Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYA. But I think you’re talking more – can they make you work for 12 hours straight?A. Oh, okay.A. No. I think it should be different shifts.A. Different shifts, ya.A. On call?A. Eight-hour shifts.A. That would be fair for everyone.- female off-street out-call sex workersA. Yeah, but I would make it our own . . . like, eight hours is a long time to be doingwork on the street or whatever right. So, I mean, the hours would have to bedifferent. I mean, some girls like to work that long. Me, I like to two or three hoursand I am finished. I don’t want to be spreading my legs for eight hours a day. It isway too long for me.- female street-level sex workerSeveral other project participants said that when working for an employer, it is important to beprotected from unreasonably long workdays. If self-employed workers wish to work longer hours, theyshould be able to, without any constraints, as this discussion illustrated:Q. What about hours of work and overtime? So say you’re working for somebody shouldthere be a maximum number of hours that you should be required to work and if youwork past a certain number of hours . . .A. Not when it comes to the sex trade, no.A. 24 hours on call.A. I don’t think in the sex trade, I don’t think a person should have to work more than12 hours a day. If you have to work more than 12 hours a day then your employerseriously needs to be changed. But if you’re working for yourself that’s a 24-hour joband you can work the 24 hours if you want to. That’s your choice.A. Due to the fact that it is a very short life span in terms of jobs and careers it shouldbe able to be worked 24 hours. We shouldn’t have to be restricted to eight hoursbecause you know, eight hours, people got eight hours for 30 years and we got what,eight hours for five, six years, whatever. We should be able to work you know . . .A. . . . I think that you don’t want sweatshops developing.- male street-level sex workersAccording to these opinions, sex workers would be permitted to work lengthy shifts under the ESA aslong as they do not work “excessive hours.” The ESA prohibits employers from requiring or allowingemployees to work excessive hours, or hours harmful to their health or safety. 23If defined as employees, sex workers also would be entitled to overtime pay. The ESA states thatafter working eight hours in a single day, an employee must be paid time-and-a-half for the next fourhours worked, and double-time for all hours worked in excess of 12 hours in a day. An employee whoworks more than 40 hours in a week must be paid time-and-a-half after 40 hours. The ESA wouldpermit sex workers to negotiate with employers the number of hours worked per week. Employersand employees can enter into “Averaging Agreements” that permit hours of work to be averaged overone, two, three or four weeks, thereby enabling employers to avoid paying for overtime. 24Sex workers favoured the idea of having a day off on a statutory holiday while still earning anaverage day’s pay:23 ESA, supra note 4, s. 39.24 Ibid., s. 37.100
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformQ. Okay now what about statutory holidays?A. That’s where payment should be doubled. I’ve worked Christmas Day and I’ve madegood money on Christmas Day but that’s the time when you should actually bespending with your family. Well if you’re going to be working on that you should begetting paid extra. Those are special days.A. Granted it may look unfair to the John that they have to pay double even though theydon’t have anybody to be with on Christmas it’s still a matter of it’s Christmas andlet’s be honest we have friends we’d much rather spend Christmas with than go outand make money in a lot of circumstances.Q. Any other comments about statutory holidays?A. It’s a hard one, it truly is because I find I make my best money on statutory holidaysespecially around Valentine’s and it’s not a statutory holiday so . . .- male street-level sex workersGiven that statutory holidays tend to be especially lucrative for sex workers, they would benefit fromthe protection that an eligible employee who works on a statutory holiday is entitled to: time-and-ahalffor the first 12 hours worked, and double-time for any work over 12 hours.With respect to vacation time, the ESA sets out that after completing one year of employment,an employee is entitled to two weeks vacation. After five years, an employee is entitled to three weeksvacation. Sex workers liked the idea of having a paid vacation.Q. Do you think there should be vacation time that kind of thing, overtime and regularhours?A. Yup, definitely, it’s a stressful job and jobs that stressful should have vacation time. Alot of the time we get asked to stay double shifts, it’s a long day and we should get thereturn of having the benefit of overtime.- female off-street in-call sex workerEmployers are required to provide a number of unpaid leaves, including pregnancy leave, parental leave,family responsibility leave, bereavement leave, leave for jury duty and sick leave. With respect to sick days,Part 6 of the ESA provides for unpaid leaves. Consequently, employees can take time off due to illness andnot be fired for being absent. Fines for missing days of work are illegal under s. 21(1) of the ESA.Currently, sex worker employees are not entitled to paid leaves, statutory holiday pay, overtimepay, or sick time. Sex workers felt that this entitlement would make a positive change to their workingconditions:Q. Okay, next question. Say you’re working for an employer, you’re not independent,should you be able to get leave from work if someone in your family dies.A. Yes, definitely.A. Grievance pay.Q. Okay and what about vacation time?A. Four percent of your earnings.Q. Okay so you guys already know.A. Is it not six?A. It depends on your employer. I think four minimum.Q. So you guys think that the same rules that are normally out there should be . . .A. Oh ya it’s the only way to make us feel part of the working world without judgmentright?- male street-level sex workers101
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