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

PIVOT LEGAL SOCIETYThe Law Commission of Canada has studied the evolution of the Canadian workforce and statesthat there has been an overall shift towards “non-standard” workers, a grouping that includes independentcontractors. In most circumstances, this is disadvantageous for workers:Some non-standard workers combine flexibility with adequate to excellent financial remunerationand work conditions. However, there is growing evidence that many others are not faringas well. Among the problems associated with non-standard work are the following: poor pay,little job security, a lack of access to important statutory benefits and protections (such asEmployment Insurance, employment standards protections, workers’ compensation, the rightto collective bargaining) and a lack of access to employer-provided benefits such as dental, lifeand disability insurance. Although the phenomenon of non-standard work has been growingfor many years, labour and employment legislation, originally designed to provide conventionalemployees with a minimum of social protection, has not been updated to reflect thesenew realities. 10Nevertheless, an employer’s decision to label a worker as an independent contractor is not bindingon a court or tribunal. It is only by looking at the factors set out on page 81 that one can establishwhether a worker fits the legal definition of “employee.” Based on the information they providedabout their workplaces, it would seem that many sex workers in this project meet the legal definitionof “employee.” Even so, the bottom line will always be that no one can compel a sex worker to engagein any particular sex act, in which case a third party hiring a sex worker can not control actual sex work.What aspects of sex work will be under an employers’ control? If the sex industry is completelydecriminalized, a third party or employer will be able to control the circumstances in which the worktakes place. Presently, even this degree of control is not possible given the criminalization of any thirdparty involvement in prostitution through the various bawdy house, procuring and living on the availssections of the Criminal Code. As a result, sex workers are denied the right to claim any of the benefitsand protection that employee status would bring under the ESA.Sex workers as employeesAll sex workers interviewed – including street-level workers, independent escorts and those whoalready work for an employer in escort agencies and massage parlours were asked whether theywould consider working for an employer, or would chose to continue working for an employer if theindustry was decriminalized. There was significant variation among sex workers’ responses. Some wereclear that they did not want to work for employers, and were only interested in operating as selfemployedsole proprietors. Others were interested in working for an employer, but varied in terms ofthe degree to which they wanted an employer to control the terms and conditions of their work.A particularly predominant view among male sex-worker participants was that they wanted tooperate independently as sole proprietors. Both male and female sex workers expressed the followingreasons for preferring to work independently. First, many sex workers said that they did not want topay any part of their earnings to another person. Second, many stated that they want to enjoy as muchflexibility and independence as possible, and did not want to be constrained by anyone else’s rules.Q. If you’re working in the sex trade, would you prefer to work independently, or workfor an employer?A. Definitely independently.A. Independently.A. Independently . . . .10 Canada, Law Commission of Canada, Discussion Paper - Is Work Working? Work Laws that Do a Better Job, (Ottawa. Law Commissionof Canada, 2004) at 5 [Is Work Working?].82