[1]  Adrian Smith, Independent Researcher, prepared the initial draft of this Background Paper for the Law Commission of Ontario.

[2]  Economic Council of Canada, Good Jobs, Bad Jobs: Employment in the Service Economy (Ottawa: 1990).

[3]  Ron Saunders, Making Work Pay: Findings and Recommendations from CPRN’s Vulnerable Workers Series, Research Highlights, Number 6 (May 2006); Law Commission of Canada, Is Work Working?: Work Laws That Do A Better Job: Discussion Paper (Ottawa: Law Commission of Canada, 2004); Kerry Rittich, Vulnerable Workers: Legal and Policy Issues in the New Economy (Ottawa: Law Commission of Canada, 2004); Judy Fudge, Eric Tucker and Leah Vosko, The Legal Concept of Employment: Marginalizing Workers (Ottawa: Law Commission of Canada, 2002).

[4]  J. Bernier, G. Vallée and C. Jobin, Social Protection Needs of Individuals in Non-Standard Work Situations, Synopsis of Final Report (Quebec, Ministry of Labour, 2003).

[5]  Leah Vosko ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal & Kingston: McGill-Queen’s, 2006).

[6]  Judy Fudge, “Beyond Vulnerable Workers: Towards a New Standard Employment Relationship” (2005) 12:2 Canadian Labour & Employment Law Journal 151, 159.

[7]  Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 [Dunmore].

[8]  For example, the Ministry uses the term to refer to young workers entering the employment market for the first time, particularly in the context of training, and workers who have greater health and safety risks.

[9]  Jason DeParle, “A World on the Move” New York Times (Week in Review) (June 27, 2010) 1, 4. Also see United Nations, International Migration Report 2006: A Global Assessment (New York: UN, 2009), online: http://www.un.org/esa/population/publications/2006_MigrationRep/report.htm. This Report shows that international migrants constituted 19% of the population in Canada (second only to Australia with 20% among countries with at least 20 million people): xv. Canada ranked 9th in 1990 and 7th in 2005 in the percentage of international migrants of the total numbers of international migrants worldwide among the top 20 countries: xvi. For an extensive description of the situation of migrant workers in a number of countries, see International Labour Office, International labour migration: A rights-based approach (Geneva: ILO, 2010).

[10]  This situation is not uncomplicated, since many early retirees obtain other employment.

[11]  Ray Barton Associates Ltd., Final Report: Trends and Patterns in Skills and Labour Shortages, prepared for the Council of Deputy Ministers [Responsible for Transportation and Highway Safety] Secretariat (Ottawa, 2008), 7, online: http://www.comt.ca/english/LabourSkills.pdf.

[12]  Ray Barton Associates, note 11, 19.

[13]  Julie Ann McMullin and Martin Cooke, Labour Force Ageing and Skill Shortages in Canada and Ontario (Ottawa: Canadian Policy Research Networks, August 2004), online: http://www.cprn.org/documents/31517_en.pdf.

[14]  Ray Barton Associates, note 11, 19.

[15]  This Paper emphasizes private sector employment, but should not preclude interventions and feedback relevant to public and quasi-public sector employment. For instance, the impact of “contracting out” on employment is a discussion which has been shown to have detrimental effects on the precariousness of employment. See, for example, Pat Armstrong and Kate Laxer, “Precarious Work, Privatization, and the Health-Care Industry: The Case of Ancillary Workers” in Leah F. Vosko ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal & Kingston: McGill-Queen’s, 2006) 115.

[16]  Vosko, note 5, 3-4.

[17]  Vosko note 5, 7.

[18]  Vosko note 5, 6-7.

[19]  After persistent social pressure, social benefits became supported by employers and reinforced by the post-World War II emergence of a social welfare scheme, the social safety net, which provided a robust regime of protections and entitlements. Two major examples of these social benefits are unemployment insurance (now employment insurance) and public pensions.

[20]  Costa Kapsalis and Pierre Tourigny, Duration of Non-standard Employment (Statistics Canada, Ottawa, 2004), online: http://www.statcan.ca/english/freepub/75-001-XIE/11204/high-1.htm.  See also Leah F. Vosko, “Temporary Work in Transnational Labour Regulation: SER Centrism and the Risk of Exacerbating Gendered Precariousness” (2008) 88 Social Indicators Research 131.

[21]  The general erosion of the standard employment relationship also imposes a greater burden on the breadwinner to sustain employment and to avoid workplace absences whether due to sickness or speaking out against work injustices.

[22]  Mark Thomas, Regulating Flexibility: The Political Economy of Employment Standards (Montreal & Kingston: McGill-Queen’s, 2009) 22. 

[23]  An important distinction exists between “work” and “employment”. Whereas the idea of work captures in broad terms all productive activities, the idea of employment or paid work refers to a specific way of organizing work. A central feature of employment is the contract of employment which facilitates the sale of labour or labour power in exchange for wages (and other inducements) in a labour market. Employment therefore is a subset of work. Work captures historical shifts from different systems of organization of productive activities. A defining – if deeply problematic – feature of employment is the distinction upheld between unpaid duties and responsibilities performed in households and paid tasks performed within the labour market.

[24]  Katherine Stone, “The New Psychological Contract: Implications of the Changing Workplace for Labour and Employment Law” (2001) 48 UCLA Law Review 519. Also see Judy Fudge, “The New Workplace: Surveying the Landscape” (2009) 33 Manitoba L.J. 131.

[25]  This is not the case with the current recession in countries where long-term unemployment among previously relatively secure employees has been high.

[26]  See, for example, Thomas note 22, chapter 1.

[27]  Vosko, note 5, 15-16. For a variation on the multidimensional approach see also Gerry Rodgers, “Precarious Employment in Western Europe: The State of the Debate” in G. Rogers and J. Rogers, eds., Precarious Jobs in Labour Market Regulation: The Growth of Atypical Employment in Western Europe (Geneva: International Institute for Labour Studies, 1989) 1.

[28]  Jamie Baxter, “Federal-Provincial Gaps Affecting Precarious Workers in Ontario” (December 2009) (on file with the LCO).

[29]  Cynthia J. Cranford and Leah Vosko, “Conceptualizing Precarious Employment: Mapping Wage Work Across Social Location and Occupational Context” in Vosko, note 5, 49.

[30]  For instance, one approach is to emphasize the main source of income, but this raises the issue of the relevance of multiple job holding. How an individual is paid, and in what form they receive payment, also may prove relevant to an assessment of precariousness. For instance, how do we account for people who, contrary to the Employment Standards Act, receive cash payment for work performed?  For an assessment of precarious employment accounting for varying forms of pay see Luin Goldring and Patricia Landolt, “Immigrants and Precarious Employment: Brief One”, online: http://www.arts.yorku.ca/research/ine/research/publications.html.

[31]  Cranford and Vosko, note 29, 49-50.

[32]  Vosko note 5, 49-50.

[33]  Vosko note 5.

[34]  Vosko note 5.

[35]  Cynthia Cranford, Judy Fudge, Eric Tucker and Leah Vosko, Self-Employed Workers Organize: Law, Policy, and Unions (Montreal & Kingston: McGill-Queen’s, 2005).

[36]  Workers’ Action Centre, Working on the Edge (Toronto: Workers Action Centre, 2007), 27-34.

[37]  Cranford and Vosko, note 29.

[38]  Non-Status workers refers to people who, for a variety of reasons discussed below, work and live in Canada without proper immigration approval (work visas). 

[39]  Sylvia Fuller and Leah F. Vosko, “Temporary Employment and Social Inequality in Canada: Exploring Intersections of Gender, Race and Immigration Status” (2008) 88:1 Social Indicators Research 31, 31-32.

[40]  Fuller and Vosko, note 39, 34; Law Commission of Canada, note 3.

[41]  See, for example, Maria Deanna P. Santos, Human Rights and Migrant Domestic Work (The Netherlands: Martinus Nijhoff, 2005); Daiva K. Stasiulis and Abigail B. Bakan, Negotiating Citizenship: Migrant Women in Canada and the Global System (Toronto: University of Toronto, 2005); Agnes Calliste, “Canada’s Immigration Policy and Domestics From the Caribbean: The Second Domestic Scheme” in Jesse Vorst et al. eds., Race, Class, Gender: Bonds and Barriers (2nd rev.ed., (Canada: Between the Lines, 1991) 136. There have recently been changes to the requirements live-in caregivers must meet to apply for permanent residence status: see the Citizenship and Immigration Canada website: http://www.cic.gc.ca/english/work/caregiver/index.asp. The live-in caregiver program’s permanent residence/citizenship track has been called “good practice” by the ILO in its report on a rights-based approach to labour migration: note 9, 93.

[42]  See, for example, Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm labour Migration to Canada Since 1945 (New York: Routledge, 1991); Irving Andre, “The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program in Canada” (1990) 28 Osgoode Hall Law Journal 244; Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters (Montreal & Kingston: McGill-Queen’s University Press, 2002); Kerry Preibisch, “Foreign Workers in Canadian Agriculture: Not an All-Male Cast” FocalPoint (May-June 2007) 8; Ellen Wall, “Personal Labour Relations and Ethnicity in Ontario Agriculture,” in V. Satzewich ed., Deconstructing the Nation: Immigration, Multiculturalism and Racism in 90s Canada (Toronto: Garamond, 1992) 261.

[43]  The Economist, “Canada’s Guest Workers: Not Such A Warm Welcome” The Economist (November 22, 2007), online: http://www.economist.com; “Welcome to Canada: hope you aren’t planning on staying” Report on Business (October 2007) 66; Nicholas Keung, “Guest labour program raises troubling questions”, Toronto Star (March 15, 2008a), online: http://www.torontostar.com; Nicholas Keung, “Ottawa expands work program”, Toronto Star (February 12, 2008b) A15.

[44]  Regulations Amending the Immigration and Refugee Protection Regulations (Temporary Foreign Workers), SOR/2010-172, P.C. 2010-959, s.2(1) (August 4, 2010), online: http://www.gazette.gc.ca/rp-pr/p2/2010/2010-08-18/html/sor-dors172-eng.html. Other aspects of the changes are designed to ensure the genuineness of offers to work under the TFWP and to encourage employers to meet the conditions of employment as offered. For the federal government’s explanation, see the Regulatory Impact Analysis Statement, online: http://canadagazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html.

[45]  Workers’ Action Centre, note 36, 5.

[46]  Dunmore, note 7.

[47]  Federal Labour Standards Review, Fairness at Work: Federal Labour Standards for the 21st Century (Canada, October 2006) 232, online: http://www.hrsdc.gc.ca/eng/labour/employment_standards/fls/pdf/final_report.pdf (Commissioner, Harry W. Arthurs) [Arthurs].