Retail’s labour challenge

Retail’s labour challenge
In the coming holiday season, retailers will put more hands on deck to meet the demands of the busiest time of the year. But before hiring new workers, should they offer more hours to employees they’ve already hired on a part-time basis?

That’s just one of the many questions being discussed as the Ministry of Labour reviews the province’s employment and labour laws. Consultations for the Changing Workplaces Review, launched in May, closed Sept. 18. The review, according to the MOL, looks at how the Employment Standards Act and the Labour Relations Act “could be amended to best protect workers while supporting businesses in our changing economy.”

The provisions under the two acts were created for a different era of work, says Jason Beeho, employment and labour lawyer at Rubin Thomlinson LLP. “The labour relations and employment standards legislation we’re dealing with right now was really born in the ’50s and ’60s, and back then we had a much more thriving and robust manufacturing sector,” he says.

In those days, issues such as overtime work and scheduling were considered in the context of full-time manufacturing jobs that came with regularity, Beeho says. But times have changed.
The retail sector has now outgrown all other industries in the number of Canadians it hires, but the industry increasingly relies on part-time labour.

“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,” says Dr. Kendra Coulter, professor of labour studies at Brock University in Saint Catharines, Ont. “Legal changes are long overdue, and the established standards ought to better reflect people’s needs and our social priorities.”

The review of the laws will be fraught with “competing interests” as employers seek flexibility 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 recommendations 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 regimented ratio of full-time to part-time workers in a given company. Heavy reliance on part-time staff is “an unfair way to deal with ebbs and flows of the business,” Mehta says. “It’s fully lopsided in favour of the employer, maximizing their profit at the cost of working Ontarians.”

Mehta also argues hiring more full-time staff isn’t a bad business move for employers. “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 environment,” he says.  

Retail employees are also on the frontlines of what many would call “wild west” scheduling. “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 Relations Act, Coulter, for her part, would like to see a re-introduction of card-check certification as opposed to the current mandatory vote model for workers’ unionization.

Currently, “in sectors like retail, the time between the filing 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 questions for lawyers and legal scholars.”

Adds Coulter: “A threat to fire someone is a more clearcut legal violation than daily captive audience meetings at which corporate representatives continuously cry to evoke sympathy from their staff. But does either allow workers to independently assess the prospects of unionization?”

A card-check certification 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 certified 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 flexibility 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 termination is employers’ ability to circumvent all notice obligations through a method he calls the “nudge down.”

“What we’ve seen increasingly is employers 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 resignation has no obligations for notice pursuant to the Employment Standards Act.”

To Beeho, overtime provisions are another challenging area with different solutions depending on whom you ask. With the current provisions under the ESA, employers who would like workers to put in extra hours beyond a certain threshold need to apply for an approval from the government, a process that can be difficult and cumbersome, according to Beeho.

“This, I think, is the dilemma because quite often when we’re talking about overtime issues, there are people who would welcome the opportunity to work overtime if it’s available because it would allow them to obviously increase their earnings at least on a temporary basis,” he says. But relaxing the laws around excess hour work might make life harder for employees who may be working several part-time jobs, he adds.  

“That, I think, is going to be one of the really interesting issues to be looked at in this review,” Beeho says. “On the one hand, there are certainly aspects of an overtime regime that are cumbersome and they are not employer-friendly. But on the other hand, if we look at the very clear mandate, as it should be, of the exercise, it’s about fair treatment for all. This is not intended to be an exercise that stacks the deck one way or another. So there will be competing interests on overtime that will need to be reconciled.”

Coulter says no change that will be made to the acts will tilt the power balance in favour of retail workers.

“Even if every worker-friendly proposal being suggested by organizations like the Workers’ Action Centre were implemented, employers would maintain a great deal of power over operations, hiring, and so forth,” she says.

The ESA is “the floor,” not the ceiling, Coulter also says. “Clear and fair standards are crucial, and the law should reflect the basics everyone deserves regardless of where they come from, how much education they’ve been able to afford, and the size of their employer. They also need to be enforced.”

Coulter adds she’s “cautiously hopeful” that review into the ESA and LRA would lead to positive change in some areas, mainly because of what she calls a growing public awareness and pressure.

“Five years ago, there was little mainstream discussion about the conditions and struggles of the millions of people who have only employment standards as protection,” she says. “The workers in these sectors have been organizing and finding political and legal allies, and thus expanding the public conversation.”

This review aside, some changes to legislation that would most assist the retail workers have already been made to the ESA, says lawyer Danny Kastner of Kastner Law.

As of next month, for example, employers and temporary help agencies can be held liable for certain obligations under the ESA, Kastner says. The coming into force of this Stronger Workplace for a Stronger Economy Act will create joint liability for employers and agencies for unpaid wages, as well as record-keeping responsibilities.

For in-house counsel, it means “if you’re using temp agencies to hire labour, you can’t be content with the agreements and relationships you used in the past,” Kastner says. “You have to reassess those agreements in light of the new reforms that create joint liability for certain obligations.” {nomultithumb}

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