Assemblée législative de l'Ontario

EMPLOYMENT STANDARDS IMPROVEMENT ACT, 1996 / LOI DE 1996 SUR L'AMÉLIORATION DES NORMES D'EMPLOI

CONTENTS

Monday 30 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, M^me 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 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-1543

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 (Mr Steve Gilchrist): We continue clause-by-clause deliberation on Bill 49. When we left off last week, a motion had been put to the floor. Just to remind all the members of the committee, we were on section 20 of the bill. It was government motion 6-LAH.

All those in favour of the motion? Contrary? The motion carries.

Are there any further amendments to section 20 of the bill? Seeing none, I put the question: Is it the favour of the committee that section 20 --

Mr David Christopherson (Hamilton Centre): Whoa. Just a question, a comment on it before you move to a vote. You're about to move a vote on section 20 complete, am I right?

The Chair: Yes.

Mr Christopherson: Before you do that, could I ask staff questions?

The Chair: Yes, sir.

Mr Christopherson: We've dealt with three major amendments and I've asked some questions along the way with each of them and have had a fairly detailed response on the last part of it. I would appreciate, though, for the record if the parliamentary assistant or staff would provide an overview now of the effect of all the amendments in section 20 that have now been made by this committee, if you would, please.

Mr John Hill: I will go through them subsection by subsection, which would probably be the easiest way to explain.

Subsection 64.5(6) gives the arbitrator -- I'll not repeat "board of arbitration or Ontario Labour Relations Board" each time -- the power to make any "final" order that an employment standards officer could make. It also gives the arbitrator the power to make the type of order that a referee appointed under section 69 of the act could make in two situations. Those are where there's a violation of part X of the act alleged. That is the part of the act that deals with discrimination in benefit plans. It also allows the arbitrator to make that kind of order in a case where the allegation is that the employer is engaged in a scheme or an arrangement that defeats the intent and purpose of the act. This subsection would make it clear that the arbitrator does not have other sorts of interim or preliminary powers that an employment standards officer has under the act.

Subsection (6.1) gives the arbitrator the authority to make orders against directors of the employer in the case of a corporate employer. The reason for that is that it would not otherwise be clear that the arbitrator would have that power, because a director is not a party to the collective agreement. So there may be some question, without this particular subsection, whether that kind of order could be made.

There's a restriction on that in subsection (6.2), and that simply provides that the arbitrator can't make any order against the director for something that's purely a collective agreement violation and not a violation of the Employment Standards Act in the absence of the collective agreement.

The next set of amendments in section 20 starts with subsection 64.5(9). Subsection (9) simply makes it clear that the arbitrator's decision is not subject to appeal to an adjudicator or a referee under the act. The remedy, if there is one, would be for the union or employer who is dissatisfied with the arbitrator's decision to seek judicial review.

Subsection (9.1) requires the arbitrator to give a copy of the decision to the director of employment standards and subsection (9.2) provides that subsections (2) and (3) of section 58.26 of the act, which deal with service of an order upon a director, do not apply. These provisions, if there's a dispute about service, allow an appeal to an adjudicator, and since the intention here is to exclude the adjudicator/referee system from ESA complaints that are dealt with through the grievance process, it's necessary to exclude those two subsections.

Section 20 of the bill also creates a new section, 64.6. Subsection (1) is simply the application section, which says that everything else in this 64.6 applies where an issue arises in a grievance arbitration as to whether an entity is a related employer under the Employment Standards Act.

Subsection (2) provides that the arbitrator cannot make a decision on a related employer issue. Rather, if such an issue arises during the grievance arbitration, the arbitrator is required by subsection (3) to give notice to the director of employment standards.

Subsection (4) creates an exception to that. If the arbitrator determines that whether or not the entity was a related employer would be a purely academic issue in that there wouldn't be any violation of the Employment Standards Act regardless of what way the finding went on that issue, the arbitrator in that case is not required to give notice to the director.

In the case where notice is given, it's deemed to be a complaint filed under the act; that's in subsection (5).

Subsection (6) requires the arbitrator, in his notice to the director, to advise of any decisions he's made on non-related employer issues.

Subsection (7) indicates that any finding on a non-related employer issue made by the arbitrator is binding. That would be binding both on the employment standards officer who investigates the complaint and also on an adjudicator or referee in the event that there's an appeal from the officer's decision.

Subsection (8) indicates that the maximum order provision in the act and also the provision that would allow for the making of a regulation prescribing a minimum amount for orders do not apply in the case of this type of procedure.

Subsection 82.3(1) is the provision that requires complaints, generally speaking, to be made within six months of when the wages fall due. That, again, is excluded by subsection (9).

Subsection (10) indicates, similar to the provision we spoke of a moment ago concerning directors, that if there's an order made against a related employer, that order can't require the related employer to be responsible for anything that would be a pure collective agreement violation, by which I mean a violation of a collective agreement that would not be a violation of the Employment Standards Act in the absence of the collective agreement.

Subsection (11) is meant to key in with the limitation provisions of the act which create certain time limits that are based upon when certain facts come to the knowledge of the director of employment standards, and basically what subsection (11) does is deem facts to have come to the director's knowledge in the case of this type of a procedure when the arbitrator gives notice.

Subsection (12) finally provides that any determination made under this process involving a related employer issue does not have any effect of making the other entity one employer for purposes of any other act or for purposes of the collective agreement. That's it.

The Chair: Any further questions, Mr Christopherson?

Mr Christopherson: No.

The Chair: Seeing none, I'll put the question.

Mr Christopherson: Can I have a recess?

The Chair: After I put the question is the time you can ask for a recess. I'll put the question to the committee: Is it the favour of the committee that section 20, as amended, carry?

Mr Christopherson: I request a 20-minute recess.

The Chair: Mr Christopherson has requested a 20-minute recess. The committee stands recessed for 20 minutes.

The committee recessed from 1541 to 1602.

The Chair: I call the meeting back to order. The question's on the floor.

All those in favour of section 20 carrying, as amended? Contrary? Section 20 carries.

Any amendments to section 21?

Mr Christopherson: I would move that subsection 65(1.2) of the act, as set out in subsection 21(1) of the bill, be struck out and the following substituted:

"Order

"(1.2) The employment standards officer may order the employer to pay the wages owing to the employee to the director in trust. The employment standards officer may also order the employer to pay an amount determined in the prescribed manner to the director for administrative costs.

"Administrative costs

"(1.2.1) The administrative costs shall be determined with reference to the complexity of the process and the length of time that could be required to obtain payment under the order."

Can I comment now?

The Chair: Do you wish to speak to this?

Mr Christopherson: Just briefly, we in the NDP think this goes a long way to the issue of ensuring that there's a fuller recovery possible for services that are rendered in terms of getting money that's owed from the bad-boss employer. If this language were to become the law, it would empower the branch and the ministry to go after something closer to the full amount, rather than the current act which states that it's the greater of $100 or 10%.

We heard from many presenters that this was a major impediment to showing that public sector employees can provide a cost-effective service if you give them the legislative tools to allow them to do just that and, in our opinion, negates any arguments the government may have about having to move to private sector collection agencies because they're more cost-effective. The fact of the matter is that they're only more cost-effective because they will not pay wages and benefits near the same, and that's where the profit margin comes from. At the end of the day it's going to be the employee whose rights have been violated who is going to pay that cost.

This amendment would allow us to maintain decently paying jobs in our economy as well as ensure that the cost of the work performed on behalf of the vulnerable employee is paid for by the bad boss.

Mr John R. Baird (Nepean): Just with respect to that amendment, I think the amendment would establish even more regulations. We'd have to establish regulations to justify this amendment. I think what this amendment is -- and certainly the member has every right to bring it forward -- is just basically against the spirit of the idea of privatizing the collection service that is provided within the branch.

I guess we know that ministry resources are not exclusively the determinant on the success in collections. We know that after $42-million worth of cuts by the previous government, where it cut the Ministry of Labour by more than one third of its budget, they were still only collecting 25 cents on the dollar. We know that when the previous government laid off almost 200 employees at the Ministry of Labour, we were still collecting the same 25 cents on the dollar. I think it goes to what Leah Casselman referred to in her brief as the lack of pecuniary interest, which is the whole reason why we would call on professionals with decades of experience in collections to undertake that function on behalf of workers in this province.

Mr Christopherson: We heard evidence -- it's in the Hansard; it's in the record there to be looked at by anyone -- from people who are in the collection agency, as a result of questioning by me in different communities, that pointed out a number of things. One is that the professionalism that the private sector collection agencies would bring to the task would not be diminished in any way if their talents were taken inside the public sector. That is there on the record and I've asked that question in that plain a fashion. The expertise and professionalism is there, whether it's outside in the private sector or inside in the public sector, so any argument that it can only be found in the private sector is merely a lack of will on the part of whatever party is in government at the time.

There's also ample evidence, and part of it from your own committee members, Mr Parliamentary Assistant, that much of the money that is outstanding in terms of your saying only 25 cents is being collected, is from bankrupt employers that you're not going to see collected by private collection agencies. We have evidence to that effect because I asked them that question point-blank, "If you suddenly had these cases, would you be able to get anything more from a bankrupt employer than the government's been able to get?" and the answer was a resounding, "No, we can't."

So yes, I thank you for the way you've phrased your opening comments. I very much brought this motion forward because it is opposed to the spirit of what your government's brought forward. We don't think there's rationale for it other than your ideological commitment to privatizing everything in government that you can and your political agenda that it will be your pals and cronies who will benefit from the privatization of any of these services and certainly not the working women and men and their families this legislation is there to protect.

Mr Joseph N. Tascona (Simcoe Centre): I'd just like to say that what we're dealing with here is hardly related to what my friend across the way Mr Christopherson is talking about. What we're talking about here is at the stage when the employment standards officer issues an order and the wages that are outstanding as a part of that order, plus essentially an administrative fee which is going to have to be borne by the employer, essentially enforcing their administrative, legal right to make an appeal. There's no reason to make it more onerous an aspect than it already is because the money that is owed to the employee is going to be paid to the director in trust 100% on the dollar.

What we're talking about here is something that isn't found in other remedial jurisdiction. It's essentially an amount in addition to what is already owned. So certainly the procedure that's been in place for quite a while is not being changed to any great extent and the worker is protected.

It's not a disincentive. I think if we don't watch it we're going to have a disincentive for the employer even to enforce their own legal rights to deal with a standard that's being enforced by an employment standards officer. I think what we're looking at here, on its face as the provision under Bill 49, is acceptable, and I wouldn't agree with the motion put forth by the third party.

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The Chair: Any further comments? Seeing none, I'll put the question. Is it the favour of the committee that the amendment carry? Contrary? The amendment is defeated.

Any further amendments to section 21? Seeing none, I'll put the question. Is it the favour of the committee that section 21 carries? All those in favour? Contrary? Section 21 carries.

Section 22: Are there any amendments to section 22?

Mr Baird: I move that the bill be amended by adding the following section:

"22.1 Subsection 66(1) of the act is amended" --

The Chair: Excuse me, Mr Baird. This actually is a new section. This isn't an amendment to section 22. We have to carry section 22 first, and that makes it a new section.

Mr Baird: I apologize.

The Chair: That's fine. Are there any amendments to section 22 itself?

Mr Christopherson: Mr Chair, would you explain that once more, the procedural ruling you just made.

The Chair: This is actually a new section.

Mr Christopherson: Right.

The Chair: So we would have to pass section 22, for one reason because this is not an amendment to section 22 that Mr Baird is proposing but, secondly, the matter he's discussing will arise from the successful passage, presumably, of section 22.

Mr Christopherson: I'm with you.

The Chair: Seeing no amendments to section 22 itself, I'll put the question. Is it the favour of the committee that section 22 carries? Contrary? Section 22 carries.

Mr Baird: I move that the bill be amended by adding the following section:

"22.1 Subsection 66(1) of the act is amended,

"(a) by striking out `clause 65(1)(a)' in the fourth line and substituting `subsection 65(1.1)'; and

"(b) by striking out `clause 65(1)(b)' in the seventh line and substituting `subsection 65.1(1).'"

The Chair: Do you wish to speak to the amendment?

Mr Baird: This amendment simply deals with correcting cross-references due to an earlier amendment.

The Chair: Any further comments? Seeing none, I'll put the question. Is it the favour of the committee that the amendment carry? Contrary? The section carries.

Are there any amendments to sections 23 through 27 of the act? Seeing none, is it the favour of the committee that sections 23 through 27 --

Mr John O'Toole (Durham East): May I just make a point of order or ask a question of the Chair? Not to be frivolous or anything, but I can't understand why, when we're amending just technical languaging errors and cross-referencing errors for clarity in the bill, the opposition and third party would not support those technical amendments.

The Chair: That's not a point of order.

Mr O'Toole: No, but I'd just like to go on record. It seems contradictory if they're actually clarifying the language. It isn't essentially political in that respect.

Mr Christopherson: Mr Chair, I'll just comment once briefly, because this isn't worth going too far with. But, for the record, this is a government that had to be dragged into public hearings, and that member who just spoke knows that better than most. This is a government that refused to negotiate when this clause-by-clause would take place. They unilaterally used their own powers to override our concerns and you didn't follow through on the agreement we had in the first place. If, for one minute, any part of this government thinks we're going to cooperate with the dismantling of the Employment Standards Act, either in its whole or in part, it has another think coming.

The Chair: Thank you both.

Moving back to sections 23 through 27, are there any amendments? Seeing none, I'll put the question. Is it the favour of the committee that sections 23 through 27 carry? Contrary? Sections 23 through 27 are carried.

Section 28 of the bill: Are there any amendments, comments?

Mr Baird: I move that subsection 73.0.2(4) of the act, as set out in the section 28 of the bill, be amended by striking out "Clauses 22(a) and (c) of the Collection Agencies Act do not apply" and substituting "Clause 22(a) of the Collection Agencies Act does not apply."

The Chair: Do you wish to speak to the amendment?

Mr Baird: No.

The Chair: Any comments? Seeing none, I'll put the question. Is it the favour of the committee that the amendment carry? Contrary? The amendment carries.

Any further amendments to section 28?

Mr Christopherson: I move that subsection 73.0.3(2) of the act, as set out in section 28 of the bill, be amended by striking out "75 per cent (or such other percentage as may be prescribed)" in the fourth, fifth and sixth lines, and substituting "all."

Chair, you will know that in every community we travelled in across the province there was outrage that the legislative target or ceiling would be 75% of the money that's owed to an employee by a bad boss. Anything less than setting out in legislation that the purpose is to collect 100%, particularly when you're privatizing the final service that will collect this, is merely sending out a signal to the collection agencies, your privatized friends, that 75% is your target if you want to move these cases and these files through quickly.

We have evidence from questioning that collection agencies will make more money if they can move through files quicker. Therefore, this sends out a message that 75% is the starting point and there are procedures to go less than that. We believe that the starting point ought to be nothing less than 100% and only in the most extreme situations and with valid explanation in writing by the minister should anything less than 100% be acceptable. This amendment would give effect to the argument I've just made.

Mr O'Toole: I take 73.0.3 as being very clear that under the act, if the person to whom the money is owed agrees in writing to the compromise or settlement -- each person has his own unique circumstances, and they do not have to agree. In that case, if it was for their own financial requirements or whatever, there is an opportunity for the person who is owed the money to be involved in the decision. I think it's fair and reasonable.

Mr Christopherson: I understand the argument. It makes a great deal of sense, sitting here in a committee room safely ensconced in the Legislative Assembly. The fact of the matter is, we heard evidence across the province that the reality is that the people most likely to be hurt by bad bosses are often people whose first language is not English, who do not have a good handle on the legislative and legal process, and that it would be very easy for them to be concerned, even feel pressured. In fact, your legislation, by saying the collection agencies can't pressure or create a fraudulent situation, merely points out the reality that that could happen.

We're very concerned that there'll be people who will agree to things because they're maybe coerced, but certainly at the very least unsure of themselves, don't know what their rights are, or are so financially destitute that they'll take as much as they can get if it's cash in the hand rather than the long legal process that may face them -- if that argument's put to them -- if they didn't take this money. At the end of the day, we believe there will be people who will accept and sign agreements that give them less than they're entitled to merely because they don't know, and the rules don't assist them and the legislation doesn't assist them and this government won't assist them, that they can get 100%, which is what they're entitled to.

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Mr Baird: I appreciate the member's opposition to privatization. There is obviously a difference of opinion there, and I don't want to debate the pros or cons of that with respect to this section.

I think it's important to note that the section with respect to the 75% is not a new law, is not a new way of doing things. This is something that has been done within the ministry for a number of years, regrettably, by the current Minister of Labour and her two or three immediate predecessors. Regrettably, there are circumstances where you cannot get 100%. We want to get 100% for every individual we can. Of the collections -- it goes back to an amendment that was made earlier -- 21% of the cases involve bankruptcies; 3%, I believe, are insolvencies.

Beyond that 24%, obviously with these bad bosses, these deadbeat bosses, not living up to the Employment Standards Act usually isn't their only problem. They're usually bad business people, facing more financial circumstances which impede the workers' ability to get their money. We learned in Ottawa from two or three presenters that sometimes you have to go to the well and get your half a pail of water while there's still any water to get. These are going down very quickly.

The motive for putting 75% in the act with respect to the collection agent's function -- right now that function is undertaken within the ministry; it's a function that's undertaken by this government, a function that was undertaken by the previous minister. At times, regrettably, the worker may choose to settle for less than 100 cents on the dollar. There are occasions when a company could be facing bankruptcy in the coming weeks and that worker may know they'd better get their money out of there as soon as possible.

This 75% is there to have a final point of contact between the ministry to ensure that reasonable precautions have been taken. It is put there, believe it or not, to protect the worker. That was the motive behind putting it there. It just codifies what is the practice of this Minister of Labour and of previous ministers of labour, particularly Bob Mackenzie. Regrettably, you have to do this from time to time. No one is happy when a worker receives less than everything they're entitled to.

Mr Tascona: The reality of the work situation is that not everyone is a perfect employer. If they were, we wouldn't have remedial legislation. The reality is that employment standards officers currently have settlement powers to make the best deal they possibly can to get the worker some wages. They do a very good job at that in terms of trying to get some resolution to the matter. The intent of the language that's being put forth serves no real purpose. Practically speaking, it's just greater paperwork and will essentially saddle the collectors with doing paperwork rather than collecting.

The yardstick that's been put out there -- and I think the parliamentary assistant has ably put it -- at 75% is a yardstick that should be respected and can be worked with, and the director has the final say in terms of the final resolution of the matter. I believe what the government's put forth is realistic in terms of the workplace environment we're facing today.

Mr Christopherson: I would reject all the arguments that are being made in the context of this government's misleading of people right from the beginning with the name of the act, to call this an improvement. There's nothing in here that improves anything for the most vulnerable workers of this province. To suggest that somehow you're making it better by taking a current practice -- and I don't dispute that there may be current practices similar to that, but to say you're going to codify that at the same time you're privatizing the work, and say that's an improvement or it's in the context of an improvement, to me is misleading at the very least and is a deliberate attempt to camouflage what some collection agencies may do.

The fact of the matter is, when you've got people whose main purpose is to close a file -- and we have that on the record. I have asked those agencies. At the time, I pointed out that that's not an evil unto itself. They're entitled to run a business and make a profit. That's why they exist. The people who are out there negotiating these deals are working for an employer whose purpose is to close the file, and the more files they close, the more money they make. That is a very different motive than a public servant whose sole motive is to get 100% or as close to that as possible for the employee and not question how cost-effective this is. For that employee, if they're at a minimum-wage level, you can imagine what their standard of living is, and $100 or $500 may make the difference between whether they have a Christmas or not.

Yes, the law up until now provided that public servants, in a not necessarily cost-effective way, went out motivated to get as much money as they could for that employee, and then and only then would they close the file. Your government is putting the target at 75% and then hiring out what will, I have no doubt, be your friends who are going to get these contracts. Their motivation is going to be, "Get as much as I can, get the file closed and move on, because that's how I make money." That's the world we're entering into as a result of the changes you're making.

That's why I'm putting forward an amendment that would at least in some part put a requirement to look at the wronged employee first rather than leaving all this to the vagaries of the marketplace, which says, "The more money you make, therefore the better job you must be doing." In this case that's not true, and that's what we're trying to do with this amendment.

The Chair: Any further comment? Seeing none, I'll put the question on the amendment. All those in favour of the amendment carrying? Contrary? The amendment is defeated.

Any further amendments to section 28?

Mr Christopherson: I move that subsection 73.0.3(2) of the act, as set out in section 28 of the bill, be amended by striking out "the director" in the second-last line and substituting "the minister."

This is further to the arguments I've laid out for why we moved the previous amendment, and there's one more to follow. All of this is to try to offset the damage that privatizing this important service for the most vulnerable workers in Ontario will do, recognizing that we still believe this is a bad move, but if you're going to do it, at the very least these three amendments would have helped.

After we said that you should in legislation be targeting for all the money, not 75%, which my previous amendment did, this amendment says that if there's an exception to that 100%, it's not the director who can do it; it's now got to be the minister. The minister must take personal responsibility for allowing anything less than 100% of money owed to be acceptable. This amendment would make that the law as it pertains to ministerial responsibility in this regard.

The Chair: Further comments? Seeing none, I'll put the question. All those in favour of the amendment carrying? Contrary? The amendment is defeated.

Further amendments to section 28?

Mr Christopherson: I move that subsection 73.0.3(2) of the act, as set out in section 28 of the bill, be amended by adding at the end "and gives written reasons for his or her decision to approve it, explaining why in the circumstances it is reasonable to agree to an amount that is less than the total owing under the act."

The purpose of this, as I've said, is the third part of trying to mitigate some of the damage you will do to the rights of the most vulnerable workers by privatizing collection. First of all, we said that 100% of the money, laid out in law, is to be the target. Second, we said anything less than that must be the minister going on the hook for that decision, not just a director. Third, we're saying it's not enough, as the law now says, only to approve in writing. We think there ought to be an explanation in writing of why in these circumstances anything less than 100% is acceptable to that minister.

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The Chair: Further comments? Seeing none, I'll put the question. All those in favour of the amendment carrying? Contrary? The amendment's defeated.

Further amendments to section 28?

Mr Baird: I move that section 73.0.3 of the act, as set out in section 28 of the bill, be amended by adding the following subsection:

"Apportionment of payment

"(3.1) The amount paid shall be apportioned in the prescribed manner among all persons to whom money is owed, including the director and the collector."

I think this just follows through with discussions we've had at great length.

Mr Christopherson: I want to ask a few questions about this one. This may come up in other areas, so if I overlap, I leave it up to you, Chair, to give me the discretion, or if you want to rein me back, I'll deal with it in a broader discussion of 28.

I want to be 100% clear on the process we followed in terms of what constitutes final amounts and what's going to be apportioned beyond what goes to the employee. I'll give the parliamentary assistant a situation where someone's owed wages, for whatever purpose -- benefits, overtime. An employment standards officer is brought in. There's deemed to be a violation of the act. There's an order for, let's say, $1,000. It's not being paid. The order's not being respected. It's handed over to a collection agency. The collection agency now steps into the situation. When they negotiate an amount, are they negotiating an amount that includes all the administrative costs for the government and fees for the collection agency on top of the $1,000 as the starting point? Would that be the way you'd do it? You would go for, say, $1,250 from that employer?

Mr Baird: Yes. To clarify that with a dollar number -- this obviously came up a number of times during the process -- let's say the order was $1,000. As previously discussed this morning, there would be a 10% administration fee, which would be in that case $100, and for argument's sake let's say the collection agent's fee is 20% --

Mr Christopherson: That's low.

Mr Baird: Let's say 30%.

Mr Christopherson: Still low.

Mr Baird: The collection agent would then seek $1,400; $1,000 for the worker who's owed and been cheated out of their money, $100 for the ministry's administrative fee, and $300 for the fee of the collection agent. This did come up a number of times during the hearings where there was some discussion and concern about exactly how that worked out.

Mr Christopherson: I know it did, and it was less than clear at the end of the day, which is why at this stage I want to be crystal clear. Let's then further assume for the sake of argument that the collection agency doesn't believe it can collect $1,400. In their professional opinion $1,400 is not achievable, for whatever reason, but $750 is. What then happens? Let's assume the director agrees that $750 is the most we're going to get out, because they're going down or for whatever reason; there could be a whole host of them. The collection agency and the officials in the ministry believe that $750 is the most they're going to get. Whether that's right or not is not the point. For the sake of argument, they're going to get $750. What happens to that $750?

Mr Baird: I'll apportion it maybe at $700 just for mathematics' sake.

Mr Christopherson: Is it going to be 10% and 30% off the $750?

Mr Baird: If the collection agency feels that in this case it's less than 75%, that the company which has been issued an order and has not paid or appealed within 45 days, for example, is in imminent bankruptcy, they can try to get as much money now before that company crashes and burns --

Mr Christopherson: Whatever. Let's just say they think that should be collected.

Mr Baird: If they could get $700, for example, of $1,400, obviously it would be apportioned in the same way, on a percentage basis. The collection agent wouldn't get their full fee, we wouldn't get the full 10% of the $1,000, and the worker would get the same apportionment. For example, if it was $700, they would be entitled to 70% of the money they were able to collect.

Mr Christopherson: You see, therein lies our major concern. I see you getting some advice from staff; I'll give you a chance to add to your answer if you want. Maybe you need a recess? No? I'm just trying to help.

Mr Baird: Obviously, we're going to have some experience in this process with respect to operating with a collection agency as we go through the process. This would basically establish that we could establish a regulation in terms of an apportionment. For example, with the 10% administrative fee for the ministry, our experience will tell us whether that is appropriately waived. Obviously, though, the collection agency fee would be apportioned the same as the worker's entitlement to their money.

Regrettably, though, when a company's about ready to go bankrupt, the question is, we want to get as much money as we can get before they do. We know that these types of employers are deadbeats, and if they're deadbeats with employment standards, they're probably deadbeats with their creditors. Do we want to try to get as much money out of them before they do crash and burn and there's no money to be had? I don't think anyone is pleased in these instances. The question is, how can we do the very best we can for the worker? The apportionment would be along the same percentage terms.

Mr Christopherson: Where we differ very dramatically is your blind belief that by privatizing this, somehow that's going to guarantee more money collected. I think the evidence we've heard across the province is to the contrary, that indeed if you actually hired the professionals from the private sector into the public sector to properly train staff and had enough staff to do the job and they had the legal tools they need to do the job, it could be done inside the ministry and it wouldn't be 30% of this money that's going to pay for the private collection agency.

That is why you heard representative after representative after representative saying that you're not only privatizing an important public service, but you're going to make the victim pay for it. If you'd had that same professional, trained as they were in the private sector, in the public sector -- and there's evidence to show that can be done; the private collection agency experts admitted that themselves -- if you had those properly trained staff going out there into the workplace, none of that $750 would be going towards paying the privatized service.

That's why we will claim to the end that what you are doing is making the victim pay, and it'll be private sector buddies of yours who will benefit, and it'll be people making less money than public sector servants, who make at least a decent wage -- which helps our economy, contrary to what you believe, that it hurts us to have decent-paying jobs. That privatized worker will be making less money with probably less protection. Hell, they'll need the Employment Standards Act, in some instances, as much as anybody else. At the end of the day, their wages and the profit of that corporation are being paid by the worker who's being ripped off. That's why you heard the outcry you did, and why you'll continue to hear from us.

Mr Baird: I would just indicate that I agreed with Leah Casselman in her presentation when she said it was an issue of pecuniary interest, of personal interest. That, in my judgement, is the determinant of success. We heard from a number of collection agencies, particularly in Ottawa, as you'll recall, that made that exact point. But I appreciate that there's a point of debate, and that's reasonable; people can differ.

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Mr Christopherson: Does that mean that the only reason you're in politics is because of the paycheque you're given?

Mr Baird: No. I'm saying that if an individual would make a profit and be financially better off, they would more likely have more success with respect to collecting funds. It's unfair, in my judgement, to compare a salaried public servant who is going to make the same amount of money regardless of their success while also undertaking employment standards investigations. Rather, if you put the service out to people with 20 or 30 years' experience who have a financial reason to benefit -- that's why, for example, salespeople operate on commissions; it gives them more of an incentive to undertake their function. I think the exact issue Leah Casselman brought forward in her presentation is with respect to a pecuniary interest.

Mr Pat Hoy (Essex-Kent): I want to understand this clearly. You say that in cases where 100% of the dollars are not going to be available -- you cite bankruptcy, but it could be just an unwillingness to pay, I suppose. We used the example of $1,000 for the worker, $100 to the ministry and $300 to the collector. You can't get that money or it's deemed that that money can't be garnered, so we used a figure of $700. The apportionment between the worker, the ministry and the collector would be dealt with by regulation, to decide what percentage each person would get of the amount less than 100% of what's owing?

Mr Baird: Obviously, there would be an issue with respect to what the collector's fee is. That would have to go to, I presume, a competitive bid type of situation, where the ministry would contract the services of a collection agency and at what fee they would collect. The clear idea would be to apportion it along the same ratio of $1,000, $300 and $100.

Mr Hoy: So the collector would suffer a loss of equal percentage to the employee?

Mr Baird: Exactly.

Mr Christopherson: To close the argument on privatizing and the motivation of people, I want to say for the record that I think one of the problems with this government is that they truly seem to believe that if you're in the public sector, somehow you are less of a worker than someone who is in the private sector, just by virtue of that designation, which is why I used the example of the parliamentary assistant being in this for his paycheque. I don't believe that. I happen to believe, even though I disagree with him, that he's here for the right reasons. I think he wants to help people. He's just a poor, misguided soul who doesn't quite know how to do that.

But the fact that he's a public sector employee, which he is, doesn't negate the motivation he brings to this job, whether he was on commission or not. You do a real disservice to people and you deny them the opportunity to be professionals. There are public servants in this room right now, and you're insulting them by suggesting that they would only do a better job if they were paid on commission or had some financial incentive, rather than the fact that they are people who are committed to doing a good job because it helps people and that they bring professionalism to that job. I happen to believe that. Clearly, you and your members don't.

We are saying that if, instead of thinking you have to have a financial motivation, you left the professional motivation of those public servants in the collection agency and allowed proper billing to the bad-boss employers who should pay the full amount of doing this and don't take away from the amount workers get, particularly if it is going to be less than 100%, you really would be making an improvement to the system, but you're not.

Everything you're doing here is as an apologist for your massive privatization, which is just your ideology at work. You even have the baldfaced audacity to call it improvements when you know, John, in your heart of hearts that this is not an improvement to these standards. You know that, yet you come in here and carry the can, in this case I guess for a parliamentary assistant's fee -- maybe you've lost your argument there. But the fact of the matter is that nobody can go through this and look at this privatization and see this as anything other than paying off your corporate pals by giving them a chance to make money in areas where it should be a public service, and off the backs of the most vulnerable. That's what's most disgusting.

Mr Baird: I certainly don't believe that every single public service should be privatized. There are many, many fine examples where public servants do a tremendously effective job for the taxpayers. My father was a public servant until he retired, my stepmother is a public servant, my sister is a public servant, and they do very good work. There are public servants right across this province and right across this country who do an excellent job. My point is that in some instances there are clear examples where the private sector could better undertake those functions, and I guess there's just a fair disagreement.

Mr Christopherson: It doesn't hold up. It didn't hold up in any community across the province, that argument you just made.

Mr Tascona: I'd rather focus on the amendment rather than a discussion on something that is totally irrelevant to what we're trying to accomplish here. The employment standards officers' focus should be on enforcing the act, not on the collection functions which were forced upon them by the previous government. The amendments with respect to the union role in the process for employment standards are long overdue, so what essentially is happening here is that the non-union area is being given the resources it deserves. What we're dealing with here, in essence, are the delinquent employers the employment standards officer really does not have the time to go around and chase. We're putting it in the hands of professionals in terms of an area in which they have expertise to do what has to be done to give greater protection to the worker.

The apportionment of payment amendment I certainly support. It just makes sense and it should be dealt with in a prescribed manner. I can support it.

Mr O'Toole: I first want to make very clear on the record that the first intent is to get 100% of what has been the court order for the employee. I believe the enforcement activity is what we're trying to concentrate the resources on to help the most vulnerable and give them the clear mandate to enforce the regulations through the investigation.

But I might point out what we're adding here: If the original order was $1,000 -- do your arithmetic -- and we settle for 75% after we've added the $400 of administration and collection fee, 75% of $1,400 is $1,050, so the employer is still going to end up paying more if they don't conform to the order. If you look at it in balance, the employer is best to pay the order without any collector being involved. All he's going to end up paying is the administration fee, the 10%, and he can avoid the extra charge. Look at it: Why wouldn't the collector be encouraged to get 100%? He would get a 25% raise by collecting all the money.

The Chair: Any further comments? Seeing none, I'll put the question. All those in favour of the amendment? Contrary? The amendment carries.

Are there any further amendments to section 28? Seeing none, I'll put the question: Is it the favour of the committee that section 28, as amended, carry?

Mr Christopherson: Questions on that motion?

The Chair: Questions on the motion? Do you mean a comment on section 28 in general?

Mr Christopherson: Yes.

The Chair: Oh, please.

Mr Christopherson: That's the motion, right? The motion is to accept section 28?

The Chair: Yes.

Mr Christopherson: I'm asking questions on that. It was mentioned by the parliamentary assistant that there will be at least one new regulation created as a result of one of the amendments within section 28. Would the parliamentary assistant or the staff advise how many new regulations will have to be created as a result of section 28? Is it just the one?

Mr Hill: I want to be sure I give you the right answer. It is just one. The effect of the motion -- the apportionment scheme -- would be done in a single regulation. It could end up being a fairly simple or a somewhat more complicated regulation, depending on exactly what kind of apportionment the government had in mind. I don't know what is contemplated at this point. As I say, it could be a fairly simple scheme, it could be somewhat more complicated, but it would be done in a single regulation.

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Mr Christopherson: Is there a possibility this regulation would generate any paperwork for anybody within the ministry or is the parliamentary assistant comfortable guaranteeing that there'll be no paperwork required on anybody's part as a result of some directive imposed within a regulation?

Mr Baird: There would certainly be paperwork to close a file if an unpaid order goes to a collection agent and is collected. We'll obviously have to have some paperwork to close the file because we'll have done our job for the worker.

Mr Christopherson: It maybe belies your point all along that without question fewer regulations and less red tape make for better government. The fact of the matter is that there are occasions when it does make sense to regulate and there are occasions when it makes good sense, even if it means generating paperwork, to protect the rights of the people you claim to be caring about when you do it. Would you agree?

Mr Baird: I agree.

The Chair: Any further questions? Seeing none, I'll put the question again: Is it the favour of the committee that section 28, as amended, carry? Contrary? Section 28, as amended, is carried.

Any amendments to section 29? Seeing none, I'll put the question: Is it the favour of the committee that section 29 carry? Contrary? Section 29 is carried.

Are there any amendments to section 30 of the bill?

Mr Christopherson: I seek the assistance of the Chair, but I believe the amendment I circulated is in order at this time in terms of its numerical placing.

The Chair: Yes, it would be the next one in sequence.

Mr Christopherson: Therefore, I move that section 30 of the bill be amended by adding the following section to the act (before section 75.1):

"Posting re rights of employees

"75.0.1(1) Every employer shall post in the employer's workplaces a summary of the rights of employees under this act and a notice setting out the address and telephone number of the director's office nearest the workplace.

"Same

"(2) The summary must contain such information as may be prescribed.

"Same

"(3) The summary and notice must be posted in a prominent place in the workplace in such a manner that they may be read by all of the employees in the workplace."

We heard from an overwhelming number of people who said that part of the difficulty of vulnerable workers enforcing their rights is that they don't know what they are. There are numerous occasions where government backbenchers are on the record as talking about the need to educate both employers and employees in order to ensure that people's rights are being met. There were even employers, as I recall, who felt that posting the rights in the workplace was a good idea for workers.

I would like to hear very clearly why something like this would not be supported by the government, because if it doesn't pass now it means the government majority overruled it. All this says is -- and we already do it for health and safety -- that if we recognize that people not knowing their rights is one of the major reasons why their rights aren't enforced, and if we've heard from worker representatives and employers themselves, as well as government backbenchers, that educating everyone as to the Employment Standards Act and the protection and rights that are contained therein is an important part of making sure people's rights are upheld, what on earth would prevent this government from at least making one real improvement in an act that's been given that title but that does nothing of the sort, other than in a couple of minor areas?

For once, make a real change. Show that you actually listened to what people had to say. I can't imagine a legitimate argument that would prevent the government backbenchers from asserting their right as members and not just puppets on a string being told when to vote and when not to, to say, "I supported a motion that said the rights of vulnerable workers had to be posted in the workplace," and be prepared to stand up and defend that you did that for vulnerable workers.

Mr Baird: In the current Employment Standards Act, section 75 reads, "The director may require an employer to post and keep posted a notice relating to the administration or enforcement of this act or the regulations in a conspicuous place where it is most likely to come to the attention of the employees, and the employer shall post and keep posted any such notice." It's in the current act. There's obviously a little bit of a difference.

Having said that, the minister has no major problem with respect to posting the act. It's something that, in principle, she supports. With respect to this amendment, however, she feels two things. First, in subsection (1) of your amendment it deals with setting out the address and telephone number of the director's office nearest the workplace. Obviously, there would have to be a differentiation with respect to union and non-union places of employment. Union places of employment would obviously be dealt with in a different manner. Second, would there be an exemption with respect to small business? What about home-based businesses? Would someone be required to post it in their home and what not? For those two reasons, it will be put off to the full review, but in principle the minister has no violent objection and wishes to consult more on this issue with the full review.

Mr Tascona: Certainly, posting of a statute in terms of the requirements for employees is something that occurs where there are violations found under the act for human rights and also the Ontario Labour Relations Act. That's something that's not new and that's certainly designed as a remedy against employers that are really deserving of being made aware of the rights that employees should have.

Practically speaking, this is a bureaucratic nightmare. I could see an approach of saying: "All employers, you have to register with us and we also would like you also to do an audit. You may need to know all the languages you have within your workplace because we're going to have to make sure that everybody can understand this." I think that may result in an invasion of someone's privacy in terms of whether they want to indicate what language they have or an employer saying, "These are the languages we think people speak based on what their name is." How far do we go with this type of an approach? I think it's a typical approach that the third party used when it was in government, to boss people around, especially employers, saying, "You do it our way or take the highway."

If it's used for an education purpose -- I asked the question many a time dealing with associations that represented many employers and they said they do educate their members in terms of these programs. I know the government takes a role with respect to making sure the employment standards officers would educate the employers within the area they service. It's not a matter of education; it is a matter of having the remedies, and it's certainly within the act right now to make sure that where there have been violations the employer is duly noted and the employees are aware of their rights when you're dealing with a problem employer. This basic amendment presumes that all employers are bad, and I can't accept something like that because they're not. But I'm not in favour of a bureaucratic registry system in terms of a posting. We're dealing with a system that hasn't been addressed for many years and it's not a system that I feel has broken down in terms of the rights and the standards that are there. I think what we're hearing here is an overreaction to a problem that can be dealt with intelligently. So I can't support a motion such as this.

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Mr O'Toole: I'll try to be brief. I would first like to go on record as encouraging the education of the public at large. I'm wondering if Mr Christopherson is interested in listening. A fellow by the name of Tim Eye appeared before the public hearings. He represents the Durham Labour Council. I've spoken with him since, and I know my friend Jerry Ouellette has as well. We've talked about the importance of career training today. We've talked about the cooperative education in our high schools, the revamping of post-secondary. Even in a main academic curriculum like Law and Society, today many of the employment standards officers visit the schools, when invited, and conduct information sessions.

When I ask myself about the percentage of bad bosses we hear about, it would appear to me that they are in the minority and that they're in violation probably of other particular statutes, and yet we're going to penalize every employer, as if they're bad bosses, with another layer of red tape and bureaucracy, which we're all trying to avoid, and so the real outcome is that you're penalizing the good boss.

I would throw it up to you, Mr Christopherson, that the unions do make a very good point: It is an important part of their mandate to stand up for all workers. I think they'd better spend their money on the campaign to educate people with the right and correct information and statutes, rather than some of the rhetoric we'll hear on October 25 and onward. Technically, Gord Wilson and the CAW and the Steelworkers and the whole group should definitely focus on their mandate of educating all workers about their rights. We all want to stop bad bosses. I think it will get done. The message will get out just by these hearings alone.

Mr Christopherson: Which you guys didn't want to have in the first place.

Mr Jerry J. Ouellette (Oshawa): I understand the member putting this amendment forward. However, I think the way it's worded, for example, in the business I was in in the past, dealing with conventions and trade shows, it would cause a real nightmare to find out all the information and having people brought on and having a posting in each place. A presentation I had within the past two weeks on the Internet, and people working out of their house, working the Internet, would cause some difficulty there in the way it would work. I understand and I agree that the need for communication of the bill is necessary, but I think the way it's worded here would cause more difficulty than good.

Mr Christopherson: I appreciate the thoughtful, constructive comments of Mr Ouellette. Some of you I'll just say at least had the decency to go and do what you had to do as government backbenchers and either asked questions or said nothing. I separate that very much from those who bloody well know what this act is and are prepared to act as the apologists for the people who crafted this, because I know damn well none of you had much say in it and you just have to live with yourselves down the road as to why you did what you did.

Given what you said, Mr Ouellette, I do respect the fact that I think you're one of those who has tried to listen as much as possible, although you're still Tory and you're going to be there for them, but I think you did try to listen and I appreciate your comments. Mr Baird's I think were fair to the point of at least representing one side. What I would ask of the parliamentary assistant is, if there's enough sincerity and agreeing in principle, will you agree, because we have the time, to table my amendment and allow your ministry officials to work with my staff and see if we can't come up with language that is acceptable and make it a part of this bill? Would you be prepared to do that?

Mr Baird: As I mentioned, the minister is pleased to give very serious consideration to this issue. Having said that, this is not something that was contained in the first reading of the bill. It's not something we consulted a terrific amount about across the province.

Mr Christopherson: No, because it's a real improvement.

Mr Baird: Having said that, if you are genuinely interested, which I certainly believe you are, we're very happy to put this over to the full review and to set up an opportunity for you to talk to the government about it, because it's not an amendment that we take as a hostile one.

The question is, how could it best be done? An additional concern I would have is that I wouldn't want anyone to say: "Look, the government's getting serious. They're going to get tough on deadbeat employers. They're going to require these deadbeats to post the act." So all those people, all those seamstresses we saw here sitting in this very room who were paid $2 an hour, they won't have to worry because the employer who was paying them $2 an hour will of course post the act saying he's required to pay them $6.85. In and of itself, I have that concern that it would create some sort of false consciousness as to what the real result of it would be. It certainly couldn't have a negative result, but I think, in and of itself, it might suggest that we've tried to find a response to a comprehensive review through a very minor amendment that I just don't see being the full answer to the problem.

We're very happy to put it over to the full review, and if you'd like to make any form of presentation in that review, we'd be very happy to have you participate. And I'm genuine in that.

Mr Christopherson: No. I'm still going to go on the assumption I think you're trying to be helpful. I would much prefer to see it passed now. I don't think it's nearly as difficult. I think there's time for us to work together, but I can count and at the end of the debate, regardless of who was the best debater, the will of the government will prevail. I understand that.

Could I ask then as a sign of good faith that the committee merely pass a motion that would refer this NDP amendment to the minister's process for consideration?

Mr Baird: If you could get this here by 6 o'clock, I would.

Mr Christopherson: Well, we shall see. We're not doing too bad right now, are we? So far I'm in a good mood.

Mr Baird: I'm not complaining at all.

Mr Christopherson: No. Would you agree to have the committee -- and I'm open to the wording; I'm not playing games -- but have it referred from this committee by a majority, what I hope would be a unanimous vote referred from here, this NDP amendment to the broader review being conducted by the minister?

Mr Baird: For consideration?

Mr Christopherson: For consideration.

Mr Baird: Absolutely.

Mr Christopherson: Then I would so move, Mr Chair.

The Chair: Actually there's a motion on the floor already, Mr Christopherson, so I can't take your motion.

Mr Christopherson: I think a motion to refer is in order on a main motion. The motion is that this be referred to the minister's review. That takes it off the agenda of this committee and it goes off elsewhere. That's what referral motions do.

Mrs Barbara Fisher (Bruce): You should take it first, then the motion.

Mr Christopherson: That's fine.

The Chair: Actually there's no mechanism to table. In committee, as you're aware, Mr Christopherson --

Mr Christopherson: How about I withdraw it and then refer it?

The Chair: Technically speaking, it should be made at the conclusion of the proceedings on the bill itself.

Mr Baird: We'd have no objection to that.

Mr Christopherson: Okay. I'll wait till the end and then I'll move the motion. I'd ask you to call me at the appropriate time to do it.

The Chair: I will do that.

Mr Christopherson: Thank you.

Mr O'Toole: Has he withdrawn this amendment?

The Chair: No, no. We're now about to deal with the amendment before you to section 30 of the bill, section 75.0.1 of the act.

Mr Christopherson: I was distracted.

The Chair: I'm just telling Mr O'Toole we are dealing with your amendment now for a vote.

Mr Christopherson: Right.

The Chair: Any further comments on the amendment? Seeing none, I'll put the question. Is it the favour of the committee that the amendment carry? All those in favour?

Mr Christopherson: Sorry, Chair. Is this the one we just dealt with that you said is coming up at the end?

The Chair: You had made this motion already. We must dispose of this motion before we can deal with anything else in the committee.

Mr Baird: I guess you wish to withdraw it.

Mr Christopherson: Yes. Rather than have it voted down, I'd be willing to withdraw, Chair.

The Chair: Withdrawn?

Mr Christopherson: In the interest of referring it to the end, yes.

The Chair: Thank you. Are there any further amendments to section 30 of the bill?

Mr Christopherson: I move that the bill be amended by adding the following section, 30.1.

The Chair: Excuse me, Mr Christopherson. That's actually an addition. That will be a new section, so we have to dispose of section 30 first.

Mr O'Toole: Section 30.1 is a new section.

The Chair: That will be considered a new section, so not an amendment to section 30 itself.

Mr Christopherson: Okay. You'll allow it after this vote then?

The Chair: Oh, absolutely. So the question is, are there any further amendments to section 30 itself? Seeing none, I'll put the question. Is it the favour of the committee that section 30 carry? Contrary? Section 30 is carried.

Mr Christopherson: I move the bill be amended by adding the following section:

"30.1 The act is amended by adding the following section:

"Just cause required

"76.1(1) An employer shall not dismiss or discipline an employee without just cause.

"Same

"(2) Subsection (1) does not apply during a probationary period of a maximum of six months when the employer first employs the employee."

The Chair: Do you wish to speak to the motion?

Mr Christopherson: My comments are that I think most people would be very surprised to learn that they don't currently have the right to be fired for just cause only. Most people believe that it's either a common law or codified that you can only fire someone if you have a just cause. I'm not aware of a collective agreement that exists, and I've had a fair bit of experience in this area, where that isn't an automatic that an employer cannot fire someone without just cause. It's a fundamental part of virtually all collective agreements, the same as seniority is. Then it spells out a process for determining whether or not someone should be allowed to be fired.

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The fact of the matter is that, again, if the government wants to improve the bill and truly give improvement in the rights that workers have, this is a tried and true approach that works. It's a fundamental part of every collective agreement. Every employer who deals with a unionized workplace knows that they cannot unilaterally fire someone, and at the end of the day it's not just a question of whether they be sued or not for wages, but the fact is that under that collective agreement, that employee can be put back in their job and made whole, 100%, over and above the wages and benefits that they may be owed.

If you really want to make an improvement in this law, then give all workers the right, the very simple, fundamental right that you can't be fired except for just cause, and then if it's found that you were fired inappropriately, you can be put back to work and given your job back. Right now, except in very exceptional and special circumstances, you can't. You can be given money, you can be given all different kinds of awards, but you cannot be given your job back by a judge, for instance. This would allow a worker to have the same fundamental right as any kind of unionized employee. I'd be very interested in hearing why the government might be opposed to giving such a fundamental right that most workers believe they have anyway at this time.

Mr Baird: I'd just ask the Chair for guidance on this. While this amendment establishes a new section of the bill, I think the issue contained in the amendment is something that wasn't addressed on the first reading of the bill and it's fair to say it certainly does lie well beyond its size and scope. Could I ask for some guidance as to whether or not it's in order?

Mr Christopherson: Can I comment before you rule, Chair? I just want to advise that even if for some reason you don't think it technically fits, I believe it does and would make that argument if you rule that way, but I would also argue it certainly is part of the larger part of the bill which says this is an improvement to the Employment Standards Act. Clearly, what I'm moving here is indeed an improvement and therefore falls under the purview of the full title of the bill.

The Chair: Thank you. Give me one moment to consult with the clerk and legislative counsel.

Mr Christopherson: John, you can always vote it down. Why do you have to play technicalities?

Mr Baird: I don't think we should get into any broad discussion in terms of what components would be good to augment section 76 of the bill, which currently deals with reprisals --

Mr Christopherson: I think you're just afraid to make the arguments.

The Chair: Thank you for both of your submissions. As legislative counsel reminds me, the test to which we must submit any new section is whether a person in the community at large would have a reasonable expectation that a topic being introduced would have fallen under the purview of the act. I guess, in the broadest sense, perhaps you could argue that this is an employment standard. On the other hand, to the best of my knowledge, there's nowhere else in the bill before us today that we deal with hiring and firing, and I think if I had to come down on either side I would have to rule that this is out of order because it introduces a topic which is not within the scope of the bill before us today, Mr Christopherson.

Mr Christopherson: My comment to that would be that I obviously disagree. I believe there were enough presenters who talked about the need for a just-cause clause to legitimize my introducing this amendment at this time. I would have thought, given the attempted evenhandedness that I think you've brought to the job to this moment, recognizing there's an overwhelming majority of government members here, that if there were a doubt in your mind, you would have given it to the opposition in our minority position and at least have allowed me to make the argument, knowing I would have been overruled and outvoted by the majority anyway. I think this is outside the usual process that you've attempted and it feels like a partisan ruling, but as you are the Chair, I'll respect it.

The Chair: Mr Christopherson, I'm sorry you feel that way. As I say, I took direction from the precedents known to people with far more experience than I. I note that the clerk has been doing this for 19 years, and legislative counsel has considerable experience as well.

Yes, it is a judgement call. You are free to seek the unanimous agreement of the members on this committee whether they would like it introduced. I don't wish to prejudge that. That is always your option. But I really think that in the truest sense of the topics that have been the subjects of debate -- and I would be the first to agree with you, we had many extraneous topics and many related topics brought forward, but I think the mere fact that one or more presenter may have mentioned this does not relieve us of the obligation of seeking a broad commentary on a topic as potentially significant as the one you're introducing today. Having not been in the original bill, I'd be more comfortable. You are free, however, to ask for unanimous consent.

Mr Christopherson: I would just note that since this is a real improvement, it certainly is out of step with any amendments that this government has attempted to do. I would, of course, in the effort to turn over every stone, ask for unanimous consent, but given that it was the parliamentary assistant who asked for the ruling in the first place -- but I'll go for it. I would like unanimous consent to be allowed to introduce this amendment for debate.

The Chair: Is there unanimous consent from the committee?

Mr Christopherson: The parliamentary assistant is shaking his head no.

The Chair: No. Sorry, Mr Christopherson, there is not unanimous consent.

Mr Christopherson: I don't lose; it's the workers of Ontario who are losing.

The Chair: Excuse me one second, Mr Christopherson. Just to save you some reading, I am advised that the next submission, your 1-LAH Alt-2, is out of order for two reasons. It's beyond the scope of the bill, but number two, it's one thing to add a section; it's another thing to add a subsection. This amendment would propose to open up a section which was not proposed to be amended in the original bill. That is an absolute in terms of being proscribed as being an acceptable amendment.

Mr Christopherson: I hear you. I still would maintain the argument that both of these are within the scope of the long title, given that these are improvements, and again would ask for the only tool available, which is unanimous consent to at least introduce it, knowing that you guys can overrule it anyway. At least allow it to be debated.

The Chair: Mr Christopherson has asked for unanimous consent to introduce his motion 1-LAH Alt-2. Is the committee prepared to grant unanimous consent?

Mr Christopherson: The parliamentary assistant is vetoing it again.

The Chair: Yes. Sorry, Mr Christopherson. There is not unanimous consent.

Are there any amendments to section 31 of the act? Seeing none, I'll put the question. Is it the favour of the committee that section 31 carries? All those in favour? Contrary? Section 31 carries.

Section 32 of the bill: Are there any amendments?

Mr Baird: I move that the French version of subsection 82.1(3) of the act, as set out in section 32 of the bill, be amended by striking out "Aucune instance ne peut être" in the first line and substituting "Une instance n'est pas."

The Chair: Do you wish to speak to the amendment?

M. Baird : Non, c'est seulement une correction de la version française aujourd'hui.

The Chair: Merci. Are there any further comments or questions? Seeing none, I'll put the question. All those in favour of the amendment? Contrary? The amendment carries.

Any further amendments to section 32? Seeing none, I'll put the question. Is it the favour of the committee that section 32 carries, as amended? All those in favour? Contrary? Section 32, as amended, is carried.

Are there any amendments to sections 33 through 35 of the bill? Seeing none, I'll put the question. Is it the favour of the committee that sections 33 through 35 of the bill carry? All those in favour? Contrary? Sections 33 through 35 are carried.

Shall section 36, the short title of the bill, carry? All those in favour? Contrary? Section 36 is carried.

Shall the long title of the bill carry? All those in favour? Contrary? The long title of the bill is carried.

Shall Bill 49, as amended, carry? All those in favour? Contrary? Bill 49, as amended, is carried.

Shall Bill 49, as amended, be reported to the House? All those in favour? Contrary? Thank you. Bill 49 will be reported to the House.

If we can move back to Mr Christopherson's original motion. If you wish to craft something or would you like the clerk to --

Mr Christopherson: No. I think we can do this fairly easily. I would like to move that the NDP motion 2-LAH be referred to the review being --

Mr Baird: "Comprehensive."

Mr Christopherson: -- well, the review being conducted by the Minister of Labour and be considered at that time.

Mr Baird: "Comprehensive improvements to the Employment Standards Act."

The Chair: Thank you. Do you wish that done in the format of a letter from the Chair?

Mr Christopherson: Assuming that I get a unanimous vote to do that, yes, that would be appreciated.

The Chair: So that would be the format you would appreciate?

Mr Christopherson: Yes.

The Chair: Everyone understands the motion Mr Christopherson has proposed?

Mr Baird: Could it just be read again? I'm sorry.

Mr Christopherson: I move that the NDP motion regarding posting of Employment Standards Act rules as contained in 2-LAH be forwarded to the minister for consideration during her broader review of the Employment Standards Act.

Mr Baird: I would just indicate I'd support that.

Mr Tascona: Just for the record, the referral is just strictly for something that the minister is going to review. This, to me, is so broadly based and purely to ensure that fairness is done with respect to the process that we discussed before, I can support this, but only in the sense of exploring because it is so broad and needs to be subject to much more scrutiny to really understand what is being attempted here by the third party.

Mr Baird: I think what Mr Christopherson is trying to do is to ask that this issue be considered in the comprehensive review. I'm sure I can speak on behalf of the minister that she has absolutely no problem whatsoever with considering this issue.

The Chair: Any further comments? All those in favour of the motion? Contrary, if any? The motion carries.

Mr Christopherson: Was that unanimous, Chair?

The Chair: Yes, it was.

Mr Christopherson: Thank you.

The Chair: Thank you, Mr Christopherson, and thank you all for your assistance in this long process. The committee stands adjourned.

The committee adjourned at 1725.