Section 5 (2) of the Employment Standards Act (ESA) states that if one or more provisions in an employment contract or in another Act provide a greater benefit to an employee than the employment standard identified in the ESA, the provision or provisions in the contract or Act apply and the employment standard does not (2000). Put simply, if an employer offers a benefit to an employee (whether pay, working hours, personal days, etc.) that is more generous than the minimum standards defined in the ESA, then the ESA does not apply to that employee, in that particular circumstance. The provision is a logical one: it recognizes that employers often offer their employees workplace standards that exceed the ESA standards, and the Act ensures those employers are not subject to needless regulation. Changing this practice may leave both employers and employees uncertain of benefit entitlements.
With respect to contract work, some have argued that the government should implement a system of reverse onus on employee status, where a worker must be presumed to be an employee unless the employer demonstrates otherwise. This proposal is in response to what some groups perceive as the intentional misclassification of workers by employers. Such a measure would create hurdles to contract employment, now a fundamental part of many employers’ business models and many employees' career paths of choice, particularly among students and older workers. This is the case both in the private and public sectors, with many universities, colleges, hospitals, and municipalities, relying on a mixed permanent/contract workforce. Forcing these organizations to cease the use of contract employment could put businesses and jobs in flux.
Rather than adding more complexity and confusion to the system, we would encourage government to take an approach to precariousness that while continuing to promote flexibility and economic empowerment, broadens the approach through enhanced social programming.
Recommendation 1: Recognize that the Employment Standards Act is not intended to act as a mechanism that allows workers to double up on benefits. Maintain the Greater Contractual or statutory right provision in the Employment Standards Act.
Recommendation 2: Amend the Employment Standards Act to clarify that in those cases where the employer has existing leave entitlements (paid or unpaid) that equal or exceed 10 days (through policy or a collective agreement), those leave entitlements, however allocated, represent a greater right or benefit regardless of whether the leave days provided are as wide in scope as the emergency leave provisions set out in the Act.
Recommendation 3: Rather than adding more complexity and confusion to the system, government should take a comprehensive approach to addressing precariousness that involves enhanced social programming that is more responsive to the structural changes in the global economy. In particular, we support the Government's piloting of a Basic Income, which we see as a more efficient and realistic means of ensuring Ontarians are given greater security.