April 25, 2016
The Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC) today released the report, “Sweet & Sour: The Struggle of Chinese Restaurant-workers”. The report is based on the results of a survey of over 180 workers of Chinese descent and their work experience in the Greater Toronto Area (GTA) restaurant industry between 2013 and 2016. The survey found widespread and persistent violations of workers’ rights under the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act, 1990 (OHSA).
To review the full report, please click here:
Read the Toronto Star article here:
The MTCSALC survey found a significant number of Chinese restaurant-workers were paid less than minimum wage, and were routinely denied overtime pay, holiday pay and vacation pay. Many workers reported they were owed wages by employers, often in the range of several thousand dollars. Among those who lost their jobs, the majority were denied notice or pay in lieu of notice. Payroll violations were reported to be widespread and persistent. Not giving workers a payroll slip, under-reporting work hours in payroll slips and employer records, and not making statutory payments are among the typical payroll violations reported by workers.
Workers also reported routine violations of the OHSA at their workplaces, ranging from lack of appropriate employer response to workplace accidents and injuries, use of intimidation and threats to prevent workers from filing a Workplace Safety and Insurance Board (WSIB) claim, and use of delay tactics and false records to deny workers access to the full WSIB entitlement.
MTCSALC is troubled by the findings with respect to accessing the Ministry of Labour (MOL) complaints or claims process showing that the system is not capable of addressing the present worker realities. The findings also show the process is characterized by systemic barriers that deny access to most workers. Many workers reported that they did not have confidence in MOL, and many did not file a complaint or claim. Workers reported problems such as the lengthy time taken to process a claim, and not receiving the full monies owed by the employer nor a partial amount even if the claim was successful. Equally troubling is the practice of putting the onus on the worker to prove all the details of a claim, and providing advance notice of a workplace inspection thus giving employers time to hide evidence of ESA and OHSA violations.
“Precarious employment is on the rise in the Ontario labour market. Recent immigrants, those with uncertain and precarious immigration status, racialized persons and women are far more vulnerable to employer exploitation and abuse. We know that many of our clients are reluctant to file a complaint with the Ministry of Labour when their rights are violated. But we did not expect the problems to be so widespread and the workers’ confidence with the Ministry of Labour to be so lacking,” said Avvy Go, Clinic Director of Metro Toronto Chinese & Southeast Asian Legal Clinic. “This report is an urgent call to action. We hope it will compel the Government of Ontario to step up and revamp the legal system to protect workers’ rights in this province,” Go added.
The report endorses the 62 recommendations in the 1988 report of the Chinese Restaurant Workers Advisory Committee. It recommends the adoption of a “wish-list” of changes suggested by workers to improve their working conditions. The report also puts forward an additional 16 recommendations to the Government of Ontario and other relevant institutions. The MTCSALC recommendations include:
- That the Ministry of Labour develop and implement a long-term strategy in consultation with workers and community agencies that assist workers, to address employment standards violations in the restaurant industry. Proactive inspection at restaurants should be adopted as a key component of the enforcement system, to support the claim-based investigation on individual cases;
- That the Ministry of Labour coordinate restaurant inspections with Canada Revenue Agency in order to target restaurant owners who submit improper or even fraudulent payroll tax deductions;
- That the Ministry of Labour set up a third-party complaint mechanism to allow workers to report ESA violations to a third party such as a community-based agency and to follow up with inspection and necessary enforcement;
- That the Ministry of Labour require all restaurants to post an up to-date work schedule for all the workers in the workplace and in a place where all workers can see it, similar to the requirement to post the Employment Standards Poster.
- That the Provincial Government re-establish the Wage Protection Fund to compensate workers for their unpaid wages and the statutory termination and severance pay.
- That the Ministry of Labour increase the “administrative fees” for each ESA claim to an amount equivalent to at least 30% of the amount owed to the worker; and
- That the Ministry of Labour develop Occupational Health and Safety training materials in Chinese (and other languages most commonly spoken by immigrants in Ontario).
Despite their vulnerability and the pervasive fear in speaking out, 184 courageous workers participated in the study. Whether the study participants represent the experience of a small number of Ontario Chinese restaurant workers, or whether their experience is symptomatic of a larger problem, the voices of these workers deserve to be heard and their search for fair treatment deserves the public support.