22nd International Conference of Europeanists
Sciences Po Paris, France
July 8-10, 2015
Annick Masselot
Reframing the EU concept of worker: Can sex-workers be workers?
Abstract
When applying European Union (EU) law, the concept of worker is an EU concept that can only be
defined by the Court of Justice to assess EU rights (Case 53/81 Levin; Case 66/85 Lawrie-Blum;
Case 196/87 Steyman). The Court of Justice has established in 1982 that sex-workers can be
workers (Case 115 and 116/81 Adoui and Cournaille) for the purpose of free movement. Thus,
where sex-work is decriminalised or regulated, sex-work can be considered to be a normal
economic activity.
However, in some circumstances sex-work cannot be considered “normal” work. For instance
conditions for receiving welfare benefits might include applying for available jobs but could jobseekers be required to apply for an available sex-work position? Are there situations where
standard employment law should not/cannot apply to sex-work (or indeed should but does not)?
Are there circumstances where existing employment law needs to be adapted to serve the specific
circumstances of sex-workers? For instance, some health and safety regulations might need to be
adapted to reflect the health needs of these workers or the risk for violence.
This paper investigates employment law in various jurisdictions including the Netherlands, Sweden
and New Zealand, to map out standards and conditions of employment that can be transferred
from “normal” work to sex-work and areas where sex-workers need different terms and
conditions of employment or special protective measures.
Outline
This paper investigates the conditions under which sex workers can do their work as “normal”
workers in regulated or decriminalised jurisdictions, including the Netherlands, Germany, New
South Wales in Australia and New Zealand.
• The Prostitution Reform Act (PRA) in June 2003 legalized commercial sex work in New
Zealand.
• New South Wales has effectively decriminalised prostitution since 1995. Sex work laws can
be found in the Summary Offences Act 1988, the Restricted Premises Act 1943, and the
Environmental Planning and Assessment Act 1979.
• The Netherlands (data collection not yet completed)
• Germany (data collection not yet completed)
The paper is concerned with employment issues but is also contemplating broader issues than
strictly employment law.
The idea is to map out standards and conditions of employment that can be transferred from
“normal” work to sex-work and areas where sex-workers need different terms and conditions of
employment or special protective measures.
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All the jurisdictions chosen are either regulating sex work or are decriminalised jurisdictions.
• Legalised or regulated jurisdictions recognise that legalising prostitution is necessary for
social stability, but see restriction as essential for public order and health. The Netherlands,
Germany, the USA state of Nevada, and many Australian states (Victoria, Queensland, ACT
and Northern Territory).
• Under decriminalised jurisdiction, there is no prostitution specific criminality associated
the industry. Decriminalised systems emphasis the human rights and working conditions of
individual sex workers over that of social order and public health. Only in New Zealand and
New South Wales (Australia)
Sex-work in decriminalised or regulated is considered to be a “normal” economic activity.
Standard law applies to sex-workers sometimes with adaptions.
Are there needs to further adapt the standard provisions to better serve the need of sex-workers?
 How does the law work?
 Does it work? / Does it not work?
 Access to real justice?
Utilisation of the concept of “capacity to work” – What are the enablers / barriers to work?
The paper stays away from questions of morality.
Method: doctrinal for start. Looking at case law and other forms of litigation.
The areas which will be analysed can be represented in the following table:
Areas of Law
Enabler/barriers
Contract
Contractual capacity: age
Employment
Employers’ authority to define work
Work related injury cover
Occupational pension
H&S
Adequate and safe work conditions –
STI
Social welfare
Access to social insurance/security benefits
Immigration status
Citizen / Working visa
Tax
Ability to declare and pay tax
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Employment law
The Acts extends the shield of employment law coverage to sex workers
NZ - Section 17 PRA: sex workers can refuse to provide commercial sexual services, regardless of
any contractual or employment agreement. This is unique in an employment context – It allows
workers to refuse to fulfill an essential element of their job.
Note: Sex work is defined as while the sex worker is with a client, and it is unclear if it covers the
time when at the place of work but not actually working.
NSW - Sex industry workers are protected by all the laws concerning: wages; annual holidays; long
service leave; unfair dismissal and workers compensation.
• NSW Industrial Relations laws give workers the right to take court action to recover lost
wages.
• Workers are either employees or contractors
Capacity to work
• Legal age of sex-worker is 18
NZ: S. 20-24 of PRA prohibit the use in prostitution of persons under 18
NSW: Child prostitution offences contained in Crime Act 1900 (Crimes (Child Prostitution)
Amendment Act 1988)
• The Acts criminalises assisting, contracting and receiving earnings from persons under 18
in relation to commercial sexual service.
• Underage sex worker is considered to be the victim of a crime, not an offender. In NSW
under age person is a child.
 Antonio Salvatore v R [2009] NSWCCA 104
• Client can be under-aged. Legal age of consent for sexual activity in NZ and NSW is 16.
Client can be under-aged but under 18 cannot enter sex services premises or ‘brothels’
• The prohibitions in NZ are strict liability offences.
 R v Prendeville and Campbell DC Wellington 0855975/05, September 2005
Not absolute liabilities
•
Question: Should we lower the age?
Possibly not: this restriction is in line with other restrictions linked to alcohol sell / or
working in a premises where alcohol is sold. Other law consider 18 as an appropriate age
for majority: voting rights
Health and Safety
The general terms of H&S apply:
 The PRA aims to promote the welfare, health and occupational safety of sexworkers. Health and Safety in Employment Act 1992 covers sex workers
 Regular workplace consultation with employees to revise risks and hazards, to be
followed by providing and maintenance of equipment for safe workplace.
E.g. adequate rest breaks for workers, screening clients on admission of premises, and panic
buttons.
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•
NZ: S 8 Obligations of the operator of business: Onus on employers to meet minimum
requirements to promote safer sex practices. NZ: reversal of the burden of proof. Employer
is responsible but very little inspections + no right for the inspector to enter premises if not
invited.
• NSW(Very detailed): a lot of specific H&S obligations
E.g.: Specific lighting standard (“320 lux lighting level be used (Australian Standards – AS/NZ
1680.2.5:1997)”) for examining clients are STI free; Material and on-going education on safe sex
practices must be provided
• Workplace Injury Management and Workers Compensation Act 1998 requires insurance
policy taken by owners, employers keep wages record for 7 years
• Employer’s Insurance to compensate wages when worker is injured
Conclusion
• Gap between the law and practices
• Impact of distrust, social stigma and stereotyping
• Assumption that sex workers are regular workers
• Lack of adequate H&S and labour inspections
There is no established regime to ensure that the brothel operators are promoting the welfare and
occupational safety of managed sex workers in NZ. Education in NSW
• Requirement of legal knowledge / education
Importance of Union. The NZPC in NZ and the Scarlett Alliance (Australian Sex Workers
Association) + Sex Workers Outreach Program (SWOP NSW) facilitate the application of the law on
the ground by providing education, advocacy, business advice, training etc.
What could be done for brothels licence owner:
Could be given information or pamphlets at the time of the receipt of the certificate and teach
them about health and safety responsibilities as an operator, the general employment legislation
rights and responsibilities, a sample employment contract, bylaws for the area, tax compliance,
how to exit the industry, human resources about exiting the industry if they want to, and further
information and support contacts.
NZPC maintains relations with most brothels, but has no responsibility or authority to check an
operator's certification. If a brothel operator does not wish sex workers in their establishment to
have contact with NZPC, he or she may refuse entry to outreach workers.
Negotiating working conditions and responding to unfair management practices are traditionally
matters for workers' unions. Although not strictly a workers' union, the NZPC currently fulfils an
advocacy role for sex workers.
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