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

BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformto participate in the compensation scheme. Section 2(2) allows for optional protection coverage for“independent operators.” The concept of the “independent operator” under the WCA differs from theconcept of the “independent contractor” under the ESA.The Board defines an independent operator as an individual who is neither an employer nora worker to whom the Board has deemed that coverage applies, as if the independent operator isa worker. An independent operator performs work under a contract, but has a business existenceindependent of the person or entity for whom that work is performed. An independent operator isan “independent firm.” 36 This feature of the WCA is significant for the large number of sex workerswho indicated that they would prefer to work independently without an employer. In B.C., such selfemployedworkers and other individuals not expressly covered by the WCA currently have the optionof purchasing Personal Optional Protection (POP). POP is paid into by the independent operatorhimself or herself. Under this scheme, self-employed workers can be covered for wage loss and medicaland rehabilitation services should they be injured during the course of employment. 37 In general, POPcoverage costs the independent operator more than the premiums paid by employers on behalf ofworkers.Under s. 2(1) of the WCA, the Board does have the discretion to exempt certain classes of workersfrom coverage. For example, in 1994 the Board formally exempted professional sports competitorsfrom the workers’ compensation scheme. 38 The Board justified its decision by reasoning that itsinability to regulate the safety and health of sport participants is incompatible with the purposes ofthe WCA. Given that the Board already recognizes escort and massage parlour work as a viable formof employment eligible for coverage, presumably it should cover sex workers too, should prostitutionbe decriminalized. In that event, the Board should consult with sex workers about coverage options.A similar scheme to protect self-employed sex workers also exists in New Zealand. There, independentworkers are covered through New Zealand’s equivalent workers’ compensation scheme, theAccident Compensation Corporation. New Zealand has managed to make coverage for independentworkers affordable and practical. While employers of sex workers in New Zealand had to pay 56 centsper $100 of liable earnings in 2003-2004, self-employed sex workers were able to pay a comparable57 cents per $100 of their earnings in order to obtain coverage. 39Types of compensation for sex workersStreet workers, escorts, and massage parlour workers all expressed support for obtaining coverageunder the WCA for injuries that occur in the course of employment. Sex workers described the riskof contracting sexually transmitted diseases, as well as physical injuries from common workplaceaccidents or violence:A. Well, if they are going to be legal, then they are going to be given the same rights asany other – they are going to have to follow labour laws, they are going to be taxed.They are going to have these things. So they might as well take the benefits. Its notjust STDs, some women get beaten up and they can’t work. Some women sprain theirankles from walking down the stroll. Y’know, a lot of different things happen on thejob.- female off-street out-call sex worker36 Workers Compensation Board of B.C., Assessment Manual (B.C. Workers Compensation Board, 2003) at AP 1-1-6.37 WorkSafeBC, Apply for Personal Optional Protection (WorkSafeBC Online Services), online: WorkSafeBC .38 B.C., Workers’ Compensation Reporter, Decision of the Governors, vol. 10(2) (B.C. Workers’ Compensation Board, 1994) at 174.39 “New Zealand Fully Decriminalized in 2003, but Street Hookers a Problem,” online: Decriminalize Sex Work Now Coalition.111