Recent events, the many aspects of law and workers’ rights
When workers struggle, they often invoke the law, either by denouncing a set of provisions that favour the dominant class or by trying to bring themselves under the umbrella of legal protections they had won in previous struggles. This makes sense but it tends to ignore the multi-faceted nature of law. Two cases in the news throw a spotlight on the problems that this may generate.
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- A man named Matharu was convicted of criminal negligence offences. He had driven his truck at too great a speed, while talking on a mobile and, paying little attention, had collided with a car which set off a chain reaction. Four people were killed and another seriously injured. If these were the only material facts, it is easy to see why Matharu was convicted and sentenced to 12 years in jail, with the possibility of being deported when he was released (he had come from India).
The court was told that Matharu had been given his load in Winnipeg by the trucking company for which he worked and told that it had to be in Maple Leaf ‘s storehouse near Hamilton by 10 a.m the next morning. The judge found that, in order to discharge this obligation, the driver had been driving for 26 hours and had managed to grab only 2 hours’ sleep in his cab while en route. The judge was told (but noted he had not tried to find out whether it was true) that the driver had told his employer that this was a task that required him to break the law (drivers are limited to 13 hour shifts, then must take a 4 hour break), but that his employer responded that he, the driver had had a week off so a few hours’ sleep more or less should not be a problem. It is easy to see that the driver was trying to explain why he might have been so inept by the time the collision occurred.
The judge was unsympathetic. He felt that, if the long haul in this impossible time frame was seen as a problem, the driver should just have refused to accept the task. He was an experienced, well-trained and skilled driver and he should not have put his personal interests in being paid above that over the safety of others.
The fact that the driver had been off work for a week because he had objected to take on a job for the same employer when the truck would be carrying weight more than legally allowed and the employer had punished him for this act of disobedience by not giving him any work for a week, worked against the accused driver. The judge indicated that this proved that the driver could have refused the overnight driving job from Winnipeg to Hamilton.
The judge paid no attention at all, apart from reciting it, to the fact that the driver had bought the truck he was driving from the employer who gave him jobs. The driver had been loaned money by his employer who then leased the truck back from the driver. That is, not only did the driver depend on the employer for jobs, he owed him money.
None of this mattered. The judge treated the case as if it was one dealing with a drunk who had killed people because of his negligent driving. Yet, it is obvious that the reason for a drunk’s marked and substantial departure from reasonable behaviour (the test which is applied when determining whether careless conduct amounts to a crime) was that he indulged himself, not caring about the consequences. No such logic applied to Mathura: he was far from self-indulgent, he was not into self-gratification at the cost of other people’s lives.
The approach taken by the court, by a judge called Michael Code, widely considered to be relatively progressive, was to ignore the impact of economic realities. He pretended that contracts between employers and workers are free contracts, contracts to which workers are equal parties. As law has a legitimating effect, his reasoning endorsed the idea that economic power imbalance does not lead to unacceptable coercions. This might ring alarm bells for activists as they rely on law to advance their causes. They might think about how this marginalization of the reality of economic power imbalances affects the way in which regulatory laws are drafted and enforced. More they might be put on notice about how, as a result of the legal laundering of economic coercion, one of primary goals of anti-capitalists, namely, advocating for economic democracy, becomes harder to attain.
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- A temporary worker from the Philippines had a job as a carer for a non-verbal child. Her employers live in one of the wealthier areas of Toronto. They are said to be multi-millionaires. The worker slept at her employers’ abode 4 nights a week, spending the other nights in a shelter. Her duties included looking after the child and housekeeping and cleaning tasks. After 6 months, her employer met her at the door and sacked her. She was owed wages. Her employers claimed she was not. The Employment Standards Branch found in favour of the employers but an appeal to the Ontario Labour Relations Board succeeded. It found that the employers’ version of events and the duties carried out by the worker were unreliable and, on many occasions, fabricated. They found that the worker actually worked 85 hours per week rather than the 35 hours specified in the original contract. They ordered that a payment of $28,000 was to be made to the worker. This has not been paid as yet. The Employment Standards Branch could have prosecuted for non-compliance with the order. It has not. It rarely does. 3 years ago there were very few prosecutions, a mere 115, to enforce orders; last year there were only 37. In this case, as in so many, the Employment Standards Branch decided that collecting the debt was too difficult and, as is common when that is decided, asked the Ministry of Finance to do the collection. That Ministry has failed to collect the owed monies because it cannot find out which of the many bank accounts run by the employers should be the ones out of which banks should take the money. This is not uncommon. Successful recovery for unpaid debts owed by employers is only attained in 20% of all such cases. This makes the non-prosecution of wilful wrongdoers all the more notable.
This story illustrates the fact that merely winning a protective law may not yield the results those who struggled mightily to get it were hoping to nail down. It also illustrates the fact that this kind of protection is supposedly afforded to the most vulnerable of workers, such as a foreign temporary, non-unionized worker. But the only way those protections can be activated is by those very vulnerable workers having to prove their case and, as this story tells us, this is difficult. The existence of a law does not mean it will be implemented or enforced. This should be a matter of concern for those activating for legal reforms.
So also should the many ways in which laws provide protection for the owners of the means of protection. In both of the cases noted here, employers were hiding behind corporate structures which enable them to make it difficult for enforcement to occur and, in sharp contrast, make it easier for them to pass on the risks and costs of production to others. Remember here that corporations are legal vehicles built by law for these very purposes.
To hammer home how enfeebled this leaves feebly placed workers, I note that not paying what is legally owed to workers is an epidemic of the Covid-19 dimensions. It is such a common way of doing business that some jurisdictions have created a new crime they call Wage Theft. For an illustration of how much money is involved, see Broken Laws, Unprotected Workers, which reported that 37% of undocumented workers in the U.S. were victims of underpayment for work done, that is, were paid less than the minimum wage legislation required they be paid. This compared to 24% of documented immigrant workers and 16% of US born workers who were similarly short-changed. The Economic Policy Institute recorded that, in 2017, 2.4 million workers in 10 States were owed 8 billion dollars that year by scoff-law employers. Extrapolating this degree of underpayment to the national stage led the study to claim that unpaid wages in the U.S. totalled $15 billion per annum and that this staggering sum did not include any amount owed for unpaid overtime worked. As is to be expected, people holding visas which limit their work rights and immigrants are favourite targets for rapacious employers.