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42 M A R C H 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m Employment standards and labour rela- tions were developed at a time when labour relations were more conventional, Kastner notes. "The old labour market was much different" in that there was more stability and security in the workplace; it was not unusual for employees to stay with one company for their entire working life and retire with a good pension after a quar- ter-century or more of service. "Now that we have so many models of employment," says Kastner, "the sense among workers' advocates in particular is that workers don't have the range [of pro- tections] that they once had, and that legis- lation doesn't keep up" with the changing labour marketplace. Some of the reforms being contemplated would bring clarity and benefits to employ- ers, Kastner says. "There are manifestly dif- ferent laws that apply whether someone is an employee or a contractor. Many people who were classified as employees are now contractors," and bringing clarity to the law would help employers understand their obligations, he says. "Now, employers are often left to guess." The report outlines myriad options for reform of existing legislation, including "maintain the status quo" as the first option for each issue examined. Precarious work Precarious work generally refers to non-permanent employment such as sea- sonal and other temporary work. This can include what Changing Workplaces Review refers to as "misclassification" of employees; for example, where someone who has been working full-time hours in an employer's workplace for several years can nevertheless be considered a "freelan- cer," or independent contractor, with no job security or benefits. "An important focus is on vulnerable workers in precarious jobs in the context of employment standards and labour relations," the interim report's authors note. The issue of precarious work is "the main focus" of the review, says Kastner. "It is becoming more and more common for people to be described as contractors, so employers may be able to circumvent labour legislation. The employer . . . has enormous powers to evade employment standard obligations." Enforcement "While most employers likely comply or try to comply with the ESA," wrote the special advisors, "we conclude that there are too many people in too many workplaces who do not receive their basic rights." George Vassos of Littler Mendelson PC in Toronto, who practises on the employer side, predicts the government will want to enhance enforcement of cur- rent laws and statutes. "There may be changes to legislation resulting in harsher penalties" for employers, he notes. Balancing rights The interim report's authors acknowledge the balance that must be maintained between employer and employee rights. "The fact that this Review is taking place is strong evidence of a broad societal concern over the changes that have taken place in the workplace and the fact that for many there has been a long-standing trend of deteriorating working conditions for a growing number of workers," the special advisors write. "At the same time, the mandate from the Minister of Labour to recommend changes that will support business (also reflected in our Terms of Reference) is recognition that change cannot take place without taking into account its impact on business and that keeping the economy strong is a priority for everyone. . . . The regulation of labour and employment law must not be so burdensome as to impair unnecessarily the competitiveness of Ontario business." But labour and employment practi- tioners who represent employers predict that labour unions and workers' advo- cates may be happier with changes to the legislation. "My expectation is that the employer community will see the new changes imposing more limitations, restrictions, and the employer community will see changes as more negative than positive," says Vassos. Those changes may include placing term limits on temporary contracts, changing the test for determining who is an independent contractor and facili- tating unionization of the workplace, lawyers say. Termination provisions (just cause) Although almost all collective agreements in Ontario contain a "just cause" pro- vision for termination of employment, the Employment Standards Act does not; in general, an employer can dismiss an employee for any reason. The ESA requires only that the employer provides notice of termination or pay in lieu of notice to the employee and, if the employ- ee is eligible, severance pay. Three Canadian jurisdictions — Nova Scotia, Quebec and the federal jurisdic- tion — have unjust dismissal protection that allows employees to contest their termination and provide for possible reinstatement by an independent arbi- trator where no cause is found to exist. Ontario is now considering doing the same. The special advisors note that the absence of a "just cause" requirement in the ESA means that temporary foreign workers, who come each year to work in Ontario in agriculture and who are allowed just one employer, must return to their country of origin if they are dismissed by their employer, and that IT IS BECOMING MORE AND MORE COMMON FOR PEOPLE TO BE DESCRIBED AS CONTRACTORS, SO EMPLOYERS MAY BE ABLE TO CIRCUMVENT LABOUR LEGISLATION. DANNY KASTNER, Kastner Law L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T

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