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

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PIVOT LEGAL SOCIETYThe commonly held stereotype about “pimps” holds true in some instances, but it should not be seenas representative of all current employer-employee relationships in the sex industry. In this project, sexworkers stated that, even under the current laws, there are good employers in the industry. However,it was agreed that sex workers would be able to benefit from better relationships with their employersif the criminal laws were to be repealed.Before moving further into this discussion, it is important to acknowledge that improving employmentprotections for sex workers is only one of the steps that must be taken to protect the humanrights of sex workers. Too many sex workers are engaged in prostitution against their will and workunder very dangerous circumstances. Some sex workers are extremely disempowered by individualswho use violence and intimidation to exploit their labour. Some sex workers are coercively traffickedinto Canada, and face the prospect of arrest and deportation if they speak out. For workers in thosecircumstances, their needs extend far beyond improved working conditions. Their desire to exit thetrade and access protection from those who are exploiting them is the more important consideration.For them the remedy lies in their ability to access police protection, and protection under humanitarianimmigration laws. These issues are addressed in other chapters of this report.For workers who choose to engage is sex work, the focus on employment protections is a vitallyimportant one. Their right to work in a safe work environment should be legally protected. Evenfor those sex workers who intend to exit the industry, providing a safe work environment while theyremain in the industry both reduces the potential for harm to the worker and may facilitate his or hertransition out of prostitution. Sex workers were asked to consider the types of employment protections and benefits that theywould like to see if they were operating in a decriminalized work environment. Sex workers from allsectors of the industry were unanimous in their opinion that their working conditions must improve.The following chapter provides an overview of sex workers’ views on employment benefits and protections,and an analysis of whether the existing legislation provides adequate protection for the sexworker.Section 1: Employment standards and protectionsThis chapter will refer to a number of statutes, but will focus on the B.C. Employment StandardsAct, the Labour Relations Code and the Workers Compensation Act. • The Employment Standards Act (the “ESA”) sets out the minimum workplace standards for mostemployees in B.C., including such things as minimum wage, protection of wage payment andprevention of exploitation by employers. The ESA applies to both unionized and non-unionizedemployees. The ESA sets out both general workplace standards and specialized standards forparticular industries.• The Labour Relations Code (the “LRC”) is also relevant to this discussion because it sets out thelaw in relation to unionization and the relationship between unions and employers. The ability toenjoy the protections that union membership offers is set out in the LRC. In order to be a part of aunion, you have to be an “employee.”• The Workers Compensation Act (the “WCA”) contains a provincial compensation scheme throughwhich employers pay into a compensation fund. When a worker is injured on the job, he or she “Voices for Dignity: A Call to End the Harms Caused by Canada’s Sex Trade Laws” (March 2004), online: Pivot Legal Society [Voices]. Employment Standards Act, R.S.B.C. 1996, c. 113 [ESA]. Labour Relations Code, R.S.B.C. 1996, c. 244 [LRC]. Workers Compensation Act, R.S.B.C. 1996, c. 492 [WCA].80
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reformmay make a claim for compensation under the Act that includes compensation for lost wages dueto the injury and compensation for medical costs.• The WCA has an associated set of regulations called the Occupational Health and Safety Regulation (the “OHSR”). The OHSR sets out the minimum requirements for health and safety standards inthe workplace enforced by the Board in all industries covered by the WCA. When discussing employment and labour protections for sex workers, it is important to understandthe distinction between workers who are “employees” and workers who are “independentcontractors” or “self-employed.” The ESA standards and the right to unionize under the LRC are onlyavailable to “employees” and not to “independent contractors” (for a more detailed discussion, seepage 81). This means that only sex workers who fit the definition of “employee” will be able to accessthese rights and protections.Section 1 of the ESA sets out a general definition of the term “employee.” The section says thatan employee is someone who works for another person and is entitled to receive wages. However,establishing who is an employee is complicated. To determine whether someone is an employee forthe purposes of employment protection, the Supreme Court of Canada has ruled:The central question is whether the person who has been engaged to perform the servicesis performing them as a person in business on his own account. In making this determination,the level of control the employer has over the worker’s activities will always be a factor.However, other factors to consider include whether the worker provides his or her own equipment,whether the worker hires his or her own helpers, the degree of financial risk taken bythe worker, the degree of responsibility for investment and management held by the worker,and the worker’s opportunity for profit in the performance of his or her tasks. In short, the more control that the hirer has over the worker, the greater the chance that the relationshipwill be categorized as an employer-employee relationship, and thereby qualify the worker and thehirer to protection under the ESA. Finally, an employee can work on a part-time, full-time, temporaryor permanent basis without it affecting his or her legal status.Sex workers as employees and independent contractorsCurrent conditions in the sex industryParticipants who work for an employer were asked about their employment status. All those whoresponded to this question stated that owners or managers have told them that they are “independentcontractors.” Therefore, the data indicates that there is a trend among employers in the sex industryto classify their workers as independent contractors. This is partly an effect of criminal sanctionsagainst procuring; employers distance themselves from acts of prostitution by arguing that it is up tothe independent contractor to decide whether their work crosses the line from massage or “escorting”into sale of sexual services. Also, it is consistent with the increasing trend in many other industries,including “exotic dancing,” to define workers as independent contractors, because it relieves theemployer of the responsibilities set out in the ESA. What many workers do not realize is that, evenif their employer tells them they are independent contractors, depending on the individual circumstancesof the employment relationship, the courts may not agree. This means that many workers whobelieve they are independent contractors may be, in the eyes of the law, employees entitled to fullprotection under the ESA. This common misunderstanding further emphasizes the need for increasedlegal education for workers. Occupational Health and Safety Regulation, B.C. Reg. 296/97 [OHSR]. Ibid. s. 2.1. 67122 Ontario v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59.81
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