Excluding Lawyers From the ESA and LRA

There are over 85 complex exemptions and special rules to the Employment Standards Act, many of them decades old, and others dating back to 1944. The Act is a long and complicated one, adding significant operational expense to employers in implementation, and leaving many workers vulnerable given gaps in protection.

The original ESA was created in 1968, at which point it replaced a number of older statutes, including the Hours of Work and Vacations with Pay Act of 1944. The Act was amended many times over the years, but was only reviewed in 2000, with the new Act taking effect in 2001.

The Ontario Ministry of Labour has been conducting The Changing Workplaces Review, an investigation of the Labour Relations Act and the Employment Standards Act, and recently released its first interim report.

The purpose of this report is to flag and identify areas that are being considered for change, and is the first independent review commissioned by the government taken together of both the unionized and non-unionized workplace. Although several options are being considered throughout these areas of law, the report already flags significant deficiencies in the exemptions to the ESA.

The government has introduced a new process of Special Industry Rules (SIRs) in 2005, but the majority of the exemptions introduced between 1944 and 2005 were through lobbying with little employee consultation or regard for the workplace.

Workers who fall into some of these exemptions are denied some of the most important protections of the Act, including minimum wage, vacation and statutory holiday pay, and holiday pay. Some provisions, like personal emergency leave and severance pay, only applying to larger employers.

The report indicates that many of these exemptions may be outdated, inconsistent, unnecessarily complex, and appear to be lacking in objective rationale. However, they conclude that it would not be in the public interest to recommend a complete elimination of these exemptions without reviewing them further, and a separate consultation process should be undertaken to assess this.

Although the particularly unique characteristics of an industry may require a different approach form the norm, the report indicates that any burden to maintain, extend or modify an exemption should remain a high one and lie on the party seeking to maintain it, and should balance the needs and interests of workers and the industry.

A couple of areas that the report suggests should be reviewed under a new process, as opposed to areas they suggest an automatic elimination or others that should be maintained, are lawyers and students in-training in professions. The latter would include articling students, as the former category is reserved for those already called to the bar.

The exemption for professionals generally are typically justified on the basis that these industries face less job scarcity or vulnerability in the workplace, and there are many other professions listed in the ESA. The exclusion of lawyers is also mirrored in the LRA, which is why lawyers are excluded from creating a union under that Act.

However, the employment and workplace situation of lawyers is certainly different today than it was in 1944, 1968, or even 2001. The entire 2012 debate around the Articling Task Force helped illustrate these differences, in particular that articling students and lawyers are clearly exploited, treated inappropriate, and have very little or no recourse to practically rectify the situation. Almost all of them work in conditions which are entirely unregulated, and many of them are paid less than minimum wage.

The greater vulnerability of legal employment was also highlighted by the unsuccessful attempt by Legal Aid Ontario lawyers to create a trade union outside of the LRA in 2013. The exchange between the Society of Energy Professionals trade union and LAO is illustrative.

The response by the trade union emphasized that these lawyers were forced to seek voluntary employer recognition specifically because of their exclusion from the LRA, and the voluntary recognition of lawyers employed by the Government of Ontario serves as an important template as to how this could be accomplished.

The trade union goes further, and points out that in the early 1990s, provincial government lawyers were not excluded from the LRA or the Crown Employees Collective Bargaining Act, and this exclusion only occurred in 1995 under the Harris government. In other provinces, CUPE Local 1949 represents legal aid lawyers in Saskatchewan, and until the until the Association of Justice Counsel became certified as bargaining agent, there was federal representation through the Professional Institute of the Public Service of Canada (PIPSC).

The most important point of the trade union’s position though is the vulnerability of the lawyers who are employed there,

By contrast with other government lawyers who the Ontario government has voluntarily recognized, more than two-thirds of LAO lawyers are women. LAO lawyers are also the most racially diverse group of public sector lawyers in the province. In refusing LAO lawyers the right to collective bargaining, you are shamefully and blatantly discriminating against women and minorities, while representing an agency that should be dedicated to equality and respecting the rights and freedoms of its employees.

Those women and minority lawyers in private sector law firms face even greater workplace challenges, and even less ability to have representation or workplace protections.

Legal aid lawyers have recently embarked on another bid to create an association, relying on the SCC decision last year in Mounted Police Association of Ontario v. Canada (Attorney General). In June, they applied to the Ontario Superior Court of Justice to recognize the trade union as a bargaining agent based on a violation of their s. 2(d) rights, stating, “Rights enshrined in the Charter are for everyone, even lawyers.”

Earlier this month, 3 legal aid lawyers filed a pay equity gap complaint to the Ontario’s Pay Equity Commission. A previous complaint had been unsuccessful specifically because there was insufficient evidence to demonstrate “a female job class” under the Pay Equity Act, information which would be required to disclose if they were unionized.

The Changing Workplaces Review will provide many springboards for important discussions in the near future. Given that the only recommendation made by the interim report is to review the statutory exclusions in the ESA, we can expect some greater scrutiny of the exclusion of lawyers from both the ESA and LRA.

The respective debates around articling and LAO unionization will certainly feature prominently in any submissions made on these points, and it is possible that any changes to these areas will have significant impacts on the job stability and employment prospects of lawyers in Ontario.

 

Comments

  1. “The exemption for professionals generally are typically justified on the basis that these industries face less job scarcity or vulnerability in the workplace, and there are many other professions listed in the ESA.”

    If the rationale is that lawyers/professionals don’t need minimum protections because the market provides sufficient protections, then there can be no harm in extending the minimum protections to them. If the rationale is correct, the minimum standards are already met or exceeded for these workers and extending the protections would have no effect. If the rationale is wrong, then the protections are needed and the minimum standards should be extended to these workers. Thus, there is no case to continue to exclude these workers.

  2. Judith,

    I agree, and this is exactly why the recommendation is being made that scrutiny be applied to the exemptions under the ESA, to question and test the often arbitrary rationale which was used to create our regulatory system.

    The challenge for employers in the legal industry is that this may drive wages up, or reduce the number of hours that employers can impose on articling students and young lawyers, giving them reduced workplace flexibility. However, in light of the enormous emphasis we’re seeing on work-life balance and ensuring the maintenance of mental health in the practice, these trade-offs appear to be substantiated.

    The unemployment statistics we currently see in the legal profession are likely to rise in light of supply changes such as higher class sizes, new law schools, and more foreign graduates. But they’ll also be driven on the demand side through firm restructuring, work product off-shoring and de-professionalizing, and automation.

    Whenever you have higher unemployment rates, you will often observe a higher risk of workplace abuse because of greater employer flexibility, and that goes for any industry. The exceptionalism professed by so many lawyers simply does not hold up under scrutiny in the modern context, and the vast array of alternative work formats and technologies at our disposal.

    Law societies only have so much control and power over these labour markets, which is why many of the larger structural and experiential issues in legal practice may be properly addressed simply by applying existing societal standards to the legal industry as well.