Restorative Regulation of Criminality at Work in Canada

This chapter suggests a way of enriching the normative theorization of the interface between labour law and criminal law in Canada. It homes in on the role of the criminal law in enforcing worker-protective labour standards, in particular with regard to workplace health and safety. Focusing specially on penal policy in respect of violations of health and safety standards by employing enterprises and by individual members of the staff of those enterprises, this chapter contends that there is real scope for bringing to bear the principles and tenets of restorative justice upon the practice of applying criminal or quasi-criminal sanctions in this regulatory domain. This might generate some more nuanced and creative regulatory approaches than those which are sometimes manifested in high-profile corporate criminal prosecutions and by the imposition of blockbusting fines upon such corporations. Moreover, the chapter argues that certain of the currently much-discussed human capabilities approaches to legal regulation might be deployed to develop and flesh out a methodology of restorative justice in this particular context.

Workplace Safety and Criminalization

This chapter argues that the contribution of criminalization to better health and safety in workplaces has been limited by certain contextual features of this regulatory method. It focuses on the role of criminal law in the health and safety legislation and the corporate manslaughter offence. In particular, this chapter argues that criminal law interventions are gravitationally oriented towards individualized notions of fault, capacity, choice, and responsibility. Once the liability enquiry is structured in this highly personalized way, the regulatory capacities of the criminal law to secure effective and enduring structural change is limited. Thus, it remains an open question whether the criminal law can accommodate approaches to responsibility that are more attuned to structures, cultures, and organizational norms.

Victim or Perpetrator? The Criminalization of Migration and the Idea of ‘Harm’ in the Labour Market Context

This chapter provides powerful arguments against the criminalization of irregular migration. It does so by testing the extensive criminalization of irregular migrants against standard liberal principles of criminalization. The chapter argues that it is very difficult to identify any direct wrongs or harms to others that arise in virtue of ‘irregular’ migration. Furthermore, a malum prohibitum offence cannot be justified. Against these weak arguments in favour of criminalization, this chapter identifies compelling reasons against criminalization. Criminalization leads to further criminalization, which ultimately undermines both migrants’ and local workers’ fundamental rights. It also blocks discussion of one particularly worker-protective regulatory response to irregular migration, namely regularization. In truth, the criminalization of migrants represents a context where there has been a decisive rupture with liberal principles of criminalization.

The Work of Sex Work

This chapter analyses the legal treatment of sex work, and specifically prostitution, from the perspective of Marxist feminism. Here, the work of sex work must be understood in its wider structural context of gendered and racialized capitalism. The chapter argues that sex work should be understood as work. Furthermore, the features of ‘unfreedom’ associated with sex work do not vitiate its identity as a form of work, and therefore as an activity that warrants the application of protective norms of labour law. This marks an important distinction from the previous chapter’s taxonomy of commercial sex work. In fact, this chapter argues that all work under capitalism is structurally coupled with exploitation and alienation (unfreedom) that ebbs and flows according to the balance of class forces. Given this structural coupling, it is problematic to use the exploitation and alienation in sex work as a basis for excluding it from the domain of personal work relations and for barring sex workers from worker protective laws.

The Criminalization of Workplace Harassment and Abuse

This chapter considers the legal treatment of workplace harassment and abuse. In the wake of social and political activism focused on sexual harassment, the legal regulation of harassment has been under intensive scrutiny. In the English context, harassment is already regulated by an extensive body of legal norms. The Protection from Harassment Act 1997 is an interesting example where legislation provides for parallel tortious and criminal liability for the same wrong. The chapter develops the idea that criminal liability has had a ‘dragging’ effect on the civil liability regime, the effect of which has been to undermine the effectiveness of the legal response. This is because the paradigm of criminal liability has treated harassment as a personalized wrong, reflecting the structure of the criminal process to allocate censure and blame to culpable agents. The effect of this has been to obscure the structural and organizational context to harassment and abuse, which propagates in circumstances of insecurity, precarity, and non-decent work. As an alternative, the chapter defends an organizational framing of criminal liability based upon a health and safety model. It develops this model of criminal liability drawing upon the value of human dignity.

Wage Theft as a Legal Concept

This chapter analyses the fraud offence from the perspective of ‘wage theft’. The social concept of a ‘wage theft’ encompasses a wide range of dishonest or ‘sharp’ practices: false labelling of individuals as ‘self-employed’ and hence outside the scope of the National Minimum Wage framework, failure to pay holiday pay, unlawful deductions, and an absence of transparency in relation to wage entitlements. It is linked to wider public concerns about the effective enforcement of the statutory minimum wage regime. The chapter then examines whether the social concept of ‘wage theft’ maps onto the legal definition of ‘theft’ in section 1 of the Theft Act 1968. It argues the legal label of theft is ill-suited to the constellation of practices associated with the social label of ‘wage theft’. This is because of the disjunction between the proprietary status of ‘wages’ and the offence elements of theft in English law. In short, unpaid wages will often not count as ‘property belonging to another’ at the time of the dishonest appropriation by the employer, hence there is a difficulty with identifying a complete and coincident mens rea and actus reus.

Class Crimes

This chapter compares the historical development and use of criminal law at work in the United Kingdom and in Ontario, Canada. Specifically, it considers the use of the criminal law both in the master and servant regime as an instrument for disciplining the workforce and in factory legislation for protecting workers from unhealthy and unsafe working conditions, including exceedingly long hours work. Master and servant legislation that criminalized servant breaches of contract originated in the United Kingdom where it was widely used in the nineteenth century to discipline industrial workers. These laws were partially replicated in Ontario, where it had shallower roots and was used less aggressively. At the same time as the use of criminal law to enforce master and servant law was contested, legislatures in the United Kingdom and Ontario enacted protective factory acts limiting the length of the working day. However, these factory acts did not treat employer violations crimes; instead, they were treated as lesser ‘regulatory’ offences for which employers were rarely prosecuted.

Accessory Liability for National Minimum Wage Violations in the Fissured Workplace

This chapter examines whether ‘accessory liability’ could provide a way of attributing criminal liability to lead companies in supply chains where those lead companies are not functioning as ‘employers’. For example, company X subcontracts a particular economic activity to company Y, and Y then employs workers to fulfil the requirements of its commercial contract with X. Accessory liability criminalizes those who intentionally assist or encourage the commission of principal offences, thereby extending the web of criminal liability beyond principal parties. This could provide a principled way of responding to enforcement problems in the ‘fissured workplace’. Furthermore, this would be consistent with the requirements of fair labelling and culpability in general criminal law, by avoiding the fictional attribution of ‘employer’ status to entities that are not employing.

The Criminalization of Health and Safety at Work

This chapter adopts a historical perspective on the development of criminalization of health and safety law. In so doing, it emphasizes the divergence in perspective between criminal lawyers and labour lawyers on fundamental matters of value. Criminal lawyers have tended to focus on the development of criminalization-limiting principles as an exercise in normative theory, whereas labour lawyers have tended to focus on instrumental outcomes in terms of whether health and safety outcomes are improved. If criminal law works in that instrumental sense, then so much the better, and that supersedes niceties about the justifiability of criminalization. This chapter identifies the central importance of criminalization as a tool of deregulation in the modern era, following the removal of a civil right to seek compensation for breach of statutory duties under the health and safety legislation. By channelling enforcement exclusively through the criminal law, the individual worker is thereby disempowered in their standing to control the legal process and its outcomes.

The Persistence of Criminal Law and Police in Collective Labour Relations

This chapter examines the role of criminal law and police power in regulating and restricting collective labour activities. In so doing, it challenges the dominant view that the historical development of collective labour law involved the progressive withdrawal of criminal law from trade union affairs. The chapter draws upon sociologically and historically based accounts of criminal law to examine the development of collective labour relations across different historical periods. It argues that a wider framing of criminal law interventions, to include discretionary ‘police’ measures, reveals a much more persistent presence for criminal law as a mode of repression and control. This has been most pronounced during periods of ‘emergency’, such as the general strike, wartime, and the miners’ strike during the mid-1980s. More recently, the chapter suggests that there has been a ‘normalization’ of emergency, with the radical trade unionist emerging as a new dangerous status that is the object of covert state surveillance and disciplinary control.