The growth of non-standard forms of employment and the protection of humanrights: What role for labour law?

The title of this paper may seem surprising. After all, one of the foundati ons of labour law has been the introduction. of a "humanist" perspective in to a body of law that otherwise treats work in wholly commercial, impersona l terms. Indeed, labour law springs from the very impossibility of distingu ishing the activity of work from the person who performs it. It protects th is person, both with respect to the actual conditions in which the work is performed, as well as in terms of the worker's security and integrity. In t his sense, one of the functions of labour law is the protection of the pers on, within the framework of potentially conflictual work relations between two parties of unequal strength: an employee and an employer. This protecti ve mission developed at a time when the social relations of work were fairl y homogeneous: stable, regular and continuing jobs held by employees workin g full time, for one employer and under that employer's control and on his premises. However, many of the particular forms of employment that are of g rowing importance in the labour market-self-employment; homeworking; part-t ime, fixed-term, occasional or on-call work; and triangular employment rela tionships-no longer fit this classical model. Are the tools deployed by lab our law to protect workers able to effectively regulate these increasingly frequent work arrangements? To explore this question, we first examine how Quebec labour law deals with these forms of employment, and then set out a number of ideas about how labour law can be adapted to these new labour mar ket characteristics. We find that labour law is in fact only partly successful in protecting tho se who are working within non-standard forms of employment. Some of the non -standard forms of employment do not exhibit the usual indicators of subord ination which is the main criterion used to identify those work situations that, being unequal, are to be covered by the standards that protect the ph ysical, social and financial security of workers and that ensure the respec t for the person of the worker. In the cases of self-employment, homeworkin g, outsourcing, and the use of temporary employment agencies, it is sometim es difficult to define the worker as an employee (and hence protected by th e labour law), or to determine the employer (who is responsible for ensurin g that the protective provisions are applied to those subordinate to him). Furthermore, some workers, even though clearly coming within the scope of l abour law because of their subordinate position, will not be able to take a dvantage of these laws because the eligibility requirements are ill-adapted to jobs that are characterized by a short workweek (e.g., part-rime or on- call work) or by an unstable employment relationship (e.g., fixed-term cont racts, or occasional, temporary or seasonal work). Lastly, those working wi thin non-standard forms of employment have difficulty gaining access to col lective representation. Moreover, they also have difficulty achieving effec tive representation, considering that many collective agreements contain cl auses that treat members of the same bargaining unit differently according to their employment status. Certain amendments to the existing legislation would certainly strengthen t he protection offered to these workers. This would be the case. for example , if homeworkers and economically dependent self-employed workers were brou ght within the coverage of labour law; if the employer's right to force a c hange from an employment contract to a contract for services was regulated; if a normal work day was introduced; or if the minimum length of service r equired to be eligible for certain benefits was changed. However, more fund amental changes must also be considered. Indeed, the spread of non-standard forms of employment reveals the limits of a system of protection based exc lusively on the condition of subordination in the framework of a bilateral employment relationship. To begin with, the concept of subordination does n ot include all of the forms of work that involve a relation of economic dep endency giving vise to particular needs for protection. In addition, when t he employment relationship does not resemble the classical bilateral model, it is not always easy to identify the employer and, hence, the party respo nsible for ensuring that the worker receives the protection mandated by the law. Lastly, tying the employment relationship to a particular employer or firm prevents the recognition of the continuity of the work activity in a context of high occupational mobility. This is why labour law should aim to become a law applying to the activity of work instead of a law applying to the employment relationship. The continuity of the professional career pat h of an individual could be recognized either by providing for the transfer ability of the fringe benefits the individual acquires while working for di fferent employers, or by creating an work activity contract. In either case , this would imply that the responsibility for applying employment standard s would be shared by different firms. Furthermore because existing models o f collective representation only apply to a single employer, they are unabl e to ensure the continuous promotion of the interests of those workers who work for different employers, either successively or concurrently. a form o f employer and worker representation based on a wider scope than the employ er would help such employees secure stable collective representation, Lastl y, labour law should promote a principle of equal treatment of workers irre spective of their employment status, a principle that is still not common i n current Quebec labour law. This is hardly surprising in the context of a homogeneous work force, where the focus of labour law is entirely structure d around the risks of exploitation that spring from the inequality of power between the employer and those who perform subordinate work, and the risks related to the irrevocably opposed interests of workers and employers that give rise to rules for regulating conflict. Alongside this unequal and con flict-ridden relationship, we are now witnessing a growing variety of chara cteristics, statuses and expectations of workers, a trend that is transform ing the workplace into a site in which the multiple interests of a wide ran ge of types of workers are expressed, and that is turning labour law into a n instrument for arbitrating between the competing interests of workers the mselves. In this context, it seems appropriate to take a long, hard look at the role that labour law can play in managing the diversity of forms of em ployment.