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Is Work Working? Work Laws that Do a Better Job

PART II — SOCIETY, LAW AND WORK

Chapter Six — Society’s Interests in Worker Protection

All laws are supported by or reflect a set of values and beliefs about human nature, social living and the goals of life. Popular support for laws will depend on the extent to which they reflect the values and beliefs of most people. In a democratic society, law and policy should reflect, to the greatest extent possible, the norms and values of the whole society and not a particular subset of people within that society.

Canadians influence the shape of laws by electing politicians they believe share their values and beliefs. Other institutions and vehicles within civil society also provide people with an opportunity to express their views on the kinds of values they want reflected in their laws. The Law Commission of Canada provides such an opportunity. It is on the basis of this mandate that we are asking Canadians to indicate the core values they would like to see reflected in Canada's work laws. It is our view that any proposed changes should be based on the fundamental values and beliefs of Canadians.

To stimulate a discussion on the normative basis of work laws and policy, we draw on the work of the Canadian Policy Research Networks (CPRN). In the fall of 2002, the CPRN invited a representative sample of Canadians to identify the core values they want to see reflected in the laws and social institutions of this country.⁵⁷ The results serve as a useful comparison. We invite you to consider whether, and to what extent, you see yourself and your community of interest reflected in these values. Are there other core values not expressed here you think should be reflected in Canada's work laws? What weight would you put on the various values?

A Vision of Canada in the 21 st Century

· Is this view consistent with your vision? Would you put more emphasis on other values?

· Do Canada 's laws and policies about work reflect this vision? If not, what changes are needed?

There are no straightforward answers. Some people believe that to fulfill Canada's commitment to justice and equality, fundamental changes are needed to better protect and support workers such as those in the four case studies. Others believe any changes that would result in a further restriction of employers' abilities to manage their workforce as they see fit undermines the competitiveness and productivity of the Canadian economy and, ultimately, harms workers.

As a society, we have an interest in the productivity of our workers, the efficient use of human resources and the competitiveness of our nation. But, are the values of productivity, efficiency and competitiveness more important than our interest in the protection of vulnerable workers? Are these values really in conflict and if so, do trade-offs have to be made? How are conflicts of this nature resolved? Who gets to make the decisions about the trade-offs? What mechanisms are in place to allow for a full debate on these issues?

Productivity as a Means, Not an End

Canadians in the CPRN study placed a high value on a strong market economy. They wanted Canada's laws and social policy to contribute to the productivity of the nation and to work with market forces instead of against them. They preferred more use of market instruments or other alternatives to command and control regulation of corporate behaviour.

Arguably, labour and employment protections and benefits do contribute to the productivity of the nation. Productive workers ensure the competitiveness of the industry and its continued revitalization. Many worker protection laws ensure that employers preserve the “productivity” of the worker. Preventing workplace injury ensures that one careless employer does not sacrifice workers. Samuel Yaul's back injury is a burden to Samuel and his family, his community and society. Samuel may be prevented from fully contributing as a worker because of this injury. Similarly, helping the Yaul brothers learn to read, write and speak English is a service to their future employers. Finally, rewarding employees (financially and otherwise) is the best guarantee of their continued interest in the job. So in fact, many labour protections have an economic basis and aim at maintaining a productive workforce.

However, circumstances exist in which measures to promote worker well-being would seem to undermine the efficiency of the market. For example, laws designed to redistribute the rewards of work through mechanisms, such as a minimum wage or pay equity, are often viewed as being in conflict with the promotion of market efficiency.

There is little debate that market forces have limited power to ensure the well-being of workers. An unregulated market does not necessarily promote the social and economic goals and interests of civil society. For example, there is ample evidence that market forces on their own will not eliminate discrimination against certain groups of people. State intervention may be necessary to accomplish these goals. While there may be ways of intervening to achieve these social goals that are less disruptive and more compatible with market forces, inevitably, there will be times when the values of efficiency and equity will be in conflict. What is to be done in these cases?

Some people advocate an integrated approach⁵⁸ to the evaluation of the utility of a particular measure. Such an approach must consider the impact of the measure on all the actors and institutions in society. Thus, what may appear to be an efficiency-enhancing measure may create greater inefficiencies when viewed in a broader context. Workers who are unable to parent properly or who have health issues arising from their work may create inefficiencies, which undermine the cost savings of a particular measure.

Moreover, many Canadians contend that the end goal of a strong and productive economy is not the generation of more wealth for its own sake. Rather, the point of all our striving for productivity, increased domestic product per head and internationally competitive markets is to provide a means for expanding peoples' capabilities to live longer, better and more meaningful lives.⁵⁹ The integrated approach recognizes the importance of market forces without viewing them in isolation or permitting them to take precedence over the ultimate goal of human flourishing for all.

Questions:

· Are the values expressed above consonant with your values and those of your community of interest?

· When trade-ofs have to be made to accommodate the competing interests, goals and values of various groups, how should that be done?

· Is it helpful to view productivity as a means to an end rather than as an end goal?

· What are the implications of this approach?

Social Justice and Equality

Equality, justice and fairness were considered by participants in the Citizens' Dialogue to be the bedrock of the Canadian community. The central requirement, as they saw it, was providing equal opportunity and levelling the playing field for people who have been born with, or have experienced, very limited advantages and opportunities. For this reason, participants found working poverty offensive, and insisted on the importance of a living wage. They also believed that access to education and training should receive priority, because it is a way to achieve greater equality of opportunity. However, as has been discussed, concerns about fiscal austerity have greatly reduced training and skill development opportunities for many disadvantaged workers.

Questions:

· To what extent should the values of social justice and equality be reflected in Canada 's labour and employment laws?

· Do the current laws and policies adequately reflect and promote the values of social justice and equality?

Decent Work that Meets Basic Needs

Some Canadians believe work should provide the ability to satisfy the basic needs for food, clothing, education, housing, health care and other fundamental requirements for security and dignity of the person. Participants in the Citizens' Dialogue articulated a vision of a working society where everyone who can work full time should be able to earn a living wage to support themselves and their families. Unfortunately, the gaps and deficiencies in Canada's current laws and policies prevent all Canadians from having their basic needs fully met through paid work.

Many Canadians also believe that workers should be free from discriminatory treatment, harassment and unsafe work conditions, and they should be paid for overtime, receive paid holidays and vacations, and other such minimum standards for decent work. Indeed, Canada is a member of the International Labour Organization, which has declared the right of workers to work in conditions of freedom, equity, safety and human dignity.

While many Canadians believe workers should be entitled to minimum standards for decent work, there is disagreement over the core components of these minimum standards and the extent to which state and third-party intervention is permitted. There is also a prevailing view that the promise of financial reward may compensate some workers for not having these minimum conditions met as in the case of self-employed workers. Finally, some individuals may be concerned that improving work conditions for workers, such as exotic dancers, might not be in the best interests of society.

“There was general support in the group for a working society, a society that does encourage people to work, but also supports people to work, meaning that...you should be able to live off your income and that involves either raising minimum wages or giving extra support for people at the lower end of the income scale. We want to encourage work — we also want to make work something that gives people dignity and a living income.” 60

Questions:

· Should all workers be entitled to work that meets certain minimum standards and provides the means to satisfy basic needs?

· If not, who should be exempt?

· On what basis should they be exempt from these protections and rights?

The current regulatory framework is based on the notion that individual workers have full responsibility for their own well-being. Any economic security comes from being able to upgrade, market and sell their skills. To a certain extent, this is consonant with the general attitude of participants in the Citizens' Dialogue who felt that all but the most vulnerable members of society must take personal responsibility for their well-being, and any program to assist workers must encourage self-reliance and personal responsibility.

Alain Supiot, a labour law specialist from France, has stated that there are three necessary components to work: freedom, security and responsibility. If we remove security, as we have done for many workers, then they are made entirely responsible for their own destiny.⁶¹ Evidence suggests significant numbers of workers, who lack the support necessary to insure against risk and achieve security in a highly competitive labour market, are unable to do this. Supiot thus suggests that new forms of security, which are not dependent on a standard employment contract, must be offered to assist workers in making responsible decisions with respect to their careers.

Questions:

· Do you think the values of self-reliance and personal responsibility should be reflected in Canada 's labour and employment laws?

· Are those values adequately reflected and promoted in current laws and policies?

· What do you think about the view that workers need support to achieve self-reliance and take responsibility for their careers?

Another value identified by participants in the Citizens' Dialogue was compassion. Governments, individuals, business and communities, all have a responsibility to assist those who are vulnerable or marginalized. Everyone is entitled to a fair chance to become more self-reliant, and the most vulnerable should be supported, even if they cannot give back.

Questions:

· Are these values and ideas consistent with your beliefs?

· Are they adequately reflected in current laws and policies?

· What would have to change to reflect your values on this issue?

The participants valued social institutions and laws that promote healthy families. In turn, healthy families require healthy parents who are not overwhelmed by trying to keep up with paid labour and unpaid work obligations. This may require more family-friendly policies and laws. This, in turn, likely involves more than merely granting requests for flex-time.

Questions:

· Are these values and ideas consistent with your beliefs?

· Are they adequately reflected in current laws and policies?

· What would have to change to reflect your values on this issue?

Summary

The participants in the Citizens' Dialogue generally favoured labour market regulation that struck a balance between the market and other institutions in society that provide social support and protection to workers. Many Canadians appear to be unwilling to sacrifice the well-being of vulnerable workers to the interests of business in enhancing international competitiveness and productivity. There is a view that market efficiency and flexibility are important principles, and disregarding them may undermine the benefits of a measure to improve worker well-being. However, according to some, efficiency and flexibility should not be the only guiding principles. Rather, these values should be placed in the context of the overall goal of enhancing human capability to lead fulfilling lives.

Certainly, the values we hold and the priority we give to them have important ramifications for the way policy and regulatory options are evaluated. For example, more attention may need to be paid to the costs to families, communities and other institutions in society of increased responsibility for the risks and costs associated with work in the labour force, and unpaid work in the home and community. More support may be required to enable workers to assume this increased risk and responsibility.

We are interested in hearing your thoughts and views on the values expressed here and on the implications for law reform.