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

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PIVOT LEGAL SOCIETYation in the enactment of any municipal legislation relating to the sex industry. B.C.’s Personal InformationProtection Act currently protects the identities of the clients of all businesses. Under the PIPA,a business cannot collect information about an individual or disclose information about an individualwithout their consent. 26In terms of protecting the anonymity of employees, participation in any government-regulatedprograms, such as workers’ compensation or employment insurance, will inevitably result in a loss ofprivacy. Government records are confidential to a certain extent, but ultimately sex workers will losesome degree of anonymity if they want access to employment benefits and protections.Termination of employmentThe ESA permits employers to terminate employees with or without cause. However, the ESA doesprovide certain protections to employees who are terminated without just cause. Employees who areterminated without just cause must receive adequate advance notice of their termination or must becompensated based on length of service. Sex workers pointed out that they could benefit from theprotection available under these provisions. Project participants noted that being terminated withoutcause was a common occurrence in the sex industry:A. The only thing that upset me about the massage parlours here is that you would getfired for no reason.A. Yeah.A. You get fired – like, literally one girl I saw got fired because they didn’t like the soundof her voice and she talked too much.A. It’s so unstable here, or even in Toronto. Some of the bigger cities have less regulationsand its so, unstable, like. Like here, our eggs are in one basket, and they can just blowup at any time. Like this place, they ask you, they want you to keep quotas, they keeptabs with your clients to make sure that you are polite, if you are rude, if y’know – gosomewhere else. Well there’s a demerits point towards you, you get warnings, just likeany other job, you get written up, and then eventually, you can get fired. If you areabsolutely terrible, y’know.- female off-street out-call sex workersDue to the lack of consistency across the industry, a sex work business owner indicated that it wouldbenefit sex workers to have an understanding of what type of conduct could constitute just cause fortermination:A. It depends on the establishment. The place I work at is quite strict, there are a lot ofrules, and actually one of your earlier questions was, could you take clients? Well ifyou were caught with a client’s phone number or giving out your phone number ofcourse you’d be fired, which I guess is a legitimate concern for any business owner if theyare paying all the expenses. Lots, lots of rules at the place I work at as far as . . . showingup to work on time and missing shifts, and if you’re going to be late, and . . . it is aplace that has, is fairly well established and it’s quite busy and they have a high calibreof staff . . .- female off-street in-call sex workerAt present, sex workers have little or no recourse if they are subject to termination without cause andthey do not receive notice or compensation. The application of the ESA to sex workers would provideaccess to the Employment Standards Branch complaints mechanism or allow a civil suit against anemployer for wrongful dismissal.26 Personal Information Protection Act, S.B.C. 2003, c. 63, ss. 6, 7.108
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformSection 2: Workers’ compensation and occupational health and safetyWorkers Compensation ActThe B.C. Workers Compensation Act (the WCA) applies to most people working in B.C. regardlessof whether they are working full-time or part-time, or as employees or independent contractors. Inthe event that the criminal laws related to adult prostitution are repealed, sex workers should be ableto avail themselves of B.C.’s workers’ compensation scheme where they satisfy the criteria governingany other worker in the province.The WCA has two main components: provisions to prevent injuries to workers, and provisions toprovide compensation benefits for injuries and diseases incurred in the course of employment. TheWorkers’ Compensation Board (the “Board”) is responsible for overseeing the workers’ compensationscheme. Employers pay into a compensation fund. If a worker is injured on the job, he or she maymake a claim for compensation under the WCA. Because the system is employer funded and not taxor general revenue funded, employers are assessed on their payroll at a percentage that reflects theinjury, disease and death rates that occur in the industry, as well as the cost of claims for that specificemployer. Compensation can include payment for lost wages due to an injury or illness incurred onthe job, and compensation for medical costs. 27 Workers will be covered even if an employer has failedto register with the Board, but this means that employers who are difficult to identify or locate drivethe costs up for employers who are registered and assessed by the Board.Once a worker files a claim, a Board representative assesses it to determine whether or not theworker qualifies for compensation. To be eligible for compensation a worker must have sustained apersonal injury or disease that arose out of and during the course of their employment. In the casewhere a worker contracts a disease, the work or the work environment must cause the contractionof the disease. In the case of an injury, the worker must have been working when the injury wassustained, and the injury must have been caused by something to do with the job in order to becompensable. In New Zealand, where prostitution has been decriminalized pursuant to the PRA, 28sex workers performing commercial sexual services are considered at work 29 for the purposes of theirequivalent legislation, the Health and Safety in Employment Act. 30All employers who hire one or more workers and pay them on a full-time, part-time, casual orcontract basis must register with the Board, and comply with the WCA and regulations. Under thelaw, employers must also pay their premiums and submit their payroll to the Board. The employerpays these premiums in addition to the wages paid to the employee, and is not permitted to deductmoney from a worker’s wages or salary to put towards premiums. The most important duty placed onemployers by the WCA is the duty to provide a safe workplace and to protect the health and safety ofworkers. Employers have an obligation to report injuries and diseases within three days. Under theWCA an employer can have their business shut down for failure to ensure safe and healthy workingconditions for workers.The main duties placed on the worker under the WCA are to report injuries and to seek medicalattention when injured. Workers have the right to report a claim when injured and an employercannot prevent or try to prevent a worker from doing so. If, at the time of injury, a worker requiresan ambulance or transportation from his or her workplace to the doctor’s office or the hospital, theemployer is required to pay the cost.27 Wage-loss payments will usually be 90% of the claimant’s average net earnings at the time of injury. In determining the claimant’saverage net earnings, the Board will deduct probable Canada Pension Plan contributions, Employment Insurance premiums andfederal and provincial income taxes. Average earnings may not exceed the maximum wage rate. The minimum and maximum wagerates are adjusted every year.28 PRA, supra note 18.29 Ibid., s. 10(1).30 Health and Safety in Employment Act 1992 (N.Z.), 1992/96.109
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