UTGB Vol 5.pdf - Robson Hall Faculty of Law

B. Exclusions from the Code
The Discussion Guide asks for submissions on the exclusion of agricultural
workers under the Employment Standards Code. Surprisingly, there is no request
for submissions on the exclusions facing domestic workers. Under the Domestic
Workers Regulation 63 and the Minimum Wages and Working Conditions
Regulation/' 4 the Minister of Labour was required to review the effectiveness of
both regulations before 1 January 2005 and, if advisable, recommend that the
regulations be amended or repealed. We ask the Minister to make public the
reviews and consultations required to be done, particularly as they pertain to
exclusions facing domestic workers and agricultural workers.
While the Discussion Guide does not request submissions on the exclusions of
domestic workers, we submit that this particular exemption should be
considered as well. 65 It is beyond dispute that both agricultural workers and
domestic workers are especially vulnerable groups of employees, and both have
a strong need for legislative protection in their working lives. As discussed
below, we submit that the current exclusion of both of these groups of workers
from the Code and relevant regulations violates s. 15 of the Charter and,
therefore, should be repealed immediately.
1. Domestic workers
The exclusion of domestic workers from employment standards legislation has a
long and sorry history in Canada, subjecting this group of vulnerable workers to
inhumane and unjust working conditions. 66 Paid domestic work is highly
gendered and racialized. In fact, 97% of domestic workers are women. 67 A
majority of domestic workers were born outside Canada, including many women
from the Philippines. 68 Many are foreign citizens working in Canadian homes on
63
Man. Reg. 60/99, s. 9.
Man. Reg. 62/99, s. 23.
65
We are pleased that this issue was subsequently placed on the legislative agenda, at least in
part due to our brief, and that the amendments have extended some further, minimal
protections to domestic workers in Manitoba. However, we remain concerned that further
efforts need to be made, particularly on the enforcement side, to ensure that domestic
workers' equality rights are protected.
66
For a history of the legislative exclusion of domestic workers in Ontario, see Judy Fudge,
"Little Victories and Big Defeats: The Rise and Fall of Collective Bargaining Rights for
Domestic Workers in Ontario" in Abigail B. Bakan & Daiva Stasiulis, eds., Not one of the
Family: Foreign Domestic Workers in Canada (Toronto: University ofToronto Press, 1997) at
122.
67
Audrey Macklin, "Foreign Domestic Worker: Surrogate Housewife or Mail Order
Servant" (1992) 37 McGill L.J. 681 at 684.
68
Louise Langevin & Marie-Claire Belleau, Trafficking in Women in Canada: A Critical
Analysis of the Legal Framework Governing Immigrant Live in Caregivers and Mail-Order Brides