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Employment - Simon's Politics | Everything on this page is Simon's personal politics, not law. My politics are municipalist Green-Utopian. |
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Not long ago, employment law was called the law of 'master and servant'. The terms used may have changed, but sadly the reality hasn't - it is still an accurate description of the employment relationship. Yet most of us want to be neither servant nor master to anyone. For too many of us, the only benefit from the transition from serfdom and slavery to employment has been entirely material. It's high-time we fully grappled with the other long-term effects of the imbalance on social power that the employment relationship manifests.
In Canadian law, the best way to define the employee-employer relationship is by contrast with the competing relationship of independent contractor and client. Forty years or so ago this contrast was a fourfold matter of: 'ownership of tools/risk of loss/chance of profit and control'. The independent contractor tended to: own tools, bear financial risk and chance and have more control over their activities. In contrast, the employee tended to: not own tools, have no financial risk or chance and have less control over their activities.
Recently, this legal test shifted heavily towards 'control' alone. Today, perhaps the clearest recent statement on the distinction is from 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (SCC, 2001):[47] ... The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks. That test is one between employees and independent contractors, not between employees and employers - but the employee-employer contrast is invariably the same. The reduced power that the employee has over 'ownership/financial risk-loss and control' naturally falls to the employer as an increased power. It's very much a zero-sum dynamic.
But both contrasts are relevant. Employees have a 'reduced' power, reduced not only in contrast to the employer - but reduced in contrast to the independent contractor. In larger terms, the independent contractor is the more rudimentary and basic of the relationships. Contracts between two truly independent contractors (ie. starting from equal situations of knowledge and bargaining power) are obviously more 'equal' - more primary than the employment relationship. It's undeniable that employment is a relationship of subservience, a modification from the natural role we have in notional society of equals - and that it is a product of overlays of unequal social development.
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In these contrasts (employees versus employers, and then with free contractors) the only aspect where the employee comes up even halfway successful is that of no financial risk/loss, where the employment 'deal' is that they settle for a neutral outcome - ie. no risk of loss (ie. a steady paycheque), but no chance of profit either (ie. no equity, except in the rare case of profit-sharing).
To the extent that the employee remains in the employment relationship, they trade control over their creative potential - and as well their ability regain such control (ie. tool accumulation and financial accumulation) - for the 'regularity' of the paycheque. In this society it is a sad fact that when this regularity is attained most 'employees' find themselves too pressured by needs and desires - both good and bad (ie. by necessity, family, consumer expectations, addictions and more) - that they can rarely transcend this subservience.
The consequences of this overwhelming dynamic are several - all negative for the employee's long-term interests, including:- long-term uncertainty over financial security (with all the risks that poses to family-raising, home ownership, location stability) if and when the employer enterprise fails, transitions, moves, sells or otherwise stops needing the employee's work contribution;
- degradation of the employee's trade skills and their upkeep - except those incidental to the employer's needs (ie. skilled employees will not develop, nor keep-up, with the skills except as their employer requires them);
- atrophy (and/or failing to initially develop) of the employee's negotiation, legal, business, client development and related life skills that an independent contractor needs if they are to operate in the market as a free agent;
- loss of ethical control over the broader social effects of the employee's work activities and work product [ie. ethical self-policing over one's life-work is dimished or eliminated by the loss of knowledge, control and freedom-to-object over such aspects of their work as environmental, religious, economic fairness (ie. anti-monopoly, local growth), community and more].
The overall themes are obvious. It's plain that the employment as a social institution supports the continuation of uncritical behaviour - uncritical and damaging to us, the environment, our communities and the world in general.
As long as employment continues to be the primary economic legal relationship of our world, it's plain that employees are rarely going to be more than extensions - quite literally tools, of other people's dreams and aspirations - which, for the solely profit-driven corporations that hire too many of us, you can barely even describe as shallow. The alternative is to embrace freedom to contract, to - from the start - train and develop skills in useful, flexible and universally-needed areas that allow personal and community development, enable financial predictability, and ethical control over our life's work.
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