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Travel Time as Work Time? Nature and Scope of Canadian Labor Law’s Protections for Mobile Workers

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The spectrum of employment-related geographical mobility ranges from hours-long daily commutes to journeys that take workers away from home for an extended period of time. Although distance and travel conditions vary, there is a strong consensus within existing literature that mobility has physical, psychological, and social repercussions. However, is time spent traveling considered as working time? This question is crucial as it dictates whether or not workers can effectively access different sets of labor rights. The objective of this paper is twofold. First, contributing to a deeper understanding of travel time by offering a more sustained and complex representation of the various employment-related travel schemes. Second, assessing the circumstances under which travel time counts as work time with regard to the employment standards legislation in force in four Canadian provinces: Quebec, Ontario, Alberta, and British Colombia.
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Feature
Travel Time as Work
Time? Nature and
Scope of Canadian
Labor Law’s Protections
for Mobile Workers
Dalia Gesualdi-Fecteau
1
, Delphine Nakache
2
,
and Laurence Matte Guilmain
1
Abstract
The spectrum of employment-related geographical mobility ranges from hours-long
daily commutes to journeys that take workers away from home for an extended
period of time. Although distance and travel conditions vary, there is a strong con-
sensus within existing literature that mobility has physical, psychological, and social
repercussions. However, is time spent traveling considered as working time? This
question is crucial as it dictates whether or not workers can effectively access dif-
ferent sets of labor rights. The objective of this paper is twofold. First, contributing
to a deeper understanding of travel time by offering a more sustained and complex
representation of the various employment-related travel schemes. Second, assessing
the circumstances under which travel time counts as work time with regard to the
employment standards legislation in force in four Canadian provinces: Quebec,
Ontario, Alberta, and British Colombia.
Keywords
mobility, working time, travel time, working conditions, employment standards
1
Universite
´du Que
´bec a
`Montre
´al, Canada
2
University of Ottawa, Canada
Corresponding Author:
Dalia Gesualdi-Fecteau, Universite
´du Que
´bec a
`Montre
´al, Case Postale 8888, Succursale Centre-Ville,
Montreal, QC H3C 3P8, Canada.
Email: gesualdi-fecteau.dalia@uqam.ca
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Introduction
Distances traveled to work and the time spent in transit are increasing globally
across many sectors in both rural and urban contexts. The spectrum of extended
employment-related geographical mobility (E-RGM) ranges from hours-long
daily commutes to journeys that take workers away from home for days,
weeks, months, or even years. Canada is no exception to this phenomenon. In
Canada, “journeys to and from work are becoming more sustained and complex
in terms of time spent travelling, distance travelled, number of stops along the
way, and time spent away from home.”
1
Intra- and interurban daily commuting is
widespread, as well as rural–urban and urban–rural commuting. Interprovincial
travel for work is also common in the Canadian context and many Canadians,
particularly those working in remote workplaces, engage in Fly-in/Fly-out, Drive-
in/Drive-out, or Bus-in/Bus-out schemes.
1–5
Furthermore, a growing number of
temporary foreign workers (TFWs) from an increasing number of countries are
employed in Canada to meet labor needs in both high- and low-skilled occupa-
tions. This number increased drastically from 1995 (50,000) to 2017 (370,000).
1,6
There is a strong consensus within the existing scholarly literature that
E-RGM should be distinguished from permanent relocation: indeed, temporar-
iness is a key element in the conceptualization of E-RGM.
2,3,7
Workers who
engage in extended E-RGM (mobile workers) have various employment statuses
and experience a wide range of working conditions. They may work on a full- or
part-time basis and their employment can be seasonal (agricultural, forestry,
tourism) or temporary and short-term as in many parts of the service sector.
They may work in fixed locations (offshore oil and gas installations or mines),
transient worksites (as with construction and tree-planting), mobile workplaces
(as in airlines, trucking, and seafaring), or multiple workplaces (as with home-
care). They may be on-call or may have an irregular or interrupted work sched-
ule; their wages may be based on piecework, an hourly rate, or they may receive
a fixed salary, determined on a daily, weekly, monthly, or annual basis.
Given the increase in extended E-RGM, its diversity and the diverse modes of
transportation and types of work it includes, a key question is whether time
spent traveling is to be considered work time and thus compensated and pro-
tected by employment standards. From a labor law perspective, determining
whether and when time spent traveling by workers counts as work time will
have repercussions for workers’ remuneration and related benefits, such as the
possibility to resort to legal provisions limiting the duration of work as well as
overtime and vacation pay calculations. It will also influence protections found
in health and safety law and the ability of injured and ill workers and their
families to access workers’ compensation benefits for travel-related injuries and
illnesses. Thus, the objective of this paper is twofold. First, we want to contrib-
ute to a deeper understanding of travel time by offering a more sustained and
complex representation of the various employment-related travel schemes.
2NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
Second, we want to assess the circumstances under which travel time counts as
work time. Part 1 presents a conceptualization of existing travel schemes and
presents an overview of the numerous social and personal consequences associ-
ated with work-related travel. As we show, mobile workers are likely to expe-
rience diverse and overlapping situations in which they spend time traveling.
Part 2 presents and analyzes the applicable employment standards legislation
and case law in four Canadian provinces (Quebec, Ontario, Alberta, and British
Colombia),
a
allowing us to better circumscribe when travel time is generally
considered as work time.
Conceptualizing Travel Time in Work-Related Contexts
E-RGM refers to mobility to, from, and between workplaces, as well as mobility
as part of work.
8
Some E-RGM schemes also include rotational cycles of weeks
or months at work, “circular migration” or “pendular migration.”
8
Across the spectrum of E-RGM, travel time can range from daily commutes to
seasonal or continuous mobility. E-RGM can lead to better jobs for workers and
to an improvement in family incomes,
2,3,9,10
but research also suggests that
extended E-RGM often has negative impacts on workers’ physical and mental
health. Some studies have highlighted the significant link between mobility and
cardiovascular risk, transport injuries and fatalities, and occupational injury and
illness.
3,9
Such injuries can result from driving for extended hours and also from
exhaustion that is a direct consequence of such mobility patterns. Indeed, several
studies on long-distance commuters, whether they must undergo daily long-
distance commuting or “circular” or “rotational” commuting, have shown that
long commutes can lead to disrupted sleeping patterns and trigger feelings of
loneliness.
11
A recent study on the hypermobility of highly paid professionals
highlighted that although the negative impact of their mobility was less important
than for low-paid workers, such hypermobility exposed them to various physical,
psychological, and social consequences. Hypermobile professionals suffer the side
effects of jetlag, frequent radiation, and stress due to transportation schedules.
12
There are also important work–life balance challenges faced by long-
commute workers. A growing body of literature illustrates the numerous con-
sequences of unbalanced work–family relationships (e.g., anxiety, depression,
and distress; emotional and physical exhaustion), and how they lead to lower
job productivity, poorer work quality, higher absenteeism, staff turnover, and
family disruption.
13–23
A Statistics Canada study conducted in 2010 shows that
the percentage of workers satisfied with their work–life balance decreases as the
duration of their daily commute increases, and this, to the point where some
workers who travel for more than forty-five minutes to get to and from work
admit not being able to take on family responsibilities anymore.
24
A fair load of
pressure is then transferred onto the family as a whole, and the stress of the
spouse who will be mostly responsible for chores and child care can disrupt the
Gesualdi-Fecteau et al. 3
family unit.
3–5,7,25
A very recent study also highlights the repercussions of
extended commuting and family care responsibilities for Canadian workers
employed in the home health care, air transport, and higher education sectors.
26
Finally, the lack of socialization time can also affect the worker’s sense of
community.
3,25
Indeed, circular mobility patterns have an impact on “home
communities.”
4
In addition to the dwindling population available for paid
and volunteer work, including the loss of skilled workers, several communities
in Canada with large mobile labor forces are faced with a lack of public services
and lack of vitality within their communities.
3,4,25
Conversely, this flow also
causes an increase in demand for housing and housing costs in “host
communities.”
27
Despite an increase in demand for services provided by the
host community, economic benefits for such communities may be only tempo-
rary or minimal.
27
For example, a study conducted in Fort McMurray in the
height of the oil boom showed that mobile workers spent only 5.6 percent of
their annual income in the host community.
2,28
Thus, there are personal and
social impacts associated with E-RGM: its repercussions are felt in various
employment settings, with great variations in terms of wages, skill sets, and
workers’ sociodemographic characteristics.
12,26
When is the time spent engaged in E-RGM considered as work time? Work
time is generally conceptualized as a clock-measured activity defined, controlled,
and compensated for by the employer. The hermetic separation between work
and nonwork time was introduced during the transition toward industrial cap-
italism. Gradually, work time became a framework and a structural principle for
organizing industrial society.
29,30
Mobile workers are likely to spend time trav-
eling in a variety of settings. Conceptualizing travel time therefore requires
moving beyond a single and unitary understanding of what travel time entails.
b
This section conceptualizes different travel time schemes. The first travel time
(Figure 1) encompasses the time spent commuting from home to a single, fixed
workplace that remains unchanged. However, even these workers may need to
travel, occasionally, to an unusual workplace to attend a training program or to
report to a different place of business. Other workers travel from their home to a
workplace that regularly differs from one shift to the next (Figure 2). Several
mobile workers, such as business travelers and health care workers employed by
temporary employment agencies, experience this situation.
The second type of travel scheme encompasses employment arrangements
where workers must perform tasks in several jobsites. This “multisite scheme”
encompasses workers who commute from home to their first jobsite and then
travel to different jobsites during the same shift. Health workers employed in the
home care sector, as well as sales representatives are likely to engage in this kind
of E-RGM (Figure 3).
The third category (Figure 4) encompasses workers who travel in the first
instance to a “marshaling point,” also called a “pick-up location,” a “meeting
point,” from which they journey on, often in a group, to temporary housing or
4NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
Figure 2. Commuting scheme: traveling from home to various workplaces.
Figure 1. Commuting scheme: traveling from home to a single fixed workplace.
Gesualdi-Fecteau et al. 5
to the actual worksite. There is no explicit definition of “marshaling point” in
employment legislation, but it can be defined as a location where employees are
required to congregate prior to making the trip to the worksite or camp. Traveling
to a marshaling point is common for those performing work at remote sites.
Traveling to and from the marshaling point can occur daily or less frequently
(weekly or monthly), before and after a work rotation. This mobility scheme is
common in sectors where employment is seasonal and transportation options are
limited including transient urban construction work for precariously employed
workers, or when workers are employed in locations that are geographically
remote as with mining, on and offshore oil and gas work, seafaring, and
fish harvesting.
For some workers, several of the schemes outlined above overlap (Figure 5), as
is the case with employees traveling to a marshaling point and then performing
their work at several jobsites over the course of their shift or rotation. Workers
performing house cleaning, for example, will often meet at a “pick-up” point and
then travel from one jobsite to another with a group of coworkers. Workers
employed in the forestry industry, where work is often performed far from com-
munities, are also likely to travel to a “meeting point” from where they will be
assigned specific jobsites and transported to those sites (or transport themselves).
These overlapping schemes are further complicated when employees travel from
one region to the other or across provincial or international borders while com-
muting or making the trip to a marshaling point or to various jobsites.
We found no research that has examined travel time in relation to work time
in labor law for these diverse typologies with a focus on the nature and scope of
employers’ obligations. This is an important gap because for these mobile work-
ers, determining what counts as work time has major consequences for their
employment contract, which in turn affects income, reimbursement of expenses,
Figure 3. Multisite scheme.
6NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
Figure 4. Remote work scheme.
Figure 5. Remote work scheme þmultisite scheme.
Gesualdi-Fecteau et al. 7
and hours of activity as well as producing potential repercussions for occupa-
tional health and safety.
Is Time Spent Traveling Work Time? An Analysis of the
Nature and Scope of Labor Law Protections Regarding
Travel Time
Employment standards are minimum standards governing the basic terms and
conditions of employment (wages, vacations, statutory holidays, hours of work
and overtime, leaves of absence, etc.) that neither the employee nor the employer
can validly override by contract. Since, in Canada, labor law falls under pro-
vincial jurisdiction, the employment standards legal framework is different in
each Canadian province and territory.
30,c
In Canada, provinces have the exclu-
sive power to regulate labor relations, but the federal government has excep-
tional jurisdiction over employment relations in sectors that fall under its
jurisdiction. Federally regulated activities include interprovincial or internation-
al transportation, radio, television, postal services, ports, telecommunications,
banking, and the federal government also has jurisdiction on some crown cor-
porations. While provincial and territorial labor laws apply to about 90 percent
of the Canadian workforce, the remaining 10 percent are federally regulated.
d
When is travel time treated as working time? The boundaries between social
times (family time, work time, recreation time, care work time, etc.) were gradually
formalized through the introduction of legal standards aimed at creating a distinc-
tion between work time and nonwork time. From a labor law perspective, work
time corresponds to the “time of subordination”
31
: outside this work time, workers
are theoretically free to pursue their own endeavors without being under the direc-
tion and control of their employer.
32
However, changes in the nature of work and
its organization have progressively blurred the lines between work time and non-
work time.
33
Workers’ subordination thus often exceeds the temporal framework
of working time and the spatial framework of the workplace. For mobile workers,
time spent traveling is an iconic example of this reality. Traveling in a work-related
context is not necessarily carried out under the direct and immediate control of the
employer but nor are workers entirely free to pursue their personal endeavors and
the degree of this varies across groups of workers and types of work.
The only Canadian province that explicitly regulates travel time is Quebec.
The Act respecting labour standards stipulates that time spent traveling
at the employer’s request is deemed to be time devoted to work.
34
Ontario’s employment standards legislation also defines the concept of “deemed
work” but without explicit reference to travel time.
35,36,e
In British Columbia
and Alberta, the relevant legislations do not refer to the “deemed work” concept
but, instead, simply define the concept of “work” or of “hours of work.”
37,38
Nonetheless, in these three provinces, an analysis of policy manuals and case law
8NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
reveals that time spent traveling for the benefit, or at the request, of the employ-
er will generally be considered as work time. In Alberta, the Employment
Standards Tool Kit for Employers explicitly mentions that an employee will be
considered at work, whether being a driver or a passenger, when he or she
goes from the employer’s business or a place designated by the employer to a work
site; goes from one job site to another job site; is directed to pick up materials or
perform other tasks on the way to work or home.
39
In Ontario, the Ministry of Labour in an official publication considers “the time
an employee spends getting to or from a place where work was or will be
performed (with the exception of commuting time) as working time.”
40
In
British Columbia, the Interpretation Guidelines Manual of the Employment
Standards Branch states that “travel time is considered work time when an
employee is acting on instructions from the employer and therefore providing
a service to the employer when travelling to and from a work place.”
41
Although the time spent traveling at the employer’s request is usually deemed
to be devoted to work and hence to be work time, determining the specific
circumstances under which traveling will be considered as part of the “time of
subordination” is a matter of factual interpretation. In the remainder of this
paper, we further explore when and why travel time is considered as work time
in the following circumstances: (1) when workers commute; (2) when workers
travel from one jobsite to another on the same shift; and (3) when workers travel
from their home to a marshaling point.
Considering that most provinces studied do not explicitly regulate travel time,
the very little case law arising from the interpretation of employment standards
legislations by provincial courts and boards is generally based on the general
concept of work time, or of what is properly construed as deemed working
hours. Our analysis thus also relies on case law in unionized workplaces: we
include decisions interpreting travel time and work time in a broad context (e.g.,
when collective agreements are silent on “travel time”) but exclude decisions in
which grievances were solely based on the interpretation of a specific “travel
time” provision included in the collective agreement.
Commuting Scheme
It is generally accepted that “commuting time,” which means traveling from
home to work, does not count as work time: reporting to work is a “job
requirement”
42
: employees are responsible for getting to work and the commute
is thus seen as being done “on the employee’s own time.”
42
If both parties have
agreed to working conditions requiring that the worker travels from home to
different workplaces, even if only on an exceptional basis, time spent commuting
to and from the changing workplaces will not be considered as work time
Gesualdi-Fecteau et al. 9
(Figure 2).
43
The trip to a location where “work” actually starts, and from a
location where it stops, will generally not be compensated.
44–46
Whether the
commute is short or long, the scope of the commute is seen as stemming from
the nature of the employment or from the specificities of the sector or industry,
and will remain mere commuting.
41,47
Case law sometimes also equates com-
muting time with “preparatory time” or “pretime” for which the employer
cannot be held strictly accountable.
48
However, “commuting time” will, at times, be considered as work time. First,
workers who are required to perform certain tasks while traveling from and to
their home will, under certain conditions, be considered at work while commut-
ing and hence be compensated. Workers required to drive a company vehicle to
and from the workplace (e.g., to protect the contents or to remain available for
service calls beyond their normal working hours) should be paid for the com-
mute because it is performed “under the direction and control of the employer”
and to the employer’s benefit. Time spent going from home to work will also
be payable if workers must “pick-up materials or perform other tasks on
the way to work or home,” that is, when performing work-related duties
while commuting.
45,49,50
Thus, when an employee travels under the direction
or control of an employer or is performing work for the employer, this time is
considered work time and the employee must be paid. Conversely, if workers
are authorized to leave their workplace with the employer’s vehicle but for
their convenience, the time spent commuting will not be considered work
time.
45,f
From an employment standards perspective, commuting is a
“fundamental obligation of any employee” that can be done in a number of
ways, including by public transportation (when available), with a personal vehi-
cle or a company-owned vehicle. Even though commuting arrangements
between workers can, at times, ease the scheduling task of employers and may
come from an employer’s suggestion, carpooling does not change the fact that
driving from and to home is considered to be commuting because workers
can still make their own way to the worksite.
42
However, traveling will be
considered as work time when employers require a worker to transport other
workers to/from work.
51,52
Second, the time spent traveling from home to an unusual workplace could,
under very specific circumstances, count as work time. Traveling to an unusual
workplace can imply that a worker is asked by the employer to carry out a work
assignment or to attend a training program, conference, orientation session, or
board meeting in a location other than the usual workplace. Even if traveling to
the unusual location is made mandatory by the employer,
53–65
this does not
necessarily mean that the worker will be compensated for that travel time: the
commute to the unusual location will be compensated only if the worker incurs a
“substantial inconvenience.”
62,65–69
A substantial inconvenience can result from
the extra time spent commuting because the location is geographically farther
than the usual workplace or because of traffic congestion extending the
10 NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
commuting time. Workers are likely to receive compensation based on the dis-
tance between the workplace and the unusual location, rather than from home
to the unusual location, also called compensation based on “fictitious time.”
70
The analysis of the relevant case law and policy manuals also shows that work-
ers can lawfully receive a lower rate of pay, as long as the parties have prede-
termined the amount of the compensation, which must be at least equivalent to
the minimum wage.
39,41,71–75
As noted by a 2015 Ontario Labor Relations
Board decision, this is a potentially abusive practice because “different wage
rates are attributed to different parts of the same position.”
76
What if the employer modifies the employment arrangements entailing longer
commutes to and from work? Could such a change be considered a constructive
dismissal? A constructive dismissal occurs when an employee resigns as a result
of the employer unilaterally deciding to make a substantial change to the
employee’s working conditions. In such cases, courts will generally conclude
that the employee did not resign, but has rather been dismissed.
77,78
In
Quebec, changes to the employment conditions that require workers to travel
longer or to more distant locations have been considered as “substantial”
changes: case law adopts a “case-by-case” approach, and several factors are
considered such as the original employment conditions, the predictability of
such changes, and the direct effect on the worker’s personal life.
79–82
In
Ontario, case law will consider whether the original agreement between the
parties precluded a unilateral change to the worker’s workplace and if the pro-
posed relocation is a “fundamental” change to current working conditions.
83
In
2004, the Ontario Court of Appeal found that a customer service representative
was constructively dismissed when transferred to an office twice as far away
from home.
84
In Alberta, courts consider whether the employer acted in good
faith: if the relocation of the worker is intended “for legitimate economic rea-
sons,” such modifications to the employment arrangements will be seen as being
within the employer’s prerogative.
85
In sum, time spent commuting from a worker’s home to the workplace is
generally not considered as work time. However, some exceptions apply, mainly
when the commute is occurring “under the direction and control of the employ-
er” or for the benefit of the employer. The general rule about commuting is
likely to have negative repercussions for workers who have unusual schedules,
such as “split shift” employment arrangements, and for workers employed in
industries or sectors that, by their nature, entail long commutes. If these workers
pay for some services while commuting (such as daycare), the commuting time
actually results in negative earnings.
26
Multisite Scheme
The “multisite” travel scheme applies to workers who travel between worksites
in the same shift (Figure 3). Although time spent traveling to the first site before
Gesualdi-Fecteau et al. 11
reporting for work is a commute, there seems to be a broad consensus in various
provinces that time spent traveling from one jobsite to the other during the same
shift is work time and must therefore be compensated. Workers will be deemed
“at work”
86
because they cannot meaningfully do what they wish.
87
Thus, even
if workers are considered as having “voluntarily” agreed to travel to different
jobsites, a series of factors will be considered in the analysis. Case law will
mainly examine if time spent traveling is for the benefit of the employer and
whether the employer controls the travel schedule. In Quebec, case law even
acknowledges that workers can be compensated for the delays resulting from
unexpected events occurring while traveling from one jobsite to another and at
the employer’s request.
88
Case law, however, seems to give importance to the “nature of the employ-
ment” when determining if multisite traveling should be considered as work
time. More specifically, if employees work in a “split shift” employment
arrangement across jobsites, employers will not be required to consider traveling
between jobsites as work time.
86
Workers performing their work in multiple
locations and who have interrupted work schedules will thus be required to
travel on their “personal” time. Seemingly, when the employer offers extra
shifts that require workers to travel to another jobsite, the time spent will not
be “deemed work” unless the worker is required to perform tasks while travel-
ing, such as transporting tools or equipment.
89
Case law and policy manuals
consider that workers are entitled to undertake personal endeavors between
shifts or to refuse the extra shifts. Faced with the emergence of zero-hour con-
tracts and employment at-will arrangements for several categories of workers,
90
it is possible that an increasing proportion of these workers will be expected to
travel in a work-related context on their own time.
Thus, outside of the context of split shifts, traveling from one jobsite to the
other at the employer’s behest in order to perform labor or services for the
employer is generally considered as work time. To what compensation are work-
ers entitled in such cases? Case law analysis reveals that adjudicators grant a
great deal of discretion to the parties. If parties did not explicitly convene to
compensate workers for time spent traveling, those remunerated on a piecework
basis will likely not be paid for such time, as it is assumed that their wage
already includes compensation for time spent traveling.
75
Here again, traveling
from one jobsite to the other is often considered to be “corollary” to the work-
ers’ “principal duties” and can therefore justify a lower rate of pay.
91
The Marshaling Point Scheme
Some workers will have to travel to a marshaling point, also referred to as a
“meeting point” a “pick-up location” or a “pick-up point” (Figure 4). Two sets
of litigation can arise when workers travel to a marshaling point. Some decisions
raise the issue of the time spent traveling from home to the marshaling point,
12 NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
while other decisions refer to the time spent traveling from the marshaling point
to the jobsite.
How does case law consider the case of workers traveling from home to a
marshaling point? Unless the worker is required by the employer to travel to a
marshaling point, traveling to a marshaling point will generally not be consid-
ered work time.
75,92–95
Here again, the nature of the employment or of the
worker’s duties should also be considered. In Quebec, it has been ruled that
the travel time of a forester or of a miner assigned to a remote area traveling
from home to a “pick-up point” should not be considered as working time.
94
Locations of the workers’ homes and the type of employment to which they
commit themselves are seen as the result of personal choices over which the
employer has no direct control.
Another set of litigation refers to the time spent traveling from the marshal-
ing point to the jobsite. In such cases, case law usually distinguishes employment
arrangements through which employers facilitate transportation from the
marshaling point to the jobsite from employment arrangements where the
employer requires workers to report to a pick-up point from which they are
taken to the jobsite. Most of the time, if workers have a practical alternative
means of getting to the jobsite, traveling from the “meeting point” to the jobsite
will not be considered as work time.
50,96
If workers are without an alternative
method of getting to the jobsite, the travel time will be considered to be work
time.
97
For example, if a substantial portion of the route between the marshaling
point and the jobsite involves travel on a primary provincial highway on which
workers could in all likelihood travel independently to the jobsite, it will likely
not be considered as work time.
39,93
The fact that the employer provides a vehicle is not decisive: such travel will
still be considered as work time if workers have the responsibility to drive the
employer-supplied transportation. The Ontario Labor Relations Board under-
lined that had the employer provided a bus or other means of transportation, it
would certainly have paid that driver for the time spent transporting.
98
Hence, a
coworker who is assigned by the employer to undertake the responsibility
should be treated the same way.
Conclusion
Traveling in work-related contexts is heterogeneous and the time spent traveling
to and within work appears to be increasing in Canada and globally. Thus,
determining when and why travel time is considered as work time, triggering
the implementation of employment standards legislation, is not an easy task.
However, this kind of determination is important because it has an immediate
consequence on determining when and how much workers should be compen-
sated for this time. A determination of whether time spent traveling counts as
work time also dictates whether or not workers can effectively access different
Gesualdi-Fecteau et al. 13
sets of rights, such as those regarding hours of work or the provisions that
provide for compensation for overtime or the calculation of vacation pay.
A worker injured while traveling will access workers compensation only in
cases where the travel is considered to arise out of/in the course of employment,
as is discussed in more detail in Lippel and Walters.
99
Aside from a few distinctions explicitly governed by statute in Quebec, in all
other provinces studied, travel time issues are determined by case law.
Nonetheless, several overarching interpretation principles can be identified in
all provinces, the first being the degree of control exercised by the employer over
the worker. Thus, when an employee travels under the direction or control of an
employer, or is performing work for the employer while traveling, the employer
is considered to have effective control over the worker’s activities, which means
that the time spent traveling will generally be considered as work time. The
second overarching principle is the nature of employment. Case law sets forth
that employees “voluntarily” agree to different employment arrangements that
can entail travel that is long or complicated and thus should not be considered
as work time. In this conception, which is an extension of the principle of indi-
vidual freedom of choice, dissatisfied employees are perceived to be free to
resign at any given time and therefore “accept” the disadvantages that come
with certain employment arrangements. The question remains as to whether
various categories of workers, such as those who have interrupted schedules
or who work for temporary employment agencies, truly “voluntarily” accept
such employment arrangements. Traveling in a work-related context can add
another “layer of vulnerability” to workers who already hold precarious jobs.
100
How would workers view a policy recommendation forcing employers to
exercise greater control over travel to and within work, thus allowing them to
determine how and when travel should occur? The travel time issue sheds light
on how issues of choice, freedom, and control are intertwined and how workers
are likely to mobilize their agency in unexpected spaces. Different groups of
mobile workers are also likely to foresee time spent traveling differently. A “one
size fits all” approach to travel time as work time would probably be unsatis-
factory and its concrete effectiveness dubious.
Nonetheless, under the current system, it can be hard to determine when
travel time is considered work time; results can be unpredictable and can be
disorienting for employees. Regulators should at least define key concepts, such
as “commuting” in order to rethink and reposition the drivers behind the
“freedom of will” that workers are considered to exercise when choosing their
employment arrangements or their place of residence.
Acknowledgments
The authors wish to thank Katherine Lippel and Barbara Neis for their insight-
ful comments.
14 NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, author-
ship, and/or publication of this article: This research was funded by the On the Move
Partnership: Employment-Related Geographical Mobility in the Canadian Context is a
project of the SafetyNet Centre for Occupational Health & Safety Research at Memorial
University. On the Move is supported by the Social Sciences and Humanities Research
Council through its Partnership Grants funding opportunity (Appl ID 895–2011-1019), the
Canada Foundation for Innovation, Innovate NL, Government of Newfoundland and
Labrador, and numerous university and community partners in Canada and elsewhere.
ORCID iD
Dalia Gesualdi-Fecteau https://orcid.org/0000-0002-5488-8143
Notes
a. Statistics Canada population estimates (1 July 2018): Ontario 14,193,384; Que
´bec
8,394,034; British Columbia 4,817,160; and, Alberta 4,286,134. See https://www150.
statcan.gc.ca/n1/pub/12-581-x/2018000/pop-eng.htm
b. The travel schemes that are discussed here do not capture mobile workers who travel
continuously in the course of their employment, such as those working in the
freight industry.
c. Although the power to legislate on labor issues is not expressly provided for in Articles
91 and 92 of the Constitution Act, 1867, which lists the respective powers of the federal
Parliament and the provincial legislatures, the courts have determined attribution of
jurisdiction. In 1925, the Privy Council, in Toronto Electric Commissioners v. Snider,
established the principle that labor relations directly connect to property and
civil rights, which fall under the exclusive jurisdiction of the provinces under subsec-
tion 92 (13) of the Constitution Act, 1867. See Constitution Act-1867, 30 et 31 Vict.,
R.-U., c. 3.
d. The Canada Labour Code (R.S.C., 1985, c. L-2) defines (s. 2) a “federal work, under-
taking or business” as:
(i) a work, undertaking or business operated or carried on for or in connection with
navigation and shipping, whether inland or maritime, including the operation of ships
and transportation by ship anywhere in Canada;
(ii) a railway, canal, telegraph, or other work or undertaking connecting any province
with any other province, or extending beyond the limits of a province;
(iii) a line of ships connecting a province with any other province, or extending beyond
the limits of a province;
(iv) a ferry between any province and any other province or between any province and
any country other than Canada;
Gesualdi-Fecteau et al. 15
(v) aerodromes, aircraft, or a line of air transportation;
(vi) a radio broadcasting station;
(vii) a bank or an authorized foreign bank within the meaning of section 2 of the
Bank Act;
(viii) a work or undertaking that, although wholly situated within a province, is before
or after its execution declared by Parliament to be for the general advantage of
Canada or for the advantage of two or more of the provinces;
(ix) a work, undertaking, or business outside the exclusive legislative authority of the
legislatures of the provinces; and
(x) a work, undertaking, or activity in respect of which federal laws within the mean-
ing of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any
regulations made pursuant to paragraph 26(1)(k) of that Act.
e. Employment Standards Act O. Reg. 285/01: Exemptions, special, rules, and establish-
ment of minimum wage. s. 6(1)(a)(i); this “deemed work” provision states that employ-
ees are “at work” when their employer exercises direct control over them.
f. The Board mentions that “the rather indefinite concept of convenience (what it means,
how much, to whose benefit, to what degree, etc.) is not part of the applicable legis-
lation and has not been used in arriving at the Board’s decision in this case.”
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Author Biographies
Dalia Gesualdi-Fecteau is a professor with the Faculty of Political Science and
Law at the Universite
´du Que
´bec a
`Montre
´al and a researcher with the
Interuniversity Research Centre on Globalization and Work. Dalia takes a
sociolegal approach to study labor policy and the access to justice issue. Her
current research examines the architecture of labor laws and institutions and
nonstandard work and employment standards enforcement. Her recent publi-
cations focus on labor inspection, the nexus between immigration policies and
working conditions, and work time boundaries.
Delphine Nakache is an associate professor at Faculty of Law from the
University of Ottawa, where she teaches courses in the areas of public
Gesualdi-Fecteau et al. 21
international law, immigration and refugee law and human rights law. She has
researched and published on issues related to human rights and security-based
implications of migration, citizenship and refugee laws and policies, both in
Europe and Canada. Her main focus is on issues surrounding the protection
of migrant workers, asylum seekers, and nonstatus migrants.
Laurence Matte Guilmain holds a bachelor and a master’s degree in industrial
relations from the University of Montre
´al. She is currently a doctoral student
in law at the University of Que
´bec in Montre
´al and her research interests
are labor law, the work conditions of migrant workers in Canada and
labor trafficking.
22 NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy 0(0)
... Furthermore, as we saw in Figure 3, another one of these demands is commute time, for which workers are often not paid since commuting time is often not considered to be work time (Gesualdi-Fecteau et al. 2019). Commute time is compensated only when workers are completing tasks under the direction of the employer while travelling to and from a location (Gesualdi-Fecteau et al. 2019). ...
... Furthermore, as we saw in Figure 3, another one of these demands is commute time, for which workers are often not paid since commuting time is often not considered to be work time (Gesualdi-Fecteau et al. 2019). Commute time is compensated only when workers are completing tasks under the direction of the employer while travelling to and from a location (Gesualdi-Fecteau et al. 2019). Indeed, long commute times can negatively affect workers especially when they have irregular schedules such as split shifts and when they need to pay for services while they are on commute such as daycare (Gesualdi-Fecteau et al. 2019). ...
... Commute time is compensated only when workers are completing tasks under the direction of the employer while travelling to and from a location (Gesualdi-Fecteau et al. 2019). Indeed, long commute times can negatively affect workers especially when they have irregular schedules such as split shifts and when they need to pay for services while they are on commute such as daycare (Gesualdi-Fecteau et al. 2019). In some jurisdictions, the average commute time for a construction worker exceeds an hour a day. ...
Article
Construction is an important employer in all developed countries, which bolsters the local and global economy. The construction industry is responsible for creating structure that improve productivity and quality of life not only in Canada but also in other developed and developing countries. Although considerable research exists on important facets of the industry (including education, skills and training; precarious work; migration and labour mobility; gender, working-time and work-life balance), few studies look at how the labour force has changed over time. In this paper we model the factors that predict participation in the Canadian construction industry in 1986 and 2016, and document the changes between these two points in time. We find broad similarities between the sociodemographic characteristics of workers in 1986 and 2016, and large changes in the source regions of these workers. We also find different geographical mobility patterns between 1986 and 2016, and discuss the implications of these changes for both the industry itself, and the workers and families that derive their livelihoods from construction work.
... 25 Since public transit commutes are generally multi-modal (walk or car and sometimes more than one mode of public transit), these data may underestimate average commute time for those using public transit and others who engage in multi-modal commutes such as fly in/fly out workers who drive to an airport to catch a flight and then are transported by bus, taxi, or other means to their work site, or drive in/drive out workers who drive to a rendezvous point and are picked up there for further transit to the worksite. 26 Based on the Census, those who report having 'no fixed workplace' are more likely to engage in long commutes than those who travel to a regular place of work. The proportion of Canadians with 'no fixed workplace' is growing. ...
... contexts, OHS regulatory challenges vary and can be complex depending on the nature of employment, on time and distance considerations, as well as on the worker's status and particular circumstances (gender and related vulnerabilities, language proficiency, nature of migration) which can increase their vulnerability. As Lippel and Walters show, 32 challenges for effective application of workers' compensation legislation also exist, although their sources are different.The second article in the special issue by Gesualdi-Fecteau et al.26 picks up the theme of vulnerabilities linked to the journey to and from work identified by Lippel and Walters. In this article, starting from evidence of increasing duration, complexity, and diversity of E-RGM, these three legal scholars ask whether and when travel time is considered work time in Canada. ...
... As noted by the authors,[f]rom a labor law perspective, determining whether and when time spent travelling by workers counts as work time will have repercussions for workers' remuneration and related benefits, such as the possibility to resort to legal provisions limiting the duration of work, and overtime and vacation pay calculations. It will also influence protections found in health and safety law and the ability of injured and ill workers and their families to access workers' compensation benefits for travel-related injuries and illnesses.26 They begin by conceptualizing some of the diverse employment-related travel schemes associated with different types of work and situations in Canada and then present and analyze the nature and scope of labor law protections related to travel time based on employment standards law across four Canadian provinces. ...
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Globally, employment-related geographical mobility (mobility to and within work) is a pervasive aspect of work that has potential health and safety implications. As an introduction to this special issue, this article defines the mobile workforce as those who engage in complex/extended mobility to and within work encompassing >two hours daily, less frequent but more extended mobility between regions and countries, and mobility within work such as between work sites or in mobile workplaces. Focusing on the Canadian context, we discuss the challenges associated with developing a statistical profile for this diversely mobile workforce and provide an overview of articles in the special issue identifying key health and safety challenges associated with extended/complex employment-related geographical mobility. We estimate that up to 16 percent of Canada’s employed labor force (including those commuting > one hour one-way, temporary residents with work permits, and transportation workers) engage in extended/complex mobility related to work.
... An important dimension that determines age-sex distribution of labor force is health: thereby, making health promotion important in human resource development (Fu et al., 2019;Aisa & Pueyo, 2013). Health care facilities including child and maternity care along with appropriate timings, enhancing women's enthusiasm and competitiveness, parity in pay and other working conditions, retirements, and equitable treatments in case of promotions, duties and responsibilities, geographical mobility, commuting hours, etc. are crucial to raise female employment (Gesualdi-Fecteau & Guilmain, 2019;Sasongko et al., 2019;Gambaro et al., 2019;Lozano & Renteria, 2019;AlAzzawia & Hlasny, 2019;Li & Vidyattama, 2019;Buyse et al., 2013;Michaelis & Debus, 2011). Parallel to these are the considerations specific to women such as motherhood timings, family building, mommy track experience, fertility shocks, husband's migration or job loss, low pay segment (gender wage gap) as stated by Miller (2011) (2003). ...
... Living arrangements in the oil sands of Alberta in contexts where collective agreements address housing conditions 29 are undoubtedly better than those provided to agricultural workers under the seasonal agricultural worker program , 30 (pp 111-123) but as presented in the section on WC, even in the Alberta oil sands, injuries occur because of hazards in the housing provided to the workers. Temporary foreign workers outside of the agricultural sector have also complained about the housing provided to them, although in remote areas the housing provided to Canadian workers may be equally inappropriate as illustrated by a complaint filed by tree-planters of African origin working in British Columbia who alleged the Africans were provided with inferior accommodation and were thus victims 17 of discrimination. The complaint was rejected by the tribunal because the housing provided to all workers was found to be inadequate. ...
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Although much research has examined the occupational health and safety (OHS) and workers’ compensation (WC) implications of precarious employment and temporary international labor migration, little is known about the implications of diverse types of employment-related geographic mobility for regulatory effectiveness of OHS and WC. This article examines different types of extended mobility to determine regulatory effectiveness of OHS and WC protections. Based on classic legal analysis in seven Canadian jurisdictions, and interviews with key informants, we found that the invisibility of the internally mobile workforce, as well as the alternating visibility and invisibility of temporary foreign workers, contribute to reduced effectiveness of the OHS and WC regulation. Results point to the need for better protections to address working conditions, but also the hazards and challenges associated with mobility itself including getting to and from work, living at work, and maintaining work–life balance while living at the worksite.
Article
This article considers experiences of rhythmic change related to employment-related geographical mobilities in parts of the Canadian construction industry. Drawing on Lefebvrian rhythmanalysis and aspects of time-geography, we consider how workers and their loved ones negotiate changes in space-time patterns across careers in industrial construction, especially work at projects tied to resource development and extraction. Data are derived from in-depth career history interviews conducted with workers in the Canadian province of Newfoundland and Labrador between 2014 and 2018. Three “career path” cases illustrate mobile rhythms of differently positioned workers from their entry into construction to their career stage at the point of the interview, ranging from apprenticeship through mid-career journeyed to retirement. These workers pursue training and jobs involving variable mobilities between home and work across shifting locations. We contribute to recent efforts to highlight the compatibility of rhythmanalysis with an expanded, feminist, biographical approach to time-geography, and the applicability of such an approach for the applied study of mobilities. We also respond to recent calls to study experiences of rhythmic change in the lives of mobile and migrant workers. Findings reveal that changes in mobile rhythms may be small and incremental, as in the case of schedule or rotation adjustments, or sweeping and large scale, as in the case of shifts from working locally to working in distant locations amidst the disruptions caused by the COVID-19 pandemic. Experiences of disruption and responses to change are personal and familial, conditioned by social positions and subjectivities.
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Although much research has examined the occupational health and safety (OHS) and workers’ compensation (WC) implications of precarious employment and temporary international labor migration, little is known about the implications of diverse types of employment-related geographic mobility for regulatory effectiveness of OHS and WC. This article examines different types of extended mobility to determine regulatory effectiveness of OHS and WC protections. Based on classic legal analysis in seven Canadian jurisdictions, and interviews with key informants, we found that the invisibility of the internally mobile workforce, as well as the alternating visibility and invisibility of temporary foreign workers, contribute to reduced effectiveness of the OHS and WC regulation. Results point to the need for better protections to address working conditions, but also the hazards and challenges associated with mobility itself including getting to and from work, living at work, and maintaining work–life balance while living at the worksite.
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Purpose Work-related psychosocial factors may precipitate the onset of depression. In occupational mental health research, there are three widely used theoretical models, namely, job demand and control (JD-C), effort-reward imbalance (ERI) and work-family conflicts (WFC). However, the interaction between these models and their combined effect on the risk of major depression in the workplace is largely unknown. The aim of this study is to examine the longitudinal combined effects of JD-C, ERI and WFC on the risk of major depression in the working population. Methods Longitudinal data (2008-2013) were collected on randomly selected participants (n=4200) from the working population of the province of Alberta, Canada, at baseline and 1-, 2-, 3- and 4-year follow-up. Data about JD-C, ERI, WFC and major depression were collected by trained interviewers using a computer-assisted telephone interviewing method. Generalised estimating equations for longitudinal modelling were used. Results There was an independent association between high ERI and high WFC at tx and major depression at tx+1 (OR 1.56, 95% CI 1.25 to 1.96; OR 1.33, 95% CI 1.16 to 1.52), respectively. The combined effects of JD-C and ERI, ERI and WFC, and WFC and JD-C on the risk of major depression were as follows: OR 1.71, 95% CI 1.22 to 2.42, OR 2.47, 95% CI 1.99 to 3.49 and OR 2.21, 95% CI 1.48 to 3.30, respectively. The relative excess risks attributable to the interactions were statistically non-significant. Conclusions Work-related psychosocial factors are associated with increased risk of major depression over time, but their combined effect is not synergistic. The effects of the factors depicted in the three occupational health models on the risk of major depression appear to be additive.
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Although the “mobility turn” has captured the critical imaginations of researchers studying an array of topics, its possible contributions to analyses of the spectrum of employment-related geographical mobility have only begun to be defined. Studies of work have engaged with the growing body of mobility theory in limited ways; by the same token, mobilities studies have taken a somewhat narrow and sometimes uncritical view of work, labor, and employment. This article draws on a major interdisciplinary research project into the socio-historical patterns, contexts, and impacts of employment-related geographical mobility in Canada to build a conceptual bridge between these two literatures. We re-visit established bodies of work on migration, work, and political economy and look at new avenues for conceptualizing employment-related geographical mobility. We then examine a case study from the Alberta Oil Sands and suggest an agenda for future research on mobility and work.
Labour law aims to protect the employee, defined as a person who performs work for an employer and is entitled to a wage. Labour law provides tools to distinguish between work time and personal time. However, in several emerging models of work organization, workers must increasingly be available beyond the time actually spent carrying out their work, whether they are at the workplace or elsewhere. It is not clear whether workers are then considered to be performing work and entitled to compensation. Nor is it clear whether these periods are taken into account in the maximum weekly or workday working hours, in the minimum daily and weekly rest periods provided for or when calculating overtime. It is also uncertain whether these workers are deemed to be at work. The various contemporary manifestations of the requirement for workers to be available leads to the question of what constitutes the span of work that is in fact legally regulated by labour law. The results of an empirical study conducted in 2014 (which includes a comprehensive analysis of judicial decisions and data collected from a Quebec administrative body) and an analysis of the debates surrounding the revision ot the European Working Time Directive lead on to a discussion of the capacity of labour law to protect workers who have to be available beyond the time actually required to carry out their work tasks.
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Precarious employment is rapidly growing, but qualitative data on pathways to and mechanisms for health and well-being is lacking. This article describes the cumulative and intersecting micro-level pathways and mechanisms between precarious employment and health among immigrant men and women in Toronto. It draws on semi-structured interviews conducted in 2014 with 15 women and 12 men from 11 countries of origin. The article describes how precarious employment, conceptualized by workers as encompassing powerlessness, economic insecurity, work for multiple employers, nonstandard and unpredictable schedules, hazardous working conditions, and lack of benefits and protections, negatively impacts workers' physical and mental health as well as that of their spouses or partners and children. It documents pathways to health and well-being, including stress, material and social deprivation, and exposure to hazards, as well as commuting difficulties and childcare challenges. Throughout, gender and migration are shown to influence experiences of work and health. The findings draw attention to dimensions of precarity and pathways to health that are not always highlighted in research and discourse on precarious employment and provide valuable insights into the vicious circle of precarious employment and health.
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In this article I examine several criticisms of the concept of vulnerability. Rather than rejecting the concept, however, I argue that a sufficiently rich understanding of vulnerability is essential to bioethics. The challenges of international research in developing countries require an understanding of how new vulnerabilities arise from conditions of economic, social and political exclusion. A serious shortcoming of current conceptions of vulnerability in research ethics is the tendency to treat vulnerability as a label fixed on a particular subpopulation. My paper examines the role of this "label" metaphor in current statements of research ethics. In contrast to this prevailing "label" metaphor, my own positive account of vulnerability develops a dynamic way of understanding the structure of the concept of vulnerability based on the idea of "layers of vulnerability." I examine several cases involving women, as they are sometimes labeled as a vulnerable population and sometimes not. My analysis demonstrates the essential role of this revised concept of vulnerability in bioethics and research ethics.
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This paper introduces the special section on the implications of long distance commuting (LDC) in the mining and oil and gas sectors on rural regions. The papers in the special section draw largely from the Canadian context but also from international examples and comparative analysis to further illuminate the challenges and opportunities such work arrangements present for rural communities, residents and organizations. This introductory paper provides a brief overview of the growing trend of 'mobility' including LDC, which can occur along a spectrum from commuting that includes long absences from home to extended daily commutes. This mobility has become particularly important for the extractive industries, and specifically the mining and oil and gas sectors. This paper also discusses the implications of LDC for source and host communities and the role of policy and planning in mitigating these impacts.
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The growing prevalence of employment-related geographical mobility (E-RGM) is introducing a number of impacts on both source (e.g. places of residence) and host (e.g. places of work) communities. Understanding the nature and extent of E-RGM is, thus, becoming imperative for local, regional, and national stakeholders to mitigate challenges, build on opportunities and identify appropriate responses. This paper explores the nature and extent of E-RGM in the nickel-processing sector in Long Harbour, Newfoundland and Labrador and Sudbury, Ontario, highlighting potential factors influencing mobility in these contexts. It also assesses the impacts of E-RGM on these communities and identifies respective responses to E-RGM by company officials, all levels of government, and other community organizations. To understand E-RGM in Sudbury and Long Harbour, this research uses key informant interviews and the analysis of a variety of documents including development agreements, corporate materials, media reports and other stakeholder reports. Both communities have nickel-processing facilities owned by the same company, however, they have vastly different operations that are influenced by economic history, location, industrial structure and institutional context. This not only creates variations in the nature and extent of E-RGM but also the subsequent impacts on these communities and stakeholder responses.
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The ongoing developments of the Northern Albertan Athabasca Oil Sandsinclude exceptionally labour intensive processes, while securing labour for thisindustry has been a perpetual challenge. The industry has relied on temporaryand transitory labour since its inception, with a great deal of mobile workersoriginating from Atlantic Canada. Based on ethnographic research, this paperexamines the dynamics of an emerging route of migration between the formercoal-mining region of Industrial Cape Breton, NovaScotia and the sites of the OilSands industry. Processes of migration have had profound social and economicimpacts on the communities of Industrial Cape Breton, while such mobileworkers find themselves in a form of work organization which is increasinglyprecarious and contingent.