Social protection for non-standard workers outside the employment relationship

Full text

Social protection for non-standard workers
outside the employment relationship
Jean Bernier, Associate Professor
Department of Industrial Relations
Laval University
Quebec City
Research for the
Federal Labour Standards Review Commission
Professor Harry W Arthurs, Commissioner
Quebec City, January 10, 2006

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SOCIAL PROTECTION FOR NON-STANDARD WORKERS
OUTSIDE THE EMPLOYMENT RELATIONSHIP
List of Tables.................................................................................................................3
INTRODUCTION............................................................................................................. 4
A - Types of employment considered..........................................................................4
B - The issue: benefits available to non-standard workers.......................................5
I - NON-STANDARD WORKERS AND PROVIDENT PLANS .......................................7
A - Experience abroad ..................................................................................................7
1 - MISSOC data ......................................................................................................... 9
2 - The French model of supplementary provision..................................................... 14
B - Experience in Canada (Quebec)........................................................................... 19
1 - The insurance plan ............................................................................................... 20
2 - The retirement plan .............................................................................................. 21
II - SOCIAL PROTECTION FOR THE SELF-EMPLOYED...........................................22
A - European countries...............................................................................................24
1 - Information gathered by MISSOC......................................................................... 24
2 – Social protection for the self-employed in France................................................ 29
B – Canadian (Quebec) models .................................................................................31
1 – The professional status of artists ......................................................................... 31
2 – A framework scheme of collective representation................................................ 34
III – SOCIAL DRAWING RIGHTS................................................................................. 37
A - The concept of social drawing rights .................................................................. 37
B – Questions raised by social drawing rights......................................................... 40
C – Possible avenues for implementation ................................................................43
CONCLUSION..............................................................................................................49
A – Provident plans..................................................................................................... 50

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1 – Non-standard workers and provident plans ......................................................... 51
2 – Self-employed workers and provident plans ........................................................ 52
B – Social drawing rights ........................................................................................... 54
APPENDIX A - The most relevant provisions of the main EU directives on equal
treatment......................................................................................................................55
Bibliography ................................................................................................................ 57
A- Monographs, articles and documents.................................................................. 57
B- European Union Documents ................................................................................. 59
C- List of People Interviewed ..................................................................................... 59
List of Tables
I - Supplementary social protection plans for workers............................................ 11
II - Main characteristics of mandatory public supplementary retirement plans for
workers ....................................................................................................................... 12
III - Salary contribution rates in effect in the general supplementary retirement
plan, from January 1, 2002 ......................................................................................... 18
IV- Social protection schemes specific to the self-employed ................................. 27
V - Contribution rates for social protection specific to the self-employed in France
...................................................................................................................................... 30
VI - Breakdown of contributions by members and producers to the CSA............. 33
VII - Quebec Parental Insurance Plan........................................................................ 47
VIII – Illustrations of QPIP premiums......................................................................... 48

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INTRODUCTION
The essential purpose of Part III of the Canada Labour Code is to define minimum
working conditions to be met under both individual labour contracts and collective
agreements concluded by federal undertakings. It is designed to govern the conditions
applicable to individual and group terminations. It also provides a complaint mechanism,
and governs the means of redress available to grievors.
In this sense, it constitutes the basis for social protection within the employment
relationship.
This Part of the Canada Labour Code1 was enacted at a time when working relations
were relatively stable, and in most cases involved a relationship of legal subordination
of the worker to a single employer, with the work performed on the premises of the
employer on an indefinite basis, which could extend over a very long period.
In an earlier study,2 I had the opportunity to examine to what extent the application of
Part III of the Code, enacted in 1965 and amended very little since then, together with
the standards as written, can encompass the special circumstances of people in
non-standard employment. The study offers a diagnosis and looks at various strategies
for resolving some of the problems observed with respect to access for non-standard
workers to the protection offered by the Code. The fact remains that while the changes
considered are capable of solving some of the problems observed in individual
businesses or establishments, that is, within the employment relationship between a
worker and a given employer, they are still incomplete and inadequate inasmuch as in
most cases what makes the work non-standard is the discontinuity of the employment
relationship.
The question is not a trivial one, given the diversification noted in forms of employment
and the large number of workers concerned.
A - Types of employment considered
Over the last thirty years or so, at the very least, the labour market has undergone
profound changes in its structure, whereby forms of employment have diversified and
proliferated, thus responding to major changes in the way labour is supplied. What is
commonly called “non-standard” work, meaning work that does not fit the traditional
definition of permanent, full-time employment with the same employer on an
indeterminate basis, has expanded considerably over the last three decades. No longer
peripheral, the forms of employment involving part-time, fixed-term, temporary, home
1 Hereinafter referred to simply as “the Code,” wherever possible.
2 Jean Bernier, “The Scope of Federal Labour Standards and Nontraditional Work Situations,” October
2005, 82 pages.

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and standby workers, those who have more than one job, and the self-employed, have
become so significant numerically that they now affect, year in and year out, about one
third of the workforce, and even a little more than that.3
In the case of independent contractors and workers, sometimes collectively labelled “the
self-employed”, it is important to specify that in this study, we shall be referring to
workers who are genuinely autonomous. In my earlier study,4 in fact, I had an
opportunity to examine at length the question of those dubbed “false” self-employed or
independent workers and the related question of ambiguous and disguised employment
relationships. There is therefore no need to revisit the matter here. It should thus be
borne in mind that the people referred to in the pages that follow are the “real”
self-employed.
B - The issue: benefits available to non-standard workers
Whatever changes might be made to Part III of the Code as such—a broader definition
of “employee”, a ban on unequal treatment based on employment status, a framework
for relations between user firms and temporary help agencies, adjustments to deal with
the situation of part-time employees and multiple jobholders—access to such measures
will always be dependent on an employment relationship with a given employer.
Access to certain programs or benefits, such as group insurance and retirement plans,
presupposes a measure of continuity in the relationship with the employer. However,
one of the characteristics of non-standard jobs—salaried or otherwise—is precisely a
discontinuity in time and space.
Even if the law required it of employers, it is difficult to imagine how a casual, standby or
temporary employee could participate in training programs designed for full-time staff;
how such a worker could be granted parental leave in any meaningful way; on what
terms a part-time employee could be covered “part-time” or pro rata temporis by an
insurance plan for dental or medical care. We are familiar with the restrictive conditions
of eligibility that apply to supplementary retirement plans, designed for permanent
employees. Even if the principle of equal treatment or non-discrimination were to be
implemented, we could not expect employees from temporary help agencies to be able
to qualify for the group insurance or retirement plans in operation in the firms where
they are filling in on a short- or long-term basis.
Moreover, the arrangement whereby a non-standard worker is sometimes paid a
supplement time-prorated to what the employer pays out in contributions for the benefits
enjoyed by its permanent staff is a solution that seems equitable but is far from
adequate. The amounts may be minimal, and in any case are insufficient to enable the
3 For a more detailed description of non-standard employment and more specific statistics on the extent
of the phenomenon, see my previous study on The Scope of Federal Labour Standards and
Nontraditional Work Situations, October 2005, pages 5-13.
4 Ibidem, pages 17-22 and 27-35.

6
worker to purchase equivalent protection. It is reasonable to believe, therefore, that the
money will very likely be used for other purposes, leaving the worker with no added
protection.
Apart from the large public social protection plans such as employment insurance, the
Canada and Quebec pension plans, drug insurance and old age security, all
supplementary social security plans have been designed and instituted at the corporate
level to meet the protection needs of companies’ permanent staff.
Given their status, the self-employed obviously do not have any more access than non-
permanent staff to group benefit plans in operation in the firms that provide them with
work, where such plans exist.
Despite improvements that might be made in Part III to ensure better access for
non-standard workers and prohibit discrimination within companies based on
employment status, it is by no means certain that, necessary as they may be, such
changes can provide an adequate response to all the needs of such people in terms of
social protection.
If the intent is to meet the needs of workers who have no continuous or permanent
connection with a company but work from time to time or hold more than one job, the
answer must be sought outside the company.
The purpose of this study, therefore, is to use examples of programs or policies in effect
in Canada, Europe and, if applicable, elsewhere in the industrialized world in order to
determine by what means certain fringe benefits or other entitlements may be extended
to non-standard workers, such as the self-employed, temporary and part-time
employees and workers employed through temporary help agencies, regardless of their
particular employment relationship.
In broad terms, how are such programs or policies structured and funded? Do they
enable workers to keep or transfer benefits when they change employer or client? What
are the conditions for eligibility, and what exclusions or exceptions apply? Are they
connected in any way to legislation that sets minimum labour standards? What are their
characteristics? Is it conceivable that such arrangements could be instituted by the
federal government in sectors within its jurisdiction?
Since the solutions developed or tested in Canada and elsewhere are very different for
non-standard workers and for the self-employed, they should be examined separately.
Workers, whether standard—that is permanent and full-time—or non-standard, are
already covered by labour law, whereas the self-employed, considered to be
entrepreneurs, generally are not.
We should then examine in greater detail than in the earlier report the question of social
drawing rights.
Lastly, this study will make no claim to be exhaustive, given the time frame and the
conditions set for its execution. Nor will it cause any surprise that prominence is given to

7
plans in effect in certain European countries, since they gave consideration long before
Canada and North American jurisdictions generally did to problems of discrimination
based on employment status, and access to social protection for non-standard workers.
In conclusion, I shall try to identify which model could prove the most applicable, while
distinguishing what can be done within the context of Part III of the Code, and what can
more suitably be given effect by separate legislation.
I - NON-STANDARD WORKERS AND PROVIDENT PLANS
In this part, we shall address the question of provident plans, including supplementary
retirement plans, that are applicable to non-standard workers.
We are not referring here, then, to “basic” social security, meaning universal and
generally mandatory schemes designed to provide workers with a minimum level of
protection: employment insurance, health insurance, the Canada and Quebec pension
plans or their equivalents in the other jurisdictions considered.
What we are looking for is models in operation in Canada or elsewhere that provide
such workers with social protection to supplement what is already provided by the basic
public plans.
A - Experience abroad
Since the countries of the European Union began long before governments in
North America to take an interest in the social protection needs of non-standard
workers, and given the original provisions of European Community law, it seemed
appropriate to search there for models suited to the situation of non-standard workers.
It will then remain to be seen to what extent these models are adaptable to the context
of federal undertakings subject to the Code.
[Translation]
Within the EEC,∗ the convergence of national social protection systems is
implicitly based on what is known as the “three-level model”:
1.) A minimum public service available to the entire population and funded by
taxes: the national solidarity fund, the minimum job entry wage, allowances for
adults with disabilities and generalized social contributions are included here;
2.) a complementary system, funded from contributions withheld from wages,
and managed in coordination with private institutions or agencies;
∗ European Economic Community.

8
3.) a completely unregulated system in which everyone provides
self-insurance voluntarily as they choose and in particular as their means allow.5
It is the second-level plans that interest us more here.
The first observation in this connection is that in the countries of the European Union,
there are no specific supplementary social plans for non-standard workers: there are
two main reasons—distinct but complementary—for this.
First, because of the principle of equal treatment, whereby non-standard workers should
not suffer discrimination in their working conditions, by comparison with standard
workers, solely on the basis of their status. Appendix A to this report contains two tables
summarizing the relevant provisions of the two main European Union directives in this
area.6 The directives require member states to transpose their content into their national
laws.
Second, because it is common for systems of collective labour relations to provide for
bargaining at several levels, and most collective agreements are concluded at the
national level, either at industry level or at the interoccupational level, which does not
prohibit the adaptation of such collective agreements at the regional and local levels. In
addition to this, when certain conditions respecting the representativeness of the
signatories are met, there is sometimes a procedure for extending collective
agreements to make their content mandatory for all firms and workers within the
occupational and territorial field of application of the agreement.7
It is also possible for agreements to be concluded at company or plant level making
conditions even more favourable for workers.
This means that for these two reasons—collective agreements covering one or several
branches of activity, and the principle of non-discrimination—there is no need at all for
special complementary measures or programs applicable to non-standard workers. In
an automatic and wholly transparent way, they are given access to the same social
protection pro rata temporis, as appropriate, as permanent full-time workers covered by
the same collective agreement.
These are therefore protection plans that are fully portable from job to job within the
same branch of industry, and in some cases from branch to branch. It is this, among
other things, that enables those working for temporary help agencies to enjoy a
5 Yves Saint-Jours, “La protection sociale complémentaire d’entreprise,” Droit Social 1992, pp. 141-149,
at p. 144.
6 Council Directive 97/81/EC of 15 December 1997 Concerning the Framework Agreement on Part-Time
Work, and Council Directive 1999/70/EC of 28 June 1999 Concerning the Framework Agreement on
Fixed-Term Work.
7 Thus, for example, whereas in France agreements are most often extended by means of homologation,
in Belgium agreements are negotiated and concluded within national joint committees and extended by
royal decree.

9
complete system of social protection, including insurance and a supplementary
retirement plan.8
This is not to say, however, that the same is true of some benefit plans or special
retirement schemes set up at company or plant level either by agreement or at the
employer’s initiative. This is a question I shall return to later.
1 - MISSOC data
The European Commission recently conducted a large study of the state of social
protection legislation in a total of 29 countries: the 25 member countries of the Union,
the three countries of the European Economic Area—Iceland, Liechtenstein and
Norway—plus Switzerland.9
The study first presents the organization of social protection in each country. There
follow twelve detailed tables, in which are assembled the essentials of the funding of
social protection, and the regulatory provisions governing the main areas in which it
operates: health care, illness, cash benefits, maternity or paternity, disability, old age,
survivors, work accidents and occupational diseases, family benefits, unemployment,
minimum protection and long-term benefits.
With very few exceptions, the study includes data only on general statutory systems in
effect in each country. Since the study is designed to gather information on legislation,
only exceptionally does the input provided by sources in the various countries cover
supplementary plans (generally when the establishment of such plans has entailed
legislative action).
Nevertheless, the study does make it possible to identify some countries in which such
supplementary plans have been instituted or enacted, though without providing full
descriptions.
Table I, below, sets out some of the characteristics of such plans. We should add that
there are also supplementary plans in other countries on which too little information is
available to be worth reporting here.10
As examples, it is interesting to look in greater detail at the main characteristics of
mandatory public supplementary plans for workers. Table II assembles the available
information.
8 See my previous study: Jean Bernier, The Scope of Federal Labour Standards and Nontraditional Work
Situations, October 2005, 82 pages, at pages 45-46.
9 Mutual Information System on Social Protection, Social Protection in the Member States of the
European Union, of the European Economic Area and in Switzerland, Situation on 1 January 2005,
Employment and Social Affairs, European Commission, 2005, 994 pages.
10 This is the case in particular in Cyprus, Norway, Sweden and Slovenia.

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There is as yet no compilation or comparative study of supplementary plans resulting
from collective bargaining or the initiative of employers. The magnitude of the task may
be imagined, given the potential number and diversity of such plans.
This is why, despite the inevitable limitations, it seems that in the circumstances, one of
the most appropriate ways of illustrating the operation of supplementary plans
accessible to non-standard workers is to refer to one particular model. The French
model appears to be one of the most complete and fully developed.

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I - Supplementary social protection plans for workers11
Country Risks covered Contributions Type of long-
term funding
Old age (30 euros) 1/3 worker; 2/3 employer
No participation by public authorities
Capitalization
Denmark
Survivors (30 euros) 1/3 worker; 2/3 employer
No participation by public authorities
Capitalization
France Old age Supplementary retirement benefits for workers
▪ All workers: 7.5% below ceiling (3% worker, 4.5% employer) + 2% below
ceiling (0.8% worker and 1.2% employer) + 2.2% from 2nd to 4th ceiling
(0.9% worker and 1.3% employer for retirement between age 60 and age 65);
▪ Non-supervisory: 20% 2nd to 4th ceiling (8% worker and 12% employer)
Retirement for supervisors
Supervisory workers: 20% 2nd to 8th ceiling (8.5% worker and 12.5%
employer + 0.35% temporary contribution (0.13% worker and 0.223
employer).
Distribution
Disability Contributions included in rates under “Old age” Capitalization
Old age Minimum: 4% worker; 8% employer. Collective agreements may stipulate
higher contribution rates
Capitalization
Iceland
Survivors Contributions included in rates under “Old age” Capitalization
11 Data taken from Mutual Information System on Social Protection, Social Protection in the Member States..., loc. cit., pages 80 to 101.

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II - Main characteristics of mandatory public supplementary retirement plans for workers12
Denmark France Iceland
Legal basis Consolidated Law No. 887 of
August 24, 2004
Supplementary retirement for
workers (ARRCO):
interoccupational agreement of
December 8, 1961
Retirement for supervisors
(AGIRC): national collective
agreement for supervisors of
March 14, 1947
Law respecting mandatory
insurance of pensions and the
activities of pension funds,
No. 129/1997 of December 1997
Basic principle System of mandatory social
insurance for workers and
recipients of daily unemployment
allowances, or equivalent.
Voluntary insurance for all persons
taking an early pension
System of mandatory
supplementary conventional
insurance for workers with
pensions based on remuneration
and the duration of enrolment
Supplementary pension plan
funded by contributions for the
entire workforce, with benefits
based on contributions and the
duration of enrolment
Application Mandatory enrolment for all
workers aged 16 to 66, working at
least 9 hours a week
Mandatory insurance for all
workers and equivalents
All insured workers, employers and
self-employed aged 16 to 70
Factors determining the amount
of benefits Duration of enrolment in the plan
and contributions paid; there are 3
contribution levels, depending on
the type of work
The number of points acquired in
the plan throughout the
participant’s career, and the value
of a point
Duration of insurance period and
amount of contributions
Denmark France Iceland
Method of calculating the Amount of €2,998 a year, if the Total points X value of a point The pension is calculated
12 Data taken from Mutual Information System on Social Protection, Social Protection in the Member States..., loc. cit., pages 178 to 207.

13
amount of the benefit insured was enrolled at the
establishment of the
supplementary plan on April 1,
1964 and has always worked
full-time since
according to the rules for each
fund. Generally, the pension is
calculated on the basis of the
pension points acquired. The
minimum pension for 40 years is
56% of the average salary subject
to contributions.
Reference salary or basis of
calculation Not applicable. Benefits do not
depend on previous salary.
Annual value of a point: €1.0886
(ARRCO) or €0.3862 (AGIRC) No basis for calculation
Refer to the MISSOC text for a detailed description of each plan, and in particular for information on plan conditions:
minimum duration of enrolment, conditions for full or full-rate pension, legal retirement age (normal pension, early pension
and deferred pension); benefits (non-contributory periods, upgrades for dependants, special upgrades, minimum pension,
maximum pension, early application, deferment), upgrading, partial retirement, combining with occupational earnings, and
tax considerations.

2 - The French model of supplementary provision
Beyond the basic public scheme available to all, there are a number of provident
plans for workers with no distinctions as to employment status.
For convenience, we shall first present the structural features common to all
these plans, and then look more closely at the content of the provident plans, and
the supplementary retirement plans. It is traditional, in fact, in discussing
supplementary social protection, to distinguish retirement plans from provident
plans.13
a) The shared general framework
Supplementary plans are developed in one of three main ways: on the basis of a
joint provident pact (accord) or a collective agreement; the ratification by a
majority of those concerned of a proposal by the head of a company; or a
unilateral decision by an employer.14
The joint provident pact borrows the legal approach of the collective labour
agreement to develop and establish a supplementary provident plan, either at the
company level or that of a branch of activity. Such pacts may be concluded at the
national interoccupational level—for supervisors, for example—or for an
occupation (a branch of industrial activity)—the construction industry, say.
While they resemble collective agreements, such pacts are distinct instruments
with a life of their own.
They are distinguished from collective agreements in that they cannot be
repudiated, but only revised. They are also distinguished by the fact that they
have a purpose of their own: the creation of a plan or scheme, and that they
entail irreversible tripartite relations between employers, unions representing the
workers, and a service provider: a mutual corporation, an insurance company or
a parity provident institution. They do resemble collective agreements in the way
they are worked out, namely through negotiation, in their power to compel, and in
the fact that that they are concluded between the same parties: unions and
management.
13 Marion Del Sol, “La protection sociale d’entreprise,” Bull. soc. Francis Lefebvre 5/00, 233-244,
at page 233.
14 Gérard Lyon-Caen, La prévoyance, Connaissance du droit, Dalloz, 1994, 126 pages, at pages
39, 41 and 48; and Gilles Briens, L'entreprise et le droit de la protection sociale complémentaire,
Litec, 1990, 404 pages, at page 27; Yves Saint-Jours, loc. cit., page 145.

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It is also possible to establish such plans under the heading “social guarantees”
by means of the collective agreement itself, in which the agency managing the
plan will be designated.15
Whatever formula is used, the pact will include a definition of the benefits, with a
list of the risks covered, the amount of contributions and the respective shares
payable by the employer and the employee, and the designation or
establishment of the managing agency.
If the association or associations of employers and unions signing the pact are
representative, the agreement or pact may be submitted to an extension
procedure, known as agrément or homologation in the case of a collective
provident pact, to make it applicable to all employers and employees in the
occupation or industrial or geographical sector covered by the pact, without
distinction as to employment status. This means that all workers, both traditional
or standard or non-standard, have access to the plan in question.
The plan may be mandatory or optional. If it is mandatory, contributions are
deducted at source, and deductible from taxable income.16
A plan may also be established at the initiative of the employer, either through a
proposal it submits to a referendum decided by a majority of those concerned, or
though a unilateral decision by the employer, in which case each worker has the
individual right to refuse to contribute.
Although this is uncommon, a plant committee or works council, if there is one,
may also establish a supplementary social protection plan within the firm as part
of the social and cultural activities it runs. In such a case, membership will be
optional for employees, even if the committee or the employer pays some or all
of the contributions. Moreover, the committee is not empowered to manage a
supplementary protection plan; it has to entrust its management to an outside
agency: a mutual corporation, an insurance company or a parity provident
institution.17
b) The content of provident plans
The term “provident” is traditionally applied to a plan whose purpose is
[translation] “the prevention of, or coverage for, the risk of death, risks to the
physical integrity of the person, the risks of maternity, inability to work or
disability, or the risk of unemployment.”18
15 Gérard Lyon-Caen, op. cit., at pages 42 and 43.
16 Ibidem, page 68.
17 Yves Saint-Jours, loc. cit., page 147.
18 Évin Law of 31 December 1989, s. 1, as amended by the Law of 8 August 1994.

16
[Translation]
In its strict sense, consequently, a provident plan does not cover risks
related to a person’s age (retirement). It does cover health costs (the
sickness supplement for benefits in kind) and “major risks” (daily
allowances, disability, incapacity, death…).19
The content of social protection is thus a subject for negotiation between the
employer or employer association and the union or unions.20 The employer
undertakes to cover the risks according to the terms set out in the pact
(contributions and so on).
At this point a contract is concluded between the employer and a mutual
corporation, an insurance company or a parity provident institution designed
to cover the commitment made by the employer.
Since such provident plans are most often the subject of pacts at the
interoccupational level or covering a branch of activity and are extended by a
process of homologation, they are fully portable to the extent that a worker is
employed within the occupational or geographical range of application of the
pact.
These supplementary plans may be complemented by additional plans
(described as supplémentaires or surcomplémentaires) established by
employers for their employees.
The latter, then, are plans that cover not the workers in a branch of activity,
but only the employees of a company, and are established by the employer
for its employees. These are often optional programs that form a “package”: a
set of various kinds of additional protection, sometimes including a
supplementary defined benefit retirement plan.
Such non-portable programs are often designed for workforce retention.
Since membership in such programs is subject to special conditions related to
seniority or other factors, they are not always available to all workers. They
may thus exclude, for example, non-standard workers—fixed-term or
temporary—despite the principle of non-discrimination based on employment
status.
19 Marion Del Sol, loc. cit., page 233.
20 It is important to remember that the system of collective labour relations defines several
bargaining levels (from the national level to that of the individual company) and that it allows for
union pluralism at all levels.

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c) Supplementary retirement plans
For historical reasons, the development of supplementary retirement plans in
France has led to extensive fragmentation, which has nevertheless made it
possible to cover a high percentage of the workforce. The system is one of
extreme complexity, which legislators in that country have endeavoured to
simplify in recent years through plan mergers.
What has in fact developed is a multitude of plans, each covering a different
clientele: plans for salaried workers and plans for non-salaried workers, and
within each broad group, plans specific to civil servants, managers, farmers,
tradespeople, industrial and business workers, the liberal professions, lawyers
and so on.
With respect to plans that complement the basic public plan—the ones that
interest us here—they fall into two main groups, which are however in the
process of being completely merged.
These are the AGIRC 21 and the ARRCO.22
The AGIRC was the result of a 1947 collective agreement between the national
employers’ council, and the associations representing engineers and
supervisors, which was extended by ministerial homologation, and thus became
mandatory for the companies and the engineers and supervisors within its range
of application.
In 1961, an interoccupational agreement was concluded establishing the ARRCO
in order to federate a multitude of institutions managing retirement plans for
non-supervisory workers.23 This was also the subject of a homologation decree.
The legislators in fact went still further with a law in 1972 that generalized these
supplementary plans, making them mandatory for all employers and employees,
regardless of the sector of activity. From that point on, all workers, regardless of
status, have participated in one or other of these supplementary plans.
These are collective plans, and enrolment and contributions are mandatory.
Their funding is based on distribution, unlike that of the supplementary plans in
other EU countries, meaning that the contributions of employers and active
workers are used to pay benefits to those now retired.24
21 Association générale des institutions de retraite des cadres.
22 Association des régimes de retraite complémentaire.
23 See Rémy Pellet, “La protection sociale complémentaire” in De Montalembert, Marc (ed.), La
protection sociale en France, Les notices de La Documentation Française, Paris, 2004, 190
pages, at pages 88ff.

18
As examples, the contribution rates for certain categories of employee are
provided in Table III, below.
The normal qualifying age for benefits is 65.
The amount of benefits is based on a point calculation, rather than a percentage
of earnings. The worker accumulates points each year according to the
contributions paid. These are multiplied by the value of a point when he or she
qualifies for benefits.
The basic general plan, and this mandatory supplementary plan, may be added
to at company level by supplementary retirement plans set up to promote worker
loyalty, attract those with special skills, or harmonize the social protection
available at the various facilities of a single corporation or group.25 The employer
can choose to establish a defined contribution plan or a defined benefit plan.
As in the case of other company provident plans, enrolment in these
supplementary retirement plans is often subject to special conditions, so that they
are not necessarily accessible to non-standard workers. Because of their nature
and purpose, moreover, they are not portable from company to company.
III - Salary contribution rates in effect in the general supplementary
retirement plan, from January 1, 2002
(in % and in euros)26
Rates
(in % of gross salary, and in euros)
Employer share Worker share
Monthly ceiling
(in euros)
Non-supervisors
(ARRCO single plan)
Level 1
Level 2
4.50
9
3
6
2,352
2,352-7,056
Supervisors
(AGIRC plan)
Arrco contribution
Agirc contribution
Special temporary Agirc
contribution
Death benefit contribution
...
4.5
12.50
0.22
1.50
3
7.50
0.13
-
2,352
2,352-9,408
18,816
2,352
24 See Pierre-Alain Greciano, Les retraites en France – Quel avenir? Les études de La
Documentation Française, Paris, 2002, 263 pages, at page 53.
25 Marion Del Sol, loc. cit., page 235.
26 Partial reproduction of Table 7 in Pierre-Alain Greciano, loc. cit., at page 54.

19
B - Experience in Canada (Quebec)
While labour law in Quebec developed initially under the influence of English law,
particularly the first legislation on conciliation,27 and later under that of U.S. law,
particularly in the area of collective labour relations, in the 1920s28 and 1930s,
the main influence came from legal concepts prevailing in Europe29 and in ILO
publications. This is what led to the establishment of a framework of extended
collective agrements.30
This is a legal technique through which the government—in most cases,
Cabinet—has the power to take an agreement between one or more employer
associations and one or more unions within given boundaries and a given field of
activity and make it binding on all employers and employees within its range of
application.
The technique is used to achieve two objectives: first, to enable workers to share
the same advantages regardless of which employer they work for in a given field
of activity, and second, to prevent competition among employers based on
working conditions and the cost of benefits.
Widespread in Europe, the technique of legally extending collective agreements
has been used, in North America, only in Quebec, since 1934,31 under two
statutes: the Act respecting collective agreement decrees,32 and in the
construction industry, the Act respecting labour relations, vocational training and
manpower management in the construction industry.33
These laws have led to the establishment of many fringe benefit schemes and
annual leave banking systems for all workers in the sectors to which they apply.
These programs are run by parity committees (or a commission, in the case of
the construction industry) whose members represent employers and workers.34
27 The Quebec Trade Disputes’ Act, S.Q. 1901, c. 31.
28 An Act Respecting Professional Syndicates, S.Q. 1923-24, c. 112, inspired by the French laws
of 1884 (Waldeck-Rousseau Law) on right of association and 1919 on collective agreements.
29 Including the decree-law of the Weiman Republic of Germany adopted in 1918.
30 The rest of this section essentially repeats what I said in this regard on pages 45 to 49 of my
previous study on The Scope of Federal Labour Standards and Nontraditional Work Situations,
October 2005, 82 pages.
31 See Dubé, Jean-Louis. Décrets et comités paritaires. L’extension juridique des conventions
collectives, Sherbrooke, Les Éditions Revue de Droit Université de Sherbrooke, 1990, 376 pages
and Bernier, Jean. L’extension juridique des conventions collectives au Québec, Gouvernement
du Québec, Commissions consultative sur le travail, 1986,130 pages.
32 R.S.Q., c. D-2
33 R.S.Q., c R-20
34 See Bernier, Jean, L’administration du travail au Canada (Québec), Department for
Government, Labour Law and Administration, International Labour Office, Geneva, 2001, 127
pages.

20
In this respect, the schemes in place in Quebec’s construction industry are
models of their kind, and demonstrate how it is possible to establish retirement
plans and group insurance in a sector where employment that is discontinuous in
both time and space is a permanent state of affairs.
Our purpose here is not to conduct a critical examination of the entire scheme of
collective labour relations in that industry, nor to suggest that the model can be
transposed as is to other sectors, but merely to illustrate how a retirement and
benefits plan can operate outside a single-company or single-location setting.
In 2004, Quebec’s construction sector had 21,113 employers providing work for
127,767 employees, an average of 4.6 workers per employer. In fact, 83% of
these employers had 5 or fewer employees.35 It is also characterized by great
mobility and periods of inactivity, with workers switching often from one
construction site to the next. It will be realized at once that for all practical
purposes, it is not possible for each employer to set up a retirement and benefits
scheme suited to the special circumstances of such workers.
Nevertheless, since 1963, construction workers have enjoyed group insurance
and a retirement plan negotiated between employer and employee groups within
the industry. Workers and employers make variable financial contributions to
support these plans. They are private plans with universal coverage, in the sense
that the workers remain covered even if they change employer or move to a
different region.36
The original feature of these plans, making them universal and portable, is the
fact that the contributions paid by employers and workers, and the level of
protection workers enjoy, are determined by the number of hours worked in a
given period. This, fundamentally, is what makes it possible to have a plan suited
to the special circumstances of these particular non-standard workers: Quebec’s
construction workers.
1 - The insurance plan
The plan offers life insurance, medical insurance and income protection. It
provides four levels of protection or services, each corresponding to a number of
hours actually worked in a given reference period, calculated every six months.37
For example, a person who has worked 750 hours during the reference period
will be entitled to the most complete coverage (plan A), whereas someone who
35 Source: CCQ August 2005, Tableau B1, Nombre et taille moyenne des employeurs, 1995-
2004, http://www.ccq.org
36 See CCQ, http://www.ccq.org
37 See Regulation Respecting Complementary Social Benefit Plans in the Construction Industry,
Updated: August 2005, particularly sections 18 to 21, 44 and 48, 56 and following, 76 and
following.

21
has worked only 600, 450 or 300 hours (plans B, C and D) will have protection at
a lower level. For example, the life insurance plan provides various levels of
death benefit, so that if a worker covered by plan A dies, the dependants receive
a larger benefit than those of an insured in plan B, and so on. Only those covered
by plans A, B and C have income protection, and the long-term benefits also
differ for each level. The same is true of deductibles, coverage and limits for
drugs, vision care, dental care, paramedic and other charges, with plan A offering
more generous coverage than plan B, and so on.38
2 - The retirement plan
Construction workers also have a retirement plan that is somewhat unusual in
that it includes a defined benefit [à prestations déterminées (PD)] component and
a defined contribution [à cotisation déterminée (CD)] component. The plan has
three accounts: the general account, the supplementary account and the retirees
account. The general account provides for payment of a lump-sum benefit initially
or upon the death of a participant, and transfer to the retirees account of the
necessary sums to pay out the accumulated benefits in PD mode. The
supplementary account serves the same purpose, but operates on a CD basis.
The retirees account is funded friom the other two accounts, and provides for
payment of retirees’ pensions and death benefits.39
A feature that sets this plan apart from the usual corporate plans is that,
normally, any deficit is made up by the employer. In this kind of plan, the
multiplicity of small employers would make the plan vulnerable.
The parties have thus been compelled to be imaginative, and employ all the
necessary flexibility to enable a plan of this kind to deal with difficult situations.
Thus, when a significant deficit developed in 2002, the parties negotiated
changes in order to establish a recovery plan designed to build up a reserve to
deal with economic fluctuations and allow for future indexing of the retirees
account.40
The normal pension paid to a retiree has two components: a PD component
based on hours worked, in segments of 1,000 hours, plus a supplement and a
CD component based on the applicable actuarial equivalents.41 Under certain
conditions, the plan also provides for a deferred annuity, an early pension, a
disability pension, a deferred pension and death benefits.
38 Ibidem, schedules VI to XI.
39 Ibidem, sections 107 and following.
40 Jacques Rainville, senior actuary at the Commission de la construction du Québec, “Histoire
récente du Régime supplémentaire de rentes pour les employés de l’industrie de la construction
du Québec,” Nouvelles générations: nouveaux besoins, 12th Regional Conference of the
Canadian Pension and Benefits Institute, Gatineau, October 18, 2005 (unpublished).
41 Regulation Respecting Complementary Social Benefit Plans…, loc. cit., s. 131 and schedule II.

22
In other words, with a suitable framework, it is possible to develop a retirement
and benefits plan for non-standard workers that is wholly comparable to what is
available in large corporations to members of their full-time permanent staff.
II - SOCIAL PROTECTION FOR THE SELF-EMPLOYED
The establishment of social protection plans—parental leave, group insurance,
supplementary retirement plans—for self-employed workers poses a variety of
special problems.
First, this is a category whose members are highly heterogeneous with respect
both to the trades they ply and to the financial resources available to them.
Moreover, they are rarely grouped into associations capable of defending their
interests, and the people they deal with—their clients—are also widely dispersed.
Where groups do exist, their purposes tend to be networking, mutual assistance
and the exchange of services.
Another point is that some of the self-employed are self-employed by choice,
while others have the status imposed on them. For example, laid-off workers may
try to create work for themselves by becoming self-employed, but with a desire to
return to salaried employment at the earliest opportunity.
Our study of the social protection needs of non-standard workers42 and our
meetings for that purpose with groups of the self-employed showed that the need
is perceived very differently by some than by others. Some are in very well-paid
trades or professions and have been able to accumulate capital through real
estate or other investments that will prevent their going short if they are forced to
stop working by disability or old age. Others have little or no capacity to save.
According to the input gathered from individuals and small associations, they do
not represent a community that is large enough numerically to reach agreements
on favourable terms with the financial institutions that offer this type of protection.
Some, moreover, particularly among those who are self-employed by choice,
have a highly developed entrepreneurial spirit, identify readily with the workings
of the free market, and remain distrustful of any government intervention
designed to impose any kind of mandatory protection plan.
This does not mean that the need for protection can be met through individual
initiative for each and every self-employed person. In this connection, the authors
of the Bernier report wrote:
42 Jean Bernier, Guylaine Vallée and Carol Jobin, Les besoins de protection sociale des
personnes en situation de travail non traditionnelle, Québec, Ministère du travail, 2003, 807
pages.

23
[Translation]
These are either people who have created employment for themselves, or
people who have become self-employed following changes that have
taken place within organizations of which they were once paid employees.
They participate actively in economic development, though without access
thereby to all the kinds of social protection available to other workers.
From this point of view, the freedom and independence they enjoy have
come at a price that some say is too high in relation to their contribution to
the economy...43
Further on, they wrote:
[Translation]
This broad category of the self-employed is not a homogeneous group: far
from it. Not only do its members ply a multitude of trades and occupations,
they are also people for whom independence and autonomy do not have
the same significance. While some started their careers in the labour
market with the goal of becoming small entrepreneurs and controlling their
own destiny, others came to it later in life, either voluntarily, or out of
necessity after a lay-off, for example. For some of the latter, self-
employment is a stop-gap, and a way of creating employment for
themselves and providing some security pending a return to salaried
employment.
They are people who in most cases work alone with the regular or
occasional help of a limited number of others, and they have a number of
clients.
The self-employed set great store by their independence, and the flexibility
they find in the exercise of their occupation: in the use of their time, in the
work-life balance they can devise, and in the freedom they feel gives them
a certain quality of life.
The other side of the coin is that they are at the mercy of their clients, and
this is the price of freedom. Very few have any kind of insurance, other
than on their equipment. They feel they earn less than salaried workers at
the same level. Some regret the elimination of income averaging for tax
purposes, and they complain that they have to take vacations at their own
expense, have no fringe benefits or parental leave, and so on.44
In this context, we sought to identify certain existing models that might meet the
needs of this particular group of workers.
43 Ibidem, page 517.
44 Ibidem, pages 518 and 519.

24
There are in fact three main ways in which self-employed workers can access
supplementary social protection plans: private initiatives, government action and
collective representation.
In some countries, it is the only way for the self-employed to obtain the
supplementary insurance they believe they need (health, disability and the like)
and the means of saving for retirement. This is the case in Canada, except for
performing, recording and film artists in Quebec and at the federal level, who
have access to group representation.
Private initiative may be exercised on an individual or group basis.
At the individual level, only those with sufficient income can provide themselves
with adequate protection, whether in terms of supplementary health insurance or
in terms of retirement planning through RRSPs, for example.
Nevertheless, self-employed workers who belong to recognized professional
associations often have access to group plans offering very favourable terms for
their members.
The fact remains that private initiative is accessible only to those who already
have sufficient means, or belong to a professional association, leaving most
tradespeople, small business owners and contractors without adequate
protection.
Another way is through public plans, whether mandatory or voluntary, that are
specific to self-employed workers and are put in place through legislation. These
are found in some European countries.
A - European countries
Another MISSOC study offers a survey of existing public plans for self-employed
workers; it seems useful to go into greater detail about one of the more
comprehensive and well-developed plans: the one in France.
1 - Information gathered by MISSOC
In response to the wishes expressed by many users, MISSOC (Mutual
Information System on Social Protection - Système mutuel d’information sur la
protection sociale) undertook to broaden its existing database on social
protection for workers to include the self-employed.
As with social protection for workers described above, the study focussed on
plans subject to public regulation that are accessible to self-employed workers.

25
The information gathered is not only detailed, but illustrates the diversity of the
plans in force in the 29 countries surveyed. In their introduction to the study, the
authors note:
As the following representations show, a wealth of regulations exists in all
Member States to guarantee the social protection of the self-employed.
Against the background of the different historical development of the
protection systems and the respective philosophies underlying them, the
forms chosen are quite distinct. Certain systems or partial systems are
based on the idea of national insurance, which insures all national citizens
in the same way against elementary risks, without regard to their social
status or their participation in working life. Other partial systems, which
take up specific risks which arise from gainful employment, are aimed at
the protection of all working persons, including the self-employed as well
as employees. In yet another group of cases, general systems that
historically at first served to protect employees, were opened up to the
self-employed, either as compulsory insurance or on a voluntary basis.
Finally, a fourth form of protection consists of special schemes set up
especially for the self-employed as a whole or for individual groups
thereof.45
Examination of all the data gathered leads us to make the following preliminary
observations.
In most of the countries surveyed—23 out of 29—the self-employed are covered
only by the basic general social protection plan available to all, subject to
residence or citizenship requirements.
In some countries, moreover, the self-employed are covered only by certain
components of the public protection scheme. The plans from which they are most
often excluded are unemployment insurance, and work accident and
occupational disease protection.
Some have a basic mandatory universal plan covering employed and
self-employed workers, or one or more mandatory plans specific to the
self-employed.
In the six countries that have one or more plans specific to self-employed
workers, the protection offered may be summarized as follows, at the risk of
oversimplification.46 (See Table IV, below.)
45 Mutual Information System on Social Protection, “Social Protection of the Self-Employed,”
Appendix to Social Protection in the Member States of the European Union, of the European
Economic Area and in Switzerland, Situation on 1 January 2005, Employment and Social Affairs,
European Commission, 2005, at page 967.
46 See the MISSOC document for individual descriptions of the plans, of which there is a great
diversity.

26
On the basis of the information available, the Belgian and French plans are
especially interesting for the extent of the coverage they offer in terms of both the
risks covered and the occupations eligible.
The French plan appears to be the most complete and fully developed: in
addition to the basic plan, there are mandatory supplementary retirement plans.

27
IV - Social protection schemes specific to the self-employed47
Country48 Plan Coverage Features Funding Exclusions
Belgium Special plan covering… All self-employed workers Includes national insurance
against bankruptcy
66% contributions
33% taxes
1% other sources
Work accidents
and occupational
diseases
Unemployment
Farmers
Contributions
assessed on
the basis of surface
values
Unemployment
Craftmen and retailers Contributions by the
insured, and federal
government grants
Unemployment
Germany Specific compulsory
schemes or general
scheme for various sorts of
self-employment and
various risks
Special provisions for self-employed
craftsmen and retailers within the scope of
the general system, and independent social
security systems; special schemes for the
members of the professions.
Professions Special self-funded
schemes, regulated
by law
47 MISSOC, loc. cit., pages 967 to 994.
48 Countries listed in alphabetical order by name as spelled in their respective national languages.

28
Farmers and all other self-
employed persons in areas of
less than 5,000 inhabitants
and in cities of less than
2,000 inhabitants
Insured persons’
contributions, state
participation,
Unemployment
Greece Various special compulsory
schemes for various kinds
of self-employment
Basic strictly contributory system for
farmers.
The beginning of 1999 saw a merger of
insurance funds for the self-employed into a
single unit.
Craftsmen, retailers, motorists
Insured persons’
contributions, state
participation
Unemployment
Farmers Contributions Unemployment
Spain Various special compulsory
schemes for various kinds
of self-employment
Special scheme that is compulsory for
farmers, but voluntary for cash illness and
maternity benefits.
Special scheme that is compulsory for
craftsmen and retailers, but voluntary for
cash benefits for maternity or work
accidents and occupational diseases
Craftmen and retailers Contributions Unemployment
France Various special compulsory
schemes for various kinds
of self-employment
Separate regulations for farmers,
craftsmen, commercial, industrial and
liberal professions.
Compulsory supplementary retirement
systems are available for all these
professions.
Farmers
Retailers and industrial
workers
Liberal professions
Contributions as
percentage of
income, with ceiling
Unemployment
Austria Various special compulsory
schemes for various kinds
of self-employment, and
various risks
With effect from January 1, 2005, all
pension systems were harmonized for
those persons who had not turned 50 on
January 1, 2005
Contributions and
other sources
Unemployment

29
2 – Social protection for the self-employed in France
In France, for historical reasons, social protection for the self-employed is
governed by separate regulations for different classes of worker—those engaged
in agriculture, and those engaged in crafts, commercial or industrial and liberal
professions—and for different risks.
For some kinds of protection, nevertheless, the self-employed are covered by the
basic general system, or qualify for benefits that match those for salaried workers
under the general system. Thus, they have no specific insurance for long-term
care, and there is no special unemployment insurance arrangement for these
groups.
All must contribute to various social protection plans, and the rate of contribution
in relation to earned income varies from plan to plan, and from one occupational
category to another.

30
V – Contribution rates for social protection specific to the self-employed in
France49
Farmers Craftspeople, retailers,
industrial workers and
professionals
Illness, disability, maternity 8.13% + 2.17%
7%, 0.6% of which is within the
limit of the social security
ceiling (€30,192) and 6.4%
within the limit of five times the
social security ceiling
(€150,960)
Old age
8.44% within the limit of the
social security ceiling, 1.39%
on professional income,
plus supplementary part:
2.53%, including 0.25% on
professional
income
16.35% of the professional
income within the limit of the
social security ceiling, plus 7%
of the professional income for
the craftsmen scheme and
4.5% of the professional
income within the limit of three
ceilings for traders and
manufacturers, for the
supplementary retirement plan
Family allowances 4.36 % + 1.04 5.4% for retailers and
tradespeople
Disability, death For craftsmen: 2% of
professional income within the
limit of the social security
ceiling. For traders and
manufacturers: 1.5% of the
professional income within the
limit of the social security
ceiling.
Work accidents
Flat-rate contributions of
between €260.59 and €283.25
a year, depending on the risk -
In addition to these benefit programs characteristic of the social protection
scheme for self-employed workers in France are the specific, mandatory and
universal supplementary retirement plans. These are the result of legislative
49 Data taken from Mutual Information System on Social Protection - Système mutuel
d’information sur la protection sociale, La protection sociale des travailleurs indépendants, pages
976 to 978.

31
action to convert the existing optional plans and bring them as close as possible
to the plans covering salaried workers.
For farmers:
[Translation]
The Law of March 4, 2002, which came into force on January 1, 2003,
created a scheme the purpose of which, through the payment of
contributions based on total earned income or a mandatory fixed-rate
basis, is to guarantee a total basic retirement and mandatory retirement
pension equal to at least 75% of the SMIC,50 or minimum wage, after a full
career.51
For those in industrial and commercial occupations:
[Translation]
The retirement reform Law of August 21, 2003 established a mandatory
supplementary retirement plan for industrial and commercial workers. It
also contained provisions applicable to the supplementary plan for
craftspeople. There are thus provisions that are common to both plans.52
B – Canadian (Quebec) models
In the Quebec and Canadian contexts there are models of collective
representation that have enabled a particular category of self-employed worker to
negotiate minimum conditions for the contracts they conclude with their clients,
and to provide themselves with a full range of benefits.
1 – The professional status of artists
In Quebec, since 1987, performing, recording and film artists have had access to
a special arrangement for recognition of their associations, and to collective
bargaining of the terms of their engagement with producers or associations of
producers.53 Recognition of an artists’ association requires producers or
50 Salaire Minimum Interprofessionnel de Croissance, i.e. minimum wage.
51 Rémy Pellet, loc. cit., at page 91.
52 Françoise Millet , Régime des non salariés : assurance vieillesse – Artisans, industriels et
commerçants – Assurance vieillesse complémentaire, Juris-classeur de Protection sociale,
1 February 2005, Fasc. 707-25.
53 An Act Respecting the Professional Status and Conditions of Engagement of Performing,
Recording and Film Artists, R.S.Q., c. S-32.1. The Parliament of Canada passed a similar law in
1992: Status of the Artist Act, S.C. 1992, c. 33. Since 1988, Quebec artists in the fields of visual
arts, arts and crafts and literature have had professional status similar to that of those in the
performing arts, although it is important to remember that the plan centres on dissemination of the
product or work, rather than the artist’s performance. However, this Act differs from the previous

32
associations of producers in the sector concerned to negotiate a collective
agreement in good faith in accordance with mechanisms based on the collective
labour relations scheme set out in the Labour Code for salaried employees.
The collective agreements set the minimum terms for the engagement and must
contain a grievance settlement procedure. The artist retains individual freedom to
negotiate more favourable conditions.
One of the important advantages of this model is that it allows the establishment
of a complete set of benefits including group insurance, an RRSP and a vacation
leave fund for self-employed workers like performing, recording and film artists.
Whenever a performer signs a contract covered by the agreement signed by the
artists’ union, the two parties—performer and producer—contribute to the artists’
security fund for fringe benefits.
The fund (Caisse de sécurité des artistes - CSA) manages the group insurance
program, the members’ retirement fund and the paid leave fund for performers
(COPAR). Members’ assets in the CSA total over $120 million. The CSA
manages four funds: a balanced fund, a bond fund, an equity fund and a security
fund. The group insurance program was designed specifically to meet the needs
of performing artists.
Thus, in addition to the contribution to the artists’ union (Union des artistes -
UDA) set by the general meeting of the members, a sum is deducted from artists’
fees as their contribution to the group RRSP. The producer pays to the CSA, on
the artist’s behalf, contributions that are used to fund the administration and
management costs of all these benefit programs, the costs of the group
insurance, a contribution to the artist’s RRSP and a contribution to the artist’s
reserve in the paid leave fund.
one in that it does not include a duty to negotiate for promoters or their associations: An Act
Respecting the Professional Status of Artists in the Visual Arts, Arts and Crafts and Literature,
and their Contracts with Promoters, R.S.Q., c. S-32.01.

33
VI – Breakdown of contributions by members and producers to the CSA54
Artist’s contributions
(deducted from fees) Fee Producer’s contributions
(added to the fee and the artist’s annual income)
UDA RRSP MANAGEMENT INSURANCE RRSP LEAVE
2.50% 2.0% 0.5% 3.0% 5.5% 4.0%A
$2.50 $2.00
$100 $0.50 $3.00 $5.50% $4.00
A 5% in the dubbing agreement
Thus, the group insurance program is fully funded by the producers’
contributions, based on a percentage of the fees paid to artists.
It has several components: life insurance, a drug plan, health insurance, medical
insurance in case of accident, short- and long-term disability insurance, maternity
insurance, travel insurance and a dental care plan.
For the purposes of the program, artists are grouped into various categories
based mainly on average earnings under the jurisdiction of the UDA over the last
five years.
Categories are based on a universal income indicator familiar to Quebeckers
known as the MGA (maximum des gains admissibles), or maximum eligible
earnings under the Quebec Pension Plan, which allows automatic indexing of the
category limits based on an objective criterion.
Thus, an artist or performer will fall into a given category depending on whether
their average income over the last five years is below 10% or 20% of the MGA,
or between 20% and 40% of the MGA, or between 40% and 60%, or between
60% and 80%, and so on, up to over 100%, 200% or 300% of the MGA. The
placing of artists in these categories also takes into account other factors, such
as the artist’s age (under 65 or 65 or older) and status within the UDA: licensee,
trainee member, active member or passive member.
The coverage the artist is entitled to varies with the category: the higher the
income, the more generous the coverage within that insurance category.
Moreover, a spouse and children, if any, are covered to the extent that the artist’s
average income is high enough for the contributions paid to make it possible to
cover the cost of protecting them.
54 Data courtesy of the Union des artistes.

34
However, despite its usefulness and the benefits it offers, this collective
representation scheme remains accessible only to this category of self-employed
worker: performing, recording and film artists.
With the establishment of an appropriate legal framework, other self-employed
workers not only in the arts production or dissemination sector but in many other
sectors of activity and occupations—freelances of all kinds, for example—could
benefit from one form or another of collective representation.
2 – A framework scheme of collective representation
The committee of experts on the social protection needs of those in non-standard
employment, referred to above,55 considered the development of such a scheme,
based in part on the one for performing artists. They note in their report:56
[Translation]
Such an orientation may appear innovative at first glance. It really is not.
One need only read what has been written in recent years about the world
of work and the labour market and on self-employment, in particular, in
order to realize, for example, that the federal and Quebec schemes for
artists are generally considered to have exemplary value and to be able,
with the necessary adaptations, to serve as a reference, if not a model, for
other occupations or sectors of activity.57
Among other things, the committee relied on the fact that our society regards the
right of association as a fundamental value and an ideal means of achieving
various forms of social protection.
55 Jean Bernier, Guylaine Vallée and Carol Jobin, op. cit., in particular at pages 516 to 538.
56 At page 528 of their report.
57 See among others: Advisory Committee on the Changing Workplace. Collective Reflection on
the Changing Workplace, Canada, Minister of Public Works and Government Services, 1997, pp.
61ff; Fudge, J. and Vosko, L., “By Whose Standards? Reregulating the Canadian Labour Market,”
Economic and Industrial Democracy, (2001), 22, 327-56; Fudge, J., Tucker, E. and Vosko, L.,
The Legal Concept of Employment: Marginalizing Workers, Report for the Law Commission of
Canada, Oct. 25, 2002, 142pp.; Langille, B.A., and Davidov, G., “Beyond Employees and
Independent Contractors: A View From Canada,” Comparative Labour Law and Policy Journal,
(1999) 21(1), 6-45; MacPherson, E., “Collective Bargaining for Independent Contractors: Is the
Status of the Artist Act a Model for other Industrial Sectors?” Canadian Labour and Employment
Law Journal, (1999), 7, 355-589; Morin, Fernand and Jean-Yves Brière. “Épilogue : L’emploi
atypique et le droit de l’emploi,” in Le droit de l’emploi au Québec, Montréal, Wilson & Lafleur,
1998, 1448 pages, at pages 1303 to 1327; Roy, Gilles. Diagnostic sur le travail autonome -
version synthèse, Direction des affaires publiques de la Société québécoise de développement
de la main-d’œuvre, Montréal, 1997, pp. 34-35; Verge, P. and Vallée, G., Un droit du travail ?
Essai sur la spécificité du droit du travail, Cowansville, Les Éditions Yvon Blais inc., 1997, pp.
171ff.

35
[Translation]
It would be socially desirable for these non-salaried people to qualify, on
certain conditions, for a legal framework enabling them to acquire forms of
social protection suited to their needs and circumstances. The fact is that
those excluded from the Labour Code definition of “employee” are thereby
denied adequate support and the ability to achieve socially acceptable
levels of protection on a purely individual basis.58
In order to take into account, as much as possible, the heterogeneity of
self-employment and the diversity of the expectations of the self-employed
according to their respective needs, the committee came up with a form of
collective representation designed to operate at three levels.
[Translation]
In more concrete terms, such a scheme would be open and accessible to
non-employees who personally work for another party, regardless of their
occupation… This status would be recognized whether the non-employee
worked under a personal contract or one concluded with a legal entity or
corporation he or she controlled…
The association or group of associations could seek recognition or
accreditation under the scheme. Recognition would confer the right to
represent all those having the status defined above (non-employee) for
one or more of the purposes of the scheme.
The scheme would allow for various types of recognition. The plans we
used as a basis do not all provide for recognition to entail a right to
bargain collectively with a corollary obligation to negotiate in good faith
imposed on the party acting as the employer, identified variously in the
plans as the “producer”, the “presenter” or the “client”. Some of these
plans provide entitlement only to collective and individual representation of
non-employees, or the right of the association or associations recognized
to take part with other interested parties in a “forum” whose mandate is
defined in the plan, or both. Since the purpose of the framework scheme
we are proposing is to promote the achievement of better social
protection, the means to that end can vary in accordance with the wishes
of the members of the association. It may be that in one particular sector,
the aspirations of the members or the realities of the situation make the
bargaining approach quite impractical from the outset, given the way in
which needs and attitudes have developed. The committee does not see
this as a factor preventing needs for social protection from being
expressed and partially satisfied by other methods. It is in this sense that
the framework scheme has to be flexible in nature…
58 Àt page 519.

36
Thus, an association or group of associations could seek recognition for
one or other of the following three purposes:
1) to be authorized to provide collective and individual representation for
persons in the sector concerned whenever this is in their interests, to
appear at any time before an agency or a tribunal to defend the interests
of the persons concerned, and to provide services including the
establishment and administration of contributory benefit plans;
2) to be authorized to represent the interests of persons in the sector
concerned through recognition for purposes of joint action with other
partners in the sector in specific areas, such as the development of a
standard contract, contracting practices, development of the sector and so
on; an application for recognition thus incorporates an application for the
establishment of an agency for joint action, and means that the other
associations and organizations called upon to be partners and obliged to
participate have the right to be heard with respect to the application;
3) the right to negotiate collective agreements with parties in the field of
activity; thus for providers of work or their equivalent in the sector,
recognition creates an obligation to negotiate in good faith when notice to
bargain is issued by a recognized association; in this connection, an
association of clients or providers of work can also be recognized as
representing its members; the scheme includes the possibility of recourse
to conciliation, and in the case of bargaining for an initial agreement,
recourse to arbitration…
The committee thinks of these three purposes or types of recognition as
representing a form of gradation. The scheme would thus enable an
association to be recognized and gradually to expand its activities, and
would facilitate practical recognition of its role and its usefulness by the
community in which it operated. A gradation of this kind does have
elements in common with the historical development of systems for
collective relations in the area of salaried employment. However, there
would be nothing to prevent an association or group from asserting its
right to bargain collectively from the initial application for recognition.
The mechanism for determining the representativeness of an association
would be based on legislation respecting the professional status of
artists.59
Implementation of the scheme could be assigned to a specialized agency; in
view of its expertise, it could be the provincial labour relations board, the
Commission des relations du travail.
59 Jean Bernier, Guylaine Vallée and Carol Jobin, op. cit., at pages 528 and following.

37
III – SOCIAL DRAWING RIGHTS60
These various avenues have been joined by a complementary approach: social
drawing rights. This is a different and relatively new concept that tends to relate
certain elements of social protection to “a paradigm of occupational status of
persons… covering the various forms of work which anyone might perform during
his/her life,”61 rather than a specific kind of work or employment relationship.
These social drawing rights are additional to existing social protection plans,
whether universal like, say, health insurance, employment-related, like
employment insurance or work accident compensation, or employer-related, like
supplementary retirement plans. They are not a substitute for existing social
protection measures, some of which are described above, but represent a
different concept of working life and the time in which it is measured: paid work
time, training time, time to establish one’s own business, time to take up
volunteer work and so on.
This concept of drawing rights emerged from work done for the European
Commission by a group of experts led by Professor Alain Supiot of the University
of Nantes. While it excited much interest, it did attract some criticism, particularly
with respect to the difficulties likely to arise in its implementation.
Nevertheless, this new concept of working life and the occupational status
characteristic of it opens the way to thinking about ways of responding to a
number of needs workers have in the pursuit of careers that will be less and less
linear and increasingly marked by discontinuity in time and space.
A - The concept of social drawing rights
In his report, Supiot developed an approach to social rights that lies not only
outside the employment relationship and the subordination of the worker, but
even outside paid employment, and seeks to provide both security and freedom:
security through the enjoyment of paid time, in the form of either freed-up work
time or the funding of non-commercial work activity, and freedom through the
discretion left to the holder to decide when and for what purposes to make use of
his or her drawing rights.
This involves occupational status based on the concept of work, including, as
Supiot puts it, all “non-marketable forms of work”:
60 This section is an expanded and more detailed version of the section on this topic at pages 48
to 52 of my previous study on The Scope of Federal Labour Standards and Nontraditional Work
Situations, October 2005, 82 pages. It also includes a more complete, although still not
exhaustive, survey of literature on the subject.
61 Alain Supiot (ed.), Transformation of Labour and Future of Labour Law in Europe, Final Report,
European Commission, 1999, 100 pages, at page 23.

38
The only concept which extends beyond employment without
encompassing life in its entirety is the concept of work and it is therefore
the only concept which can provide the basis for occupational status. The
distinction between work and activity should not be made by the nature of
the action accomplished (the same mountain walk is a leisure activity for
the tourist but work for the guide accompanying him). Work is
distinguished from activity in that it results from an obligation, whether
voluntarily undertaken or mandatorily imposed. This obligation may result
from a contract (employed person, self employed person) or from legal
condition (civil servant, monk). It may be assumed against payment
(employment) or without payment (voluntary work, traineeship). But work
always falls within a legal relationship. That is why we can speak of
school work although school attendance is compulsory, work in the
domestic sphere although the bringing-up of children is a duty linked to
parental authority, the work of elected representatives while procedures
for loss of office apply to those not fulfilling their remit properly, etc. It is
necessary and sufficient that the effects of law be attached to a
commitment to act for such action to be described as work. This status
depends ultimately either upon a voluntary commitment or on the law
enshrining the social usefulness of certain tasks. 62
This occupational status spans people’s entire lifetimes, regardless of what kind
of activity they are engaged in at one time or another. It may be paid
employment, self-employment, training time or unpaid work, such as taking care
of someone or volunteering. It also covers periods of inactivity.
This status leads to the emergence of “a new type of social right related to work
in general” and not only paid, subordinate work: these are “social drawing rights”,
defined as a pre-established “reserve” or an “account” from which a person may
draw in order to achieve certain social objectives. What distinguishes this
approach from the traditional view is that “they are brought into effect by free
decision of the individual and not as a result of risk”.
It remains to be determined how this banked time is to be accumulated, since
that is what we are talking about, (hence the reference to “drawing”), and for
what purposes it could be used.
In Supiot’s view, “They are social drawing rights as they are social both in the
way they are established (different ways of building up the reserve) and in their
aims (social usefulness).”
On the question of accumulation, Supiot had this to say in a public lecture he
gave at the International Institute for Labour Studies (an ILO agency) in
November 1999:
62 Supiot, loc. cit. page 24.

39
It was this need for securities, which form an integral part of exercising a
freedom, that led to the creation of social drawing rights. They may have
extremely wide-ranging aims, but they always have a similar structure.
Instead of the worker alone having to face the costs that are inherent in
exercising a given freedom, the worker has the right to liberate collective
funding for that purpose up to a certain level. The funding is provided by
various sources which differ according to the aim of the drawing right
concerned: by the State; by firms; by trade unions; by social security; by
professional bodies; by insurance companies; by bodies which will benefit
from the worker's initiative, etc., not forgetting the workers themselves, of
course, who can always provide their own funding (this is one of the aims
of fixed-term savings accounts). The loan may be supplemented by
technical assistance where this can help the worker's initiative to succeed
(setting up in business, for example). Social drawing rights thus mutualize
the risks involved in exercising a freedom. This is what distinguishes them
from social security rights, which only provide protection against
involuntary risks. It also explains why these rights are subject to two
limits: the quantitative limit of the finance provided, and the qualitative
limit of the social usefulness of the initiative to be financed. These twin
limits, together with the possible co-funding of the initiative by the workers
themselves, ensure that the individual responsibility of the person holding
the right is not watered down. The reason why social drawing rights are
proliferating is because collective solidarity and individual responsibility
can be linked in this way.63
While they are “social” in the diverse ways in which they are accumulated, they
are also “social” in terms of their objectives, which are to have social
usefulness.64
At the lecture he gave in Geneva in November 1999, Supiot illustrated the variety
of possible uses as follows:
These new rights are proliferating, yet we do not really know what their
scope is. Most often they are about allowing workers to take time away
from the constraints of their current professional activity in order to devote
themselves to another socially useful activity, such as trying to set up their
own business, looking after children or elderly parents, doing voluntary
work, working for a trade union or association, taking a sabbatical,
undergoing vocational training in order to keep up with developments in
technology and knowledge or to improve skills or retrain. What these are
all really about is exercising freedoms that have long been formally
recognized (freedom of association, freedom to belong to a trade union,
freedom to set up a business, freedom to work, right to a family life, etc.),
63 Alain Supiot, “Work, Law and Social Linkages,” Geneva, November 1999,
http://www.ilo.org/public/english/bureau/inst/papers/publecs/supiot/index.htm - work
64 Supiot. Transformation of Labour..., loc. cit., pages 23-24.

40
but which take time and money to exercise in practice. They therefore
exclude those who cannot afford the luxury of losing their job and living
without professional income. 65
Antoine Jeammaud, in a special section in the journal Droit social on the Supiot
Report, referred in the following terms to the new approach defining this
proposed “reinstitutionalization of work”:
[Translation]
Work which is not reducible to the employment model of “occupational
status” that we are assured is provided in conditions of constantly growing
uncertainty by current law. Work conceived as a multiform activity: paid
work, but also non-marketable forms (“the most vital in human terms”)
such as self-training or unpaid work, starting with housekeeping. What,
however, distinguishes work that is always performed under a contractual
or legal obligation from mere activity? The “occupational status” thus
formed and guaranted by redrawn legislation should thus afford a person
continuity—of resources, first and foremost—throughout a life that could
consist of periods of training, paid professional work (dependent or
otherwise) or work outside the market, as well as periods of inactivity. A
person would not hold a job or lose a job, but would enjoy occupational
status giving them practical freedom of labour through the “social drawing
rights” associated with it.66
B – Questions raised by social drawing rights
While the concept generated interest among specialists in labour law, experts on
social issues and concerned parties, by the same token, its implementation is
bound to raise serious questions. Since an “account” is to be opened for each
person, this prompts such questions as when the account will contain a sufficient
reserve of rights for it to be possible to draw on them. Since use of the reserve is
not only related to lifetime occupational status, but is also left to the discretion of
the holder, can we imagine a situation in which he or she would have exhausted
the reserve in the first years of their working life?
In his introduction in the special section in Droit social, Antoine Jeammaud went
on to say:
[Translation]
The idea is appealing. However, its realization will require massive
normative reforms and re-engineering that can scarcely be imagined.
65 Supiot, “Work, Law and Social Linkages,” loc. cit.
66 Jeammaud, Antoine, “Programme pour qu’un devenir soit un avenir,” Droit social, 1999, 447-
453, at page 452.

41
Would it not need the establishment of a huge agency to collect and
manage accumulated rights? It is difficult to conceive of decentralized
management, that is management of such a system by groups of
companies, associations, public bodies and so on. This solution would
presuppose that each person could complete their career only within a
single group, whereas the objective is to offer everyone wide freedom to
choose their own situation.67
In a paper published in 2000 in Portuguese, Antoine Jeammaud raises the
same question in other words.68
In Droit social in May 1999, Robert Castel also wondered:
[Translation]
How will such reserves, which should be substantial, be accumulated,
particularly as this is to provide a guarantee against periods of interrupted
activity and unemployment… While it is not a fatal flaw, I confess I have
difficulty in imagining how such an unavoidably complicated system of
accumulation over time could operate in practice.69
The concept of social drawing rights has also found mention in the writings of
Canadian women authors.
For example, Leah Vosko cast doubt on the ability of the concept as
presented to take into account the reality of the “sharing of unpaid care-giving
among men and women”:
The ‘beyond employment' prototype rejects a policy direction compelling
workers to trade-off precarious conditions for the type of flexibility
necessary to engage in unpaid care-giving, volunteer work, training, or
other activities in the public interest. Together, the explicit call for high-
quality opportunities for training and employment for men and women and
the implied support for placing greater value on care-giving amount to a
tacit endorsement of a new gender contract characterized by universal
and integrated earning, learning, and care-giving. However, central
design elements of the model are not fully in sync with this philosophical
recognition of the importance of gender equity and thereby the
endorsement of a shared work/ valued care gender contract. For
example, as they are envisioned, social drawing rights are to be attained
on the basis of a prior contribution to the labour force. This conception
highlights an operational limit of this prototype. The need for respite for
67 Jeammaud, Antoine, loc. cit., aux pages 452 et 453.
68 Jeammaud, Antoine, “La question de l’avenir du droit du travail – Vue d’Europe,” at page 23 of
the French version of the document published in Portuguese.
69 Castel, Robert, “Droit du travail : redéploiement ou refondation ?” Droit social, May 1999, page
439.

42
unpaid caregivers in households and communities and supports to ease
these workers through various lifecycle transitions, including shifts from
contributing largely to unpaid work to contributing to the labour force, is
well documented. Although it is challenging to envisage, a model of social
drawing rights taking greater account of changes necessary in the gender
contract might also allow workers to qualify for social drawing rights on the
basis of prior contribution to socially necessary forms of unpaid work or
some combination of prior contribution to the labour force and unpaid
work. This type of subtle change would better secure the bi-directional
pathways that the ‘beyond employment' prototype aims to cultivate.70
In a descriptive passage on social drawing rights as an element of what it calls
the “life-cycle approach”, the Law Commission of Canada notes that:
There is a collective responsibility to fill the pool of social drawing rights,
so the risks involved in the flexible labour market are more equitably borne
by all, including the worker. Thus, the system, which puts the responsibility
on workers to make decisions about when and for what purpose to draw
on their rights, is consistent with the notion of individual as well as
collective responsibility.
It is important to distinguish this system of insurance against voluntary risk
from the system that provides protection against involuntary risks, such as
unemployment or underemployment as a result of disability, injury, illness
or job loss. A worker should not be forced to draw on accumulated credits
for involuntary employment interruptions. Moreover, the social drawing
rights system depends upon a solid foundation of public services…
Certainly, reforms in the area of work law and policy will have an important
bearing on the social security system and therefore, the two should be
considered together.71
In a research report for the Canadian Policy Research Networks, Guylaine Vallée
recalled some doubts already expressed by Antoine Jeammaud in an
unpublished text:
One of the primary uncertainties of this proposal involves the boundaries
of the system that would make it possible to exercise the proposed social
drawing rights. Moreover, the tremendous effort that would be required to
set up such an administrative structure does not involve [translation] “the
organization and management of companies and the production
apparatus in general” (Jeammaud, 2000: p. 23). According to its author,
70 Vosko, Leah F., Confronting the Norm: Gender and the International Regulation of Precarious
Work, Law Commission of Canada, July 2004, at pages 117 and 118.
71 Law Commission Of Canada, Chapter 9 — “Rethinking the Employee-Employer Relationship,”
in Is Work Working? Work Laws that Do a Better Job, December 2004, 62 pages.

43
the Supiot Report focuses more on company contribution to occupational
status than on arrangements that would enable workers to develop a true
counter-balance in the face of capital structures (Jeammaud, 2000:
p. 23).72
C – Possible avenues for implementation
Despite the fascinating originality of this new approach, no government has yet
put such a complicated scheme in place.
The establishment in Canada of a “bank” that would have such a broad impact
may in fact pose substantial problems and generate considerable costs, to say
nothing of the difficulties that could arise in the sharing of jurisdiction between the
federal government and the provinces in relation to the goals pursued.
It seems it would likely be easier in many ways to consider the creation of several
separate schemes for social drawing rights, each meeting a specific need or set
of needs.
Moreover, it seems that here as elsewhere there are social drawing rights for
specified and limited purposes that are similar in funding and objectives to these
social drawing rights, the only difference being that they are separate schemes.
In that sense, however, they have moved away from the principle of freedom
inherent in the original concept.
As examples—although they remain reserved mostly to salaried job-holders—we
might mention training and development leaves, various arrangements to allow
time off for union activities both within and outside the company, sabbatical
years, deferred salary leave and the various forms of parental leave.
Supiot refers, in the European context, to “training leave; time saving accounts;
assistance for the unemployed creating or taking over companies, training
vouchers, etc.”73
We are surely witnessing here the emergence of a new type of social
right, related to work in general (work in the family sphere, training work,
voluntary work, self-employment, work in the public interest, etc.) Exercise
of these rights remains within the bounds of a previously-established
72 Vallée, Guylaine, Towards Enhancing the Employment Conditions of Vulnerable Workers: A
Public Policy Perspective, Vulnerable Workers Series – No. 2, Work Network, Canadian Policy
Research Networks, March 2005, 57 pages, at page 25.
73 Supiot, Transformation of Labour…, loc. cit. page 23

44
claim, but they are brought into effect by free decision of the individual and
not as a result of risk.74
Again as examples, at a seminar in 2001 at the École nationale d’administration
on population aging and changing time use within life cycles (Vieillissement de la
population et le réaménagement des temps sociaux sur le cycle de vie), it was
noted that a whole series of social drawing rights has emerged over the years in
positive law in France:
[Translation]
First are the various forms of special leave, most of them recently
recognized in the Labour Code:
- Leave related to recognition of the social value of certain activities: leave
to serve in office or meet certain civic obligations, as well as child care
leave for parents. Leave of this kind is generally subject to time limits
related to the nature of the activity concerned. Extension of their duration
would hardly be justified, and extension of their benefits could only be
artificial.
- Leave for personal needs, subject to the employer’s consent and little
used because very little if any remuneration is available: sabbaticals,
international solidarity leave, examination leave, leave to start a business,
teaching or research leave.
- Leave for continuing education: individual training leave, skills
development leave, leave for economic, social and union training.
By definition, paid and risk-related leave (mainly sick leave, child care
leave, leave for family responsibilities, maternity leave, adoption leave and
unemployment insurance mechanisms) is excluded from the drawing
rights category, since such types of leave are not taken at the individual’s
discretion.
Next are the new time savings account mechanisms: the time savings
account provided for in the Law of July 27, 1994 on worker participation
and training time accumulation, established by agreement in the
automobile industry, in particular. These enable a worker to accumulate a
reserve in the form of leave time, particularly through time freed up by
reduced working hours. They at once allow more flexible and coordinated
use of leave entitlements (sabbaticals, training leave, leave to care for
children or the elderly) in the management of human resources in some
companies.
74 Ibidem.

45
Last is the assistance sometimes available to support efforts to enhance
career development, such as training vouchers.75
In the Canadian context, the example that seems to come closest to the concept
developed in the Supiot Report is the parental leave plan76 put in place by
Quebec77 and available not only to employees but also to anyone who works,
even the self-employed. In order to offer an even more perfect match for the
model described in the Supiot Report, it would have to be extended to persons
active outside the labour market, such as volunteers, with the additional costs
that would inevitably entail.
The Quebec Parental Insurance Plan (QPIP) replaces the parental and maternity
benefits available under the federal employment insurance plan. It is more
generous, with higher benefits, and more flexible in allowing parents to choose
one of two leave plans, and more accessible in that the self-employed as well as
wage-earners are eligible.
The Quebec plan pays cash benefits to all eligible workers—salaried or
self-employed—who take maternity, paternity, adoption or parental leave.
To qualify for QPIP, an applicant must be the parent of a child born or adopted
on or after January 1, 2006; reside in Quebec;78 have had a reduction of at least
40% in their usual weekly employment income or a reduction of at least 40% in
the time spent on their business activities; as a salaried worker, have insurable
income of at least $2,000, regardless of the number of hours worked; or as a
self-employed worker, have insurable income of at least $2,000.
QPIP provides the following benefits:
• maternity benefits, for the mother only;
• paternity benefits, for the father only;
• parental benefits; and
• adoption benefits.
However, the total number of weeks of parental or adoption benefits can be
shared between the parents.
75 École nationale d’administration, Le vieillissement de la population française et ses
conséquences sur les politiques publiques - Vieillissement de la population et réaménagement
des temps sociaux sur le cycle de vie, at pages 21 to 24.
76 An Act Respecting Parental Insurance, R.S.Q., c. A-29.011; Entente finale Canada-Québec
sur le régime québécois d’assurance parentale, March 1, 2005; An Act to Amend the Act
Respecting Parental Insurance and Other Legislative Provisions, S.Q. 2005, c. 13, assented to
June 17, 2005.
77 Effective January 1, 2006.
78 In the case of an employee, at the start of the benefit period; in the case of a self-employed
worker, at the start of the benefit period and on December 31 of the year preceding the start of
the benefit period.

46
Parents eligible under QPIP must choose between the basic plan and the special
plan. In so doing, they decide the duration of their leave as well as their income
replacement rate.79
79 See: http://www.rqap.gouv.qc.ca/Index_en.asp

47
VII – Quebec Parental Insurance Plan
Basic Plan Special Plan
Type of
benefit
Maximum number
of benefit weeks
Percentage of
average weekly
income
Maximum
number of benefit
weeks
Percentage of
average weekly
income
Maternity 18 70 15 75
Paternity 5 70 3 75
Parental 7
25
(7+25=32)
70
55
25 75
Adoption 12
25
(12+25=37)
70
55
28 75
Salaried workers, self-employed workers and employers in Quebec have been
contributing to the Plan since January 1, 2006, through source deductions for
salaried workers, and when filing their income returns in the case of
self-employed workers.
Illustrations of QPIP premiums, showing the reduction in Canada Employment
Insurance contributions:

48
VIII - Illustrations of QPIP premiums
Niveau de salaire: wage level
Rabais A-E: EI reduction
Cotisation RQAP: QPIP premium
Écart: difference
Employés: employees
Employeurs: employers
Travailleurs autonomes: self-employed workers
* Application of premium rates as pre-published in the Quebec Official Gazette of
September 7, 2005
Source: Conseil de gestion de l’assurance parentale Web site
QPIP is an autonomous insurance plan. It is managed by the Conseil de gestion
de l’assurance parentale, made up of representatives of union and non-union
workers, employers and the government.
It would thus be possible to establish such a plan accessible to salaried and
self-employed workers in a contractual relationship with federal undertakings.
With the necessary adjustments, it is also possible to conceive drawing rights for
the training of people from federal undertakings, both salaried and self-employed,
on a basis similar to that of what is commonly called Quebec’s 1% law.80 A
federal workforce training fund could be set up to make training activities
accessible to anyone with an employment connection to a federal undertaking.
80 An Act to Foster the Development of Manpower Training, R.S.Q., chapter D-7.1.

49
A similar formula could likely be developed for compassionate leave.
By analogy, the drawing rights formula could also serve as the basis for an
income averaging plan for self-employed workers, whose income tends to
fluctuate from year to year and who would want to avail themselves of it.
We could add other examples of drawing rights geared to social objectives, each
withdrawal being made from a specific and independent “bank” that would be
consistent with the principles first of diversified supply, and second of the pursuit
of social goals.
Before establishing such plans, however, it would be advisable at the very least
to make an assessment of them and ensure the support of social partners. It
goes without saying that such drawing rights are based on a long-term view of
labour activity and require social solidarity on the part of all concerned.
CONCLUSION
In the conclusion to my previous study, in the section on the more innovative
practices, I had briefly addressed the issue of supplementary benefit plans for
non-standard workers, and that of social drawing rights.
On the first issue, I wrote:
As has been demonstrated here, it is impossible, for all useful purposes,
to give nonstandard employees the same benefits and pension and group
insurance plans as those enjoyed by full-time permanent employees.
Although we may well imagine formulas under which permanent part-time
employees might be afforded benefits on a proportional basis, this is
impossible for occasional or temporary employees, or those whose
relationship with the employer is discontinuous in time and space.
The solution here would lie in contributory plans existing outside the
continuous employment relationship in a given company. Models of plans
that have actually been implemented, both in Quebec and abroad, have been
described previously.
Such plans could be developed jointly by the social partners in a given sector
governed by federal jurisdiction. Given the size of certain federal
undertakings, these would be parallel to plans existing at the company level.81
On the subject of social drawing rights, I concluded thus:
81 Jean Bernier, The Scope of Federal Labour Standards and Nontraditional Work Situations,
October 2005, 87 pages, at page 56.

50
As this new idea has not really yet been tested on any concrete level, as far
as we know, an examination of costs and the required administrative
apparatus should undoubtedly be conducted before it was implemented.
Nevertheless, despite the fact that this involves singular limits on the
freedom inherent in the original concept, a study of its impact on a specific
area such as parental leave would be worthwhile.82
The purpose of the current study was precisely to return to these two issues in
order to take a comparative approach in seeking models we could use as a
basis in providing access to better social protection for non-standard workers.
Our main findings may be summed up as follows.
Examination of the handful of foreign and Canadian plans that caught my
attention tends to confirm that despite the application of the principle of non-
discrimination on the basis of employment status, where this exists and is
applied, it remains difficult if not impossible to give non-standard workers access
to social protection schemes (insurance and retirement plans) developed and put
in place at the corporate level.
In most cases, therefore, it is through measures developed within a bargaining or
regulatory framework larger than that of a single company that it has been
possible to establish programs capable of covering non-traditonal workers.
While such initiatives are not easily transposed as they stand to the Canadian
context, particularly to undertakings under federal jurisdiction, it is worthwhile to
see what enlightenment we can derive from them.
We shall look first at fringe benefits as such, and then at social drawing rights.
A – Provident plans
The situations are very different for non-traditonal and self-employed workers.
Non-standard workers are already subject to labour law, hence we can
contemplate what arrangements would be possible to provide them with
adequate protection against certain risks. The self-employed, on the other hand,
both here and elsewhere, have always been regarded as excluded from labour
law. The protection measures they are entitled to are related in almost all cases
to social security law, rather than labour law. This is why they should be looked
at separately.
82 Ibidem, at page 56.

51
1 – Non-standard workers and provident plans
Despite its inadequacies, it is useful to establish the principle of non-
discrimination on the basis of employment status, as I discussed extensively in
my earlier study.
The introduction of this principle into Part III of the Code has the effect of
ensuring equal treatment with respect not only to pay and pay-related elements.
but also to the other working conditions. Moreover, once the principle is
established in our minimum labour standards, it will have automatic
repercussions in all collective agreements reached in fields under federal
jurisdiction. It is not unreasonable to imagine its being copied, like P.C.1003,83 by
the provincial legislatures.
In cases where access to certain benefits remained impracticable, it would
enable non-standard workers to receive time-prorated compensation, despite the
inadequacy of this measure, equitable though it seems.
Beyond this, examination of foreign experience, particularly in Europe, and
Canadian experience, particularly in Quebec, suggests that the only way of
responding in a fair and practical manner to certain needs with regard to risks
such as illness (the portion not covered by public plans), death, maternity,
paternity and old age is to be found in plans developed and managed outside the
traditional framework of an employment relationship with a company.
We note three possible ways of achieving this: collective agreements between
the parties concerned covering a branch or branches of activity; plans
established by direct legislative action; or a mixture of both, that is, the legislated
appropriation of existing private plans or the extension of negotiated agreements
by the public authorities.
It is such approaches, particularly sector-wide negotiated agreements extended
by legal action, that have enabled very large numbers of non-standard workers in
Europe to gain access to the same forms of social protection as permanent
salaried employees of corporations. This was the approach that produced the
same results in Quebec in the construction industry and a few other sectors
regulated by decree.
Apart from the few sectors of activity in Quebec covered by the Act respecting
collective agreement decrees84 and the Act respecting labour relations,
vocational training and manpower management in the construction industry,85
branch-wide or sector-wide collective bargaining is not part of our legal culture in
the field of labour relations. More than that, the very idea raises many objections,
particularly from employers, who often point to factors affecting competitiveness
83 Wartime Labour Relations Regulations (Order in Council 1003), 1944.
84 R.S.Q., c. D-2
85 R.S.Q., c R-20

52
in a context of globalization. Nor are these pressures unrelated to the fact that
the number of collective agreements extended by decree has been in definite
decline in recent years.
Moreover, the implementation of such an approach requires significant changes
in our basic scheme of collective labour relations, particularly Part I of the Code.
This is therefore a major operation that goes well beyond the standards set out in
Part III.
Nevertheless, I still believe, personally, that if we plan to respond to the social
protection needs of non-standard workers, we shall have to resolve to establish a
mode of representation and bargaining that goes beyond company or plant level.
The other avenue is direct legislative action for establishment and
implementation. This would involve development by the government of
mandatory supplementary insurance and retirement plans, to which workers
denied access to such plans where they work, and their employers, would be
required to contribute.
Quite clearly, this is a social-security approach much more than a labour-law
approach, as traditionally defined in Part III of the Code. One might argue,
however, that it complements the minimum working conditions set out in Part III.
The fact remains that this type of approach not only goes beyond what is meant
by “minimum working conditions” within the meaning of Part III, but requires
heavy-handed government intervention in an area which has in the past featured
free negotiations between the parties involved.
Lastly, inasmuch as such programs would be available only to non-standard
employees of federal undertakings, they would create disparities with
non-standard employees under provincial jurisdiction, unless some form of
harmonization were agreed to.
2 – Self-employed workers and provident plans
Examination of Canadian and foreign plans has shown that there are two main
ways of providing access to social protection for non-standard workers apart, of
course, from individual initiatives and those of members of professional
associations under whose auspices various savings plans and private insurance
contracts are arranged.
The two main ways in question are collective representation and government
action.
The data available to us indicate that the means of establishing plans that are at
once the most comprehensive in terms of coverage, and the most suitable for the

53
self-employed, is collective representation as practised in Quebec and, federally,
for performing, recording and film artists.
The Bernier report, taking its cue from these plans, which a number of Canadian
authors regard as good examples, suggested they be used as a basis for the
development and implementation of a three-level scheme of collective
representation for the self-employed.
It seems to me that such a scheme would also be appropriate in the federal
context, enabling self-employed workers contracted to federal undertakings to
use it to negotiate minimum conditions for individual contracts and, in particular,
to gain access to contributory benefit programs suited to their circumstances.
It must be realized, however, that there is no certainty that the conditions for
access to such a scheme of collective representation will always be met. We can
readily imagine that access to it will be easier for more homogeneous groups of
workers, such as freelances or computer or other specialists, whose clients are
fairly easily identified: for example, a print, electronic or other media group.
Note that here, too, we have an approach related more to collective labour
relations, in the traditional sense, even though the objective is to set minimum
conditions.
It is to be expected that even if such a scheme existed, it would not be
practicable for many self-employed workers, for whom supplementary protection
would be left to individual initiative.
This is why in Canada, as in a number of European countries, the only really
effective way of providing coverage for all self-employed workers remains to
establish or adapt it through appropriate legislation.
In this regard, the method chosen by Quebec to set up a parental leave plan for
all workers, salaried or self-employed, constitutes an example that could be
followed to the benefit of people who work, under contract or otherwise, for
employers under federal jurisdiction.
Using this model, and experience in certain other countries, as a basis, the same
type of action could be taken to provide self-employed workers with other forms
of supplementary social protection, such as group insurance, better protection in
case of work accidents or occupational diseases, or a supplementary retirement
plan.

54
B – Social drawing rights
The more detailed analysis I was able to make of this issue confirms that it is a
fascinating and innovative concept that opens up interesting avenues to explore
in search of a new concept of work and its organization over the long term.
However, all the authors consulted have expressed serious doubts about the
possibility, at least in the short term, of setting up a practical, functioning scheme
of this type. They point out the magnitude, if not the enormity, of the necessary
normative and administrative changes.
We can also foresee the constitutional difficulties the implementation of such a
comprehensive arrangement is likely to pose in Canada.
Nevertheless, the concept merits consideration as a basis for the application to
specific and clearly identified projects of the principles underlying it.
Thus, we might envisage the establishment of several separate schemes for
social drawing rights, each meeting specific needs in the manner of the Quebec
Parental Insurance Plan, which is accessible to anyone who works, whether
salaried or self-employed.
The same concept could be applied to occupational training, compassionate
leave and so on, in order to respond to the needs not only of salaried workers,
but also of the self-employed.
Such a purpose-based approach also seems more compatible with respect for
the jurisdiction of each level of government.

55
APPENDIX A - The most relevant provisions of the main EU directives on equal treatment
Purpose
The purpose of this Framework Agreement is:
(a) to provide for the removal of discrimination against part-time workers and to improve the
quality of part-time work;
(b) to facilitate the development of part-time work on a voluntary basis and to contribute to
the flexible organization of working time in a manner which takes into account the needs of
employers and workers. (Clause 1)
Equal treatment
1. In respect of employment conditions, part-time workers shall not be treated in a less
favourable manner than comparable full-time workers solely because they work part time
unless different treatment is justified on objective grounds.
2. Where appropriate, the principle of pro rata temporis shall apply.
(Article 4)
Access to part-time work
Note that although the agreement requires employers to faciliutate access to part-time work
for those who seek it, it also states that a worker may not be compelled against his or her
will to transfer from full-time work to part-time work, or vice versa.
Council of the European Union. Council Directive
97/81/EC of 15 December 1997 concerning the
Framework Agreement on part-time work
concluded by UNICE, CEEP and the ETUC -
Annex : Framework agreement on part-time
work
Official Journal L 014 , 20/01/1998 p. 0009 - 0014
CONSLEG - 97L0081 - 05/05/1998 - 13 p.
Change in employment status
In such cases, “A worker's refusal to transfer… should not in itself constitute a valid reason
for termination of employment.” (Clause 5)

56
Purpose
“The purpose of this framework agreement is to:
(a) improve the quality of fixed-term work by ensuring the application of the principle of non-
discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed-term
employment contracts or relationships.”
Principle of non-discrimination
“… fixed-term workers shall not be treated in a less favourable manner than comparable
permanent workers solely because they have a fixed-term contract or relation unless
different treatment is justified on objective grounds.” (Clause 4)
Rules for the use of fixed-term contracts
“Measures to prevent abuse (clause 5)
1. To prevent abuse arising from the use of successive fixed-term employment contracts or
relationships, Member States, after consultation with social partners in accordance with
national law, collective agreements or practice, and/or the social partners, shall, where
there are no equivalent legal measures to prevent abuse, introduce in a manner which
takes account of the needs of specific sectors and/or categories of workers, one or more of
the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or
relationships;
(c) the number of renewals of such contracts or relationships.
2. Member States after consultation with the social partners and/or the social partners shall,
where appropriate, determine under what conditions fixed-term employment contracts or
relationships:
(a) shall be regarded as "successive"
(b) shall be deemed to be contracts or relationships of indefinite duration.”
Access to permanent positions
“Employers shall inform fixed-term workers [by appropriate means] about vacancies which
become available in the undertaking or establishment to ensure that they have the same
opportunity to secure permanent positions as other workers.”
Council of the European Union. Council Directive
1999/70/EC of 28 June 1999 concerning the
framework agreement on fixed-term work
concluded by ETUC, UNICE and CEEP
Official Journal L 175 , 10/07/1999 P. 0043 - 0048
Access to training
“As far as possible, employers should facilitate access by fixed-term workers to appropriate
training opportunities to enhance their skills, career development and occupational
mobility.” (Clause 6)

57
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University of Lyon 2 [Université Lumière], France

60
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