Governments can do more to help underpaid gig workers

By Tony Poland, LegalMatters Staff • More “express regulation” is necessary to protect the basic rights of poorly paid gig workers, says Toronto employment lawyer Jeffrey M. Andrew.

Andrew, partner with Cavalluzzo LLP, says it’s not necessarily a matter of introducing new labour laws but finding ways to enforce what is already on the books.

“The law is robust enough to work it all out, but the resilience of companies involved who continue to challenge these regulations can delay change,” he tells LegalMattersCanada.ca. “It would be good for people in the gig economy if the government stepped in to provide more direction. That is the most effective way forward but governments, for whatever reason, seem to be slow on the uptake. Hopefully, that changes.”

Gig work can involve freelancers, contractors or part-time or temporary employees. In a changing economy, more and more people are turning to gig work, according to one report.

Poorly paid

Food delivery services have helped fuel that rise in the number of those employees, who are often poorly paid and receive no benefits.

On Feb. 25, Gig Workers United with the support of the Canadian Union of Postal Workers launched an awareness campaign on behalf of those in the industry, calling for action by employers and legislators.

“We have to stand up for ourselves – the streets don’t look out for us, the apps don’t look out for us, so we’re looking out for each other and collectively calling out a bad business model,” says Narada Kiondo, one of the courier spokespersons. “The way it is just can’t continue – if the gig economy is going to work for our society then it can’t be based on squeezing delivery workers and restaurants for profit, and dodging our labour standards. And we’re going to persist, and we’ll win because our bodies and our livelihoods are on the line.”

Andrew says the rapid emergence of third-party food delivery platforms has played a part in employment rights falling through the cracks.

“These platforms sort of stormed in and said, ‘This is a new model. It’s digital. We don’t have a lot of face time with workers. It’s all electronic and we are just providing a service like a middleman,’” he says. “They’ve just basically rolled out the concept in the last decade without regard to labour laws.”

Andrew says there has been “quite a huge uptick from those who want the convenience of the service and perhaps don’t think so much about what the costs are” to the workers.

‘Enormous fee’

“The restaurants are paying an enormous fee for the privilege of having their food delivered and the service providers are not getting that fee. They are collecting much more modest wages,” he says. “So arguably it’s not particularly good for the restaurant industry and it’s poorly regulated for the workers.“

In the food delivery industry, the worker must often provide the mode of transport, equipment and pay for their own insurance.

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A customer orders food from an app that is controlled by the digital platform and that information is relayed to the delivery person.

“In Canada, the concept is known as a dependent contractor, which has been around for decades,” says Andrew. “The corporation or whoever is making this work available drafts the agreements and the worker doesn’t get a chance to negotiate the terms. It’s just accept or reject.”

He points to discrepancies in the way other industries are regulated that illustrate the need for change when it comes to gig workers.

Heavily regulated

“Toronto is a great example. Cab drivers are fairly heavily regulated by the municipality. But then the doors were pretty much opened for ride-sharing programs that do not bear the same expenses and regulations,” Andrew says. “That seems unreasonable.”

For the gig worker, the fight for justice can be daunting. Last year, an UberEats driver took his case to the Supreme Court of Canada, which found an arbitration clause in his contract was invalid because it forced him to seek a resolution in the Netherlands. The ruling meant a proposed $400-million class-action lawsuit to force Uber to recognize its drivers as employees instead of independent contractors could proceed.

“It can take a long time to get your case all the way to the Supreme Court,” says Andrew, whose firm was involved in the matter at one point.

Also last year, the Ontario Labour Relations Board ruled Foodora couriers were dependent contractors, clearing the way for potential unionization. However, a short time later the company closed its Canadian operation.

Encouraging news

Andrew says there has been some encouraging news, however, citing a decision from the United Kingdom’s top court that ruled a group of former Uber drivers were entitled to minimum wage and benefits. 

“This ruling will fundamentally reorder the gig economy and bring an end to rife exploitation of workers by means of algorithmic and contract trickery,” James Farrar, one of the former drivers who led the case, was quoted in The Wall Street Journal.

While Andrew acknowledges the popularity of food delivery services, he says consumers should be aware of the cost of convenience and the toll on those frontline workers providing it.

“You have to ask yourself, at what price and is it a reasonable price to pay,” he says.

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