Fire Away S1E4 | Bill 148: Fair Workplaces, Better Jobs Act

Fire Away S1E4 | Bill 148: Fair Workplaces, Better Jobs Act


Hello and welcome to Episode 4 of Fire
Away, an online question and answer show focused on the employment law issues that
matter to you. My name is Stuart Rudner, I’m an Employment Lawyer and Mediator,
founder of Rudner Law and most importantly, host of Fire Away. We’ll be
streaming every month online on the third Tuesday of the month and in
case you’re interested past episodes are always available on our YouTube channel,
our Facebook page and other platforms. Just a reminder, we’re happy to take
questions as we go, if you have any questions for us, feel free to post
comments on Facebook or Tweet them to @RudnerLaw. So today in Episode 4 I’m
quite excited to be joined by Michael Mitchell. Michael Mitchell is currently a
Vice Chair of the Labour Board in Ontario. For many years before that, he was a well
known and well respected Labour and Employment lawyer, and he also has an
active arbitration and mediation practice, so Michael, oh sorry before I
welcome you, the most important reason that Michael is here is he is one of the
authors of the Changing Workplaces Review: An Agenda For Workplace Rights
which of course, as many readers or viewers will know, led to Bill 148.
Michael thank you so much for joining me for episode 4. It’s great to be here
thanks for the invitation. I’m looking forward to the discussion and I think
this will be interesting for those of us who you know, live employment law day in
and day out, Bill 148 has been the big news story for the last shall we say six months or so, and many people have referred to it as the most
significant development in the Employment Standards legislation in
Ontario at least for the last several decades, so there were a lot of dramatic
changes, unfortunately I think some of the media focus got shifted to things
like the minimum wage hike, which was really a small part of it, there were a
lot more changes in Bill 148 and many more to come,
that got the focus.. but there were a lot of other things that employers and
employees need to be aware of so what I was hoping we could do is just to start
by having you explain to us I guess how you got involved in this project
and you know, what happened after you completed the report and leading up to
Bill 148. I almost feel like I’m asking you how a bill becomes a law but I was hoping you could take us through the process. Well, it was a long process and I had decided
to leave my practice when I got you know the invitation from the provincial
government to do this study with John Murray which involved not only a review
of Employment Standards Act but also a review of the Labour Relations Act and
the focus was you know so interesting I really and so different from what I had
done at private practice but so interesting from a policy point of view
I couldn’t really turn it down and it was to look at a changing workplace it
wasn’t to look at just the Employment Standards Act or just the Labour
Relations Act which is how other reviews had proceeded, but to look at them both
and to use the point of departure as a changed workplace but more importantly
you know the precarious state of work for a lot of vulnerable people and while
that wasn’t the only focus it was certainly the main focus of the review
and probably the kernel of the underlay, you know most of the
recommendations that we made. So, precarious employment has been talked about a lot but maybe you can explain what do you mean when you talk about the
precarious employment as a concern. Well, we basically defined precarious
employment and vulnerable workers based on a number of factors, it
wasn’t equivalent to contingent employment because there are a
lot of contingent people that are paid a lot of money for the contingencies, the
uncertainty that they face so it wasn’t contingency, although there are many
aspects of precarious work that involve a contingency, but it’s not synonymous. Secondly we looked at people,
including many of those in full-time jobs who were precarious because you
know for example they didn’t have a pension plan so they had no means
really to provide for their retirement or they didn’t have access to benefits so
they were missing a huge component of the social safety net that a lot of
us enjoy or you know they didn’t have a union and they were essentially left to
their own devices, but most importantly we looked at income, so we had a couple
of measures of lower income that we used, but we only, you know if you were a
low income person but you had a pension plan and you had benefits and that kind
of thing you weren’t included, you needed to be missing one of those
things in order for us to count you. Now it was a rough approximation, it wasn’t precise, but it worked out to about 30 to 32 percent of the
working population of Ontario that came within that definition. Within the
definition of low income. Of low income and not having a pension plan or not
having access to benefits or being, you know, being otherwise in some precarious
state, so not having a pension plan or benefits was a proxy for being
precarious. Just so you know this show actually is my pension plan so hopefully we’re gonna get the viewership up significantly.
What about things like you know people have said the uber ization of the workforce
was that something that entered into your your analysis as well? Yeah no for sure I
mean the impact of technology was a major feature of what we looked at but
it we didn’t use it to measure anything we but we certainly took it into account
and we took into account the huge growth in temporary employment or a
non-standard employment so the part of non-standard employment that didn’t
really grow over the years was part-time employment. It had stayed relatively
steady like after 40 years of massive growth from the 50s to the 90s it sort
of stayed steady but temporary employment had grown very quickly in
about the last 20 years and all facets of temporary
employment including contract work, temporary help agency work, all those
kind of things so uber ization or whatever it is of the workforce from
that source was certainly something that we took into account. Yeah I’ll tell you
from my perspective you know working with employment law you know day
in and day out not a week goes by that I don’t see people that are called you
know “contractors” that are employees in all but name, to me this is the most
significant epidemic we’re seeing and people on both sides of the fence you
know the worker and the organization don’t realize what the risks are that
they’re incurring and often don’t realize that the benefits they perceive
aren’t really there but I know you know and hopefully we’ll have a chance to talk about this, that is something that eventually found its way
into Bill 148 but was that was that something that you spent some time
looking at as well? Yeah we spent a long time looking at this issue and in fact the government didn’t accept our full recommendations on it for reasons that
I’m, you know, I didn’t agree with and we say we didn’t agree with it but yeah
they did change in Bill 148 the major focus I mean it is now, the onus is
on the employer, or on the provider of the person using the work
of the provider benefiting from the work of the provider to demonstrate that the
individual providing the service is not an employee, so the onus has changed and
that’s very significant and now it’s an offence under the Act to say somebody or
to treat somebody as a contractor when they’re not and that’s also very
significant and the damages that employers can incur are really very
large, I mean vacation pay and statutory holiday pay together add up to a
significant percentage. Overtime, minimum wage, all the other attributes that go
with the minimum requirements under under the Act can be very significant
and so people who are taking, employers are taking a
pretty significant risk now, as opposed to prior to the legislation and not
treating people as employees when they when they are and so I think this should
make a big change in the workforce. You know this was a
major target of the American Department of Labor for the years while the Obama
administration was in power and I think you know, regardless I think of who’s in
political office in Ontario it’s likely to be a major focus here for years to
come. Yeah I think that’s that’s true because
as I said it is such an epidemic and I think it’s like you said employers were
taking a significant risk it’s now even more significant but individuals as well
and I have this conversation all the time with with clients and we work with
employees and employers so I have it on both sides of the fence, but I
often have to explain to them it’s not just a matter of how do you want to be
paid that’s not the question, you know, the question is what is the nature of
the relationship, you know are you joining this company as part of their
team, as part of the organization, or are you truly in business for yourself and
providing services to them just like a lawyer like I would or you would have in
past days, and a lot of people don’t understand that, that if you want to be an
independent contractor then that means you’re in business for yourself which if
that’s the case is great and there may be some tax benefits but a lot of people
also don’t recognize that if they are truly contractors they don’t get the
protections of the Employment standards Act because they are not employees so
they’re often quite happy to get some tax breaks but then they realize that
they don’t get statutory holidays, don’t get guaranteed vacation, they don’t get
overtime pay, and I mean what I see usually when this becomes an issue is at
the end of the relationship, because of course that contractor agreement says we
can terminate on 14 days notice or 30 days notice perhaps and I’ve seen this
happen many times where someone works for an organization for 5, 10, 15 years
all of a sudden they are quote unquote let go and instead of getting a hefty
severance package as they’ve seen other people get they get you know 30 days
notice, now all of a sudden they realize what they gave up by being a contractor. Right and now you’re going to be able to go back two years, you know to
collect two years worth of whatever it is you are owed and so, plus all
the penalties that the Ministry of Labour might impose through notices of
contravention or you know other means, and you know including interest and
other things and possible court prosecution I mean it really is
significant particularly if you’ve got a number of these people and they all turn
out not to be independent contractors. One difference we had with the
government is we said the government should enshrine dependant contractor
status in the Employment Standards legislation like it is in the Labour
Relations Act, the government didn’t do it. Their reasons for doing it aren’t because they think dependent contractors
aren’t employees the government simply took the view the Ministry of Labour did that the dependent contractors are already covered as employees and they don’t
need the added protection, the added or the added definitional language in
the statute in order to catch them so you know the uber situation has not
raised itself yet that I’m aware of but of course it has in California it has in
the UK it has in other places and they’ve not succeeded Uber’s you know
Uber has not won in those jurisdictions so it’s a risk. Yeah well and
that’s an interesting point you know the we’ve always talked about your either an
employee or a contractor and of course the case law in recent years has created
this this middle category of dependent contractor as opposed to independent
contractor which I think a lot of people don’t quite understand but to your point
you know it’s it’s recognized by the courts it’s not defined but I think you
know the ministry may have one view others may have different views so it
would have been helpful to to clarify that for everyone. Yeah we thought so but
you know there was a lot of our advice that wasn’t taken by the government they
took some so we’re happy enough with that but a lot of room for disagreement
in these areas as you know. That’s you know one of the things I was
going to ask you about was the process so you know the two of you prepared this
report and ultimately the government took that adopted some of
your suggestions didn’t adopt some and then implemented some of their own that
you didn’t even suggest in your report. Yes that’s right I mean and you know the
thing I give the government full marks for isn’t necessarily what
they did but in the process they fully respected our independence, I mean they
did not give us an agenda, we weren’t aware that they had an agenda, for
example, the changes that they made to the minimum wage 14 and 15 dollars
were a complete surprise to us, we found out about it at the same time that
everybody else did and you know it didn’t factor in our
recommendations because we had no idea what they were planning to do, now of
course I mean we treated them like they were, I think appropriately, as a
stakeholder I mean the Ministry of Labour certainly a stakeholder when it comes to
Employment Standards not so much under the Labour Relations Act and so we
listened to their views and of course they knew what our intentions were, where
we were going, they had drafts of the report to consider what they thought they
should do but like they didn’t ask us what our views were on their intentions
or on the legislation and so there was a complete separation of the two processes
and I think that was, in the end, probably completely appropriate, so that we were
not subject to any pressure in terms of what our recommendations were. Yeah no I think that that makes a lot of sense a lot of people probably don’t
realize the disconnect between your report and Bill 148 in that
they’re not the same thing in any way. So one thing I wanted to ask
you about because when I reviewed the report when it first came out, there’s a
quote, in which you write “in the course of this review we have noted that there
is a widespread lack of knowledge and understanding of workplace rights under
both acts” which i think is absolutely true and I see it day in and day out
again on both sides, both employees and employers, and I know you made some
recommendations in your report as to how to address this concern and increase
awareness and I think Bill 148 adopted some of those but I was hoping you could talk
a little bit about what mechanisms have been put in place to increase awareness
but also what else you’d like to see happen over the next let’s say five
years. Yeah I think it’s the central problem of employment standards in our society is the lack of understanding, the lack of awareness, and the lack of
compliance, and in some cases they all go together, in some cases they don’t, I mean
some cases you know employers just gain a competitive advantage by not observing
the Employment Standards Act and not having a level playing field and that’s
problematic but there’s probably just as much ignorance amongst employers and
amongst employees and it’s odd you know we spend so much time in workplaces and
people don’t have a fundamental understanding of their rights, so we made
you know there are probably Stuart, 20 to 25
recommendations that we made to increase awareness and the government perhaps
only took in to account a few of those. The major one they didn’t do, the major
one would have been to put all three Acts: Employment Standards, labour
relations, occupational health and safety into one Workplace Rights Act and to talk about
workplace rights and once people understood that there were rights that
went along with being in a workplace they would come to understand over time
what those rights were and know that they had them just as they do you know,
not everybody knows exactly what their human rights are, but they know now after
years that there’s a Human Rights code and they have certain expectations and
that expectation would come with the use those words and that
concept over over years and years and decades like even in five years. So I
think it’s a pity that they didn’t do it I don’t think people understand what
Employment Standards are it’s like it’s like an anachronistic term you know from
50 years ago which you know has no place in my view going forward,
neither does occupational health and safety nobody knows what occupational health and safety is, nobody knows what labour relations are. You’re absolutely right. Words that
people understand is the starting point but we had a lot of other
recommendations putting this in the high school curriculum, having the ministry do
a lot of outreach programs, have the ministry do a lot of educational
programs, and a host of other things to to increase consciousness. Yeah no I mean
I think that’s critical and I wrote a blog post probably about a couple of years
ago now which I think is still on our blog suggesting somewhat facetiously but
not really that there should be an Employment Standards 101 course for all
new businesses or new business people, because I mean and you’ve alluded
to this but you know I see a lot of breaches of Employment Standards as well
as other laws and some of them are very definitely deliberate on employers who
just want to take the chances and hopefully cut some corners, save some
cost, but for the most part they’re just inadvertent and employers don’t
understand what the laws are and they think they can do things like say as one
employer said I mean you know years ago well you know so-and-so comes in every
weekend and sort of catches up on his work and I sort of hopefully asked if
they were paying overtime and the answer was no he’s happy to do it
you know and knowing this employer as I did he would have paid if he
thought he had to he just didn’t think he had to so there needs to be a lot
more education and I’m you know as you said they’ve adopted some of your
suggestions not others. Simplification was one of the major ones that we tried
to stress but you know that’s very hard to do because life is
complicated, work is complicated, the economy is complicated, and we’re not
going to get rid of the need for drafting and lawyers and all that kind
of thing but we could work at trying to simplify some elements of this
and give you know let simplification trump, I hate using that word these days but trump you know the the desire to get every little complex thing dealt with,
every little nuance addressed because you know when you try to do that you
wind up with a lot of complexity and the Employment Standards Act starts to read
like the Income Tax Act and nobody gets that either.
No that’s that’s a problem I love the fact that within two minutes you
mentioned getting rid of lawyers and also Trump, that’s very impressive. So I
know we only have about a minute left before I will have
to let you go but maybe I’ll end with this question Michael, what do you see as
the biggest challenge that we’re gonna face in the workplace over the next five
or ten years? I think the biggest challenge is enforcement, there’s not going to be a fundamental change in consciousness and in practice amongst
employees and employers unless there is proactive, strategic enforcement, unless
the ministry kind of becomes the cop of the workplace, unless they change their
whole approach to education and enforcement, the way police services do,
or the way the Securities Commission does in regulating securities, I mean
they just have to take a much more activist approach to the whole thing and
if they don’t do that all of these changes are going to be for naught, so I
see that as the as the biggest challenge facing any government in the next
period of time. Yeah I agree with you completely and you know just to my point
earlier I see a lot of employers that breach Employment Standards some
advertent some inadvertent but in many cases they get away with it and I mean I
still remember a client I worked with many years ago who almost prided himself on
getting away with it and in that case it wasn’t so much employment standard it
was more common law obligations for notice or severance but the point is the
same there was no there was no penalty so no disincentive to breaching. I think that
does it for our time Michael but I want to thank you again I was thrilled
when I was told that you agreed to be on the show because I wanted to be able to
talk to you and understand a bit more the background behind Bill 148 and the
report, so thank you once again and I will mention for anyone who’s interested
in learning more about you they can go to your website which is www.cmichaelmitchell.com and learn about your arbitration and mediation practice as well as your background as a Labour and Employment Lawyer but thank you so much for your time. It was great to come on, it was a lot of fun thanks very much Stuart. Great well thank you and I guess now we get to take a breath and then I get my
chance to fire away What I wanted to talk about today is the
Ministry of Labour and their rule and I’m thinking in particular of Ontario
but it’s pretty much the same across across the country in each jurisdiction
every province has its own ministry which deals with its own particular
Employment Standards legislation because of course in Canada every jurisdiction
has its own legislation and in you know one of the issues that was identified in
the lead-up to Bill 148 one of the concerns was the lack of knowledge and
understanding of Employment Standards legislation so one thing I’ll say is
employers and employees everyone should be aware the Minister of Labour in
Ontario and again across the country they have great websites and Ministry of
Labour Ontario particularly has an excellent website it has guides it has
tools, tools to help you understand the exceptions, which types of workers are
governed by which regulations, which are not covered by which regulations, who gets
overtime, who doesn’t etc, they have calculators so if you need to understand
how they calculate vacation pay severance pay etcetera there’s a lot of
great tools on there and you can also call them and they will give you helpful
information. My criticism and what I want to talk about today is the fact that the
ministry will not make people aware of the limitations of the information that
they’re giving and what do I mean by that, they will advise you with
respect to the Employment Standards legislation, they will not provide you
with advice regarding any of the other laws that will govern the employment
relationship and as I’m sure most viewers will know the employment
relationship in Ontario is governed by a multitude of laws employment standards,
occupational health and safety, Human Rights privacy, labour law, the common law,
contract law, and there’s probably a few others I’m forgetting so the challenge
that we have is the ministry is advising you with respect to just one of
those and the best example is usually when it comes to termination of
employment. So again as many viewers will know termination of employment is
governed by Employment Standards legislation which sets out the absolute
minimum amounts people are entitled to but it’s not the end of the story and
the common law will provide that they may be entitled to substantially more
notice or severance than the Employment
Standards Act requires so take the example and I wrote this down before
just to keep it clear in my head take an example of a 20 year sales employee who
is 63 years old working for a relatively small employer with a payroll
of less than 2.5 million dollars if the employer had to let this individual go
perhaps because of a downturn in the economy or whatever reason they have and
they were to call the ministry or go on the ministry’s website the answer they
would be given is that they have to give this person eight weeks of notice or
termination pay period that’s it whereas the common law would say they are
entitled to quote unquote reasonable notice which takes into account length of
service, age, the nature of the job and anything else that’s relevant
and although the common myth out there is one month per year that’s not the law,
it’s often not a bad estimate, so in this context our 20-year employee he’s 63
years old if the employer calls the ministry or goes on their website
they’re gonna be told to give him eight weeks and yet the reality is if they are
entitled to common law reasonable notice it’s probably 18 or 20 months so
in this context the employer may be breaching this individual’s rights and
giving them far less than they’re entitled to without any intention of breaking the
law and if the individual wants to make sure they’re getting everything that
they’re entitled to and they’re gonna do the smart thing they’re gonna call the
ministry and the ministry is going to tell them the same thing your entitled to 8
weeks period and they might walk away from 16 or 18 months of severance at a
time when in all likelihood their career is ending so this is something I’ve seen
it happen time and time again I still remember one situation I had years ago
where I was advising an older couple who ran a restaurant in Toronto and you know
essentially was it was very typical the man was the cook the woman was the one
who served and took the payment for the cheque and they got busy they hired a
waitress things were going well and then things slowed down and they realized
they had to get rid of the waitress and wanted to pay her fairly so this older
gentleman went to the University of Toronto law library he found the
Employment Standards Act he dug it up he checked what he owed this individual
found it was two weeks it sounded really low to him, so
he called the ministry they said yeah two weeks he thought he was going to be
nice and he gave her four weeks and next thing that happened was he got a very
aggressive demand letter from her lawyer saying he owed her something more like
six months and that’s when he contacted me and I was the one who had to tell him
that yes he did everything right other than call a lawyer which would have been the
smartest thing to do but you did everything right and nevertheless you
now find yourself facing a lawsuit unless you pay some money to make this
go away so again I can only encourage people to
understand the Ministry of Labour provides information in a very narrow
scope so take advantage of that use the calculators use the tools call the
helpline but understand it doesn’t cover all of your rights and if you’re an employer
you need to understand that just because the Ministry of Labour says you only have
to do X doesn’t mean that’s all you have to do as an employee just because the
Ministry of Labor says you are only entitled X doesn’t mean that’s all you’re entitled to the other examples I’ll give very quickly before I wrap up is things
like probation period there’s this assumption out there that every employee
has a probation period automatically when they start work that’s not the case
so even though the Employment Standards Act says you can be let go without
notice in the first 90 days again the common law would say you have to get
reasonable notice and yet if you call the ministry they will say no you don’t
give any notice, or temporary layoffs there’s this assumption as well that you
can lay someone off temporarily if business slows down it’s in the
Employment Standards Act as to how you can do it but the Employment Standards
Act doesn’t give you the right to do it that has to be in contract or it can be
implied in certain industries so construction we all know that you know
in certain times of year people might be laid off that’s an implied term of their
contract but for the vast majority of employees you can’t be temporarily laid
off unless that right is written directly into your contract so again I
would just conclude by saying that it is critical that people understand there is
information out there and it’s valuable information whether you go to the
website or use the phone but people need to understand that the limits people
need understand the limits on that information, what it is, what it is
covering and what it is not and again although it sounds self-serving
start with the Ministry of Labour but contact an Employment Lawyer to make
sure you understand your rights and your obligations before you take any action
or you’ll find yourself either subject of a lawsuit or leaving a whole lot of
money on the table so that’s my time to Fire Away from
today my two cents worth and you got it here for free. So what I would like to do
now is once again thank Michael Mitchell for joining me on episode 4 of Fire Away really enjoyed the conversation it was interesting to hear
you know one of the author’s perspective on what happened with Bill
148. I hope that everyone will tune in again for the next episode again it’s
the third Tuesday of the month which next month will be on June 19th and I’m
going to be joined by Axis Geffen who is the founder and president of Axis
Vero incorporated Axis is a top-notch investigator I have worked with him many
times in fact I spoke with him late last night on a file we’re working on and he
will give us the scoop on how investigations work, what you need to
know, and what you need to be aware of as you embark upon the process of an
investigation, which is becoming a tremendous part of HR in Ontario and in
Canada especially in the Me Too era and the need to investigate any
allegation of harassment. A reminder past episodes can be found on YouTube, on our
website, and on Facebook, and if you like or subscribe to our channels you’ll get
notifications when episodes are either posted or live and I want to remind
everyone as well that my firm and I strongly believe in education, we provide
a lot of useful information out there including our blog, including our social
media feeds, including this show, so please sign up for those, including our
newsletter, so you’ll get all the reminders of everything we post but
lastly please remember none of that information replaces legal advice and as
I often say if you think you might need an Employment Lawyer you probably do so
feel free to reach out to us if you have a concern and I’d be happy to talk to
you and see if we can help. That’s it for today thank you Rob for keeping us on
track as usual, thanks for tuning in and have a great day.

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