Document Type

Article

Publication Date

3-2021

Publisher

Employment and Social Development Canada

Keywords

self-employed; collective bargaining; sectoral bargaining; protected concerted activity; unions; labor law; labour law

Abstract

This report seeks to identify and discuss feasible models for collective representation and bargaining for self-employed contractors in the federal jurisdiction. The term “self-employed contractors” refers to workers who would be classified as “independent contractors” under the Canada Labour Code (CLC) Part I and, consequently, be excluded from the ambit of CLC collective representation and bargaining provisions. The study utilizes fieldwork, in the form of interviews and focus group discussions, in four sectors of interest, namely, road transportation, broadcast media, technology, and telecommunications, in order to explore and assess potential models for statutory collective representation and bargaining for self-employed workers. At the outset, the report provides necessary background for the models sought to be tested through fieldwork by delineating freedom of association obligations under the Canadian Charter and international labour law and outlining key approaches or models by categorizing them along a continuum from collective representation to collective bargaining. The literature reviewed includes research on the capacity and activities of non-union organizations as well as theories and findings pertaining to the propensity and needs of workers to organize. The report, with respect to each sector of interest, identifies fundamental features of organization of work by self-employed workers that are relevant to collective representation and bargaining. It also examines the degree of unionization of each sector, with a specific emphasis on self-employed workers, and applies relevant theories of organizing propensity to theoretically evaluate the possibility of self-employed workers in the sector organizing. Moreover, the report sheds light upon cross-sectoral considerations relevant to organizing, including confusion pertaining to the applicability of federal jurisdiction, the perceived prevalence of misclassifying employees or dependent contractors as independent contractors, conflict of interests amongst workers, and the accentuated vulnerability of recent immigrants and foreign workers, whilst pointing out the limited capacity of non-union organizations to engage in collective representation or bargaining on behalf of self-employed workers. Additionally, the report also outlines six potential statutory models to facilitate collective representation and bargaining for self-employed workers in the four sectors of interest: (i) CLC Extension Model, which applies the provisions of CLC Part I to self-employed workers, (ii) Sectoral Bargaining Model, which establishes a sectoral bargaining system that allows the “most representative” association to bargain a sector-wide minimum standards agreement operating in parallel with the CLC, (iii) Bernier Model, under which worker associations may seek certification for one of three forms of workplace representation, namely, individual representation in relation to individual workplace matters, workplace consultation and information rights, and collective bargaining, whilst gradually advancing along this gradation; (iv) Sectoral Standard-Setting Model, under which the representatives of self-employed workers and employers would negotiate, with government representative participation, minimum standards, which would be incorporated into enforceable regulations after being accepted by the government; (v) Worker Forum Model, which provides for individual representation at the workplace level and collective representation at the sectoral level, and (vi) Protection for Collective Activity Model, which makes CLC unfair labour practice protection and relevant remedies applicable to self-employed workers so as to cover both organizing and non-organizing activity insofar as it is collective and pertains to workplace concerns. Lastly, the report, based on this analysis, provides recommendations for each of the sectors of interest.

Comments

Report Prepared for Employment and Social Development Canada

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