Date01 March 2021
AuthorKatsabian, Tammy

Introduction I. Time in Labour Law II. Time and the Digital Reality: The Case of ICT and Telework A. Formal Telework 1. Meaning and Scope 2. The Implications of Formal Telework for the Notion ol Working Time B. Sporadic Working Hours and Being Constandy Online for Work 1. On die Third Generation of Telework, Time Porosity, and "W-est" 2. "Hie Implications of Time Porosity for the Notion of Working Time III. Regulation of the Telework Dilemma: Between Two Ends A. The Right to Disconnect B. Avoiding Tune Calculation and Shifting to Other Forms of Payment IV. Turning to a Third Form of Regulation A. How Should We Dense Regulation in die Digital Reality? B. The Role ol die Employee Representatives C. The Proposed Model 1. Everything Counts, Everything Is Transparent 2. Estimating die Working Time a. Time Porosity 3. The Right to Have a Break: Where Do We Go from Here? Conclusion Introduction

Employment and Social Development Canada (ESDC) intends to modernize labour standards and in 2018 published a report summarizing the views heard in public consultations. (1) One of the main points made by unions and labour organizations, employers and employer organizations, academics, advocacy groups, and other experts is that the concept of working time must be updated to be applicable to the modern age. (2) The report refers specifically to the problem of work intruding on individuals' personal lives due to the new technological ability to conduct work from a distance. For example, the report cites an online survey respondent as stating, "I have seen in my own family my husband burn-out and get severely sick from working around the clock and constantly being 'on' for his project management job. I would love to see the government set a tone and limit work beyond normal working hours." (3) According to the report, 93 per cent of the survey respondents believed that employees should have a right to refuse to respond to work-related communication outside of working hours (i.e., they should have a "right to disconnect"). (4) Referring to other initiatives around the world, the Canadian government identified the issue of constant work in the modern world as a target for regulation in 2019, with the focus on the right to disconnect. (5)

Canada is clearly not alone in this challenge. Countries around the world are becoming occupied with the question of working time in the digital reality due to the technological ability to conduct work from a distance. (6) This article contributes to this discussion on working time and puts forward proposals for regulation that can be seen as giving content to the amorphous right to disconnect, while also adding additional elements that work toward an optimal solution.

To address the problem of working time in the digital reality, this article uses an interdisciplinary methodology and sheds light on the legal, sociological, and internet literature on the subject matter. It explores the apparent gap between the traditional notion of working time, as it appears in Canadian law, and the actual way in which people work today beyond the traditional framework of time and space.' The article begins by describing the increased ability to work from a distance through the use of information communication technology (ICT), which is now present in almost every household. The ability to work from a distance is referred to in the literature as "telework," "mobile work," or "ICT mobile work" (ICTM),>> which exists in two main forms: one is formal and the other is sporadic, informal, and distributed throughout the day. Both forms of telework have become more popular in recent years. The article elaborates on these two forms of telework, their frequency, and their implications for working time, rest time, and other labour rights.

The article then addresses the question of regulation. The evolution of working time, and particularly the evolution of the ability to conduct telework, has led to two general responses. Each response originates in a different field and stems from different foundations and motivations. The first response is situated in the field of law and stems from labour rights. This response includes attempts to return to the classical concept of working time and to restrict the working time schedule. This position is embodied in the right to disconnect, as mentioned in the ESDC report. The second response emanates from the field of new management and stems from notions of efficiency and flexibility. It celebrates the new technological ability to conduct work at any time and in any place. It advocates moving past the dominant role of time in labour regulation. The article demonstrates how these two opposing models provide only partial solutions to the working time dilemma and suffer from crucial deficiencies: they either ignore the dramatic changes in the digital reality and do not offer any pragmatic way to deal with these changes, or worse, they ignore the basic principles of labour rights.

With this background, this article offers several basic proposals for an alternative model of regulation to resolve the working time dilemma. The proposals are based on the same purposes underlying the right to disconnect, but also take into consideration general goals of regulation in the modern digital age, such as autonomy and flexibility, as well as the need for clear and specific rules. This article thereby proposes default rules that provide basic protection to the employee and retain the idea that employees should be compensated for their actual working time and enjoy genuine rest time during the workday. This protection is enabled through the format and logic of ICT. At the same time, the default rules will also enable the parties to negotiate and agree on the financial value of additional working hours in a way that takes into account the new possibilities of the digital age, particularly regarding flexibility and autonomy.

The article proceeds as follows: Part I addresses the role of time in Canadian labour law and elaborates on the centrality of working time in the labour field. Part II focuses on the widespread use of ICT and the global phenomenon of telework. It elaborates on the two main formats in which work can be carried out remotely and discusses the impact of telework on working time and the rights related to it. Part III presents the two opposing responses to the working time dilemma in the digital reality. After discussing the deficiencies of the current models, Part IV offers a new framework of working time regulation that takes into consideration both the purposes of labour law and the logic and structure of the digital world.

  1. Time in Labour Law

    Time is an important component of labour law. Many Canadian provinces, like legal systems elsewhere, aim to organize working time and connect it to the employee's salary and rights. Canadian provinces set an hourly minimum wage. (9) The working day is divided into time units and provides the employee concrete "eating periods" after a certain number of working hours. (10) The working day or week is usually limited to a certain number of hours, and with some exceptions, the employer cannot keep the employee working for more than the maximum permissible number of time units. (11) It is also common for employees to receive overtime payment if they exceed a certain number of time units of work per day or month. (12) The employee is entitled to rest hours free from work at the end of every working day as well as a rest day free from work every week or two weeks. (13) Lastly, the employee is entitled to sick leave, holiday leave, and vacation leave. (14) The frequency, exact scope, and length of the leave times are dependent on the employee's number of working hours and the hourly wage. (15)

    The notion of time in labour law, and of working time in particular, is considered "a social construction arising from evolving economic necessity and changes in what is perceived to be humane hours of work." (16) During the industrial revolution, the idea began to develop that working time should be distinguished from other time units of life, as did the notion of an hourly workforce. (17) The concept of working time was understood from diverse socio-economic perspectives and interests. Marx was among the first who perceived working time as a way to turn labour power into a commodity that was traded by the employee to earn a living. (18) Thompson expanded on this Marxist notion of time as a currency. He argued that in industrial capitalism, time is a tool for disciplining employees: the employer controls employees by controlling their time. Employers govern their employees' conduct during the workday and ensure that it is not "wasted" on activities other than work. (19)

    This notion of employment remains relevant today. (20) During official working time, employees and their time are considered to be subordinate to the employer's will and labour tasks. (21) Unless otherwise agreed upon, the employee is free to conduct private tasks only once the working day is over. (22)

    Today, working time regulation is considered to be "one of the most important objectives of labour law and collective bargaining" around the world. (23) Working time regulation is perceived as particularly important from the employee's perspective, as it seems to have the most direct impact on employees in the workplace and in their personal lives. (24) Research demonstrates that the organization of working time has profound effects on the physical and mental health of employees and on their well-being. (25) Overwork without clear breaks during the day and between working days can cause exhaustion, illness, and mental health issues, as well as disturbances to the employee's normal routine with family and friends. (26) Limits on the duration of work and the obligation to pay for work are also related to the employee's dignity. Employees are entitled to enjoy break time and to be fully...

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