HOW TO PROTECT YOURSELF:
There are so many steps to begin protecting and asserting your rights at work. If your rights are violated, be prepared.
Collect as much information as you can. Keep any contracts or agreements you receive. Document all details of hours and dates your worked. Ask the boss for copies of all contracts you sign. Take down any information about your boss and co-workers that you can find. This could mean the first and last name of the boss, his home address or license plate number. Keep it all at home.
Know your rights. Read this booklet. Calculate all wages you believe you are owed. Document which part of the law is being broken. Call us to attend a Workers’ Right workshop for more information on your rights and what to do.
Talk to other workers. Will you all fight together to improve your working conditions or claim unpaid wages? The fight will be stronger if there are more workers standing together. Plan a meeting at our centre.
Write a letter to your boss. Ask us for a sample letter to demand your wages. The letter will have a deadline to pay.
File a claim at the Ministry of Labour. The Ministry of Labour is supposed to protect our rights and enforce the law. But it does not always do its job well. If you know that there are many violations in your workplace ask the Ministry to investigate your boss.
Ask the Workers’ Action Centre for support. Call the Workers Actions Centre (519-252-1212) and plan a meeting with us. We will meet with you to make a plan to get the wages owing to you and other workers. Depending on your situation, this could mean:
- Talking to other workers who are owed wages
- A call to visit to your boss
- Public pressure on your boss
- Calls to local media.
You and your co-workers decide what action to take.
Members of the Workers’ Action Centre know that the Ministry of Labour is not as strong as it should be. Between 2001-02 and 2005-06 just $100 million of unpaid wages was never collected by the Ministry of Labour! While your claim is at the Ministry, you can try other ways to get your wages. The Worker’ Action Centre is willing to support you.
If you are working through a temporary agency, you are covered under the Employment Standard Act like all other workers. Being a temporary worker should not mean less respect, worse employment conditions and different treatment than other workers. However, in many cases this is how it is.
37% of jobs are temporary, contract or part-time. Companies are contracting out more work so they don’t have to hire workers directly. Usually there is less pay too. Temporary agency workers make 40% less than permanent workers.
The Workers’ Action Centre is pushing the government to update our outdated laws. Our basic rights in the workplace must be overhauled to protect temporary, contract and non-standard workers.
IMPORTANT TERMS TO KNOW:
Employment Standard Act (ESA): The laws that cover non-unionized workers in Ontario. Every province has its own labour laws.
Ministry of Labour: The Provincial government body that makes and enforces Employment Standards Act and Occupational Health and Safety Act. Workers can make complaints against their bosses here.
Filling a Claim: To make a complaint against your boss at the Ministry of Labour, you must fill out a claim form.
Service Canada: The Federal Government body that pays out Employment insurance and other benefits like Maternity Leave.
Employment Insurance (EI): You contribute a percentage of your wages into this Federal government fund. Your boss also makes a contribution. You may be able to receive benefits while you are unemployed or on parental or sick leave.
Record of Employment (ROE): A document that every employer must give you when you leave your job. It allows you to apply for Employment Insurance. It records all hours and details of your employment at that workplace.
Workplace Safety & Insurance Board (WSIB): Sometimes called “Workers Compensation”. If you get hurt at work, you can apply for benefits while you are not at work. This is an insurance for when workers are injured on the job. Call 1-800-277-9914 for details.
Canada Pension Plan (CPP): You and your boss contribute to this Federal Government Fund. If you are eligible, you can receive a pension when you retire or are disabled or a spouse dies. Call 1-800-277-9914 for details.
Job Scam: This means a “fake” job or agency that asks you to pay them to find you work. It is a scam or lie because they don’t do what they promise. If you do get work, fees should not be deducted from your wages.
Temporary Agency: An organization that finds you work “assignments” at different workplaces. The Temporary Agency is your employer. Temporary agencies take part of your pay from the company as a fee for providing workers for companies.
WHO IS COVERED UNDER THE LAW?
Some workers like farm workers, Information Technology workers, domestic workers and people working in 24-hour operations are not covered under the law equally.
Find out which laws cover you by calling the Ministry of Labour inquiry line at 1-800-531-5551 or go to their website at: www.gov.on.ca/LAB/english/es/guide_la.html
Self-Employed or “independent Contractor”
Your boss may tell you that you are self-employed or an “independent contractor” when you are really an employee. They do this to avoid paying you basic entitlements under the law. True self-employed workers have fewer rights under the law than employees.
Keep details of your contract, copy any documents you have and write down all hours and dates you work. This will help you claim your proper wages when you are ready.
If you are in a workplace that has a union, you will be covered under your union contract or collective agreement. Your union is your legal representative. If you have a problem with your union, calls us to discuss what you can do.
A. EMPLOYMENT STANDARDS
Worker Rights under the Ontario Employment Standards Act
When you are unionized, your collective agreement defines and protects various aspects of your employment relationship, how much you get paid, when you get paid, what benefits you get paid, what your hours are, what you get paid when you work overtime, what your vacation is, when you can take vacation, and so on. However, most workers, especially part time or temporary workers, are non-union. If you are not unionized, many of these same conditions are addressed in what is called the Ontario Employment Standards Act (OESA).This first section reviews the OESA’s procedures and regulations.
1) What does the OESA cover?
The OESA provides basic minimum standards which most employers must meet, although there are some important exceptions which we will get to shortly. Most but not all Ontario workers are covered by the OESA which is enforced by Ministry of labour, Employment Standards Office. Some workers such as airline or rail workers are covered under Federal legislation.
2) What are the key regulated standards?
The key OESA provisions are minimum wage, allowable hours of work, overtime pay, annual vacations, general holidays, notice of termination, group termination, pregnancy and parental leave and equal pay.
3) Are part-time or temporary workers covered by these rights?
Yes. But there are certain types of employment such as working on a farm or commercial fishing which are exempted entirely while other industries are exempted on certain standards (e.g. construction is exempted from hours of work provisions)
4) How can I use the OESA to protect my rights?
While the Ministry does have a proactive enforcement program that targets certain industries or companies known to have problems, most of the enforcement relies on individual complaints. So if you are not paid on time, or you do not get your vacation pay, or the right amount of overtime pay, you will need to file a complaint with the Employment Standards Branch of the Ontario Ministry of Labour (phone #: 1-800-531-5551). The Employment Standards Office often advises that workers should first try to meet with the employers to resolve the problem, or to submit a complaint in writing in a registered letter to the employer requesting a resolution consistent with the OESA. If that does not work or if you decide its best to go directly to a complaint, you will need to fill out a claim form which you obtain from the Ministry of Labour office. Again, you should discuss the matter first with someone at the OESA office and they will advise you on whether you have a valid complaint. Once you file a formal complaint, you will be assigned an employment standards officer who will investigate the complaint through a fact finding meeting with you and with the employer. You will need as much documentation as possible regarding your employment and the complaint (copies of pay stubs or pay cheques, copies of T4 slips, copy of termination notice if that is the issue, copies of any other letters received from employer, address and name of the employer, etc.). They will also want full information on the details of the complaint (what happened, when it happened, whether you spoke with the employer or manager, what was said, etc.). Be careful that you do not let too much time pass after the incident. Generally, the time limit is six months, although if on investigation and its found the employer violated repeatedly, money can be recovered from incidents even prior to the six months. In some circumstances, claims can be filed within a two year time limit (leaves of absence and reprisals).
A determination will be made by the officer as to whether the complaint is valid. If so, the employer may be given the option to comply voluntarily to correct the situation but if unwilling, the officer can then issue a legally binding order requiring compliance such as payment for overtime or severance payment, etc. However, the officer’s decisions can be reviewed or appealed and the Ontario Labour Relations Board (OLRB) can then get involved where an OLRB officer tries to mediate; if not successful, board hearing is held and board can amend, uphold or strike down the officer’s decision/order.
If you are unionized, the OESA will usually not accept the complaint and insist that you go through your union. This is usually better in any case since the collective agreement almost always exceeds the standards in the ESA. Also, if you are already taking action in court to sue the employer using private law, the ESA will also deny your claim through them. You cannot do both, you have to choose one or the other course of action. Generally speaking, for young workers, it is unlikely that a court action would be worth the legal fees but you may want to consult a lawyer just in case.
We can help if you call the WWAC Help Line (519-252-1212). We can refer you to a Legal Aid clinic which will help you to prepare and proceed with your claim.
5) Can my employer discipline or fire me for complaining to the Ministry of Labour?
Legally, an employer cannot penalize you for asking them to comply with the ESA or because you filed a complaint. But we would be remiss if we did not point out to you that regardless some employers may try to intimidate or discipline you for exercising your rights. You can file another complaint regarding any action of this sort and the employer can be ordered to cease and be given a fine but enforcement is often slow and ineffective. Clearly this is not the kind of employer for whom you want to work if you can help it, so you may want to go elsewhere. However, if you leave, do not forget to file a complaint. Don’t let these kinds of employers get away with it because they certainly will do it to other people if they are not made to pay for it. There are other options that you may also want to consider including helping to organize a union (see Unionization below) and/or working with the Windsor Workers Action Centre to put pressure on the company in other ways such as using publicity, petitions or demonstrations (see below for contact information).
THE KEY EMPLOYMENT STANDARDS:
1) What is the minimum wage?
The minimum wage is the lowest hourly wage an employer can pay employees where full time or part time and you must receive must minimum regardless of how you are paid, whether it is an hourly salary, commission, flat rate or piece rate. Tips and gratuities are not wages and cannot be used to reduce your wage below the minimum.
The minimum wage for Students under 18 who are working 28 hours or less per week or on school holidays is now $7.50 per hour. The general minimum wage is $8.00 per hour. If you are doing work at home such as word processing or telephone soliciting, sewing, etc, the minimum wage is actually $8.53 an hour. Exemptions from the minimum wage include when secondary school students are working in a coop or experience program authorized by the school board, or working at a camp for children.
2) What breaks are required?
Most employees must be given a 30 minutes unpaid eating break within a five hour period. If both the employer and employee agree, there can be instead two breaks dividing up the 30 minutes in whatever proportion. Paid Meal breaks are not guaranteed under the ESA and the employer is not obligated to give any other breaks.
3) What is the minimum pay when called into work?
Most workers who work more than three days a week are paid a certain minimum amount if they are called into work, they get 3 hours pay at minimum wage; however students are not covered on this and receive nothing.
4) What are the normal hours of work?
The daily limit on hours of work is eight hours a day or the number of hours in the regular day established by your employer (e.g. 12 hour shifts). The weekly limit is 48 hours. The employer cannot make the employee work longer hours than this except in case of workplace accidents or emergencies (defined as unplanned for urgent situations). Employees can be asked to agree in writing to work more than eight hours up to a maximum of 13 hours a day and more than 48 hours a week up to a maximum of 60 hours.
5) What is the overtime pay?
Workers including students must be paid one and a half for every hour they work when it’s over 44 hours a week. By mutual agreement, workers can instead take time off at one and a half hours per overtime hour worked. Paid time off has to be taken within three months or at most by agreement, within one year. Some jobs are also exempt here including gardeners, swimming pool installer and maintainers, sod layers, students instructing or supervising children or students working at a camp for children. Note that overtime is usually calculated on a weekly basis but your employer may ask you to sign a written agreement which allows them to average your overtime over a larger number of weeks.
6) Which holidays are mandated?
All workers, whether part time or not, are eligible for all eight public holidays (New Years Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving, Christmas and Boxing Day) with public holiday pay (which is calculated as the total of the employees regular wages and vacation pay earned in four weeks before the holiday, divided by 20. In some industries (hotel, hospital, restaurant, oil refineries, etc) you can be required to work on the public holidays when it is a day you would not ordinarily work. You have the right to a day off at another time, or can come to an agreement for time and a half instead of the day off. Temporary agencies will often try to characterize their employees as “elect to work” which means that the employee has the choice whether to work or not on the holidays. When categorized in this way, they will not pay holiday pay even though the workers do not have a real choice. If a complaint is made, the Ministry of Labour will investigate and may find that the employer is mis-classifying you. Temporary agencies may also try to get around the law by classifying you as self employed or as a private contractor. Again, this classification can be challenged if you are actually working as an employee.
Note that most retail workers generally have the right to refuse to work on holidays. However, although retail workers hired before Sept 4, 2001 can refuse Sunday, a change in the law now means that if you signed in writing an agreement that you would work on Sundays after sept. 4, 2001, you cannot refuse except for certain specific religious reasons. And again if you work in restaurants or cafeterias, hotels, museums, art galleries, gift shops in museums, you cannot refuse to work on holidays or Sundays except for religious reasons.
7) Can I be let go or fired for no reason?
Some people mistakenly believe that the ESA protects them from being fired without just cause or reason. But actually, as far as the ESA is concerned, employers have the right to terminate people without just cause. What the ESA basically states is that the employer can terminate, with some exceptions and limitations, at any time and for any reason, but the Act does require a proper written notice of termination or termination pay in lieu depending on length of service. This only applies if you have a permanent job rather than a time limited position, and you must have worked at least three months continuously to have the right to advance notice.
Permanent termination without just cause is allowed if notice is given. Between 3 months and one year of service, you must be given one week notice. One year or more to three years means two weeks notice and after three years, one additional week notice is necessary for each additional year of service up to a maximum of eight weeks notice. There are no recall rights under the ESA.
However, under the ESA, termination without notice and without just cause requires termination pay – up to 8 weeks if 8 years or more of service; termination pay equal to notice you would have been given. Layoffs can be in whatever form the employer wants, it does not have to comply with any seniority provisions unless there is a union contract stating as such. In mass termination or layoff, notice must be given to government and the notice period is based not on years of service but number of employees and it starts at 8 weeks and goes up to 16 weeks for 500 or more employees.
Severance pay is another provision specified for terminated people with five or more years of service. Severance pay both form constructive (fundamental change in employment conditions and employee resigns) and outright dismissal. If you have at least five years, then depending on years of service, you can receive up to 26 weeks of salary. Notice is not required for contract or temporary workers.
Note there are two types of terminations – termination with (just) cause and termination (without) cause. If with just cause (due to misconduct, disobedience, failure to fulfil assigned duties), no notice termination, or severance is required. If without cause, keep in mind that you can contest the company claim that you were dismissed without cause in a civil court, but you will need legal help. Note also that it can be difficult to get Employment Insurance when you have been dismissed without cause, but you should apply all the same especially if you contest the employer claim of just cause.
Please note also that if you are not unionized, you can file suit under common law against an employer for unjust dismissal. It is possible to win settlements of 6 to 24 months of salary. However, this is a long and expensive process and lawyers’ fees often eat up much of the award. Please contact a lawyer or the Workers Centre for more information on this option.
** Note that the Labour Relations Act and the Occupational Health and Safety make it illegal to dismiss workers for union and health and safety related activities; and the Human Rights code bans any discriminatory based firing or demotion (related to gender, race, ethnicity, religion, sexual orientation, health related problem, pregnancy or illness) and harassment.
Two weeks is required after 12 months. You can take your vacation in one or two week periods but by mutual agreement in writing this can be divided into shorter periods of time.
2) Vacation pay:
All employees must receive four per cent of their gross wages over a 12 month period and this must be paid before they go on vacation. Vacation pay must also be paid in the case of a termination or where an employee quits before their vacation, no matter how many months or even hours the person has worked.
3) Pregnancy Leave:
Women are eligible for a maximum 17 weeks unpaid pregnancy leave as long as they have worked 13 weeks before the expected due date (not actual birth date); employees are not paid but retain their seniority and cannot be terminated or penalized for taking pregnancy leave and must be given the same job and pay rate when she returns. The pregnancy leave period does not count towards probationary period if the employee is still on probation when she goes on leave. The employee decides when to start the leave within the 17 weeks and the leave must be continuous. Written notice must be given to the employer within 2 weeks of commencing the leave along with a written letter from the employee’s physician confirming due date for birth
4) Parental leave:
Both parents are eligible for up to 37 weeks of parental leave (35 weeks if they have also taken pregnancy leave) after the baby is born and this can be taken by both parents simultaneously. The protections are the same as for pregnancy leave with respect to seniority, etc.
5) Equal pay for equal work required:
Other than pay equity, individual can complain if co-worker doing same job is paid more.
6) Pensions and Benefits:
The ESA does not provide any rights with respect to pensions, benefits such as drug or dental plans, no sick pay, and no company paid pregnancy leave (other than what you get from Employment Insurance). You should also know that there are no required procedures or rights regarding complaints you may have about your treatment by supervisors, managers or other workers beyond what we have described to you – for example, if you feel you are being moved around from job to job, or the supervisor is yelling at you or treating you without respect, there is not all that much you can do under the ESA.
WORKERS’ RIGHTS UNDER THE ONTARIO HUMAN RIGHTS CODE:
1) What is the Human Rights Code and how does it apply to Employment?
Along with the OESA, workers are also protected under the Ontario or the Federal Human Rights Codes. Basically, these codes ban discrimination in hiring, firing or promotions, and ban any other form of discrimination or harassment in the workplace. Discrimination refers to unfair treatment based on gender, race, ethnicity, age, sexual orientation, place of origin, ancestry, disability, citizenship, family status or religion. Harassment refers to behaviour or comments which put a person down, or insult or offend them based on race, sex, sexual orientation etc. (For example, racial slurs, sexual comments, name calling, displays of cartoons degrading members of a particular group). Please note that the HR Commission places considerable weight on the individual or group’s perceptions of the behaviour in defining harassment. If you find certain jokes or statements sexually or racially offensive or degrading and they persist despite your requests that they cease, then this can be defined as harassment even if they are not considered as such by the general public.
2) How is the HR code administered and enforced?
The Ontario HR Code is administered and enforced by the Ontario Human Rights Commission. Again, if you have a problem, you can file a complaint with the Commission (1-800-308-5561). If you call the information line they will tell you whether you have a complaint and once filed, the Commission will assign a mediator who will try to work out a settlement of the matter between you and the employer. If this does not work out in the sense that both parties are not willing to agree to a settlement, the Commission will set up a formal investigation where it will be determined whether there is sufficient evidence to establish a Board of Inquiry. If so, the Board hears the case and makes a binding determination which, in a discriminatory firing or hiring situation, could involve ordering the company to hire or rehire the person with back pay.
3) What should I do if I believe I am being harassed or discriminated against?
When you think you are being harassed, you should inform the person or their superior that the behaviour is offensive and unacceptable, and request that it stops immediately. It may be helpful to have someone with you, and certainly if you are unionized, seek to have our union representative present. Check to see if there are company policies or collective agreement provisions pertaining to harassment or discrimination and if there are, follow the appropriate internal procedures. It is also a good idea to keep a written record of any offensive events or behaviours outlining what happened, when it happened, where it happened, what was said, who said what, and so on.
Again if you are unionized, the Commission will likely tell you to go the union first and deal with the problem through the union’s grievance procedure. If you are not, some companies do have detailed policies and a procedure to follow in making a complaint. If following the internal procedures, keep in mind that you must file an HR complaint within six months of the event. Keep in mind as well that this process can often take years to complete so again you may want to consider other alternatives (contact the Windsor Workers’ Action Centre for more information).
THE ONTARIO LABOUR RELATIONS ACT (LRA):
1) What does the Ontario Labour Relations Act do?
The Ontario Labour Relations Act establishes the rules and regulations for labour unions and labour union/employer relations. It also sets up an independent Labour Relation Board to administer and enforce those regulations. The regulation addresses four main areas of union and industrial relations activity:
i) The organization and certification/decertification of unions – that is, the law specifies how workers can become unionized (specifies that 40% of the workers need to be signed up as union members in an organizing drive before they can have a vote, then 50% + 1 must vote for the union in order to be certified as a union; law specifies how this is done, outlines what the union can do or not do during the organizing drive, what the employer can and cannot do (For example, no intimidation, no threats), and what information the union can get from the employer).
ii) The negotiation of a collective bargaining agreement – first agreement, and subsequent ones – specifies bargaining in good faith, rules for how bargaining take place, when right to strike/lockout, and setting out what should be in the collective agreement – e.g. no strikes no lockout clause
iii) The implementation and policing of the collective agreement once negotiated – specifies what unions and their member can and cannot do when there are disputes over the collective agreement provisions (e.g. if the company fails to pay workers for overtime, or ignores seniority when laying off people). Each collective agreement must have a grievance procedure which involves various steps aimed at resolving the dispute, leading to a final arbitration step where a binding decision is made by an independent arbitrator. The law also prohibits unions from striking or engaging in other forms of collective job action during the term of the collective agreement.
iv) The organization and conduct of union business – the law requires a constitution, elections, and bans certain kinds of relations between unions and employers (unions must be independent and not under any company control or influence)
2) What is a collective agreement?
A collective agreement is a legally binding contract which sets out the conditions of employment for the workers in a particular bargaining unit, usually a group of unionized workers working for a particular employer in a particular work site.
3) What conditions are set out in the collective agreement?
Of course, wages are specified, with different rates often for different job categories; procedures for increasing wages; overtime rates, vacation provisions, benefit plans, pensions, procedures for movement to jobs within the firm, provisions for layoff and recall, health and safety, training provisions and allowances, sexual and racial harassment, etc. In theory, anything regarding the employment relationship can be in a collective agreement, but clearly in practice, agreements vary quite a bit in terms of what they cover. If it’s not in the agreement, then it’s not something that you have a right to request from the employer.
4) How is the Collective Agreement enforced?
Each Agreement also contains articles which define a grievance procedure through which members and the union can dispute employer actions which are seen as being breaking articles within the collective agreement. Each grievance procedure has a number of steps. The first two to three steps are internal where the worker and union representative meets with different levels of management to try to resolve the dispute. If they are unsuccessful, the union can file for arbitration and an independent arbitrator will hear the case and make a binding determination.
5) What are my rights as a union member?
The collective agreement defines your rights as an employee in this particular workplace but there are also rights that you have as a union member – things that you have a right to expect from your union. To begin with, you have a right to vote for your representative – the plant level representatives, and the union executive. And of course, you yourself have a right to run for office. And you have a right to be heard at union meetings, and an opportunity to vote on major policy issues and decisions. Union must have regular membership meetings for this purpose, and should be keeping you informed of any developments in the union or collective agreement
You have a right to representation when you have a complaint or grievance and you have a right to the union protection if your collective agreement rights have been violated but the union may decide not to proceed with a grievance (carriage rights).In most unions it is the organization’s right to do that, usually the union will have in its constitution some sort of appeal procedure, and the union must have a legitimate reason for refusing to pursue a grievance, it cannot be prejudiced or frivolous decision if you are still unhappy with your decision, you can file a complaint with the Labour Relations Board failure to represent.
6) What are my rights as a worker interested in unionizing?
In theory, any non-union worker, whether full time, part-time or temporary, can seek to unionize his or her workplace. Although it is not easy, even people working for Temp agencies can unionize. Age is not a factor either. Young people still in high school have been successful in unionizing fast food restaurants while the people behind the efforts to unionize chain stores such as Wal-Mart have often been quite young.
7) How would I go about organizing a union (or exploring the possibility of a union)?
Normally, you contact an existing union like the Canadian Auto Workers (CAW) or the Canadian Union of Public Employees (CUPE) and tell them you are interested in unionizing. They will send an organizer to help you. You can try to organize your own union without the help of an existing union but this is more difficult and often not wise in terms of the strength and resources of your union even if you are successful. There is always more strength in numbers. As two of the largest unions in the country, CAW and CUPE have enormous resources in terms of lawyers, and experienced union staff in collective bargaining, health and safety – so it makes sense usually to go through that route.
Whatever way you chose, you and anybody else whose interested in working on the certification drive have to sign up at least 40% of the workers you are trying to organize as members of the union (sign union cards), then you take the receipts or evidence that you have 40% to the Labour Relations Board, and they will determine if you have the correct number to set up a vote which will be held within seven days of their determination in the workplace itself. This will be the first time the employer is officially notified of the certification application. If you get 50% + 1 of the workers who vote to vote for the union, you will be certified. And then you are faced with putting together a bargaining team and a set of collective bargaining proposals with the aim of negotiating your first collective agreement.
8) What protections does the LRA offer to employees during an organizing drive?
The Labour Relations Act protects your right to unionize and there are various things the employer cannot do during an organizing drive, most of which fall under the label Unfair Labour Practices which are banned:
The Main ones are:
i) No interference by employer in formation, selection or administration of union (although employer can freely express views as long as no coercion, intimidation, threats, promises of undue influence are used).
ii) No interference with employee rights – cannot refuse to employ or continue to employ person because in union, or exercising rights under act, cannot impose any condition in employment contract which restrains right to become a member of a union, cannot use threat of dismissal or other threat to compel an employee to refrain from a union.
iii) No authorization to persuade during working hours to refrain from becoming or remaining a union member.
v) No strike breaking behaviour or use of strike breakers.
vi) Working conditions cannot be altered when notice given of effort to certify can’t alter wages or other conditions once application for certification is filed.
vii) No reprisals for testifying or belief may testify under act or because person has file complaints under act.
9) What might the employer do to prevent unionization?
You should be aware that management will often use various ‘union busting’ tactics despite the law to discourage unionization: Tactics include threats of plant, store or office closure, promises of better working conditions or favours to recruit workers as spies or advocates for the company, direct threats against organizers, and firings on trumped up terms.
10) What are the limits of LRA Protections?
Unfair labour practices are difficult to prove and even if you do, the current legislation only gives the Labour Relations Board the power to order a new vote with no power to fine or punish the company in any other way. Employers can and often do use their right to express their points of view by stretching the truth and using innuendo etc. to get threatening or distorting messages across. They also use employee spies by making promises to people, and get those people to spread rumours and threats in ways which are often hard to link to management. And if workers are fired, it will take sometime to get this resolved and of course the damage is done in terms of intimidation of the remaining employees. So you have to be very careful when you are organizing and you have to try to keep it as secret as possible for as long as possible.
11) What are some other challenges?
When you try to negotiate a first collective agreement you may also run into trouble. Companies and unions are required under the law “to bargain good faith”, to make every reasonable effort to reach an agreement and must make a substantive attempt to reach an agreement. In practice thought, this usually means failure to schedule or attend meetings, providing no proposals, not responding to proposals but beyond these fairly basic requirements, it is clearly not difficult for employers to make it very hard to bargain. Simply by introducing every negative proposals (as in the International Truck company strike in Chatham in 2002 where the company made all kinds of incredible demands for major cuts in pay and benefits, and increases in work) is enough to torpedo negotiations but this was not bargaining in bad faith under the law. Also, companies can and do use various tactics to undermine worker strikes – replacement workers, shifting production to other plants, building up inventory to weather the strikes, simply closing the shop and moving elsewhere. The lack of a ban on replacement workers/scabs in Ontario is a frequently noted weakness of the LRA if it comes to a strike.
12) How is the OLRA administered and enforced?
The Act is administered by the Ontario Labour Relations Board which is an independent tribunal overseeing union certification and decertification, and policing unfair labour practices and good faith bargaining. Some boards have powers to issue directives on illegal strikes and lockouts and some including Ontario can arbitrate first contract disputes, act like a court in resolving disputes, investigate and hold hearings, has capacity to fine and even file criminal charges and tends to order guilty party to restore things to where they were – e.g. rehire a fired person – very different than what the courts do. Board hearings are less formal and legalistic and no lawyers are required but they are widely used. Boards are usually made up of IR practitioners, plus expert labour IR staff.
It’s the labour relations board:
- That makes decisions about certification (you apply to the Board and the Board monitors the organizing drive, may monitor the vote of course, and confirms whether everything has been done legally before granting certification)
- That monitors strike situations, strike votes, provides conciliation service, makes sure that the process is done properly according to the rules and responds to any accusations of unfair labour practices or irregularities.
- That responds to any and all ongoing complaints by unions or employers – adjudicates if informal resolution can’t be found.
Note that if you are unionized, the union makes decisions about which complaints to take to arbitration and which to take to the Labour Relations Board. However you can appeal to the Labour Relations Board, charging your union with a failure to represent, if you are unhappy with their decision
13) What are arbitrators?
Don’t forget also that in this system a key aspect of administration and enforcement is arbitration. An arbitrator somewhat like a judge is appointed by the two parties in a grievance or contract dispute – union and company – to adjudicate and resolve the issue. The arbitrator has all the powers of a court or the labour board to order resolutions. Arbitration is also often used to resolve bargaining issues. An arbitrator is appointed – hears the two cases for changes in the collective agreement and makes a decision on which changes. Arbitrators have considerable powers on a range of issues, most relating to your collective agreement, but there are also standards of law which have developed in the arbitration domain that are quite different. Unlike the courts and the ESA, arbitrators will routinely order the reinstatement of people who have been fired unfairly.
Courts as noted are involved in appeals of some labour board and arbitration decisions but this is very rare; their main involvement now is really around injunctions and criminal charges in strike situations. Courts also have some influence through charter challenges such as recent decisions on secondary picketing and the right to collective representation.
HEALTH AND SAFETY RIGHTS UNDER THE ONTARIO OCCUPATIONAL HEALTH AND SAFETY ACT:
1) What is the Ontario Occupational Health and Safety Act?
The Occupational Health and Safety Act define worker and employer rights and responsibilities for preventing accidents and disease in the workplace. It also gives the Minister of Labour, the power to administer and enforce the law, as well as the power to establish regulations or rules regarding the way certain things must be done. The law also gives the Minister the right to set up guidelines and codes for testing workplace conditions, checking machinery, and keeping records.
2) What are my main rights under the Act?
As defined in the Act, there are three main rights which you have as a worker:
i) You have the right to request and receive information from management on workplace hazards or conditions, for example, if you are working where there is a fair amount of dust, you can request information on the contents of that dust, and information on the potential health risks associated with exposure to the contaminants in the dust. The government also has a responsibility here to provide information when requested.
ii) You have the right to refuse to work in a situation which you believe presents a risk to your health or safety. So if you found out that the dust contains a carcinogen and you think it presents a risk to your health, you can refuse to work. The company can agree with you and seek to modify the work, provide you with protective equipment or move you elsewhere; if it does not, a ministry of labour inspector is called in to rule on whether there is a hazard which needs to be addressed. They cannot discipline or fire you for refusing.
iii) You have the right to representation in the form of worker representatives on a joint worker/management advisory committee which can deal with worker health and safety concerns, so this is another avenue for you as a worker to get information and to get action on concerns.
3) What are my employer’s responsibilities?
i) Train employees about any potential hazards and on how to use, handle, store and dispose of hazardous substances.
ii) Provide personal protective equipment and ensure workers know how to use the equipment properly.
iii) Take every reasonable precaution to ensure safe workplaces.
iv) Immediately report all critical injuries to the ministry and/or compensation board (WSIB).
v) Provide for the creation of the joint occupational health and safety committee and for workers’ representation on that committee.
Although the government has a responsibility to inspect workplaces as well as enforce the law, a key principle underlying the legislation is the so-called internal responsibility system. This means essentially that the government relies on the workers, the unions, and employers to monitor their own workplaces and resolve any concerns among themselves, involving the Ministry of Labour only when there are major disagreements. This places a lot of weight on the workers, and the union if there is one, to know the risks in their workplace and to challenge employers if those risks are not being addressed. The Ministry of Labour will act without workers’ complaints if it becomes aware of a bad employer, and indeed it has a special program to identify the poor performers, but employers can get away with quite a lot unless workers object.
4) What does all this mean for you?
Although it will take some courage on your part, it is crucial that when you start your job that you take the initiative to ask some questions from your employer or manager.
i) What are the dangers in my job?
ii) Are there any specific hazards like noise, chemicals, radiation, and dust?
iii) Will I receive safety training and when?
iv) What safety gear do I have to wear and will I receive training on its use?
v) Where are emergency exits, fire extinguishers, eye wash stations, safety data sheets and other emergency equipment?
vi) What are my health and safety responsibilities?
vii) Who do I ask if I have a health and safety question?
viii) Who is the first aid person and what do I do if I get hurt.
ix) Does the company have a safety rules or procedures book and do I get a copy?
5) Other advice.
When you start working, look around to make sure you identify posted notices of hazardous areas. Watch and observe your fellow workers. Do not hesitate to ask questions from experienced workers, your supervisor and your health and safety representative. It’s a good idea to quickly find out who your representatives are and introduce yourself by asking for any general advice. Remember as well to report all injuries and notify your supervisor immediately if you are feeling any symptoms of dizziness, headaches, throat or eye irritations, itchiness or skin rashes that might indicate you are being over exposed to a chemical or toxic dust. Do not perform any task unless you have been trained. Do not leave your work area unless told to do so. Remember if you do not understand something, ASK and/or request more training or instructions.
You may be worried about looking foolish or being called a wimp, but this is your life you are talking about. All workplaces have their dangers including restaurants, retail stores, and farm fields. Always remember that workplaces kill and disable literally thousands of people every year. Do not take your rights lightly. Use them to the best of your ability.
Remember as well that one of the reasons these rights are defined in law is because workers cannot depend on employers to look after worker health and safety. Always keep in mind that the employers are trying to make a profit and trying to run their organization as efficiently as possible. In the process, sometimes health and safety is sacrificed, even if unintentional.
WORK HEALTH MANAGEMENT INFORMATION SYSTEM (WHMIS)
Most Workplace hazardous substances are also covered by a distinct piece of federal legislation called WHMIS which is also integrated into all provincial health and safety laws. In effect, WHMIS is a legislation which contributes to the worker right to know about hazardous substance by requiring that employers have material safety data sheets (MSDS) for every substance in the workplace and requiring them to make these sheets available to workers on request. It also developed a system of symbols to represent different classes of hazards, some of which you may have seen already (fire symbol for flammable materials, skill and cross bones for poisonous and infectious materials with immediate toxic effects). These would be good things to learn so that you can immediately recognize when you are working with something dangerous, and note as well that if it is not labelled properly, your employer is breaking the law.
Each MSDS sheet specifies the dangers of the material and the conditions in which it can be more or less dangerous (can it burn, explore, combine with other substances to produce toxic fumes), what happens if you get it on your skin or eyes or in your lungs, what safety equipment and procedures you should use and where this is located, any handling precautions or procedures, emergency procedures in the event of an accident or exposure. The potential long terms effects such as whether the substance is a carcinogen is also specified. You should ask where the MSDS sheets are and take a look at the MSDS sheets in your workplace, especially for those substances or material involved in your specific job. If you have trouble understanding them, ask for WHMIS instruction or talk to your health and safety representative.
WORKER SAFETY AND INSURANCE ACT:
1) What happens when you are injured on the job or your job makes you sick?
The Workplace and Safety Insurance Act (WSIA) is a separate piece of legislation which provides financial compensation to workers injured or made sick on the job and to workers families if they are killed on the job or die due to workplace caused diseases. The WSIA is also heavily oriented towards rehabilitation and return to work programs aimed at getting the injured worker back on the job and off compensation. This can include medical treatment, physical rehabilitation, retraining and education. The legislation established an independent organization called the Workplace Safety Insurance Board which has responsibility for administering the Act. Corporations pay into the system based on their injury records, which is also supposed to encourage firms to reduce their accidents rates. Unfortunately, it also encourages some firms to try to hide injuries.
2) What are your compensation rights and responsibilities?
The key right for you under the WSIA is the right to compensation for workplace injury. But like all laws, this one also imposes certain responsibilities or obligations on you. First and foremost, you must report every injury immediately after it happens, however slight. For example, you may have a small cut from a machine which you assume is not a problem, but unknown to you, there may be little slivers of metal or glass, or some toxic substance on the metal or glass which causes a major infection or illness reaction. Alternatively, you may have lifted something and felt a tinge or strain in your back. If you haven’t reported either of these injuries, and they later develop into a problem, you are going to have much more difficulty coming back to the employer and claiming it happened at work. Accordingly, you may lose your compensation claim, or it will take months or even years to get your claim recognized and all the while you might be unable to work. Remember that some people are disabled at work in ways that restrict their employment options for the rest of their lives. If you lose out on compensation, and the assistance they would give you to rehabilitate and to sustain yourself during that process you are out of luck. So report to first aid for any injuries, tell you boss or supervisor about any injury or illness immediately. If you loose wages or require health treatment, you and your employer must file a claim (called Form 7). If you are younger than 16, your parent or guardian will have to sign it. You can use whatever doctor you choose when getting treatment, although once you cite a given doctor, you have to get approval from WSIB, who will then contact you to tell you once your claim is filed. If your claim is denied, you have a right to appeal. If unionized, your union should be contacted and they will help you. If not, there is a Workers Advisory Office (1-800-660-6769) which helps workers with appeals. Just note that the appeal process is very slow, often taking one to two years.
Regardless of whether compensation is involved, it is often important to report injuries so that you can receive proper medical diagnosis and treatment. It is the responsibility of the employer to make certain that you receive that treatment. Moreover, when workers report accidents, they are often helping to identify hazards which need to be corrected. We know from research that workers often don’t report injuries. Sometimes it’s because they just don’t think it is serious enough, sometimes they don’t want to appear as complainers or wimps, and sometimes they are afraid of what the boss or fellow workers will think and do. You cannot be disciplined for reporting an injury but it is also entirely understandable that people react in this way. Indeed, part of what we study in labour studies courses is all about the factors which discourage workers from reporting injuries and refusing unsafe work. But remember, you are taking a big risk with your future every time you don’t report.
HOW AND WHEN DO I FILE A CLAIM FOR BENEFITS WITH THE WSIB?
A worker who is injured at work or becomes sick because of his/her job should:
i) Get first aid immediately, or health care if needed.
ii) Tell your employer about the accident or illness as soon as possible.
1) When can I make a claim for WSIB benefits?
As a worker, you can claim benefits for a work-related accident or illness if you have:
i) Received health care
ii) Lost time or wages from work beyond the day of accident/illness
iii) Continued to work but on partial hours only
iv) If you had to do different work due to the accident/ illness for more than seven days and did not see a health professional, you can also make a claim.
2) What is a Worker’s Report of Injury/Disease (Form 6)?
You must fill out a Form 6. The Form 6 Reference Guide for Workers will give you more information on filling out this form (see WSIB web site).
Often called just the Form 6, this is a WSIB form that the worker completes and sends to the WSIB after a work-related injury or illness. It is a way for you to tell WSIB the details of what happened to cause the injury or illness. It also provides WSIB with the information we need to make decisions about and process your claim. This form is different from the one you may have filled out at work for your employer. When you complete and submit the Form 6, it tells WSIB that you are claiming for benefits for a work-related accident.
There is a time limit for you to report. It is important to claim benefits as soon as possible. You have six months from the date of the accident to claim benefits or, for occupational diseases, from the time you learn of the disease.
3) How do I file a claim for benefits?
To file a claim for benefits you must:
i) Report your injury or illness to the WSIB.
You should complete, sign and return Form 6 as soon as possible following a work related injury/ awareness of illness. It’s best to complete this form soon after the accident or awareness of illness while all the details are still fresh in your memory.
There is a deadline. A claim must be filed within six months of an accident or, in the case of an occupational disease, within six months of a worker learning of the disease. The claim may be filed after six months, if the worker can show “exceptional circumstances” existed at the time of the deadline. For further information, call 1-800-387-5540.
ii) Consent to release of your functional abilities information to your employer.
Your functional abilities information is non-medical information from the health care professional treating you. It tells you and your employer what kinds of work activities your illness or injury permits. Without this consent, you cannot claim benefits.
4) What are my reporting obligations?
You must notify the WSIB, within 10 calendar days, of any significant change in the status of your claim and eligibility for workplace disability insurance benefits (known as material change). Failing to report a significant change could result in reduction or suspension of your WSIB benefits.
Significant changes include:
i) Returning to work.
ii) Beginning to receive other income or government benefits.
iii) Significant changes in your medical condition.
AM I ELIGIBLE FOR WSIB BENEFITS?
To be eligible for WSIB insurance benefits, you must:
i) Have a worker-employer relationship with an employer covered by the WSIB
ii) Have an injury or illness directly related to your work.
iii) Promptly file a claim with the WSIB
iv) Provide all relevant information requested by the WSIB in order to help determine your benefits.
v) Consent to the release of functional abilities information to your employer by the health care professional treating you.
vi) Your functional abilities information comes from the health care professional treating you. It tells your employer what kinds of activities your illness or injury allows you to carry out safely. This helps your employer find safe and suitable work for you during your recovery.
1) What benefits can I receive?
Your workplace insurance entitles you to a range of benefits. The benefit most people are familiar with is the replacement of earnings you lose while disabled by workplace illness or injury (benefit for loss of earnings), but a number of other WSIB benefits are available to you.
- Benefit for Loss of Earnings (LOE)
- Benefit for Non-Economic Loss (NEL)
- Loss of Retirement Income (LRI) Benefit
- Benefit for Future Economic Loss (FEL)
- Health Care Benefits
- Health Care Equipment and Supplies
- The Occupational Disease and Survivor Benefits Program
- Benefits for Seriously Injured Workers
- Compensation Amounts for Survivors
2) What must I do while receiving benefits?
It’s to your benefit to cooperate in your return to health and your safe return to work. As a person receiving WSIB benefits it’s also your responsibility.
Most workers are helpful and cooperative in this matter. But in rare cases where a worker is determined by the WSIB to be uncooperative, the worker’s benefits may be reduced or suspended after a continued period of non-cooperation.
To receive WSIB benefits, you must:
i). Cooperate on your recovery by following the treatment and health care prescribed by your health care professionals.
ii) Have health examinations as required by the WSIB.
The WSIB may require a health exam if it will help us make a decision as to your case, or if it will help you re-enter the job market. Your employer may request a health exam if it will provide significant new information regarding your case.
iii) Cooperate on your Early and Safe Return to Work program or your Labour Market Re-entry program.
iv) Report any material change in your circumstances to the WSIB. Some examples of material changes are:
- Any change to your income
- Significant changes in your medical condition
- Returning to work
v) Provide any information that the WSIB needs to assess your case.
EMPLOYMENT INSURANCE ACT:
1) What is Employment Insurance (EI)?
Employment insurance is intended to provide unemployed workers with an income while they are finding new employment. EI is your right. EI also covers maternity, parental leave and sick leave too. You and all other workers pay into the Employment Insurance system which is run by the Federal government. It’s your boss’s responsibility to deduct EI from your pay and this should be recorded on every pay stub you receive.
2) Do I qualify for EI?
No more work if you were laid off because of plant, store or office closures or as part of a reduction workforce by your employer, you should be eligible if you have worked a certain number of hours in the 52 weeks before your last day of work, if this is your first job. If you have worked before, you may need between 420 to 700 hours. The actual hours required varies with region according to the unemployment rate (see below for more information and check with the EI office or website to get the latest hours that apply in the Windsor area. EI also considers the reasons why
you are no longer working. If you were fired or quit, it may be difficult to get EI. See below for more information.
3) How do I apply for EI?
Go to the nearest Human Resources and Social Development Canada (HRSDC) office to apply for EI. Make sure you apply within four weeks from your last day of work. It may be more difficult to get benefits if you apply after four weeks.
Bring a Record of Employment (ROE) for every job you had during that 52-week period. The ROE states all your work hours and all your pay. It is used by HRDC to see if you are qualified for EI and to calculate how much EI you should get each week. Your boss has to give you a ROE if you have not worked for more than seven days. That means that if you are temporarily laid off, you should get a ROE.
Applying for EI?
I’m a Temp worker. I’ve had multiple assignments. Can I apply?
The Temp agency has to give you a ROE for all your assignments. If you have not worked for more than seven days, ask the Temp Agency to give you a ROE. That does not mean that you are quitting. If you worked for more than one agency, each one should give you a ROE.
My boss won’t give me a Record of Employment. What can I do?
Apply anyway, and complete a “missing ROE” form with your application. You can get this from any HRDC office. Apply as soon as possible. HRDC will contact your boss directly to get your ROE. Ideally you should submit evidence of employment such as pay stubs, bank records of direct payment, time cards, employment letter, etc.
I do not see the EI deductions on my pay stub. What if my employer did not make EI deductions from my pay? What if my employer paid me by cash?
You may still be able to apply for EI. Make sure you have as much Information as possible to show the hours that you worked. It is the employer’s responsibility to make the correct deductions from your pay. You may still be eligible for benefits.
There’s a mistake on my Record of Employment. What can I do?
First call your boss to have your ROE corrected. If your boss won’t change it, submit a letter to HRDC explaining the correction. If you have pay stubs or any other records that shows the change, submit these too. Keep a copy of this letter for your records.
Relevant Documents to show the hours you worked and the pay you received:
1) Photocopies of your pay stubs or bank records,
2) A photocopy of your records that shows your hours of work (this can be hand-written).
Remember it is important to keep records of your work at home.
Fired for Cause? Forced to quit?
If the employer claims that you were fired “for cause” because of some failure or misbehavior on your part), and you disagree with the reason you were fired; write a letter to HRSDC when you apply to explain what happened from your point of view. Keep a copy of this letter for your records. If you need help writing this letter, you can call the Windsor Workers’ Action Centre. (519-252-1212).
Gloria worked for four years as a cleaner. She always got good work reviews. A new supervisor didn’t like Gloria. He told her not to take her breaks but Gloria did anyway. Gloria documented all this for her records. One day he fired Gloria, saying that she was causing problems at work. He put “Fired” on her ROE. Gloria wrote a letter to HRDC explaining what really happened. Using her notes, she explained that this was an “unfair firing”. Her explanation helped her to get EI benefits.
Raja’s supervisor often yelled at him, made threats, criticized his work and made him do more work than one person can do. Raja kept notes on all this harassment. Eventually, Raja got sick: headaches, anxiety attacks, difficulty sleeping and depression; because of the bad work environment. After a while, Raja decided to quit as his health was getting worse. Raja wrote a letter to HRDC explaining what happened and added his notes plus a doctor’s note recommending time off. Raja went on sick leave and later switched to regular EI.
Problems after Applying:
My claim was rejected:
You have 30 days from the day you received a letter from HRDC to send your letter of appeal. Contact a Legal Clinic for help to file an appeal. If you are finding it hard to pay the bills, apply for Emergency Social Assistance. If you get EI, you will have to pay back social assistance.
I applied a long time ago but haven’t heard anything:
You should receive a decision on your application within four weeks of applying. Call EI as soon as possible to find out what is causing the delay. EI may ask you for more information to decide on your claim.
Important Numbers and Web sites:
Ministry of Labour, Employment Standards Information Centre 1-800-531-5551
Ontario Human Rights Commission 1-800-387-9080
Service Canada Centre
400 City Hall Square East, Windsor
Ministry of Labour, Occupational Health and Safety Branch
4510 Rhodes Drive, Suite 610, Windsor
Other Community Support Services:
Windsor Occupational Health Information Service
3129 Marionette, Windsor
Occupational Health Clinic for Ontario Workers (OHCOW), Windsor
3129 Marentette, Windsor
Ontario Human Rights Commission 1-800-387-9080
Employment Insurance 1 800 206-7218
Service Canada Centre
400 City Hall Square East, Windsor
Ministry of Labour, Occupational Health and Safety Branch
4510 Rhodes Drive, Suite 610, Windsor
Windsor Occupational Health Information Service
3129 Marentette, Windsor
Occupational Health Clinic for Ontario Workers (OHCOW), Windsor
3129 Marentette, Windsor