Unions prepared to fight for precarious workers, say proposed labour reforms are incomplete

Photo: United Workers/flickr

Ontario's proposed changes to labour laws will not increase protection for those in factual TV -- or many other precarious workers.

The provincial government introduced changes to the Employment Standards Act (ESA) and Labour Relations Act (LRA) on June 1. The proposed changes include raising the general minimum wage to $15 by January 2019, ensuring all employees have 10 personal emergency leave days, two of which are paid, and paying part-time, seasonal, casual and temporary employees the same as full-time employees when they're doing the same work for the same employer.

These changes are good, but they won't benefit everyone.

The Changing Workplaces report, released May 23, recommended the government include "dependent contractors" as employees in the ESA. Dependent contractors are already included in the LRA.

The government has chosen not to, instead saying it intends to focus on increased enforcement to make sure employers don't misclassify "employees" as "independent contractors." It says changing the definition could lead to legal confusion.

 "Independent contractors" are not entitled to the same benefits as employees, like standard hours of work or breaks. Workers are often misclassified as "independent contractors" even though they work as employees.

Dependant contractors fall between "employees" and "independent contractors," those who rely on several employers for their income. Dependent contractors often rely on a few employers. They are financially dependent on these employers.

The government's decision to not consider an expanded definition of "employees" drew sharp criticism from the Canadian Media Guild (CMG).

"The two-year Changing Workplaces Review process that was designed to address precarious work avoided making direct changes affecting the very people who are systematically precarious -- that is, most of those who work from contract to contract," Lise Lareau, coordinator of the union's Fairness in Factual TV campaign, said in a statement.

The union has been working to organize workers in reality and factual TV for years, saying these workers best exemplify the dangers of precarious employment. These workers are often misclassified as independent contractors. They have unstable contracts, working hours and payment. The film and TV industry is an exempt industry, so employment standards don't apply to them. Unions exist for some film and TV workers, like writers and directors, but none specifically for those in factual TV. They have no union representation or government protection.

The government's recommended changes are beneficial "as long as you're an employee and you don't work in a sector that qualifies for a huge loophole in labour law," Lareau further says in the statement.

The Ontario Federation of Labour (OFL) had similar concerns.

"There's a number of missed opportunities," said Chris Buckley, OFL president.

Increases to minimum wage and equal pay for equal work show the government heard many workers' concerns, he said.

"Have they been heard loud enough? At this point, I'd say no," he said.

The government identified misclassification of employees as independent contractors as a priority concern.

If passed, the new bill "would create a new stand-alone contravention for misclassification that explicitly prohibits employers from treating employees as if they were not entitled to the ESA's protections," the Ministry of Labour said in a statement sent to rabble.ca

Employers who do misclassify employees could be fined or prosecuted. Their misclassification of employees may also be made public.

If passed, employers will be responsible for proving that employees who say they are misclassified are independent contractors and not employees.

The CMG raised doubts about the significance of this prohibition. These "nice-sounding promises" mean "nothing since no new classifications have been created," Lareau says in the statement, noting the CMG suggested the government create classifications like "freelance employee" or "contract employee."

The definition of "employee" is a subject of much debate.

Changing the definition could be legally confusing, the government says.

In a 2012 report on vulnerable workers, the Law Commission of Ontario said increased enforcement was the best way to respond to the problem of misclassification.

Expanding the definition of employee could "create a lot of complexity" for true independent contractors, said Nye Thomas, the executive director of the commission. Thomas became executive director in 2015, after the report was released. He said the commission's opinion on the matter hasn't changed. Changing the definition may restrict how many hours independent contractors can work in a week, or how much they are to be paid. Case law determines if someone is an independent contractor, Thomas said.

The final Changing Workplaces report disagrees. The report says including "dependent contractors" in the definition of employee would bring more clarity to the law.   

Not including "dependent contractor" in the ESA's definition of employee "is fatal to any administrative or policy-based interpretation of employee that results in or seeks to extend the protections of the ESA to dependent contractors," the report says.

Unions will continue fighting for workers' rights. The government has said it plans to begin a review of existing industry exemptions this fall. The CMG calls this the "one encouraging aspect" of the government's plans, and will continue to tell the government about the industry's concerns, the union's statement says.

Buckley said the OFL will lobby the government throughout the summer with its concerns.

He's "cautiously optimistic" the government will do more to protect workers. "The labour movement is not going to sit down," he said.

Meagan Gillmore is rabble.ca's labour reporter.

Photo: United Workers/flickr

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