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

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PIVOT LEGAL SOCIETYthat lately. My only option is to save my money and to make sure that I have some forthe year I stay home.- female off-street in-call sex workerRecipients of EI have to satisfy a complex set of criteria. For example, when receiving “regularbenefits” during periods of unemployment, an EI recipient must be able to demonstrate that they arewilling and able to work at all times. They must be able to demonstrate that they are looking activelyfor work, and maintain a record of their work search. Claimants can be disentitled to benefits if theyfail to prove that, on any given working day, they were capable and available for work and unableto find “suitable employment.” 10 In light of these criteria, would HRSD see prostitution as “suitableemployment,” and under what circumstances would it be viewed as such? Depending on the interpretation,HRSD could disqualify a claimant for refusing to look for or accept employment as a sexworker. Again, the New Zealand legislation deals with this eventuality by providing that a person’srefusal to engage in sex work does not affect his or her entitlement to benefits such as EI. The sexworkers we talked to agreed that this type of provision should be included in the Canadian EIA.Even if sex work is completely decriminalized, Canada’s EI scheme will still exclude specific groupsof sex workers who may need financial support during periods of unemployment. For example, independentcontractors do not have EI deducted from their pay, and therefore cannot claim EI benefits.A significant proportion of sex workers are currently categorized as self-employed workers or independentcontractors, and will likely continue to be so even if the criminal laws are repealed. Therefore, itis likely that many sex workers will continue to be barred from participating in EI.Part-time workers and workers who are faced with fluctuating levels of work often are alsoexcluded from EI. Many of these workers are ineligible for EI because they do not meet the minimumnumber of hours of insurable employment that is required during the qualifying period to be eligibleto claim EI. Most people will need between 420 and 700 insurable hours of work during their qualifyingperiod to be eligible, depending on the unemployment rate in their region at the time of filingtheir claim for benefits. 11 These workers can be denied benefits even after having paid into the system.Many sex workers currently work part time or experience fluctuating levels of work and, therefore,could be denied benefits for not having worked an adequate number of hours in the period beforethey became unemployed. Sex workers will benefit from the EI scheme if it is restructured to allowself-employed workers to pay into the EI program, and if part-time and other vulnerable workers arenot subject to a requirement that they work a minimum number of hours of insurable employment intheir qualifying period.Income Assistance recommendations1. B.C. should enact legislation that is modelled after the New Zealand PRA which states that aperson’s entitlement to social assistance may not be cancelled or affected in any other way by his orher refusal to work, or to continue to work, as a sex worker.2. Repeal the EAA two-year employment rule because it creates an unreasonable barrier for individualswho need welfare.3. If the two-year employment rule remains in force, then prostitution should be recognized as“employment” under the two-year employment requirement for income assistance.10 Ibid, s. 18.11 Ibid., s. 55.156
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform4. B.C. employment and assistance workers should include prostitution as a form of work contributingto the 840 hours that must be worked in each of the preceding two years in order to qualifyfor welfare.5. Income assistance rates should be raised to reflect current living costs and to provide a reasonablestandard of living.6. All income assistance recipients should be allowed income exemptions.7. Eliminate the three-week waiting period.Employment Insurance recommendations1. Enforce the requirement that employers in the sex industry pay into EI on behalf of theiremployees.2. The EIA should contain a provision which states that refusal to work in the sex industry does notaffect a person’s entitlements to EI.3. EIA should be amended so that self-employed workers are able to pay into the EI program.4. Part-time and vulnerable workers should not be subject to a requirement that they work aminimum number of hours of insurable employment in their qualifying period in order to qualifyfor EI.157
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