Submission

Submission to the Federal Labour Standards Review with respect to Part III of the Canada Labour Code

WHO WE ARE

The United Steelworkers is an international trade union with over 280,000 members in Canada. Approximately 15,000 of these members work in Canada's federal jurisdiction.

Steelworkers are men and women of every social, cultural and ethnic background in every industry and job. In the federal jurisdiction, our members work in trucking, railways, courier delivery, banking, airlines, airport security, shipping, ferry service, and communications.

The Steelworkers is committed to ensuring that its members, as well as workers generally, are treated with dignity, respect and equality in their workplaces and in their communities. This commitment is reflected in Article 2 of the Steelworkers' Constitution that states that it is one of the objects of the Union to "perpetuate and extend social and economic justice in Canada and the world community."

The Steelworkers believes that strong and effective minimum standards legislation is central to the struggle for social and economic justice.

We are pleased to have this opportunity to make these submissions as part of the process of strengthening employment standards protections for all workers in the federal jurisdiction and in advancing the struggle for dignity, respect and equality for all working people in Canada.

WHY ARE STRONG AND EFFECTIVE EMPLOYMENT STANDARDS IMPORTANT?

Part III of the Canada Labour Code was originally enacted in 1965. It was developed in response to pressure from unions, like the Steelworkers, and other groups, concerned with the working conditions and dignity of working people. Its purpose was to provide a legislated floor of rights to address the imbalance of power between workers and employers in the workplace.

Employment standards laws arose and developed in recognition of the fact that unrepresented workers are more often than not unable to negotiate adequate terms and conditions of employment. An employer's power to unilaterally fire a worker gives rise to an enormous inequality of bargaining power in the employment relationship, for which workers have little countervailing power.

Minimum legislated employment standards strive to limit an employer's unilateral exercise of power when that power harms employees. Employment standards laws seek to prevent unscrupulous employers from exploiting vulnerable workers in the labour market. Such laws help prevent employers from gaining an unfair market advantage over their competitors.

At the same time as they assist vulnerable workers who would otherwise have little protection in their workplaces, employment standards also benefit organized workers such as our members. They help set a floor under collective bargaining. As the Canadian Labour Congress ("CLC") has noted in its brief to this Review, rights and standards for unionized workers are under serious attack from employers - and right-wing governments. In light of the erosion of collective bargaining and diminishing union density, employment standards legislation is more relevant than ever for all working people.

In fashioning changes to the federal employment standards in Part III of the Code, the historical role of employment standards laws in the protection and advancement of the dignity, respect and equality of working people must be protected and maintained. At the same time, rapid change in the Canadian workplace demands that existing laws be updated and strengthened and that the enforcement of those laws should be made more effective.

RESISTING "FLEXIBILITY" AND DEREGULATION: THE CHANGING WORKPLACE OF THE 21ST CENTURY AND THE IMPORTANCE OF STRONG EMPLOYMENT STANDARDS LAWS

Numerous pressures are reshaping the nature and structure of economic activity and workplace organization in Canada and around the world.

In response to market deregulation, free trade, and increased international competitiveness, employers have demanded increased "flexibility" around labour and labour time - and workplace employment standards. Employers rely increasingly on part-time work, contingent work, shift work, weekend work and overtime to meet "just-in-time" demand. Employers are trimming production costs through the downsizing of workers and the speed-up of production. The burgeoning growth of the service economy has created a 24-hour economy that demands that workers be available and work be performed at times and in rhythms driven by market logic and nothing else.

Right-wing governments have been happy to respond to demands from employers for greater flexibility by weakening employment standards legislation in a growing number of Canadian jurisdictions. The Harris government's gutting of Ontario's Employment Standards Act in 2000 is a good example. Some five years later, the Liberal government of Ontario has set about to reverse some - but by no means all - of the most egregious legislative enactments. The Liberal government of Gordon Campbell in British Columbia has also been an active proponent of workplace deregulation as part of the same neo-liberal agenda.

However, the much-vaunted claim of the employer community and right-wing governments - that prosperity-for-all will be the payoff for working leaner, harder, and more "flexibly" - have proven to be false. Workplace changes and employment standards deregulation are having a profoundly detrimental effect on the lives of working people.

The need for "flexibility" in the new global work order is driven by the needs of employers and the drive to maximize profits. It is contrary to the needs of working people for better jobs, better incomes and for working conditions and schedules that enable them to better balance their lives in and outside of paid employment.

The new work and legislative order is creating a paradox in terms of the distribution of working time and opportunities for working people. Mass unemployment and underemployment for some workers coexists simultaneously with excess overtime and "time famine" for others. For many full-time workers, working hours remain long and are getting longer. Rates of overtime use are growing, as is the rate of overtime being performed without pay. Homework is becoming an increasing feature of work-life. At the same time, over one million Canadians remain unemployed.

The rapid growth of part-time, contingent and contract work has resulted in the erosion of the standard workweek. Employer demands for employees to work irregular shift-work and erratic and unsocial hours are increasingly commonplace. Contingent workers remain significantly disadvantaged in the workforce in terms of pay, benefits and opportunities for advancement. Existing employment standards legislation fails to address this new work order and the new categories of workers it has generated.

Women, young, immigrant and visible minority workers disproportionately experience the disadvantages of contingent work. They are also the groups most likely to be unaware of existing employment standards and the groups with the least power available to utilize those protections.

For workers the result of the new work order is a declining quality of life. The mal-distribution of working hours is the key factor in the increasing inequality of income and opportunity in Canadian society.¹ Long working hours, as well as unemployment and under-employment are undermining the physical and mental health of workers. Production speed-up contributes to workplace stress. Stress leads to illness, workplace accidents and absenteeism. Long and erratic working hours make it difficult for working men and women to balance work and family commitments.

Working people are rightly suspicious of moves towards greater "flexibility" in their workplaces. Flexible working hours often come at the expense of worker's health, social and community life, and widening inequality. As the International Confederation of Free Trade Unions noted in its report on globalization and social justice:

…most workers and their unions see flexibility as a one way concept, pushed by employers and their allies. It has come to mean flexible workers, flexible jobs, flexible wages, flexible working conditions, flexible fairness, and flexible justice.²

Given the scope and nature of these changes and their enormous impact on the quality of the social and economic life of working people, workers in the federal jurisdiction, and elsewhere, need strong employment standards laws to protect and advance their dignity, respect, and equality more than ever. The Steelworkers emphatically rejects the neo-liberal agenda of greater flexibility and legislative deregulation.

REVISING PART III OF THE CODE

The Steelworkers endorses the proposals for revisions to Part III of the Code put forward by the Canadian Labour Congress in its formal brief to this Review. The CLC brief provides an excellent overview of the challenges confronting the Canadian workplace and the deficiencies in the current Code and regulations that increase the vulnerability of working people. We believe that the proposals for legislative change outlined in the CLC brief will modernize and strengthen workplace protections and have a major impact on improving the economic and social well-being of workers in the federal jurisdiction. We also hope they will serve as a model for adoption in other Canadian jurisdictions.

The CLC's proposals seek to strengthen substantive protections for workers, giving them expanded access to existing protections and creating new protections to take changing workplace realities into account. They will bring more working people under the umbrella and protection of the Code. They will lead to the strengthening of the enforcement and compliance systems - ensuring that stronger laws and regulations get translated into real improvements in workplace conditions.

The Steelworkers would like to highlight three areas of concern that we see as important priorities in any revisions to the Code.

ENFORCEMENT: CREATING EFFECTIVE DETERRENCE

Unrepresented workers are severely constrained in their ability to take action against employment standards violations. Lack of worker representation undermines the existing compliance and enforcement mechanisms. This view is not unique to trade unions and their spokespersons.³ The fact that most employment standards complaints arise only after the termination of employment attests to the imbalance of power in most workplaces and the fear of employer reprisals lurking just below the surface.

In addition, many unrepresented workers - particularly women, young, immigrant and visible minority workers - often lack the awareness, experience and power necessary to access and use existing employment standards protections. Language issues and discrimination compound this problem. These workers are often the most vulnerable to violations of minimum employment standards.

For workers who do not have a bargaining agent to enforce workplace standards on their behalf, it is important that there be an effective and well-resourced enforcement and compliance system for employment standards. The existing complaints-driven enforcement mechanism is wholly inadequate in holding employers accountable for employment standards violations. There is sufficient evidence that there is widespread non-compliance with existing employment standards. Existing enforcement systems simply do not serve as adequate deterrents to unscrupulous employers who violate the Code with virtual impunity.⁴

Awareness of employment standards needs to be dramatically increased so that workers understand their rights and available statutory remedies. Increased awareness can be achieved through the posting in each workplace of employment standards provisions, as well as the widespread distribution of popular, plain language and suitably translated materials explaining those standards. Broad media campaigns are necessary to effectively articulate the message. New entrants to the labour market - youth and immigrants - should be expressly targeted. Again, adequate resources will be needed to ensure that publicity and education reach the target audiences.

General workplace audits should be mandated in the event that there is an individual employee complaint against an employer. There should be follow up audits to monitor compliance. Routine and random audits should be mandated for high-risk employers and industries, i.e. workplaces and industries where pay is low, where there are many young and immigrant workers, and where there is a low rate of unionization. Provisions should be expressly made to accept anonymous and third-party complaints. The creation of a dedicated team of enforcement officers and an increase in resources will be necessary to implement this expanded audit regime.

Detection of noncompliance with the Code needs to be backed up with strong penalties to serves as deterrents against future breaches. A system of tickets and escalating fines in the event of repeat breaches is required. Code violators should be prosecuted after a third breach of the Code. The names of violators should be published. Corporate directors should be made liable for employment standards violations when employers default on compliance orders.

USING EMPLOYMENT STANDARDS TO ENHANCE HUMAN RIGHTS: WORKPLACE HUMAN RIGHTS COMMITTEES

Protecting and improving the working conditions of workers requires acknowledgement of the gendered and racialized structure of the working population, workplaces and jobs. Women, visible minorities and immigrants are much more likely to be in low-paid and insecure jobs. Discrimination and harassment on the basis of sex, race and ability in the workplace are pervasive. Employment standards legislation can and should be utilized to secure and promote human rights in the workplace.

The Steelworkers supports the CLC's proposal that human rights protections should be enshrined in Part III of the Code. Unrepresented workers lack the knowledge and means necessary to address workplace human rights problems in a timely and accessible way. We support the mandatory creation of workplace human rights committees, following the model for health and safety committees in Part II of the Code.

Human rights committees - consisting of equal numbers of employee and management representatives and funded by employers - would monitor compliance with human rights statutes and provide education and training on human rights and diversity issues for both employees and management. They would deal with discrimination and harassment complaints at the workplace level. In the event an issue could not be resolved, the committees would provide information on how formal complaints by employees could be made under existing human rights statutes.

As with the enforcement of minimum standards generally, non-unionized workplaces must be scrutinized and monitored to ensure that workplace human rights committees are established and functional. To this end, the Steelworkers also recommends and supports a pro-active and ongoing educational campaign for workers and employers so that all affected parties know their rights and obligations.

PROTECTIONS FOR WORKERS IN THE CONTRACT-FOR-SERVICES SECTOR: DEEMED SUCCESSORSHIP

Workers in industries where contract-for-services arrangements exist are extremely vulnerable to disruption and dilution of their terms and conditions of employment when there is a change of contractor.

Existing federal law does not recognize a change of contractor as constituting a sale of business. In the absence of a finding of a sale of business, the Canada Labour Code provisions that deem continuity of employment for purposes of statutory benefits such as vacations, leaves and unjust dismissal do not apply. As contracts change hands as contractors outbid each other in a race to cut costs - chiefly labour costs - the very same employees often end up working for the new contractor, with diminished wages and statutory entitlements.

Parliament recognized some aspects of the problems with contract-for-services arrangements when it amended the Code in 1996 to provide limited protections for some pre-board security screeners in the event of a change of contractor. Section 47.3 of the Code provides that a successor contractor must pay remuneration to organized pre-board security screeners that is not less than the remuneration paid to the employees by the previous contractor.

Section 47.3 provides protection only in respect of remuneration and not other benefits or statutory entitlements. It only provides that protection to organized workers. And it only applies to workers in a single industry - pre-board security screening.

The Steelworkers submits that the limited protections offered by section 47.3 are not justifiable on any logical or public-policy ground. There is no reason why some workers - who remain on the job providing the same service - should be granted limited protections under the Code, while other workers - who also remain on the job providing the same service - lose benefits and entitlements that they may have worked many years to achieve. The Code perpetuates an inequality that only serves to subsidize employers and transfers costs to workers.

While revisions to Part I of the Code - to include contracting out within the definition of a sale of business - are beyond the scope and recommendations of this Review, the Steelworkers proposes that Part III of the Code be amended to create a deemed successorship for purposes of employment standards entitlements under the Code.

We propose that the amendments to the Code should be modeled on the provisions of the Ontario Employment Standards Act in effect between 1993 and 1995. In the event of a change in contractor, the successor contractor should be required at law to make job offers to employees, in order of seniority, for similar work and with substantially the same terms and conditions of employment, including wages and benefits. Employment would be deemed to be continuous for all employment standards entitlement purposes, including termination and severance pay. A successor contractor who did not make an offer of employment to an employee would be responsible for termination and severance pay.

Such an amendment to the Code would help put an end to the race to the bottom characterizing contract-for-services arrangements in the market place and protect the economic and personal well-being of workers in those sectors.

CONCLUSION

The Steelworkers squarely rejects the deregulatory and neo-liberal agenda proposed by many in the employer community. The Steelworkers calls for more inclusive and expanded employment standards and for stricter enforcement of the Code. The Steelworkers believes that strong and vigorously enforced standards are an important means of building a society where the benefits of labouring, economic growth and prosperity are more equitably shared.

All of which is Respectfully Submitted.

Ken Neumann
National Director

Endnotes

¹ Centre for Social Justice, The Growing Gap: A Report on Growing Inequality Between the Rich and Poor in Canada, (Toronto: Centre for Social Justice, 1998) at 26.

² International Confederation of Free Trade Unions, Globalising Social Justice: Trade Unionism in the 21st Century (27 March 2000) at 77.

³ Law Commission of Canada, Is Work Working? Work Laws that Do a Better Job: A Discussion Paper, (December 2004).

⁴ Patrice Dutil and Ron Saunders, Canadian Policy Research Networks Inc. and The Institute for Public Administration of Canada, New Approaches in Achieving Compliance with Statutory Employment Standards, (2005).