THE ARTHURS REPORT:
Small Steps Towards Better Federal Standards
On October 30, 2006, the federal government released a report on Part III, the minimum labour standards section of the Canada Labour Code. The Report was written by law professor Harry Arthurs after two years of research and consultation. Entitled “Fairness at Work: Labour Standards in the 21st Century”, it is the first comprehensive review of federal labour standards in over 40 years.
Part III of the Code lays down minimum standards on matters like hours of work, minimum wages, statutory holidays, vacations and leaves, and terminations for workers in the federal jurisdiction, which includes workers at banks, communications companies, air and road transport.
While the federal labour jurisdiction covers less than 10% of the total Canadian workforce, a progressive federal government could be a leader and stimulate higher standards in provincial jurisdictions across the country. Unfortunately, the federal law lags behind many provincial jurisdictions, as well as many other countries, in many of the standards.
As contracting-out and other factors increase the number of vulnerable (temporary, casual, contract, contingent) workers in the federal as well as other jurisdictions, minimum legal standards become increasingly important, not only for vulnerable workers, but for all workers who must compete with them. Poor wages, benefits and working conditions for the most vulnerable workers put pressure on every worker, even the relatively better-protected unionized workforce.
Overall, the Arthurs Report is positive. It reflects an understanding that minimum standards are a basic requirement of dignity and fairness at work. It is a lengthy report, running over 300 pages, and it contains 177 recommendations, most of which call for improvements in the standards. It is available online at www.fls-ntf.gc.ca.
While the Report is excellent in its presentation of general principles, it is generally modest or vague with respect to specific recommendations. For example, after stating there should be an indexed federal minimum wage that would bring a single full-time full-year earner up to the poverty line, Arthurs fails to actually recommend a figure. Using current StatsCan poverty lines, the minimum wage should be around $10 an hour.
On the severance pay requirement, he recommends an increase from 2 days per year of service to 3 days per year of service, but only after 10 or more years of service. Arthurs accepts that there is no basis for exempting employers from the law’s severance pay requirements based on a minimal pension entitlement, but then does not recommend the abolition of the pension exemption.
With respect to vacation, Arthurs does recommend a significant improvement - increasing the minimum standard from simply two weeks after one year, to at least three weeks after five years and four weeks after ten. With respect to most of the other standards for leave (sick leave, maternity/parental, compassionate care), however, he recommends only further entitlement to unpaid leave.
While Arthurs recognizes the difficulties receiving the minimum standards protection faced by workers in precarious employment, it is not clear that his proposals – largely changing the definitions of employees, dependent contractors, etc. in the Act – will actual expand coverage, and they may well narrow coverage for such workers.
Arthurs notes the serious potential for exploitation of the growing number of workers employed through agencies and calls for the actual employers to share responsibility and liability with the agencies, but in many key requirements to protect agency workers, he calls only for voluntary and unenforceable “codes of conduct”.
A positive aspect of the Report is the clear recognition that standards without effective enforcement are meaningless. Arthurs recommends that much greater resources be put into education, inspection, and enforcement, with significant fines, and the possibility of criminal prosecutions, for law-breakers. Unfortunately, such progressive change would require not only legislative action, but a political and financial commitment to workers’ rights on the part of the government, something we have seen little sign of in recent years.
Some elements of the Arthurs Report raise concerns. With respect to hours of work, overtime and scheduling issues, he proposes a process to make the granting of Ministerial exceptions and exemptions simpler, fairer and more transparent, which is a good thing. He also, however, proposes a system of sectoral conferences to develop alternatives to the overall standards for each particular sector.
This could be dangerous. It is not clear how these conferences would work, who would be represented, or how unionized and non-unionized groups would be reconciled. Even the notion of a sector may be difficult to deal with in practice. What sense would it make to have a sectoral conference in, for example, air transport, dealing with hours of work for pilots, flight attendants, maintenance personnel, fuellers, ticket agents and others? It is possible that sectoral groups could convert the broad national standards into a patchwork, so that ultimately there are no national standards left.
Arthurs also calls for exceptions based on workplace agreements (which can be problematic both in unionized and non-unionized environments) and based on individual requests. Legislated minimum standards need to provide floor for all workers. If exceptions not strictly limited, there is a risk that we will be left with no standards at all.
It is hard to imagine that the federal government will be proceeding with any of Arthurs’ recommendations before the next election (likely in Spring 2007), but it is important for unions and other interested groups to start to promote the positive aspects of the Report (and highlight the potential risks), if there is going to be positive change anytime in the future. I encourage you to look at the Report (or at least the 10-page Executive Summary). I would appreciate receiving any comments you may have.
