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Is Work Working? Work Laws that Do a Better Job

Introduction

Work is much more than a means to satisfy our physical needs and those of our families. Decent work that makes appropriate use of our abilities, challenges us to live up to our potential, and provides us with an opportunity to contribute is pivotal to our emotional, spiritual and social well-being.

Work may be done for remuneration (paid work), for love (parenting and other forms of care giving) or for the benefit of one's community (volunteer work). All these forms of work contribute, directly or indirectly, to shaping the nature of the society in which we live. And, the way society regards and rewards work has a significant effect on how well we can take care of ourselves and those close to us. It also affects our sense of dignity and pride and the extent to which we participate in, and contribute to, society.

The law plays an important role in determining the kinds of work that are recognized, valued and rewarded and, equally, the kinds that are devalued, ignored or prohibited. The law also plays a role in shaping the balance of power in the workplace, in determining the distribution of rewards and access to rights and benefits on the job. Moreover, labour and employment laws have a significant impact on the costs involved in running a business in this country. In short, the law directly affects the ability of Canadians to achieve personal and economic well-being from the work they do. It also has an impact on the productivity of the nation.

The Law Commission of Canada undertook its examination of Canada's labour and employment laws in response to concerns raised by the Commission's Advisory Council. This group of Canadians expressed the view that Canada's labour and employment laws and social policy, may not be keeping pace with the changes taking place in the world of work. They expressed concern about the number of Canadian workers whose personal and financial well-being is jeopardized by the work they do and who find very little protection and relief in Canada's labour and employment laws and policies.

Specifically, the following concerns were raised about the regulatory framework surrounding work and the reality of Canadian working lives.

· Over a third of the Canadian workforce engages in non-standard work, that is, work that deviates from the standard full-time, permanent employment contract with a single employer. Yet, eligibility for most labour- and employment-related rights, benefits and protections is still based almost exclusively on the standard employment relationship.

· Existing laws and policies may not be achieving a fair distribution of the costs and rewards of participation in the labour force. For example, in 2000, almost two million adult Canadian workers earned less than $10/hour. Many of these workers and their families are impoverished despite having a full-time, full-year job. About 670,000 workers, most of whom are women, are attempting to sole-support their families on less than $10/hour.¹ Many have great difficulty moving out of low-paid work.

· The existing regulatory framework may not adequately ensure that workers have a voice in their workplaces. Unionization is declining and alternative forms of employee representation have not expanded to improve workplace democracy.

· Resources dedicated to enforcing existing laws and regulations, and the methods and practices of enforcement may be insufficient to achieve the intended goals. For example, certain groups of workers — young workers, immigrant and refugee workers of colour, some visible minority and stigmatized workers — report that existing laws are not well-enforced, and they experience extremely poor and exploitative work conditions which they feel powerless to change.

· Existing laws and policies dealing with work are still organized around the concept that “someone” (not the worker) provides the child-, elder- and home-care for the worker. In reality, most workers struggle to meet the increasing demands of work and family/home obligations with few resources and supports to assist them. The sacrifices being made may well undermine the short- and long-term well-being of Canadian workers and society as a whole.

The Canadians we met expressed concern that deficiencies in Canada's labour and employment laws and policies might result in the depletion of one of this nation's most important natural resources — our workforce. Workers who cannot make ends meet, who cannot afford dental and vision care, or adequate child care for their children, will experience long-term adverse health and personal consequences. Their level of retirement planning is likely inadequate, and their health and the well-being of their children may also be affected. This has implications for society in terms of costs and lost productivity. Productive workers must be healthy and able to adapt positively to change.

At the same time, businesses and governments are under a great deal of pressure. Trade liberalization has forced many businesses to reduce costs to be competitive. Concerns over the size of government and public spending have put pressure on governments to downsize. As a result, employers in both the private and public realms feel they have little choice but to reduce labour costs. Work laws requiring employers to assume full responsibility for Canadian workers' well-being are seen as unrealistic and a threat to the survival of many businesses. Innovative changes are needed that are solidly based on the notion of collective or shared responsibility for worker well-being.

With these concerns and issues in mind, it was suggested the Law Commission undertake a project to answer two questions:

· What gaps and weaknesses in the regulatory framework make some groups of workers particularly vulnerable?

· What innovative options for the reform of Canada 's labour and employment laws and policies would reduce worker vulnerability, enhance productivity and more equitably distribute the rewards and costs of participation in the labour force?

The first step was to commission research. The next step was to synthesize the results of this and other existing research to encourage public input.

Part one of this document examines Canada's labour and employment laws in the context of four case studies, based on the composite profiles of individuals whose work or personal characteristics/circumstances put them into one of the following categories: self-employed and part-time workers, temporary agency workers, marginalized workers and stigmatized workers. Research suggests many workers in these categories experience a high degree of vulnerability as a result of the gaps and deficiencies in the regulatory framework identified above.

In the case studies, we look at the impact of the law on the lives of the four vulnerable workers and their families. Following each case study, we discuss the empirical data and examine some of the laws dealing with each category of work and worker.

Three of the four case studies involve female workers. This reflects the fact that a disproportionate number of vulnerable workers are female. Research demonstrates that women accounted for 46 percent of the labour force in 2001, but constituted 63 percent of those in precarious jobs.² Sixty-nine percent of workers earning under $8 per hour in 2000 were women.³

There are reasons for the gendered nature of precarious work. For the most part, standard employment arrangements are geared toward workers who either have minimal or no child-, elder- and home-care needs, or who have someone (paid or unpaid) to provide these services for them. Typically, those kinds of care and support services have been provided by women and have been undervalued and underpaid. Thus, not only are female workers concentrated in service and care work in the paid labour force where earnings are typically lower than male-dominated work, they often attempt to accommodate participation in the paid labour force with care and support responsibilities in the home, family and community. Many do this through non-standard work arrangements, which are associated with lower levels of protection and benefits.

Following our analysis of the empirical data and our four case studies, we examine the underlying rationale for the current framework of laws and policies relating to work. The protection of workers rests on a series of choices society makes about who should be protected and why. These choices are based on values and beliefs about people, society and the allocation of the costs and benefits of social living. It is worthwhile to reflect on the values and goals underpinning the regulatory framework to determine whether they continue to be relevant and fair, and whether they justify the consequences that flow from the application of the law.

In the final part, we explore options for reforming Canada's labour and employment laws. The choice to provide better protection to vulnerable workers does not necessarily tell us how such protection should be provided. Even if there is agreement that these workers need better protection, there can still be considerable controversy and disagreement over the choice of tools for providing effective protection and the impact such regulatory instruments would have on the competitiveness of the Canadian economy. Thus, we discuss a number of proposals for law reform. The options vary in the degree of change required, from developing better practices of enforcement and extending the scope of existing protections to more workers, to changing the way we regulate work. The point is not to propose solutions, but rather to elicit feedback about the essential ingredients of law reform in this area. The goal is to stimulate a critical examination of the consequences of Canada's work laws as well as the values and assumptions that support these laws.

We ask Canadians to reflect on the changes needed to promote the well-being of all workers and thereby contribute to the productivity and prosperity of the nation.