Labour Minister Kevin Flynn talks changes to Ontario employment law

Q&A: Kevin Flynn is preparing for the first major change to Ontario labour laws in nearly a generation. He spoke to TVO.org about why it’s needed and what’s coming
By John Michael McGrath - Published on March 10, 2017
Ontario labour minister Kevin Flynn at Queen's Park
Labour Minister Kevin Flynn is looking to make substantial changes to Ontario employment law this year. (Frank Gunn/CP)

Ontario hasn’t substantially revised its labour laws in nearly a generation. Since taking power in 2003, the Liberal government has mostly tinkered around the edges, removing some of the more acrimonious changes made by their Tory predecessors and periodically increasing the minimum wage (now indexed to inflation). That will change sometime this year, as the Liberals look to make big changes to employment law.

Labour Minister Kevin Flynn is currently waiting for a final report from the Changing Workplaces Review, led by labour lawyer C. Michael Mitchell and retired justice John C. Murray. They issued an interim report last summer; the final draft is expected this month and will inform the government’s labour law changes, coming sometime later this year.

He sat down with TVO.org for an interview earlier this week at Queen’s Park.

It’s been a long time since there’s been a major change to Ontario labour law. Why now?

It started as a coordination of a number of issues. Depending on the business you were in or the workers you were representing, everybody was realizing the world of work was changing. People would ask, ‘How come Europe has so many more holidays than we do?’; ‘How come some places have scheduling weeks in advance, while some employees here get just two days in advance?’; ‘How come two workers can do the same work but one’s a contractor and one’s an employee?’

Instead of tackling these questions one by one, we determined it was time for a full review. When I entered the working world in the ’90s, the expectation was a full-time permanent job, benefits, and a pension. Young people today don’t have that expectation. For many of them, it takes a long while to get to that point — if they get there at all. Now, with automation, robotics, and artificial intelligence, people are wondering if there are going to be jobs in the future at all.

Should government be promising young workers the prospect of full-time employment at all? That might not be a realistic promise you can make. And some businesses would say we need a more flexible workforce.

As long as banks are providing full-time mortgages, people are going to need full-time jobs to pay them. You’ve got to look at the expectations people have been raised with: go to school, get a decent education, get into the workforce, settle down, buy a place to live, and start a family. As long as those expectations remain the foundation of our society, people’s ability to earn income is going to have to match them — otherwise, you’ve got to rethink everything else. Maybe you don’t have to buy a house; maybe rent for your life. But I don’t think that's been the Canadian or Ontarian experience.

The Tory government that preceded yours made substantial revisions to labour law during its tenure, but the Liberals have made relatively few, relatively small ones. Why start now, in your 14th year in power?

It’s really captured the imagination of the public. A lot of these issues needed a coordinated review. Businesses wanted one, certainly, but labour unions too. Advocates were finding increased evidence of abuse of Ontario’s laws, often affecting new Canadians who may not be aware they’ve got rights under the Employment Standards Act. It all really led to the conclusion that the time was right.

But you mentioned our predecessors, and that’s something I want to avoid — these wild swings in legislation. You had the Rae government under the NDP, and there was a feeling of, “This may never happen again, let’s get everything done right now,” and the business community revolted. Next thing you know, you’ve got the Tory government undoing everything the NDP did. We don’t want to go that route. We want a balanced document in which everyone sees a win.

How much can the government realistically do? It can’t bring back manufacturing jobs by fiat.

We can’t be luddites about this; we can’t burn down the machinery. But we can prepare for it. You can ask what the business community, labour groups, and workers’ advocates think the world is going to look like. With artificial intelligence and driverless cars on the horizon, as a government we want to be leading on those things. You want as many jobs out of that as you possibly can. But looking even further down the road, there are discussions about what the world would look like with no jobs at all. We’re so used to having jobs — it’s what we do, we wear it like a badge — but what if the future is a world without jobs? If it is, then the work I’m doing is meaningless.

But I can remember when information technology was new, and people said the biggest social problem we’d have would be what to do with all our spare time. Yet it’s been exactly the opposite. The phones we’ve got strapped to our belts drive us crazy and keep us working 18 hours a day.

I don’t think, with this pace of change, that we’re going to see another 20 years on this version of the Employment Standards Act and the Labour Relations Act. We’re going to need to take a look at this almost annually, in smaller ways.

I believe in a free market, and this government believes in a free market, but we believe in the proper regulation of that free market. The market is going to be there in the future, and we need to figure out how to regulate it.

A section of the review’s interim report deals with potentially expanding union rights to parts of the economy that haven’t traditionally been organized. The review included sectoral organization, where a union could end up representing all the fast food workers in a given area, or all the hotel workers. Is the government looking at those kinds of changes?

Obviously the labour movement wants us to look at that, because its strength is declining. There’s no argument in Ontario that if you want to join a union you have that right. It’s how we exercise that right that matters. In the construction sector they have card-based unionization that recognizes how mobile and flexible workers are in that industry: you could be working on one job site tomorrow and then a different one the next day. But in more traditional, stationary jobs, the normal type of union certification was preferred.

Looking at personal support workers, this is a group of people doing incredibly important work. They look after our elderly and our sick, and we’re paying them $13 an hour. The government saw that and decided it was wrong. If we want decent people in the industry, we need to pay to elevate the wages of all people in the province, simply because the sector needs more attention.

The advisers were asked to look at something along the same lines, organizing things across a sector — the idea is that whether you work at a Burger King, a McDonalds, or a Tim Hortons, you’re all fast food workers employed within blocks of one another. I don’t know what the advisers have landed on there, but that’s what they’ve been asked to consider, how to raise the wages and improve the working conditions of the most vulnerable people.


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That would be a major change to how we’ve organized labour in this province — and it doesn’t sound like something that would survive a new government after 2018.

You might be right. I don’t think you’ll see inaction — we’ve done too much work. We aren’t going to hide our heads in the sand. Are we going to bring in radical changes? I don’t think the economy is ready for that, I don’t think people are asking us to do that, and I don’t think organized labour is asking us to do that.

But some people are asking for that. The government is going to bring something forward, and if there’s a move toward sectoral organization, it’s going to be a major change to how we do things in Ontario.

I don’t want to be evasive; the honest answer is I just don’t know. The list on every issue runs from status quo to something really radical and everything in between. All parties to this — business, advocacy, labour — have a variety of opinions, even within them. They each have come to the realization that there’s a problem, and that changes are necessary. Once you open the door to change everyone wants everything for themselves and nothing for the other guy, but these are fundamentally realistic, pragmatic people.

The review is hearing from people who want to ensure the government pays attention to gender issues in the workplace. Is there anything that’s surprised you on that front in the review so far?

The government has to walk the talk here. We’ve done pretty well on pay equity issues, but there’s still room for improvement. What’s surprised me is that, and I don’t think it gets us any closer to a solution, but if you were to bring an 18-year-old woman here and ask whether she thought there was a gender wage gap in Ontario, she’d say no — she’s just starting out, the guy next to her is just starting out, and their wages are about the same. If you could bring her back in her 30s, she’s starting a family, she’s graduated from law school, and suddenly she has a child, and the guy next to her is advancing in his career, but she’s on the “baby track” now — don’t give her anything important, she could have another baby. All of the sudden you see the opportunities aren’t the same.

Family explains some of it, but that’s because women bear much of the burden for having children and taking time off to care for them — even as we see men increasingly taking paternity leave. The surprise is, a lot of young women think this is fixed already, and it’s not. They think the battle has been won, and they don’t realize they’re in for a battle until they get deeper into the workforce.

Iceland has adopted a comply-or-explain law, so you tell me publicly why you’re not paying men and women the same. Make a cogent open argument for that. And you can’t.

There’s also the issue of agricultural workers. We’ve got this romanticized notion of farming here in Ontario, but we rely heavily on a system that — as we’ve written about at TVO.org — a lot of people see as exploitative.

We’re paying particular attention to migrant agricultural workers. Tolerance for some of the abuses just isn’t there anymore. We used to be able to drive past a farmer’s field and turn a blind eye to it, and we just can’t now. I know there are people in Ontario who treat their employees very well. There are workers here in Ontario who get a good paycheque they’re able to send home to their families, and that means a lot to them. It’s an opportunity they wouldn’t have back home, and that’s fine if they’re treated properly. Unfortunately, there are good guys and bad guys.

If you talk to the industry, they’re competing with low-wage economies and facing a reluctance among Ontarians to do the work themselves. What I’ve always thought is very silly, though, is that we exempt agricultural workers from being able to move here permanently. These are people we know are hard workers — diligent, loyal people who keep coming back year after year — but they don’t get to stay. I think that’s wrong. I’m an immigrant, and my dad’s an immigrant, and we didn’t have to pass a test to see if we’d work hard. It was hoped we would.

But you’re not naming any specific reforms.

Any action we take would be matched to the most common points of contention. In the past it’s been hours of work, health and safety, the manipulative nature of some employers — telling workers where they can live, how they’d be treated, those types of things. The same kind of things that we blitz for at the ministry when we hear there’s a specific problem. You want, for the most part, for people who come to Ontario to work to have the same rights as everyone else.

It would be unwise of me to speculate, but it would be silly of us to go through all this work and not make meaningful changes. But I do want us to remain competitive. If we were to make a major change to the migrant worker program and it was unprofitable for the fruit industry — if they shut the farms down and start growing marijuana — I don’t think that does anyone a favour.

Except the marijuana consumers.

Well, maybe. But the farm shuts down, people lose their jobs, and guys stop coming here to make money. There’s always been that tension in the workplace: if you’re my boss, I want you to make money, but I also want to be treated decently and to get my fair share. As long as you keep that in check, things go well.

This conversation has been edited for clarity and length.

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