EMPLOYMENT STANDARDS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES NORMES D'EMPLOI
CONTENTS
Wednesday 25 September 1996
Employment Standards Improvement Act, 1996, Bill 49, Mrs Witmer / Loi de 1996 sur l'amélioration des normes d'emploi, projet de loi 49, Mme Witmer
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Président: Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Président: Mrs Barbara Fisher (Bruce PC)
*Mr John R. Baird (Nepean PC)
Mr JackCarroll (Chatham-Kent PC)
*Mr DavidChristopherson (Hamilton Centre / -Centre ND)
Mr TedChudleigh (Halton North / -Nord PC)
Ms MarilynChurley (Riverdale ND)
Mr DwightDuncan (Windsor-Walkerville L)
Mrs BarbaraFisher (Bruce PC)
*Mr SteveGilchrist (Scarborough East / -Est PC)
*Mr PatHoy (Essex-Kent L)
Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)
*Mr BartMaves (Niagara Falls PC)
Mr BillMurdoch (Grey-Owen Sound PC)
*Mr Jerry J. Ouellette (Oshawa PC)
Mr Joseph N. Tascona (Simcoe Centre PC)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr DavidBoushy (Sarnia PC) for Mr Chudleigh
Mr GaryFox (Prince Edward-Lennox-South Hastings / Prince Edward-Lennox-
Hastings-Sud PC) for Mr Murdoch
Mr TomFroese (St Catharines-Brock PC) for Mrs Fisher
Mr MichaelGravelle (Port Arthur L) for Mr Lalonde
Mr MorleyKells (Etobicoke-Lakeshore PC) for Mr Maves
Mr JohnO'Toole (Durham East / -Est PC) for Mr Carroll
Also taking part /Autres participants et participantes:
Mr JohnHill, solicitor, legal services branch, Ministry of Labour
Clerk / Greffièr: Mr Douglas Arnott
Staff / Personnel: Mr Avrum Fenson, research officer, Legislative Research Service
Ms Laura Hopkins, legislative counsel
R-1537
EMPLOYMENT STANDARDS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES NORMES D'EMPLOI
Consideration of Bill 49, An Act to improve the Employment Standards Act / Projet de loi 49, Loi visant à améliorer la Loi sur les normes d'emploi.
The Chair (Steve Gilchrist): Good afternoon. I call the meeting to order for clause-by-clause consideration of Bill 49, An Act to improve the Employment Standards Act. You should all have in front of you the collated package of amendments received by the clerk by the appointed time. If that is the case, we'll move immediately to consideration of the various clauses.
In light of what's been proposed, I ask if there are any amendments to section 1 or 2 of the bill. Seeing none, I'll put the question.
Mr David Christopherson (Hamilton Centre): Mr Chair, on a point of order: The rules provide for a 20-minute opportunity before voting, at the request of any member of the committee, as I understand it. Is that on all votes or just on amendments?
Clerk of the Committee (Mr Douglas Arnott): That would be available to each member to ask for on each vote.
Mr Christopherson: Thank you. I'd like to request that on the first vote, please.
The Chair: There'll be a 20-minute recess.
Mr John R. Baird (Nepean): Does the question have to be put first?
The Chair: Thank you, Mr Baird. I'll put the question, at which point we'll take a 20-minute recess. Is it the favour of this committee that sections 1 and 2 of the bill carry?
We will take a 20-minute recess.
The committee recessed from 1544 to 1606.
The Chair: I call the meeting back to order. The question having been put, all those in favour of approving sections 1 and 2 signify by raising their hands. All those contrary? Sections 1 and 2 carry.
Are there any amendments to section 3 of the bill?
Mr Baird: I don't have an amendment, but I just indicate to all members of the committee that it would be the government's intention to vote against this section of the bill, relating to the minister's commitment in her opening statement on August 19 to withdraw that section.
The Chair: Any further comments or amendments?
Mr Christopherson: A question to the parliamentary assistant: Why are you pulling this out at this time?
Mr Baird: I think the minister was clear in her initial statement to the committee on August 19 that there was a terrific amount of concern on both labour's and employers' part about why we would change in terms of the package of benefits when we were undertaking a full review of the act with respect to what the employment standards would be. She had no objection, because there was a terrific amount of concern from across the spectrum, to withdrawing that section and putting it over to the full review in the fall.
Mr Christopherson: There was an equal amount of concern, in fact more concern, arguably, on other issues. Since this one was indeed pulled back for much the same reason, what rationale does the government have for saying, "We listened to people's concerns on this part and therefore we're going to make it a part of the year-long review," but not the rest? Why are you ramming through the rest when the same people who convinced you this section should be pulled were urging you to pull other sections too?
Mr Baird: I would just submit that I disagree with your assertion of "ramming" anything through.
Mr Christopherson: You can disagree with my words. You can't disagree with history. The fact of the matter is that had we not forced the issue, this would have been law by the end of last June, including this section. When I ask you now why you're pulling this out, you say because you listened to people who are concerned about it. The same people -- you can pull the records; it's there to be seen -- the very same people who had concerns about this had equal concerns about other parts. Why are you not respecting their wishes on that and folding all of those issues into the year-long review?
Mr Baird: The minister's announcement of August 19 mirrored her comments at the end of the session of the Ontario Legislature in the spring, that if it was voted upon in the spring session, she was prepared to withdraw that section of the bill pending a full review. This doesn't differ from that.
Mr Christopherson: What a lot of gobbledegook, just absolute garbage.
Let me ask another question. The discussion paper: What's the status of that discussion paper right now?
Mr Baird: It's under review within the ministry and will, I think, be released in the coming month or two.
Mr Christopherson: What is going to be the process of the review? I haven't heard it in public yet.
Mr Baird: That will be fully outlined when it's released.
Mr Christopherson: Do you have a final date as to when that review is to be completed?
Mr Baird: No.
Mr Christopherson: Do you have a date when the legislation is going to be coming in?
Mr Baird: No.
Mr Christopherson: The minister made comments -- and I referred to it when we were out on the road -- to the possibility that this flexible standards provision might in some way apply to unorganized workplaces. Are you in a position, or will you, on behalf of the government, state today that you have no intention at all of looking into anything like that?
Mr Baird: I think that section of the bill is being put forward to the full review that will take place this fall and in the winter months and will, obviously, be fully discussed with all stakeholders. Thus far the minister's had very good discussions with both business groups and the labour representatives and received some good initial input in terms of putting the discussion paper together, and that will certainly take place during that consultation period.
Mr Christopherson: So you're not prepared right now to say that will not rear its ugly head during this process?
Mr Baird: The minister's put forward the entire package contained in section 3 of the bill over to the full review, and that will be discussed broadly through all sectors of interest in the bill over the following winter months.
Mr Christopherson: I'm ascertaining from what you're saying here today that the labour movement has reason to be concerned that you'll be attempting to foist this process on even unorganized workplaces as well, that that's at least a possibility. You're not prepared to rule that out right now as ridiculous and, abhorrent a thought as that might be, you're not prepared to say that will not happen?
Mr Baird: I'm not prepared to debate section 3 of the bill, since it was announced on August 19 that it is our intention to withdraw.
Mr Christopherson: When this was put together, including this section, section 3, and the rest of Bill 49, there was no consultation, that I'm aware of, with any members of the labour movement, the leadership, that I can determine in talking to the hundreds of labour leaders that I talk to in my capacity as labour critic. If that's not correct, maybe you can set the record straight and advise me which labour leaders did indeed have input. I would also like to know whether the minister met with anyone else, outside government officials, in the development of Bill 49.
Mr Baird: I'm afraid I simply don't have that information.
Mr Christopherson: Can I get that information? Will you get that information for me?
Mr Baird: I'm certainly happy to take the request forward.
Mr Christopherson: Maybe members of the staff are aware?
Mr Baird: I'll certainly take your request back to the minister. I do not know who she did or did not consult with specifically.
Mr Christopherson: Okay. When will you get back to me? Before today is out can you let me know?
Mr Baird: I'm in committee today, sir.
Mr Christopherson: Believe me, you're going to have a couple of breaks along the way. You can make some phone calls.
I also want to go on the record as saying that this whole idea of the flexible standards, like everything in Bill 49 being put forward as something that's a positive or a plus for the workplace, was not borne out by anything we heard from anyone in the labour movement in any community across Ontario -- not one.
People recognize this as the slippery slope. They realize that in these tough economic times, with concessionary bargaining taking place in many workplaces, this a further opportunity for this government to see rights workers have eroded. Having sat at a lot of bargaining tables in my own time, I can tell you that over the course of a number of concessionary rounds of bargaining you could indeed end up with a collective agreement that has fewer rights than the Employment Standards Act in virtually every area if you had a ruthless enough employer.
That's the sort of thing this government's allowing. Whether or not that was your intention is a point of political debate. Whether or not it's possible is not. I still have not heard this government admit that is a possibility and that that's one of the reasons they've pulled it back, and, further, that they'd be prepared to say, "We're not going to raise this issue again; we're never going to talk about this again."
One has to conclude that the government, now being aware of these possibilities, feels, "Well, if it happens, so be it." We would have to believe there are elements of the government that rub their hands with glee and say, "Great, our corporate buddies are going to love this." Certainly that's borne out by the other parts of what we're going to debate in Bill 49.
I want to make sure that this government knows without question that if it attempts to legislate something like section 3, it will have a major, major battle on its hands, because it can be seen as nothing but the first step in the total eradication of any kind of minimum standards or any kind of floor or bill of rights, a guarantee, that a worker can have in this province. Working people -- not just unions -- are not going to stand back and let that happen.
The fact that you're not prepared today, parliamentary assistant, to acknowledge that you won't think about doing this in unorganized workplaces is further evidence that you have no regard at all for the rights workers have, that all you're doing is taking away the rights workers, through their unions, and the unorganized, have earned over the decades, and handing those over to people who already have the upper hand in bargaining.
Contrary to what a lot of the Tory backbenchers think, when you enter into collective bargaining, the power balance is shifted in favour of the employer 10 times out of 10. You're just making that worse. What's so personally offensive is that I know some of you know this and you're still prepared to look the other way and toe the party line, or indeed, worse yet, believe that's okay because it fits some right-wing ideological vision you have of how the corporate world ought to work, which in my opinion and that of my party and certainly my leader is a dismantling of everything that makes this a great place to live.
That may sound like a rather grandiose argument for one section of a bill, but I honestly and sincerely believe it fits into that vision, as does everything else you're doing. I intend to make sure we fight you every step of the way, both inside this Legislature and outside.
The Chair: Any further comments on section 3?
Mr Pat Hoy (Essex-Kent): We have a great deal of difficulty with this bill in total. Notwithstanding the fact that the minister did mention that this section was going to be removed, in her mind, here we have it today in black and white that you have to amend the bill right from the very beginning of its own printing. I travelled at some great distance in the wee hours of the night to attend clause-by-clause prior to this and wasn't informed that the clause-by-clause was cancelled. That's unfortunate, and apologies have been made to me, and I accept them, but it seems to me the government doesn't have its house in order when these kinds of things occur.
We believe there should be a full review of the employment standards as a package, not having it divided up in this manner, with Bill 49 and yet other pieces of employment standards to be discussed later. We think it would have been better to discuss this all at once. We've heard over and over again during committee hearings that people did indeed want to have the total package heard and not in this piecemeal way.
The government itself said that over time the Employment Standards Act was dealt with in a piecemeal fashion. I wasn't here at the time, but historically, apparently it was. I believe what you say. You're doing the very same thing by dividing it out into two different parcels. We have a great deal of difficulty with that.
Notwithstanding the fact that clause-by-clause was cancelled some time ago and we are here now today, I've just received the amendments and haven't had a great opportunity, not very much time, to look at them. We find that unfortunate as well.
Our view in the beginning was that this bill should have been withdrawn and brought back at another time, when the government's total agenda as it applies to employment standards was before us, not only as legislators but for the people of Ontario as well.
Of course I'll be voting in favour of the government's recommendation to withdraw this section. It's a very contentious one, as everyone knows. Even though it was withdrawn by the minister at the time of her talking here at committee, many groups spoke to us at length about this section. I hope the government listened to that and will bring forth something that's meaningful for the people and the workers of Ontario when it does indeed go into its full review. But we really do believe this Bill 49 should have been part of a bigger parcel, not to have employment standards discussed in a piecemeal way.
The Chair: Any further comments? Seeing none, I'll put the question. Is it the favour of the committee that section 3 carries?
Mr Christopherson: I'd like to request a 20-minute recess.
The Chair: Mr Christopherson, I wonder if I might ask you -- it's certainly your right to do that. I've just been notified that the government caucus is about to do what we indulged your caucus to do, at 4:30. I wonder if, in light of that, even for this one, you would consider instead a seven-minute adjournment so that this can be disposed of and the government members could then seek a similar recess to allow them at least 20 minutes in their caucus to debate the issue that your caucus debated earlier this afternoon.
Mr Christopherson: I hear what you're saying and I want to be equally cooperative, but I would suggest we do it the other way and make it a 27-minute break. That way, I'm not losing anything and you're still getting your opportunity.
The Chair: I asked the clerk whether that was an option, and I'm informed that I have to put the question 20 minutes after --
Mr Christopherson: We can't move that by unanimous consent, clerk?
The Chair: If it's two separate things you're requesting right now, a 20-minute recess for the vote and then, if the committee agrees, a subsequent seven-minute recess, that could be done.
Mr Christopherson: Why don't we just agree to reconvene at -- what time will you be back? Just pick a time. I'm fine with that.
The Chair: Mr Baird?
Mr Baird: Ten minutes to?
The Chair: Is there any further comment? If there is none, the committee will stand recessed till 4:50.
Mr Baird: Have you put the question?
The Chair: I did put the question.
Mr Christopherson: Is that enough time for you guys? Are you going to do this in 15 minutes?
The Chair: I see a suggestion of 5 o'clock as well.
Mr Christopherson: That's what I was thinking. If you want to come back at 5, that's fine with me. Come back at 5 and take the vote.
The Chair: Is that agreed? Okay, the committee stands recessed until 5 o'clock.
The committee recessed from 1622 to 1656.
The Chair: I call the meeting back to order. The question has been put. All those in favour of section 3? Opposed? Section 3 is defeated.
Any amendments to section 4?
Mr Baird: For the same reasons as I gave for section 3, the government recommends that the members of the committee vote against section 4 of the bill.
The Chair: Any further comments? Seeing none, I'll put the question. All those in favour of section 4? Opposed? Section 4 is defeated.
Any amendments to sections 5 through 19 of the bill? Seeing none, I'll put the question. Is it the favour of the committee that sections 5 through 19 carry? All those in favour? Contrary? Sections 5 through 19 carry.
Any amendments to section 20 of the bill?
Mr Baird: I understand I have to read the entire amendment into the record?
The Chair: Yes.
Mr Baird: I move that subsection 64.5(6) of the act, as set out in section 20 of the bill, be struck out and the following substituted:
"Powers of arbitrator
"(6) An arbitrator, a board of arbitration or the Ontario Labour Relations Board acting under section 133 of the Labour Relations Act, 1995, may make the following orders when determining a grievance alleging a contravention of this act or failure to comply with it:
"1. Any order that an employment standards officer is authorized to make under subsection 13.1(14) or section 45, 48, 51, 56.2, 58.22 or 65.
"2. An order that a referee is authorized to make under subsection 69(2) or 70(2). However, an order under this paragraph may be made only if the grievance alleges that subsection 33(2) has been contravened or that an act, agreement, arrangement or scheme is intended to defeat or defeats the true intent and purpose of this act either directly or indirectly.
"Same, directors of employer
"(6.1) If a director of the employer to whom the collective agreement applies is liable under part XIV.2 for wages owing under the agreement, an order authorized by subsection (6) may be made against the director. However, no order may be made against a director unless he or she has been given reasonable notice of the arbitration proceedings and an opportunity to participate in them.
"Restriction re directors
"(6.2) An order shall not require a director to pay an amount or take or refrain from taking an action under the collective agreement that the director could not be ordered to pay, take or refrain from taking under the act in the absence of the collective agreement."
The Chair: Thank you, Mr Baird. Any comment on the amendment? Seeing none, I'll put the question. All those in favour of the amendment?
Mr Christopherson: Chair, I have to ask for a 20-minute recess.
The Chair: Mr Christopherson has requested a 20-minute recess. The committee will stand recessed for 20 minutes.
The committee recessed from 1701 to 1721.
The Chair: The question has been put. All those in favour? Contrary? The section carries.
Mr Christopherson: Did you call the vote?
The Chair: I did. Are there any further amendments to section 20 of the bill?
Mr Baird: I move that subsection 64.5(9) of the act, as set out in section 20 of the bill, be struck out and the following substituted:
"No review
"(9) The refusal to issue an order authorized by subsection (6) is not subject to review under section 67. An order authorized by that subsection is not subject to review under sections 67 or 68.
"Notice to director
"(9.1) The arbitrator, board of arbitration or Ontario Labour Relations Board shall give a copy of his, her or its decision to the director.
"Service on directors of employer
"(9.2) Subsections 58.26(2) and (3) do not apply with respect to the service of an order on a director of the employer."
The Chair: Any comments? Seeing none, I'll put the question. Is it the favour of the committee that --
Mr Christopherson: I request a 20-minute recess, Chair.
The Chair: Okay. The question has been put, and Mr Christopherson has requested a 20-minute recess. The committee will stand recessed for 20 minutes, and from this perspective it looks like the committee will reconvene at 5:47.
The committee recessed from 1723 to 1743.
The Chair: The question having been put, all those in favour of the amendment? Contrary? The amendment carries.
Any further amendments to section 20?
Mr Baird: I move that section 20 of the bill be amended by adding the following section to the act:
"Arbitration re related employers
"64.6(1) This section applies if, during an arbitration concerning the enforcement of the act under section 64.5, an issue arises as to whether the employer to whom the collective agreement applies and another entity are one employer under subsection 12(1).
"Restriction
"(2) The arbitrator, arbitration board or Ontario Labour Relations Board shall not make a decision concerning the issue arising under subsection 12(1)."
"Notice to director
"(3) The arbitrator, board or Board shall notify the director that an issue under subsection 12(1) has arisen in the arbitration.
"Exception
"(4) The arbitrator, board or Board shall not give notice to the director if the arbitrator, board or Board determines that there has been no contravention of or failure to comply with the act in any event.
"Complaint
"(5) The notice to the director shall be deemed to be the filing of a complaint under the act by the persons who initiated the arbitration.
"Other matters in dispute
"(6) When giving notice to the director, the arbitrator, board or Board shall advise the director of any decisions made concerning the other matters in dispute.
"Scope of order
"(7) An order relating to the complaint shall not vary any decision of the arbitrator, board or Board concerning the other matters in dispute. Nor shall a decision on a review under section 67 or 68 do so.
"Amount of order
"(8) An order relating to the complaint may be made for an amount greater than is permitted under subsection 65(1.3) or less than is permitted under subsection 65(1.5).
"Same
"(9) Subsection 82.3(1) does not apply with respect to an order relating to the complaint.
"Same
"(10) If it is determined that the employer and another entity are one employer, the order relating to the complaint shall not require the entity to pay an amount or to take or refrain from taking an action under the collective agreement that the entity could not be ordered to pay, take or refrain from taking under the act in the absence of the collective agreement.
"Knowledge of the director
"(11) For the purposes of subsections 67(2), 82.1(1) and 82.2(1), the relevant facts shall be deemed to have first come to the knowledge of the director on the date on which he or she receives the notice.
"Effect under other acts, etc
"(12) A determination under subsection 12(1) that the employer and another entity are one employer does not make them one employer for the purposes of any other act or a collective agreement."
The Chair: Is there any comment on this amendment?
Mr Christopherson: A question: Given that we don't have an analysis of the amendments that are presented, could the parliamentary assistant explain to me what effect this has in terms of what it's correcting and how it will work?
Mr Baird: This is an issue, since it's of a highly technical nature, I would refer to Ron Saunders and John Hill, to my immediate right.
Mr John Hill: I'm sorry, there was one word I didn't hear in your question, so I'm not sure exactly what the question is.
Mr Christopherson: I'm just looking for an explanation of what the amendment does.
Mr Hill: The bill requires that where a unionized employee has a complaint, it be dealt with through the grievance process rather than through the ministry enforcement procedures. However, this amendment, in a situation where in the grievance an Employment Standards Act-related employer issue is raised, the arbitrator cannot make a finding on that issue; instead, the arbitrator would have to notify the director of employment standards that an issue concerning a related employer has arisen in the grievance, and the director of employment standards would assign it to a ministry employment standards officer to make a determination on the related employer issue.
The officer would be bound by any findings the arbitrator had made on any non-related employer issues and the officer would then either issue an order or not issue an order, according to his determination.
Mr Christopherson: Just further, what would have been the result if this amendment hadn't been made?
Mr Hill: Because the bill did not address specifically whether or not arbitrators would have the authority to issue orders against related employers or allegedly related employers, it would not be clear whether or not they could deal with that issue. It could be argued either way. The difficulty would be that related employers would not normally be considered to be parties to the collective agreement; therefore they might not be within the jurisdiction of the arbitrator to deal with. This amendment would make it clear that the arbitrator does not have the authority and that the related employer issue would have to be dealt with by an employment standards officer.
Mr Christopherson: It's certainly ironic that the government put forward that the whole purpose of Bill 49 was to streamline things and clarify, yet the government, in its rush to ram Bill 49 through at the end of the last session, would have created confusion, as a result of their own bill, that wasn't there before, therefore in effect doing the opposite of what the government had said they were going to do, which, I will continue to make the case, is all the more reason why the government, without having to be forced, should have recognized the importance, not only in terms of serving democracy but in good lawmaking, to have public hearings and allow an opportunity for people to comment. Even if they don't comment directly on these things, raising other issues affords an opportunity to review and look more closely, whether it's at the staff level, at the legal level or at the political level.
I want to make that case again as clearly as possible so that in the future, when we're dealing with occupational health and safety legislation, when we're dealing with WCB legislation, all these things that affect workers directly, in particular their rights, this government doesn't have to be pushed again into holding public hearings, that they recognize the importance and offer at the outset a responsible, credible period of time to travel around the province and hear input on those pieces of legislation.
I'm hoping, if the parliamentary assistant can offer me that assurance now, it would certainly make my day. If not, at the very least I urge the members to please recognize it isn't always just about politics; it oftentimes has a lot to do with good lawmaking, to take the time necessary to look at these pieces of legislation.
The Chair: Any further comment on the amendment? Seeing none, I'll put the question. Is it the favour of the committee the amendment carry?
Mr Christopherson: Can I have a 20-minute recess?
The Chair: Seeing that it is four minutes to 6 and that it would take us beyond 6 o'clock, the committee stands recessed and the question will be put promptly at 3:30 Monday, next week.
Mr Baird, do you have a point of order?
Mr Baird: If we vote on this now, just for the sake of remembering what we've voted on, since it's just been read and explained, we could adjourn right after we vote on this rather than spending 30 seconds voting on it at the beginning of Monday's session.
The Chair: We'd need unanimous consent, Mr Baird. Seeing that there is not, the committee stands recessed until 3:30 promptly, by the clock on the wall in the committee room, next Monday.
The committee adjourned at 1752.