Question Period Note: LABOUR PROTECTIONS AND THE GIG ECONOMY

Labour protections for gig workers

• As demand for gig work increases with the rise in new digital platforms, more and more Canadians are relying on jobs that do not come with the same level of job protection as other employees in the economy. The COVID-19 pandemic has exposed the vulnerability of these workers.
• Budget 2021 commits to making changes to improve labour protections for gig workers, including those who work through digital platforms.
• Governments around the world are beginning to think through these issues. Consultations were recently launched to better understand how current federal labour protections could be updated to reflect today’s workplace realities.
• Following the consultations, the Government will bring forward legislative changes to make these new, modernized protections a reality.

Employment status of gig workers
• Gig workers are generally classified by employers as independent contractors, a classification that is increasingly in dispute. On February 25, 2020, the Ontario Labour Relations Board (OLRB) held that couriers for the food delivery platform Foodora were dependent contractors of the platform and could unionize under the Labour Relations Act, 1995. This decision is the first one in which a Canadian court or labour tribunal has determined the employment status of a platform-based workforce for the purposes of federal, provincial or territorial labour legislation.

• There are other notable cases of gig workers challenging their classification as independent contractors. The Supreme Court of Canada recently held that the arbitration clause, which Uber requires its drivers to accept, is in fact unconstitutional. This ruling allows Uber drivers to continue their class action lawsuit challenging their status as independent contractors under Ontario’s Employment Standards Act. Uber Black limousine drivers in Toronto have voted to unionize under the United Food and Commercial Workers Union, however, further hearings before the OLRB are required before it can be determined whether the bargaining unit can be certified.

• On March 10, 2021, Uber proposed working with provinces to create a program for gig workers that it calls “Flexible Work+: A Modern Plan for App-Based Workers”. The aim is to create a reserve fund for its drivers in Canada which can provide certain benefits including health and dental insurance, vision care, safety training, and retirement savings plans. The plan was put forward in response to a survey Uber conducted of 23,000 drivers in Canada.

International standards and regulatory approaches

• On November 3, 2020, a majority of California voters (58%) voted in favour of Proposition 22, the App-Based Drivers as Contractors and Labor Policies Initiative. Prop 22 was a response to California Assembly Bill 5 which requires all workers be treated as employees and puts the onus on employers to prove they are true independent contractors. As a result of Prop 22, a new law has been enacted which explicitly states that app-based drivers (e.g. Uber and Lyft drivers) in California are independent contractors for the purposes of labour and unemployment insurance laws. It also requires platforms to implement certain policies and to provide drivers with some new labour protections, including ensuring a minimum level of earnings before gratuities, calculated on the basis of time worked, healthcare and insurance subsidies, accident insurance, and an appeals process if their work contracts are terminated.

• A recent ruling by the UK Supreme Court determined that Uber drivers are to be classified as “workers,” an intermediate third category of employment which provides more rights to these individuals than are held by independent contractors, but fewer than for employees. While Uber argued it operated solely as a digital intermediary to facilitate transactions between requesters and drivers, the Court disagreed based on assessing the work and labour relationship between Uber and its drivers, including considering the level of control Uber exercises, and the economic dependence of its workers on the platform. The ruling means Uber drivers now have access to certain labour protections (i.e. minimum wage, protection against unlawful deductions from wages, paid holidays, statutory minimum length of paid holidays, maximum 48-hour workweeks, and protection against unlawful discrimination). Uber has indicated it will comply with the ruling and classify ridehail drivers as "workers." However, it will only calculate hours worked based on the time drivers take to complete a trip, and exclude the time they are signed into the app waiting for a ride. Uber will not apply the change to Uber Eats food delivery workers.

• Gig workers are persons who enter into short-term contracts with firms or individuals to complete specific and often one-off tasks. They are often classified by employers or job givers as self-employed independent contractors rather than employees, and therefore have little to no access to protections afforded to employees under Canadian labour statutes.

• Gig workers account for approximately 8-10% of workers in Canada, and between 3-5% of workers in federally regulated private sectors.

• Digital platform workers are a specific subset of gig workers, who use electronic intermediaries like a smartphone application to connect with end-users who pay them through the platform to provide a service.

• The COVID-19 pandemic has exposed the vulnerability of gig workers and underscored their importance in providing essential services. While those working in essential services risk exposure to the virus, these workers often earn low wages, and if they get sick or need to care for a family member, their jobs are not protected.