Read on Twitter
Starting a new #GWUTRights so that we're not tagging folks unnecessarily.
Digging into Labour and Employment 101!
Digging into Labour and Employment 101!
The foundation of our law comes from Common Law, a series of precedents set up by cases over many many years. This is the foundation of who is considered an "employee" or an "independent contractor". #GWUTRIGHTS
Contracts can allow for additional protections and entitlements, or, on the other end, provide a way to skirt common laws. #GWUTRights
Employment law refers to laws protecting employees, whether unionized or not. In a non-union workplace, employees are regulated by the common law, the employment contract, and various pieces of legislation like the Employment Standards Act. #GWUTRights
Unionized employees are protected by the the same laws and legislation as non-unionized, but with an additional layer of protection from both the Labour Relations Act and the collective agreement worked out between the employees and employer. #GWUTRights
Not everyone that works is an employee. Some are independent contractors. Example - worker at McDonald's is an employee, handyperson is an independent contractor. However, our labour law is bad at deciding who is what at the ground level. #GWUTRights
It takes a long time for our legal system to to figure out this distinction. For example, a court case for Uber worker distinction has been going through the legal process since 2016.
How to tell?
- Who controls your work?
- Who owns your tools (this can include a laptop or cell phone)?
- Who loses money when someone messes up?
- Who has the chance to make a profit?
- Who controls your work?
- Who owns your tools (this can include a laptop or cell phone)?
- Who loses money when someone messes up?
- Who has the chance to make a profit?
Other factors:
- How long have you worked somewhere and is it on a regular basis?
- Whether you're economically dependent on a particular employee or many clients.
- How long have you worked somewhere and is it on a regular basis?
- Whether you're economically dependent on a particular employee or many clients.
Question from the audience: What's up with workers who are on constant long-term contracts, I.e. 5 subsequent 1-year contracts?
Answer: it's a grey area.
"Employers are designing their workflow so that a person looks more like a contractor than an employee"
#GWUTRights
Answer: it's a grey area.
"Employers are designing their workflow so that a person looks more like a contractor than an employee"
#GWUTRights
We also have a third category in the Employment Standards Act - "dependent contractors". You're a contractor, but economically dependent. As such, treated like an employee. But legislation does not cover contractors until they are considered employees.
#GWUTRights
#GWUTRights
Our legislation now explicitly says that you cannot treat an employee like a contractor. The Ford government has made put the onus of proving this classification on the employee (previously the employer had to do the work of proving you were "actually" a contractor").
Laws get buffed or debuffed based on the government! #GWUTRIGHTS
Without a union, the only way to enforce your rights is to deal with it legally after the fact. Unions can prevent employees from being misclassified!
#GWUTRights
#GWUTRights
Minimum standards for employees:
- Minimum wage ($14/hr). Different wages for different jobs though.
- Public holidays (9 in Ontario)
- Public holiday pay (separate from public holiday)
- Bosses cannot make you work on a public holiday - needs to be in writing or electronic
- Minimum wage ($14/hr). Different wages for different jobs though.
- Public holidays (9 in Ontario)
- Public holiday pay (separate from public holiday)
- Bosses cannot make you work on a public holiday - needs to be in writing or electronic
- Overtime threshold is 44 hours. If you work over this, you must receive overtime pay. However, employer can average your hours over a longer period of time (but must work this out with you!).
#GWUTRights
#GWUTRights
To be clear - averaging needs to be an agreement in writing! Bosses cant just make you do this. #GWUTRights
In lieu means that for every hour of overtime you work, you're supposed to get an hour-and-a-half of paid time off.
#GWUTRights
#GWUTRights
- Daily limit of hours you can work. You can agree in writing to work more hours. You're supposed to receive at least 11 hours of continuous time free from work every day! Also supposed to get 48 hours back-to-back free from work per week
#GWUTRights
#GWUTRights
Also supposed to get a 30-minute eating period every 5 hour block (doesnt need to be paid)
#GWUTRights
#GWUTRights
- Supposed to receive 2 weeks of vacation with pay. If you've been somewhere for 5 years of more, you get 3 weeks.
Final minimum standard: leave of absences. Unpaid, but basically gives you a reason to not come to work (I.e. employer cant fire you for it). Examples include pregnancy leave, parental leave, critical illness leave, and more!
#GWUTRights
#GWUTRights
Whoops there's more!
- Notice of termination - gets capped out at 8 weeks worth of pay.
- severance pay (different than termination pay). Must work somewhere 5 years or more and employer needs to have $2.5 million worth of payroll, or employee was in a mass layoff.
- Notice of termination - gets capped out at 8 weeks worth of pay.
- severance pay (different than termination pay). Must work somewhere 5 years or more and employer needs to have $2.5 million worth of payroll, or employee was in a mass layoff.
- If you get anything in a contract BETTER than minimum employee standards, employer must give you the better version.
#GWUTRights
#GWUTRights
Question: Employee needs to give employer two weeks notice, does that work the other way?
Answer: it should, but usually companies dont do it and give termination pay instead.
#GWUTRights
Answer: it should, but usually companies dont do it and give termination pay instead.
#GWUTRights
Now talking about exemptions from min. standards, 2 of which may apply to game workers (there are 85 exemptions):
1) Information technology professionals:
- Employee who works with "information systems" (no legislated definition of this)
- Must use specialized knowledge in work
1) Information technology professionals:
- Employee who works with "information systems" (no legislated definition of this)
- Must use specialized knowledge in work
Often misapplied - "jobs such as designing computer games" are not IT workers!
However, this definition is also nebulous. Does it only apply to designers? What about programmers? QA? Artists? No case law yet!
#GWUTRights
However, this definition is also nebulous. Does it only apply to designers? What about programmers? QA? Artists? No case law yet!
#GWUTRights
However, the Ministry of Labour's position does include language like "persons employed as computer animators would not likely be considered IT professionals"
#GWUTRights
#GWUTRights
2) "Recorded visual and audio-visual entertainment production industry."
Explicitly does not apply to videogame workers! Mostly film and tv workers.
#GWUTRights
Explicitly does not apply to videogame workers! Mostly film and tv workers.
#GWUTRights
"A union is designed to level the playing field by bringing workers together as a group".
#GWUTRights
#GWUTRights
People who can legally unionize:
- Employees
- Dependent Contractors
People who can't:
- Managers (theres a legal test for who is considered a manager. Key concern is whether that person has access to confidential HR information)
- Employees of a college of arts and tech.
- Employees
- Dependent Contractors
People who can't:
- Managers (theres a legal test for who is considered a manager. Key concern is whether that person has access to confidential HR information)
- Employees of a college of arts and tech.
Unions are looking for 75% of employees signing up. Can go ahead with less but its risky.
#GWUTRights
#GWUTRights
Once cards are signed, application for certification is sent into labour board. Employer gets two days to respond. Response is them trying to challenge who's in and who's out.
#GWUTRights
#GWUTRights
Meeting with Ontario Labour Relations Board happens to iron out details. Then it goes to the vote.
In Ontario, union must have 51% approval FROM THE PEOPLE WHO SHOW UP TO THE VOTE.
#GWUTRIGHTS
In Ontario, union must have 51% approval FROM THE PEOPLE WHO SHOW UP TO THE VOTE.
#GWUTRIGHTS
Note from GWU organizer - you still want a lot of people to show up to the vote because this is the sign of a strong union!
#GWUTRights
#GWUTRights
A union can represent all employees of a workplace, or simply a subset. Theres pros and cons to both.
#GWUTRights
#GWUTRights
After a union is certified, the union becomes the "exclusive bargaining unit" - only group that can negotiate for employees.
Unions are beholden to certain agreements ensuring they properly represent the employees. You are not giving up rights when joining a union #GWUTRights
Unions are beholden to certain agreements ensuring they properly represent the employees. You are not giving up rights when joining a union #GWUTRights
Things included in a collective agreement:
- Just Cause protection - employer must have a legal reason to fire you.
- Grievance and arbitration process - the ability to negotiate and reach a resolution with the employer, based on the collective agreement.
#GWUTRights
- Just Cause protection - employer must have a legal reason to fire you.
- Grievance and arbitration process - the ability to negotiate and reach a resolution with the employer, based on the collective agreement.
#GWUTRights
If the issue cannot be solved within negotiations, you receive arbitration - essentially allows you to put the issue in front of a judge without it costing you anything.
#GWUTRights
#GWUTRights
- Union dues - Typically less than 1% to 1.5% of an employees pay. Employers will say the union is taking money away from you - but it's a small amount and offset by the pay increase you typically receive from the collective agreement.
Final section: Unfair Labour Practices. What your rights are once the organizing drive and certification process starts.
#GWUTRights
#GWUTRights
In Ontario, you have the right to be a member of a union, which is very important as historically joining a union was seen as a civil wrong or criminally conspiracy.
#GWUTRights
#GWUTRights
Employer cannot intimidate employees, coerce them to go with a different union. Or interfere with the prices.
You don't need to show anti-union motive; the act is all that matters. If they interfere, even unknowingly, that's enough to say they are interfering.
#GWUTRights
You don't need to show anti-union motive; the act is all that matters. If they interfere, even unknowingly, that's enough to say they are interfering.
#GWUTRights
Not illegal for employers or employes to persuade employees during working hours, but it's not exactly "okay".
Danger is if the employer can make a case that union persuasion is cutting into working hours. Can be disciplined for not getting your work done.
#GWUTRights
Danger is if the employer can make a case that union persuasion is cutting into working hours. Can be disciplined for not getting your work done.
#GWUTRights
Once you have a union certification application, employer cannot change your wage or any other terms/conditions of your employment. Also cannot do this while bargaining is happening.
#GWUTRights
#GWUTRights
Employer cannot threaten someone who they suspect is involved in the union drive.
Must be intent here though. Employer can potentially lean on a different fireable offence, though this will go back-and-forth with labour lawyers.
#GWUTRights
Must be intent here though. Employer can potentially lean on a different fireable offence, though this will go back-and-forth with labour lawyers.
#GWUTRights
What distinguishes Ontario from many US jurisdictions: remedial certification.
If employer is skirting these prohibitions, union can say that a democratic vote cannot be held, so union certification must be granted regardless of the vote.
#GWUTRights
If employer is skirting these prohibitions, union can say that a democratic vote cannot be held, so union certification must be granted regardless of the vote.
#GWUTRights
Better to not lean on this though - stringer union if it happens through a vote.
Still, it's a good protection to have.
#GWUTRights
Still, it's a good protection to have.
#GWUTRights
Q: Can an employer say they're going to shut the company down if it unionizes.
A: Employer still has free speech, but if they make this threat they need to have concrete numbers that prove that they cannot sustain the business. Otherwise it looks like a threat.
A: Employer still has free speech, but if they make this threat they need to have concrete numbers that prove that they cannot sustain the business. Otherwise it looks like a threat.
If during certification or organizing phase, an employee is terminated wrongfully, labour board can reinstate them.
#GWUTRights
#GWUTRights
What to expect from employers through the union process:
- "Union-proofing": employers try to scare employees with "educational" videos.
- start getting friendly, sending out surveys about workplace grievances.
- set up focus groups to get issues from employees.
#GWUTRights
- "Union-proofing": employers try to scare employees with "educational" videos.
- start getting friendly, sending out surveys about workplace grievances.
- set up focus groups to get issues from employees.
#GWUTRights
Employer cannot make promises in the unionization drive, example: "if you vote no we'll raise your lay by 10k".
#GWUTRights
#GWUTRights
Captive audience meetings (where an employer forces you to go to a meeting to give anti-union rhetoric) are illegal.
#GWUTRights
#GWUTRights
Questions!
- Does residence status change employment protections?
A: there are certain legislations that apply to non-citizens. But employment standards act is about work done. May be some hitches from the other legislation though, depends on the specifics.
- Does residence status change employment protections?
A: there are certain legislations that apply to non-citizens. But employment standards act is about work done. May be some hitches from the other legislation though, depends on the specifics.
Q: if a workplace chooses to organize and it passes by a hair (I.e. 51% yes 49% no), could the union be decertified?
A: Not until the last three months of the collective agreement terms.
#GWUTRights
A: Not until the last three months of the collective agreement terms.
#GWUTRights
Decertification doesnt actually happen very often; once workers start seeing the benefits come in, they wouldn't want to decertify usually.
#GWUTRights
#GWUTRights
Q: If employees dont want to unionize but do have a collective issue, is the employer legally beholden to doing something about it without unionizing?
A: No. Options are usually deal with it, or sue employer after the fact. Withouy a union, there isnt a legal basis for it.
A: No. Options are usually deal with it, or sue employer after the fact. Withouy a union, there isnt a legal basis for it.
Q: If work isnt suffering, can you be discriminated against for being sick (I.e. chronic issues).
A: If it's a disability, you're protected under the human rights code. But it gets complicated - employer might say contract has been "frustrated" if it's been enough time.
A: If it's a disability, you're protected under the human rights code. But it gets complicated - employer might say contract has been "frustrated" if it's been enough time.
That's a wrap on #GWUTRights. We hope you got some useful info out of it! Special thanks to Justin Amaral for donating his time and expertise, @TOMediaArts for hosting, and @cwacanada1 for the food. Check out our pinned tweet to help us unionize the games industry!
