 I'm pleased to be able to welcome you to and to introduce the seven in this Kristine's lecture in labor once more. And I think it's appropriate for me to say a little bit about the namesake in this Kristine QC. Some of you will know this information. Professor Kristine was born and raised in Nova Scotia. He began his academic career at Queen's University in 1964. And when he was there he completed the first of his works, The Liability of Strikers and the Law of Torts. Happy to say that in 1971 he returned to Nova Scotia and took a post here at Dalhousie. And here he stayed until 2003 when he went hard time and then stayed on until 2007. And in that period of time he served as dean from 85 to 91. Challenges of being are sometimes considerable, sometimes not, but he was here through the fire. And indeed he goes from the year of a very substantial fire. He comes out of the other end, good on him, and he really did provide a lot of leadership at that time. His continuing trusts were very wide. Labor and employment law, of course. But others, poverty law, municipal law, administrative law, contract, commercial law and professional ethics. He also had a leading role in law reform. He was engaged in the Woods Task Force on labor relations in Canada. He drafted the Nova Scotia Trade Union Act in 1973 with a former dean Reed. And also the Nova Scotia Labor Standards Code in 1972. And he changed the way employment law was taught in law school, primarily I think through the influential texts of employment law in Canada. He served in the 1970s as a member of the Canadian Anti-Inflation Peel Tribunal. He was counsel to the Nova Scotia Labor Standards Tribunal and was chair of the Nova Scotia Labor Relations Board. In addition, he was deputy minister, quite a CV, in the Nova Scotia Department of Labor and served as a member and chair of the Nova Scotia Worker's Compensation Board. He was also a part-time member of the Federal Public Service Staff Relations Board and of the Canadian Human Rights Commission Tribunal. His career was certainly one to admire. He taught and mentor, he inspired generations of labor law students across Canada. And his contributions to academic labor law, to public policy formation and administration, to labor arbitration and adjudication and certain to legal education are very broad and enduring. Overall, quite a role model. The Innis Christi symposium in labor and employment is meant to honor his life and his work. I want to thank Professor Bruce Archibald for putting together this year's laterates symposium. And I would ask you now to join us after the lecture for reception in the atrium. Somebody will point you in the right direction. We also hope to see everyone tomorrow at the panel in sessions. I'm now going to ask Professor Archibald to do some introductions including other speakers. Thank you and enjoy. So thank you, Camille. I'm here, I think, because I'm a former student of Minister Christi. Innis arrived at the law school really the same year as I did, as I recall. But he didn't teach me contract law. I just heard about Professor Christi until I got into his labor law class and then did the employment law class. So I got the full blast of Innis in the second and third years, which was wonderful. And then, of course, I had these experiences as a young squash player. And Innis was an older and more formidable squash player than I was trying to hold the T against Innis Christi was impossible. So I regularly had good lessons from Innis over a certain period of time until I gave up. I sought out other opponents who I felt were comfortable with. But it was a great pleasure of mine to be under Innis' deanship. I know it's the back of the year of the fire, but I've heard about it already. Anyway, I'd like to acknowledge that Charles Christi is here. And we'd like to see you again, Charles, it's wonderful. And Michael, Innis' son, and co-author of some of the things that you assist in. So it's great to have the family here to be a part of this. And it's great to see so many labor lawyers and students of labor law. One of the things that I wanted to mention at the outset is that this year, I'm delighted to say a group of labor and employment enthusiasts founded the Innis Christi Workplace Law Society. So we have a student society that is dedicated to advancing the interests in labor and employment law, which is great. And there are several members of that society here. If you want, just sort of stand up if you're a member of the Innis Society. If you don't know where the atrium is or the bathrooms or whatever, these people will help you. I'm sure. So it's great that you've taken on this task. It's a delight that you're doing this. So without further ado, let me introduce our speakers. In alphabetical order, can I do that? No, Mitchell. No, look at that. Jerry is the person, he's the person. Oh, he's the person. No, wait, look. So I plan to, I would charge at this party. So Michael Mitchell, about many of you who practice labor law are very familiar with the fact that he's a co-author of the Ontario Labor Relations Board, one on practice text, which has been involved, so as well as I can remember it seems, and a leading text in the field. He was a founding partner and leading partner, at Sac Gold Blatt Mitchell, which many of you will be familiar with as well. He's practiced in all sorts of ways, but since 2014 he has become a full-time arbitrator and mediator, and he has degrees from the University of Toronto Law School, and both political science and undergraduate, even though he comes from Winnipeg, I learned, he got sucked into the University of Toronto and has not left since or something, but at any rate we're honored to have you with us. It's a wonderful thing. And for reasons which you will probably all know, it was important to have Michael Mitchell here with the Honourable John Murray. John was Judge of the Superior Court of Ontario in the Central West Region, of which you were no more geographical details than I had, obviously. You hoped it's built. There were you all, what did I say? But he was the founding partner of Genese or Genet? Genet. How's it? Okay. There's Genet Murray. Obviously I didn't know about that, but I am familiar with the much regretted, he didn't like the law firm, he didn't like it, and I have a kind of close connection with why he, which I'll explain to you, John, at any rate, Mr. Murray has worked in a variety of areas, not really labor arbitration until recently, but in a whole range of public and private law fields. He's a fellow of the American College of Lawyers. He's chaired all sorts of organizations. He too is a graduate of the University of Toronto who will be a history, and his history professor passed him on to War Alaskan as the dean of the law school, and he went to law school instead of becoming a history major, he tells me, and the two of them negotiated on different sides in collective bargaining at the University of Toronto. This is unbelievable. But the reason why they're so important to me here as you're all aware is that they are special advisors to the Ontario Government's project on changing workplaces review. This review has gone on for more than two years. This interim volume was produced and became the focus for input from various stakeholders in the labor relations system in Ontario. They tell me that they're just about to provide the Ontario Government with the final version of the report. And I think that the issues that they have been dealing with are central to many of the problems that we're facing in Western democracies. And so I was really keen to have them here to have a large conversation about how these issues are playing out in Canada and how they may play out in the Atlantic region. So we have, for the first time, a tag team doing the Christie Lecture and we're most honored to welcome you to the university and assure the school of law. So John, everyone. Thank you. I first wanted to say what a treat it is to be here at the Christie Lecture. I've known lots of his students and I knew him as an arbitrator. And a huge number of really good things said about him and his students, too, a person are over the top that they have had an opportunity to study. But there are some upper Canadian mythologies that go along with Christie that I think aren't consistent with just being the world's most wonderful human. He was born in Amherst, Nova Scotia, I understand, and his family was in the luggage business. Christie luggage is that there? The reason why that's important is because he carried baggage with him through his whole career. And the upper Canadian legend is that, in fact, prior to the burning down of the law school, he had been trying to get funding for a new law school and that this lightning bolt stuff is just a bolt of whole cloth. It's nothing else. So in Ontario, we think there's a nexus between him becoming dean and the fire, which down here for obvious reasons is attributed to a lightning strike. But in upper Canada, we think maybe the nexus is different. He was seen standing in the ruins talking about funding priorities with a smile on his face shortly after the fire. Mitchell and I have been friends and adversaries for years and we solve lots of stuff together, usually by making me compromise on my fundamental management rights or those of my clients. I'm going to start off by talking about the informing constitutional principles. You will all know these and I won't spend lots of time on them. But the important thing about the Constitution is I suppose that it's supposed to inform government and if you look at what the Supreme Court of Canada has said, they have said about freedom of association, not only have they defined it in a way, but they have also said that government has an obligation to reduce access to association, to remove barriers. So that means when Mitchell and I have a task to do, I think we have some obligation to look at the existing regime through the lens of the Supreme Court of Canada and ask, among other things, are there barriers now to collective bargaining and should those barriers be modified or removed? They're obvious ones. Some people are excluded from the Labor Relations Act. I don't see exclusions in the Supreme Court of Canada decisions. I don't see them saying, you know, farmers, agricultural workers, no matter what their status, should have no access. So we have to look at these things. Let's just go to the fundamentals of what the Charter has said and I'm sorry if I'm being trite for those of you who know this so well. And if you see lots of pages here, it's simply because I'm 122 years old and there is one or two words on each page. Let's start with health services. Why? Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy protect the right to meaningful collective bargaining within the scope of Section 2d, freedom of association. So that's a fairly broad and inclusive statement. And why is that the case? Well, we think it's the case, according to the court, because it is only through collective action, through association that employees have the ability to pursue their goals and at its core, Section 2d is there to protect the individual from state enforced isolation in the pursuit of his or her ends. So clearly, the guarantee of freedom of association is there to protect individuals against more powerful entities. That is the purpose of 2d, at least when it's applied to this kind of association. And the court has had no ambiguity about that. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them to work to write imbalances in society. It protects marginalized groups and makes possible a more equal society. So the purpose of 2d, that is the association and also protecting them from being overwhelmed against more forceful opponents, is at the core of what freedom of association means. Because it's probably trite to all of those in this room, individuals mostly have no bargaining power on their own. In the Saskatchewan Federation of Labor case, the question came up as to whether the right to associate carries with it a constitutional right to strike. And the answer to that, harking back to Chief Justice Dixon, one of our great Chief Justices in this country, the answer is yes, the right to meaningful process of collective bargaining includes the exercise of power by withdrawal of services. That's a fundamental aspect of freedom of association. So this isn't a bunch of trade unionists sitting around figuring out what they'd like to draft in the Constitution. This is the Supreme Court of Canada saying what informs the rights. The right to strike is essential to realizing the values and objectives. So management can shut down, why can't workers shut down management from time to time? So there's a balancing act. To the extent that we have essential services, the court was clear on that too. If you have an essential service that is properly defined, and that usually has to do with life protection of life, safety, et cetera, but some very real essential service properly defined, the government can without violating the Charter take away the right to strike, but they then must replace it with a final and binding dispute resolution mechanism. It can't just leave people on strike without that. Sorry, you can't take away their right to strike without giving them something to replace collective action and force. So there is a context in which government has to respond. Now, you might ask yourself, what kind of a world do we live in where the Supreme Court of Canada is talking about this and employers and corporations and corporate lawyers wherever you are out there aren't talking about constitutional rights? We haven't seen such a drift to the right here since the late 19th century. United States of America is creating oligarchies faster than they are creating trade unions. And the reality is that there is not, apart from us academics, other students, people interested in the subject area, this isn't a message that's being received, that's being very effective or workable or meaningful. So we have, government arguably has an obligation to look and see whether this is something that can in fact be opened up a little bit. I don't know. I can't tell you what our recommendations are going to be, but the mandate from the Supreme Court of Canada to anybody who's looking at law change is clear. Get rid of barriers that access collective action in the workplace. The one question that the Supreme Court of Canada didn't answer in the Saskatchewan case, what about the right to strike if you're outside collective bargaining? Well, they very carefully said nothing about that. We aren't dealing with that question, we don't understand except that if only 14% in Ontario of private sector employees engaged in the, covered by collective bargaining agreements represented by trade unions, what does the right to strike mean for the other 80%, 86% of the population in the private sector? Something the United States of America has answered. They say you do have the right to collective action in the workplace outside of collective bargaining. You saw that in the strike for $15 an hour. People went to work. The SEIU gave them letters to hand to their employers saying they were exercising their rights to collective action that was work related. So there is a real question about how meaningful that, in fact, is going to be if we're in an era of declining unions. Just to let you know about change, you know this and I read the New York Times, I probably shouldn't say that because it may disclose something about my moronic kind of liberalism. I enjoy reading the editorials, particularly those that savaged the current chief executive officer from time to time, notwithstanding that in fact he's probably a very good man. This is recently from the New York Times. Real wages for most U.S. workers have increased little, if at all, since the 1970s. Wages for the top 1% have risen 165%, and for the top 0.1% have risen 362%. Similar trends are present in Canada, but of course we don't have the same magnitude of discrepancy, but we have the same kind of self-dealings. Just look at what people pay themselves for sitting on boards, 350, 400, 500,000 a year in big corporations, all of whom continue to want to have minimal standards for the people who work for them in their enterprises, or a lot of them do. So what is happening to the trade union movement? It's down, notwithstanding the robust interpretation of freedom of association by the Supreme Court of Canada, maybe Paul Weiler was right. Trade unions resemble an elegant tombstone for a dying institution, or labor law does. So we don't know. Has labor law been rendered nougatry or inapt by contemporary management strategies? I don't know. Many proponents of labor law say, look it's time to bail on it. It's an old-fashioned concept that was a product that didn't interact, it doesn't work. And the result is we have lost a core equalizing institution in politics, that's called the trade union movement, and in the economy. I don't know whether we are going to ever look at regimes like they have in Europe, it seems to me, probably not the case where trade unions have a centralized involvement in many cases in decree systems that are able to promulgate applicable wage standards that are negotiated as part of major agreements with trade unions. I think we're a long way from that, but we haven't had that either as a history. And we have a system of decentralized trade unions. David Weill and others who talk about the Fishered Workplace, which is the fragmentation of corporations, the division of functions, the subcontracting, franchising as an example. Weill argues that Fishered corporate structures were adopted by employers in part to reduce labor costs, but also to diminish the potency of labor and employment law. And if you look around and see how much fragmentation there is, one of the biggest employers that I do arbitration work for in Ontario is Hydro One, and it has contracted out its customer call work, which I think is pretty much a core component of a business. I don't criticize them for that, it's just a fact. They happen to have a strong trade union that followed that contracting out, but not every trade union is in that position to do so, and of course it makes unionization itself more difficult. If there's more fragmentation, there are smaller bargaining units, franchising arguably a whole host of different employers. How do you organize that? And these are issues that are in the economy. If you, in fact, believe in freedom of association, which I think government has to, they don't have a choice, how do you respond, if at all, to some of these challenges? So we'll come to this, I'm about to stop, but the real question is for me and for Michael, if there is a void in collectivization and if the trade union movement is in fact diminishing in importance politically, economically, in terms of government policy, is there a different role for employment law? Is there a different law for basic standards than there was as we see the trade union movement losing its influence, except in the public sector? But the private sector is important for a huge number of people, men and women work in the private sector, they work in vulnerable jobs, et cetera. So I'm going to leave that question for Michael and for me, but it is the kind of constitutional context in which we are mandated to look at reform. I don't think we're in a position to say to the government, well, you know what, every employer in Ontario is drifting farther to the right. No one believes this stuff about freedom of association. We don't. It doesn't matter to us. We just know we don't want trade unions. So how does it all fit together? Because we're certainly not in an environment like the 40s where trade unions, while not maybe being embraced, were welcomed and worked with in large employer sectors in the country, this country and south of the border. So we face lots of challenges, but particularly one wonders, if you're a CEO of a big non-union company, does it really matter? Freedom of association? I don't know. It's funny. They sound like voices on their own up there in Ottawa, as much as we like them. Michael Mitchell. Thank you very much for the invitation. I had the pleasure of sitting with Ines Christie a couple of times, and he made a very strong and quick impression. He was a wonderful person. So it's really an honor to be able to make these remarks at a lecture that bears his name. I'm going to speak, oops, for a few minutes, about the subject, which is the title, which is Coping with the Fishered Workplace and Precarious Employment. And I'm going to talk in general terms about what, in doing this review, we kind of concluded what we meant by Precarious Employment and what we meant about vulnerable workers. And then I'm going to move into, having done that, I'm going to talk for a few minutes about, you know, for those of you who are really wonky labor law folks, I'm going to talk about some of the specific issues related to the Labor Relations Act, that Precarious Employment and the Fishered Workplace relate to. One of the things I have to say is we're, you know, on the verge of putting in our report. And it's kind of unfortunate that we're not in a position to talk about what our recommendations are in specific areas. Obviously, that belongs to the minister. And until the minister releases the report, he would probably be pretty nervous. His executive assistant for sure would have a complete fit. So if you think you know what we're going to recommend, please keep it to yourself. And we did promise we would not speak about the recommendations until after they became public. Now, when I started, when I was privileged to get this opportunity, which is really, you know, the opportunity to influence public policy that I would have been interested in doing most of my life and never had the opportunity to do. I had never heard of a Fishered Workplace and I could not have said to you what it was. And I did say to some of the folks that chatted with me that I didn't think Precarious was a word. But, you know, over the two years I've kind of learned. As John alluded to, in our law practices we were kind of cocooned in a particular labor law world, in a particular niche. And we weren't part of the real world where in the private sector 86% of workers don't, in Ontario, you know, aren't covered by collective agreements in the unionized world. And that has shrunk from about 19% 20 years ago. And heaven knows as jobs increase and unionization does not, that percentage can just be expected over the next number of years just to continue to shrink. So it certainly is something that is, you know, in decline. I wouldn't say that it dominated our discussions by any means. I think frankly what actually dominated the review was the plight of Precarious workers in non-unionized workplaces. Particularly because people were very much aware of the fact that the unionized world was a world in decline. So let me talk, start by talking about the word Precarious and ask the question, who are, you know, Precarious workers? And that's a trick question. There aren't any Precarious workers. After stumbling around in this field for about seven months, Leah Vosco at York University, who's a scholar in this area who's written books about Precariousness and whatever, explained to me and I've tried to remember ever since that, you know, Precariousness is about work and Vulnerable is about people. So there are Vulnerable workers who perform Precarious work and that is the kind of theoretical conceptual concept that we should be referring to. So what kind of work is it that's Precarious? And probably to John's frustration, I'll start off by saying what it's not. The words Precarious is commonly used to refer to contingent work and to temporary work and contract work and that kind of thing. Non-standard employment would be the technical term that it's commonly identified with. But we are not using it in that sense. Our sense of what Precarious work is transcends that definition and would extend to full-time employees, people working all the time, but who are working for low wages and who don't have a pension plan and so are a huge amount of uncertainty about their future and their retirement and their ability to stop working, who don't have benefits and therefore won't be able to pay for drugs and won't be able to go to the dentist and won't be able to do a lot of the other things that are needed to keep one's life together and therefore live in a state of very great uncertainty and in poverty and all of that justifies delivering those kind of folks within the context of Precarious work. And, you know, Leovosco is a scholar who's used the term Precariousness in its broad sense. We wouldn't necessarily adopt her view of what it is, but we certainly are not limiting it to kind of contingent and temporary contract work, although clearly that's an important element of what Precarious work is. So that's the first thing. The second thing is, well, who are vulnerable workers? And typically, when the word vulnerable workers are used, people are talking about the social condition in which people, you know, exist, their ethnicity, their sex, their race, their other attributes about them that they're immigrants or something of that kind. The entire, the Law Commission of Ontario study, which was a study, which I think was the kind of precursor or thing that prodded the Government of Ontario into appointing this commission, that Law Commission of Ontario study from a few years ago used the term vulnerable in that sense. We're not using it in that sense. We're not talking about the social condition of people. We're talking about everyone who is working in a situation where the work does not provide enough income. The work doesn't provide enough certainty. The work doesn't provide a trade union. The work doesn't provide benefit plans or pensions or any of those things. And so there is a vulnerability in that condition and that can extend to everybody who finds themselves in that situation, including, you know, the huge part of the male, white, you know, former middle class in Ontario that 10% of our population, working population lost their jobs in manufacturing in a very short period of time from 1997 through till 2015. So it's certainly they are vulnerable workers in the sense that we are using the term. People who couldn't find work in alternative circumstances. We didn't provide the retraining and all that kind of thing in the reeducation that was necessary. And so many of them found their ways into, you know, part-time jobs and low-end service jobs. Thankfully in Ontario, Ontario created a huge number of highly paid, good service industry jobs at the high end, but at the same time probably one-third or so of the jobs that were created in the service industry were that replaced manufacturing were really sort of low-end. So how many of these folks are there? Well, you know, this is a difficult thing to figure out. We don't actually keep statistics on the exact way in which we have defined precarious work and vulnerable workers who are performing it. But it's somewhere around, I think it's pretty safe to say that it's somewhere around 30% anyways of the Ontario work phase. I'm not going to say anything about Canada because I don't really know what the stats are in the rest of the country. But in Ontario it would probably be reasonable to put it at around 30%. 27% roughly are in non-standard employment. But, you know, I count in non-standard employment. I'm now a consultant. I'm part-time, I'm a contract and that kind of thing. I'm not precarious. And people like me aren't precarious and we're not concerned about trying to help me or anybody like that. So you have to take out of that 27%, quite a few people who don't belong, who are non-standard category, but, you know, aren't in a situation where they are, should be the subject of concern from a public policy point of view. But then you have to add back in a lot of full-time low paid, poorly paid people who are working in poverty or close to it. And, you know, use figures like people who are at or below 150% of the minimum wage or who are about half of the median income in this country. Any event, it's somewhere around that number would be, and it wouldn't surprise me if it was somewhat more. It wouldn't surprise me if it's somewhat less. But you're talking about a significant part of the working population. Now, what is fishery? If you read, go back and read Harry Arthur's work on the federal part of the Canada Labor Code on basic employment standards. I'm pretty sure you won't find the word fishery used in that study. It's a recent word, and we had the pleasure of working with Harry in our work because he chaired our Academic Advisory Committee, and he used to say that he wished that Wilde, David Wilde, who I think invented the term the Fishered Workplace, had used fracking instead. He thought that fishery was just altogether too mild to describe the kind of aggressive, you know, behavior in the workplace that Wilde had described. That was sort of happening in the corporate world. But for those of you who haven't had the pleasure of reading the Fishered Workplace, which is a terrific, a terrific book, and, you know, Wilde did an awful lot of good work as the wages and benefits, I think that's ours and wages administrator for the Obama Administration in the Department of Labor. He's not there anymore, obviously. Sort of the primer on what the Fishered Workplace is kind of something like this, as I understand it, at a very simplified level, is that corporations in the last 20, 30 years, maybe more recently he would say, began to implement a three-part strategy that have resulted in the Fishered Workplace. And the elements of those strategies were, number one, to increase revenue. And you increase revenue by concentrating on your brand. And you do all your work around your brand and implementing your brand and focusing on your brand and expanding your brand. And, you know, this is the way to generate revenue and you don't waste your time on anything that's not that core kind of component of your mission and your work. That's number one. Number two, you cut costs. How do you cut costs? You cut costs by generating a huge amount of competition around the things that you need to build your product or make your product by not doing it yourself, by having others do it for you. And you create an enormous amount of competition amongst those folks who, to build your widgets or to build your thing or to do this product or to do the other thing. And you don't do it yourself. You get yourself out of the employment business. You're not employing the people. Away from that responsibility as much as you can. Not entirely, obviously, but to a significant degree. And if you don't have to worry about the incomes and the wages and the amount that you're paying to people in your own organization, well, you don't have to worry about it nearly as much. One of Weil's major points is that in these old conglomerates, wages were high because there was a lot of pressure internally. Everybody looked at who was getting what in the next level up in the organization. And so just take those people away. Just get rid of that thing. Create five or six or 10 or 20 or 30 firms that want to do that kind of work and have them compete with each other. And, you know, you'll sort of find, ultimately, people who will do it cheaper and cheaper and cheaper and cheaper. Now, it may not be as safe. And the work may be much worse for the people that are doing it but, you know, that's one of the things that's happened. And the third element of the strategy, which he describes as the glue, which keeps number one and number two together, the increase in revenue and the lowering of the cost, is the entire modern technology, which enables, through all the programming and all the communication and all the supervision, all this new ability that we have to control what is going on in the broader kind of enterprise and operation with standards and manuals and requirements and all this kind of thing so that the work, you know, the stuff comes to the department store that totally packaged in the way that you've actually directed that it should come exactly ready to hang up in the shelves or in the racks to put it out. The exact way and manner in which everything happens and you can have this control indirectly without having it the employment that goes along with it. And, you know, this essentially is the three-prong strategy that results in the fishery of the workplace. So how does this relate to some of the issues that we see in the Labor Relations Act? So let me give some examples. The first one really isn't an example, but I don't want to leave it out. I'm going to come back to that in a minute. I'm just digressing here for a minute. John alluded to this significantly in his opening remarks when he talked about the decisions of the Supreme Court of Canada and what they have said or not said about exclusions. Now, you're different in Nova Scotia and the rest of Canada is different from Ontario. We are the only ones left who exclude agricultural workers from collective bargaining. And this is a very large group, a significant group of precarious workers. A lot of them are immigrants. I mean, when you go to the Holland, drive through the Holland Marsh north of Toronto or drive to the Shaw Festival in Niagara, in the summertime you can see these folks working or you can see them in the fields in southwestern Ontario. And they work also in mushroom factories and now they work in cannabis factories and God knows on what theory, they're sort of like manufacturing plants. They're not allowed to organize collectively, but they aren't to organize collectively and to bargain collectively. And so that inclusion issue is a major issue. And so there's a group of precarious workers. That really doesn't have anything to do with phishing, but it just has to do with the access issue to collective bargaining. And I guess the second one, a group that's excluded, and they effectively are in Nova Scotia as well. I looked last night probably, maybe inaccurately in some respects through the Trade Union Act. And, you know, domestics, it seems to me, are effectively excluded in Nova Scotia, although there isn't a specific line that excludes them. Because like Ontario, you can't have a bargaining unit of one. And most domestics are employed in a single work location, have a single employer. And so they're prohibited from collective bargaining de facto in Nova Scotia. We have both rules in Ontario. We exclude them explicitly as domestics. And then we exclude them on the, you can't have a single one employee in a bargaining unit rule. So we do it on both counts. Now, God knows whether collective bargaining is actually in any way practical for domestics. And for that matter, I don't know whether it's practical for farm workers. After all, you know, in the heart of the locations on this continent, where farm workers are organized, in our youth, remember, California and Cesar Chavez and all of that, this has not been a great accomplishment, which has worked out and transformed the fate of farm workers in the United States or anywhere else. Anyways, that was a digression. But it's obviously one, those are obviously two of the issues that we are having to cope with, to deal with. One of the examples of fishery in workplace, I think, is probably one which is really old. And one which probably we all recognize, although, you know, we probably have never really thought it through as a fissured workplace problem. I'm prepared to bet a little bit, not that much, that in this university, probably somewhere food services might be contracted out or security services might be contracted out or janitorial might be contracted out. The contracting out by a lead employer, a university, a hospital, a factory, whatever, the contracting out by the lead employer, the term or the lead company, which is how Weil describes them, although Weil did not write his book in the context of labor relations. Weil's book is written totally in the context of employment status. But in any event, those lead employers contracting out those non-core services and finding a more efficient and effective, and to be honest, cheaper way of getting the work done than if they were doing it themselves. Now, why do I say it's cheaper? Why isn't I just say, well, it's more efficient? I'll tell you why it's, the argument is that it's cheaper, is because it doesn't stop at the contracting out. It then extends itself to, if a union comes in and organizes those people, the security guards, food workers, the janitors, they will retender it to another contractor. And guess what? The collective agreement doesn't extend and go with the new person who wins the contract. The collective agreement stops. We have successor rights. In the Labor Relations Act, if you sell a business from A to B, the collective bargaining rights by operation of law, and it's very broad, extends the protection of that collective agreement was there to the successor employer. But the way we have worked at the law, on Ontario and I think almost everywhere else in Canada, the bargaining rights do not go on a contracting out, do not go with it, and they certainly don't go on a retendering. So take an example of courthouses. Courthouses in Ontario or mostly the security there is contracted out. If those people are organized, typically by the steel workers, and they get a collective agreement, which happens, the government will retender the security services in the courthouse and whoever it is comes in. They don't have to keep the employees. Now they get penalized a little bit for the severance and termination pay if they don't keep them. But they don't have to. They can clean house if they want. They can take who they want or not if they want a subject to the ordinary laws of discrimination. And so you basically have a treadmill and if the union organizes them again, the union will have to start all over again in collective bargaining, starting on the ground floor, all over again with the new employer. So there's an old story, an old contracting out story. There were two years in Ontario where this was not the law when the NDP was in power and passed changes to labor legislation, all of which were regarded with sort of horror by the successor government that was elected in 1995 and governed till 2003. And they basically replaced every single piece of legislation that was brought in was changed, including that one. And so that hasn't existed, you know, for the last 22 years, that kind of protection. And so, you know, one of the questions that we have to deal with is should that protection exist? If it should, what industry should it cover? Should it cover what I've just described essentially, which are generally called, referred to as the building services industry? Or should it extend farther? I mean, you know, these things, you read about them all the time, at least in Toronto you do. They happen federally, which is not our jurisdiction. They happen in the fueling business at the airport that happens in the gas industry, the business. It happens with transit. It happens with a new provider of transit service comes in and cleans house, doesn't have a collective agreement because the transit work got contracted, got contracted out. So there's a big issue for, as to whether or not, you know, this is an element of fishery which justifies an intervention in public policy, and if so, how far it should extend. Another issue which is, you know, of significant importance in Ontario, and I'm not sure whether it's gotten to that level here, it certainly is a huge issue in the U.S., has to do with the industry of labor suppliers. That is the temporary help, essentially the temporary help industry, which has been a really growing phenomena in the United States. The, you know, that industry argues that they're in an era of secular growth that lean quote-unquote workplaces are very efficient and, you know, essentially makes an argument that you shouldn't be investing in human capital. When you want human capital and you want labor, you should really just get it on a temporary basis and this is going to be the most efficient and the best possible way to get it and you've had a whole large and growing industry which has grown up on this theory. And when we did our hearings around Ontario, we had people who came to our hearings and who told us often that these temporary help agencies were often the only point of access into employment in their community. I mean, they controlled the employment into the factory that was in the town or into this employer, whatever it was, there was really no way into employment unless you got in through the temporary help agency. And this is, you know, a triangular relationship where you've got the client, the agency supplying the worker and the worker and the worker really is caught in the middle. What could be, you know, more precarious than being caught in this triangular relationship where you have, you know, really the agency controls whether you're ever sent again to work for another client and the client, basically you're gone like that. I mean, that's all it takes. That's kind of inherent in the relationship and our statute, you know, sort of in Ontario blesses that. We call, we say that the temporary help agency is the employer of record and we have what I would describe as a fiction that when the client says that this is over I don't want you here anymore, your employment isn't terminated, you continue to work for the employment agency which may or may not refer you in the future to some subsequent employer. And the real power here isn't the temporary help agency, the real power are the client enterprises which use this kind of labor as an important element of their workforce to manage, in many cases legitimately, you know, ups and downs and workforce up and downs and spikes in demand and some of them use it almost as like a probationary period to assess workers and take the ones that are good. We had one very large company that said to us, you know, we have, we don't want temporary help agencies. We have no desire to use them at all. We only want permanent workers but if you do some of the things that you are contemplating potentially doing here you will ruin us. We've just spent, I don't know how much, I can't remember whether it's 25 million or 50 million or whatever it is, building a new plant and we cannot find people who will do our regular job that we can hire directly. You know, the job is difficult. It's not, you know, it's nobody's ideal job. It pays pretty well. It's very hard work. The working conditions are very tough and they can't get enough people to do it by hiring directly. So they sort of have no choice and they have a union there and that union is kind of blessed it because they don't have much choice either. So as much as one may not prefer this kind of thing it's a reality and the penetration rate in the U.S. is up to now 2% of the workforce. So I think this is sort of one of the biggest examples of a fissured workplace. In other words, you know, a huge part of your workforce isn't of your own making. It's coming in to your workplace supplied by somebody else. Now one of the, for those of you that have watched or take note of these things there's a decision of the National Labor Relations Board in the United States that was hugely controversial. Really over the last year and a bit their decision came out in 2015 and it's the name of the case is Browning-Ferris and it's a National Labor Relations Board case that I can pretty well predict and it's probably going to be dead on its arrival now that there's a new administration. But it was basically designed to make the client which was Browning-Ferris which is a recycling company. It was basically designed to make Browning-Ferris the employer when Browning-Ferris had another company that was supplying all of its outside work in the recycling business and even had its whole crew of its own supervisor supervising that work. I mean this case was effectively in my guests, I don't know this, it's just an educated guest kind of set up by the General Counsel for the National Labor Relations Board to come up with this new rule for when are two companies joint employers because that's what they found. They found at the end of the day that Browning-Ferris and the temporary help agency were joint employers of these temporary help agency workers. And it just had huge controversy and the criticism of it from the Republican members of the board who were dissenting was that it exposed a whole area of the economy, a whole group of like lead employers who had severed their responsibility for employment to a tier below them, made them liable because it found the law previously was you had to have control that was direct and immediate. And the National Labor Relations Board said well now you can have control that's indirect and even if it's reserved. In other words, if you've reserved the right to intervene and have control and you've never exercised it, that's enough. That's enough control. The National Labor Relations Board said to make you an employer. What do we do with that in Ontario is one of the big questions that we've had to ask ourselves because we have issues in Canada and you probably have it in Nova Scotia as to in these situations when a union goes to organize a client whose employees are there. And in Ontario we answer this question differently in an employment standards context than we do in a labor relations context. In the labor relations context we have litigation that goes on for maybe a year over who is the real employer and most of the time the Labor Board has decided that the client enterprises the real employer. Even though the Employment Standards Act says the employer of record is the temporary help agency. So we sort of get to a different result and we have litigation about it every time. So one isn't sure what the right approach is here. I mean one of the things that we discussed with those in the United States who are involved in these things is they had to take during the democratic years of the Obama administration where they had no control of Congress. They had no ability to bring changes in legislation into effect. So they had no choice to make the changes to labor law and employment law that they were going to make through basically administrative actions and adjudicative tribunals. That's the only way that they could bring about a change structure. So Weil did it under his interpretation policies of the Department of Labor and the general counsel of the National Labor Relations Board did it in furtherance of cases that they brought to the table there. We don't sort of live in that world in Canada. Most of our provinces and majority governments, if governments want to act, they can. We have choices, we don't have to do it through an adjudicative mechanism if there's a policy of the law that we think should change. We could actually apply a laser and fix a problem or fix an area without putting every other lead company at risk and getting everybody up in arms. So there are really important questions here about whether these are areas that one should act in and if you're going to act, how would you do it? And that takes us basically to a third area and then I'm going to stop and discuss it more tomorrow. But the National Labor Relations Board wants to extend and God knows now whether this will ever come to anything, it probably won't but they're in the middle of litigation extending this joint employer context. Remember, indirect control is enough, it doesn't have to be direct, it doesn't have to be immediate, it's indirect and if you reserve it, it's fine and they're trying to apply that policy to franchising and in particular they brought a whole pile of cases against McDonald's asserting that McDonald's itself and not its franchisees were responsible for a huge number of unfair labor practices with organizing in that field. And so what does this do and what do we do in Ontario and in Canada with franchising which Wile describes as one of the aspects of a fissured workplace where a franchisee is the ostensible person, not really ostensible, often it is the party that does the hiring does the managing, does the control, does the direction and if we say that the franchisee is involved what is that going to do? I mean why would we do that because we need them or want them at the bargaining table because we need or want them for the liability that they might have an employment standards context I mean what is it that we would be trying to accomplish and and again in whatever it was that the Americans were trying to accomplish they had no effective legislative means to deal with it the only option they had was in a doctrine of joint employment that they were kind of reworking and retasking under the National Labor Relations Act so what's interesting about the decision though in Browning Ferris that I referred to the decision doctrine that they were trying to apply to McDonald's they specifically alluded in their reasons to what had happened in the world of temporary help agencies I'm just quoting here this is just in advance of their key articulation of the standard they say the diversity of workplace arrangements in today's economy has significantly expanded the procurement of employees through staffing and subcontracting arrangements which is just what I talked about employment has increased steadily they account for as much as 4.1% of all employment or 5.7 million workers the industry has grown from this to that enormously and you know goes on to say we have to be sensitive to the changes in the workplace and the changing situation and essentially made the rationale for adopting a different legal test than the one that they've been applying for the last 25 years so the changing workplace and the changing standards that should be applied as a result of precarious work and the existence of a whole new group of vulnerable workers is obviously something that the Ontario government thought was important enough for us to study and we'll have to leave the question of what it is we've recommended to another time and very much an open question with anything that we recommend you know what if anything will the government do about it we have I can assure you no idea the wonderful thing about our task and our responsibility is that we are completely independent of the government we were given this responsibility without an agenda and without direction and without control by them and so what they are going to get is what what my friend John and I can manage to put together and say that we agree to because there aren't going to be any dissents in this two person operation and at the end of the day you know after maybe killing each other in the next week or something we're going to agree on everything so there you are thank you sorry you didn't expect me back Professor Archibald told me be quick old person so I will try to do that here's a question for you if trade unions are diminishing in their importance and in their representation and if they're being less and less effective as a voice in policy making and they're less effective in regulation of workplaces in the private sector is does employment law have any obligation to worry about voice as opposed to labor law it's a serious question for example let me look at one of the flaws that we think in the Wagner Act applied to this fissured workplace it requires employer by employer certification so what do you do with franchises do you have 500 McDonald's exist with 8 people in each or 10 or 20 depending on where they are does each one of those certify it's very difficult to do organizationally it's very challenging in fact that's the whole purpose of phishing some would say is to make it challenging so the question is this can you in an employment law context set aside that employer employee dyad and go someplace else for example let's take a problem of scheduling if you work in Ontario in a fast food organization you are likely female you may not have any scheduling in advance you may have to be on call all the time you may not be able to plan childcare properly or educational issues or a whole host of important personal matters no scheduling you have to have scheduling people require it in their lives we have women who do multiple part time jobs and they don't have a schedule in any of them so it just simply has to carry on somebody has to regulate it but here's the problem scheduling is something that you can't do one size fits all we've had too much experience in collective bargaining where you know you have a mine you have a 24 hour 7 operation you have split shifts it can be complicated it may not be in this area but we can't impose the simple solution on everybody so is there a role for voice in sectoral regulation for example could the government say you know what we're going to make a scheduling regulation for fast foods restaurants where so many women are adversely impacted by no notification of when they're going to have to work we're going to do that and we're going to invite in some employer representatives and some employee representatives and maybe trade unions who don't have any members but they may know the sector and say we're going to have a consultative effort here to try to get something we don't think we're smarter than anybody who either works there who owns the place but if you engage in that sectoral conversation the appropriate employee representatives you may in fact have a way in some very important areas of creating a voice but through the employment standards act not through the traditional collective bargaining where we have this fragmented workforce that doesn't necessarily respond to the Wagner act model if you look at there's a professor at Yale for example who talked about the fight for 15 in the United States as being the new labor law and they looked at the SEIU engagement across America with various institutions of government both local, state and otherwise and saw this extraordinary success of getting government to change as a result of what was in fact concerted effort in the workplace there were lots of one day strikes, two day strikes for little employers that made them pay attention there's a real question as I indicated earlier whether we have that right in Canada because the Supreme Court of Canada says well the 14% of the people in the private sector have the right to strike but let's not go too far so whether they can put the same kind of pressure on here or not I don't know but the real question is in employment standards is there a role for voice in the creation of standards that are not being created anymore by trade unions question I don't know we have to deal with this and it can come up in in lots of ways part-time employees for example traditionally women and you're properly looking at your watch I'm going to get out of here soon part-time many women, mostly women female dominant are often paid less than full-time employees in the same job they can't effectively unionize in a lot of these places bargaining units are too small we've talked about that fragmentation, phishing etc etc does the employment standards act have any role in the regulation of the workplace in that sense to say look if you are a part-timer you should get at least an hourly rate for the work that you perform which is the same as the full-time or it's the same work perhaps more difficult questions arise with respect to fringe benefits where in Ontario there are a lot of fringe benefits that are worth and I'm talking now about fringe is not the right word they're more significant than fringe but they can be up to 30% of compensation to what extent should those benefits be either made available on a pro-rated basis or compensated for on a pro-rated basis as we do mostly for things like vacation pay or stat holiday pay it's a product of how much you've worked usually some ripples and there can be some aberrational outcomes but there's a real question because that gap between part-time and full-time contributes in a sense to what government might be worrying about from time to time which is the gender wage gap and it has adverse impact on immigrants people who fill this older people and younger people so there's a real question I suppose about to what extent can one create opportunities for a voice through sectoral regulation involving parties and spokespersons who may know more about their own needs than the government on its own where you can be selective and focused it is a way of getting voice provided that the people who are on charge in fact are prepared to follow through and get both voices not just one in this world of plutocrats that we live in in powerful corporate employers there has to be two voices at the table along with the government or it's not it's not going to be any voice at all so those are issues another one might be in the area of compliance Bruce was talking earlier about how there have been steps made in compliance issues in occupational health and safety where employee committees for example are involved in the regulation of the workplace they look at they monitor compliance they monitor hazards they point them out they can create responses there's a remediation that's possible if they intercede what about with respect to employment standards does it make sense to have committees for industries or businesses even multiple businesses who have responsibility for compliance joint committees should it be a function added to occupational health and safety should there be any other employment standards committees or functions which are informed by major business decisions for example does it make sense to say as an employment standards matter if you are an employer of 50 or more you should have a consultative committee in a non-union environment where if you are going to close a plant or make a big technological change or doing something that has significant impact on the people who work for you should you have a mandated committee in which these things can be raised and discussed and you can learn something from the employees about how they're going to deal with it and help each other come to solutions they may not stop the change but it may make for a better and more informed change who's ever been at the bargaining table with the trade union where you raise a problem where you haven't come to a solution that's probably better for the employees than the one you had in your noggin before you had the conversation so you know there's some real issues I think now for employment standards that we haven't had to face before and they really do question I think raise the question is there a role for the creation of voice you might say it's easy in a sector to regulate scheduling or it may be difficult who knows but you can see the need for it what about issues of compliance should employers have compliance meetings where they review standards to ensure that people are being paid over time getting their breaks etc the amount of non-compliance is significant people aren't aware of rights and they aren't aware of obligations and then some just cheat does it make sense to inform any kind of committee employee engagement even if it's just going to in the end make people smarter about what the law is what their rights are these are questions that are now more important than ever because in the days when Professor Christie and I were younger big trade unions had they did have an influence in the workplace now it's less apparent I don't mean just in their workplaces either so there is this void 14% is not significant enough and so I leave you with a discussion question and that really is does employment standards the setting of basic standards of employment is there a rule in employment standards for sections and approach regulations that in fact will trigger voice or is that just putting flowers on the tombstone of the trade union movement is it just giving up or are they coincidental the critics of all of these internal committees would say like internal responsibility committees if you want to ensure that you have a company dominated outcome have an employee committee if people with no power and no strength put them in with the employer and see how it goes for you big boy because it's not going to go too well they aren't going to have any power so do we give up do we just say no voice and let the trade union movement bury itself or become redundant I don't know I'm not quite so prepared to say because the trade union movement is going like this that we should just forget the notion of voice in the workplace and say in the end it's either employment standards or unilateralism that's a nice combo you know the basics plus unilateralism even in terms of compliance issues we haven't got possibly enough inspectors around to ensure compliance there are 40,000 complaints sometimes a year the government tries to investigate every single one the cost of each investigation is a thousand dollars the complaint might be worth ten I can't do that they have to have more strategic approaches that may involve employee monitoring in a more formalized sense I don't know there's questions that you have to ask and maybe somebody like Bruce will tell me make me smarter about how far one can go or maybe some of the trade union lawyers who are going to be wondering where voice is going to come from but these are difficult issues I haven't been very good about solving them their questions and I thank you for listening and the only thing I want to tell you about this is a you'll know who this is I sort of succinct court of appeal judge in the province of Ontario who happens to have been a Christy student who happens to tell everybody all the time that he was a Christy student who sent me 400 emails to make sure I understood how important it was for me to come here and what an honor it was it didn't matter how many times I wrote him back and said no I understand this I'm not sure you do in any event he said one of the things I'm just looking at his little cheat sheet here this is for court of appeal judges very succinct this is all quite redundant he was a great long time law prof and dean he was very smart and then right under that pervasive intellectual rigor seems to me bordering on redundant this is a court of appeal judge we're talking about here insistence the students try to think and communicate at his level which by expectation was quite high for students almost terrifying at first but then you felt pride he was obviously someone who succeeded because I've had terrifying profs and in the end I didn't feel anything remotely like pride I felt like a crushed beetle and beloved by students think he already said that and many lifelong friends from amongst his students so that's a pretty nice that's a pretty nice little memorial from one of his students who still if you even raise the name Christie will tell you however he may have burned down the law school I think probably he did and you'll have to live with that baggage thank you all this sort of stage for tomorrow's discussions and I hope that many of you who are here now will be able to come back for tomorrow we've got three sessions one dealing with sort of the work place and precarious employment on the unionized sector the other looking at the employment law side non-unionized and then capping the day an afternoon session where we're talking about sort of the parameters of coordinated labor market regulation how is that done how does the larger picture of education on training and tax law and all these kinds of things in which labor and employment law sit how do we think about those larger issues and how they can contribute to solving some of these problems which if we don't get a grip it seems to me maybe I'm just a horrible pessimist or very naive we're likely to have trouble I mean I gotta say but I think about Brexit and trouble and coordination I think of a whole lot of people who are vulnerable who are seeming and see some need but can't articulate what it may be to solve these kinds of problems and I think we can have a kind of discussion I hope tomorrow with the assistance of people who have been studying these problems and think about what resonance is there in our province and in our region to try to come to grips with these things many of you in the room will be here tomorrow I stand between you and the bar not in a legal sense but in a refreshment sense so I hope we have time for questions I don't think we do but many of you will be here tomorrow or in Buckingham Hall John and Michael upstairs at the reception so please join with me in thanking our tag team