Canadian Lawyer InHouse

39 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER/DECEMBER 2015 I n d u s t r y S p o t l i g h t increasingly relies on part-time labour. "Retail is Canada's largest employment sector and has been a major employer, espe- cially of women, for decades. This is not a sector that simply provides temporary, op- tional jobs, or inessential income, especially in the current economic context," says Dr. Kendra Coulter, professor of labour stud- ies at Brock University in Saint Catharines, Ont. "Legal changes are long overdue, and the established standards ought to better re- fl ect people's needs and our social priorities." The review of the laws will be fraught with "competing interests" as employers seek fl exibility with hires and worker groups demand more stability in retail jobs, says Beeho. "There will be a lot of voices to be added to this consultation process and it's going to be very, very interesting to see what comes of the actual consideration and rec- ommendations that end up in the report." Right now, both inclusions and exclusions from the acts "speak volumes," Coulter says. "The protections and entitlements that are included for workers are very limited," she adds, noting the current laws are also mum on issues such as scheduling notice, schedule guarantees, and paid sick leave. Naveen Mehta, general counsel for the United Food and Commercial Workers Union, says the goal of this review should be to strike a balance with a revamped regime. As it stands, it's highly skewed in favour of employers, he says. The UFCW would like to see a regi- mented ratio of full-time to part-time work- ers in a given company. Heavy reliance on part-time staff is "an unfair way to deal with ebbs and fl ows of the business," Mehta says. "It's fully lopsided in favour of the em- ployer, maximizing their profi t at the cost of working Ontarians." Mehta also argues hiring more full-time staff isn't a bad business move for employ- ers. "It increases morale, it increases the ability to build expertise in an area, [such as] customer service in retail. [When you're a full-time staffer], you know your area, you know your product, you know your envi- ronment," he says. Retail employees are also on the frontlines of what many would call "wild west" sched- uling. "A lot of part-time work is scheduled week to week or every two weeks and there is sometimes a level of unpredictability for the individual," Beeho says. He adds this is an issue that adds to the competing interests in this review; employers want to stay nimble and respond to different levels of demands while workers seek more predictability. As for the review into the Labour Rela- tions Act, Coulter, for her part, would like to see a re-introduction of card-check cer- tifi cation as opposed to the current manda- tory vote model for workers' unionization. Currently, "in sectors like retail, the time between the fi ling of the application to the labour board and the subsequent union vote is particularly tumultuous under the current mandatory vote model," she says. "Some employers have used a range of questionable tactics to dissuade workers from voting for unionization, and what happens raises ques- tions for lawyers and legal scholars." Adds Coulter: "A threat to fi re someone is a more clearcut legal violation than daily captive audience meetings at which cor- porate representatives continuously cry to evoke sympathy from their staff. But does either allow workers to independently assess the prospects of unionization?" A card-check certifi cation model would allow workers to carry signed cards to show their support to the union, and when the number of cards issued to workers exceeds a certain threshold, a union gets certifi ed as a bargaining agent without requiring a vote. The UFCW is pushing for this one- step model as well. Metha says he's seen "hundreds of cases" where employees "were frightened out of their minds" days ahead of union votes. When it comes to the ESA, the issue of termination of employment is likely one of the "hot topics" of the review, according to Beeho. Currently, the legislation is set up to allow an employer to contract with employees to limit their entitlement upon termination, Beeho says, adding those minimum entitlements are "certainly not extravagant. They certainly do not provide a cushion of any great depth to individuals in many circumstances." "Some voices would say that termination provisions of the act are set up adequately to provide protection while at the same time giving employers fl exibility to increase head count in busy times and to decrease head count in times that are not so busy without having incurred tremendous obligations to people that they need to part ways with," Beeho adds. "On the other side of the coin, I think there might very well be voices that speak up to say that given the increase in part-time staff, these people need more protections than what the Employment Standards Act already provides." For Metha, a big issue around termina- tion is employers' ability to circumvent all notice obligations through a method he calls the "nudge down." "What we've seen increasingly is employ- ers will start you off at 20 to 25 hours a week — you're already a precarious worker — and slowly nudge you down," he says. "As you work there longer, they'll slowly nudge you down from 15 to 10 to one hour a week. And then you're not working, so you resign. "And what does that do for the employer? The employer now as a result of the resigna- tion has no obligations for notice pursuant to the Employment Standards Act." Retail is Canada's largest employment sector and has been a major employer, especially of women, for decades. This is not a sector that simply provides temporary, optional jobs, or inessential income, especially in the current economic context. DR. KENDRA COULTER, Brock University '' '' protections than what the Employment Standards Act already provides." tion is employers' ability to circumvent all notice obligations through a method he calls the "nudge down." ers will start you off at 20 to 25 hours a week especially in the current economic context.

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