Weighing the benefits of the plan to help gig workers

By Tony Poland, LegalMatters Staff • Uber’s proposal to tweak labour laws in order to give app-based gig workers benefits could be viewed as an attempt to distance the company from being defined as an employer, says Toronto employment lawyer Jeffrey M. Andrew.

The plan has been criticized as a ploy to avoid treating the workers as traditional employees entitled to minimum employment standards under Ontario’s Employment Standards Act (ESA).

“Uber sees themselves as a service provider, as a facilitator meaning they bring the customers together, the driver and the passenger for example,” says Andrew, a partner with Cavalluzzo LLP. “They argue that they’re just a middle person but those arguments haven’t worked very well.”

“With this proposal, it would be my guess that they are trying to adapt to the employment landscape in a way that better fits the way they see their role, instead of how the law would currently describe it.”

Plan for app-based workers proposed

Earlier this month Uber introduced its Flexible Work+: A Modern Plan for App-Based Workers. The multi-national company says the concept would assist app-based drivers and delivery people in receiving new benefits and protections.

As part of the proposal Uber is asking Canadian provinces to provide:

• Self-directed benefits based on hours worked, allowing drivers and delivery people to withdraw cash for the benefits they want to fund. Items like dental or vision care, RRSPs, or tuition and education expenses. 
• Enhanced worker protections through additional training and tools to help keep workers safe and protected while driving and delivering.

Andrew MacDonald, Uber’s senior vice-president of global rides and platform, tells The Canadian Press that in their view “our current employment system is outdated, unfair and somewhat inflexible and some workers get benefits and protections and others don’t.” 

“We feel that COVID has exposed some of those fundamental flaws and think this is a good opportunity for change,” he says.

Uber says if changes to current laws are adopted, they could offer drivers and couriers access to funds that they can use for health-care benefits, tuition and educational expenses or retirement planning.

However, United Food and Commercial Workers (UFCW) Canada, the union organizing Uber drivers and Uber Eats couriers across the country, calls the proposal “a dangerous proposition.”

“This cynical ploy about so-called benefits shows how desperate Uber is to maintain control over its employees and avoid any meaningful conversations in regard to their employees’ rights to collective bargaining,” says Paul Meinema, the national president of UFCW Canada.

Gig workers viewed as dependant contractors

Andrew says under the ESA for example, gig workers are viewed as dependent contractors – employees.

“I am not persuaded that employment laws are outdated as Uber officials claim,” Andrew tells LegalMattersCanada.ca.

He says he is also not convinced that merely giving gig workers access to a pool of money to pay for benefits “is as good as it might sound to some.”

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“My concern with such a model is that workers would be responsible for securing benefits in their own name,” Andrew says. “The reality is, an individual will have a harder and more expensive time finding the kinds of benefits that employers can secure for a group.”

He says an employer can buy different packages with better pricing and benefits because they’re bringing a larger group of people together.

Not clear how plan responds to needs

“Whereas if you personally wanted to purchase those sorts of benefits assuming they’re available, they are going to cost more and they might not be quite as good,” Andrew says. “If it’s not a group plan and Uber is not paying much or anything for it, then how valuable is that really? It’s not clear to me that this proposal responds to the needs of the employees in the way that other employers typically provide benefits.”

However, he says that by offering a group plan Uber may be concerned that it effectively will be seen as acknowledging it is an employer rather than filling a facilitator role in the way it claims. However, that is a debate Uber and other gig employers continue to lose.

Andrew says it is doubtful labour laws are going to amended anytime soon.

“I realistically do not believe we’re going to see any movement in the near future,” he says. “I would be surprised, given the many things they have got on their plate right now, that the provincial government would see changing the law as a priority.”

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