The Employer's Statutory Obligations to Its Employees
| Author | Geoffrey England |
| Pages | 79-158 |
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 irre-
ducible 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, attention
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
changes, wage statements, daily
rest
and
meal periods, weekly rest periods, statutory holidays, annual
vacations,
time
off
to
vote, maternity
and
child-rearing leave, lie-detector
tests,
and the
regulation
of
homework
and
labour subcontracting;
(2)
equal
pay
legislation contained
in the
human rights acts,
and
specialized "pay equity" acts;
(3)
industrial stan-
dards acts, which allow
for the
"extension"
of
terms
and
conditions
of
employment
from
one
segment into broader segments
of the
labour mar-
ket;
and (4)
occupational health
and
safety
and
workers' compensation
1 For
further
detailed elaboration
on
this topic,
see G.
England,
I.M.
Christie,
6s
M.
Christie,
Employment
Law in
Canada,
3d
ed., looseleaf (Markham, Ont.:
Butterworths,
1998)
c. 8
[Employment
Law in
Canada}.
79
MS^SMMS^H
80
INDIVIDUAL
EMPLOYMENT
LAW
legislation. Other protective legislation governing termination
of
employment2
and
human
rights3
is
examined elsewhere
in
this
book.
The
statutory
floor
of
rights
is
made necessary
by
several
factors.
Firstly,
in
most employment relationships
the
employer
has a
superior-
ity
in
bargaining power vis-a-vis
the
employee, which creates
the
potential
for
unfair
exploitation.
The
common
law
principles govern-
ing the
employment contract
may
assume that
"free"
contracting takes
place between parties with relatively equal bargaining power,
but
this
legal
fiction does
not
correspond with reality.
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. Sec-
ondly, trade unionism
has not
succeeded
in
protecting most workers.
Currently,
the
density
of
trade union organization
in
Canada
is
approximately
37 per
cent,
and may
fall
under
the
pressures
of the
"new
economy."4
Moreover, even where employees
are
unionized,
some groups
may
have
insufficient
bargaining power
to win
benefits
significantly
in
excess
of the
statutory minima. Thirdly,
the
legal pro-
tections that
the
non-unionized employee does
enjoy
under
his or her
employment contract
may
exist
on
paper only, since
the
costs
and
delays
of
civil litigation will
frequently
preclude
the
employee
from
enforcing
them. Indeed,
the
availability
of
relatively expeditious
and
cheap enforcement machinery
is
pivotal
to the
success
of the
floor
of
rights
legislation. Unfortunately, enforcing
the
legislation
has
proven
to
be
problematic,
as we
shall
see
later.
The
period since
the
Second World
War has
seen
an
almost contin-
uous expansion
in the
statutory
floor
of
rights.
The
impetus
for
this
trend
has
been
a
combination
of
factors:5
the
dominant influence
of
pro-rights philosophers
in all
walks
of
life
during most
of
this time,
2 See
chapter
9.
3 See
chapter
7.
4 See
generally
G.
Murray,
"Unions:
Membership,
Structures
and
Actions"
in M.
Gunderson
& A.
Ponak,
Union-Management
Relations
in
Canada,
3d ed.
(Don
Mills
Ont.:
Addison-Wesley
1995) 159.
5 See
generally
on the
process
for
formulating
new
employment
standards
British
Columbia,
Rights
and
Responsibilities
in a
Changing
Workplace:
A
Review
of
Employment
Standards
in
British
Columbia
(Victoria:
Ministry
of
Skills, Training
and
Labour,
1994)
(Chair:
M.
Thompson)
at
25-27
[Thompson
Commission];
Working
Times:
The
Report
of
the
Ontario
Task
Force
on
Hours
of
Work
and
Overtime,
(Toronto:
Ontario
Ministry
of
Labour,
1987)
(Chair:
A.
Donner)
at
23-25
[Donner
Report].
The
Employer's Statutory Obligations
to Its
Employees
81
especially
of
those
who
regard
the
enjoyment
of
relatively generous
employment
benefits
as
being
the
gateway
to
enjoying
the
fruits
of
political
liberty;6
the
success
of
most trade unions
in
bargaining rela-
tively
generous benefits
for
their members
in the
favourable economic
conditions prevailing until
the
early
1980s;
and the
influence
of
inter-
national labour standards, especially
the
conventions
and
recommen-
dations
of the
International Labour Organization
(ILO).7
Regarding
the
latter, ratification
by the
federal
government
of ILO
conventions binds
the
federal
government under international
law to
implement them,
but
since
the
regulation
of
employment relations
falls
within
the
juris-
diction
of the
provinces
in
Canada,8
provincial governments
are not
legally
bound
to
follow
suit (although there
is
considerable moral pres-
sure
on
them
to do
so). Currently,
the
employment standards legisla-
tion
in all
Canadian provinces meets
the ILO
requirements
in
virtually
all
respects,
the
most notable exceptions being that only three jurisdic-
tions
—
Nova Scotia, Quebec,
and the
federal
government
—
have
enacted protection against unjust discharge
in
line with
the
1963 Ter-
mination
of
Employment
Convention
No.
119.9
Of
course,
this
proliferation
in
legislated employment rights
was
made
possible
by the
lack
of
foreign competition
on
Canadian employ-
ers and by the
ease with which Canadian provincial
and
federal
gov-
ernments could borrow money
in the
international bond market. These
economic conditions have
now
disappeared. Today,
the
burning ques-
tion
facing
Canadian governments
is
whether
to
halt
the
expansion
of
the
statutory
floor
— or
even
to
rescind existing protections
—
because
of
the
cost
to
employers
of
paying
for and
administering
the
statutory
benefits.
Thus, employers
frequently
claim that employment legislation
impedes
the
movement
of
wages
and
benefits
down
to the
equilibrium
point where
the
forces
of
supply
and
demand would otherwise inter-
sect
in the
labour market. They claim that
the
result
is to
decrease
See H.
Collins,
Justice
in
Dismissal:
The Law
of
Termination
and
Employment
(Oxford:
Clarendon Press, 1992), especially
16-20,
citing
from
J.
Raz,
The
Morality
of
Freedom
(Oxford:
Clarendon Press,
1986).
For
useful
reviews
of
ILO
standards,
see L.
Betten,
International
Labour
Law:
Selected
Issues
(Deventer, Neth.: Kluwer,
1993),
which also reviews
the
European
Economic
Community standards;
R.
Plant, Labour
Standards
and
Structural
Adjustment
(Geneva: International Labour
Office,
1994).
Canada
(A.G.)
v.
Ontario
(A.G.),
[1937]
A.C.
326
(P.C.);
Toronto
Electric
Commissioners
v.
Snider,
[1925] A.C.
396
(PC.)
[Toronto
Electric
Commissioners].
This Convention
was
strengthened
in
1982
by the
Termination
of
Employment
Convention
No.
158.
The
statutory unjust discharge schemes
in
Canada
are
examined
in
section
E(l)
of
chapter
9 of
this book.
6
7
8
9
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