A. Precarious Work
1. The Meaning and Increasing Prevalence of “Precarious Work”
The LCO’s Project examines the impact of insecurity in the labour market on Ontarians.[15] A variety of terms are employed to characterize labour market insecurity: the work is described as contingent, vulnerable, non-standard, atypical and precarious. Although often used in similar ways, these terms do not necessarily mean the same thing. The LCO uses the term “precarious work” to capture certain features of insecurity. Those features of insecurity are often said to include low wages, a lack of benefits, an atypical employment contract and a greater risk of illness and injury.[16]
The notion of “precariousness” is employed in contrast to the “standard employment relationship” which underpins the major forms of legislated employment protections. The understanding of “standard employment” developed in relation to post-World War II social and economic restructuring. Fordism, of which the automotive sector served as the paradigmatic example, although the concept applies to many manufacturing and other concepts, refers to large-scale production firms employing a large workforce who possess a standard set of skills which are utilized in an assembly-line process. Typically, these employees were located within a single worksite with little or no spatial dispersion. Within Fordist production there existed little, if any, serious legal dispute over who the actual employer was. This was true even for subsidiary or branch plant firms located in Canada but headquartered elsewhere, usually the United States. Spatial dispersion may have occurred in terms of corporate executive structure, and perhaps with respect to lower levels of management. However, a single, known employer was the norm.
Over time and through struggle and engagement, the ideal of the standard employment relationship was transformed into concrete realities of full-time, continuous and life-long or permanent work with decent pay.[17] The bundle of benefits that eventually accompanied employment in this model included important social benefits and entitlements in addition to a level of earnings that contributed to the livelihood of workers, their households and the wider community.[18]
A key assumption was that the social safety net would provide protections for workers, and by extension for members of their household, during exceptional periods of layoff or short-term job loss.[19] In addition, the social safety net was meant to support Canadians “from the cradle to the grave”, even if not at the level of their employment income. The idea was not guaranteed security of livelihoods, nor was it a basic guaranteed income. Rather, the safety net was perceived to bridge the gap between periods of steady and unsteady employment for the Canadian labouring population and at the end of one’s employment life.
That said, the standard employment relationship and the accompanying safety net never applied to all workers or all forms of paid work. Agricultural workers, for instance, were excluded from the full protective coverage of standard employment for reasons related to the preservation of the family farming model and the pressures of peak harvest. Nor, fundamentally, did the standard employment model capture unpaid labour within households. This meant that, by implication, paid domestic work also was situated outside the scope of standard employment. Today, one estimate is that thirty-eight percent of paid work is performed outside the standard employment norm.[20]
The initial assumptions of the standard employment norm were formulated around a certain type of occupation, blue-collar manufacturing, and over time were broadened to incorporate resource extraction such as mining and other blue-collar work, including construction. Later, the norm was extended to white-collar public sector work and spread from waged employment to corporate salaried work as well. It rested on several fundamental, if implicit, assumptions about labouring persons connected to gender (male), racialization (dominant group or white), sexuality (heteronormativity), marital status (opposite-sex marriage), ability (able-bodied) and citizenship status (Canadian). Thus, what typically is referred to as the male breadwinner norm in actuality incorporated much broader assumptions.
In sum, the standard employment relationship which emerged around World War II in Canada assumed a white, heterosexual, able-bodied male worker who, as the primary breadwinner in a household, received decent wages and benefits sufficient to support the family. Accordingly, the norm also assumed a female caregiver who performed the daily upkeep of the household, and who was dependent upon the male breadwinner for income and benefits.[21] This model did not contemplate a situation in which both belonged to the dominant (or market or public-oriented male “class”) or both belonged to the subordinate (domestic or private-oriented) female class. The worker was typically employed by one employer in continuous full-time employment on the employer’s premises or under its explicit supervision.
The assumptions of the standard employment norm clearly cannot, and to a large extent historically, could not be maintained. Still, gaining a solid understanding of the assumptions that grounded the standard employment norm assists in understanding the meaning of precarious work because it reveals whom the legal regimes of employment were designed to cover or protect and thus who are likely to be “left out” of these protections. This is particularly significant since today’s “employment relationship” is increasingly unlike the standard employment relationship and since “employment” does not describe the legally acknowledged relationship of some so-called (in)dependent contractors with their “contractors”. The workforce increasingly includes those who have been omitted from the protections.
Precariousness has been increasing in Canada and elsewhere since the 1970s.[22] The rise in precarious employment calls into question long-standing assumptions about paid work.[23] The detrimental effects of increasing precariousness, however, are felt not only in employment, but also in wider social relationships and in areas of people’s lives other than their work.
Although the term itself is new, aspects of precarious employment have been persistent features of employment in most western economies. In its contemporary usage, the concept of precariousness captures general and specific trends in the labour market. Generally, there has been an erosion of secure forms of paid work typically associated with the standard employment relationship, discussed below. Increasingly, people are employed in part-time, temporary and own-account self-employment. This phenomenon has been observed throughout industrialized countries and throughout various labour sectors.
In Canada, these general trends have perhaps been exhibited most prominently in the automotive manufacturing sector of southwestern Ontario where the erosion of standard employment intensified in the 1990s and the 2000s. This erosion is not limited to manufacturing in core sectors, however. Other productive sectors, including service, also have experienced a comparable phenomenon. Service sector employment examples include nursing, high technology and office administrative work.
A crucial point is that the dramatic reorganization of the labour market has meant that even paid work most closely associated with the standard employment relationship now is becoming more insecure. This shift has created “the boundaryless workplace” with a different understanding of the employment relationship, one far less often based on an expectation of employment for one’s working life with the same employer.[24] By implication, this calls into question the utility of the standard employment norm both as an ideal type on which to model legal regulatory reforms, and as a basis of comparison. For relatively well paid workers with high demand skills, the relationship has changed on both sides. Thus although work may be less secure, there are factors intended to offset the concern, such as increased training opportunities provided by the employer.[25] In short, work arrangements and expectations have changed for many workers. For some workers, however, there are not reciprocal benefits to offset the non-standard characteristics of their work. These are workers who engage in work that has always been characterized by conditions of precariousness.
More specific trends have emerged within the labour market especially affecting employment considered low-skilled. A growing sense of insecurity characterizes diverse forms of employment in sectors such as agriculture, door-to-door sales, hospitality and hotel, and healthcare, particularly the support service work of cleaners, food service and clerical workers. Insecurity in these forms of paid work is not new. Paid work of a seasonal nature, for instance, represents an enduring example of chronically insecure employment.
The desire for labour flexibility serves as the leading rationale for contemporary shifts toward greater insecurity in employment. Labour flexibility is regarded as an important way in which employers maintain competitiveness in increasingly globalized consumer markets. Indeed, critics point out that, although workers have demanded greater flexibility, especially to accommodate household demands, labour flexibility overwhelmingly serves the interests of employers.[26]
2. Measures of Precariousness
Whereas the “good jobs/bad jobs” approach conceives of standard and non-standard employment as categories separate and distinct from each other, in the multidimensional approach employment is characterized on a continuum in which workers can be employed in more or less precarious work. This approach relates the form of employment to four key dimensions of precarious employment: earnings, social wage, regulatory protection and control.[27] The security dimensions of employment may also be described as “life/social security”, referring not only to negotiated and statutory benefits, but also support for family needs, health care access and other social factors; job security (or provisions relating to termination of employment); employment security or capacity to move within and between market sectors; income security (during and post-employment) and voice representation security and process-based security to participate in decisions affecting the workplace, including remedies for violations.[28]
The first and perhaps leading dimension relates to level of earnings. Poorly paid workers include those earning the minimum wage and less, and also those earning above the minimum standard but below a designated level such as the defined poverty line (for instance Statistics Canada’s Low Income Cut-Off or LICO), the median industrial wage, community-defined levels of fairness, a yearly earnings threshold and related factors.[29] Further, the calculation of income earnings is not necessarily straightforward.[30]
The second dimension of precariousness accounts for the non-wage component of compensation. The idea of a social wage is to encompass not just earnings, but also the level of benefits provided by the employer. Benefits include a pension, dental and extended medical coverage and life/disability insurance. A low or non-existent social wage has important implications beyond individual workers. It affects all members of a worker’s household, and may influence the distribution and allocation of responsibilities and risks.
The third dimension of precariousness relates to the extent or degree of regulatory protection afforded to workers. It is concerned with the statutory protections available to workers, such as minimum employment standards, the existence of trade union coverage and the difficulties with enforcing available protections.[31]
Finally, the fourth dimension is the degree of control or influence within the labour process, and in the labour market more generally. Because of the difficulty in measuring control, indicators associated with the fourth dimension, especially union coverage, serve as proxies for an assessment of relative control.[32]
Taken together, the dimensions of precariousness produce a picture of paid work that includes low or unstable wages, a lack of benefits, weak or non-existent statutory protection and enforcement, a non-unionized work setting and little or no control within the workplace. These dimensions, in turn, must be situated within a broader social context.[33] For example, it is important to account for the “social location” of workers, especially their gender and “race”, as well as the occupational contexts.[34]
3. Major Types of Precarious Work
Major forms of precarious employment include self-employment, part-time and temporary. Solo or “own-account” self-employment refers to self-employed people who do not employ workers and who do not control the risks of the production process or accumulate capital. Thus the category of own-account self-employment more closely resembles employment than entrepreneurship.[35] The rise in own-account self employment, noted below, stems from both the increasing use of subcontracting, such as where an employer inserts an intermediary between itself and the worker, and the misclassification of employees to sidestep employment, tax and other legal obligations.[36] Subcontracting in particular transforms employment into a triangular relationship.
Part-time employment, in capturing both temporary and permanent employment, overlaps with temporary employment, discussed below. The distinction between part-time and full-time employment tends to be drawn by hours of work per week. Although a standard definition of what constitutes part-time work does not exist, it is evident that temporary part-time employment represents the most precarious form along multiple dimensions.[37]
Temporary or non-permanent employment also accounts for part of the rise of precarious employment. Temporary employment stems from the growth in temporary help agencies and staffing firms which have risen dramatically since the 1990s. It also encompasses the special forms of employment stemming from temporary labour migration schemes and from immigration policies generally, including certain work performed by “non-status” workers.[38] A distinction should be noted between temporary long-term contracts and short-term, perhaps casual, work and between temporary work (such as a special project contract) and workers hired temporarily for work that is on-going. At the same time, it may be less the duration of the work than the conditions attached to it: thus workers in the federal foreign worker program may come to Canada for two years, longer than many temporary workers have on-going work, but their status is determined by the program and they are in most cases unable to apply for permanent residence (with the exception of live-in caregivers and immigrants under some high skilled worker programs).
Temporary employment permits employers faced with highly competitive or fluctuating markets to avoid certain obligations found in employment statutes that apply to longer-term or “permanent” employees.[39] For example, if an employer uses a temporary employment agency, it will not be required to return an injured worker to the job.
At the same time, temporary employment may provide workers with important benefits. It is seen as a viable way for newcomers to gain Canadian work experience,[40] for migrants to secure employment and much-needed wages more difficult to secure in sending countries, for older workers to maintain continuity in employment and for younger workers to secure experience in the labour market.
Temporary labour migration schemes are a prominent example of temporary employment. Unlike other temporary workers, migrant workers do not only hold jobs temporarily, they also hold a temporary status in Canada. The development of migrant worker schemes in Canada dates back to Confederation. Contemporary schemes emerged early in the twentieth century. A short description of various federal programs is helpful in appreciating the diversity in conditions facing foreign workers.
Since 1910, Canada has developed various live-in nanny or caregiver recruitment schemes to entice migrant workers (overwhelmingly female) from the Caribbean, and now predominantly from the Philippines. In its current incarnation, the federal Live-In Caregiver Program (LCP) permits caregivers to serve as domestic workers in Canadian households for two years with the option to extend their stay and, unusual for foreign worker programs, to apply for permanent resident status.[41]
A farm worker recruitment scheme, the federal Seasonal Agricultural Worker Program (SAWP), began in 1966 with the use of workers brought from Jamaica. The SAWP expanded to include workers from most other countries within the Commonwealth Caribbean and, today, particularly Mexico. Working in Canada for up to eight months each year, and neither permitted to extend their stay nor apply for permanent residence while in the country, this mostly male workforce harvests tobacco and other horticulture, fruits and vegetables most notably in southwestern Ontario.[42]
In 2003, a new federal temporary migration scheme, the Temporary Foreign Worker Program (TFWP), was developed to recruit workers for diverse economic sectors such as agriculture, construction, hospitality and meat packing. Workers from Guatemala, Thailand and elsewhere work in Canada for two year stints, but are not permitted to stay after the expiration of their work visas.[43] As of April 2011, new regulations provide that workers may participate in this program for periods totaling no more than four years at which point they must wait another four years before being eligible for the program again.[44] The purpose of the restriction is to make it clear that this is a temporary program and is not intended to be a path to permanent residence.
B. The Meaning of “Vulnerable Worker”
1. Economic Characteristics
The rise in precariousness in employment relationships reflects the shifting of business costs, including work-related health and other risks, more solidly onto workers generally and more specifically onto workers who have the least protection or who wield little power to object.[45] Agricultural workers provide both an historical and ongoing example of vulnerable employees. As the Supreme Court of Canada noted in Dunmore, the “[d]istinguishing features of agricultural workers are their political impotence, their lack of resources to associate without state protection and their vulnerability to reprisal by their employers; … agricultural workers are ‘poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility’”.[46] Arthurs states that in the federal context “the sector in which workers are employed, the size of the enterprise in which they work, the non-standard nature of their employment contract and their demographic characteristics are markers that help to identity them as ‘vulnerable’”.[47]
Although there is an in-built vulnerability of people in employment, this Paper employs the concept of vulnerable employees to refer to people most affected by the multiple dimensions of precarious employment (low pay, low or no benefits, lack of protective standards or difficulty accessing protective standards and lack of control), and whose vulnerability is underlined by their “social location”, discussed below. This includes workers who are excluded from a full complement of social protections and entitlements and who, because they wield very little power in the labour market, struggle to enforce existing protections and entitlements. The relative lack of power also inhibits the efforts of these workers to broaden or extend regulatory protections with a view to improving conditions within their workplaces, and gaining control over their working lives.
2. The Relevance of “Social Location”
Workers engaged in precarious work or who may be described as “vulnerable” may be found among a full range of ethnic groups and of all national origins. Both men and women perform precarious work. Workers whose employment illustrated “standard” employment may find themselves unemployed with not easily transferable skills or at an age when finding employment is more difficult. It is nevertheless important to make the link between precarious employment and the “social location” of those who perform it, characterized as the interaction between political and economic conditions and social relations.[48] Social location includes gender, “race”, immigrant status, age, ability and other sources of marginalization.[49] Although all interactions between precarious employment and social location are important, this Project is most concerned with how precariousness intersects with gender and the process of racialization, as informed by immigration status.[50]
One reason for this focus is that the LCO has undertaken other projects which focus on other “cohorts”, particularly persons with disabilities and older adults.[51] Two prominent examples of the interplay between paid work and disability are employment accommodation and income support and security.[52] The Ontario government has programs designed to assist persons living with disabilities to obtain employment and to encourage employers to hire persons with disabilities.[53] Older workers may not want or are less likely to find “regular” employment, but are reliant on contract work, part-time work or employment through temporary help agencies. With the decline of mandatory retirement, workers may be subject to greater oversight as they age. Some government initiatives recognize the increased vulnerability of workers as they get older.[54] Because the LCO has initiated separate projects aimed at developing a framework for the law as it relates to persons with disabilities and a framework for the law as it affects older adults, this Paper does not explicitly address the distinctive issues facing persons with disabilities and older adults.[55]
The measure of the specific trends of precarious employment can occur with an emphasis on the exclusion of certain people, certain productive activities, or both. The inclusion and exclusion from regulatory protection of certain people is not coincidental but is in fact the outcome of ongoing social processes. This Paper emphasizes those processes through which social significance is assigned to human characteristics of identity. Understanding these processes helps to explain the disproportionate impact of precarious employment on certain people and communities compared to others. Because these processes are central to the differential impacts of precarious employment, the need for conceptual clarity is vitally important.
a) Gender
Although women and men both experience precarious employment, especially among younger segments of the labour force, women are more deeply concentrated in the most precarious forms.[56] Gender inequalities in employment have persisted as the formal participation of women in the labour force has grown over the past few decades. A key explanation for the persistence of these gender inequalities is unacknowledged linkages between households and the labour market. Although there have been changes in recent years, there remain real disparities between women and men in responsibilities and duties within families or households.[57]
The disproportionate burden borne by women within households is reproduced within the labour market, translating into disparities in employment relations. In one sense those disparities stem from the construction of many jobs or occupations in gendered ways. The “gendering of jobs” is a term used to identify “the downgrading of jobs to resemble work associated with women and other marginalized groups assumed to have access to alternative sources of subsistence beyond the wage”.[58] Most commonly, these include temporary, seasonal and part-time employment. As the gendered division of labour reinforces a gendered construction of labour and occupations in the labour market, the outcome is that women are concentrated in care work, such as home care and child care, and in service occupations, such as clerical and retail.
On this formulation, the gendering of jobs portrays sexual differences and identity as fixed.[59] In this Paper, gender is understood as, to some extent, a fixed identity; but more broadly and profoundly, as a social relation. The impact of sexual difference on the employment relationship remains important to this understanding.[60] In this respect, the gendering of jobs reveals the assumptions embedded within the standard employment norm. Of particular note is that, regardless of the reality of participation of men and women in the workplace today, the standard employment norm rests on the assumption of a male breadwinner and a female caregiver in which women access wages and benefits through the employment of a male partner. However, the concept of gendering of jobs is broadened to capture and reflect enduring processes through which gender relations intersect with other social relations – namely racialization and immigration – to play out in the context of employment.
b) Racialization
Generally speaking, the concept of racialization refers to an ongoing and dynamic process whereby physical or observable human characteristics are assigned social significance for the purposes of categorization and differentiation.[61] Utilizing the notion of “race”,[62] categories of group identity constantly are being re-made through implicit and explicit social processes, practices and policies.[63]
There is divergence on the meaning of racialization which is reflected in both popular and academic discourses. The typical but not exclusive popular usage of the concept of racialization refers, either implicitly or explicitly, to social processes affecting non-white people or people not perceived as members of dominant groups. A competing usage of the term racialization assumes a broader application. As one scholar puts it, “[r]acialization embodies all subjects, not only those identified as racially ‘other’, including members of dominant groups who may be treated as the ‘unraced’ standard against which others are judged”.[64]
Although this Paper continues to use the term racialization in the way it is most commonly employed in popular and academic discourse, it is more precise, analytically speaking, to think of racialization as a process related to inclusion and exclusion within dominant and non-dominant groups. Further, the phrases “racialized as dominant” and “racialized as non-dominant” capture a key aspect of the continual and persistent social process of constructing group identities and in turn the use of group identity construction to slot people into categories which are used to determine relative worth in the labour market.
What are the human characteristics to which social significance is being assigned, and are these captured within the meaning of racialization? Racialization is thought to occur in response to observable or biochemical characteristics, most prominently skin colour, and to socio-cultural characteristics such as religion or language (referred to separately as “ethnicization”). The process of assigning social significance to human traits is multi-faceted and complex, and, although the use of dual concepts of racialization and ethnicization may make good analytical sense, in practice it is quite difficult to uphold these distinctions. The existing official empirical data on employment in Canada do not easily break down into discrete categories of social significance. Neither do the experiences of workers in the labour market neatly break down in this way. People may sense they are being differentiated or categorized for reasons connected to their personal characteristics but because it can be difficult to decipher which specific characteristics are in question, they may classify it in different ways.
That said, the allocation of finite resources such as job and post-secondary educational opportunities, and the experiences of people within employment and educational institutions, reflect the deleterious impact of these socially exclusionary processes. Even if the conceptual distinctions of racialization and ethnicization are difficult to sustain, it still is necessary to develop conceptual tools which help to explain the disproportionate impact of precarious employment on people who, for varied reasons, are not perceived to fit within dominant groups. The LCO, therefore, employs the concept of racialization to capture both observable and socio-cultural traits.
Racialized communities are disproportionately engaged in diverse forms of precarious employment. This concurs with empirical data which show immigrants groups are more likely to live in poverty in Ontario and throughout Canada.[65] Further, racialization is connected to the historical and ongoing project of nation-building.[66] This is evident in Canada’s treatment of Indigenous peoples and in its immigration policies. Although racialization is said to have considerable impact on the experiences of many Aboriginal peoples, a distinction typically is drawn between Aboriginal peoples and other racialized communities and, indeed, there are those who question whether “race” (particularly conflated as it is with “minority”) is an appropriate categorization for Aboriginal or First Nations persons.[67] The basis of that distinction rests with the historical and to some extent divergent experiences of Aboriginal communities in Canada. This distinction serves as the most prominent rationale for distinguishing research and analysis on non-Aboriginal people and non-Aboriginal persons. Yet this approach may be criticized as reinforcing or re-inscribing difference and exclusion within the labouring population of Canada. There is a pressing need to engage the specific historical experience of Aboriginal peoples within the context of the legal regulation of employment and community development in Canada. The LCO seeks specific feedback on meaningful ways to incorporate the situation of Aboriginal workers into its project on precarious employment and into its future initiatives.
c) Immigration Status
Racialization also has an important relationship to the global phenomenon of migration and specifically to the continual flows of people into Canada. Moreover, factors influencing the social location of workers, including immigrant status, increasingly have come to shape the employment experiences of new immigrant or newcomer workers and temporary migrant workers to Canada. Immigration policies explicitly affect the precariousness of employment and the vulnerability of workers, including the sheer number of vulnerable employees in the labour force. In the post-World War Two period, and especially after significant policy shifts in the 1960s, Canada’s immigration policies became, explicitly at least, far less racially driven. Whereas official migration policy prior to 1962 made explicit reference to preferred and non-preferred immigrant source countries, which corresponded with official and unofficial notions of Canada as a white British settler society, by the late 1960s policy relied on a point system to facilitate the migration of mostly skilled people. In addition, temporary migration schemes, such as the precursors to the Live-In Caregiver program which pre-dated the 1960s, grew in importance. In 2008, some 66,000 temporary workers entered Ontario and by the end of 2008, over 91,000 foreign workers lived in Ontario.[68]
“Immigration” for the purpose of precarious work includes not only the various categories of permanent and temporary immigration status, but also the category of non-status residents. Non-status refers to people who, for a variety of reasons, lack the official legal status that would allow them to live and work in Canada. Non-status can occur when a person’s refugee claim has been rejected, when a student’s or visitor’s visa or work permit expires or alternatively when a person is recruited to work in Canada under false pretense, such as when a foreign recruiter erroneously claims to possess a valid permit for the worker, or when a person does not possess official identity documents. It can also occur when a sponsored immigrant is abandoned by or leaves (because of abuse, for example) the sponsor. The diversity of persons without official immigration status is illustrated in microcosm by the Brazilian community: they include “men and women, aged 22 to 60, coming from over 15 Brazilian states, with an education ranging from high school to graduate studies, and who have lived in Canada from 1 year to over 16 years”.[69]
Taken together, gender, racialization and immigrant status function to shape employment and wider social relations. The stubborn persistence of these inequalities marks relations within the labour market, households and communities. Thus, as one prominent scholar concludes, there is a growing dynamic of “racialized gendering” in paid work generally and within precarious employment specifically.[70] For newcomer, temporary migrant, and non-status workers, immigration status intersects with gender and the process of racialization to deepen labour market insecurity.
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