Ontario Bill 68, The Open for Business Act, 2010 was tabled in Legislature on May 17, 2010. The aim of the Bill is to create a more competitive business climate in the province, while protecting the environment and public interest. Among the over 100 proposed amendments to various pieces of legislation, broadly stated, the upcoming changes would:
- Establish a modern, risk-based approach to environmental approvals, which could save businesses as much as 25 percent of their project application costs
- Enable faster and more efficient resolution of employment standards claims by addressing the current backlog, providing more powers to employment standards officers and encouraging early resolution of disputes between employees and employers
- Make it easier for professionals, such as internationally trained engineers, to work in Ontario by removing the citizenship requirements for a Professional Engineer Licence
Of particular interest to employment lawyers and employers, the employment standards program will be modernized to:
- Eliminate the backlog of 14,000 employment standards claims within two years by launching a task force in August 2010
- Implement changes to prevent future backlogs
- Allow employment standards officers to attempt to settle complaints that they have been assigned to investigate
- Allow labour relations officers and Ministry of Labour employees who report to the Director of Dispute Resolution Services to attempt to settle complaints that have been assigned for investigation; this section applies for a two-year period commencing on the day the section comes into force
- Introduce new online education tools such as the severance decision tool released recently
These measures will make the employment standards system more efficient and less expensive and time-consuming for businesses by providing earlier notice of alleged employee claims and increasing opportunities for parties to seek settlements. In a press release, the Human Resources Professionals Association (HRPA) stated that it has been working with the Ministry of Labour on these new online interactive tools to help employers and employees better understand Ontario’s employment standards.
This is a significant step to enhance the efficiency and competitiveness of employers in the province,” said Bill Greenhalgh, CEO of the HRPA. “Our members and their employers have long called for the government to provide these kinds of education tools that will make it easier for employers to comply with the Employment Standards Act. Education is the key to ensuring compliance which in turn will keep businesses in Ontario competitive in this global economy”.
However, this Bill has come under criticism recently in the media because of the changes it would make to the complaint and enforcement process in the Employment Standards Act. Bill 68 would implement the British Columbia self-help model for initiating complaints under the Act. The process is intended to allow employees and employers to solve many employment-related problems without government intervention.
What does the process involve?
In BC, when an employer receives a complaint through the self-help kit process, the employer must respond directly to the employee within a certain period of time. If the employer fails to respond to the employee in this time frame, the Employment Standards Branch will seek a response to the complaint from the employer. Since the branch views the use of self-help kits as a necessary first step in the complaint process, it is advisable for employers to make all reasonable effort to resolve the complaint, or at least respond to the complaint through this process. Although normally the required first step in the process, the completion of a self-help kit can be waived in some cases, such as when problems with language or disability might preclude a worker from providing and completing the necessary information.
If the parties do not resolve the complaint through the use of the kit, the employee may file the complaint with the Employment Standards Branch. The complaint must be in writing and must be delivered to an office of the branch. Except in unusual circumstances, the branch will not accept a complaint unless an employee has taken the required steps to try to resolve the problem. At this stage, an officer with the Employment Standards Branch will intervene and attempt to resolve the dispute by mediation in person or over the phone. Should the parties agree on a solution, a “Settlement Agreement” is drafted and, if necessary, enforced by the court.
Like BC, Alberta first requires workers to attempt to resolve a dispute directly with the employer through a self-help kit. Should the parties not reach an agreement, the worker can then start the regular complaint process and file a written complaint with Employment Standards.
The Ontario government’s self-help complaint model would be similar to Alberta and BC, and the province also intends to exempt certain workers including young workers, live-in caregivers, those with language barriers and the disabled.
The same criticisms were uttered when BC implemented the self-help model; however, labour claims immediately dropped 48 percent. Despite these beneficial results, critics of the proposed Ontario measure say the mandatory self-enforcement approach would negatively affect all Ontario workers, especially those in temporary low-paying jobs and newcomers with language barriers; and the exemptions would confuse employees.
Nicholas Keung at the Toronto Star asks, “How would you feel if you got robbed but couldn’t report to the police unless you had first confronted the robber and asked for your wallet back?” suggesting that this is the situation employees—particularly vulnerable employees—will face when they make claims of unpaid wages (and other things) against their employers.
The key is that a robber owes no duty to his target, and more often than not, a victim doesn’t get the opportunity to see the thief again. In all cases, employers owe their employees a duty of care and treatment within the Employment Standards Act, and in most cases, the employer is easy to find. That doesn’t mean it’s always easy for an employee to confront her or his employer, but the government has offered exceptions for certain circumstances.
The province will exempt young workers, live-in caregivers, those with language barriers and the disabled—the type of person profiled in the Star article. I think it’s fair to say that the province is honestly trying to look out for Ontario workers’ interests and not simply cutting costs at workers’ expense. Of course it does look fishy when the government holds only one day of public consultations.
If claims drop as they have in BC, it will be up to the province to make sure that employees aren’t simply avoiding making claims because they don’t want to face their employers. Either way, it will be the province’s responsibility to make sure that employers treat their employees according to the Employment Standards Act, pay them any outstanding amounts, and respect employee complaints—according to the proposed new process. With luck, this new process (if passed) will improve the system and free up resources for employment standards enforcement, and maybe even improve dispute resolution between employers and employee. I certainly hope that all happens!