UTGB Vol 5.pdf - Robson Hall Faculty of Law

54 Underneath the Golden Boy
vulnerable workers. In Part IV, we move on to consider the legal context for
this Review, focusing on both domestic (the Charter, human rights law, and
employment law) and international (Canada's international human rights
commitments) law. Our submissions on the various matters raised in the
Discussion Guide are found in Part V, with a particular focus on women
workers and keeping in mind the relevant social and legal context discussed in
Parts III and IV. Finally, in Part VIwe indicate our ongoing interest in these
issues, as well as those not raised in the Discussion Guide, and call on the
Manitoba government to make good on its promise to workers represented by
the Review.
II.THE PuRPOSE AND ROLE OF EMPLOYMENT STANDARDS
LEGISLATION
From their inception, legislated employment standards have been aimed at
providing a statutory "floor of rights 11
below which no worker should be
permitted to falL 19 It is important that any proposed changes to the Employment
Standards Code be consistent with the spirit and principles of minimum
employment standards, which can be improved upon by workers with greater
bargaining power, particularly those represented by unions, but cannot be
contracted out of by workers. 20 The statutory floor of rights is required for a
number of reasons: 21
• The vast majority of employment relationships are characterized by a
profound inequality of bargaining power, belying the myth of the
common law model of "freedom of contract" and making workers
vulnerable to "agree" to work for low wages, for little or no benefits, or
in unsafe working conditions;
• Unionism has not succeeded in protecting the majority of workers in
Canada (union density declined through the 1980s and 1990s, falling
from 41.8% in 1984 to 32.2% in 2002 22 ) and even unionized workers
sometimes have trouble negotiating benefits much in excess of the
statutory minima; and
• The rights and entitlements under employment contracts are
unenforceable in practice by most workers due to the prohibitive cost
and delays associated with civil litigation.
19
Geoffrey England, Individual Employment Law {Toronto: Irwin, 2000) at 80, 84.
20
21
22
Machtinger, supra note 12.
England, supra note 19 at 80.
Andrew Jackson and Sylvain Schetagne, "Solidarity Forever -An Analysis of Changes in
Union Density" {2004) 4 Just Labour 53, at 62.