This piece is one of a series of high-profile Canadians commenting on the Canadian Chamber of Commerce's Top 10 reasons Canadian competitiveness is dropping.
As dean of the Edwards School of Business at the University of Saskatchewan, Daphne Taras has to deal with four separate unions. So it’s probably a good thing the former ballet dancer has not only a master’s degree in political science and an MBA, but also both a master’s in law and a PhD in labour and employment relations. We talked to Dr. Taras about a Conference Board of Canada report that says our inflexible labour code is hurting our ability to compete globally.
So, give me an overview of the state of this country’s labour law.
Canada has a problem, because it has the most decentralized labour relations in the world, where each province has its own labour code, and has exclusive jurisdiction over the health and welfare of its citizens. And the federal government has a code for the federally regulated sectors — banks, transportation and so on. Most of the codes are fundamentally very similar, but for employers, it is a very complex landscape.
When the Conference Board of Canada complains that Canada’s labour code is not flexible enough, what do you take that to mean?
I don’t agree that the labour code itself is the cause of the lack of flexibility. Our code sets up rules, and those rules are not that much different than what exists in, for example, the United States, which we have always held up as being more globally competitive, until recently.
So what do you think the problem is?
I travel all over the world, and I’m keenly aware of our aging infrastructure.
We’re pretty tired and saggy, and the developing world is jumping ahead of us in the digital economy. I think we have major labour shortages, so we often tolerate substandard work. Our weather is pretty horrendous on our infrastructure – our roads crack, our sewer pipes break. Also, I think our employers are a little bit averse to training, and our corporate leaders have less education than comparable CEOs in the United States. There is significantly less R&D investment here than in the U.S., and large Canadian firms are much less likely to invest in machinery and equipment than in the States.
Is there perhaps inflexibility because of organized labour?
The federal labour code only covers 8.4 per cent of the total work force. About one-third of the federal jurisdiction is unionized, and two-thirds is not. And within the unionized sector, strikes are actually fairly rare.
But if we’re talking about employment standards, we’re a little bit rigid about what we expect a normal workweek and workday to look like: 40 hours per week, eight hours a day before overtime is paid. There is a growing call for giving workers more control and flexibility, and labour codes do restrict us. I can envision situations where people would trade a very heavy workload during some parts of the year for a lighter workload at other times. Or imagine a divorced couple sharing kids one week on, one week off. The ability to work a lot of hours when you don’t have your kids and fewer hours when you do would be phenomenal.
How does this inflexibility hurt us when it comes to competitiveness?
I’m not sure it does, really.
The competitive issue really has to do with productivity and our ability to grow ourselves and compete globally. A lot of people confuse productivity with work intensity. A lot of people say the unions prevent productivity. That’s simply not true.Productivity is an efficiency measure, and it’s up to management to determine how to become more efficient, by introducing better work practices, by bringing about better plants and equipment, by staying modern – and that’s not the fault of the work force. Productivity is about enterprises becoming smarter, not making employees work longer or harder.
What’s another example of a challenge presented by the labour code?
There is basically a hairball of entangled regulations and statutes, and there is a growing movement right now to harmonize codes – one of the really good things was the New West Partnership Trade Agreement, which co-ordinated hundreds of laws and regulations between British Columbia, Alberta and Saskatchewan, and I’m seeing increased interest in doing that to allow greater labour mobility and recognition of trades and so on. There’s also a lot of work to be done on plain language. The average employee doesn’t have a clue how to access their rights.
So what are the hot topics around labour relations right now?
One of the things that’s going to make employers reel is family status. This is a huge issue. There are a number of cases winding their way through the courts on the issue of family status discrimination. It means that if there is a substantial interference, an employee can now request accommodation for childcare obligations.
You’re talking about the federal ruling against Canada Border Services Agency, right?
Yes – the idea of opening up the labour code so that some people can work longer hours or introduce some flexibility that will suit their family obligations. If you consider that 43 per cent of marriages don’t reach the 50th wedding anniversary, there are a heck of a lot of children being tended to by single parents, plus people like myself, who will also be tending elderly parents. I’m waiting to see a legal test based on needing to take frail parents to see medical specialists during work hours. Or single parents who say, “Gosh, I have a disabled child or a mentally ill teenager at home.” It’s going to cause employers to have to be sensitive to variations in family status situations, as they are about disability. It’s a completely new way of looking at work.
What other labour issues should businesses be paying attention to?
Anti-bullying and psychological harassment legislation. We’re asking for more decent workplaces. It’s very difficult to figure out — one person’s bullying is another person’s sensitivity. But there are some horrendous cases. So I would be watching for the rollout of that legislation.
How do you legislate a more decent workplace?
Well, we’ve been trying to do it for 100 years. It’s never going to be perfect, because where there are people involved, there are going to be problems. The real perplexing problem is that for non-union employees, it creates huge hardship. Most complaints – between 92 and 96 per cent – that go to employment standards hotlines are from former employees. That’s a problem, when people have to lose their jobs in order to make a legitimate complaint. It’s not just a management issue. Every citizen should be held to account for creating a psychologically satisfying workplace.
What’s your advice for employers?
Be respectful of employees’ need to harmonize their lives into their employment. People under, say, 40 or 50 have more seamlessly integrated their private lives and their work lives. They’re more likely to answer a private e-mail and then a work e-mail. They bounce back and forth — whereas when our labour codes were written, there was a boundary between the hours of work and private life. And that boundary is breaking down — I’d describe it as almost a braid. Technology is enabling this seamlessness. Are you going to discipline someone for taking private phone calls when they work an extra two hours at night? Today, as long as you’re awake, you’re simultaneously working and running a private life. If I was going to write a labour code, I don’t even know how I would capture that. Maybe I would capture it through productivity measures, rather than hours.
That’s the ideal, right? As long as I get my stuff done, it shouldn’t matter how many hours I work.
It shouldn’t matter how many hours you work, where you work, how you work. I’m seeing more of that, but I’m also seeing a real tension between the old model of employment and this boundaryless world.
So will the labour code ever catch up?
I don’t think rules and regulations ever anticipate or catch up with modern developments. The law creates a general framework, and I think that we should be writing laws for the normal, not for the pathological. You can’t write laws that encompass every possible situation – there were only 10 commandments, right? You set up basic principles and then you deal with the abnormal separately. But what I would like to see is some opening up of the rigidities of labour codes that allow modern employees and modern employers to reach consensual deals that are good for both of them. If an employee says, “I want to work 12 hours a day when I don’t have custody of my kid – provided I’m not violating health and safety, and provided I’m not creating a risk to my fellow employees, and I can do it productively – and I want to work less when I have to pick up my kid from school at 3:30,” and if the employer can accommodate that, why should the labour code stop it?
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