Working for a living

“Should Parliament decide to do nothing…” was the opening for Gwendoline Allison’s advice to Parliament.

Allison, partner at the Allison Foy Law Group, offered the House Justice Committee a ‘what if’ scenario.

“My most recent work has centred on the implications for employment-related laws, should Parliament decide to decriminalize the purchase of and profiteering from sex, or should Parliament decide to do nothing,” she told Members of Parliament. “As an employment lawyer, my consideration is a practical one.”

Allison offered virtually the only legal opinion to Parliament regarding possible alternatives to its controversial new prostitution bill – one that a stream of lawyers lined up to qualify as overbroad and arbitrary.  Allison is generally supportive of the bill.

Advocates of decriminalization argue that the Nordic Model — which inspired the approach taken by the Conservative government — would endanger sex workers.

And so Allison, who represented the Asian Women Coalition Ending Prostitution in their intervention of the Bedford case, offered some real-world caveats on how a government would hypothetically deal with legalized prostitution.

For starters, she said, a government would need to figure out whether sex workers are independent contractors, or self-employed businesswomen or men. Where prostitution is legal in Nevada and Europe, she pointed out, women are contractors. They rent rooms from the brothel-owners, and they negotiate their own rate.

From there, Parliament — or, perhaps, the provinces and cities — would have to draw up some scheme to cover sex workers under occupational health and safety laws.

“Employees also owe duties to employers and are engaged by employers to enforce these duties: to be loyal and faithful; to act in good faith and not to the detriment of the employer,” she told the committee. “To obey the reasonable and lawful directions of the employer; to act with all due skill, care, and competence; and, not to neglect their duties. Some of those duties do not translate well into the realm of prostitution where the primary obligation of the employee in this consideration would be to provide sex to a third party directed by the employer.”

To that end, she says, there is a conflict: if consent, under the Criminal Code, cannot be given by a third party, how can an employer require their employee to have sex?

“The Criminal Code provisions raise a question regarding the legality of employment contracts with a fundamental and core duty of the employees to provide sex to the clients, to the employer,” she said.

“I would say that the current schemes, and in particular the occupational health and safety schemes, are not adequate, and human rights laws are not adequate to protect women in prostitution.”

But Canada is not without any regulation whatsoever. Several municipalities do treat sex workers as independent contractors and offer some basic oversight for their work.

Alberta is likely the most notable. The province has left the matter entirely up to their cities — Calgary and Edmonton regulate massage parlours and escort agencies, licensing and taxing those in the trade as they would any other contractor. That means police checks, training seminars, and registration numbers.

But the gap still remains. “Research shows that licensing hasn't been a help because the criminal law still stands in the way,” says Maria Powell, a Master's student at the Schulich School of Law, at Dalhousie University. She is studying the matter for her thesis. “The potential for benefits from licensing are huge - increased legitimacy, better safety and security, and it helps cities and police enforce laws on trafficking and exploitation because of improved relationships between workers and enforcement officials. Criminalization currently hinders these benefits from coming to fruition.”

In this hypothetical world, where sex workers had the power of the law behind them to fill that gap, Harris & Company partner Matthew Cooperwilliams says a whole slew of labour law options open up.

For one, it could mean that workers, if they were considered employees, could file Human Rights Code claims based on discrimination. Age, gender and racial discrimination can be pretty commonplace in the sex trade, of course, and could open up the floodgates of claims.

And that’s to say nothing of what the workers could do if they unionized.

“They could leverage the Employment Standards Act if they were employees — rather than independent contractors — by insisting on minimum wage rates, overtime pay, minimum call-out benefits …vacation pay, vacation leave and other leaves like parental leave,” he says.

The occupational health and safety requirements, too, would likely be quite game-changing for sex workers and — if Europe and New Zealand are any example — could come along with aggressive anti-STI and anti-HIV measures.

Allison, when questioned by MPs, noted that the clear way to afford sex workers the luxuries of being a state-sanctioned sector would really come along with being employees, not contractors.

“The women in prostitution are, in almost every location that I've considered so far, independent contractors, not employees, so they're not getting benefits, they're not getting EI, or CPP, or pension benefits. Not only that, but they're responsible for paying their taxes, and they're responsible for paying the contributions to any workers compensation scheme. So their protection under occupational health and safety regulations and worker's compensation depends on their participation and their payment into that too,” Allison said. “So when you consider that in the context of the most vulnerable employees, the ones who are on the street, or the ones who are operating from their homes, their protection will depend on their payment in.”

And so, she says, workers would likely take brothels to court. How the justice system, and the government, would react to that is entirely unclear.

But, it’s not all bad. As Allison notes, most exotic dancers are independent contractors — they rent the stage, and they dance for tips. That model might be workable for the sex work industry.

While Ottawa is evidently not following the decriminalization path with Bill C-36, the questions raised by how the sex trade meshes with labour law is hardly moot. Indeed, when the bill comes into effect, the act of selling sex will essentially be legal. While enterprises like brothels will not be permitted to operate, workers who stay in the industry will be permitted to be self-employed, even if all their clients are committing a crime.

What’s more, the controversial amendments have opened the door to another constitutional challenge. And so the debate surrounding the legal framework governing the selling of sex will quite possibly keep lawmakers busy in the coming years.

If sex workers eventually manage to work the labour system to their advantage, it may be worldwide precedent. Even in New Zealand, Allison notes, where sex work is legal, Parliament opted not to afford sex workers full employment rights.

If Canadian courts decide that sex workers are workers like anyone else, it could be the start of a very interesting friendship.