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If you work a minimum-wage or non-unionized job, there are a few things you can usually count on: that your boss will have an overblown sense of importance, that you will get frappuccino stains on your shirt, and that the Employment Standards Act, which has set the bottom line for treatment of most non-unionized workers in Ontario since 1968, will protect some semblance of your sorry, slaving ass.
But as they promised in their election blueprint document, the Tories have now turned their hatchet, er, attention to the Employment Standards Act, releasing a consultation paper aimed at “modernizing” the act with new legislation by Christmas — and workers’ rights advocates aren’t exactly dancing in the aisles of their retail jobs.
Bad boss
“This is bad-boss legislation,” fumes Wayne Samuelson, president of the Ontario Federation of Labour. “That’s who benefits from this. It’s rolling things back to the 1920s, for god’s sake.”
The OFL and others are in a tizzy over some of the government’s proposals, like extending the maximum workweek to 60 hours, freezing the minimum wage and holiday time and a general theme of increased “flexibility” with reference to vacations, stat holidays and scheduling.
“They keep using watchwords like ‘let’s modernize,'” says Jacquie Chic, the workers’ rights lawyer at Parkdale Community Legal Services. “What it really means is, let’s make it flexible for employers and let’s not care at all about giving employees any control.”
For example, one of the proposals that’s causing the most fuss concerns slippery new overtime rules. You used to get overtime pay if you worked more than 44 hours a week. Now the Tories are proposing that overtime be calculated on an average of 132 hours over 3 weeks.
So, for example, if you worked 20 hours one week, 40 hours the next and 70 hours the third, you would not get overtime pay for that third week because you’ve only accumulated 130 hours. In essence, clever employers could avoid paying overtime altogether.
Also, if the new legislation goes through, the maximum 60 hours a week an employee can be forced to work could be averaged (180 hours spread unevenly over three weeks), wreaking havoc in workers’ lives.
Other alternative scheduling arrangements suggested in the paper are that, with “agreement,” employees can take their legislated two-week vacations in bits and pieces and work on statutory holidays.
It’s the mutual “agreement” part, a theme that runs throughout the proposal in its quest for flexibility, that has workers’ advocates most concerned.
“The whole thing makes an assumption that there is an equal relation in the workplace, and everybody knows that’s not true,” says Samuelson.
“If my 17-year-old daughter works in Joe’s hamburger shop, and he tells her it’s slow on Tuesdays, take your holidays on Tuesdays, and she says no, what do you think her life is going to be like?”
Best friends
Labour minister Chris Stockwell, while quipping that labour groups are his “new best friends,” tells NOW: “This is an age-old question with respect to who has the power. I don’t know how I could resolve the issue to the satisfaction of unions.
“But the proposed changes aren’t something we just thought up out of our own heads. Employees have come to us and said they want this, and with respect to those employees who push the issue, the same provisions are open to them to get reprimands and redress.”
Last year there were more than 12,000 claims under the ESA, and about 60 per cent of investigated employers were found to be in violation.
One thing is clear — both business and labour agree that the ESA, which hasn’t had a major facelift since 1974, needs a revamp to better reflect the bizarre pastiche that is contemporary working life.
With the increase in part-time, contract, temp and self-employed work, the days of “Honey, I’m home from my eight-hour union ized job — where’s my shop steward and my steak?” are over.
But increased flexibility, says Anim Verma, a professor of industrial relations at the University of Toronto, has to come with increased controls, taking into account the fact that employees, especially those in bottom-rung jobs, can’t generally tell their bosses to stuff it.
“Theoretically, you can say no, but if you keep saying no to your boss, sooner or later you’ll be classified as a bad worker, and you’re afraid of losing your job,” he says.
He suggests the legislated creation of European-style workers’ councils at job sites as one way to balance increased elasticity.
Olive branch
But the changes the government wants are very different from those that workers’ rights folks were after: longer holidays and a shorter workweek, both to help create jobs and safeguard workers’ health. They also want a re-examination of what constitutes an employee/employer relationship in light of the increasing tendency of employers to wash their hands of legislated responsibility by classifying the people who work for them as independent contractors.
One olive branch the paper offers workers is 10-day (albeit unpaid) job-protected leave to deal with personal or family crisis, illness or bereavement.
Brian Lemire of the Employment Standards Review Project declined to comment on specific concerns about the paper, pointing out that public consultations will take place across the province over the next two weeks. “We’re going to consider anything that people tell us.”
But Parkdale’s Chic, for one, isn’t optimistic.
“I know in their analysis this is how you create jobs — you make the political climate friendly to business and people come and invest here. Well, that’s great, but workers need to have some protection or they’re just going to work themselves into early graves.”
Toronto consultations will take place August 23 and 24. Call 326-6643.Highlights from Time For Change The provincial government’s proposed changes to the Employment Standards Act
* The maximum hours you can be made to work would be upped from 48 to 60 per week
* Those 60 hours per week could be averaged (unevenly) over a three-week period (that is, 80 one week, 80 the next and then 20, for an average 60 hours a week)
* Vacation time could be scheduled by the day instead of one- or two-week blocks
* No guaranteed time off on public holidays
* Ten days unpaid job-protected leave per year to deal with family or personal crisis, illness or bereavement
