CANADA Collective Bargaining for Independent Contractors – E MacPerson

COLLECTIVE BARGAINING FOR INDEPENDENT CONTRACTORS: IS THE STATUS OF THE ARTIST ACT A MODEL
FOR OTHER INDUSTRIAL SECTORS?

Introduction
Since at least the time of the industrial revolution, the common law has distinguished between contracts of service (“employment contracts”) and contracts for service (arrangements through which work is performed by one person for another). The term “employee” has been used to describe individuals involved in a contract of service, while those with contracts for service are generally considered to be independent contractors.

In the employment and labour contexts, it has been important for the law to distinguish between employees and independent contractors. For example, with respect to employees, employers are subject to statutory requirements regarding withholdings and levies such as employment insurance, pension and health insurance premiums and income taxes. Employees have statutory entitlements to severance pay and, in some jurisdictions, to statutory protection from wrongful dismissal. Independent contractors, on the other hand, must rely on the common law of contract when their services are terminated prematurely. Only workers who hold employee status can benefit from the right to organize and bargain collectively; independent contractors who attempt to do so risk being found to be involved in a conspiracy in restraint of trade under anti-combines legislation.

The objective of this paper is to consider the provisions of the Canadian Status of the Artist
Act1, the first national legislation to provide a framework for collective bargaining by independent contractors, and to explore whether a similar regime could and should be applied to other industrial sectors.

CANADA Collective Bargaining for Independent Contractors - E MacPerson

Scope:

COLLECTIVE BARGAINING FOR INDEPENDENT CONTRACTORS: IS THE STATUS OF THE ARTIST ACT A MODEL
FOR OTHER INDUSTRIAL SECTORS?

Introduction
Since at least the time of the industrial revolution, the common law has distinguished between contracts of service (“employment contracts”) and contracts for service (arrangements through which work is performed by one person for another). The term “employee” has been used to describe individuals involved in a contract of service, while those with contracts for service are generally considered to be independent contractors.

In the employment and labour contexts, it has been important for the law to distinguish between employees and independent contractors. For example, with respect to employees, employers are subject to statutory requirements regarding withholdings and levies such as employment insurance, pension and health insurance premiums and income taxes. Employees have statutory entitlements to severance pay and, in some jurisdictions, to statutory protection from wrongful dismissal. Independent contractors, on the other hand, must rely on the common law of contract when their services are terminated prematurely. Only workers who hold employee status can benefit from the right to organize and bargain collectively; independent contractors who attempt to do so risk being found to be involved in a conspiracy in restraint of trade under anti-combines legislation.

The objective of this paper is to consider the provisions of the Canadian Status of the Artist
Act1, the first national legislation to provide a framework for collective bargaining by independent contractors, and to explore whether a similar regime could and should be applied to other industrial sectors.