Canadian Protections for Gig Workers Are Falling Flat
British Columbia is touting a bill that will protect gig workers from the worst depredations of the sector. However, in a familiar trend of industries outsmarting employment standards in the country, the bill is poised to fall short of its lofty promises.
A rider for Fantuan Delivery, an online food-delivery platform, rides an electric scooter along a street on September 5, 2020 in Burnaby, British Columbia, Canada. September 5, 2020. (Andrew Chin / Getty Images)
The government of British Columbia has announced its intention to introduce legislation to protect gig workers in the province. Key to this legislation is the formal recognition of gig workers as employees, a designation that entails specific minimum employment standards and inclusion under workers’ compensation provisions.
This surpasses Ontario’s enacted but not yet implemented gig worker protection law, which aimed to extend the provincial minimum wage to gig workers. It also sought to provide gig workers with information about pay calculation and required platforms to provide reasons in cases of worker deactivation.
The BC legislation not only establishes minimum employment standards and workers’ compensation for gig workers but also mandates a minimum wage set at 120 percent of the province’s rate, currently CA$16.75. It introduces transparency regarding pay and destinations, provides compensation for vehicle expenses, and requires platforms to implement a deactivation appeal process, enabling deactivated workers to present their own evidence.
The rationale for a higher minimum wage, according to the province, is that time spent waiting for the next assignment is not compensated. Waiting between gigs is a contentious issue within the gig economy. Despite the platforms’ claims of flexibility, a major selling point, workers spend a lot of time planning not only when they will be activated to accept assignments but what kind of assignments to accept. Experienced gig workers strategically reject certain orders to remain close to restaurants or major public areas so they can maximize how many assignments they can complete within their allotted time.
Due to factors like fluctuating demand for meals, groceries, and transportation, it is very likely that the higher minimum wage will not properly compensate for the time spent waiting for assignments. As a result, paychecks will likely align with the standard minimum wage based on hours spent activated.
The Limits to the BC Changes for Gig Workers
The most conspicuous absence from the proposed legislation is the lack of paid sick days. This is especially puzzling given that the province’s New Democratic Party (NDP) government made a big deal about giving employees five paid sick days beginning in 2022 because of the pandemic. And combined with the NDP’s enactment of card-check union certification it seemed like workers were making advances under the NDP. But the reality is that the gig worker legislation, while providing some benefits, has real limits.
While gig workers in BC are considered employees in a sense, should the law pass, they will be second-class employees, because none of the provisions in the province’s Employment Standards Act (ESA) will apply to them. Under BC’s ESA, employees are entitled to not only five paid sick days, but also overtime pay, statutory holiday pay, and annual vacation. None of these are covered by the proposed legislation.
There is also no clarity on the tax implications for the platforms. Unlike their drivers, platforms like Uber and Lyft do not pay into Employment Insurance (EI) or the Canada Pension Plan (CPP). In 2029, according to estimates by Canadians for Tax Fairness, Uber and Lyft avoided paying CA$81 million into EI and CPP. Even with Canada’s recent Digital Service Tax, the expected yield from Uber and Lyft is only CA$60 million. This not only fails to make up for payroll taxes — it does nothing to rectify the platforms’ low corporate taxes. Uber uses shell companies in places like Bermuda and the Netherlands to use accounting tricks to claim losses to avoid paying corporate taxes in Canada. And in a further avoidance of responsibility, Uber and Lyft leave it to their drivers to remit sales tax to the government.
The Problem of “Employment Standards” in Canada
That the platforms were able to get carve-outs in the ESA is hardly surprising. As long as employment standards have existed in Canadian law, certain industries, often made up of small businesses, have successfully obtained carve-outs. These exemptions are typically justified by arguing that business viability is jeopardized by regulations that these businesses claim to be too onerous.
The origins of employment standards legislation in Canada help explain why it is often insufficient — especially when it comes to regulating contemporary precarious work. After World War I, these standards were initially conceived to safeguard young women workers engaged in temporary, menial jobs. The assumption was that these women would eventually leave such jobs to marry and start families. It was assumed that laws around collective bargaining would cover the financial security of the male bread winner.
For this reason, Judy Fudge, one of Canada’s foremost experts on labor law, refers to employment standards legislation as “labor law’s little sister” to stress its gendered origins and why it has many inadequacies.
These inadequacies would render employment standards insufficient for the restructuring of labor markets and the workplace under neoliberalism. With shifts in Canada’s demographics, precarious work would also take on an increasingly racialized dimension as well, especially in regards to the gig economy.
Given this context, treating gig workers as second class is just repeating the same old mistakes of Canadian labor law but with a twenty-first century twist.
The Next Step
Effectively regulating the gig economy in Canada remains challenging. Ontario’s legislation, inferior to BC’s, is fraught with its own set of problems. The United Food and Commercial Workers International Union (UFCW) did reach an agreement with Uber to provide some representation for drivers, but that initiative is seriously compromised, and does not give those drivers a democratic say in the union.
However, there are some encouraging developments. Gig Workers United continues to organize despite setbacks like Foodora pulling out of Canada after a successful union drive. And around the world, there have been many protests and organizing efforts by gig workers. It is crucial for the labor movement to reach out and learn beyond borders.
The evolution of labor law emerged in response to the self-activity of workers resisting their situation of market dependence. This impetus pushed governments to pass laws recognizing unions, improving working conditions, protecting workers from harassment, and establishing provisions for vacations. Adequate protection for gig workers will only materialize when workers actively push governments to provide it. Given that the gig economy is the spear tip for normalizing the informal economy, this should be a paramount goal that labor movements worldwide prioritize going forward.