On November 3, Canadians will no doubt be transfixed by the historical American presidential election, but gig workers in Canada and those working to organize them will also be paying attention to a voter referendum taking place in California.
Proposition 22 asks California voters to decide whether app-based gig workers such as those who work for Uber and Lyft deserve to be classified as employees or as independent contractors, effectively voting on whether those workers have the right to unionize.
Now, against the drama unfolding in California, rabble.ca takes a look at the state of the gig economy in Canada.
Part one looks at the ways app-based gig workers are currently organizing here. Part two looks to the future of the gig economy in Canada, and asks whether legislation similar to that in California or in parts of Europe could work here, too, and if it would be the most effective solution for workers who feel their rights are being violated.
While California has offered something of a case study for legislating the gig economy, gig workers and those working to organize them in Canada have taken a different approach.
Getting app-based gig workers redesignated as employees so they have protected minimum wages, the right to organize, and the protections of the Employment Standards Act is currently taking place in Canada through a series of legal avenues. Unions and workers themselves are taking on the arduous task of organizing one group of gig workers at a time.
2020 has not been kind to many, but it has provided Canada’s gig workers with a few promising legal decisions, both at the Ontario Labour Board and at the Supreme Court of Canada. Toronto’s Uber Black drivers are hopeful the momentum will continue.
Foodsters United: Three steps forward, one step back
In February, Foodora workers won their case at the Ontario Labour Board, after it ruled they had been incorrectly classified by Foodora as independent contractors, but were in fact dependent contractors. The redesignation meant employee status for the couriers, winning them the right to form a union.
Before they could count the ballots, Foodora pulled out of Canada completely, in a move which CUPW alleged was union busting, but Foodora said was due to bankruptcy.
Nonetheless, Foodora workers successfully certified their union on June 12, and in August, workers won a $3.46-million settlement from Foodora in light of the company’s abrupt departure.
The Foodora case set an example in organizing app-based gig workers, a group of workers who share no physical workplace or meeting spot and are often quite isolated in the work they do. Foodora organizing in this instance was Toronto-based. The Ontario Labour Board decision only applied to Ontario workers, of course, but the settlement was distributed to eligible Foodora workers across the country.
Foodsters United is still in operation, however, and says it will continue to advocate for food delivery couriers to have fair compensation for dangerous work, sick leave and benefits, and a harassment-free workplace.
In the wake of Foodora’s departure, Foodsters are looking for better alternatives to working for app-based billion dollar companies. Some of the Foodsters, including union organizer Ivan Ostos, have previously told rabble.ca they are working towards creating a food delivery co-operative in Toronto, which if successful, could change the food delivery game.
Uber v Heller: One worker win, corporate resistance to follow
Uber v Heller is a proposed $400-million class action suit following similar logic to that of the Foodora instance: that Uber drivers should be legally recognized as employees as opposed to independent contractors.
Without employee status, workers do not have access to the rights and protections offered under the Employment Standards Act, including the right to organize. The class action alleges that currently, Uber drivers are subject to many violations of the ESA, and that Uber has intentionally misclassified them.
A preliminary ruling from the Supreme Court of Canada earlier this year has paved the way for the class action to proceed. The case before the SCC pertained to Uber’s arbitration system, which previously required workers to take their claims to the Netherlands where they would be subject to Dutch law, and pay a $14,500 filing fee to do so.
The ruling, delivered on June 26, deemed Uber’s existing arbitration clause “unconscionable” for making it so practically and financially prohibitive for workers to file claims against the company. The ruling invalidated the arbitration clause, allowing for the proposed class action to proceed at the Ontario Superior Court.
However, at the end of August, Uber issued a new contract to its drivers via its app with an updated arbitration provision requiring drivers to agree to the new conditions or be unable to access the app. The new arbitration clause bars includes a “class action waiver,” prohibiting drivers from participating in any class action against the company.
Drivers could opt out of this new clause if they emailed Uber specific information within 30 days of their agreement to the new contract. David Doorey, a professor of work law and industrial relations at York University, pointed out that Uber could expect most drivers to simply click “I agree,” because “really, who reads these standard form digital contracts?”
“I personally believe that our governments should be intervening with legislation to prohibit waivers that purport to block workers from pursuing class action lawsuits to enforce basic labour standards,” he wrote on his forum, Canadian Law of Work.
Uber Black and UFCW
The United Food and Commercial Workers are also aiming for gig worker reclassification, this time of Toronto-based Uber Black drivers. Similar to Foodora, their case is being heard by the Ontario Labour Board.
The second labour board hearing on this case was on June 8, where the issue at hand was defining which drivers were considered active workers with Uber and could therefore be included in the bargaining unit.
UFCW believed it had adequate driver support for its unionization drive, while Uber was arguing that the scope of active drivers UFCW proposed was too narrow, and needed to include more workers.
Pablo Godoy, the UFCW representative present at that hearing, said that one of the main challenges in organizing gig workers is the lack of data available to unions and/or workers themselves about the broader workforce.
Godoy said that UFCW was focused on unionizing Uber Black drivers because they were a more knowable demographic compared to Uber X drivers.
To be an Uber Black driver is to also be a limo driver, and each limo driver in Toronto must have a limo license registered with the city. Godoy said this allowed the organizers to know the exact number of drivers in the city, information that otherwise they would have to rely on Uber to provide.
“Because we know that number, we can work backwards and we can actually do traditional organizing and talk to drivers and find out who is and who isn’t an Uber driver, in addition to being a limo driver,” he said.
The labour board has yet to deliver its decision on this matter, but when it does, the case can proceed and subsequent issues will be argued, eventually culminating in a decision over whether these workers are employees or independent contractors.
Uber’s counsel said in the June hearing that it sees no link in this case to the Foodora decision. However, Brandon McCutchen, one of the lawyers representing UFCW and the Uber Black drivers, told rabble.ca UFCW sees the case as part and parcel of CUPW’s strategy with Foodora.
“We see this as part of a broader labour movement strategy to bring more and more attention to the gig economy and start getting those workers the protections that organized labour can provide. Not only organized labour, but actually ruling that they’re covered by statutes like the Employment Standards Act,” he said.
Chelsea Nash is rabble’s labour beat reporter for 2020. To contact her with story leads, email chelsea[at]rabble.ca.
Image: Tess Siksay
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