Introduction
Many workers in the global economy may feel out of place. Delivery workers mediated through digital platforms (apps) are everywhere around us, constantly navigating between restaurants and private homes or offices. Yet, from a legal perspective, it is as if they were invisible. They are generally qualified as independent contractors by the companies that hired them and they do not have a physical rallying point, as they are hired through an app. Women providing care in the privacy of homes (theirs or those of others) are also easily erased from the industrial and legal landscape because of the reproductive nature of their work (Blackett Reference Blackett2019), while migrant workers in the agricultural sector have restricted access to labour protections, both by institutional design and because of their status as migrants (Dehaibi Reference Dehaibi2022).
What these workers have in common, aside from their precarious employment status and their belonging to so-called vulnerable groups, is that they navigate spaces that fall beyond the workplace traditionally imagined in Canadian labour law. Whether it is on a farm, in a private home or on a public street, it seems that being outside the walls of a certain kind of workplace heightens the struggle of workers to have their rights recognized. In this essay, I suggest taking a close look at the geographic dimensions of labour law, to assess how certain spatial arrangements contribute to legal marginalization. Specifically, I argue that labour regulation is prone to and promotes inertia: by fixating on a specific, contingent workplace as universal (namely, the Fordist workplace), labour law fails to adapt—while forestalling adaptation—to different spaces of work. This inertia is primarily geographical because rules are attached to a specific location as a result of the history of labour relations in North America (Fudge and Tucker Reference Fudge and Tucker2004). What labour laws fail to adapt to specifically is the changing spatial nature of the workplace, because it only recognizes a neatly defined, property-based workplace (the factory, the office) while ignoring other workplaces that are spatially ambiguous (the home, the farm, the public space).
Labour regulation universalizes rules applicable to a contingent workplace—a process that decontextualizes labour relations, but that also creates a conceptual and physical boundary between recognized and marginalized workplaces. In other words, labour regulation, by ignoring the relevance of space, actively divides space in ways that reinforce the marginalization of some workers. This essential geographic dimension of labour law is, however, understudied in scholarship. I propose in the following lines to correct this by explaining the relevance of taking geography seriously when it comes to studying labour law from the perspective of marginalized and out-of-place workers.
This essay adds to the current critical literature that contextualizes labour lawFootnote 1 by proposing that, in many instances, historical marginalization is rooted not only in economic choices, but also in geographical factors, such as where work is located (the home vs. the office) or how it is performed in space (movement vs. stillness). I argue that place matters, particularly when it comes to assessing the application of social rights. Needs for shelter, food or clean water, for example, require different types of protection whether one lives in Canada or Mexico, in a city or on a First Nations reserve.Footnote 2 The same can be said about labour rights, which apply differently to workers who are concentrated in a single location or who are spread out diffusely in a large space.
Engagement with the intersections of law, labour and geography is therefore necessary. In the first section, I present some key insights from legal geography and labour geography—two theoretical approaches that deal, respectively, with the role of space in determining and applying legal norms and the role of space in labour relations. I argue that labour relations cannot be apprehended without considering their location in space and apply this to reexamine the standard employment relationship and the margins it creates. In the second section, I elaborate on the notion of inertia in labour law, arguing that the tendency for legal indolence by political actors is part of the processes of capitalism. An element of this process is the erasure of historical facts through the neutral language of legal codes in a way that reinforces labour divisions along gendered and racialized lines. I then illustrate two ways in which inertia plays out to marginalize certain workers: either labour laws explicitly exclude certain workplaces from their reach (e.g., the home and the farm) or they create rules that are applicable to a specific geography, thus allowing businesses to go around these recognized legal spaces through sham contracts (e.g., by transferring work in the public space).
In the third section, I spell out the implications of a spatial understanding of labour law. Concretely, not only does it help us understand legal categories and choices, but it also allows us to contrast the legally recognized workplace with actual places of work and how normativity is developed within that lived workplace. This allows us to better understand the way that workers organize collectively in a context in which their workplace falls outside of the spatial scope of labour statutes. I argue that convergence, understood as the act of moving towards a point in space ( Oxford English Dictionary ), is a dominant organizing strategy, whether in a strictly confined workplace or a widespread and diffuse one. I will explain how this movement specifically serves to challenge the sense of placelessness in certain employment relationships. I conclude by encouraging a bottom-up approach to research on marginalized workers, while proposing some ideas for expanding the geographical study of labour law.
A few preliminary notes on terminology are in order. In this essay, I adopt geographer Doreen Massey’s definition of space as the product of plural and heterogeneous interrelations and interactions at different scales (Massey Reference Massey2005, 9). This understanding of space implies that the individuals who populate a given space shape its form and that this form is not determinate, but constantly made and remade through social interactions. Within space, place can be defined as the site or location in which complex, fluid relationships meet (Cresswell Reference Cresswell2015, 14; Massey Reference Massey1991, 28). As Massey clarifies, this conceptualization of place rejects the idea of fixed boundaries and I will illustrate how this resonates in the study of labour law that tends to limit the workplace to a bounded location. Place is multidimensional: for instance, an office can be at once on a street and in a city, a country and a continent; this means that the relationships involved in a single location are not limited to the boundaries of that office. Finally, because space and place are dynamic, I am particularly interested in movement—that is, in the way in which labour and capital shift within these spaces.
Conceptualizing the intersection of law, labour and geography
Legal geography is a flourishing subfield of legal research which argues that space matters in understanding law because law is always situated, invariably existing somewhere (Braverman et al Reference Braverman, Blomley, Delaney and Kedar2014, 1; Sylvestre et al Reference Sylvestre, Blomley and Bellot2020, 23; Keenan Reference Keenan2015, 23–24). As such, it proposes a contextual approach to law that opposes the abstract territory of legal positivism to the concrete spaces in which the law evolves. It studies how space and place influence legal processes and outcomes. An approach to legal questions that is sensitive to geography recognizes that space is not just a passive and invariable background to social relationships, but rather represents the dynamic physical environment that, at once, shapes these relationships and is responsive to them (Braverman et al Reference Braverman, Blomley, Delaney and Kedar2014). Legal geographers argue that the relationship between law and space is “reciprocal” and “co-constituted”: law shapes our understanding of space (e.g., when it determines different rights based on the type of land tenure one holds or when it determines what types of behaviour are allowed in public spaces such as parks), but spaces and the way we navigate them also contribute to the evolution of legal norms (e.g., through workers’ collective action) (Braverman et al Reference Braverman, Blomley, Delaney and Kedar2014, 1; Sylvestre et al Reference Sylvestre, Blomley and Bellot2020, 23).
Critical legal geography is particularly relevant in understanding the dynamics of power and marginalization within legal structures. As Sylvestre et al (Reference Sylvestre, Blomley and Bellot2020, 23) explain, “[l]egal practice routinely encodes and organizes space in ways that both structure and conceal oppressive relations of power.” Indeed, Nicholas Blomley (Reference Blomley1994) has described how property law divides people spatially between those who fit in and those who are kept at the margins. By operating “through” space, rather than “upon” it, law can easily ignore how subjects navigate these spaces (Keenan Reference Keenan2015, 29). In other words, law takes space as a given, without considering how different spaces shape relationships between people and how these relationships shape space. As I will explain in the next section, labour law proceeds in a similar way, by universalizing a single workplace in a way that pushes other workplaces (and workers within them) to the margins of the law. It is worth emphasizing that this legal ordering of space may, on the surface, appear neutral, but an important insight that the authors above provide is that the law’s geographical ordering of power is never explicit. For instance, park regulations that provide that people cannot stay after a certain hour in a park may at first glance appear to embody a universal rule to favour order but in practice outlaw homeless persons who find themselves with no better option than sleeping in the park at night (Sylvestre et al Reference Sylvestre, Blomley and Bellot2020, 25). What this example outlines, from a critical perspective, is that a law that is neutral in framing can have discriminatory effects that are spatial in nature, as they rely on accepted wisdom of where private life ends (the home) and social life begins (the public space/the office).
The role of space in shaping labour law specifically has been, however, mostly understudied (Vosko Reference Vosko2011, 10). Some authors engage with the spatial nature of marginalization in labour law (see e.g., Blackett Reference Blackett2019; Fudge Reference Fudge2022; Rutherford Reference Rutherford2012), but what is lacking is a systematic conceptualization of a labour geography of law. When addressing the shortcomings of labour regulation in the twenty-first century, labour-law scholars usually emphasize the proliferation of employment arrangements that deploy in the margins of the standard employment relation (SER), understood as the subordinated bilateral relationship between an employer and an employee, the latter being hired on a permanent, full-time contract (Ashiagbor Reference Ashiagbor2021, 526; Bisom-Rapp and Coiquaud Reference Bisom-Rapp and Coiquaud2017, 1; Vosko Reference Vosko2011, 1–2). What is seldom addressed, however (or only indirectly so), is how the SER is intrinsically geographical—that is, how the SER is anchored in a specific location while atypical employment lies beyond this spatial setting.
Critical labour lawyers remind us that the SER, and most importantly its legal protection, is the product of a historical compromise to favour industrial peace by providing certainty and accountability to employers (see generally Coutu Reference Coutu2018; Fudge and Tucker Reference Fudge and Tucker2004). This industrial peace is not abstractly generic; it is in favour of the Fordist employer, who is essentially a property owner of a factory or plant. The US Wagner Act and the Canadian equivalents were adopted in response to paralyzing strikes in the 1930s and 1940s within manufacturing and resource extraction industries, thus leading to a recognition of the right to strike as a way of circumscribing its exercise (Brunelle Reference Brunelle2010, 19–20; Coutu Reference Coutu2018, 538). The mass concentration of workers within a constrained location helped workers organize collectively in these locations, hence the localized responses that regulation offered. Thus, labour codes consecrated the principle of owner-based bargaining, which is geographically circumscribed: back then, and to this day, Canadian labour codes did not recognize sectoral bargaining, not because sector or craft unionism did not exist at the time (Coutu Reference Coutu2018, 539), but because the objective of controlling labour in general was made necessary at a smaller scale. When different labour geographies are recognized, it is by special statutes (e.g., in the construction industry), which, by their very nature, establish a distinction between the SER workplace and the rest. So, from its inception, the Wagner Act controlled workspaces by establishing the physical boundaries of collective action while neglecting to spell out the spatial dimensions inherent to the Fordist workplace.
By answering the labour problem of a specific workplace (the Fordist workplace), labour codes do not address issues specific to other labour geographies. Indeed, employer-based negotiations do not have the same effect for workers in small businesses with low labour needs, such as in retail or in the food industry; in the latter example, broadening the geographical reach of negotiation would make more sense to reach the numerical tipping point that provides collective power, but Canadian labour law does not allow that possibility. When labour codes use a universal framing devoid of historical context, they appear to consider that spatial differences and the way they shape labour relations do not matter or even exist.
I have argued so far that labour-law scholars tend to underplay the role of space and place in the regulation of labour, but geographers such as David Harvey (Reference Harvey1982) and Andrew Herod (Reference Herod2001) have developed key insights into the spatial organization carried out by capitalism to order things and people. One of Harvey’s main contributions is the introduction of the notion of “spatial fix,” referring to a spatiotemporal point in place at which capital maximization and reduced labour costs meet, such as by situating factories in densely populated areas or building transport systems that favour the supply of raw material and labour (Harvey Reference Harvey1982; see also comments by Herod Reference Herod2001, 13). It is a fix in the sense of resolving a problem “in order to overcome space” (Harvey Reference Harvey2001, 25). As such, it is not immobile; it constantly shifts to favour capital production. Today’s transfer of workplaces in foreign markets or online is just another way that capital “fixes” the problem of space to reduce costs (Harvey Reference Harvey2001, 24–26). Labour laws participate in upholding these spatial fixes: they establish, for example, what counts as a workplace, who counts as an employee, when and where strikes can be performed—all factors that enable smooth transactions and efficiency. Indeed, while a physical workplace is not a formal prerequisite in labour laws, it is often assumed, be it in the evaluation of an occupational injury, the determination of the reach of non-competion clauses or the ability to exert collective action.Footnote 3
Herod (Reference Herod2001, 4) adds to Harvey’s work by suggesting that the canons of labour geography have mainly focused on how capitalism has shaped spaces of labour (the “geography of labour”) and less so on how spaces of labour are shaped by workers (“labour geography”). Using different case studies, he suggests that “working-class people both have a vested interest in trying to ensure that the geography of capitalism is produced in certain ways and not in others, and that they play active parts in seeking to bring this about” (Herod Reference Herod2001, 4). Thus, observing the concrete places of work allows us to shed light on the way these spaces can be occupied, claimed and reinvented. More recently, geographers have underlined the role of labour geography in understanding precarity, noting how spatial awareness informs the ways that unorganized workers, such as migrants, develop their agency and resist (Rogaly Reference Rogaly2009; see also Strauss Reference Strauss2018 and Waite Reference Waite2009). This has been observed, for example, with domestic workers (Blackett Reference Blackett2019) and platform workers (Gray Reference Gray2022; Martínez Lucio et al Reference Martínez Lucio, Howcroft, Smith, Mustchin, Marino, Adrian, Tony, Paula and Sarah2022; Morales Muñoz and Dinegro Martinez Reference Morales Muñoz and Martinez2022; Tassinari and Maccarrone Reference Tassinari and Maccarrone2020; Vandaele Reference Vandaele, Haidar and Keune2021), the latter example being expanded on in the last section before the conclusion.
Labour geography does not, however, specifically address the role of law in shaping the spaces of power dynamics at work. The question is thus left open: does the law reinforce spatial fixes by favouring capital reproduction to the detriment of the legal protection of workers—which constitutes a labour cost—or does it tend to enable labour’s tendency for resistance through space? The thoughts that follow seek both to explore the legal geography of labour (that is, a critical lens through which to observe the way in which law upholds the spaces created by capitalism) and the labour geographies of law (that is, the empirical observation of the way[s] in which workers create normative spaces of resistance).
The legal geography of labour: Inertia in favour of capitalism
The first labour codes in Canada were imagined in a context of political struggles around the Fordist enterprise (Brunelle Reference Brunelle2010; Fudge and Tucker Reference Fudge and Tucker2004) and therefore they tend to implicitly reflect that specific workplace. Of course, the Fordist enterprise is not the only existing workplace. The spatiality of the factory is a product of its function: heavy machinery cannot be easily moved, which means that factories stay in place. The mode of production requires a large workforce, whereas its output—consumer goods—requires a large market, making their location in or around urban areas the most logical. Their imposing structure makes them quite visible in these urban and suburban landscapes, and their association with economic development and individual prosperity gives them an aura of public importance. Also, while the application of labour codes rapidly expanded beyond factories, the recognized workplace still abides by these features of fixity, population density and publicity, whether it be for office work in the tertiary sector or public service.
Workplaces are constantly evolving because of the very nature of capitalism to encounter new spatial fixes (in the sense of “solutions” to the problem of capital maximization), but law fixes a space in time (in the sense of “immobilizing”), which then determines the literal physical boundary between recognized employment—that is, employment subject to the full range of worker protection—and the rest. Where does that situate nonconventional workplaces and the people who work in them? What can be observed is that workplaces that fall outside the recognized geography of labour codes are often populated by vulnerable segments of the population, thus raising the question of whether this vulnerability may be spatially induced. There are two ways in which this can be done: either labour laws explicitly create sites of exclusion by situating some workplaces as out of place or they create margins by recognizing a singular model of labour relations outside of which workers are in a grey zone. But, before I address these two excluding mechanisms, I offer a few thoughts on labour law’s inertia.
Inertia in labour law
As mentioned in the previous section, labour laws are a specific response to a specific point in time and place, and a consequence of this is that they lack the ability to catch up with the adaptive process that capitalism constantly embarks on. I describe this lack of dynamism as a form of inertia. According to the Oxford English Dictionary , the term “inertia” primarily refers to a concept in physics and is defined as “the property of matter by virtue of which it continues in its existing state, whether of rest or of uniform motion in a straight line, unless that state is altered by an external force.” In its transferred meaning, it refers to inactivity or the “disinclination to act or exert oneself.”
Using these definitions in the background, I suggest that labour laws are inert not because they never change, but because they are resistant to change and will only do so if intense external pressure is made (by workers or courts, for instance) on the legislative branch—that is, on elected representatives. To be clear, when talking about legal inertia, I refer specifically to the lack of embedded adaptability of statutes, regardless of the extent to which courts and tribunals can interpret these statutes in an enabling manner. Societies constantly change, but statutes and codes do not necessarily follow the same rhythm, not only because of the lengthy deliberative process of lawmaking, but also because their framing is such that it limits resiliency to change.
Of course, statutes are meant to keep the same form until they are amended. But inertia does not lie in the statute as an inanimate artefact; it characterizes the actors that enact them (political representatives) and the choices they make when enacting them (favouring technical rules that are frozen in time instead of adaptable principles). For instance, a rule that states that workers may conduct strikes without fear of retaliation to advance their social well-being is not the same as a rule that states that strikes are legal only if a union has been accredited in a workplace and if the strike is declared during bargaining periods (see e.g., Quebec Labour Code, arts 106–107). The first rule allows flexibility in the way in which a strike can be conducted, as it is only circumscribed by the objective, whereas the second, which is prevalent in Canada, limits the place and time of a strike, meaning that any other strike that may otherwise appear legitimate (say, domestic workers collectively deciding to walk off to denounce forced labour) will still fall within the realm of illegality. Labour laws also lack adaptation to different geographical areas of worker solidarity. The principle of accreditation in Canadian labour law, which limits labour rights to a specific employer in a specific location, particularly affects vulnerable workers in nonconventional workplaces. Whether workers are free to determine the extent of an accreditation or not, labour tribunals or labour boards still retain a significant amount of power to limit the geographic reach of a bargaining unit, meaning that workers who are outside of that bounded territory (e.g., independent contractors) or who move in and around it (e.g., transportation workers) can easily be left out.Footnote 4
Legal inertia is not characteristic of all legal fields. Corporate law, for instance, can be particularly reactive to economic changes by allowing greater freedom to determine legal forms, such as through contracts. On the other hand, labour statutes and codes are slow to change, despite numerous calls for reforms.Footnote 5 What seems to come out from these opposite examples is that law’s inertia or dynamism responds to the needs of capital (on this, see Pistor Reference Pistor2019). Just as Harvey (Reference Harvey1982) explains, this ordering is particularly spatial, allowing legislative movement where the flow of capital is involved and indolence when it comes to imposing labour costs.
While Harvey observed this specifically in the context of economic regulation, it must be specified that the spatial ordering of capital pervades many legal forms, including the regulation of migrant work, which is particularly characterized by the control of movement (Walia Reference Walia2010). Literature on racial capitalism explains how capitalism “places” racialized people in specific locations to reinforce capital production through class division (Robinson Reference Robinson2000; Williams Reference Williams2021; see also Blackett Reference Blackett2020 and Strauss Reference Strauss2020). As Williams (Reference Williams2021, 2–3) illustrates, a lack of available human resources in remote colonies made it necessary to force the movement of people towards these areas—first indentured workers and then enslaved people. To this day, migration laws in Canada still determine workers’ places in society, for instance, by assigning temporary workers to a single employer and workplace through closed work permits (Walia Reference Walia2010). The same has been observed for women who were long confined to certain places in which their reproductive labour was not recognized (Vosko Reference Vosko2011).
Control of people in space is part of the mechanism of capitalism. What this underlines, as labour geographers have noted, is that precarity is embedded within the very spatial functions of liberal societies (Ettlinger Reference Ettlinger2007; Waite Reference Waite2009). I would add that it is also embedded within labour (and migration) law, which fails to recognize certain employment relationships that fall outside of the recognized workplace, be it because of contractual forms such as outsourcing or service contracts or because a job is performed in the public space or at home. It is a product of law’s inertia because it results from the process of technical codification, which limits the extent to which legal actors can move within the space of labour law.
This is not to say that codification automatically leads to erasure. Complex legal systems often need to rely on broad principles to cover a wide range of situations. But universal rules mean that concrete circumstances are secondary to the application of these rules.Footnote 6 Tim Ingold calls this way of thinking about knowledge a “logic of inversion,” in which the pathways to legal knowledge are erased as soon as the knowledge is enclosed—that is, in a legal context, as soon as the rule is proclaimed (Ingold Reference Ingold and by2009, 42). All rules, and especially rules of labour law, find their roots in concrete conflicts and struggles, but codes are not framed to include these contexts (Fudge and Tucker Reference Fudge and Tucker2004). Or, as Keenan notes, “[l]aw is lacking in context because it restricts itself to its own forms of knowledge, systematically excluding other forms” (Keenan Reference Keenan2015, 22). The objective of legal codes to enable swift access to comprehensive norms is a valid one, but it creates an assumption that adaptation to diverse contexts is equivalent to normative chaos, which, in a labour-relations context, leads to inertia.
Workers legislatively out of place
Codification creates a delineating mark between the core and the margins, the latter of which, as many authors note, are populated by women and racial minorities (see e.g., Ashiagbor Reference Ashiagbor2021; Das Gupta Reference Das Gupta and Vosko2006; Vosko Reference Vosko2011). As Vosko (Reference Vosko2011, 1) contends, “[t]he SER was never universal […]. Even at its peak, it was not accessible to all workers. Nor was it ever meant to be. Indeed, the SER cannot be understood apart from its exclusions. It rests on them.” And these embedded exclusions have clear geographical lines. Vosko’s important contribution to the understanding of the SER as being inherently formed through the gendered distinction between male breadwinners and female caretakers has many spatial implications, the most relevant for our purposes being the physical division between productive work, which is performed in the public eye, and reproductive unpaid work, which is confined to the isolated, private location that is the home (she calls this the gender contract; Vosko Reference Vosko2011, 8). Reproductive work, from this perspective, is often not work at all, because it derives from the natural propensity of women to care for others, but its spatial distinction is that it is performed at home, the temporal representation of the family (Vosko Reference Vosko2011, 8–9). This perception is still prevalent today, even when care work is remunerated. As Martha Chen (Reference Chen2011, 176) mentions, “[t]here is a widespread perception that labour standards cannot be enforced in the private setting of the home,” which creates a feeling of uncertainty for domestic workers as to whether rights apply to them or whether they will be enforced. What I want to emphasize is that the exclusionary nature of the SER is aided by the fact that workplaces of a reproductive nature were physically distanced from the recognized workplace. Women’s domestic work, carried out in the privacy of their homes, places them outside the traditional boundaries of labour law, excluding them from legal protection.
Labour law can actively serve to reinforce this spatial divide between the public space and the home. For instance, in Quebec, only recently were domestic workers provided with the full range of minimum standards and some workers with precarious schedules are excluded from the occupational injury reparation scheme.Footnote 7 What is more, the province expressly decided to exclude home-based daycare workers from the application of protective labour and employment legislation in 2003. Although it was decided to make daycare a public service, it remains part of the institutions of social reproduction that, as Vosko (Reference Vosko2011, 8) accurately notes, determine people’s positions in a labour market. Therefore, when the state decided to allow individuals to operate daycare at home because of the cost-effectiveness of such a location, it jumped on the opportunity to qualify home-based daycare workers as independent contractors (Coiquaud Reference Coiquaud2011; Rolland Reference Rolland2017). As Rolland (Reference Rolland2017, 113–14) notes, the only difference between a public daycare worker and a family-based worker is the fact that the latter performs their work from their homes. Their tasks are the same, the cost for users is the same, they must follow rigorous guidelines set out by the state and report back to the state, but the fact that they operate from home suffices to create the fiction, by law, that family-based workers are self-employed. This geographical distinction is fully a product of law: between the time that home-based daycare was established and 2003, when the law was changed, workers were considered employees of the state, with some even engaging in unionization efforts (Rolland Reference Rolland2017, 115). It is the specific geography of home-based workers that allowed this legal fiction to be socially acceptable—a legal fiction that particularly affects racialized women, who are overwhelmingly represented in care work (Bauer and Cranford Reference Bauer and Cranford2017).
Work in rural areas is another issue that has been excluded from the reach of labour law. Farm workers in Canada are often recruited from foreign countries due to the lack of an available workforce locally and, while opaque migration laws are often blamed for the dire work conditions of migrant farmworkers, labour legislation has always established differential treatment for agricultural workers, in good part because of their spatial positioning away from urban centres of power (Dehaibi Reference Dehaibi2022; see also Pruitt Reference Pruitt, Irus, Blomley, David and Alexandre2014, 190). Historically, agricultural workers were not able to unionize and did not receive the full protection of labour standards. To this day, Ontario and Quebec are still creating exceptions to farmworkers’ freedom to establish a union. In both cases, the argument raised by legislatures is that the spatial nature of agriculture commands special treatment (Dehaibi Reference Dehaibi2022). In turn, agricultural workers feel isolated, not only because they live in remote areas or, in the case of migrant workers, because they must live within the premises of the farm, but also because, institutionally, services are less available in sparsely populated areas (Bélanger and Candiz Reference Bélanger and Candiz2015, 21).
The case of agricultural workers also demonstrates labour law’s inertia; indeed, the Ontario and Quebec exclusionary regimes were constitutionally challenged before the courts and, despite favourable decisions for the workers, both provinces chose to adopt special regimes that adhered to the bare-minimum requirements of the decision rather than simply including farmworkers within the general regimes of labour codes.Footnote 8 Legislatures reacted to external pressure but did not opt for a profound reordering of the spatial organization of labour law that expels rural landscapes out of legal sight.
Workers contractually out of place
Apart from explicit spatial exclusions, the effect of fixing a model workplace within the law is that the employer can then actively transfer their production outside of this workplace to avoid labour costs. As Blackett (Reference Blackett2019, 951) rightfully points out, establishing the boundaries of labour law automatically creates margins. These margins are the spaces in which people—often non-White, often female, often migrant—are left on their own. Labour codes and statutes, as mentioned earlier, are not framed to adapt to change and movement, but capitalism is highly adaptable; it seeks to exert control over resources and labour power while extracting the most value from them, including by evading labour laws (Harvey Reference Harvey1982; Herod et al Reference Herod, Rainnie and McGrath-Champ2007).
This evasion is particularly aided by the seemingly neutral principle of freedom of contract. We know, for instance, that subcontracting or outsourcing blurs the employment relationship by transferring labour to another location. While justified by economic motives, these strategies have the very concrete effect of physically detaching a person from an owner’s property, the legally recognized source of subordination and hence the source of labour protection in the Wagner model. Of course, tribunals have the power to determine who the “true” owner is, as the Supreme Court’s Pointe-Claire ruling has established (Pointe-Claire [Ville] v Québec [Tribunal du travail], 1997), but this reliance on judicial findings delays justice at work and reinforces grey zones, which are only increasing with the proliferation of personnel placement agencies.
The physical distance with the owner–employer is also the reason why delivery and transportation work hold such ambiguous positions in relation to the SER. I have mentioned already that gig workers are often misclassified as independent contractors—a legal fiction purely induced by contractual form. The app owners may not own the public space, but they still control workers’ movement within the public space (see e.g., findings in Canadian Union of Postal Workers v Foodora Inc. d.b.a. Foodora, 2020). As authors Morales Muñoz and Dinegro Martinez (Reference Morales Muñoz and Martinez2022, 305) explain, technologies are just “sophisticated forms of control” that reproduce traditional patterns. Yet, they are a form of control that is rendered impervious to legal scrutiny thanks to its classification as a service contract, whereas labour law usually applies to a contractual employer–employee relationship.
In absolute terms, freedom of contract implies that any employer could re-qualify their relationship with workers as that of a service provider. But the fact that workers in the platform economy are not fixed in place helps this legal fiction. In the case of digital delivery platforms, owners exploit a feeling of spaceless-ness, in sharp contrast with the very physical and visible nature of their work within the urban landscape. Indeed, the fact that their work is mediated through an app does not make it less local, less community-based and less “in place.” Even the worker behind their computer at home is always physically present somewhere. But, by dematerializing the legally defined workplace, the app owner creates a marginal space in which deliverers are excluded from legal protections. Delivery workers operate mainly in an urban setting, in good part because their work is dependent on the geographic availability and proximity of people to perform the services required by users and on the greater number of users (Huws Reference Huws2020, 10–11). Yet, the constantly changing nature of their workplace, not linked to an identifiable property right, makes them legally invisible. The political economy of the labour relationship is left untouched—including the premise of exploitation of racialized bodies in favour of maximized profit—but, from a legal point of view, platform work slips into the cracks.
For many, the technological shield of the app creates this legal fiction. However, when we look back at the history of labour cases regarding delivery work and transportation services, we realize that the physical ambiguity surrounding work that implies movement has long been exploited to blur the employment relationship. Three Quebec Labour Tribunal cases from the late 1970s and 1980s address the question of whether drivers ought to be considered independent contractors or employees for the purpose of union membership, be they parcel couriers, product distributors or truck drivers.Footnote 9 Similar cases, but with different outcomes, can be found in the United States concerning FedEx drivers (2009) and shuttle drivers (2019). In all these cases, judges opted to look at the concrete relationship between workers and the employer rather than limit themselves to the contract, but, regardless of the outcomes, what these cases demonstrate is a propensity for employers to consider their transportation services as spatially distinct from their core activities that are fixed in space. In fact, delivery and transportation services are among the most outsourced services.Footnote 10
In the examples of subcontracted agency work and platform work, we also note a sociolegal division of space along gendered and racialized lines that confines certain people into certain workplaces. Statistically, app-based work that is locally based is overwhelmingly occupied by migrant workers and racialized minorities.Footnote 11 In the case of agency workers in the Quebec health sector, studies have shown that minorities are disproportionally represented compared with their colleagues who are directly employed by health institutions (see Yerochewski and Gagné Reference Yerochewski and Gagné2017, 556–57). Once more, these systemic patterns of discrimination are concretely anchored in certain spaces, as labour practice leads to positioning certain bodies in assigned places.
These examples illustrate how rules that appear neutral at first are rather structured to conceal oppressive relations of power, as Sylvestre et al (Reference Sylvestre, Blomley and Bellot2020) suggest. Inertia in labour law reinforces this imbalance because, as workplaces expand through innovative contractual forms, the law’s reach becomes smaller and smaller. Interestingly, if we look at labour-law reforms since 2000 in the province of Quebec, we note that the legislature has mainly tweaked the legislation of minimum labour standards and occupational safety, whereas the Labour Code, which enables workers to negotiate their work conditions based on the combined principles of freedom of contract and freedom of association, has been left mostly untouched—apart for provisions limiting the transfer of collective agreements in the case of subcontracting (see Quebec Labour Code 2003, art 45). What this means is that the state has willingly chosen to limit worker agency, while enabling owners to modify their corporate structure and evade labour laws. This does not mean, however, that workers have not found ways to exercise this agency and the next section will address how resistance at work operates in the margins of the recognized workplace.
Labour geography of law: Understanding convergence in and through space
Assessing the spatial dimensions of labour law is not only necessary to offer a comprehensive assessment of the mechanisms of legal marginalization at work; it also offers a framework to understand how marginalization can be subverted by worker action. As Herod (Reference Herod2001, 48) indicates, when developing the notion of labour geography, workers, as social agents, have the power to shape the spaces in which they make a living. He notes that the way they exercise this agency is contingent on “the historical and geographical contexts that enable and constrain their lives.” Because space and place are social constructs, the spaces of labour law, including the margins it creates, can be remodeled by those who inhabit them, based on their experiences and values (Massey Reference Massey1994, 4–5).
It is important to emphasize that the legal workplace—as it is recognized in law—does not necessarily correspond to the geographic workplace—as the physical site at which work is performed and relationships of subordination, but also of resistance, are upheld. In other words, the legal geography of work does not match “lived geographies” of workers (expression borrowed from Sylvestre et al Reference Sylvestre, Blomley and Bellot2020, 29). This is particularly true of employment implying movement, as we have seen, as a truck driver, for instance, will spend little time in the physical place in which their employer operates. Whether the law recognizes a workplace or not, that workplace still exists. A tech company may have no physical office, having transferred all of its operations online, but the worker still exists somewhere in a place. Remoteness, after all, is not the absence of a place, but rather a place that is distanced and far from a given central point. The same applies to gig workers who navigate urban spaces constantly.
In this context, the physical location of workers may directly inform the extent of their rights, allowing us to confront the workplace as an abstract legal concept with the workplace as a site of complex relationships conjoining to form a system of rules applicable to workers. As persuasively illustrated by Blackett’s study of domestic work, all places of work possess a law of their own, in the sense of a system of rules managing social relations rooted in multiple levels of governance (Blackett Reference Blackett2019, 43). What I want to add to this legal-pluralist understanding of the law at work is that place matters in understanding how the law is applied, made and remade daily. From a collective action view, a place is indeed where workers can converge to consort and organize.
Convergence can be seen as the spatial expression of solidarity. As Hannah Johnston (Reference Johnston2020, 25–26) suggests, solidarities have always been geographic, shifting from artisanship to the industrial space, then to the community base. Elizabeth Anderson (Reference Anderson2017, 33–34) notes, for instance, that unpaid apprentices in artisan shops often worked under more humane conditions than those in industrial factories, as they operated in the same physical environment as their masters, whereas industrial bosses were often absent and thus deliberately oblivious to their employees’ hardship. Strikes and picket lines themselves rely on the idea of the occupation of space, be it of the public space or the employer’s private property. This means that a shared experience of the workplace creates a higher consciousness of the needs within that workplace.
In traditional postindustrial workplaces, such as the factory or the office, convergence occurs naturally, as the geographic distance between workers is minimal. Trade union organization did not merely emerge from dire economic circumstances or a shared class consciousness; it was aided by the physical proximity of workers, which allowed communication and deliberation. The specific geography of the Fordist workplace allowed a specific form of organization, which does not mean that this form of organization is adaptable to all places. Picket lines in front of an employer’s office, for instance, historically served to block physical access to a workplace during a strike—a strategy that serves little purpose for remote workers. But even workers within traditional industries that are more geographically spread out will tend to converge, albeit at a different scale. Herod (Reference Herod2001, 71) illustrates this with the example of port dockers of the Northern East coast of the United States who used local action to trigger nationwide bargaining. Once more, it was this shared experience among distanced but similar workplaces that brought about the need for collective action.
Research on the platform economy has demonstrated that convergence also occurs within seemingly spaceless or unbounded workplaces. Most passersby may see it as disruption of the public space, but platform workers get together while waiting for their next gig, not to fight boredom, but to connect with others, socialize, empathize with their shared experience as migrants, as workers in an unregulated industry and, sometimes, organize (Gray Reference Gray2022; Martínez Lucio et al Reference Martínez Lucio, Howcroft, Smith, Mustchin, Marino, Adrian, Tony, Paula and Sarah2022; Morales Muñoz and Dinegro Martinez Reference Morales Muñoz and Martinez2022; Tassinari and Maccarrone Reference Tassinari and Maccarrone2020). This is even more necessary considering that platform work is designed to physically isolate workers. The employer is an immaterial app, the co-workers are dispersed and the clients constantly change. And yet it is the keen understanding of their spatial context that allows gig workers to converge and organize. They gather around key spots of the city, close to restaurants and busy commercial sectors. Riders in the United Kingdom and Canada used the streets both as their workplace and as a site of protest to claim better working conditions. With their knowledge of peak hours (time) and key food spots (place), Sheffield riders for JustEat conducted targeted strikes for months after the company hiring them as freelance workers reduced the base rates for journeys (Pidd Reference Pidd2022). This knowledge of the spatiality of app-based delivery work allowed the organizers of the strike to palliate the difficulties in organizing a dispersed, vulnerable, often migrant workforce. Using similar knowledge of the time and place of work, Foodora deliverers in Toronto shared information with their colleagues about unionization efforts at street intersections while waiting for the light to turn green (Gray Reference Gray2022, 51). In Peru and Chile, it was observed that “workers develop forms of embryonic solidarity facilitated by mutual recognition in waiting outside shops and restaurants, characterized by exchanging information and mutual support to solve the challenges posed by algorithmic management” (Morales Muñoz and Dinegro Martinez Reference Morales Muñoz and Martinez2022, 302).
It seems therefore that convergence is a shared strategy to reinforce workers’ agency collectively. For precarious workers, a concrete understanding of workplace dynamics and occupation of space is essential to become visible. As Martinez Lucio et al suggest, this reimagining of spaces of organization is directly attributable to the disruptions of labour relations that occur in the platform economy through bogus self-employment contracts (Martínez Lucio et al Reference Martínez Lucio, Howcroft, Smith, Mustchin, Marino, Adrian, Tony, Paula and Sarah2022, 131). The contractual design creates a legal vacuum that is open for workers to reoccupy (Wells et al Reference Wells, Attoh and Cullen2021, 315). The fact that the gigs depend on geographic offer and demand helps in that regard (Gray Reference Gray2022, 44; Vandaele Reference Vandaele, Haidar and Keune2021, 213), but, ultimately, convergence and occupation of space act as a counterweight to the contemporary tendency within capitalist societies to dematerialize labour relationships. Convergence is a way of responding to labour law’s inertia, by creating sufficient external pressure to, hopefully, trigger movement, in the same way as workers in the mid-twentieth century converged in space to push for the adoption of institutionally recognized labour rights.
Conclusion: Learning and building from the margins
This essay sought to explore the conceptual and methodological contributions of a spatial understanding of labour law. The geographic dimensions of labour law are fundamental questions to explore in the context of profound changes to the workplace brought by successive disruptive events such as globalization, the proliferation of global supply chains and health crises such as pandemics and global warming. I have tried to illustrate how labour law voluntarily ignores place in its inception because its project is to universalize a certain workplace and thus control rights within that space while maintaining other workplaces in the dark. Labour law implicitly acknowledges location in the very concept of a workplace, but what laws do is they present workplaces as spatial fixes in labour markets rather than understanding space/place creation as a constant process informed by lived experience. The divide between labour laws and the spaces within which they operate should be addressed directly, even more so in a post-pandemic context that has displaced work out of offices, thus reinforcing the dematerialization of labour relations.
I have covered broad issues in the lines above, with the objective of bringing attention to the spatiality of labour law and envisaging a research agenda for the future, including questions about notions of scale within transnational labour law, the geography of racial discrimination in employment, the impact of remote work on workers’ organization and the subversive use of technology to curb the artificial distance created by new employment models. Ultimately, it is fundamental to anchor these reflections within concrete workplaces to see how workers in the margins can reappropriate them. It is thus a call for extensive place-based research on the existence and functioning of the law of the workplace by using case studies that give a space for lived experiences of marginalized workers. As Herod (Reference Herod2001, 38) notes, “[t]he scale at which researchers examine an issue can fundamentally shape the conclusions they draw.” I suggest that understanding the workplace as a space in which the law is constantly made, (re)shaped and challenged can provide an opportunity for both flexibility and interaction with universal principles.Footnote 12 Workers in the margins of the law actively use space and place to organize, notably through convergence, and this is a call to broaden the sight of legal actors outside of the recognized places of labour. This includes trade unions, which are also used to a confined space of action, limited to the traditional workplace.Footnote 13 Looking at the law in the margins also requires careful engagement with the physical and spatial experience of gendered and racialized workers, who are distributed in space based on their ability to generate capital. A spatial understanding of labour law, in this context, seeks to challenge the control of space in capitalist societies by refocusing the discussion on workers as social agents rather than “human capital” (Herod Reference Herod2001, 70).
From a basic standpoint, labour geographies of law allow us to better grasp the contingent nature of labour regulation and, consequently, to better approach reform. It is not the aim of this essay to provide such recommendations for reform, but rather to warn against a universalistic notion of the workplace—or, better said, the universalization of a specific workplace—that automatically has the effect of marginalizing those who literally do not fit in this place. If this were a call for reform, then it would be paradigmatic in nature because, for laws to embrace space, they must embrace change and adaptation to different environments—they must recognize that space is never fixed in practice. This means not only changing the models that law recognizes, but also their very philosophical foundations, which currently over-rely on abstract and static concepts (Blackett Reference Blackett2019, 36).
By saying that spaces are shaped by the people who inhabit them, I invite embracing subjectivities in law. If inertia is the lack of an ability to adapt to changing workplaces, then a solution to this problem would be to adopt rules that allow such adaptability, such as by adopting a more open-ended language that provides space for actors in labour relations to reflect their direct spatial reality. If labour laws can recognize the process of convergence within workplaces and the diversity of territories of work, then legal practitioners will be able to better assess power dynamics within the workplace, but also give greater visibility to workers generally.
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