This is a debate about who should and should not be paid for their work. It's in the context of a statute intended to protect the rights of employees, especially the most vulnerable workers in Canada. It's a debate that affects mostly young people and people who, for whatever reason, are compelled to offer their services free to employers. These are workers. That's not part of the debate.
The legal definition of employee is rooted in control. This is the justification for the protection of employees in law. Law always seeks to be justified and you must justify what you do with this statute. Because employers control the working lives of people, and because working people are dependent and vulnerable in that relationship, the law provides for the protection of basic rights of employees.
If the justification for protection is control and vulnerability, what are the justifications for being excluded from these protections? Independent contractors are the most common exclusion in law. The common law excludes them from the definition of employee because there is no control and no dependence. Therefore, in theory, there is no need for protection.
On the other hand, we accept that interns, for example, should be protected from unsafe work places in part 3 of the code. Why is that? It's because the employer controls the work place and because interns are dependent and vulnerable. These are the justifications for the legal protections of employees and the same justification is applied in part 3 of the code.
The statute you are considering today does two significant things for our group of young people. It expressly includes them as employees for purposes of health and safety protections, and it expressly excludes them for purposes of other basic protections. We need to ask ourselves why.
There's no argument that unpaid workers should be forced to tolerate unsafe workplaces. That would be an indefensible position. They're in the same relationship with employers as other workers, in that they are subject to control, vulnerable, and dependent. So what then are the justifications for excluding them from part 3 protections?
Part 3 protections can be grouped into four categories. The first three appear to be no brainers, and it's unclear why interns would be excluded from them, including protection against excessive hours of work, guarantees of certain time off, protection against unjust dismissal, and protection against sexual harassment. It would be indefensible to exclude interns from these protections. Yet this statute purports to do so, unless some regulation makes those protections apply to them.
That leaves minimum wages. This is the one that causes most of the problems for us. It's because interns, by contract, have bargained to provide free work, and free work is illegal. So these amendments to the code purport to carve out interns from all of the protections I just read to you, and from protection against free work.
What justification is there for this? We do not permit other employees to bargain below minimum standards and minimum wages. We determine that a just society cannot do that, at least since the 1948 Universal Declaration of Human Rights.
Permitting employers to capitalize on the desperation of vulnerable workers is something we have rejected. When you stir into that mix unemployment, with youth unemployment at double the national average, in an economy where precarious work has become alarmingly normal, that desperation, which is the object of the code, is more ominous than ever. Our young people are more vulnerable than they've ever been. They're willing to go to work for free without basic protections of their human dignity for the slight prospect of gainful employment in the future. This is desperation, and this is what part 3 of the code exists for.
I ask you again to ask yourselves, what justification is there for excluding our young people from these protections?
If I have a moment, I would like to finish with a quote from the 2006 Arthurs Commission report titled “Fairness at Work”, which examined the Canada Labour Code. In particular, in one section Professor Arthurs examined studies and arguments against minimum wages, and found those arguments to be inadequate. He nevertheless concluded: In the end, however, the argument over a national minimum wage is not about politics or economics. It is about decency. Just as we reject most forms of child labour on ethical grounds, whatever their economic attractions, we recoil from the notion that in an affluent society like ours, good hardworking people should have to live in abject poverty.
I would say to you today, similarly, that decency should prevent us from excluding this group of vulnerable young workers from the protections we have long held to be necessary for all working people.