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

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PIVOT LEGAL SOCIETYSex workers as “employees” versus “independent contractors”6. Sex workers should be provided information to assist them to understand the different rights andprivileges that are offered to workers who are classified as being “employees” as opposed to “independentcontractors.”7. Sex workers who are deemed to be independent contractors by their employers, but whoseemployment circumstances fit the legal definition of “employee,” should be given full access to theEmployment Standards Branch, Labour Relations Board or a court of law in order to seek recognitionas “employees,” and have their rights protected as such.Hiring practices8. Employees in the sex industry should be provided with full access to the protections found in theESA relating to hiring practices, including the right to be fully informed about the nature of theposition and the conditions of employment.Coercion9. Job applicants and employees should have full access to the Employment Standards Branch andthe police in cases where, during the interview process or at any other stage of employment,an employer coerces or forces a job applicant or employee to engage in sexual activity with theemployer or any other person.Children and youth10. The conduct of employers and clients should continue to be subject to the Criminal Code provisionsthat prohibit obtaining for consideration, or communicating with anyone for the purpose ofobtaining for consideration, the sexual services of a person who is under the age of 18 years. 127Limits on employment contracts11. Enact a section in the ESA that sets out that the fact that a person has entered into a contractto provide commercial sexual services does not of itself constitute consent for the purposes ofthe criminal law if he or she does not consent, or withdraws his or her consent, to providing acommercial sexual service. In other words, despite entering into an employment contract, a sexworker must always maintain the right to refuse to provide sexual services and the right to withdrawconsent at any time. This section should explicitly state that it applies to both employees andindependent contractors.12. Enact a section in the ESA that permits persons to create contracts for provision of commercialsexual services subject to the following proviso: despite any terms of a contract for the provision ofcommercial sexual services, a person may, at any time, refuse to provide, or to continue to provide,a commercial sexual service to any other person. If a person refuses to provide or continue toprovide a commercial sexual service, the other party may recover damages for a commercial sexualservice that is not performed. This section should explicitly apply to both employees and independentcontractors.13. Provide accessible plain-language information to employers and workers about the specific limitationsthat must be considered when drafting sex work employment contracts.127 CCC, supra note 1, ss. 212(2), 212(2.1), 212(4).146
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformTermination14. Enact legislation that stipulates that refusal to provide a commercial sexual service to any persondoes not constitute “just cause” for the termination of an employee.Terms of employment15. Provide employees in the sex industry with the wage protections found in the ESA in order toensure that they do not earn less than the minimum wage.16. Provide employees in the sex industry with information about what job training and business coststhe employer must pay under the provisions of the ESA.17. Provide employees in the sex industry with full access to the Employment Standards Branch ifthey are being subject to illegal penalties or fines by their employer.18. Provide employees in the sex industry with information about their rights in relation to hours ofwork, overtime, statutory holidays, vacation time and sick days.Privacy19. Protect personal information about sex workers and their clients by protecting that information inexisting B.C. privacy legislation.Complaints and grievances20. The existing grievance process for employees in B.C. is problematic in terms of its ability to handlethe employment issues that sex workers face. This system must be evaluated with the specific needsand issues that confront marginalized workers, and particularly sex workers.21. Sex workers should be supported if they chose to look further into the possibility of developingtheir own professional regulatory body.Unionization22. Respect the rights of sex workers under the Universal Declaration of Human Rights and theInternational Covenant for Economic, Social and Civil Rights by decriminalizing employer/employeerelationships within the sex industry, and by providing sex workers with full access to the unionizationprocess as set out under the LRC and the Canada Labour Code.23. The Canadian Labour Congress should support the repeal of the criminal laws surrounding adultprostitution and support sex workers in their efforts to become unionized.24. Provide resources and information to sex worker groups for further discussions, consultation andresearch on the question of union formation, certification and the creation of effective bargaining units.25. Provide sensitivity training and education to all levels of Labour Relations Board staff andmembers so that they are able to handle cases involving sex workers in a sensitive and respectfulmanner.Workers’ Compensation26. Repeal the criminal laws relating to adult prostitution and provide sex workers with equal access tothe protections found in the WCA.27. Ensure that coverage for independent workers is affordable and practical.28. Add HIV/AIDS to the list of compensable diseases in Schedule B in order to protect workers inany profession who face the possibility of contracting HIV in the course of their employment, and147
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