By Daniel Tseghay
When Ontario’s Liberal government initiated the Changing Workplaces Review in 2015, to identify ways to improve the Employments Standards Act (ESA) and the Labour Relations Act (LRA) in light of the evolution of work, it led to a number of unions and labour activists offering their recommendations. That pressure led to the inclusion of some important recommendations into the the final report of the Changing Workplaces Review, conducted by Special Advisors C. Michael Mitchell and John C. Murray.
Meanwhile, there’s hope for a similar process in BC. The BC Employment Standards Coalition released a Summary Report, Workers’ Stories of Exploitation & Abuse: Why BC Employment Standards Need to Change, last month based on their series of Workers’ Forums, where the Coalition collected the stories of over 145 workers. “The purpose of this report is to bring the inadequacies of the current minimum standards of employment in BC into public view,” reads the report, “and to persuade both the BC Law Institute [a not-for-profit law reform agency] and the next provincial government of the need for significant reforms to the Employment Standards Act.”
The report covers a wide range of issues and makes recommendations for reforms to BC’s ESA.
A common concern the Coalition heard from workers was that many were not guaranteed a minimum number of hours per week nor were they entitled to know their schedules in advance. Especially in the retail industry, employers expect workers to be “flexible”, or to be available just in case they’re called in to work. “The expectation that workers will be available for erratic shifts creates underemployment as workers are prevented from taking other work due to scheduling conflicts,” the report reads. “Workers bear the costs of unpredictable hours through underemployment, having to finance employers’ “just-in- time” scheduling by carrying debt through weeks of insufficient hours or relying on friends or family for financial support.” The Coalition therefore recommends the ESA require employers to post schedules two weeks in advance.
Employers frequently misclassify workers as independent contractors, or as being self-employed, to save on payroll and avoid complying with the ESA. As a result, workers might not receive vacation or statutory holiday pay.
The report details the many forms of wage theft workers are subject to, from working hours they’re not paid for, improper deductions from pay, not being paid for travel time, or tips being shared with managers or being used to pay for dine and dash or breakage. While the ESA prohibits these acts, enforcement isn’t consistent. The Coalition, therefore, calls for “adequate active investigation of workplaces and an accessible, worker-friendly complaint process.”
Workers are often terminated without just cause and without compensation. The ESA requires employers to give notice, or, failing that, compensation. But compensation is only required after 3 consecutive months of employment. The Coalition, therefore, calls on the ESA to eliminate that condition and require compensation if the employer fails to give notice regardless of how long the worker has been at their workplace.
When the province passed Bill 37, in 2003, amending the ESA, it lowered the work-start age from 15 to 12. Employers are no longer required to obtain a permit from the Employment Standards Branch before hiring a child between the age of 12 and 14. “After this change, instead of having an Employment Standards of officer determine the suitability of a workplace for a 12 to 14-year old,” reads the report, “all that is required is a letter of permission from a parent to the employer, and government rarely checks to see if employers have these letters on file. The report notes that one of the consequences of deregulating child labour has been the growth in workplace injuries. The Coalition recommends the ESA establish a work-start age of at least 16 years old, and impose restrictions on the kinds of tasks and occupations children can work among other things.
The report includes a discussion of the piece rate system for the province’s hand harvesting farm workers, a system where they are paid based on how much they pick, which often earns them below the minimum wage. Rankandfile.ca covered this previously and in this report the Coalition calls on the ESA to eliminate that system.
Similarly, migrant workers in either the Seasonal Agricultural Worker Program (SAWP) or the Temporary Foreign Worker Program (TFWP), experience low pay, high recruitment fees, precarious employment, and are fearful to enforce their rights since their employment depends on their immigration status which is, in turn, determined by their employer. The Coalition criticizes the Employment Standards Branch’s complaint-driven model of enforcement, which depends on precarious and likely fearful workers to come forward. “The establishment of a mandatory registry of employers in BC is critical to promote accountability on the part of employers,” reads the report. “In Saskatchewan, Manitoba and Nova Scotia, for example, employers are required to register with the province, and keep records such as employment contracts and recruiter information.”
And, finally, the Coalition calls for an increase to the minimum wage to 15 dollars an hour. We recently Ontario’s Fight for 15 campaign achieve their goal. Workers there will be at $15/hour by January 2019 (and at $14/hour by January 2018). It may not seem obviously hopeful that BC will also get there soon, given that the BC NDP’s 100-page platform only calls for bringing workers’ wages up to $15/hour by 2021, but it’s a welcome development that the BC Employment Standards Coalition, in this extensive and thorough document, adds its voice to the chorus calling for just that.