UTGB Vol 5.pdf - Robson Hall Faculty of Law

The Supreme Court of Canada has said of employment standards law: "[t]he
harm which the [Ontario Employment Standards] Act seeks to remedy is that
individual employees, and in particular non.-unionized employees, are often in
an unequal bargaining position in relation to their employers., 23 Iacobucci J.
went on to cite Professor Katherine Swinton, who has noted:
... the terms of the employment contract rarely result from an exercise of free
bargaining power in the way that the paradigm commercial exchange between two
traders does. Individual employees on the whole lack both the bargaining power and
the information necessary to achieve more favourable contract provisions than those
offered by the employer... 24
When left to negotiate their conditions of employment on the market, workers
lack the power to seek guarantees of safe working conditions, adequate income,
and fair termination and notice. Without legislated protections, workers who
seek to enforce their rights risk being fired or forced to quit. The Manitoba
government, along with other Canadian governments, has legislated in a
number of areas-including most recently to impose a province.-wide no..
smoking ban-in recognition of the reality that workers are entitled to
protection such as clean air at work, even though they could not negotiate such
terms on their own or even collectively, in some cases.
To perform its role as a meaningful floor of rights, employment standards
legislation must keep pace with changes in the labour market and in society
more generally, must comply with Canada's international and domestic human
rights commitments, and must be rigorously enforced. Each of these criteria will
be described before turning some of the specific areas of concern in the Code
and measuring the current law against those criteria.
III. SOCIAL AND ECONOMIC CONTEXT:VULNERABLE WORKERS
AND THE FEMINIZATION OF LABOUR
It is vital that any revisions to the Code be made with the impact of changing
labour market patterns in mind, and more particularly, with a view to redressing
rather than exacerbating the negative impact of some of those changes on
Manitoba's most vulnerable workers.
The increasing number of "vulnerable" or "precarious" workers in the new
economy is well...documented, 25 and is widely acknowledged to be linked to
23
Machtinge;, supra note 12 at para. 31.
24
Katherine Swinton, cited inMachtinger, ibid.
25
See generally Kerry Rittich, Vulnerability at Work: Legal and Policy Issues in the New
Economy, Report for the Law Commission of Canada, 2004, online: Government of Canada
Desposimry Services Program and sources cited therein.