The legal concept of employment: marginalizing workers (original) (raw)

The topic of this report is the legal concept of employment because employment is the most important concept for determining the legal protection associated with different forms of paid work. Employment establishes the boundary between the economic zone of commercial relations, entrepreneurship, and competition, on the one hand, and the economic zone of labour protection, economic dependency, and regulation, on the other. This report focuses on how the law distinguishes between employment and self-employment, placing emphasis on own-account self-employment, where the self-employed person does not employ other employees. This case study is selected because it provides an opportunity to examine the normative question of whether labour protection ought to be limited to only certain forms of paid work. Moreover, the dramatic growth of self-employment since the 1980s in Canada raises important questions about the operation of labour markets, whether self-employment is coterminous with entrepreneurship, and the adequacy of prevailing legal tests of employment status for determining the personal scope of labour protection and social benefits. Employing a multidisciplinary approach to examine the distinction between employees and the self-employed, the report is divided in four parts. Part One canvasses the sociological, legal, and statistical bases for the distinction. Part Two provides a portrait of the self-employed in Canada, drawing on public-use micro-data from Statistics Canada, and places it in an international context. Shifting to legal analysis, Part Three evaluates the legal history of the scope of employment and challenges the conventional legal narrative that assumes the distinction between employment (a contract of service) and independent contracting (a contract for services) is a deeply embedded and long-standing one. Building upon this revised account, Part Four provides an overview of the different legal definitions of "employee" operating in the iv various regimes of employment regulation across Canada, including social insurance and revenue-raising regimes. Part Five addresses the appropriate personal scope of labour protection in light of the conceptual, statistical, historical, and legal analyses, and provides recommendations for law reform. The report concludes that it is necessary to abandon the distinction between employees and independent contractors for the purpose of determining the personal scope of labour protection and that such laws will have to be redesigned in order to accommodate different forms of paid work.