I remember years ago, when I was working in the men’s clothing department of Eatons, the heated discussions around the cafeteria about the pending law that would permit retail stores to be open on Sundays. Some employees wanted the store open, because they wanted extra hours, while others feared Sunday openings because they needed (or wanted) to be with their children, family, or friends.
The compromise reached back then was that stores could open on Sundays, but that no employee could be required to work. That rule is found in Section 73(2) of the Employment Standards Act.
A secondary debate was whether stores could be open on statutory holidays. The solution to that question was a complex mix of rights to open, in some circumstances, and a right of employees to refuse to work, unless they agree in writing to work. It’s a nightmare of a system for an employee to try and figure out, as I have noted before, which plays into the hands of employers who want to require working holidays.
Now, the City of Toronto is deadlocked on the issue of whether to permit all retail stores in the City to be open 365 days a year, as explained in this Globe and Mail story. The debate turned out to be contentious, and it was postponed until after the election. The Globe story includes this tidbit:
Some [Counsellors] argued that staff needed to conduct more thorough research on how frequently employers force people to work against their will on holidays despite provincial labour law protections.
I’d like to see the results of that study. The comment gets at the real issue for regulation. It is easy to pass a law that says that no one can be required to work a religious holiday or a Sunday against their will. We have those laws already, in both the ESA and the Human Rights Code. We also have laws in those statutes that prohibit an employer form retaliating against an employee who exercise the right to refuse to work (see s. 74 of the ESA). But employees know that refusing a request to work a Sunday or a holiday will not win them any favour with management.
So, the real issue is whether, given the vulnerability of the typical retail employee in the employment relationship (i.e. they need their job more than the employer needs them), is it realistic to assume that employees will tell their employer to take a hike when they are asked to work Sundays or public holidays?
Or, will most employees simply work despite their objection to working?
Should the state care if employees are feeling pressured to work Sundays and holidays?
