On Tuesday, “gig workers” who drive for platforms like Uber and Lyft in British Columbia gained the right to be paid a minimum wage for their work. Lawyers say many more provinces may follow suit.
“What it signals for us is a growing awareness that these people in this industry deserve some protections and some minimum standards,” said Paul Edwards, a Winnipeg labour and employment lawyer who is representing workers in a class-action lawsuit against the food delivery company SkipTheDishes.
Last month, workers in that case won an important victory when the Supreme Court of Canada declined to hear SkipTheDishes’s appeal to stop the lawsuit from proceeding. The lawsuit, which has yet to be certified, claims SkipTheDishes’s workers should be considered employees, which would entitle them to minimum wage and other protections.
B.C.’s legislative changes, this class-action lawsuit, and similar class actions across the country suggest an increased willingness to protect gig economy workers.
900,000 to 9 million
B.C.’s new rules, which took effect Sept. 3, require workers for delivery apps and ride-hailing services to be paid $20.88 an hour for the time they spend responding to orders.
The current minimum wage in B.C. is $17.40.
The 20 per cent premium paid to gig workers is due to these workers not being compensated for time spent waiting between delivery assignments, a government press release says.
Delivery or ride-hailing companies must additionally compensate some of gig workers’ travel costs.
Delivery workers are to be paid 35 cents for every kilometre they drive while completing orders. Drivers for ride-hailing apps, like Uber or Lyft, must be paid 45 cents a kilometre.
Drivers for ride-hailing apps receive higher compensation for travel because they are legally required to use vehicles that are not more than 10 years old. Delivery workers can use any age of vehicle.
Many Canadian workers are part of the so-called “gig economy.” Statistics Canada defines “gig work” as work that does not guarantee steady work, and where workers must work to get each job or project.
Gig work is often associated with work obtained through digital platforms, like digital delivery services or ride-hailing apps. But gig work can refer to all temporary work where a worker has no guarantee of a stable job and must find their own projects.
In 2023, 927,000 people in Canada worked for a digital platform, Statistics Canada data shows.
Some estimates put the number of gig workers even higher. In March, tax filing company H&R Block released a survey showing 28 per cent of Canadians — nine million people — were involved in some form of gig work. This number was up from 13 per cent in 2022.
Many gig workers’ contracts classify them as independent contractors, not employees. Independent contractors are not subject to provincial employment standards, such as minimum wage, holiday or vacation pay.
“The reality is that employees have more rights [than independent contractors] under the legislation,” said Mathias Link, a labour and employment lawyer in Toronto.
Multiple class actions
It is a matter of debate whether workers who are considered independent contractors should be classified as employees.
Employees are financially dependent on their employers for their livelihoods, says Link. “A true independent contractor really is viewed as not being reliant on the entity they contract with for their livelihood.”
Employers also control how employees do their work, says Edwards.
Digital-based companies like SkipTheDishes “program into those apps a very high level of control over what you can earn and how you have to conduct yourself as a driver to earn money,” Edwards said. Yet, people who work for these companies often struggle to be recognized as employees.
Edwards is involved in multiple class-action lawsuits across Canada in which workers for app-based companies are alleging they have been improperly classified as independent contractors.
Companies will often attempt to stop these lawsuits, says Edwards, or opt to settle workers’ concerns through arbitration.
In 2020, food delivery company Foodora exited Canada completely, months after the Ontario Labour Relations Board ruled its workers were dependent contractors. Dependent contractors are a class of worker between independent contractors and employees, and are entitled to unionize.
Lawsuits can help gig workers who are part of the lawsuit gain certain entitlements, like minimum wage. But changes to provincial employment laws have a much broader effect.
“If the law applies, it applies. Period,” Edwards said.
Other provinces are also considering granting gig workers greater legal protections. A 2023 public consultation in Saskatchewan asked for input on the definition of “employee” in that province’s employment laws.
In 2022, Ontario passed a bill of rights for workers who get work through digital platforms, such as delivery or ride-hailing apps. The bill of rights contains a right to minimum wage — but it has not been declared in force.
‘Not going away’
B.C.’s changes do not please everyone.
Businesses have raised concerns the changes will make them less competitive and lead to higher costs for consumers.
“The higher costs could lead some platforms to reduce their presence in the province, resulting in less work for gig workers and further impacting the small businesses that rely on them,” the industry group Canadian Federation of Independent Businesses said in a June statement about the changes.
B.C.’s law “creates a whole host of additional or expanded rights and obligations,” said Link, who represents employers. He says employers should expect to see similar legislation in other jurisdictions in the next few years.
“Digital platforms are not going to go away,” he said. “They’re likely going to expand.”
Gavin McGarrigle, western regional director for Unifor, Canada’s largest private sector union, says more needs to be done to protect the rights of ride-hailing and delivery app workers.
Lack of access to a union is “the real issue nibbling around the edges here,” he said. A guaranteed minimum amount of pay per day would be better than only being paid for time spent completing an order, he says.
Edwards is of the view that, as gig work grows, there needs to be greater attention paid to workers’ rights.
“It certainly is a very real part of our labour landscape in Canada that’s not changing and not going to change,” he said.
“What we’re interested in is making sure that those drivers are legally, properly, fairly, compensated.”
Leave a comment