Canadian Federal Labour Standards Review - Submission: Canadian Auto Workers (CAW-Canada)

The CAW-Canada welcomes the opportunity to provide the Federal Labour Standards Review Commission with its comments concerning possible amendments to Part III of the Canada Labour Code.

We understand that Part III deals with basic standards for minimum wages, hours of work, vacations, leaves, severance, etc. We will address these in our submission. However this does not diminish our concern with related reforms that are needed in other parts of the Code, a matter we will also raise.

The CAW is Canadas largest private sector union, representing over 260,000 members in more than 2,100 workplaces across the country. We have experience with provincial employment standards as well as the federal code.

Some 30,000 federal sector workers are represented by the CAW. This includes about 13,000 airline and air transportation workers, 11,000 rail workers, 4,000 road transportation workers and 2,000 marine workers. Many work for large private sector employers like Air Canada and CN Rail. Others work for smaller enterprises such as inter-provincial school bus companies. Approximately 42% of these members are women.

The CAW-Canada believes that a strong, enforceable floor of employment rights plays a critical role in ensuring a basic level of decent employment practices in this country. Employment standards set out norms in respect of certain aspects of the employment relationship that we, as a society, believe should be removed from market pressures. They prohibit work practices that simply should not form part of our economy and set out a number of legal obligations to employees that all employers share in common. While we agree that such standards cannot be established entirely without reference to market realities, we nevertheless urge the Commission to consider that they in significant measure reflect an important social choice.

Recognized in Europe as the social dimension of employment regulation, the development of such standards determines in large measure what we as a society consider the minimum level of dignity that workers should be able to expect in the employment relationship.

For this reason, the CAW-Canada believes that market pressures placed upon todays workplace practices by increased international competition and globalization make a basic floor of employment standards all the more relevant and important. These factors are reasons why the Commission should recommend strengthening and extending, rather than limiting, the scope of statutory employment protections for Canadian workers. If globalization suggests anything, it suggests the need for a statute with the capacity to reach across the country and set new minimum standards for the workplaces of tomorrow and inspire provinces and territories to do the same.

Canadas road to success in the global marketplace should not and, indeed, cannot be achieved by compromising such standards as have already been achieved by subjecting them to the downward pressures of international competition. Strong employment standard protection must be in place in order to ensure that Canadian employers not be permitted to compete on this basis. By eliminating these labour conditions as factors in the competitive equation, employers in Canada will compete instead on the basis of enhancements to the productivity of their workforce through capital investment, training and skills upgrading, research and development, as well as technological advances.

In addition to global competition, the Minister of Labour listed other dramatic labour market developments when first announcing this Commission. All have occurred in the forty years since the Code was introduced in 1965. Among them:

We believe all these developments point to the need for a modernization of the Code that takes account of both the tremendous pressures to diminish working conditions and the unequal balance of power in the workplace.

As a labour union representing 30,000 employees in the federal sector, we consider it important that the Commission also bear in mind that employment standards are important both to the union and to the employees we represent. Employment standards, we believe, are important not only for employees considered particularly vulnerable to the pressures of the market place, but to all employees working in Canada, including workers whose employment relationships are subject to collective agreements.

Workers everywhere organized and unorganized alike - are dealing with the grim consequences of intensified economic competition, contracting out, offshore outsourcing, privatization, deregulation and corporate restructuring.

Every day there is fresh evidence that all workers are vulnerable at least some of the time.

This has been most painfully obvious in the airline industry where, at a number of turns, corporate restructuring and deregulation have threatened to make a mockery of some basic employment standards, as was the case while Air Canada was in CCAA bankruptcy protection.

These difficulties now extend throughout the federal jurisdiction, including the high profile lockout at the CBC where the employer has attempted to force more contract work, jeopardizing both the job security and income of the workforce. Likewise, in B.C. and Alberta the dispute at the Telus phone company centers on managements unilateral imposition of a contract that makes it easier to contract out jobs and replace full-time positions with temporary ones. As CAW President Buzz Hargrove stated in his Labour Day message:

How much more do big corporations want from working families?At a time of record profits and historically low new investment the latest salvos demonstrate that more and more employers in our ever changing economy no longer see the value in a loyal, long-term and stable workforce. This is a dangerous trend that if unchecked, will not only hurt the work standards of unionized workers, but will also drive down wages, benefits and work standards for the unorganized. The result will be an insecure, transient workforce which will be reluctant to make long-term commitments in terms of a mortgage, major household purchases and vehicles. The tax base is being eroded, meaning there is less money for schools, hospitals, roads and services. Everyone is going to pay the price for this short-term corporate thinking.

A basic mission of employment standards remains the provision of support to those workers whose economic and social position makes them particularly vulnerable. The Code is the only recourse for this group of workers. Strengthened standards, and their better promotion and enforcement, will ensure that the terms and conditions of employment for these workers do not fall below the improved minimums we believe are appropriate to this modern age. To do this we must also ensure that the Code captures all the new situations of work where people are in positions of substantial economic dependency. Employment standards prevent the race to the bottom in which there can be no winners.

The mission of employment standards also includes their important role in the organized workplace, particularly in the process of negotiating collective agreements. Except where an agreement may be silent on some matters covered by the Code, collective bargaining almost invariably results in collective agreements that provide a higher level of benefit than that which is provided by the Code. Nevertheless, the practice in collective bargaining is to consider the statutory standard as the starting point, or floor, for discussion. The removal of basic working conditions from the competitive equation serves to provide trade unions and employers with a foundation upon which collective bargaining can take place. Unions and employers can best fashion responses to the needs of a particular workplace when working within a strong legislative framework.

The maintenance and expansion of clear, coherent minimum standards therefore play an important role in the negotiation of collective agreements as well as the fostering of improved labour relations. We urge the Commission to recognize their importance in the collective bargaining context and to recommend their continued applicability and enforceability in the organized environment. We use the floor and we need to keep it. We also want to build upon it.

It should be remembered that the interplay between the collective bargaining of working conditions and the legislated setting of minimum standards has been a dynamic and constructive one over time. In the case of maternity leave, organized workers were the ones to pioneer the earliest provisions in their contracts, leading the way for legislators who eventually introduced it as a statutory minimum. But it is equally true that when public campaigns led to changes in the law and leaves were extended to adoptions and eventually parental leave of one year, many organized workers who had been unable to bargain these improvements in their contracts were able to benefit. The importance of this push-pull process in shaping good and now widely-supported social norms should not be underestimated.

It bears repeating that the labour movement has played an incredibly important role in raising the living standards of working people in this country and improving their working conditions, all of which provides broader social and economic benefits for our society. But we can only fulfill this role when legislation helps to maintain some semblance of a balance of power in the workplace.

It is therefore imperative that the labour relations and collective bargaining provisions in Part 1 of the Canada Labour Code, and related regulations and procedures, be strengthened to better protect the rights of working people to organize and negotiate a collective agreement with their employer. A complete ban on the use of strikebreakers during labour disputes is sorely needed, as well as expedited procedures for dealing with certifications and unfair labour practices which currently take many long months to resolve. In one such case, the recognition of our bargaining rights for a firm that moved 22 miles took 7 months at the Board. We need to shore up the process with new time limits.

Successor rights are another matter of concern, highlighted in the CAW campaign to defend the collective agreement and members rights at Worldwide Flight Services (see appendix). Similar concerns arise over transfers between jurisdictions, especially as automatic certification is not available in all. In the rail sector for example, deregulation and the prevalence of short lines allowed firms to escape to provincial jurisdiction where workers lost their collective agreement.

Discussion papers prepared for this commission have asked whether there are alternatives to the current command and control system. We think not. In fact we believe that it is wrong-headed to frame the debate as command and control. Our discussions should be framed around employment standards and their compliance and enforcement. If we recognize the larger economic and social dimensions of employment regulation, it seems self-evident that we need standards - and that we need effective compliance and enforcement measures. Employers may talk about challenging a command and control system, on up to the International Labour Organizations standard setting process, but it is a blinkered view of the role of standards.

It is a seductive idea that legislation need merely provide the framework and terms of engagement for workplace or enterprise-based standard setting and that a range of best practices will blossom. But there is no such nirvana. We would no longer have employment standards, only employment practices.

Even those workplaces that establish good practices are ultimately made vulnerable by the random outcomes of a workplace-by-workplace approach to standard setting. The competitive pressures that pervade our economy virtually guarantee that, absent an obligation in our employment standards, the lowest common denominator will win out in the long run.

This is as true for the non-profit and public service sector as it is for the for-profit and private sector. There have always been competitive pressures within the former, including the persistent demands from public sector employers wanting to introduce poorer private sector conditions through so-called average comparability of total compensation. In recent years the competitive pressures have accelerated with the ever-present threat of contracting out and the transformation of regular full-time jobs into contract positions. We need only think of the issues in dispute with the CBC lockout.

This review comes at a critical juncture. Full-time, stable jobs with good pay and decent working conditions are under increasing attack. New technologies are being used to eliminate regular full-time positions and to move to just-in-time scheduling, contract and part-time work, split shifts and other irregular hours. The government should be encouraged to move with all haste to implement changes that will help to improve incomes and working conditions and further, to strengthen the Canadian economy.

The Federal Labour Standards Review Commission has been charged with the singularly important responsibility of conducting this comprehensive review of Part III of the Canada Labour Code, proposing changes to existing provisions and recommending new ones. Our submission is intended to support you in this work and we trust the final report will serve the country well in the 21st century.

Chapter 1: The Case for a Federal Minimum Wage

In 1996 the federal government stopped setting a federal minimum wage and amended the Code to provide that the minimum wage for workers in the federal jurisdiction would be the general adult minimum wage in the province or territory where the work is performed (although an unused provision of the Code allows the Governor in Council to replace the minimum wage set by a province).

With this decision the federal government abandoned responsibility for setting a decent minimum wage for federal jurisdiction workers. It also walked away from its potential leadership role in convincing all jurisdictions to better shape the labour market conditions needed for a healthy Canadian economy.

On July 1, 1965 the federal government established the first ever minimum wage for federal jurisdiction workers. At $1.25 an hour it substantially exceeded all provincial and territorial rates. It exceeded the minimum wage of large provinces like B.C. and Ontario by 25%, and more in the case of others. One assumes it was argued that the sky would fall.

Federal jurisdiction workers were not alone in benefiting from the raised bar. Provinces faced pressures to follow suit and within 3 years the vast majority of workers in Canada were protected by a $1.25 an hour minimum wage.

The federal model of a single tier minimum wage had a similar positive influence. Within a few years the multi-tier rates that some provinces had maintained for non-urban and female adult workers were gone.

If the government found the political will to do the same thing today and announced a new federal minimum wage that exceeded the $8 rate in B.C. and Ontario (in 2007) by 25%, it would be setting a $10 minimum wage.

Recommendation 1.1

The government restore its responsibility for setting a minimum wage for federally-regulated industries and federal contracts, and immediately set a minimum wage of $10 an hour (indexed to growth in the average hourly wage), a fitting way to mark the 40th anniversary of that first influential federal minimum wage.

In making this recommendation, we echo the proposals of other national organizations like the Canadian Labour Congress and Campaign 2000 which focuses on child poverty and its links to the employment conditions of parents working for low wages in unstable employment. In its 2004 Report Card on Child Poverty in Canada, Campaign 2000 noted that the child poverty rate for female lone parent families had risen above 50% for the first time in three years. Their key recommendation for reducing both adult and child poverty was a call for federal leadership in raising the minimum wage to $10 an hour. In combination with other new measures that ensure adequate hours for those in part-time jobs who seek more hours and more security for those in temporary contracts, they argue a $10 minimum wage would make a serious contribution to the Make Poverty History campaign here at home.

A new $10 minimum would allow a single person living in a large city to escape poverty (based on the LICO pre-tax poverty measure). It would also take some pressure off our social programs which must inevitably fill the gap when the wage threshold is set too low. And it would ensure that people are paid decently for the work they perform. Employers should not be allowed to compete and gain advantage over each other on the basis of poverty wages. Responsible employers would welcome a wage floor which stops them from being undercut by more unscrupulous competitors.

Currently, a worker paid $8 an hour, the high end of provincial minimum wages, earns $16,640 annually (assuming full-time, steady work all year). How many of us can even imagine surviving on that amount. Something is clearly wrong with our minimum wage laws.

When some 85 economists and labour policy experts (including economist Arthur Donner, Roy Adams of the Degroote School of Business and Doug Peters, former chief economist at the Toronto Dominion Bank) signed onto a 2003 statement on minimum wages and income security in Ontario, they stated:

There is a common, but incorrect, assumption that higher minimum wages destroy low-wage jobs and increase unemployment among those they are most intended to help. Modern economic research has indicated, however, that the negative employment effects of minimum wages are negligible and can be overwhelmed by the positive impacts of minimum wages on labour force participation and consumer spending. In other words, it is more likely that higher minimum wages are associated with enhanced employment and income opportunities for low-wage workers.

Their statement goes on to point out that the minimum wage is important for protecting and improving the incomes of workers throughout the lower segments of the labour market, not just for those who are employed at the legal minimum and that the erosion of minimum wages can be linked to the polarization of income distribution and to the increasing incidence of poverty among employed workers, with insufficient numbers benefiting from ongoing economic growth. The views of these experts are consistent with the findings of the major 1998 OECD review of impact studies.

While poverty levels are a critically important factor in setting the appropriate level for a minimum wage rate, this is not to suggest that the issue is employers philanthropic practices. Rather, it is the social considerations that should shape the legal obligations that employers take on when they hire someone to do work for them.

Chapter 2: Working Time

1948 Universal Declaration of Human Rights: Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

These words have stood the test of time. When the General Assembly of the United Nations proclaimed the Universal Declaration of Human Rights in 1948, they directed governments to secure the universal and effective recognition and observance of these rights through progressive measures. The words still ring true because, although the world is much changed, we are still striving to deliver on that 57 year old promise.

The Canadian Auto Workers has been a long time leader in the struggle for reduced working time. The CAW was originally part of the United Auto Workers and the first constitution of the UAW (dated 1935) reads: (The worker) asks that hours of labour be progressively reduced in proportion as modern machinery increases his productivity. By the time of the first collective bargaining convention of the new CAW in the 1980s, the convention documents reflected a frustration that advance has been slow in terms of reducing the average week in spite of the liberating potentials of new technologies. The convention called for new employment standards to reduce annual hours. Every such convention since has identified work time as a priority issue. It is ironic that the current struggles over reduced work time should be happening at the same time as the use of modern technologies has accelerated, some unimagined thirty years ago when the first promises of a leisure dividend were being made to workers.

We know more than ever about the very real health and family risks attached to our culture of overwork and yet, as the OECD Employment Outlook 2003 report stated While there has been a century long trend towards a shorter work week, this historic trend has slowed in recent decades and appears to have stopped in a few countries.

We believe that it is time to put the issue of reduced work time back on the national agenda. We see twin objectives:

Most recently our membership recommitted to this comprehensive approach to work time at the CAW 2005 Collective Bargaining & Political Action Convention. As the convention documents state We will recommend that Canada cover new ground on working time including an improved system of overtime permits, stronger hours of work protections, improved paid holiday provisions, extended vacation entitlements, expanded parental and family responsibility leave, paid training leave, whole-work life leave, and early or phased retirement options.

Over the years, Canadians have talked a lot about reducing work time: an overall reduction in work time would decrease ongoing high levels of unemployment; would lower record levels of stress on the job; and would ease the increasing difficulty of workers who try to cope with the demands of work and familyPublic holidays can be increased, particularly in provinces that lag behind. We can tackle the challenge of excessive overtime. New forms of educational, family and sabbatical leaves can be supported, such as two weeks compulsory education training leave. And we should be thinking about how to get people to retire earlier, opening up new opportunities for youth. Much of the world has already found ways to work less. We need to do much better in this area.

Buzz Hargrove, National Post

Recommendation 2.1

We urge the Commission to endorse the findings of the Federal Advisory Group on Working Time and the Distribution of Work, which was chaired by Arthur Donner and included Bob White, past president of the CAW. In July 2005, delegates to the CAW Collective Bargaining and Political Action Convention voted to reaffirm our support for these recommendations. The Donner Report called for a new emphasis in public policy on both the reduction and the redistribution of working time. It recommended a legislated standard week of 40 hours and limits on overtime, as well as other innovations such as phased-in retirement and educational leave.

First of all, reduced working time is central to the development of a job creation strategy and establishing a work-job creation balance. Our current unemployment rates may not seem to be cause for great alarm but for the nearly 1.2 million Canadians who are officially unemployed theres definitely a problem.

Secondly, reduced work time is important to restoring work-family balance. Workers are facing new demands around shared parenting and many face the combined pressures of caring for children and elderly parents.

Reduced work time is also important to restoring work-community balance so that we have time for our unions, our communities and the political process.

Reduced work time is also essential to improving our work-health balance. Study after study tells us that the costs of overwork are mounting with sleep disorders, cardiovascular problems, substance abuse and unhealthy lifestyles.

Shorter working hours are more important than ever. But it is harder than ever to make gains. In the workplace and in our communities, current trends are seemingly at odds with one other:

Many workers, especially working couples, are working longer hours than ever before.
Many workers are stuck in part-time jobs, forced to cobble together two or more jobs in an effort to earn fulltime wages.
Many workers are prepared to work as much overtime as they can get.
Many workers complain that management is refusing them time off.
Many workers dont use all the time-off they are entitled to.
Many workers are taking time-off in other ways research has pointed to the rising trend in both work absence incidence and time lost for personal reasons (own illness or disability and other personal and family demands).

From CAW 2005 Collective Bargaining and Political Action Convention paper

Moving in the Wrong Direction

The culture of overwork in our society is not made better by the current deregulation of employment standards. Consider the unfortunate outcome of the Ontario governments new employment standards provisions which shift the setting of limits on excess overtime hours to the individual workplace.

The Ontario Employment Standards Act sets the maximum regular work week at 48 hours, including overtime, which in many workplaces is more than sufficient. The Act also allows for excess overtime applications but no longer sets an overtime maximum (as it used to with mechanisms such as permits that allowed, for example, 100 hours per employee per year - or even the 60 hour weekly maximum under the Harris Conservatives.).

With no weekly or yearly maximum on excess overtime, there are only standards covering free from work periods (30 minutes every 5 consecutive hours, 11 consecutive hours free from work each day, 8 hours between 2 shifts totalling more than 13 hours and 24 consecutive hours free from work each week or 48 biweekly). Effectively this means an employee could, by agreement, work up to 84 hours in some weeks. The table shows an allowable schedule, however unlikely, for Ontario workers. This is how the Ontario government ended the 60 hour work week of the previous government130 years after workers first marched in Ontario and Quebec to support demands for the 9 hour work day.

Even those workplaces that now hold the line at 60 or fewer hours will face pressures in the future to match the competition - unless the government starts setting reasonable limits, as the federal and provincial governments committed Canada to almost six decades ago at the United Nations. Employment standards on maximums are essential.

Work Time Practices, Permits and Averaging

In the federal jurisdiction, there is now widespread usage of averaging agreements, modified work schedule agreements, permits for overtime in excess of 48 weekly as well as emergency work without a permit all assumed under the mantle of flexible work arrangements.

Recommendation 2.2

It is time for a major audit of permits and agreements and a review of the reports filed with the government (as required for number of workers working excess hours, number of additional hours, etc.) to ensure that all permits have been properly updated, union agreements have been secured, and practices are compliant with the Code. It could also be an occasion for the parties to review the agreements to ensure that they still meet the need for balance between work and other aspects of life.

Recommendation 2.3

A standard should set upper limits on excess overtime hours where overtime is properly allowed beyond 48 hours weekly; as a union we can negotiate from there. Excessive overtime means workers risk their job and their health, and especially in the transportation related industries, excessive overtime can have large consequence for the worker and the public.

Recommendation 2.4

A standard should also set out the entitlement to refuse overtime after 40 hours, as recommended in the Donner Report.

Redistributing Work Time

Not much has changed since the 1994 Federal Advisory Group on Working Time and the Distribution of Work found that the trends to increased work time actually masked another untold story, a growing polarization in weekly hours. Some of the current polarization can be seen by looking at the accompanying chart on the Distribution of Paid Work Hours. Some occupations are typically scheduled for few hours while others are expected to work overtime.

Is there anything that can be done about this, short of guaranteeing all employees a reasonable minimum schedule?

When surveys showed that fully 32% of part-time workers wanted more hours, the Saskatchewan government introduced a Most Available Hours bill in 1994. The bill was modelled on language that had been successfully negotiated and practiced in a number of the provinces workplaces. The bill was passed but never proclaimed. When it was brought forward again in 2005, some business groups incited panic about its implementation and the government capitulated.

For many years our union has negotiated similar language in some hospitality sector collective agreements, provisions known as Maximizing Hours (but based on the same principles as the Most Available Hours bill).

While the Employer is entitled to schedule shifts of various lengths as provided for in this Agreement, the Employer is obligated to first schedule the maximum number of eight (8) hour shifts before instituting shifts of 7, 6, 5 or 4 hours The Employer must offer and assign all available 40 hour shifts to the employees with the most seniority before implementing shifts of lesser hours. If a more senior employee declines the 40 hour shift in favour of an available shorter shift, then the 40 hour shift shall again be reassigned on a seniority basis. Where an employee is scheduled for less than 8 hours in a day, the shift cannot be extended unless by consent of the employee.

Recommendation 2.5

We urge the Commission to make recommendations that address the polarization in work time, including measures such as Maximizing Hours (or Most Available Hours). We need to find alternatives to designating jobs as part time, with all the associated problems for workers who fill those jobs - limited benefits, scheduling abuses, etc. Too often these workers are used as full-timers, but abused as part-timers. The most junior are kept on an on-call leash but rarely called to work.

Scheduling and Shift work

The B.C. Court of Appeal recently ruled that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. This watershed ruling flowed from a case where the employer unilaterally changed a workers shift time.

Recommendation 2.6

Provisions should be introduced that curtail the unilateral imposition of erratic or rotating schedules or shift changes, and provide workers with a greater entitlement to reasonable schedules, with greater account taken of the needs of workers in setting and changing shifts, including their role as caregivers.

Reporting Pay

Reporting pay takes on new meaning in the modern job market. It establishes the floor for those whose work schedules are inadequate to make a living and often erratic.

Recommendation 2.7

We propose the current 3 hour call in pay provisions be increased to 4 hours. Over the years, this standard has become the norm in most collective agreements. It is timely to extend this right to all federal jurisdiction workers.

Other Work Time Proposals

Paid Time for General Holidays

Canadas provisions for paid holidays pale in comparison with European Union member states where there is greater recognition of the importance of balancing work with community and family life, as well as the health risks of protracted periods without rest from work.

The Code currently provides for 9 paid holidays whereas the majority of European countries provide for 10 to 13 paid holidays (see tables on page 21).

Recommendation 2.11

A tenth paid holiday should be added to the Code, making it the new benchmark for Canadian jurisdictions. One option is a Local Heritage Day on the first Monday in August (in the case of Quebec only, on June 24, St. Jean Baptiste Day). Nine Canadian jurisdictions already celebrate the first Monday in August as a provincial or civic heritage day, in some cases as a paid holiday, as it is in the vast majority of collective agreements.

Recommendation 2.12

Continuous operations exceptions should be expressly limited to employees essential to run such operations. It must be clear to everyone that the standard holiday provisions apply to all other employees at these workplaces.

Recommendation 2.13

A standard calculation for holiday pay should be used in all normal circumstances (with some limited exceptions, for example, for those on commission). The current calculations for holiday pay are unnecessarily complicated and confusing to both employees and payroll clerks. One option is to use earnings in the 4 week period preceding the week of the holiday, divided by 20, to determine an employees average pay, as done in Ontario. This formula allows for the many non-standard work schedules in todays job market.

These last two proposals alone should significantly reduce the more than 400 holiday violations reported each year.

Comparing Paid Time From Work: Europe & Canada

Paid Time for Annual Vacations

The European Community member state provisions average more than 5 weeks annual paid vacation (26 days). None have less than 4 weeks entitlement (20 days). In Canada, only Saskatchewan comes close but the 4 week entitlement comes after 10 years of service.

Recommendation 2.14

Vacation entitlements should be improved to provide for 3 weeks vacation after one year of service and 4 weeks vacation after not more than ten years of service, as in Saskatchewan.

Recommendation 2.15

The Code should specify that vacation weeks are to be taken as one unbroken period or at the employees option, as two or more periods of at least one week each, as in Saskatchewan.

Recommendation 2.16

As in Ontario, the Code should protect the vacation entitlements of employees on leave. An employee who is still on leave (parental, compassionate care, etc.) at a time when the Code would normally require the scheduling of any uncompleted vacation time, should be able to finish that uncompleted vacation at the end of the leave or at a later date, or receive the vacation pay instead. This provision ensures that all employees can access their earned vacation entitlements, and that the payment of vacation pay is not made at a time when it will reduce EI benefits. There are otherwise some discriminatory consequences.

Chapter 3: Paid Training & Learning Leave

All the key players business, unions, policy analysts, educators, governments agree that a radical change is required in Canadas approach to adult learning and training. The matter has been studied and talked about for years. And yetnothing.

The current levels of workplace training and learning are nowhere near where they need to be and trail those found in Europe and the USA. The most vulnerable workers are the ones least likely to receive skills training, especially basic and portable skills such as reading, writing, maths and basic computer skills. The sorry state of our countrys efforts to upgrade these basic skills was confirmed recently in the 2005 study by Statistics Canada and OECD. It concluded that fully 42% of Canadian adults had difficulty with everyday reading requirements and many also had difficulty with basic numeracy and the ability to interpret documents such as maps.

Learning initiatives on paid work time are significantly higher in unionized workplaces. The CAW, for example, has just negotiated additional hours for its innovative paid workplace training program at Ford of Canada. All members will be able to participate in the new one week (40 hour) program which includes union and industry awareness, community and government awareness and building respectful workplaces. This is in addition to other programs like the BEST basic skills and literacy program.

It is time for the federal jurisdiction in Canada to become the first in North America to introduce what is already widely recognized in many European countries the right to paid training leave. The first paid vacation time provision was a radical idea in its day but now forms part of our social norms; the same should be true of paid time for learning. It might be argued that the Quebec 1% of payroll Training Levy indirectly creates an entitlement to training leave however the absence of equity obligations means that, as elsewhere, those most in need tend to get the short end of the stick.

Recommendation 3.1

We urge this Commission to propose a new Paid Training and Learning Leave entitlement of at least one week annually, a vital ingredient in the governments new Workplace Skills Strategy. It would cover training and learning, over and above current apprenticeships and other skills upgrading.

Recommendation 3.2

We urge support for the adoption of a Canada-wide training levy modeled on the Quebec 1% of payroll levy, another important ingredient in any Workforce Skills Strategy, strengthened by a standard that provides every worker with an entitlement to paid leave. The link could be made through provincial labour market agreements.

Recommendation 3.3

There is also a need for income supports such as a revamped EI Work Share While Learning program especially for employees who are moved to unfamiliar jobs, functions or locations as a result of corporate restructuring or technological change.

Chapter 4: Protecting Precarious Workers

The rise in precarious employment is symptomatic of much of what ails our labour market. Contract work, temporary jobs, casual positions, part-time and part-year work, phoney self-employment, erratic and just-in-time schedules we see it everywhere. Which begs the question how do we shape new employment standards that begin to address this thoroughly modern problem?

Greater labour market regulation is critical for the workers who encounter the new risks attached to these jobs, for their co-workers whose own working conditions are indirectly jeopardized, and for those employers who might assume they can evade legal responsibilities to workers by these means.

We believe it will make a difference. One important factor in the very low rates of precarious work in Scandinavian countries is their significantly higher levels of regulation including labour standards that, for example, discourage employers from structuring jobs as temporary work and that require the authorization of temporary work agencies which are also subject to regulations on pay for non-booked days and other employment conditions.

The regulatory approach recognizes that precarious employment is not an accident of history. Employers are making choices about how they re-organize work and governments are making choices about how the larger economy functions and generates employment opportunities. The choices that are being made place real limitations on the availability of good jobs and increase the number of families and communities dealing with the consequences of insecure employment and poorer remuneration and working conditions. Considerable public debate is needed about future directions.

Good Jobs. Bad Jobs

Macro-economic policies and the presence or absence - of effective industrial development strategies determine in large measure which industries and which jobs flourish in a nation. Some policies, like a high Canadian dollar, destroy jobs. Others encourage more insecure and low-paid work, the hallmarks of precarious employment. Fifteen years ago the Economic Council of Canada produced a landmark study called Good Jobs, Bad Jobs. It identified the rising tide of non-standard work as a threat to workers economic security and quality of life which in turn would have serious implications for the larger economy.

Recommendation 4.1

We urge the Commission to address the need for policy and programs that place a high priority on industrial and employment strategies that encourage the development of key sectors and retention of good jobs, a critical starting point for tackling the epidemic of precarious work.

Self-Employment

We would argue for a clearer distinction between someone who is genuinely an entrepreneur and someone who is really a worker selling their labour power, even if dependent on multiple clients. To the extent that employment standards are about the legal obligations that an employer takes on when hiring someone to perform work, we want to ensure that a broad definition allows all those falsely considered self-employed to have better access to employment standards protections.

Recommendation 4.2

The preferred definitions should be those for worker and employer in the Ontario Occupational Health & Safety Act, which include for example, former employees and home workers. New powers should be given to inspectors to expedite these determinations.

Recommendation 4.3

This review is an appropriate opportunity to recommend new social programs that do not depend on a workplace or employment relationship but benefit the self-employed worker, including EI access (as Quebec has initiated) and options for socializing health benefit coverage.

Private Placement Agencies

In the early part of the 20th century, the last time there was a public outcry about the unscrupulous practices and proliferation of private placement agencies taking advantage of the jobless especially new immigrants, the federal government stepped in and created a non-profit public employment service to offer workers and employers a no-fee and ethical job placement service. The public employment service was effectively ended in recent years with the demise of Canada Employment Centres (formerly Canada Manpower) but we seem to be coming full circle with concerns about unethical and exploitative agency practices bubbling to the surface again. These agencies have grown too used to evading our public standards. They operate in a number of ways:

The federal government is among employers who use placement agencies. These agencies are increasingly multi-service operations, from management head-hunting to hiring for permanent, temporary or contract positions... whatever the employer desires. These agencies are becoming the launching pad for employers reorganization of work in more non-standard and precarious ways.

Recommendation 4.4

Equal Pay for Precarious Work

We agree with the Expert Committee on the Social Protection Needs Of Individuals In Non-Standard Work Situations (2002 Bernier Committee, Quebec) which applied the logic of equal pay legislation to situations of precarious work.

Recommendation 4.5

The principle of equal pay for work of equal value should be extended to workers who are paid a lower rate simply be virtue of their status as part-time, casual, temporary or contract workers.

Expert Committee on the Social Protection Needs Of Individuals In Non-Standard Work Situations (Bernier Committee, Quebec, 2002)

That the following fundamental principle be added to the Labour Standards Act:

An employer may not give an employee working conditions inferior to those granted to the other employees performing similar or equivalent duties within the same establishment:

for the sole reason that this employee usually works fewer hours per week;
for the sole reason that this employee works outside the establishment; or
for the sole reason that this employee works on an on-call, temporary, casual or term basis, whether this work is performed for the employer directly or through a placement agency.

from Recommendation No. 9

Equal Benefits for Part-Time Jobs

Most employees who are classified as part-time do not have the same benefit coverage as those classed as full-time. In some cases they will have no coverage whatsoever. The dividing line between part-time and full-time status has some dire consequences for the workers concerned yet it is terribly arbitrary it can fall anywhere between 0 and 40 hours. This is very costly for the individual and their family (a cost being shouldered by those with some of the lowest earnings). It is also costly for the public purse since the long term consequences of insufficient supplementary health care, dental care, medicines, vision care, life insurance and pension contributions is borne by the larger economy. As a society, we ignore this issue at our peril. Part-time jobs may be necessary to address some scheduling needs, but it doesnt necessarily follow that they must also be a form of cheap labour.

Recommendation 4.6

An entitlement tofull and equal benefits should be established for part-time employees and any qualifying condition set at not more than 15 to 20 hours weekly. The WALL chart on page 17 speaks to the need to capture some of the significant numbers on relatively shorter schedules. Those regularly working less than the qualifying hours should be accordedsome benefit coverage (drug plan, life insurance, etc.), with pro-rated benefits or payment in lieu becoming a measure of last resort. Although this last option addresses the need for equal remuneration, it does not actually deliver the needed health care outcomes in most cases since we are asking typically low income part-time workers to pick up a share of costs they can ill afford.

Recommendation 4.7

There is a need for a national drug plan as part of Medicare, a recommendation of the Romanow Commission, as well as a basic dental care plan as envisioned by the original architects of Medicare. These costs, currently borne by workers and employers, should be absorbed as part of a universally available program.

Part-time Ratios

Until the 1980s, the Saskatchewan Minimum Wage Board used a regulation that allowed them to establish an appropriate ratio of full-time to part-time jobs, normally applied as a 3:1 ratio. The provision was eventually rescinded. In the retail sector with its long-standing practice of part-time jobs, a 70% full-time: 30% part-time ratio has been reversed since the deregulation.

Recommendation 4.8

Consideration should be given to a method of setting a ratio of full-time to part-time positions, part of a new proactive stance on precarious jobs.

Chapter 5: Leaves and Family Responsibilities

"Perspectives on Labour and Income" Statistics Canada, April 2005

"Estimates from the Labour Force Survey reveal a steady rising trend in both work absence incidence and time lost for personal reasons (own illness or disability, and other personal and family demands) between 1997 and 2002 and a stabilization thereafter."

Legislated provisions for leave from work are yet another aspect of providing for adequate time from work on a "whole-work life" basis.

Recommendation 5.1

We urge the Commission to review the provisions in the family leaves currently provided in the Code and to consider new ones, in particular to ensure that an amended Part III gives high priority to the emerging difficulties that many workers face in balancing their work and family responsibilities.

The Law Commission of Canada in its 2004 report "Is Work Working?" argues that too many of our work laws and policies still assume that "someone" else is going to pick up the pieces of the frayed social safety net and provide the care for young children and older ones who no longer have access to after-school programs, for elders who cannot get homecare or access to housing or a nursing home, and family members when they're sick or released early, sometimes on the same day, from hospital.

This has particularly distressing consequences for the large number of working women who still bear the greatest burden for family care and who likely will for the foreseeable future, but also for a growing number of men undertaking family responsibilities their fathers never dreamed of, something that should be further encouraged.

Parental Leave

The Code's no-discrimination protections for workers taking parental leave are being sorely tested by some employers who have chosen not to provide employees with notice of training/promotion opportunities while they are on leave, or not to return them to substantially the same position with the same rate of pay. The fact that this comes on the heels of a relatively new provision for a full year leave with EI benefits should not lead to the conclusion that these are just growing pains.

Recommendation 5.2

The Commission should consider ways to strengthen the non-discrimination obligations and remove any ambiguities in the parental leave provisions. The challenge to the authority of the Code must also be met with a concerted compliance and enforcement effort.

Recommendation 5.3

The Code should be made consistent with the provisions of the Employment Insurance Act, another federal statute, so as to allow for non-consecutive periods of parental leave. The need for such leave may arise for example where two parents are taking turns on leave. Provisions for non-consecutive periods of parental leave are not currently explicit in the Code. Our airline local in particular has raised concerns about the current wording which refers to "a" parental leave. This is interpreted by some employers to exclude the possibility of non-consecutive periods of leave.

Compassionate Care Leave

There is good reason why the federal government so badly miscalculated on the take-up of its new EI Compassionate Care benefits and the parallel provisions that were introduced in the Canada Labour Code. The take-up was only 10% of the forecast numbers because the restrictive rules for accessing the leave and benefits make this an almost unusable provision for most working people, despite the obvious need for new supports and job protections for those compelled to care for loved ones who are very sick.

This problem is not going to go away. Our population is aging and the number of seniors will rise sharply over the next two decades. We know too that a growing number of our members are trying to juggle work with caring for their children as well as their parents, some of them fragile elderly. The so-called "sandwich" generation is trying to cope with these responsibilities at a time when our social system of seniors housing, nursing homes and home care is still under-funded and unable to provide sufficient support.

Recommendation 5.4

The requirement that there be a "significant risk of death" within 26 week should be eliminated. Members are often outraged when they learn of this condition, adding to their stress. It is not even realistic in many situations; doctors will often refuse to provide such a medical statement. The "serious illness or serious accident" provisions in the Saskatchewan and Quebec legislation should be more than sufficient requirements. And a parallel recommendation should flow to the EI Commission.

Recommendation 5.5

An option for a longer leave period is needed. Both Saskatchewan and Quebec allow for a 12 week period (extendable to 16 weeks in Saskatchewan, 104 weeks in Quebec). The Commission should recommend that the government also extend EI benefits in conjunction with a longer leave period and encourage employers to top up the 55% of earnings that EI benefits provide.

Recommendation 5.6

Expanded eligibility is needed, especially for brothers, sisters and grandparents (as provided for in New Brunswick, Saskatchewan, Yukon, PEI and Quebec). New Brunswick's definition of a "close family relationship" includes grandchildren and "those who demonstrate an intention to extend to one another the mutual affection and support normally associated with those relationships first mentioned" even when they are not married or do not have a blood relationship. This is hopefully the direction that progressive legislators will eventually head.

Family Responsibility Leave

Our employment laws still reflect an appalling lack of support for workers with family responsibilities despite the dramatic increase in the number of women in the paid workforce, the growing number of men taking on family responsibilities, the underfunding of social programs for child care, elder care and care of dependents with special needs, and the likelihood that the most vulnerable members of the workforce do not have the finances to secure private help for family members with urgent needs.

The lack of leave provisions means an adult who gets a call from a child care centre advising that their child is sick must "choose" between abandoning their child or their job, or using some of their own holiday or sick time.

Saskatchewan, Quebec, B.C., PEI and New Brunswick have all moved to establish a discrete entitlement to family responsibility leave. Newfoundland-Labrador, Nova Scotia and Ontario give a nod to the need for such leave but undermine its usefulness by combining it with other entitlements. Ontario's annual 10 day emergency leave entitlement, for example, is easily exhausted by a worker's own illness, bereavement or workers' compensation injury and may never be available for family emergencies.

Some of our union locals have been able to negotiate modest family responsibility provisions, but they need to be reinforced by social legislation and they require improvements. At Air Canada we have been able to negotiate the use of three of the worker's six sick day entitlement for this purpose but it should not be necessary to use up personal sick days - and three days is not sufficient.

Recommendation 5.7

There are compelling reasons to introduce a first family responsibility leave provision for federal jurisdiction workers and spur provinces to do likewise or improve upon their provisions. Saskatchewan at 12 days and Quebec at 10 days are the preferred models for family responsibility leave, except that such leave should be paid time from work. Otherwise, workers with the lowest income because of their wage rate, part-time hours or temporary status will be the least able to take advantage of the leave and end up using sick days, vacation time or other personal paid time to cope with family illness, injury, hospitalization, medical appointments, arrangements for elder care or childcare, or sudden disruptions in that care.

Bereavement Leave

Bereavement in the immediate family is usually associated with high levels of stress for an employee, if not tremendous grief. Current Federal provisions for bereavement leave are almost cruel in their restrictiveness.

Recommendation 5.8

Paid bereavement leave should be extended from three to five days, based on normal working days rather than calendar days and initiated from the date of receipt of news of death. For workers who arrived in Canada in recent waves of immigration, there will be instances of delayed communication from isolated regions of the world. The longer time frames are important to employees' health and well-being, and are an important support for families. In some cases this additional time would be sufficient to allow the worker to travel home without having to use vacation time.

Recommendation 5.9

Unpaid extended bereavement leave should be granted upon appropriate confirmation of a death out of country that requires a longer leave in order for the employee to travel home.

Sickness & Non-Compensable Injury Leave

Quebec provides for up to 26 weeks leave for sickness or injury. It is the only jurisdiction that is consistent with the EI Act provisions for sickness, injury and quarantine benefits (used for example during the outbreak of SARs.)

Recommendation 5.10

Part III of the Canada Labour Code should extend personal sick leave to at least 17 weeks. This would be consistent with the EI Act and allow workers to access the 15 week maximum benefit period for sickness, injury and quarantine which also requires a 2 week waiting period.

Recommendation 5.11

A new provision should provide for 5 paid sick days, a now common work place practice. It would cover short illnesses of under 2 weeks and provide income during the waiting period for EI or weekly indemnity benefits for longer illnesses. This is particularly important for low wage workers who often work through their illnesses, creating risks for themselves and others.

Other Leaves

Recommendation 5.12

Chapter 6: Job Security and Severance Pay

Part III of the Canada Labour Code provides for a bare minimum of 2 weeks notice of dismissal or permanent layoff. This is simply not sufficient in the modern job market. The ineffectiveness of our employment standards is plain for all to see whenever mass layoffs accompany an economic downturn but workers coping with the economic restructuring that has been ongoing for some time have always been painfully aware of the law's inadequacies. This applies to all workers but vulnerable workers, including many women and workers of colour, are most vulnerable with respect to their job security. They tend to hold the jobs where they're most likely to be told "if it's not in the Code then you don't get it!"

Recommendation 6.1

We urge the Commission to recommend that an individual (not part of a group termination of 50 or more) be given longer notice of termination. With globalization and increased competition, the announcement of a layoff or closure may come with few warning signs. Yet the federal jurisdiction worker is expected to secure new employment within a couple of weeks. In most provinces the entitlements increase with the duration of the worker's service. The B.C. and Ontario provisions are to be preferred (1 week notice for service of 3 months to less than 1 year; 2 weeks notice for 1 year to less than 3 years service and 3 weeks notice plus one week for each additional year after 3 years service, to a maximum of 8 weeks notice).

Recommendation 6.2

The Code should allow for a determination that the group termination provisions apply where there is a pattern of repeat layoffs of under 50 over a number of months and where it is apparent that the layoffs have been constructed in part to evade the group termination obligations.

Recommendation 6.3

The current provision allowing the Minister to waive any or all group termination provisions for mass layoffs of 50 or more should be rescinded. Under no conditions should the requirements (joint planning committee, 16 weeks notice, etc.) be waived. This provision is an incitement to lower the bar, even in a unionized environment, precisely when workers most need these protections but have the least bargaining power. When a large number of workers coming from the same industry and occupations are competing for employment at the same time, especially during periods of economic crisis or restructuring, these minimum protections are critically important to the adjustment process for the workers, their families and their communities.

Recommendation 6.4

The Notice of Collective Termination should include information on the efforts made to minimize the use of overtime, a review of which would become the responsibility of the Joint Planning Committee.

Recommendation 6.5

The Notice should also include the estimated number of employees age 45 or older. A Joint Planning Committee may need to plan special adjustment measures for this age cohort. The federal government used to copy a Notice of Collective Termination to the Older Worker Adjustment Branch but this no longer exists.

Severance pay provides recognition of an employee's service with the employer and partially compensates the employee for the loss of employment benefits and service entitlements which typically are not duplicated with new hire status in another workplace. Severance pay also serves to enhance workers' job security since it discourages employers from resorting to terminations when there are other options.

Severance serves a quite different purpose than termination pay in lieu of notice. It is therefore of considerable concern that only Ontario and the federal jurisdiction have established severance pay as an employment standard and that the federal provisions are so inadequate. More attention is required.

Recommendation 6.6

The Code should provide at least one week's severance pay for each year of service for employees who have been employed for a year or more. Pension and retirement benefits should not be used to offset severance pay that is owing to an employee.

Recommendation 6.7

HRSDC should establish a pan-Canadian adjustment program and budget to support workers who are laid off in federal jurisdiction workplaces where a Notice of Collective Termination has been issued and a Joint Planning Committee must be established. We should not be forced, as we have been, to knock on each province's door for funding for adjustment committees and action centres, especially as many federal sector employers operate in multiple locations and on an inter-provincial basis.

Recommendation 6.8

We need stronger successor rights so that the tendering of a contract does not result in employees losing their hard-won accumulated service entitlements, as well as their collective agreement.

Recommendation 6.9

We need reciprocal agreements between the federal and provincial/territorial governments so that a transfer of operations to another jurisdiction does not result in the loss of employees' accumulated service entitlements, as well as their collective agreement.

Recommendation 6.10

We urge the Commission to consider other creative approaches to enhancing job security. Sweden has "Priority for Re-employment" protections whereby an employee who's dismissed with notice due to a work shortage has priority for re-employment during the 9 months after termination. France introduced a "Social Modernisation" law in 2002 which required reductions in work time and other measures before an employer could initiate permanent lay offs.

Chapter 7: Other Measures

More Respectful Work Places

Canada is an obviously much more diverse country than it was forty years ago. Nationally, about one in seven workers is a worker of colour and the proportions are even higher in large urban centres. Many of these workers encounter discrimination. They also represent a high proportion of those employed in precarious and low paid jobs.

We believe that employment standards should encompass proactive measures that help us to address some of these inequalities and build more respectful workplaces. Social inclusion is very important for the long-term well being of a work place.

Recommendation 7.1

We recommend a new provision that requires the establishment of Human Rights Committees in federal workplaces, modeled on the health and safety committees required by Part II of the Code. Where we have been able to negotiate such committees, they have proven important vehicles for the co-ordination of diversity training for the work force and management, anti-racism work and education to help combat racial discrimination and harassment, the building of more respectful workplaces and the monitoring of compliance with human rights legislation.

Recommendation 7.2

We recommend a new provision that prohibits racial harassment and requires effective and timely complaint procedures to help protect vulnerable workers. We look to Quebec where labour standards require employers to take all reasonable actions to maintain a harassment-free work environment and to establish formal procedures to deal with psychological harassment including repeated, hostile or unwanted conduct, verbal comments, actions or gestures that result in a harmful work environment.

Options for Older Workers

A good balance of older and younger staff is always important, all the more so in an era of restructuring. It provides both economic and labour market benefits. Yet each round of layoffs means young adults, many with young families, lose employment while senior workers who might happily leave or phase-in to retirement are unable to do so - usually because they cannot afford to and because their employers are not required to modify schedules. After two decades of corporate restructuring and workplace adjustments, it should be no surprise that some workers in their late 50s and early 60s, including women and many with 20 to 40 years in the labour force, feel depleted by the stressful restructuring, "leaner" workplaces and ongoing technological changes that have characterized many work places. Some have also suffered ill health as a result.

Recommendation 7.3

We need early or phased retirement options that are realistic for older workers.

"The Advisory Group supports wider adoption of the practice of phased-in retirement, under which older workers are encouraged to work reduced regular hours or take leaves of absence as a transition to retirement. The Advisory Group recognizes that a major obstacle to phased-in retirement could be the reduction of future public and private pension benefits. We recommend that governments, employers, unions and employees consider changes and their implications for public and private pension plans, arrangements, and regulations to ensure that phased-in retirement does not substantially reduce future pension benefits"

Chapter 8: Compliance and Enforcement

2004 Law Commission of Canada: "Is Work Working?"

"Resources dedicated to enforcing existing laws and regulations, and the methods and practices of enforcement may be insufficient to achieve the intended goals."

Federal evaluation studies reveal extremely weak compliance with Part III of the Code. Only 25% of employers are in full compliance; the other 75% are in partial or widespread non-compliance. This must change.

The administration of the Code currently suffers from a number of shortcomings, some of which can be remedied with proper funding and staffing, some of which require a new commitment and refurbishing of the tools for overseeing the responsibilities under the Code and ensuring compliance. There must be a new emphasis on proactive measures, particularly those that will help address the needs of current employees.

Recommendations 8.1 through 8.16:

We once again thank the Commission for this opportunity to present our views and recommendations.

Appendices:

CAW: Worldwide & Successor Rights

Donner Report Recommendations

Ontario Ministry of Labour: media release

Glencairn Academy and two academy directors convicted of employment standards violations

CAYUGA, ON, Sept. 2 /CNW/ - Glencairn Academy, a former children's educational facility in Cayuga, was fined $142,000, one company director was fined $17,000 and jailed for 60 days, and another director was fined $11,100 today for numerous violations of the Employment Standards Act, 2000 in connection with wages owed to former employees.

Glencairn Academy owed a total of about $74,000 to 14 former employees who worked for the school sometime between July 1998 and March 2003. The employees filed claims with the Ministry of Labour for unpaid wages. The ministry found the wages were owing and issued five orders to pay for the unpaid wages plus a 10-per-cent administrative fee. The academy and two of its directors failed to voluntarily pay the orders and failed to appeal the orders. Glencairn Academy was located on Talbot Road East in Cayuga. It is no longer in operation.

Following a trial, Glencairn Academy was found guilty of 12 violations, including:

An academy director, who received the jail term and fine, was found guilty of 14 violations, including:

The fines and jail term were imposed by Justice of the Peace Kerry Boon of the Ontario Court of Justice in Cayuga. In addition, the court imposed a 25-per-cent victim fine surcharge, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime. In addition, the court issued an order requiring about $57,000 in owed wages be paid to the former employees.

Submission

Modernizing Part III of the Canada Labour Code

Index

A Framework for Labour Code Reform: Standards, Compliance & Enforcement