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OPSEU Submission re Ministry of Labour, Training and Skills Development Consultation on Termination and Severance Obligation

Introduction

We respectfully present the Ontario Public Service Employees Union’s (OPSEU) submission to the Ministry of Labour, Training and Skills Development on termination and severance obligations under the Employment Standards Act, 2000 (ESA).

This submission was created in a response to the Ministry’s consultation regarding the proposed provisions to the Act. The contents of this submission have been guided by ongoing conversations with OPSEU’s employers and members during the COVID-19 crisis, and an analysis of 600 of the union’s collective agreements.

Following the Ministry’s receipt of this submission, OPSEU will continue to pursue updates on the provincial government’s discussions as it pertains to the ESA and will work to ensure that its front line members’ concerns are given consideration in the government’s final decision.

General Comments

  • OPSEU firmly believes the government should maintain the current provisions regarding termination and severance in the Employment Standards Act (ESA).
  • Reducing employer obligations with respect to the termination and severance provisions of the Employment Standards Act is unnecessary. The current provisions of the Employment Standards Act provide employers with necessary flexibility.
  • Increased flexibility or the elimination of termination and severance obligations for employers will undoubtedly lead to increased unemployment because the deterrent effect will be eliminated. Further growth in the unemployment rate will undermine the province’s economic recovery.

Responses to Discussion Questions

1. What has been the impact of the COVID-19 pandemic on your workforce or members and what actions, if any, have been taken to date to mitigate these impacts?

  • The pandemic has resulted in a myriad of impacts on OPSEU members. This includes but is not limited to temporary and permanent layoffs, redeployments to alternative positions, modifications to work locations and assignments and reductions in hours.
  • OPSEU has worked with employers to mitigate the effects of these impacts on our members. This includes working with Employers to facilitate redeployments and negotiating furlough agreements to prevent unnecessary layoffs and reductions in hours. OPSEU has also worked directly with government to ensure our member’s rights are protected.
  • However, many of our members work in sectors that have been subject to Emergency Management and Civil Protections Act (EMCPA) orders that have undermined provisions of their collective agreements, and in some cases limited the willingness of employers to discuss measures that could be implemented to mitigate the severity of these impacts.

2. If you are an employer, are you currently facing termination and severance obligations as a result of the COVID-19 pandemic? What impact would these obligations have on your business?

  • OPSEU has a staff of over 300 people. While we are operating with a reduced revenue, similar to other employers in the province, we are doing all that we can to preserve employees’ jobs.
  • The union’s President, First Vice-President/Treasurer, and senior leadership team have taken a 20% paycut during the pandemic. Should we need to contemplate layoffs, we are committed to working with both of our internal staff unions to explore all possible avenues to protect the jobs of our employees.

3. If you are a union, have your members faced temporary layoffs or terminations as a result of the COVID-19 pandemic? Are there any unique impacts or outcomes in unionized workplaces?

  • Yes. Approximately 3000 OPSEU members have been subject to both temporary and permanent layoffs as a result of the COVID-19 pandemic.
  • Employees in unionized workplaces have representation from their bargaining agents. In OPSEU’s experience, our intervention has limited the adverse impacts on our members through our ability to negotiate alternatives to layoffs and terminations.
  • On the other hand, where EMCPA orders have been implemented, the Union’s experience is that proactive and mutual problem solving has halted and this has meant that some management decisions have been made without the vital contribution of the voice of front line staff.
  • The majority of OPSEU’s members are employed in workplaces that are funded by provincial and municipal governments. OPSEU has taken a firm position that layoffs and terminations are unnecessary and unjust in workplaces where funding/revenues have not been reduced as a result of the pandemic.

4. What approaches could government consider to address termination and severance obligations and maintain employment relationships in response to the COVID-19 pandemic?

  • OPSEU is opposed to changes to the termination and severance provisions of the Employment Standards Act. We firmly believe that the current provisions of the Employment Standards Act provide the necessary flexibility for employers.
  • For example, the current provisions under section 56(2) provide employers with flexibility to extend temporary layoffs:
    • While S. 56(2)(a) states that a temporary lay-off can be no more than 13 weeks in a period of 20 consecutive weeks, section 56(2)(b) allows for a longer temporary lay-off of up to 35 weeks in a 52-week period if certain conditions are met. These conditions include situations where the employee continues to receive substantial payments from the employer or where the employee receives supplementary unemployment benefits, amongst others.
    • For unionized employees, agreements between the employer and the union that provide for a longer timeline are permitted (section 56(2)(c)).
  • There are many federal programs that are providing significant support to businesses, including the Canadian Emergency Wage Subsidy (CEWS), the Canada Emergency Commercial Rent Assistance program, and various forms of credit and loans. However, there is evidence that some businesses have not availed themselves of these programs and should be encouraged to do so where applicable before considering layoffs and termination.
  • The recently created Declared Emergency Leave provisions of the ESA provide additional flexibility to employers which further reduces the necessity of layoffs and terminations. If employees are unable to work due to reasons related to COVID-19, they are able to take job-protected unpaid leave. While employers should endeavour to take advantage of federal supports and continue paying employees where possible, the job-protected unpaid leave provisions allow workers and employers to maintain an employment relationship in cases where that is not possible, while maintaining employee benefits where applicable.
  • Workers who are on unpaid leave under this provision are also able to access the Canada Emergency Response Benefit (CERB) for up to 16 weeks.
  • While the economic situation moving forward is rife with unpredictability, it must be emphasized that maintaining the employment relationship between employers and workers is paramount for when the economy begins to reopen, as employers will be able to quickly restart operations.

5. On April 27, 2020, the Ontario government announced its Framework for Reopening Our Province which includes a stage-by-stage approach to reopening the economy to ensure there are appropriate measures in place so workplaces can operate safely. Does the re-opening of the economy change the risk of terminations faced by employers and employees?

  • OPSEU is not positioned to provide definitive comment on this question. We do expect that the reopening of the economy will generally have a positive impact on our members and further reduce the risk of terminations and layoffs. However, we do have concern that some employers will utilize the impacts of the pandemic to restructure their operations in a manner that will further eliminate good jobs. We do not support measures that would make that easier for employers.
  • CERB and EI are stop-gap measures that provide temporary assistance for individuals that have lost their employment. They do no stimulate economic recovery. The provincial government needs to introduce additional financial assistance programs for both businesses and affected workers prior to considering changes to employments standards.
  • Employers should also be required to apply for the Canada Emergency Wage Subsidy and other available programs/benefits.
  • Employers should be required to utilize mitigation measures prior to terminating or laying off employees. This would include redeployments and furloughs. Where a collective agreement is in place, Employers should be required to work with the Union to implement mitigation methods.

Impact on OPSEU Members:

In an effort to determine the potential impact of modifications to the termination and severance provisions of the ESA on OPSEU’s members, the Research and Negotiations Units conducted a review of OPSEU’s 600 collective agreements. Below is our analysis on the findings of this review:

General Considerations:

  • Any modifications to the ESA’s provisions regarding termination and severance will certainly have an impact on OPSEU’s 165,000 members. However, the impact will be more severe for some depending on the provisions in a particular collective agreement.
  • In particular, a majority of OPSEU agreements in the Broader Public Service (BPS) do not have provisions that provide for a greater right or entitlement than the ESA with respect to termination pay and severance. As such, if these provisions of the ESA are modified, and the pandemic recovery results in terminations and layoffs, there could be a significant impact on OPSEU members.
  • From a demographic perspective, the review highlighted that female members and precarious workers will be most impacted by any changes to the ESA’s termination and severance provisions.
  • A recent OPSEU research report showed that between 60% – 87% of our members in the Broader Public Service were women. Based on these findings, lowering the standards set out in the Employment Standards Act will affect female OPSEU members greater than male members.

Notice of Layoff

  • Changes to the layoff notice period would have limited impact on OPSEU members. This is because the majority of our collective agreements require a greater notice period than is provided in the ESA and this entitlement is enshrined in the language of the collective agreement.
  • Notwithstanding, a slight majority of our collective agreements in Sector 2 (Developmental Services) and Sector 4 (Children’s Aid Societies) default to the ESA with respect notice of layoff.
  • In the case of developmental services, 70% of our members in this sector are employed in a part-time or casual capacity. A reduction to layoff notice period requirements would further exacerbate the precarious nature of this work.

Termination Pay / Pay in Lieu of Notice of Layoff

  • Changes to the provisions of the ESA for termination pay / pay in lieu of notice will have a significant impact on OPSEU members. The majority of our collective agreements are silent on the issue of termination pay / pay in lieu of notice or simply enshrine the language of the ESA.
  • To be more specific, the majority of the collective agreements in the Ambulance sector, Developmental Services sector, Boards of Education sector, Children’s Aid Societies sector, Community Agencies sector, Broader Public Service (BPS) Corrections sector, Long-Term Care sector, Universities sector, Hospital Support sector, Municipalities sector, Children’s Treatment sector, Municipal Property Assessment Corporation (MPAC) sector, Community Health Care Professionals sector, Mental Health and Addictions sector, Canadian Blood Services (CBS) sector and Liquor Board Employees Division (LBED) would be impacted by changes to the termination pay and pay in lieu of notice requirements of the ESA.
  • It should be noted for the above listed impacted sectors only four (Children’s Aid Societies sector, Children’s Treatment sector, Municipal Property Assessment Corporation (MPAC) sector and Community Health Care Professionals (CHCP)) have a majority of the members employed in a full-time capacity.

Severance

  • The impact of changes to the severance requirements of the ESA for OPSEU’s members would be significant, although not as significant what was found for termination pay.
  • The sectors with greatest impact are Developmental Services, Boards of Education, Children’s Aid Societies, Community Agencies, Broader Public Service (BPS) Corrections, Long-Term Care, Hospital Professionals, Hospital Support, Mental Health and Addictions, Canadian Blood Services (CBS) and Liquor Board Employees Division.
  • We note that impact is again primarily focused on part-time members as only Children’s Aid Societies and Hospital Professionals sectors have the majority of members employed in a full-time capacity.

Conclusion

OPSEU is opposed to changes to the termination and severance provisions of the Employment Standards Act (ESA). We believe that to make such provisions would be detrimental to workers, in particular Ontario’s female workforce and those in precarious employment, when current provisions of the Act provide employers with sufficient flexibility. While OPSEU understands the unpredictable nature of Ontario’s economic situation moving forward as a result of the COVID-19 pandemic, maintaining the employment relationship between employers and workers is of utmost importance for reopening and restoring the economy. The changes proposed to the termination and severance provisions of the Employment Standards Act (ESA) would not support Ontario’s economic recovery and would not be in the best interests of Ontario’s workers.