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

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