Abstract
Employment standards (ES) are legislated standards that set minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. In Canada, the majority of workers rely on ES for basic regulatory protection; however, a significant ‘enforcement gap’ exists. In the province of Ontario, this enforcement gap has been exacerbated in recent years due to the deregulation of ES through inadequate funding, workplace restructuring, legislative reforms that place greater emphasis on individualized complaints processes and voluntary compliance, and a formal separation of unions from ES enforcement. The implications of these developments are that, increasingly, those in precarious jobs, many of whom lack union representation, are left with insufficient regulatory protection from employer non-compliance, further heightening their insecurity. Taking the province of Ontario as our focus, in this article we critically examine alternative proposals for ES enforcement, placing our attention on those that enhance the involvement of unions in addressing ES violations. Through this analysis, we suggest that augmenting unions’ supportive roles in ES enforcement holds the potential to enhance unions’ regulatory function and offers a possible means to support the ongoing efforts of other workers’ organizations to improve employer compliance with ES.
Introduction
Employment standards (ES) are legislated standards that set minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. ES apply to most workers in a labour market but are often the only source of workplace protection for those in non-unionized and precarious jobs. ES are implemented through three general approaches: (i) proactive enforcement, entailing largely inspections and investigations into sectors of the labour market where employer non-compliance is known to be high; (ii) reactive enforcement, triggered through complaints by individual workers; and (iii) voluntary compliance on the part of employers. With only 31.2% of workers in Canada unionized (Statistics Canada, 2012), the majority of workers rely on ES for basic regulatory protection; however, a significant ‘enforcement gap’ exists at the federal and especially the provincial levels. In Ontario, this enforcement gap has been exacerbated in recent years due to the deregulation of ES through inadequate funding, workplace restructuring, and legislative reforms that place greater emphasis on individualized complaints processes and voluntary compliance. It has also been amplified by the separation of unions from ES enforcement such that unionized employees are prevented from filing ES complaints with the Ministry of Labour (MOL) even though terms of their collective agreements increasingly reflect these minimum standards (Thomas, 2009). 1 The implications of these developments are that, increasingly, those in precarious jobs, many of whom lack union representation, are left with insufficient regulatory protection from employer non-compliance, further heightening their insecurity (Weil, 2012).
In this context, proposals for alternative models for ES enforcement have begun to emerge, including those that emphasize self-regulation as an alternative to traditional state-based enforcement, strategies to enhance worker voice, and the need for new labour market institutions (Estlund, 2005; Weil, 2004). 2 Taking the province of Ontario, Canada as our focus, we critically examine emerging approaches to ES enforcement, placing our attention on those that enhance the involvement of unions in addressing ES violations. In Ontario, at present, workers’ centres and community legal clinics are documenting the enforcement crisis and devising innovative initiatives to address the enforcement gap (see Parkdale Community Legal Service (PCLS), 2009). We suggest that augmenting unions’ supportive roles in ES enforcement holds the potential to support such activities and enhance unions’ regulatory function in the interest of not only the precariously employed, but of workers as a whole (Hardy and Howe, 2009). In other words, involving unions in ES regulation (beyond their constituencies) in ways that may entail, but are not exclusive to, forms of direct representation offers a possible means to support the ongoing efforts of other workers’ organizations to address the enforcement gap and improve employer compliance with ES (see Eidelson, 2013). Although our chief focus is augmenting such ongoing efforts by prevailing workers’ organizations, we contend further that employment law, particularly strategies to promote the realization of ES, may constitute more than simply a source of individualized workplace rights, and may in some cases be pursued in a manner that is supportive of workers' collective action (Sachs, 2008). However, we bracket a discussion of these issues due to space limitations.
The analysis proceeds in four sections. First, we provide an overview of the principles and parameters of ES legislation in Ontario and explain the predominant methods of enforcement. We then outline and explain the nature of the ‘enforcement gap’, conceptualized not simply in terms of legislative violations, but also in terms of the evasion, abandonment, and overall erosion of ES regulation (Vosko et al., 2011). Third, we consider examples of alternative approaches to ES enforcement that involve, or have the potential to involve, unions; with attention to a mixture of reactive, proactive, and voluntaristic measures, we divide the examples surveyed into those that principally enhance, or have the potential to enhance, unions’ regulatory function and those that use employment law as a means to support workers’ collective action, while recognizing that certain examples work towards both ends. Finally, we summarize the potential for union involvement in ES enforcement to improve compliance and enhance workers’ ability to realize their rights in what are principally non-unionized settings.
Before proceeding, two limitations should be noted. First, ES legislation is narrowly contained to a particular set of workplace standards and the standards themselves are low, limiting the extent to which ES enforcement-focused campaigns could advance a full-fledged system of workers’ rights (Hill, 2010; Sachs, 2008). When organizing around ES, the focus for unions should therefore include supporting political mobilizations that pressure for improving and expanding minimum standards legislation, rather than strictly operating within its parameters. Second, in the current period, characterized by rapid de-industrialization, concomitant de-unionization, and the erosion of workers’ collective power, unions tend to prioritize traditional forms of organizing and bargaining on account partly of their need for a membership base and their duty to be accountable to that base. It is thus important to recognize that unions are faced with limited and diminishing resources, challenging their capacities to engage in anything but core activities of organizing and collective bargaining, even though becoming involved in supporting non-unionized workers in ES-related issues may contribute to addressing long term representational challenges.
Employment standards: Principles, legislation, an enforcement
ES are legislated standards that establish minimum conditions of employment in a labour market. The broader normative aim of ES is to promote ‘decent work’, which is defined by the International Labour Organization (ILO) as constituting employment that provides income and job security, equity, and human dignity (ILO, 2002). Within Canada, the principle of ‘decent work’ has been adopted through employment legislation that promotes norms of social minima, universality, and fairness (Vosko et al., 2011). These normative goals have led to the development of ES legislation that is intended to establish a legislative floor for conditions of employment, provide legislative coverage that applies to most workers, and address power imbalances between employers and workers, particularly those in forms of precarious employment.
In Canada, ES legislation is regulated provincially for most workers, with the exception of those in the federal jurisdiction, who are covered by the federal Canada Labour Code. ES legislation governs terms of employment including minimum wages, maximum hours of work (daily, weekly), paid vacations, leave, termination, severance, public holidays, and overtime hours and pay. ES typically provide formal coverage to most workers in a labour market, but are of greatest significance to workers who lack the protection of a collective agreement. While ES set a floor for working conditions, the terms of collective agreements have historically exceeded legislated standards. Moreover, the grievance procedure in a collective agreement is a much stronger form of dispute resolution than the complaints process provided through ES legislation (outlined below), particularly insofar as the former is designed to remedy a workplace problem for workers on the job, whereas in the case of the ES complaints process, complaints are often filed after the employment relationship has been severed (Vosko et al., 2011; Weil and Pyles, 2006). Yet with unionization rates in decline, ES have become increasingly significant for growing numbers of workers.
The primary method of ES enforcement is reactive, through complaints filed by individual workers who have experienced a violation of a legislated standard. In a context of diminishing resources directed towards ES enforcement, complaints increasingly drive the ES enforcement process (Weil and Pyles, 2006). In this method of enforcement, the onus lies on the individual worker to raise the complaint, which may lead to an investigation by an officer from the MOL. If a violation is determined, an employer may face legal penalties and a worker may receive a settlement. Due to the highly individualized nature of the complaints process, many workers in precarious jobs are unwilling to file complaints, fearing job loss or other forms of employer retribution (Workers Action Centre (WAC), 2007). A more proactive approach to enforcement lies in the process of strategic inspections that target employers in sectors where there are known to be high levels of ES violations. This form of enforcement aims to counter the individualized nature of the complaints process and the power dynamics that make employees reluctant to file complaints. Finally, voluntary compliance relies on education and self-regulation rather than legislative mechanisms to ensure that ES are respected. Voluntary compliance may be fostered through educational materials disseminated by government ministries, and may also involve ‘naming and shaming’ campaigns targeted at employers that fail to comply with ES legislation. With a small number of exceptions (see below for relevant examples), unions have played little if any role in ES enforcement processes, focusing instead on negotiating and enforcing collective agreements as the primary mechanism through which to secure workplace standards.
Explaining the ‘enforcement gap’
While ES legislation establishes a floor of protections for most workers in a labour market, its effectiveness is seriously compromised by both insufficient coverage of workers in different forms of employment and/or who are located in certain industries and occupations – an issue bracketed in this analysis but documented elsewhere (see e.g. Fudge, 1991; Fudge et al., 2002; Thomas, 2009; Vosko, 2010) – and weak enforcement practices. To capture the full extent of the range of ways in which ES enforcement is compromised, we conceptualize the enforcement gap in terms of a series of interconnected processes involving the violation, evasion, abandonment, and erosion of legislated standards (see Figure 1).
3
The enforcement gap.
Formal violations of existing legislation are a primary cause of the ‘enforcement gap’. While there are few studies to document the full extent of ES violations in Canada, those that exist find such violations to be widespread. For example, a survey of federally regulated employers conducted by the federal government in the late 1990s found 25% to be in widespread violation of the Canada Labour Code and 50% to be in partial violation. A decade later, the provincially-based WAC conducted a study of ES regulation in Ontario and found frequent violations of the province’s ES, particularly amongst women, racialized groups, recent immigrants, and migrant workers (WAC, 2007). In 2011, a survey of workers in precarious jobs in the Greater Toronto Area found that 20% earned less than minimum wage; 39% did not receive overtime pay; and 36% were let go without termination pay or notice. 4 While the full extent of ES violations is unknown due, in part, to the reluctance on the part of workers to file formal complaints out of fear of employer retribution or job loss, these surveys give some indication of the magnitude of the problem. 5
In addition to formal violations, employers seeking to evade ES legislation may contribute to the ES enforcement gap. A common form of ES evasion, which can overlap with ES violation where it entails processes of misclassification (Fudge et al., 2002), occurs through employer strategies that circumvent ES legislation through engaging self-employed contractors to perform work formerly or typically undertaken by employees, as such persons are formally exempt from ES. Moreover, the broader policy objectives and normative goals of ES legislation may be eroded and eventually abandoned both as these processes (violations and evasion) become normalized and as policymakers pursue legislative reforms that weaken an already insufficient ES regulatory framework.
The dynamics of the enforcement gap are revealed through an examination of ES enforcement practices in Ontario, particularly as it pertains to the individualized nature of the complaints process (the primary mechanism of enforcement). 6 In recent years, the number of individual complaints has grown to approximately 20,000 per year, with a backlog of 14,000 complaints accumulated by 2010, a result connected to both the increased numbers of workers reliant on the Employment Standards Act (ESA) as well as to budget cutbacks for the ES program. Furthermore, even in the case of an award in favour of a worker, there is no guarantee that this settlement will be recovered. Indeed, between 2006 and 2010, only approximately 50–54% of wages deemed owing through investigations were recovered. 7
Investigations may also take place on a proactive basis and, at times, the MOL has targeted sectors with high rates of non-compliance for this form of proactive enforcement. While in the years following the enactment of the ESA in 1968, the MOL followed up individual complaints with proactive audits involving all employees within a company, the number of investigations has declined since the 1970s. Since then, the MOL has prioritized individual complaints as the primary enforcement mechanism. In recent years, the MOL has invested resources into expanding the program of proactive inspections; however, less than 1% of Ontario’s workplaces are inspected for ES violations in a given year (Vosko et al., 2011).
While ES enforcement tends overall to emphasize an individualized approach, in what follows, we examine the potential for unions to counteract these tendencies through forms of engagement that include providing representation during the complaints process, resources for investigations, and support for organizing around ES issues undertaken by other worker organizations.
Alternative approaches to ES enforcement
Given the persistence of the enforcement gap, new initiatives directed at improving ES enforcement are emerging (see Estlund, 2005; Weil, 2012). Most emanate outside Ontario, and some aim specifically to augment workers’ individual and collective voice (Vosko, 2013) and thus have the potential to involve unions as actors. On the assumption that any model of ES enforcement will inevitably involve a mixture of reactive and proactive as well as voluntary initiatives, we survey successful initiatives of these sorts, dividing them between those that involve, or have the potential to involve, unions in the regulatory process, and those that use employment law as a vehicle for collective action. While we make this distinction for heuristic purposes, we recognize that these two categories may be overlapping and that, collectively, the activities they encompass may also contribute to a form of ES enforcement with the potential to accord unions with a renewed role in an era of union decline.
Union engagement in the enforcement process
The individualized complaints process, whereby a worker who feels they have experienced an ES violation files a complaint with a state agency, not only inherently opens the complaints process to the imbalanced power dynamics of the employer–employee relationship, which is particularly pronounced for those in precarious work (Weil and Pyles, 2006), but also makes the process entirely reliant upon the resources allocated by the state towards enforcement. In Ontario, the complaints orientation has resulted in a situation of limited inspections, a large backlog of complaints, and a collections process that leaves many settlements outstanding. However, a growing number of examples indicate that unions may take on a regulatory role in ES enforcement through a range of reactive, proactive, and voluntary strategies, and thereby create the potential to address the enforcement gap.
In the context of a largely reactive regime in Ontario, third party complaints offer another vehicle for improving reactive practices that could draw in unions. These types of complaints are permissible under Australia’s Fair Work Act (2009), which allows the Australian Government Fair Work Ombudsman (AFWO) to receive complaints from any party who wishes to complain about an alleged breach of Commonwealth workplace laws (AFWO, n.d). In the US, 16 states also permit workers to designate another person to bring an unpaid wage lawsuit on their behalf and/or other workers who have similar claims, and seven states allow organizations and individuals, including fellow workers in the same workplace, to file administrative complaints on behalf of affected workers (National Employment Law Project (NELP), 2011).
On their own, however, third party complaints make no provision for protecting the worker(s) concerned from reprisal. To this end, anonymous and confidential third party complaints offer avenues through which unions could better support workers in realizing their rights. Broadly, worker advocates favour anonymous complaints as they provide the most protection for workers still on the job. If they are designed appropriately, anonymous third party complaints also offer unions the possibility to support workers regardless of whether they are members. Here, the province of Saskatchewan has devised a model that could be modified modestly to facilitate union involvement. Currently, legislation in the province allows ‘the employee or a third party such as a parent, friend or a member of the community’ to submit a written claim against an employer which the Compliance and Review Unit then investigates. 8 However, if ‘union representatives’ were either named explicitly in such legislation as potential anonymous complainants or even if such provisions were interpreted broadly such that union representatives fell within the definition of ‘community members,’ unions could be brought more centrally into the enforcement fold. In Saskatchewan, the anonymous complaint option is available if the worker is still employed at the workplace, believes that provisions of the province’s Labour Standards Act are not being followed, and wants to seek redress but is not in a position to file a formal complaint. Only written complaints with supporting evidence are reviewed. Indicative of the proactive orientation of Saskatchewan’s approach to ES enforcement, this legislation is also exemplary as the Compliance and Review Unit pursues expanded investigations in some such cases. For example, where a claim submitted by a worker is found to apply to more than one worker at the worksite, the unit will expand their inspection to protect all workers present. 9
More modest in their effects, confidential complaints, which can also involve third parties, keep the identity of the worker and/or complainant unknown to the best of investigators’ ability during the investigation process. They are available in the province of British Columbia and nine US states 10 – and they too could be a powerful tool for enabling unions to support workers if ES legislation were to be adapted to permit unions to make such complaints on behalf of aggrieved workers.
While Ontario does not allow complaints of any sort from third parties, a case involving an ES overtime complaint illustrates the role that unions can play in supporting non-unionized workers who feel their rights have been violated. In 2002, three workers at the Toyota automobile production plant in Cambridge, Ontario, initiated a complaint with the Ontario MOL, alleging that Toyota had violated Ontario’s ESA by denying them the right to refuse overtime and by attempting to discipline them for exercising that right. Toyota countered the complaint with the claim that the employees had agreed at the time of their hiring that they were willing to work all requested overtime hours; thus, there was no violation of workplace rights. While the complaints were launched by individual workers, as required by the Ministry’s complaints process, the workers were given legal support by the Canadian Auto Workers and several community legal clinics in the Greater Toronto Area. The overall initiative was coordinated and publicized by the Employment Standards Work Group (ESWG), a coalition of unions, activists, and community legal workers that is based in downtown Toronto. The case resulted in a partial victory for workers in that the MOL agreed that their rights to refuse overtime had been violated (see Thomas, 2007). 11
Another means for unions to support ES enforcement entails providing them with a legitimate role in court proceedings that may ensue in the complaints resolution process. Returning to the Australian case, under Australia’s new national system of Industrial Relations, the Fair Work Act gives unions the right to bring court proceedings in relation to violations of ES if they are entitled to represent the employee in question, rather than requiring unionized workers to seek redress exclusively through collective agreements and grievance-arbitration processes (Vosko, 2010). 12 In this way, the tenor of the Australian model of ES enforcement is promising in offering openings for union involvement, specifically for unions to act as third parties, throughout the complaints process. Nevertheless it should be emphasized that, under the current regulatory framework in Ontario, unions are only able to represent workers in certified bargaining units and, furthermore, as we indicate above, the ESA prevents unions from using this Act’s enforcement mechanism for such workers.
Another potential opening for union involvement in court proceedings related to ES enforcement has been created recently in Ontario through rulings by the Ontario Court of Appeal (Fresco v. Canadian Imperial Bank of Commerce; Fulawka v. Scotiabank) and the Ontario Superior Court (Rosin v. BMO Nesbitt Burns Inc.), which have allowed for class actions to be undertaken in order to secure compensation for unpaid overtime. 13 While a union-led class action has yet to emerge, these rulings could offer another avenue for unions to support the process of ES enforcement for non-unionized workers.
Further strategies for empowering workers across complaints processes include outreach activities on the part of labour inspectorates, which may involve partnerships with non-state actors to promote policy implementation on the ground. In the US, such strategies have grown measurably at the federal level in the last decade. They include efforts tailored to particular ethnic communities, such as the Compliance Outreach to the Asian Community and Hispanics through which the Northern New Jersey Office of the Wage and Hours Division visits and works directly with groups of workers historically confronting high levels of violations but reluctant to use its services, introducing them to wage and hours laws through publications and other educational services. They also encompass the Rapid Employee Assistance in Chinese Hotline, a telephone hotline geared to answer questions about employment laws from Chinese-speaking workers in New York, presumably before complaints are initiated. These two examples predate the public awareness campaign, known as ‘We Can Help’, launched by the Wages and Hours Division in April 2010 through which the agency is attempting to connect the precariously employed with its services via collaboration with local worker advocacy and interfaith organizations to enhance its presence and improve in-person assistance in complaints processes. To the present, such outreach activities have not involved unions. However, given their effectiveness, there is no reason why unions should not be treated as non-state partners in promoting enforcement akin to community groups of other sorts.
In addition to these various reactive measures, a number of proactive initiatives spearheaded by unions in other jurisdictions could serve as models for expanding unions’ regulatory function in Ontario. The most well-institutionalized examples here are on-the-ground workplace practices in which unions are involved in documenting and redressing violations, the foremost of which are the Los Angeles Unified School District and Board of Public Workers deputization programs (see Fine and Gordon, 2010). Under the first program, the Los Angeles Unified School District deputizes and trains business representatives of building trade unions to enforce the prevailing wage on district projects funded by monies from construction bonds. These representatives – known as ‘work preservation volunteers’ – are provided with badges and business cards and authorized to conduct compliance visits. This program arose from a controversial agreement in which construction unions conceded their right to strike over job issues in exchange for the creation of an internal compliance department set up by the school district in which union representatives play this role. The Los Angeles Board of Public Workers followed suit, training what it calls ‘compliance group representatives’. Both programs are designed to make these on-the-ground inspectors the representatives of labour inspectors from the City, and thereby expand its enforcement capacity while simultaneously providing workers and their advocates with greater voice. 14 In this way, they are consistent with the ILO’s Labour Inspection Convention (No. 81), which encourages member states to engage in collaboration between state and non-state agencies. 15
The strengths of these deputization programs include their relative permanence and their enshrinement in public law. Their substantive success also relates to the business representatives’ intimate understanding of sector-based issues, the ‘contour’ of their activities to specific rules applicable to public construction, and their access to detailed data. The significant weaknesses of these examples include deputies’ inability to advocate for workers facing violation and/or evasive behaviour, a profound limitation that should not be imported into alternatives adopted in Ontario (Vosko, 2013).
Studies of ES reveal the limits of voluntaristic measures, especially as the exclusive means of enforcement (see Bartley, 2005; Deakin and Hobbs, 2007; James et al., 2007; Macklem and Trebilcock, 2006). Such studies highlight the need to acknowledge the inherent power imbalance between workers and employers, which is amplified by the growth of precarious employment in general and subcontracting specifically, and thereby underscore the need for more direct forms of union involvement. There are nevertheless several best practices in voluntaristic compliance – or the implementation of regimes of corporate social responsibility (CSR) (encompassing, amongst other examples, social labelling – verification systems for a firm’s social performance by authorizing the use of a physical label to communicate the social conditions surrounding production; codes of conduct – written sets of standards, principles and norms to which a firm conforms; and third party monitoring – the use of independent inspectors to verify code compliance) (Estlund, 2005; Macklem and Trebilcock, 2006) – that could complement reactive and proactive strategies cultivating unions’ regulatory function in a mixed regime. 16 Such practices relate principally to strategies involving investigations and inspections.
One relevant voluntaristic practice, of growing popularity amongst unions, union centrals, employers, and states (see Australian Council of Trade Unions (ACTU), 2009; Dickens, 2009; Trade Union Congress (TUC), 2008) is public procurement policy – agreements that government agencies investing ‘tax dollars’ make with private sector actors in procuring public works projects. While recognizing that a public procurement policy may take the form of a statute – a regulation of an administrative action, we characterize this public procurement policy as voluntaristic since it involves governments, aiming to construct themselves as model employers, voluntarily subjecting their own tendering practices for goods and services to high standards rather than altering frameworks for regulating conditions of work and employment applicable more broadly to workers and employers. Such agreements exist in a range of contexts and at different scales. A noteworthy national example is Ireland’s Public Sector Procurement Policy, which seeks to ‘maintain employment standards in the public sector and uphold statutory norms, notably in relation to construction companies tendering for and engaging in public work contracts’ (Eurofoundation, 2009). First developed as part of Ireland’s Ten-Year Framework Social Partnership Agreement 2006–15 (Ireland, 2006) and reaffirmed in a Transitional Agreement 2008–09 developed in the context of economic crisis (Ireland, 2008), this agreement calls for adhering to ‘industry norms in terms of pay and conditions and to prevailing national and/or industry-wide agreements, including health and safety regulations’, as well as to ‘employment standards and statutory norms, including those regarding wage levels, while also ensuring competitive tendering and value for money’ (Eurofoundation, 2009). It is administered by the Department of Finance, which issues public procurement guidelines, and is promoted by a range of other government agencies including local government and transport agencies. Under its terms, contracting authorities are also to facilitate access to the Labour Relations Commission Conciliation Service, Labour Court and the Rights Commissioner Service (e.g. in the event of an industrial dispute) in line with Ireland’s industrial relations regime (Eurofoundation, 2009). 17
Another national example is the umbrella group known as the Sweatfree Purchasing Consortium (SPC), a group of state and local governments in the US who help other cities, states, counties, towns, and school districts, often in conjunction with unions or union centrals, to develop and implement policies and rules towards the goal of avoiding sweatshop products. The Consortium works to assist governments in creating codes of conduct, applicable to the contracts in which they engage, requiring that their contractors abide by ‘standards that enjoy international consensus and the will of the people of the nation and region of production’, specifically, the core conventions of the ILO and its Declaration on Fundamental Principles and Rights at Work and its implementation and monitoring (SPC, 2011). The Consortium also provides guidelines for a five-step program for the monitoring of such codes involving advertising, prequalification, a process equivalent to certification, supplier evaluation, and performance monitoring.
Employment law and collective organizing
In addition to the potential for involving unions in ES enforcement as through the examples already discussed, unions may also become indirectly involved in ES regulation by supporting collective organizing undertaken by non-unionized workers and other workers’ organizations in efforts to improve ES enforcement. While employment law has often been viewed as ‘inimical’ to collective organizing and collective action (Sachs, 2008: 2689), in light of a number of recent reactively oriented campaigns and more proactive organizing efforts amongst non-unionized low-wage workers, the potential for employment law to facilitate collective action is becoming increasingly apparent (Sachs, 2008: 2689). In some cases, such initiatives may also serve to reinforce unions’ regulatory function.
One successful initiative that emerged through a reactive approach is that engaged by the New York based Restaurant Organizing Centre (ROC), which was initiated by the union UNITE HERE to assist employees who worked in the restaurant occupying the top floor of one of the two twin towers affected by the events of 11 September 2001. To draw in worker-members, ROC uses employer-focused campaigns driven by worker complaints of unpaid wages, etc. After their completion, it offers workers training in organizing, policy advocacy, and/or participation in its cooperative restaurant as a means of enhancing their job skills. Another successful example is the struggle of garment workers in Bushwick, New York, assisted by Make the Road by Walking, a ‘citizen union’ engaging organizers and lawyers to assist workers in ‘campaigns to collectively secure rights at work’, who successfully lobbied the US Department of Labour to enforce provisions of the federal Fair Labour Standards Act, initially to secure them overtime pay and subsequently to seek redress in the face of employer retaliation in response to their complaints (see Sachs, 2008).
In Ontario, the ‘Bad Boss’ hotline, a province-wide hotline organized in the mid-1990s by the Ontario Federation of Labour and the ESWG, provides another example of a reactive campaign organized around employment law (Canadian Press, 1996; Thomas, 2009). The hotline received numerous accounts of ES violations across the province including unpaid wages, overtime, and vacation pay; wages less than the minimum wage; denial of severance pay; hours of work in excess of the legal maximum; employer intimidation; and refusals for sick days and statutory holidays. These accounts were then compiled into a report titled Bad Boss Stories, which was used to support subsequent campaigns undertaken by the ESWG to pressure for improvements to ES legislation and enforcement.
A much more recent proactive example from the City of Toronto can be seen through a fair wage campaign for a city-wide procurement policy. In 2012, a labour-community coalition, known as Good Jobs for All Coalition (GJC), engaged in a Justice and Dignity for Cleaners Campaign that resulted in a victory for cleaners; specifically, it successfully convinced City Council to review all cleaning contracts in Toronto to prevent the engagement of firms that have violated the ESA and Toronto’s Fair Wage Policy (GJC, 2012).
A final example, which did not involve unions but which highlights the ways in which the preemptive use of employment law can facilitate collective organizing, can be seen in a ‘Stop Wage Theft’ campaign organized by the WAC in Toronto. The campaign arose to prevent a scheduled C$6,000,000m cut in the provincial government’s allocation for ES enforcement announced in early 2012. Proactive in its emphasis, this campaign highlighted the persistence of wage theft experienced by workers in precarious jobs as a whole and involved sending letters, emails, and postcards to Premier Dalton McGuinty, as well as lobbying Members of Provincial Parliament. By the year’s end, the pressure generated through the campaign contributed to a government decision not to implement the budget cut and re-invest resources in proactive enforcement measures (WAC, 2012).
In addition to campaigns aimed at changing employment law, there are a growing number of initiatives aimed at creating new institutions for the assertion of individual rights in workers’ collective interest. One example is a new Independent Worker Association (IWA), organized jointly by the United Steel Workers of America and Migrante Ontario, a migrant workers’ rights organization, which advocates for ES enforcement amongst workers migrating, chiefly as home care workers of various sorts, under Canada’s Temporary Foreign Workers and Live-In Caregivers Program. To date, with respect to law reform, the IWA has engaged principally in lobbying the provincial and federal governments. At the provincial level, 18 it has aimed to ensure that hiring agencies and recruiters are regulated and key ES are enforced under Ontario’s Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others) Act (2009), which serves as an adjunct to the ESA for this group of workers. Emphasizing a proactive approach to ES enforcement, IWA has also called for systematic monitoring to ensure that employers otherwise abide by ESA procedures to protect workers and resolve conflicts between workers and employers. In addition to lobbying, pertinent to ES enforcement, it provides workers with legal services and operates a toll free telephone helpline to assist workers encountering problems. As well, the IWA offers accident and critical illness insurance, discounts on dental services, and other services. Informed by an organizing model, the IWA also trains workers about their rights through offering educational programs on immigration law, ES and labour rights, as well as health and safety legislation, with the aim of greater worker empowerment. In this way, this association is more promising in advancing workers’ collective rights than the Los Angeles Unified School District and Board of Public Workers deputization programs described in the previous discussion, since IWA staff are not constrained from engaging in advocacy.
Through these examples, we see how employment law can ‘galvanize nascent forms of collective action’ by acting as a frame through which workplace problems may be articulated as collective injuries, thereby providing a basis around which non-unionized workers develop a shared conception of workplace problems and a collective identity that can be mobilized in opposition to these concerns (Sachs, 2008: 2689). Indeed, employment law may shield such workers collectively from coercive interference from employers through anti-retaliation provisions that are designed to provide protection when workers file complaints and/or engage in organizing activities. Moreover, it may have a generative potential in that victories achieved through organizing in this manner around such issues may motivate workers to pursue further efforts to collectivize their interests and thereby advocate more effectively for improved ES and ES enforcement. As the examples illustrate, specific initiatives may build upon reactive enforcement measures by using worker complaints to catalyse action, or may involve collective organizing to pressure for the adoption of more proactive enforcement strategies. Union involvement in this process may then take the form of organizing support for the efforts of other workers organizations, policy advocacy work, and legal representation, thereby aiding in the improvement of ES enforcement. Such involvement may also simultaneously enhance unions’ (explicit and implicit) regulatory power more broadly across labour markets and particularly in areas where workers are presently underrepresented, for example through union connections to new institutions such as the IWA or through an approach that expands the locus of union action through coalition work with community organizations as in the GJC.
Conclusion
As a means to address the ES enforcement gap, unions could play a role in countering the highly individualized nature of ES regulation that, in Ontario, is amplified by formal legislative provisions preventing unionized employees from filing ES complaints with the MOL. Through this examination, we have outlined a range of examples that indicate the variety of forms such involvement could take, including reactive, proactive, and voluntary approaches. Moreover, our analysis suggests that through greater involvement in ES enforcement processes, unions may not only provide a means to improve ES regulation, but may also enhance their regulatory role in contemporary labour markets, specifically by addressing workplace problems experienced by the large and growing numbers of workers in precarious jobs that they do not formally represent. The central underlying assumption is that, on their own, state-centric approaches – activities driven and activated exclusively by agents of government – to ES enforcement are insufficient to realize workers’ rights. In addition to a significant expansion of the scope of ES legislation and improvement in the levels of ES themselves (see Vosko et al., 2011), a system of ES enforcement that centrally involves legitimate non-state actors, especially workers’ advocates, including but not limited to unions, offers potential to help address the ES enforcement gap.
Union involvement in the ES enforcement process could take the form of multi-layered regulation, whereby enforcement activities, which may occur simultaneously, proceed from lesser to greater degrees of intervention, in accordance with the nature of the violation and an employer’s willingness to comply with ES legislation. Conceived this way, as indicated in Figure 2 depicting concentric layers of regulation, the outer layer would encompass low-level forms of intervention such as education, advice, and moral persuasion. It would include, on the one hand, the highly voluntaristic approaches of the US-based SPC and, on the other hand, ‘naming and shaming’ campaigns directed at employers perceived to be committing violations (e.g. Ontario’s Bad Boss Hotline and activities of ROC). Moving inwards, more formal forms of reactive enforcement, including complaints and legal action, would occupy the middle layer; for example, unions could be permitted (even encouraged) to pursue anonymous, confidential, and third party complaints on behalf of aggrieved workers as well as to represent and support workers in negotiated settlements and court proceedings. Finally, intensive forms of intervention, occupying the inner circle, would include proactive measures, such as regular (and possibly) random inspections and/or extended investigations (which may arise from findings or legal renderings of moderate or mid-level reactive initiatives) of high risk workplaces and industries in which unions play either a collaborative or leading role (e.g. deputization programs).
Multi-layered regulation.
Under this approach, the strength and influence of unions’ regulatory role in ES enforcement would increase moving inwards, from voluntary approaches towards those that are more proactive. Under this approach, unions would aim to utilize those strategies that are the most proactive in nature. At the same time, unions could use the mixture of regulatory tools available singularly or in combination, engaging them in response to the nature and degree of perceived ES violations. As the legal arrangements we envision are currently uncommon, towards the institutionalization of these practices, unions’ regulatory role could most immediately be enhanced through engagement in reactive approaches where union representatives are able to support claimants through the complaints process, or in voluntary approaches where union designates are able to participate in monitoring processes (e.g. through well-developed public procurement policies).
Collective organizing that builds upon employment law to spur workers’ attempts to secure stronger ES enforcement may bolster such efforts. As part of an overall system of multi-layered regulation, as suggested in Figure 2, campaigns, organizing efforts, and other initiatives may intersect with various voluntary, reactive, and proactive forms of regulation. Specifically, the organizing activities discussed here not only have the potential to themselves address deficiencies in ES enforcement, but may also support the enhancement of unions’ regulatory function by creating new roles for unions through their connections to non-unionized groups of workers. Such an orientation creates potential for unions, and labour centrals operating in their interests, to forge alliances with other community groups engaged in workers’ rights advocacy for low-wage workers as evidenced with the GJC or, as in the case of the IWA, for the emergence of new institutions.
Finally, union engagement in ES enforcement may also provide a means through which unions could counter both declining memberships and their related loss of influence in the context of the growth of precarious employment, through pursuing innovative forms of organizational renewal. By forging changes in unions’ post-organizing and bargaining tactics that entail moving beyond worksite-specific problems and increasing investment in pursuing public policy reforms, leadership development, and organizing work, it is possible to see the potential of involvement in collective organizing around ES issues as contributing to a revitalized mandate for unions struggling to expand beyond their traditional reach. This expanded focus should, however, supplement rather than replace unions’ critical role in securing strong collective bargaining agreements, addressing workplace grievances, etc. It should also support the mounting campaigns and advocacy activities of non-state actors, such as workers’ centres and community legal clinics. In adopting ES regulation as a central area of concern and pursuing strategies that involve advocacy, representation, and pressuring for legislative and policy changes, unions could provide a means to address the enforcement gap and thereby enter into a process of deepening their engagement with the concerns facing workers in precarious jobs.
Footnotes
Funding
This research was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC) under its standard grants program through an award to Leah F. Vosko. It also emerged as the co-authors contributed to preparing a partnership grant application on ‘Closing the Enforcement Gap: Improving Protections for People in Precarious Jobs,’ funded subsequently by the SSHRC.