Last week, Uber Canada launched a campaign calling for the improved treatment of its own workers.
It’s a rare thing for an employer to do, given that employers are usually the ones with the power to improve workers’ conditions.
That’s the catch. Uber claims it is not an employer, but rather, the purveyor of a tool that drivers and couriers can use to be their own employers.
Following that logic, Uber claims its workers are not employees, but instead fall under the category of independent contractors. As such, Uber is not required to pay its workers minimum wage, pay into EI or CPP, or offer workers any job security at all. Independent contractors also do not have the right to form a union.
Rather than redesignating its workers as employees — as gig workers in Canada and around the world have long been calling for — Uber Canada is instead campaigning for Canada’s provincial governments to create a new category of worker altogether.
Through its “Flexible Work+” campaign, Uber claims it is lobbying for “people who earn through app-based work [to] receive more security, protection, and transparency while maintaining their access to flexible work.”
The implication in this new campaign is that the flexibility of gig work is incompatible with an employer-employee framework.
As economist Jim Stanford pointed out in a column for rabble.ca earlier this week, it’s a false dichotomy. On-demand employment practices are not innovative or new, as Uber would have you believe. Crucially, writes Stanford, other jurisdictions have proven that gig workers can in fact receive the basic entitlements of employment — like minimum wage and sick days — while maintaining a flexible work schedule.
The key to understanding Uber’s recent blame shift off itself and onto Canada’s provincial governments is to look at how battles over how gig work is classified have been playing out in these other jurisdictions.
When Uber first announced its new so-called advocacy campaign for Canadian gig workers, a gig workers’ collective called Gig Workers United immediately drew comparisons to California’s Proposition 22, calling it “Prop 22 North.”
California at one time offered a legislative model for classifying gig workers as independent contractors through a labour law known as Assembly Bill 5 (AB5). Before AB5 could ever be implemented, though, gig companies hit back with Proposition 22: a 2020 election day referendum that when passed excluded app-based drivers and couriers from being considered employees under AB5.
The proposition passed with 59 per cent of the vote, undoubtedly thanks to the more than $200 million that gig companies put behind the campaign. (Opposing them was an effort by organized labour, which only managed to put up $16 million for a counter-campaign).
As the Washington Post reported, the messaging that Uber, Lyft, Postmates, and other app-based companies disseminated in their campaign for Proposition 22 left many voters confused as to which side was benefiting workers.
Some who voted “yes” to the proposition thought they were supporting better pay and benefits for the workers, and felt deceived when they realized they actually voted to deprive workers of these things by reinstating their independent contractor status.
Proposition 22 has all but cemented gig workers’ status in California as independent contractors, as the statute itself prevents intervention by municipal governments and by the state legislature.
This past February, the question of gig worker classification went to the U.K.’s Supreme Court, where a judge ruled in favour of Uber drivers, reclassifying them as “workers” instead of “self-employed.”
In the U.K., “worker” is a third designation of labour in addition to “employee” or “self-employed” designations. It does afford the drivers more rights and protections, including holiday pay, minimum wage (known in the U.K. as the National Living Wage), and pension contributions.
Uber drivers won the worker designation in large part because they were able to prove just how much control Uber exercises over their work and working conditions, including setting the rate of pay and establishing and enforcing a code of conduct.
The win for Uber drivers was long fought. A U.K. employment tribunal first ruled that Uber drivers were workers, not self-employed contractors, all the way back in 2016.
Uber immediately appealed that decision, with a U.K. spokesperson for Uber stating at the time that its drivers “want to be self-employed and their own boss.” It’s the same argument that pervaded the Proposition 22 campaign in California and is at the forefront of the Flexible Work+ campaign in Canada.
The fight for drivers’ rights is not yet over, though. Uber has agreed to pay drivers the minimum wage and other benefits, but the clock only starts once drivers have accepted a trip, not when they sign onto the app to start working.
In Europe, Uber is taking the same approach as it is here in Canada, calling on European lawmakers to establish protections for gig workers by implementing them for independent contractors, rather than offering those protections to its own workers.
Both the EU and Canadian campaigns advocate for further regulation of the gig economy, admitting that gig workers do not have adequate protections or wages. However, Uber is lobbying for regulation on its own terms, and is still very much committed to maintaining gig workers’ independent contractor status.
Spain, however, has taken regulation into its own hands, and will be the first EU country to establish gig workers as employees through legislation.
The legislation follows a September Supreme Court ruling that couriers working for a Barcelona-based food delivery app were misclassified as independent contractors and were in fact employees.
In addition to providing gig workers with protections, the new legislation will also allow unions to have access to the algorithms app-based companies use to dictate wages based on demand, to ensure that workers are not being underpaid.
Finally, here in Canada, couriers in Toronto working for the food delivery company Foodora successfully organized a union drive under the guidance of the Canadian Union of Postal Workers (CUPW).
To certify their union, the workers needed employee status, which they won at the Ontario Labour Board in February 2020. (Months later, before the union could come to fruition, Foodora pulled its operations out of Canada entirely.)
Even in the absence of an employer, the group that would become the Foodsters counted their ballots and certified their union with 88 per cent of workers in favour. The win was symbolic, demonstrating what gig workers — whose work is transient and disconnected from one another — were capable of. It also demonstrated that on the issue of employee status, they had a case.
Uber Black drivers in Toronto continue to organize and are fighting for a change in employment status at the Ontario Labour Board with the help of the United Food and Commercial Workers (UFCW).
Chelsea Nash is rabble’s labour beat reporter for 2020-2021. To contact her with story leads, email chelsea[at]rabble.ca.
Image credit: Robert Anasch/Unsplash