“Permanently Temporary” - A Submission to the Standing Committee on the Legislative Assembly Bill-139, an Act to amend the Employment Standards Act, 2000 by the Community Social Planning Council of Toronto

March 25, 2009

The Community Social Planning Council of Toronto (CSPC-T) is a non-profit agency engaged in research, policy analysis, community development and capacity building work. As an organization committed to social and economic justice and the improvement in the quality of life for all people living in Toronto, and a member of the Good Jobs for All Coalition, we are encouraged to see the Ontario government taking action on protecting the rights of temporary agency workers. This Bill is both critical for temp agency workers and a vital step in the province’s movement on poverty reduction. Being that a disproportionate number of temporary workers are new immigrants, women, and people from racialized backgrounds, we believe this act will work in providing greater protection for Toronto’s working communities. For these reasons, we fully support the implementation of Bill 139 and endorse the amendments proposed by our allies at the Workers’ Action Centre.

The Ontario labour market has seen a rise in the number of part-time, temporary, self-employed and contract work; nearly one in three jobs in the province are of this precarious nature. From 1997 to 2005, the number of temporary employees in Toronto increased by 68%, and in 2006 accounted for 13.4% of all Toronto workers. According to Statistics Canada, in February 2009, Ontario led the country in the number of workers who held a temporary job, at 547,200 (Quebec came in second with 362,600). It should come as no surprise then that the primary channel for placing employees in such work, the temporary help industry, has grown and profited enormously over the years, providing employers with temporary workers in nearly all sectors of the economy.

There are nearly 1,000 temporary help agencies operating in Ontario. The rapid growth of this industry has gone largely unregulated, particularly due to the previous government’s repealing of the Employment Agencies Act in 2000. Ontario’s outdated Employment Standards Act has not kept pace with these dramatic changes in the labour market, and as such, we are seeing increased incidences of workers that are being unfairly treated, and their employment rights violated. Agencies have taken advantage of this fact, and have reaped millions off the backs of hard working Ontarians. This type of work has also proliferated employment inequities, with temporary workers earning 40% less than their permanent workplace counterparts, with little or no benefits.

The temp industry maintains that it is simply responding to the demands of employers, by providing them with a pool of flexible workers, and that any government regulations and intervention would only impede job creation, hurt businesses, and are contrary to the principles of a free market system. However, these employment agencies have already imposed their own forms of interventionist and regulatory policies via restrictive contracts, and rules about who can work where, when and for how long. There is a growing consensus emerging from workers, labour unions, communities, and advocates, that the industry has clearly not been able to self-regulate, and that the provisions of such employment placement services have come at a great cost by completely neglecting human and labour rights, and stifling labour market participation and mobility.

Research conducted by the Workers’ Action Centre in their report entitled “Working on the Edge”, which includes personal accounts and experiences from workers, demonstrates that workers making use of temporary help agencies are facing discrimination, having their employment and human rights violated, and are being confronted by numerous barriers towards gaining stable and permanent work. Due to their temporary status, workers find themselves needing to pay fees to agencies if they wish to be hired by the client company, are being denied public holiday pay, and are being misclassified as independent contractors. Thanks to the efforts of the government, temporary workers who have been categorized as “elect to work” are now able to collect holiday pay. The Province is moving in a positive direction, yet much more needs to be done.

Bill-139 will work in reducing barriers to permanent employment, eliminating fees that pose immense strains on vulnerable low-income workers, and guaranteeing that employees are properly informed about their work assignments, and their basic rights afforded to them under the Employment Standards Act. These rights towards “just and favourable conditions of work” are also enshrined in the UN’s Declaration of Human Rights. Any legislated changes should not be viewed as a threat towards employment agencies, but rather necessary measures to ensure fairness and adequate protection for all workers.

While we strongly support the substance of this Bill and its objectives to expand the Employment Standards Act to protect temporary workers, some sections of the Bill can be strengthened to more effectively meet these objectives. We at the CSPC-T therefore support the following recommendations put forth by the Workers’ Action Centre to improve Bill-139.

Inclusion of all employment agencies

We would like to see the language of the Bill expanded to include not only temporary help agencies, but all employment agencies that are in the business of staffing employers or helping workers find employment (both temporary and permanent). This will ensure that no agency is imposing fees onto workers for any employment-related service- a regulation that had previously been in place under the Employment Agencies Act.

Barriers towards direct employment

The Bill as it currently stands does not effectively remove barriers to permanent employment and direct hiring, as agencies are allowed to charge fees to the client company during the first six months of a work assignment. This essentially creates a large loophole for employment agencies, as it may remove a worker from a work assignment just prior to this six month period and replace them with another temporary worker in order to avoid direct employment by the client company. During this time of economic hardship and increased job loss, it is counter-productive to purposefully erect barriers for workers that seek stable and lasting employment. Access to permanent employment would benefit not only workers’ themselves, but the province as a whole, with increased productivity and tax revenue to support much needed social programs. We therefore urge the government to abolish the six month period during which temp agencies can charge fees.

Information on work assignments

Workers are often left in the dark regarding the basic details of their work assignment including the very name of company that they’ll be working for. Bill 139 will remedy this by ensuring agencies provide in writing the name of the company, contact information, hours and description of work to be performed, and information regarding wages and pay periods. This will allow workers to have access to important information needed in order to manage personal and family time, as well as to enforce their employment standards rights in the case of any disputes that may arise.

We also ask that this section be amended to include the start and expected end date of work assignments, any mark-up of fees between what a company pays an agency, and what the agency pays a worker, and requiring client companies to sign such a document to ensure transparency and accountability.

Termination and Severance

The misclassification of employees as “elect to work” that has been imposed by temporary agencies onto workers has been used until most recently to deny workers public holiday pay. It is also being used to deny workers termination and severance entitlements. We ask that the government immediately move to remove the “elect to work” exemption for termination and severance benefits.

Equal pay for equal work

The income disparity between a temporary worker and their permanent employee counterparts urgently requires the inclusion of an equity clause within the Bill. It is unacceptable that a temporary worker performing the same tasks and duties as a worker that was hired directly by the company receives a substantially lower income with no benefits and little job security.

Penalties

Stricter enforcement of the Employment Standards Act and stronger penalties for violations are needed to ensure that agencies and client companies are abiding by both current and future legislation. A clear and firm message needs to be sent that employment standards violations will not be tolerated and that repeat offenders will be severely reprimanded. Without such penalty measures and effective enforcement strategies put into place, agencies will have little incentive to adhere to any updates to the Employment Standards Act.

In closing, Ontario’s employment standards must be immediately updated to reflect the changing nature of work in the province, and to ensure that temporary workers are fairly treated and their rights protected. Provinces across Canada have recognized this fact, and have implemented their own policies to protect workers in non-standard forms of work. It is now Ontario’s turn, and we applaud the pro-active steps taken by the Ontario government thus far. The enactment of this Bill with the proposed amendments will have a tremendous positive impact for workers. The Ontario government must continue to demonstrate leadership in safeguarding the rights of low-income and precarious workers as it proceeds with its effort to combat poverty in the province. These steps will help to protect all workers and guarantee that they are treated fairly, and with the dignity and respect they deserve.