The Employment Relation Who is an Employee

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The Employment Relation Who is an Employee?

• Predominant relation of production in capitalism
  is that of employer-employee
• For that reason, most of labour law is built on
  the platform of the contract of employment
• Definition of employee, therefore, determines the
  scope of labour law coverage the point where
  labour law begins and commercial and general
  contract law ends
• But, the distinction between employees and
  workers who provide service pursuant to other
  contracts (eg. independent contractors) is and
  has been elusive
• Also, questionable whether the legal category of
  independent contractor corresponds with the
  economic category of entrepreneur

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A Paradigm Case of Employment
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Figure 1 Class of Worker, 2000
Total Employment 14,909,680 / 100
Employees 12,488,303 / 83.8
Self-Employed 2,421,372 / 16.2
Public Employees 2,792,440 / 18.7
Employers 839,971 / 5.6
Private Employees 9,695,869 / 65
Own Account 1,538,104 / 10.3
Unpaid Family Workers 43,297 / 0.3
Source Statistics Canada Labour Force Survey,
Public Use Microdata Custom Tabulation, 2000
Annual Averages
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Source Statistics Canada, 2001, Labour Force
Historical Review CD-ROM
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Source Statistics Canada, 2001, Labour Force
Historical Review CD-ROM
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The Legal Problem Stated

• Control
• Montreal Locomotive 4 factors
• control, ownership, chance of profit, risk of
  loss
• Organization Test
• Economic Realities Test

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Wiebe Doors

• What is the legal context?
• Who has an interest?

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Common Law

• What is at stake? Vicarious Liability
• Policy reasons for holding employer vicariously
  liable
• Acts of employee are those of the employer
• Provides victims with a practical remedy
• Risk creator should bear cost when harm
  materializes
• Deter future harm
• Implications for legal test?

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67122 Ontario Ltd. v. Sagaz Industries Canada
Inc.2001 SCC 61

•  46. In my opinion, there is no one conclusive
  test which can be universally applied to
  determine whether a person is an employee or an
  independent contractor.
• 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.
• 48     It bears repeating that the above factors
  constitute a non-exhaustive list, and there is no
  set formula as to their application. The relative
  weight of each will depend on the particular
  facts and circumstances of the case.

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Social Wage Protection

• What is at stake?
• Entitlement to statutory benefits/liability to
  pay cost
• Policy rationale for program
• Implications of policy context for test and its
  application, if any
• Has legislature defined employee or otherwise
  specified who is covered?
• Has decision-maker taken context into account in
  drawing line? (court or administrative tribunal)

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Scope of Coverage
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The Challenge Ahead

• If reconstruct labour law on the platform of
  contracts for the performance of work
• Need to develop workable distinction between
  workers and entrepreneurs
• Need to consider specific public policy
  justifications to expand or contract coverage
• Need to make schemes effective for all covered
  workers