By Doug Nesbitt
Three notable labour policy changes were made in the first week of April, 2022:
April 4: The federal government announced a significant loosening of Temporary Foreign Worker restrictions
April 6: British Columbia’s government announced Bill 10 to deliver “card check” or single-step union certification
April 7: Ontario’s government Bill 88 became law, imposing sub-minimum wage on gig workers
With one advance and two reversals, the balance is against workers.
Let’s examine these laws one by one. We’ll start with Bill 88 and go backwards.
Bill 88: Ontario Uber Alles
Ontario’s Bill 88 directly serves Uber’s race-to-the-bottom business model. Premier Doug Ford was in the driver’s seat with the pedal is down. Uber was in his ear from the luxury club seats.
The so-called “Working for Workers Act” makes it legal for app-based employers to pay below the minimum wage. Gig workers are carved out of employment standards (ESA) and labour relations (LRA) and remain misclassified as “independent contractors”.
This misclassification means gig workers have no access to Employment Insurance and Ontario’s workers’ comp (WSIB). This also means gig workers are not recognized as having a right to unionize and bargain collectively.
The sub-minimum wage pay scheme in Bill 88 is also a big danger for all workers. The legislation professes to establish a $15/hour minimum wage, but it only pays gig workers while they’re “on assignment” – but the legislation doesn’t define what “on assignment” means.
Gig workers argue that employers will use this loophole to avoid paying gig workers who are in transit between gigs, or simply waiting for a gig. It’s a model prone to abuse, notably wage theft. We can expect employers to define “on assignment” in their favour. It will be up to gig workers to organize resistance on this front.
It’s not hard to see this model adapted to other sectors, such as home care and other transportation jobs.
It’s notable that Bill 88 avoids the question of misclassification because the Ontario Labour Relations Board set a precedent in early 2020 by ruling that Foodora couriers in Toronto were dependent contractors. This ruling made Foodora gig workers eligible to form a union, get a foot in the door for Employment Insurance, and access WSIB.
Bill 88’s avoidance of the misclassification problem is proof of Ford’s subservience to Uber. Bill 88 is in fact a product of Uber’s recent lobbying and schmooze offensive. Uber sought out governments and politicians to introduce special laws exempting gig workers from normal employment standards, and protect their race-to-the-bottom business model. The “Open for Business” Ontario PC Party was happy to oblige.
Card-check returns to British Columbia
On April 6, British Columbia’s Labour Minister Harry Bains announced a significant improvement in workers’ rights by allowing automatic card-check certification, or what BC unions are now calling “single-step” certification. The improvements are contained in Bill 10, the “Labour Relations Code Amendment Act”.
“Single-step” certification means workers can form legally-recognized unions to bargain collective agreements if a majority of workers become union members. Simple and democratic, right?
This one-step unionization does away with the current bureaucratic 2-step process. In the 2-step process, workers must first sign membership cards, then file them with the Labour Relations Board, and then vote on union certification within 5 business days (assuming the employer doesn’t challenge the validity of the card signings, thus delaying the vote).
The five days between filing cards and voting is when the boss wages their fight to intimidate, bribe and attack the union and union supporters. This is often called “The Boss Fight” by union organizers.
Unsurprisingly, business lobby groups are strong supporters of this bureaucratic government-controlled 2-step process. They’ve pushed every province in this direction and won in most cases.
The 2-step is not done away with entirely. Unions can still file for a union certification vote if they have over 45 percent of workers signed, but haven’t yet reached 55 percent.
To achieve “single-step” certification, unions must sign-up 55 percent of a workforce.
It is up to BC workers and their unions to press BC’s MLAs to pass “single-step” card-check certification as soon as possible. Backsliding by the politicians cannot be allowed or tolerated by labour on this matter.
Temporary Foreign Workers
A substantial loosening of Temporary Foreign Worker (TFW) limits was announced by the federal government on April 4. Some changes went into effect immediately. Other changes will happen on April 30. All measures serve to increase and expand the number of TFWs in Canada to fill reported labour shortages.
Here are the details with some explanations below:
- Caps placed on TFW employment levels in seasonal industries, such as fishing and seafood processing, have been repealed, and the maximum duration of these positions extended from 180 to 270 days per year.
- In seven sectors with “demonstrated labour shortages”, including Accommodation and Food Services, the workplace cap for TFWs has been raised to 30 percent. All other sectors will have the low-wage workplace TFW cap doubled from 10 to 20 percent.
- The announcement also repeals the ban on TFWs working in Accommodation, Food Services and Retail Trade in regions with more than 6 percent unemployment.
- Labour Market Impact Assessments will also be extended to 18 months – a doubling from 9 months, and a tripling from the pre-pandemic 6 months.
What is an LMIA? To hire a Temporary Foreign Worker, employers are usually required to request an LMIA report. The LMIA determines whether TFWs can be hired in the employer’s particular labour market.
LMIAs are supposed to protect job opportunities for the local unemployed. However, positive LMIAs will now be valid for 18 months – which is quite a long time given the current instability of labour market conditions.
These TFWP details might seem confusing, but there are some common features in these changes: Employer access to Temporary Foreign Workers has been greatly expanded and extended, especially in low-wage non-union sectors.
A curious labour shortage
Is there a labour shortage which justifies the loosening of TFW limits in these sectors?
Rankandfile.ca spoke with some scholars studying the question, and it is not at all clear that the “labour shortage” exists in the way business lobbyists say it does.
Some preliminary findings, which have yet to be peer-reviewed, show that employer response to rates to job applications in low-wage sectors is about 15 percent.
Researchers also told Rankandfile.ca they’re still trying to figure out why this response rate is so low. There are many reasons, say researchers. Some are quite ugly and sleazy, like racism and sexism, while others seem more credible and legitimate.
That said, there appears strong evidence to suggest employers are, in general, not reciprocating when people apply for low-wage jobs. This undermines the claim that there is a labour shortage requiring such dramatic loosening of TFW regulations.
Workers of the world
Bill 88 and the ramping up of TFW exploitation are reversals for workers and unions, but neither prevents union organizing.
If Uber and the Ford government think Bill 88 settles the gig worker question, they’re sorely wrong. Gig workers continue to organize. Gig Workers United and UFCW have established union beachheads in the sector. The Foodora fight reminds us that labour laws are malleable and workers can change them through the exercise of union power.
As for TFWs working in hotels, food services, retail and seafood processing, unions in these sectors are already accustomed to these realities. However, some of these sectors are notoriously non-union, notably food services.
South of the border, the emerging union breakthrough at Starbucks has established a new set of lessons on organizing fast food and retail chains, such as Canada’s many poverty-wage Tim Hortons franchises.
In addition to workplace organizing, the entire TFWP needs to be challenged for its abusive, corrupt, and dehumanizing effects. It’s a system so rotten, it has facilitated human trafficking and slavery in Canada. TFWs and farm workers in the Seasonal Agricultural Workers Program still have no pathway to permanent residency or citizens.
The TFWP continues to be the policy play-thing of the business class, elite politicians, and organized crime. Labour must fight for a new system based on the principle of “good enough to work, good enough to stay.”
Building on Bill 10
With Bill 10, significant victories are possible in British Columbia, especially where the groundwork is already being laid by unions with active organizing projects. For example, SEIU Local 2 is well-situated to organize even more cleaners in the lower mainland. There are also four Amazon warehouses open in BC with three more coming online in the next couple years.
However, Bill 10 will not be create unions out of thin air. Nor will it create more democratic and militant unions. It is up to workers to seize the opportunity while they can. Union members have an opportunity to press their unions for more resources to go into union organizing, and develop organizing committees within their labour councils.
The five-year delay on delivering single-step unionization is also worth reflecting upon. It follows the BC NDP’s pattern of delays on labour reforms. A 2017 promise of a $15 minimum wage took four years to arrive, and labour’s demand for ten paid sick days were halved to five when legislation was passed 1.5 years into the pandemic. It is also the same government that allowed Uber into the lucrative Vancouver market.
Labour must assume that Bill 10 is not long for this world and will be repealed by a subsequent government. There will be immense pressure by the business class on BC Premier John Horgan to limit labour reforms to Bill 10.
In this period of high inflation, rising interest rates, monopoly price gouging, and market uncertainty, businesses are looking to hold down labour costs to keep open lucrative profit streams.
In a crisis of this scale, going on the defensive would be a major mistake for organized labour, especially when inflation is rising and wages in all workplaces is becoming a source of tension and anger with employers, private and public.
With this backward shuffle in labour laws, workplace organizing remains the critical element in labour’s response. We need unions that defy unjust laws, organize workers regardless of where they come from, and seize opportunities that arise.