Setting the minimum: Ontario's employment standards in the postwar years, 1944-1968.

MINIMUM LABOUR STANDARDS are legally established standards that apply to most employers and employees, and include minimum wages, maximum hours of work, overtime, and paid time off. The regulation of minimum standards in Ontario was consolidated within the Ontario Employment Standards Act in 1968. While the provincial minimum standards of the late 19th and early 20th century have been well documented, the regulation of minimum standards during the postwar period has received little scholarly attention. This paper explores the development of minimum standards legislation in Ontario from the immediate postwar years up to the enactment of the Employment Standards Act. The paper argues that social forces both internal and external to the state pressured for the enactment of comprehensive legislation to provide some statutory protection for the most vulnerable workers in the province. However, the ways in which the state negotiated the tensions associated with providing social protection for non-unionized workers, while at the same time minimizing interference in the market, severely compromised the capacity for the legislation to provide protection for the "pockets of exploitation" they were intended for. Further, this approach to minimum standards supported and reproduced patterns of gendered and racialized segmentation within a labour market that was built around the norm of the Standard Employment Relationship, and thereby ensured standards of a secondary status for workers with the least bargaining power.

PAR DES NORMES D'EMPLOI MINIMALES on entend les normes legalement etablies qui s'appliquent a la plupart des employeurs et des employes et qui comprennent les salaires minimums, les heures de travail maximales, les heures supplementaires et les conges payes. La reglementation sur les normes minimales en Ontario a ete consolidee en 1968 par l'adoption de la Loi sur les normes d'emploi de l'Ontario. Bien que les normes minimales provinciales de la fin du 19e siecle et du debut du 20e siecle aient ete bien documentees, la reglementation des normes minimales pendant la periode d'apres-guerre n'a recu que peu d'attention de la part des specialistes. Cet article explore l'elaboration de la loi sur les normes de travail en Ontario de l'apres-guerre jusqu'a la promulgation de la loi en 1968. Il pretend que les forces sociales, internes et externes, ont exerce des pressions sur l'Etat en vu du passage d'une loi exhaustive donnant une protection statutaire a la plupart des travailleuses et travailleurs les plus vulnerables de la province. Toutefois, les facons dont l'Etat avait negocie les tensions generes par les debats politiques sur la protection sociale des ouvriers non-syndiques, meme si elles minimisent l'interference sur le marche, ont sape severement la capacite de la loi a proteger les << poches d'exploitatiom >> auxquelles elie s'adressait. De plus, cette approche fondee sur des normes minimales a soutenu et reproduit des tendances a la segmentation par le genre et la race sur un marche du travail qui a ete construit autour des relations normales de travail. Elle a finalement assure une position secondaire aux travailleuses et aux travailleurs possedant le pouvoir de negociation le plus faible.

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IN 1965, AN ONTARIO DEPARTMENT OF LABOUR report entitled Labour Standards And Poverty stated that "[l]abour standards legislation attempts to deal with various aspects of poverty by raising wages, improving working conditions, and opening up employment opportunities.... [T]he legislation is widely accepted as necessary for the maintenance of minimum levels of living among low paid workers...." (1) The report was published as the Ontario provincial government was undertaking a thorough review of its existing minimum standards regime and contemplating the development of a comprehensive new labour standards code. By the mid-1960s, the government was facing growing pressure from the labour movement to enact stronger legislative protections for workers who did not have the benefit of unionization, and to legislate reduced working time in order to protect against the threat of unemployment created by technological innovation. The government was also aware that its existing approach to the regulation of minimum standards, which at that time included several separate pieces of legislation that set standards in the areas of hours of work, vacations with pay, minimum wages, and equal pay for equal work, was increasingly insufficient. The standards lagged behind those of other jurisdictions, and as indicated in departmental reports on both minimum wages and hours of work, there remained "pockets of exploitation" within the province's workforce that required stronger legislative protection. (2)

In 1968, the provincial government enacted the Ontario Employment Standards Act. The Act was an amalgamation of existing minimum standards legislation, along with some new standards, including a legislated overtime premium. But was the Act capable of dealing with "pockets of exploitation" and substantially improving the employment conditions of low-wage workers? While the Minister of Labour Dalton Bales expressed his concerns about the conditions of work of low-wage workers, he also cautioned in an address to the provincial legislature that "when it comes down to considering improvements in standards of employment, we must improve but also maintain a balance that will help us to keep industry and to attract new industries to the province." (3) In other words, the government' s new labour code should not undermine economic prerogatives with the socially desirable goals of protecting vulnerable workers.

This article explores the development of Ontario's postwar minimum standards through to the enactment of the 1968 Ontario Employment Standards Act. The origins of provincial minimum standards in the late 19th and early 20th centuries have been well documented. (4) So too has the legislative framework of the postwar settlement that set the parameters for postwar industrial relations. (5) However, the development of minimum standards legislation has received relatively little scholarly attention. (6) A case study of Ontario's legislated standards provides the means to explore the ways in which the postwar state negotiated the tension between addressing "pockets of exploitation" and, as was stated in a federal Department of Labour report on minimum standards, "that which was economically practicable." (7) Conceived more broadly, how did the state regulate employment conditions of non-unionized workers during the years of the postwar settlement and what were the social forces that shaped regulatory strategies? Further, given the explicitly gendered legacy of early minimum standards legislation, which was premised upon supporting gendered divisions of labour and male breadwinner norms, to what extent did the standards of the postwar period depart from this earlier approach? While postwar employment standards legislation contained formally gender-neutral standards and did not advance the explicitly gendered approach of early minimum standards, did it constitute a new regulatory approach that could counter longstanding gendered divisions in labour law and in the labour market?

The State, Labour Market Regulation, and Minimum Standards

This analysis of the regulation of postwar employment standards draws from longstanding debates within state theory and seeks to integrate several approaches to construct a conceptual framework that accounts for interrelationships between the state and external social forces, as well as institutional autonomy, and internal conflict. Few would argue that theoretical frameworks that present the state as either a purely autonomous social formation, or as a captive instrument of dominant classes, are able to capture the complexity of social, economic, and political relations between the state and external social forces, as well as social relations within the state itself. As it implies, the autonomous model posits that the state retains institutional autonomy from other sectors of society, including the economy. Conversely, the captive state model constructs a view of the state as an instrument of class rule that is used solely by the dominant class(es) to further their interests against the dominated class(es). While the autonomous model has been critiqued for overlooking the complex interrelationships that are formed between the state and other social institutions, relations, and practices, the captive state model is unable to conceptualize the existence of any form of autonomy between the institutions of the state and the dominant class(es). (8)

Relative autonomy models, for example, those developed by Ralph Miliband and Nicos Poulantzas, attempt to overcome some of these limitations by theorizing the ways in which the state is tied to capitalist interests, yet is able to maintain some degree of autonomy in the ways in which it supports and legitimates the basic principles of the capitalist system. (9) Relative autonomy models move state theory beyond the absolutist positions of the captive and autonomous models. Both have been critiqued, however, Miliband for not fully accounting for the various forms of articulation between the state and economic relations, and Poulantzas for at times denying the state any independence from the objective structures of the economic base. (10)

Bob Jessop's "strategic-relational" theory of the capitalist state provides the basis to develop a more nuanced approach to understanding the role of the state in capitalist society. Jessop argued that the capitalist state maintains the long-term interests of the dominant class(es) and secures the long-term conditions required for capital accumulation. But the captive state approach is rejected, as competing or conflicting interests may shape the actions of the state, and thereby produce contradictory actions and outcomes. Jessop's model situates the state in the context of its "wider social environment" by arguing that state interventions are shaped by the "changing balance of forces" both internal and external to the state. (11) While state interventions act in the long-term interests of capital, the specific nature of specific interventions (for example, labour market policies) are subject to the changing balance of social forces within and around the state. Due to its sensitivity to the influence of social forces, and its attention to contradiction and conflict even within the state, this approach provides a more useful starting point in theorizing the role of the state in regulating the labour market.

Theories of capitalist hegemony provide further insight into how the state may support the interests of private enterprise, while at the same time conceding some demands to subordinate social groups. Antonio Gramsci defined hegemony as "intellectual and moral leadership" that takes into account "the interests and tendencies of the groups over which hegemony is exercised" through compromises that do not ultimately threaten the rule of the dominant group. (12) Analyses of the role of hegemony in relation to the capitalist state provide a multidimensional framework through which to conceptualize the operation of state power, in particular in ensuring the legitimation of capitalist relations of production by securing consent through public policies that are based, in part, on concessions to popular demands. This approach has been widely applied in analyses of postwar-era systems of labour law in industrialized economies, which have been described as "post-war political-economic settlements." (13) The specificities of such arrangements varied between national boundaries; however, the principles were similar: unions gained organizational stability, union members gained regular wage increases and stable employment, and employers were ensured "responsible" unionism through regular collective bargaining, which minimized workplace disruption)4 The hegemonic character of postwar industrial relations is based upon interconnected compromises made by unions and employers that limit the capacity for unionized workers to challenge the capitalist order, but at the same time meet some of the demands of union members. Michael Burawoy argues that this form of state intervention constitutes an important component of a "hegemonic regime" as it seeks to secure workers' consent to capitalist control of production through forms of state intervention that provide social welfare, restrict management discretion, and allow for the. (15) bureaucratic regulation of the workplace through high levels of unionization.

Returning to the question of employment standards, while the framework of capitalist hegemony is useful in the analysis of postwar labour relations, the dynamics of labour market regulation are somewhat different when viewed from the perspective of minimum standards. First, the concept of hegemony, with its dual components of coercion and consent, cannot be applied so easily to the regulation of minimum standards. Unorganized workers were not drawn into a web of industrial legality in the manner that organized labour was in the years of the postwar settlement. Second, the regulation of minimum standards was not established simply by groups of workers pushing the state for concessions, and the state responding in a partial or provisional manner. While this perspective on the state contributes to an analysis of dynamics of labour market regulation and union activism in the postwar years and, as will be shown, partly explains the approach of the labour movement to minimum standards legislation, this conceptual framework cannot on its own explain the role of the state in the regulation of minimum standards.

The limitations of this approach to understanding minimum standards are made further apparent when feminist theories of the state are considered. Feminist theorists critique Marxist and non-Marxist theories of the state for overlooking the ways in which the capitalist state is also a gendered set of institutions and relations. (16) With respect to labour market regulation, the state has been identified as a site involved in organizing the social relations not only of economic production, but also of social reproduction. For example, state intervention in the labour market through various forms of labour legislation has been identified as supporting gendered divisions of labour, and according male and female workers with different levels of social protections. (17) Feminist analyses of labour market regulation have demonstrated that postwar labour legislation constructed a gendered hegemony that excluded women workers. Further, gender has been identified as a central social relation in the regulation of contemporary employment standards legislation, earning such legislation the title "labour law's little sister." (18) Thus, an analysis of the regulation of minimum standards in the postwar years requires an analysis of their gendered character.

In addition to feminist perspectives on the state, labour market segmentation theory provides a useful analytic frame to understand gendered, as well as other social divisions within the labour market. (19) Segmentation theorists have sought to explore the ways in which divisions in capitalist labour markets are created by job characteristics, the social organization of work relations, the role of class struggle, the ascribed characteristics of workers, the sphere of reproduction, and the influences of institutions such as the state and trade unions. (20) In particular, feminist political economists have drawn attention to the ways in which interconnections between institutions of labour regulation (the state, trade unions) and the relations of social reproduction create forms of gendered segmentation. (21) Using an intersectional approach, feminist political economy has sought to integrate anti-racist analyses into this framework as well, indicating that processes of racialization intersect with relations of class and gender to shape patterns of labour market regulation. (22)

Building upon the insights discussed above, the study of the regulation of minimum standards requires consideration of the ways in which the state contributes to the reproduction of capitalist relations of production, as well as contradictory and conflicting relations that may shape state interventions, including those that result from social forces external and internal to the state. As well, the gendered and racialized character of state interventions must be accounted for. Drawn together, these insights frame an analysis of the social relations of the regulation of minimum standards during the postwar years.

Early Origins of Ontario's Minimum Standards

Models of labour regulation are often rooted …