Fasken Martineau Alert

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1 Fasken Martineau Alert August 2003 Fasken Martineau DuMoulin LLP Ontario election update: labour and employment law analysis of the parties platforms Vancouver Calgary Yellowknife Toronto Montréal Québec New York London An Ontario election looms and all three political parties have already released their campaign platforms. This special bulletin, issued jointly by our Labour, Employment and Human Rights Department and our Strategic Counsel Practice Group, examines what each party s policies would mean in the workplace. Because each platform reflects different priorities, the three documents do not address all of the same topics. This makes an issue-by-issue examination of the platforms difficult; as a result, this special bulletin looks separately at each party s program. (Parties are profiled in alphabetical order.) Liberals Minimum wage increase The Liberals would increase Ontario s minimum wage from $6.85 to $8.00 over the next four years. The minimum wage has been frozen at $6.85 for eight years, further to the Conservatives 1995 campaign promise to freeze the province s minimum wage until competing jurisdictions catch up. The parties approach to this issue depends on which jurisdictions are used as comparators. The Liberal platform points to the Michigan, New York State, Pennsylvania and U.S. federal minimum wages, which tend to be high relative to Ontario. The current government, on the other hand, looks at the other provinces, only two of which have minimum wages that exceed Ontario s. Assuming other provinces do not adjust their rates, an $8.00 Ontario minimum wage would be the highest in Canada, tied with British Columbia s. On the following page is a chart comparing minimum wages across jurisdictions. Increasing skilled immigration to Ontario The Liberals would lower barriers that prevent foreign-trained professionals and skilled workers from obtaining the type of jobs for which they have the qualifications and training. The party would work with professional and trade associations to accelerate the entry of skilled new Ontarians into the workforce. The goal: to eliminate major barriers within one year. Repealing the 60-hour work week The Liberals would repeal the Employment Standards Act provision provision (introduced in 2000) that allows

2 Fasken Martineau DuMoulin LLP Fasken Martineau Alert 2 (Liberals, cont d) an employer with the employee s consent, which can be revoked on two weeks notice to permit an individual to work up to 60 hours in a week. While the platform does not say so expressly, presumably the old limit of up to 48 hours would be restored. Unclear is whether the Liberals would allow this limit to be exceeded with the approval of the Director of Employment Standards. Minimum Wages in Various Jurisdictions British Columbia $8.0 0 Ontario NDP Platf orm (immediat e) $8.0 0 Ont ario Liberal Platf orm (over 4 years) $8.0 0 Quebec $7.3 0 U.S. Federal* Michigan* New York State* Pennsylvania* Prohibit unionization of primary agriculture Ontario (current ) P.E.I. (ef fect ive Jan. 1, 2005) $6.8 5 $6.80 In November 2002, the Liberals voted for the Agricultural Employees Protection Act (Bill 187), a government bill that banned unionization of farm employees. In general, the Liberals continue to oppose farm unionization because of the harmful effect a strike would have on the agricultural industry. The Liberal Party has stated, however, that it would allow employees working for large farm operations the right to form a union. During debate on Bill 187, a Liberal spokesman explained their policy that the large agricultural employers who have in the range of 50 to 200 employees need to have the opportunity to collectively bargain and to organize. Negotiate skills strategy with Ottawa The Liberals would negotiate a Labour Marketing Development Agreement with the federal government. Ontario is currently the only province without such an agreement. They say that signing such an agreement would end duplication and waste in the system by having the provincial and federal governments work together to strengthen skills. Manit oba Saskat chewan Nova Scot ia (ef f ect ive April 1, 2004) Prince Edward Island (current ) New Brunswick Newfoundland Nova Scotia (current ) Albert a $6.75 $6.6 5 $6.50 $6.25 $6.0 0 $6.0 0 $6.0 0 $5.90 $0 $2 $4 $6 $8 * Conversion to Canadian dollars based on exchange rate as of August 26, Source: Human Resources Development Canada; U.S. Department of Labor New Democrats Indexed pensions and other pension reforms Believing that pensions should be linked to the cost of living, New Democrats would require inflation protection for all defined-benefit pensions. The NDP is promising other changes to pensions, including: Vesting from day one. Improving pension portability to let employees carry their pensions from job to job. Protecting pension surpluses from raids by unscrupulous employers.

3 Fasken Martineau DuMoulin LLP Fasken Martineau Alert 3 (New Democrats, cont d) Giving employees a real say in the management of their pension funds. Immediately increasing the Ontario Pension Benefits Guarantee Fund s maximum guaranteed benefit (currently $1000). Making it easier for small and medium size businesses to opt into group pension plans as a first step to ensuring that as many working people as possible are covered by secure, defined-benefit pension plans. Increase minimum wage immediately Like the Liberals, the NDP would raise the minimum wage from $6.85 to $8.00. However, unlike the Liberals who propose to phase in their increase over four years, the NDP would do so immediately. For a comparison of minimum wage rates across Canada and in selected American states, see the chart on page 2. Restore ban on replacement workers The NDP would ban the use of replacement workers during strikes. The previous NDP government passed legislation to ban replacement workers, but that law was one of the first to be repealed following the 1995 election. The New Democrats argue that the use of replacement workers undermines the legal right to strike and increases picket line violence. Repeal the 60-hour work week The NDP would repeal the Employment Standards Act provision allowing an employer to permit an employee to work up to 60 hours in a week. Allow agricultural workers to unionize The New Democrats would allow agricultural workers to unionize. They were the only party to vote against the government s Agricultural Employees Protection Act (Bill 187). Reform workers compensation The NDP would tie Workplace Safety and Insurance Board benefits to the cost of living. The NDP would also act to reduce workplace deaths and ensure safe workplaces by: Requiring the prominent posting of notices alerting workers to their right to refuse dangerous work. Making on-site inspections mandatory when workers exercise the right of refusal. Mandating coroner s inquests for all workplace deaths. Restoring mandatory reporting of all new toxic substances introduced into workplaces. Requiring workplace education for new employees, including the right to refuse to work with toxins that could endanger one s health. Fair and barrier-free employment practices The New Democrats would move quickly to enact legislation to ensure fairness and equity in recruitment, hiring and promotion in ways that open doors, are based on the principle of employment

4 Fasken Martineau DuMoulin LLP Fasken Martineau Alert 4 (New Democrats, cont d) equity and are widely accepted as fair. It is unclear whether this law would be similar to the previous NDP government s Employment Equity Act (repealed by the Conservatives shortly following the 1995 election). The NDP would also introduce comprehensive Access to Professions and Trades policies that would enable internationally-trained workers who lack Canadian credentials to work in their chosen trades and professions. Two new holidays The New Democrats would establish a new Heritage Day statutory holiday in February or June. In addition, the August Civic Holiday would become a statutory holiday. Although the first Monday in August is already observed as a holiday in many workplaces and communities, it is not currently listed as a public holiday in the Employment Standards Act nor is it a holiday under the Retail Business Holidays Act. That means that currently stores are not required to close and workers are not entitled to get the day off with pay. Progressive Conservatives Create a Workers Bill of Rights The Conservatives would introduce a Workers Bill of Rights that contains the following features: Requiring every union to hold a binding vote of its members on all expenditures outside of normal operational costs. Requiring the approval of a clear majority of the bargaining unit (not just a majority of those who vote) for strikes, contract ratification and changes to union dues and fees. Allowing union members to sue their unions for negligence, breaches of contract and torts. (This would require amendments to the Rights of Labour Act, which insulates unions from civil actions. It is unclear whether the PC proposal would permit only lawsuits by union members, or apply more broadly to all litigation currently barred by the Act.) Giving members access to key union records such as financial statements. Enforcing the sunshine law that requires unions to reveal the salaries of their top managers and of anyone on their staffs making more than $100,000 a year. Requiring unions to provide members with an annual audited financial report. Allowing members of Ontario union locals to end their relationships with international unions. (The proposed process would be as follows: A complaint about an international union could be brought to the OLRB. If the OLRB upheld the complaint, then members of the local would be able to vote on ending their affiliation with the international. A majority vote would be required to terminate the relationship.) Ban teacher strikes The Conservatives would pass legislation making it illegal for teachers (and other school employees) to strike or stage work-to-rule campaigns, and for school boards to lock out their employees, during the school year. The PC Party suggests that in place of strikes and lockouts it would introduce an arbitration system that is fair, independent and affordable. Details have yet to be provided.

5 Fasken Martineau DuMoulin LLP Fasken Martineau Alert 5 (Progressive Conservatives, cont d) Negotiate an Ontario immigration agreement Pointing to the Quebec-Canada immigration agreement, Conservatives would negotiate a special immigration agreement between Ontario and the federal government. They would use this made-for- Ontario agreement to achieve the following goals: Ensuring that more new immigrants to Ontario settle outside the Greater Toronto Area in order to help meet the need for skilled labour across the province. Testing potential immigrants before they come to Ontario to identify those with the skills and qualifications our province needs most using Ontario standards as the benchmark. Giving first priority to fully-trained medical professionals, business investors and skilled workers who agree as a condition of entry to settle where the need for their services is greatest. Eliminate mandatory retirement at age 65 Rights Code prohibition against employment-related discrimination to protect persons aged 65+. However, existing collective agreements and pension plans would be unaffected and mandatory retirement would still be permitted based on legitimate occupational requirements. Workers who wish to retire at 65 would remain free to do so. Ban farm unionization The Conservatives would maintain the ban on farm unionization. Except between 1994 and 1995, Ontario s farms have been exempt from labour laws that permit unionization and collective bargaining. Soon after their election in 1995, the PCs repealed the NDP s short-lived Agricultural Labour Relations Act, but that repeal was subsequently struck down by the Supreme Court of Canada. The government responded with new legislation to ban farm unionization, the Agricultural Employees Protection Act (Bill 187); it was supported by the Conservatives and Liberals and passed in December Unlike the Liberals, who would allow employees working for large agricultural employers to form unions, the Conservatives would make no distinction based on an operation s size. The Conservatives would prohibit mandatory retirement at any age and extend the current Human

6 Fasken Martineau DuMoulin LLP Fasken Martineau Alert 6 For more information on the subject of this bulletin, please contact a member of either of the groups listed below: Strategic Counsel Practice Group Guy W. Giorno ggiorno@tor.fasken.com W. Thomas Barlow tbarlow@tor.fasken.com C. William Hourigan cwhourigan@tor.fasken.com Sean L. Morley smorley@tor.fasken.com Kevin McCarthy Consultant, Strategic Counsel Practice Group kmccarthy@tor.fasken.com Labour, Employment and Human Rights Practice Group David N. Corbett dcorbett@tor.fasken.com Martin K. Denyes mdenyes@tor.fasken.com Ralph N. Nero rnero@tor.fasken.com Brian A. O Byrne bobyrne@tor.fasken.com Katherine M. Pollock kpollock@tor.fasken.com Philip J. Wolfenden pwolfenden@tor.fasken.com Patrick T.J. Gannon pgannon@tor.fasken.com This publication is intended to provide information to clients on recent developments in provincial, national and international law. Articles in this bulletin are not legal opinions and readers should not act on the basis of these articles without first consulting a lawyer who will provide analysis and advice on a specific matter. Fasken Martineau DuMoulin LLP is a limited liability partnership under the laws of Ontario and includes law corporations Fasken Martineau DuMoulin LLP Vancouver info@van.fasken.com Calgary info@cgy.fasken.com Yellowknife info@nwt.fasken.com Toronto info@tor.fasken.com Montréal info@mtl.fasken.com Québec info@qc.fasken.com New York info@nyc.fasken.com London info@lon.fasken.com