Changing Boundaries of Employment: Developing a New Platform for Labour Law
Canadian Labour and Employment Law Journal. Volume 10, Number 3 (2003), p. 361-398.
In this paper, the authors consider whether the contract of employment should continue to be the central platform for delivering employment- related rights and benefits, such as access to labour standards and collective bargaining legislation. Labour market analysis has traditionally distinguished between employment and self-employment on the basis of a dichotomy between subordination and autonomy. whereas employees subordinate themselves to their employer in exchange for income and job security, the self-employed forego these benefits in order to gain autonomy and control over the means of their own production. This distinction is reflected in, and reinforced by, the boundary drawn in labour law between employees and independent contractors. Sociological research, however, indicates that these boundaries have eroded. The self-employed occupy a wide variety of locations along a spectrum of autonomy and subordination, and many subsist in precarious economic situations. After noting the rapid growth of self-employment in most OECD countries, and the conflicting "push" and pull" factors which have been cited to account for this growth, the article shifts focus to legal history, reviewing the origins of the legal distinction between employees and independent contractors. Contrary to the conventional view, the authors assert, the conception of employment as being rooted in contract is a recent development, and the contract of employment continues to bear the ideological imprint of master and servant law. The authors conclude by discussing three possible scenarios for the future of the contract of employment. While some commentators favour maintaining the status quo, and others propose extending the contract of employment to dependent workers, the authors argue that the distinction between dependent workers and independent contractors should be abolished altogether. Under this scenario, labour law protection would be extended to all those who personally perform work for remuneration.
Fudge, Judy, Eric Tucker, and Leah Vosko. "Changing Boundaries of Employment: Developing a New Platform for Labour Law." Canadian Labour and Employment Law Journal 10.3 (2003): 361-398.
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