Law Commission on Vulnerable Work (and Doorey's Submission)

The Law Commission of Ontario is now situated across the field from me here at York.  The LCO studies areas of law in need of reform.  One of their existing projects looks at how to improve the legal treatment of “vulnerable workers”.  All of the information about this project is here on the LCO website.
Here is a story from the Toronto Star on the initiative.
Of interest is the fact that the LCO is accepting comments and submissions from the public and interested groups.  The deadline is April 1st, which is fast approaching. You can send comments by email, mail, or fax, and all the contact info is on the webpage linked above.
Yours truly has thrown together a submission.  Here’s a draft that you can download if you’re interested.
I elected to focus on a very specific issue:  improving compliance with the Employment Standards Act.  I recognize that poor enforcement of the ESA  is only one small part of the story of why there are vulnerable workers.  Much more ambitious reforms are needed than what I have proposed.  But others will write about those reforms.  I wanted to put together a relatively brief discussion paper exploring how we might think about the employment standards differently to improve compliance with it.
Here’s a preview to wet your appetite.  I propose two main reforms (and a few smaller, related reforms).

More and Better Information
1.  A new Office of the ESA Advisor to provide information to employees and employers.
2. A new Statement of Employment to be completed by employers, that must be provided to all new employees.  The form sets out the basic contract terms covering wages, overtime pay, vacation pay, and hours of work, alongside the employees statutory entitlements for the corresponding contract term (i.e.  the wage rate in the contract and the present minimum wage for the job in question).
3. A new Statement of the End of Employment to be completed by employers and provided to employees within one week of the end of an employment contract, regardless of how the contract ends.  The form explains what the employee is entitled to under the ESA in terms of wages, vacation pay, and termination and severance pay, and how the employer has paid those amounts or intends to.
Each form explains the rules in the statute and provides the parties with information about who to contact for more information.
A Dual Regulatory Stream
The more novel part of the proposal challenges lawmakers to think of workplace law regulation not as distinct regimes of Labour Law (governing union and collective bargaining issues) and Employment Regulation (ESA, etc), but as a coherent whole intended to protect workers.
Among other reforms, I propose that laws presently in place that grant employers significant latitude to try and influence the outcome of unionization attempts by their employees be “earned” rights, that are forfeited whenever an employer violates the ESA.  In particular, I focus on the rights of employers to argue against unionization (employer speech rights) and the right of employers to insist on a certification ballot even in the face of written expressions of support for collective bargaining by a clear majority of employees (mandatory ballots).   My argument is that only responsible, law-abiding employers who demonstrate a commitment to their employees’ welfare should be entitled to those rights. If  an employer violates the ESA, it should lose its right to proselytize against collective bargaining and to insist on a certification ballot.  Why should the state support an employer’s right to campaign against collective bargaining when the employer hasn’t even the decency to pay the minimum wage or proper overtime pay?

The model I propose would be relatively simple to legislate, but would create a much more significant incentive for union-averse employers to comply with the ESA, and would facilitate union organizing at those workplaces where workers could most benefit from collective bargaining.
There’s much more to it than this,  so read my submission if you are interested.  Then tell me why my proposal stinks, or why it presents a useful way of looking at ESA compliance problems.