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Temporary migrant work is a central feature of labour markets in many host states, and an increasing cause of concern for its potential impacts on workers’ rights and protections. In Canada, as elsewhere, policymakers utilise it as a regulatory device to lower labour standards. In this context, workers labouring transnationally are turning to unions for assistance. Yet they are confronting obstacles to securing access to their labour rights through representation. This article analyses one example involving a group of temporary migrant agricultural workers engaged seasonally on a British Columbian (BC) farm under Canada’s Seasonal Agricultural Worker Program (SAWP) seeking union representation. It considers the question, confronting courts and tribunals in host states across the OECD, of meaningful access to collective bargaining for temporary migrant workers. Focussing on how the BC Labour Relations Board determines an appropriate bargaining unit, the inquiry demonstrates that temporary migrant workers are ill-served by mechanisms aimed at promoting collective bargaining. Although the union involved in the case secured a certification, the outcome was tenuous unionisation. The resulting collective agreement contained provisions augmenting workers’ job security by facilitating their circular movement between the sending and host state. However, the structure of the SAWP, which reinforces workers’ deportability, together with the limits of the prevailing regime of collective bargaining in BC, modelled on the US Wagner Act, contributed to a certification that was weakly institutionalised and underscored labour law’s subsidiarity to legal frameworks governing work across borders.

In 2009, Ontario adopted the Employment Standards Amendment Act (Temporary Help Agencies) partly in response to public concern over temporary agency workers' lack of protection. Analyzing consequent changes to the Employment Standards Act in historical and international context, this article argues that while the Act now contains a section extending protections to temporary agency workers, several of its features take the province back to the future: specifically, its focus on temporary help agencies to the neglect of an overlapping group of private employment agencies and its exclusion of a key occupational group resemble unprincipled omissions and exclusions permitted previously. Limits on workers' politico-legal freedoms sanctioned under the new section also mirror precarious labour market conditions in early 20th century Ontario -- conditions prompting state intervention in the first place.

Employment standards (ES) are legislated standards that set minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. In Canada, the majority of workers rely on ES for basic regulatory protection; however, a significant ‘enforcement gap’ exists. In the province of Ontario, this enforcement gap has been exacerbated in recent years due to the deregulation of ES through inadequate funding, workplace restructuring, legislative reforms that place greater emphasis on individualized complaints processes and voluntary compliance, and a formal separation of unions from ES enforcement. The implications of these developments are that, increasingly, those in precarious jobs, many of whom lack union representation, are left with insufficient regulatory protection from employer non-compliance, further heightening their insecurity. Taking the province of Ontario as our focus, in this article we critically examine alternative proposals for ES enforcement, placing our attention on those that enhance the involvement of unions in addressing ES violations. Through this analysis, we suggest that augmenting unions’ supportive roles in ES enforcement holds the potential to enhance unions’ regulatory function and offers a possible means to support the ongoing efforts of other workers’ organizations to improve employer compliance with ES.

For many workers in Ontario, the Employment Standards Act (ESA) provides the only formal measures of workplace protection. The complaints-based monitoring system utilized by the Ontario Ministry of Labour, however, makes it difficult to assess the overall prevalence of employment standards (ES) compliance in the labour force. In addition to outright ESA violations, prevailing research highlights the significance of the erosion, evasion, and outright abandonment of ES for workers’ access to protection through practices such as the misclassification of workers and types of work. In this article, we report on efforts to develop a telephone-survey questionnaire that measures the overall prevalence of ES violations, as well as evasion and erosion in low-wage jobs in Ontario, without requiring respondents to have any pre-existing legal knowledge. Key methodological challenges included developing strategies for identifying ‘misclassified’ independent contractors, establishing measures for determining whether workers were exempt from the ESA, and translating the regulatory nuances embedded in the legislation into easyto- answer questions. The result is a survey questionnaire unique in the Canadian context. Our questionnaire reflects the concerns of both academic researchers and workers’ rights activists. Pilot survey results show that Ontario workers do not necessarily distinguish between ES violations and other workplace grievances and complaints. With careful questionnaire design, it is nevertheless possible to measure the prevalence of ES violations, evasion and erosion. In order to track the effects of ES policies, particularly those on enforcement, we conclude by calling for the establishment of baseline measures and standardized reporting tools.

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

In October 2010, the provincial government of Ontario, Canada enacted the Open for Business Act (OBA). A central component of the OBA is its provisions aiming to streamline the enforcement of Ontario’s Employment Standards Act (ESA). The OBA’s changes to the ESA are an attempt to manage a crisis of employment standards (ES) enforcement, arising from decades of ineffective regulation, by entrenching an individualised enforcement model. The Act aims to streamline enforcement by screening people assumed to be lacking definitive proof of violations out of the complaints process. The OBA therefore produces a new category of ‘illegitimate claimants’ and attributes administrative backlogs to these people. Instead of improving the protection of workers, the OBA embeds new racialised and gendered modes of exclusion in the ES enforcement process.

This article critically assesses the compliance model of employment standards enforcement through a study of monetary employment standards violations in Ontario, Canada. The findings suggest that, in contexts where changes to the organisation of work deepen insecurity for employees, models of enforcement that emphasise compliance over deterrence are unlikely to effectively prevent or remedy employment standards violations.

Employment Standards (es) legislation sets minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. es legislation is designed to provide minimum workplace protections, particularly for those with little bargaining power in the labour market. In practice, however, es legislation includes ways in which legislated standards may be avoided, including through exemptions that exclude specified employee groups, fully or partially, from legislative coverage. With a focus on the Ontario Employment Standards Act, this article develops a case study of exemptions to the overtime pay provision of the act and regulations and examines in closer detail three specific areas in which exemptions apply. Through this study of the overtime pay exemption, the system of exemptions is presented as a contradictory approach to the regulation of es that, in effect, reduces es coverage, contributes to the avoidance of key legislated standards, and undermines the goal of providing protection for workers in precarious jobs.