Home Research Projects The Vulnerable Worker Publications Is Work Working - Discussion Paper Chapter 9

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The Vulnerable Worker

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Is Work Working? Work Laws that Do a Better Job

PART III — WORK LAWS THAT WORK BETTER

Chapter Nine — Rethinking the Employee-Employer Relationship

The new employment reality may mean the contract of employment is not the best focal point for labour and employment laws and policies, since many vulnerable workers find themselves outside the legal definition of employee. Should public policy and laws use a different concept to articulate their intervention? Is there a different way of delivering the rights and benefits required to promote human flourishing? What other and better platforms exist?

Canadian Residency

In Canada, we already have publicly funded medical care and health insurance as an example of “benefits” that are attached to Canadian residency and are not, as in the United States, dependent on employment or the lack thereof. Arguably, this has created a significant competitive advantage for Canada. Thus, we are not unfamiliar with the idea that providing the infrastructure to develop and maintain human capability requires, at times, a total detachment from the employment contract.

Other benefits and protections might reasonably be attached to Canadian residency. These could include dental and vision care, child care, education and training, pensions and possibly basic drug plans. There is no doubt that the cost of publicly funding these kinds of programs would be extremely high. However, it may be possible to devise creative financing options to provide workers with a choice of participating, for a cost, in a given program. Moreover, it is important to consider whether the productivity gains as a result of these investments might offset some, if not all, of the costs associated with the programs.

Worker/Professional Organizations

It has been suggested that worker associations could facilitate the delivery of benefits and the protection of rights in ways that cannot be as efficiently accomplished by other mechanisms.⁷¹ Worker associations mean both formally recognized bargaining agents as well as non-union representation vehicles, such as professional associations (e.g., medical, bar, engineering) and employee associations.

“Unions are often more effective at devising readjustment programs because their focus is broader than that of the departing or shrinking employer[…]. I think there are tremendous opportunities in such areas, particularly in partnership with government.“ 72

The construction industry provides an example of how unions, employers and government can work together to create new models to suit the new employment realities. In that industry, as in many others, workers are greatly affected by job uncertainty, the risk of unemployment at the end of a major project, intense bouts of overtime followed by slack periods, considerable seasonality and irregularity in the receipt of benefits. Rather than unions succumbing to strife and labour turmoil to resolve grievances and advance the interests of workers, there has been a marked tendency to develop joint labour-management councils with multiple parties. These joint councils have created major initiatives to smooth out employment difficulties, such as new dispute resolution procedures and multi-employer benefits plans. They have tackled seasonality issues and tried to create more stable employment situations for more workers.⁷³

Outside the traditional union sector are what has been referred to as “human capital organizations.” For example, nursing associations are a human capital organization, because they provide training, insurance, professional discipline and certification. These kinds of organizations may be able to provide benefits and entitlements in a more efficient manner than other potential vehicles.

It has also been suggested that unions or worker associations may provide a potential vehicle for the portability of pensions. As workers shift from one workplace and employer to another, they need to be able to move their pensions with them.

However, as we have discussed, there has been a general erosion of the strength of trade unions over the past few decades, and they have not generally been replaced by other kinds of worker associations. Most labour observers cite the absence of centralized and co-ordinated bargaining across labour markets as the major impediment to unions' abilities to retain and expand membership.⁷⁴ Hence, they call for changes to labour laws that would allow for sectoral bargaining, among other changes. The value of employee associations of some nature in providing an effective vehicle for the delivery of benefits and in ensuring the protection of worker rights is an idea that might merit consideration.

Social Drawing Rights — The Life Cycle Approach

There is now a move toward the recognition of a worker's membership in the labour force over the course of a lifetime to provide the legal status for according a particular set of rights and benefits.⁷⁵ This is an occupational status that does not refer to a specific employment contract. Rather, it extends beyond the immediate contractual commitment to a particular job to cover the diverse forms of work experienced during one's lifetime, including non-marketable forms of work such as child and elder care. “Social drawing rights” would facilitate the worker's ability to move in and out of the paid labour force to accomplish certain social purposes, such as occupational training, child or elder care, and volunteer work.⁷⁶

The idea is that workers would be able to draw on rights or credits accumulated during their working lives. The rights release time and provide continuity of income during periods of non-participation in the paid labour force. Thus, a worker may decide to draw on accumulated credits to receive income support while working part time in the labour force in order to care for preschool children at home. Or, a worker like Samuel Yaul may draw on the rights he has accumulated to receive financial support while attending school.

The funding for social drawing rights is provided by various sources: the state, firms, trade unions, social security agencies, professional bodies, insurance companies and workers themselves. The loan or grant provided through the social drawing rights program may be supplemented by technical assistance to support the worker's initiative (e.g., assistance in setting up a business).

The social drawing rights system recognizes the autonomy of workers and their need for support. Workers are given real freedom to choose flexible work arrangements and upgrade their skills, because the financial security and support necessary to exercise that freedom is there. Social drawing rights spread the risks involved in exercising the freedom to move in and out of the paid labour force and thereby make it a real, as opposed to imaginary, freedom. In this way, workers are not being told to take responsibility for their own economic security without being given the support to do so. There is a collective responsibility to fill the pool of social drawing rights, so the risks involved in the flexible labour market are more equitably borne by all, including the worker. Thus, the system, which puts the responsibility on workers to make decisions about when and for what purpose to draw on their rights, is consistent with the notion of individual as well as collective responsibility.

It is important to distinguish this system of insurance against voluntary risk from the system that provides protection against involuntary risks, such as unemployment or underemployment as a result of disability, injury, illness or job loss. A worker should not be forced to draw on accumulated credits for involuntary employment interruptions. Moreover, the social drawing rights system depends upon a solid foundation of public services.

Kuc and Samuel Yaul might well obtain real benefit from a system such as this. The brothers were unable to engage in the training needed to escape long-term poverty. Yet, through the work they do, they contribute in very real ways to the Canadian economy and thus, it would make sense to ensure their access to vocational training without the requirement that they be unemployed or on welfare first.

Certainly, reforms in the area of work law and policy will have an important bearing on the social security system and therefore, the two should be considered together.

· Is there merit to the notion of social drawing rights? Would this concept empower people to make responsible choices about the balance between career and family? Would the idea of achieving a work -family balance be helpful to the economy?

· What is the role of workers'associations and unions in protecting against vulnerability?

· What are the positive and negative features of the proposals canvassed in this chapter and the preceding chapters?

· Are there other reforms that might combine the positive features you have identified?

· What would be needed to implement such alternatives?