Mar. 1, 2022 "Ontario to establish basic gig worker rights": Today I found this article by Holly McKenzie-Sutter on BNN Bloomberg news:
Ontario has introduced legislation that would establish employment standards for gig workers, including minimum wage and regular paydays, but critics fear the plan will leave digital app workers with fewer rights than those in other jobs.
The Digital Platform Workers' Rights Act will be separate from the Employment Standards Act.
It proposes to cover ride hailing and delivery drivers, as well as others who are offered work assignments through digital platforms.
"We've seen huge shifts around traditional labour markets, and as we build a resilient economy, our government must keep pace with those changes," Premier Doug Ford said at a Toronto announcement where he and Labour Minister Monte McNaughton announced the details.
The gig economy is a growing employment sector, Ford said, adding that the province is speaking with those workers "and understanding how we can create the environment to help them thrive."
In an interview before the announcement, McNaughton said the legislation will establish foundational rights for gig workers in a Canadian first, though he expects other provinces will follow Ontario's lead.
"No gig worker should make less than minimum wage," he said.
"No gig worker should be fired without notice or explanation. And no one, period, should have to travel out of Canada to resolve a workplace dispute or sign a contract they don't understand. That's the essence of the changes we're making to fix these injustices that are happening."
Proposed rights within the bill, which was introduced Monday, include the guarantee that workers will get
written information detailing how platforms' algorithms work,
how pay is calculated,
how operators’ performance rating systems work
and how operators collect tips.
It would also establish
a recurring pay period and a $15 minimum wage for active hours that's tied to the provincial minimum wage,
while barring operators from withholding tips
and prohibiting reprisal against workers for exercising their rights under the act.
The proposed legislation would also require operators to give workers notice of and rationale for their removal from a platform if they are removed for more than 24 hours, and it would see digital platform work disputes resolved in Ontario.
The bill won’t address the employment status of app-based gig workers – who are largely classified as contractors and not employees – but the province says it will give them employment rights.
Deena Ladd, executive director of the Toronto-based Workers' Action Centre, said the proposed law is a "substandard set of rights," as it doesn't cover employment standards like overtime and holiday pay or emergency leave.
"What they're proposing in this bill is actually really terrible for workers," she said in a telephone interview. "They are absolutely creating a category of workers that have less rights than regular workers."
Ladd said the proposed law could impact labour standards for other jobs.
"Once you start saying that there is a group of workers that don't have the same rights as everybody else, then what is to stop other employers from saying, 'Well, why should I have to pay overtime?
Why should I have to pay for public holiday pay and vacation pay ... if these employers like Uber Canada, like SkipTheDishes and all of these other big digital platform companies, if they don't have to pay for this?" she said.
Opposition leaders also found the measures lacking.
NDP Leader Andrea Horwath said her party would be looking at the finer details but raised concerns over some apparent gaps in the minimum wage allowance, which wouldn't apply to time between assignments like rides or deliveries.
"Every worker deserves to be protected by the labour laws in Ontario and there should be no exceptions," she said.
Liberal Leader Steven Del Duca called the announcement "an election ploy."
"We see the changes announced today as the bare minimum the government can do to help those in the gig economy and look forward to sharing a real plan with the release of our platform," he said in a written statement.
Jim Stanford, economist and director of the Centre for Future Work in Vancouver, argued the Ontario government's plan wouldn't improve the income situation for gig workers.
Stanford pointed out on Twitter that couriers and delivery drivers spend much of their time on the job waiting for assignments – time that won’t count for minimum wage – meaning their wages will work out to less than $15 per hour.
He also highlighted that workers for such apps pay their own expenses on their vehicles, phone and other work equipment.
"Make no mistake: This approach to regulating gig work will do absolutely nothing for gig workers," he wrote.
Establishing basic rights for gig workers was one of 21 recommendations put forward last year by a committee of experts tasked by the government with looking at labour market disruptions from the pandemic.
In its final report, the Ontario Workforce Recovery Advisory Committee advised the province to establish basic rights for gig workers
like minimum wage,
benefits,
pay stubs,
regular wages
and notice of termination with severance pay.
Earlier this month, McNaughton said the Progressive Conservative government would look into developing a "portable benefits" plan that isn't tied to employers, like for gig workers who don't have health or dental coverage.
An expert panel tasked with coming up with ideas for running that program is due to make recommendations this summer after the June election.
Ontario to establish basic gig worker rights - BNN Bloomberg
Mar. 11, 2022 "The gig economy is here to stay and Ontario is ahead of the curve in recognizing it": Today I found this article by Howard Levitt and Kathryn Marshall in the Financial Post:
Monte McNaughton is everywhere these days. Ontario’s Minister of Labour, Training and Skills Development spent the early frantic days of the pandemic introducing emergency legislation to address COVID-19 and protect workers and employers. Barely catching his breath, he has since thrown himself into crafting and launching new laws to spearhead the future of work in the province.
Last week, he took a transformational step in that direction when he tabled the Digital Platform Worker’s Rights Act, which gives gig workers in the digital-platform space foundational employment rights.
The Liberals talked a lot about gig workers as did the NDP, but it was the Tories who ultimately did something about it. (Full disclosure: Kathryn Marshall is a member of the Ontario Workforce Recovery Advisory Committee, which recommended protections and rights for gig workers.)
The pandemic has highlighted how the nature of work is rapidly evolving away from traditional employment to a more flexible, freelance model.
Long gone are the days when it was common to stay put in one job for 30 years and retire with a generous pension. (Long gone are the days that there are even generous pensions other than for civil servants). People move around a lot more now, and many have numerous jobs at any given time.
With the explosion of remote work and advances in technology that allow people to work from just about anywhere, the gig economy has flourished.
Gig work — meaning work that takes place on-demand or on a freelance basis, usually through a digital platform — is now ubiquitous.
Uber is of course the most well-known of the digital platforms, but there are many other lower-profile companies working in this space, too.
As part of McNaughton’s new law, gig workers will be granted rights such as a $15 minimum wage for active hours and transparency as to how their pay is calculated and how the algorithms work.
The bill also prohibits companies from reprising against workers for exercising their rights, a similar provision to that contained in the Employment Standards Act.
Finally, workers must be allowed to keep their tips,
platforms will have to give workers advance notice if they are booting them from the platform
and disputes must be resolved in Ontario instead of faraway places such as the Netherlands (a common provision in the lengthy and unreadable contracts that gig workers are often required to sign).
McNaughton also recently announced he will be exploring the introduction of a portable benefits plan for workers that isn’t tied to the employer. This will benefit gig workers who lack benefits.
These may all seem pretty basic, but the reality is that no other province or territory has done this yet.
The gig economy has largely been an unregulated vacuum, creating uncertainty for not only the workers, but for the companies trying to operate in Canada.
The vacuum isn’t easy to fill. It requires creativity and thinking outside of the box.
Our employment laws are based on a two-dimensional antiquated model of work: you are either a full-fledged employee in the traditional sense, entitled to all the rights that come with this status,
or you are an independent contractor, and thus not recognized under employment law.
Of course, there are many workers who are erroneously called independent contractors when they are truly employees, and those cases have been the subject of much litigation.
But outside of the employee/independent contractor dichotomy, there are many workers who occupy a large space in-between. Those working in the gig economy are frequently not employees, but they are not true independent contractors either.
While they have a high degree of flexibility, there is also a strong element of dependency: they rely on the digital platforms and those platforms have a significant level of control over the workers.
In Ontario, the courts have long recognized a third category of worker called a dependent contractor and these workers have been granted reasonable notice period damages in wrongful dismissal cases.
While there has been some criticism that the Digital Platform Worker’s Rights Act doesn’t go far enough, the aim of the Act is to provide a floor, not a ceiling.
It is a first step and certainly not the end. Gig work is unique and can’t be slotted neatly into an employee or independent contractor model and the government has rightly created a new framework that reflects this class of worker.
Time will tell how the gig economy evolves, but it is clearly here to stay. Its needs had to be addressed and now they have been — in Ontario, at least.
Got a question about employment law during COVID-19? Write to Howard at info@levittllp.com.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Kathryn Marshall is a partner at Levitt Sheikh.
The Ontario proposed Digital Platform Workers’ Rights Act seeks to bridge the distinction between contracts of services (employees) and contracts for services (independent contractors), notably in the gig economy.
Employees are legally protected in some ways that other workers are not. Employers must withhold and remit income tax, Employment Insurance (EI), and Canada Pension Plan (CPP) contributions for employees.
An employment relationship at common law is traditionally featured by the employer’s right to control and direct the employee as how the work is to be performed. The courts have developed some tests to examine if an employment relationship exists, non-exhaustive: control test, ownership of tools, assumption of profit and loss, and integration test. The existing scheme appears to be inadequate in respect of the gig sector.
Uber drivers in the United Kingdom (UK) appealed their case (2015-2021) to the UK Supreme Court (UKSC). The drivers claimed to be employed workers rather than self-employed. As employees, the drivers would be entitled to minimum wage and other employment standards. The UKSC ruled that the drivers were Uber’s employees who were in a position of subordination to Uber, plus several other elements.
The article hits on an interesting position we find ourselves. It states "Our employment laws are based on a two-dimensional antiquated model of work: you are either a full-fledged employee in the traditional sense, entitled to all the rights that come with this status, or you are an independent contractor, and thus not recognized under employment law."
This is in fact a result of CRA and their need to have people fall into these two categories. So if the Provinces and the Fed's don't get aligned people are going to find themselves in a grey area when it comes to our beloved CRA.
Dec. 7, 2022 My opinion: I like the Digital Platform Workers' Rights Act. This is a good start for all these employees in Ontario. Hopefully, there will be these kind of laws in other provinces.
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