The Employer's Statutory Obligations to Its Employees
| Author | Geoffrey England |
| Pages | 104-212 |
CHA PTER 6
THE EMPLOYER’S
STATUTORY
OBLIGATIONS
TO ITS EMPLOYEES
A. INTRODUCTION
This part of the book examines the employer’s duties to its employees
under the floor of rights legi slation, which establishes certa in ir redu-
cible protections for the employee that the parties cannot abridge in
their employ ment contracts, but are free to improve upon. An enor-
mous number of statutes comprise this floor of rights.1 Here, atten-
tion is focu sed on the following particularly important ones: (1) the
employment standard s legislation, which deals with minimum wages,
hours of work and over time, regulation of the mode and interval of
wage payments and of deductions and charges, daily rest and meal per-
iods, weekly rest period s, advance notice of work schedules, statutory
holidays, annual vacations, time off to vote, mater nity and child-rear-
ing leave, family leave, compassionate leave, sick leave, bereavement
leave, l ie-detector te sts, protection against personal intimidation and
harassment, the regulation of part-time, casual, and home-based work,
and t he regulation of work supplied through an employment agency;
(2) equal pay legislation contained in the employment st andards acts,
human rights act s, and specialized pay equity acts; (3) industrial stan-
dards acts, which allow for the “extension” of terms a nd conditions of
1 For further det ailed elaboration on this topic , see G. England, R. Wood, & I.
Christie, Employ ment Law in Canada, 4th ed ., looseleaf (Markham, ON: Lex is-
Nexis Can ada, 2005–) c. 8 [Employment Law in Cana da].
104
The Employer’s Statutory Obl igation to Its Employees 105
employment from one segment into broader segments of the labour
market; (4) occupational health and safety and workers’ compensation
legislation; and (5) privacy legislation, which limits the employer’s
right to intr ude into the employee’s personal privacy. Other protective
legislation governing termination of employment2 and hum an rights3 i s
examined elsewhere in this book.
The statutory floor of rights reflects the general public con sensus
that has emerged in C anada since the Second World War, namely, that
the worker is entitled to be t reated decently by the employer. The Ar-
thurs Report defines the r ight to decency as follows:
Labour standards should ensure that no matter how lim ited hi s or her
bargaining power, no worker . . . is offered, accept s or work s under
conditions th at Canadians would not regard as “decent.” No worker
should therefore rec eive a wage that is insuf ficient to live on; be de-
prived of the payment of wages or benefits to which they are entitled;
be subject to coercion, discrimi nation, indignit y or unwarranted
danger in t he workplace; or be required to work so many hours that
he or she is effectively denied a per sonal or civic life.4
The fundamental i mportance of sa feguarding t he worker’s right to
decency explains why the Supreme Court of Canada5 has ruled that
the floor of r ights legislation must be construed generously, broadly,
and liberally in order to expand rather t han abridge the protections
available to employees. Legislating the right to decency is necessary for
three reasons. First, in most employ ment relationships, the employer
has a superiority in bargai ning power vis-à-vis the employee, which
creates the potential for unfair exploitation. The common law pri n-
ciples governing the employment contract may assume that “free” con-
tracting takes place between pa rties with relatively equ al bargaining
power, but this assumption is only legal fiction. Of course, there are
exceptions — such as highly skilled tech nicians, profe ssionals, senior
managers, entertainers, and sports stars, who are in short supply in the
market — but most employee s do not fall into these categories. As well,
depending on fluctuating economic cycles in particular industr ies,
2 See Chapter 9.
3 See Chapter 7.
4 Canada, Com mission on the Review of Federa l Labour Standards, Fair ness at
Work: Federal Labour Standards for th e 21st Cen tury by H.W. Ar thurs (Ottawa:
Commission on t he Review of Federal Labour St andards, 2006) at 47 [Arthurs
Rep or t].
5 Re Rizzo and Rizzo Shoes Lt d., [1998] 1 S.C.R. 27 at 36, involving t he employ-
ment standar ds acts.
INDIVIDUAL EMPLOYMEN T LAW106
such as construction, mining, and tr ucking, even relatively low- to mid-
skilled workers may have substantial bargaining power during high
points in t he cycle, but see their power erode during down swings. In-
deed, when it comes to designing statutory benefits, the right to decent
treatment in the workplace is w idely (but not universally) regarded as
something of paramount import ance, not lea st because relatively gen-
erous employment benefits provide the gateway to enjoying the fr uits
of political liberty. Accordingly, the Arthurs Report described the right
to decency as “the pre-eminent pr inciple” that “trumps” other prin-
ciples, such as m aximi zing economic efficiency, when a conflict emer-
ges between them.6 While the latter conclusion i s controversial — some
would argue that economic efficiency should be paramount in t he event
of a con flict — protecting the right to decenc y is undeniably a funda-
mental goal of modern Canadian employment law.
Second, legislation is nece ssary because trade union ism has not suc-
ceeded in protecting most workers. In 2007, the den sity of trade union
organization in Canada was approximately 29 percent — 17 percent in
the private sector and 71.7 percent in the public sector — and it appears
to be falling under the pressures of the “new economy.”7 Moreover, even
where employees are unionized, some groups m ay lack the barga ining
power to win benefits significantly in excess of the statutory minima.
Third, legislation i s necessary becaus e the legal protections that the
non-unionized employee enjoys under his or her employment contract
may exist on pape r only; the cos ts and delays of civ il lit igation freque ntly
preclude the employee from enforcing t hem. Indeed, the availability of
relatively expeditious and cheap enforcement machiner y is pivotal to
the success of the floor of right s legislation. Unfortunately, enforcing the
legislation has proven to be problematic, as we shall see later.
The social, economic, and political conditions operating in Canada
since the Second World War have resulted in an almost continuous ex-
pansion in the statutory floor of r ights. The impetus for this trend has
been a combin ation of factors:8 t he dominant influence of pro-r ights
6 Arthurs Re port, above note 4 at 47.
7 See generally G. Mur ray, “Unions: Membership, Structure s and Actions” in M.
Gunderson, A. Ponak, & D. Taras , Union–Management Relatio ns in Canada, 5th
ed. (Don Mills, ON: Pears on Addison-Wesley, 2005) at 79.
8 The most recent example of t he process for formulating new employ ment
standard s is the Arthurs Repor t, above note 4, especially chapte rs 2, 3, and 11.
Previous us eful examples include Brit ish Columbia, Ministr y of Skills, Train-
ing and Labour, Rights an d Responsibilities in a Changing Workplace: A Re view of
Employment Stan dards in British Columbia by M. Thompson (Victoria: Ministry of
Skills, Train ing and Labour, 1994) at 25–27 [Thompson Commission]; Ontario
Task Force on Hours of Work and Overtime, Working Times: The Re port of the
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