an important instrument of worker protection, but that there are circumstances where the flexibility to depart from the standard is warranted. Some of the most compelling considerations are as follows:

• Is the nature of the work such that it is not viable if the standard were rigidly applied?
• Can employers monitor or control the aspects of the work governed by the standard?
• Have employees been consulted?
• Is the exceptional treatment confined to provisions where the rationale applies?
• Are there health and safety issues at stake?
• Has the special treatment been in place for a long time? (If so, even if the special treatment is no longer justified, it should be removed only gradually, as the parties will have, obeying the law, constructed their employment relationship around it.)

In addition, it seems clear that most governments in Canada could do more to secure compliance with employment standards laws. If employment standards are designed to be broadly applied, there must be widespread compliance with them.

Finally, whatever rules are chosen to guide decision-making around special treatment, they should be easily accessible to all employers and employees, and decisions around the granting of permits should be made public.

Acknowledgements

I would like to thank Andrew Stoutley for assisting with the research and compiling the table on special treatment provisions in selected Canadian jurisdictions. I also thank the government officials who participated in the interviews and those who provided comments on a draft of this report. Any remaining errors are the responsibility of the author.