Bill 88 can do more to help gig workers

Bill 88, with its Digital Platform Worker’s Rights Act, is a step forward for Ontario gig workers. But does it do enough to clarify the relationship between app-based workers and digital platforms? And does it protect digital platforms that want to go further than the bill by, say, offering benefits to these workers?

No, on both counts. The legislature can still fix these shortcomings.

Uber’s new, innovative relationship with UFCW Canada offers a guide. Those entities are advocating for laws requiring platforms to extend benefits to drivers and delivery people.

Ontario’s Minister of Labour says Uber and other platforms can bring these benefits on their own to gig workers. However, voluntarily offering benefits could become the very grounds used to reclassify the workers as employees, not independent contractors. Accordingly, digital platforms stay away from offering benefits for fear that this could impact their relationship with workers unless the right laws are in place.

Canada’s Supreme Court has a test for whether a worker is an employee or an independent contractor, which analyzes the degree of control over the worker; who provides the tools the worker uses; and how entrepreneurial the worker is (i.e. how much the worker is responsible for their profit and expenses). These factors help determine if the worker is working for themselves, or for someone else.

Benefits are traditionally the domain of true employers; for example, homeowners don’t offer pensions to their plumbers. Consequently, a platform creating a worker-benefit fund would be used as evidence that the worker’s business is actually the platform’s business, and that the worker is now its employee.

Bill 88 guarantees an ongoing minimum wage for app-based workers. But this reduces the worker’s entrepreneurship, because the platform is ensuring their earnings. If platforms simply offered a minimum wage on their own, this increases the risk that the worker suddenly becomes an employee.

Here’s another of many examples of this catch-22. Some cities make ride-share drivers use snow tires in winter. A digital platform might want to pay for those tires as a competitive advantage or to promote safety and compliance. But that platform would be providing a “tool of the trade,” a hallmark of employment.

Governments should be taking steps to give digital platforms the ability, even the incentive, to enhance the working conditions of this ever-growing segment of our economy. The simplest way is to enact laws confirming app-based workers can keep the flexibility that is unique to this kind of work while enjoying certain standard benefits and protections.

This analysis helps explain why unhelpful laws mean digital platforms may resist taking steps that benefit app-based workers — which everyone, including the platforms, agrees is good.

Our legislature can fix this Catch-22. It happened in Washington, where lawmakers granted benefits and protections yet drivers will continue as contractors. Ontario’s own task force on this topic recommends something similar. Clarity and certainty are good for business, and are good for these workers.