The Employer's Statutory Obligations to Its Employees

• Author: Geoffrey England
• Pages: 104-212

CHAPTER 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 legislation, which establishes certain irredu-

cible protections for the employee that the parties cannot abridge in

their employment contracts, but are free to improve upon. An enor-

mous number of statutes comprise this f‌loor of rights.1 Here, atten-

tion is focused on the following particularly important ones: (1) the

employment standards legislation, which deals with minimum wages,

hours of work and overtime, regulation of the mode and interval of

wage payments and of deductions and charges, daily rest and meal per-

iods, weekly rest periods, advance notice of work schedules, statutory

holidays, annual vacations, time off to vote, maternity and child-rear-

ing leave, family leave, compassionate leave, sick leave, bereavement

leave, lie-detector tests, protection against personal intimidation and

harassment, the regulation of part-time, casual, and home-based work,

and the regulation of work supplied through an employment agency;

(2) equal pay legislation contained in the employment standards acts,

human rights acts, and specialized pay equity acts; (3) industrial stan-

dards acts, which allow for the “extension” of terms and 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 Employees105

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 intrude into the employee’s personal privacy. Other protective

legislation governing termination of employment2 and human rights3 i s

examined elsewhere in this book.

The statutory f‌loor of rights ref‌lects the general public consensus

that has emerged in Canada since the Second World War, namely, that

the worker is entitled to be treated decently by the employer. The Ar-

thurs Report def‌ines the right to decency as follows:

Labour standards should ensure that no matter how lim ited his or her

bargaining power, no worker . . . is offered, accepts or works under

conditions th at Canadians would not regard as “decent.” No worker

should therefore receive a wage that is insuff‌icient to live on; be de-

prived of the payment of wages or benef‌its to which they are entitled;

be subject to coercion, discrimination, indignity 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 importance of safeguarding the worker’s right to

decency explains why the Supreme Court of Canada5 has ruled that

the f‌loor of rights legislation must be construed generously, broadly,

and liberally in order to expand rather than abridge the protections

available to employees. Legislating the right to decency is necessary for

three reasons. First, in most employment relationships, the employer

has a superiority in bargaining power vis-à-vis the employee, which

creates the potential for unfair exploitation. The common law prin-

ciples governing the employment contract may assume that “free” con-

tracting takes place between parties with relatively equal bargaining

power, but this assumption is only legal f‌iction. Of course, there are

exceptions — such as highly skilled technicians, professionals, senior

managers, entertainers, and sports stars, who are in short supply in the

market — but most employees do not fall into these categories. As well,

depending on f‌luctuating economic cycles in particular industries,

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

Report].

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 trucking, even relatively low- to mid-

skilled workers may have substantial bargaining power during high

points in the cycle, but see their power erode during downswings. 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 importance, not least because relatively gen-

erous employment benef‌its provide the gateway to enjoying the fruits

of political liberty. Accordingly, the Arthurs Report described the right

to decency as “the pre-eminent principle” that “trumps” other prin-

ciples, such as maximizing economic eff‌iciency, when a conf‌lict emer-

ges between them.6 While the latter conclusion is controversial — some

would argue that economic eff‌iciency should be paramount in the event

of a conf‌lict — protecting the right to decency is undeniably a funda-

mental goal of modern Canadian employment law.

Second, legislation is nece ssary because trade unionism has not suc-

ceeded in protecting most workers. In 2007, the density 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 may lack the bargaining

power to win benef‌its signif‌icantly in excess of the statutory minima.

Third, legislation is necessary because 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 them. 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 rights. The impetus for this trend has

been a combination of factors:8 the dominant inf‌luence of pro-rights

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