Written by David Doorey, York University
In his Report Fairness at Work: Federal Labour Standards for the 21st Century, Professor Harry Arthurs proposed that the federal government add a new category of worker called an “autonomous worker” to the federal labour standards legislation (Canada Labour Code, Part III). Autonomous workers were like “dependent contractors”, who were already covered by the collective bargaining law at the federal level, but not by labour standards legislation. Arthurs’ “autonomous worker’ category would probably capture many of what we today call ‘gig’ workers, depending on how it was defined.
If the goal is to bring dependent contractors under labour standards legislation, then an obvious solution is to simply add “dependent contractors” to the definition section of the labour standards legislation. That is precisely what the recent report of the Changing Workplaces Review recommended for Ontario law. The OLRB recently ruled that Foodora “gig” workers were dependent contractors and therefore entitled to unionize under the Ontario Labour Relations Act. Therefore it follows that if the Ontario Employment Standards Act also extended to “dependent contractors”, then the Foodora drivers would be covered by that legislation too. It is possible that many gig workers are already covered by the ESA because of the broad, purposive approach that the OLRB takes in interpreting the scope of “employment” under that statute. This issue is raised directly in the ongoing Heller v. Uber class action lawsuit. However, any doubt would have been removed had the Ontario government done what the Changing Workplaces Review recommended and explicitly covered dependent contractors under the ESA.
Arthurs was responsible for the “dependent contractor” category coming to Canadian labour law in the first place. However, in Fairness at Work, he did not recommend extending “dependent contractors” to the labour standards legislation. Instead, he recommended the new category of “autonomous worker” for labour standards legislation, a category that would extend some but not all legal rights and responsibilities applicable to “employees” in Canada. Essentially, Arthurs recommended the development of a special legal regime for “autonomous workers”:
RECOMMENDATION 4.2 A new category of “autonomous worker” should be established under Part III. “Autonomous workers” should be defined by Ministerial regulation as including persons who perform services comparable to those provided by employees and under similar conditions, but whose contractual arrangements with the employer distinguish them from “employees.”
To the extent necessary to protect their basic right to decent working conditions, and to protect the interests of employees from unfair competition, “autonomous workers” should be eligible for limited coverage under Part III.Harry Arthurs, Fairness at Work
Arthurs noted that there were many workers who would be “dependent contractors” who did not want to be fully included as “employees” under employment law. For example, they wanted to be considered independent contractors for tax purposes because the ability to claim expenses often left them better off than if they earned slightly higher wages as “employees”. They also wanted to be able to work for multiple customers, whereas if they were “employees” their “employer” could possibly restrict who else they work for. Therefore, Arthurs proposed a new category of worker and challenged the government to think carefully about what legal rights should be protected within this category, keeping in mind that the purpose of labour standards is the pursuit of “decency” and fair working conditions.
There is considerable opposition within the labour law community to this idea of creating a separate category of worker in labour standards legislation to capture “gig” workers. The most obvious concern is that the category will be used to water down labour rights, such as has occurred in California following the successful campaign by platform transportation companies to adopt Proposition 22. Prop 22 removes the platform companies from coverage under the state’s labor standards legislation (which used the very broad ABC Test for determining who is an employee) and requires the companies to provide a suite of extremely watered down labor rights. This “third category” approach has rightly attracted strong opposition in the US.
On the other hand, there is already a highly patch-worked system of labour standards in Canada. Insofar as it can be said that there is a “standard model” of employment standards, that model is chock full of special exemptions and rules that are applied differently to different workers and occupations. For example, taxi drivers who own their own cabs are covered by collective bargaining legislation as “employees”, but are probably treated as independent businesses under tax law and their coverage under workers’ compensation law and employment standards legislation depends on whether they are ruled to be “employees”, but even if they are “employees” they are still not entitled to overtime pay or statutory holidays because taxi cab drivers are excluded from those entitlements and their “employers” probably have not been paying workers’ compensation premiums. You get the idea. The notion that we have one labour standards model that applies to all employees is a fiction. It is more complicated than that.
The Arthurs’ “autonomous worker” category raises an interesting set of questions that I have sometimes raised as an exercise in my classes when we look at “gig” work regulation. The exercise forces you to think hard about how gig work should be regulated if (to borrow the language of Ben Sachs and Sharon Block at Harvard Law School) you could start from a “clean slate”. If you are given an empty vessel called “autonomous worker” and you are ordered to then fill the vessel with legal rights and responsibilities that would apply to those workers, what content would you add?
The exercise requires you to look out your window at the world of gig work and to then do a full legal system scan across a large number of legal fields and statutory regimes. You want a legal model that is workable and sustainable and that may not provide either gig workers or the platform companies everything they want, but that is feasible and would make gig work better work while at the same time preserving those features of the gig economy that are beneficial (as you define that). What existing laws would you add to your empty vessel? What new laws would you devise?
Are there existing laws that should be modified for the gig economy? Consider the minimum wage. What if gig workers have high volume times and low volume times. In the busy periods, the gig workers easily earn more than minimum wage but in the slow times they make less. Let’s say now that a gig worker works 100 hours over 4 weeks. The minimum wage law that we add to our Autonomous Worker category could require that the driver earn at least the minimum wage over the span of a four-week period. So 100 hours at a minimum wage of $13/hour would mean the driver needs to earn at least $1300 over the four week period. If the driver has earned only $1000, then a top up of $300 is required at the end of the 4 week period.
There are other issues that you’d need to sort out for your model. For example, what is an “hour worked”? That is one of the big issues with Proposition 22: the companies want to count only “active time” when a driver is on route to get a call and driving the passenger whereas worker advocates want waiting times to count. How do you assign the waiting time if a driver is driving simultaneously for Uber and Lyft and maybe more companies? Should “non-active” time be dealt with in a special way within our new legal vessel? For example, what if it counts towards insurable hours under unemployment insurance legislation and CPP (some how) and some other purposes, but it is calculated differently for the purposes of minimum wage requirements? Should the minimum wage be lower than the standard minimum wage because the driver receives tips (like alcohol servers), or because the driver is entitled to claim expenses under tax legislation?
These are the sorts of questions the exercise requires you to think about.
My autonomous worker vessel would certainly include some version of unfair dismissal law that requires the platform companies to have just cause to remove a worker from the platform, a model like the federal unfair dismissal law for example. I would ban mandatory arbitration clauses (as I would do in all protective labour standards statutes). I would also want some innovative rules on collective bargaining rights. Not just coverage under existing collective bargaining legislation–gig workers are probably already covered by that legislation, but I doubt that model of collective bargaining will ever work very well for gig workers. I’d want something different alongside the Wagner Model, something like my old “graduated freedom of association” model that would protect a right of Autonomous Workers to engage in concerted activities for reasons related to working conditions, and protections from reprisals for doing so, among other rules about collective rights. For instance, you would need to ensure that Autonomous Workers acting collectively to improve working conditions are exempted from anti-trust laws as are employees.
In Canada, we would need the federal and provincial governments to cooperate in designing the Autonomous Worker vessel, because we would almost certainly want to include rules about tax law, the Canada Pension Plan, and unemployment insurance in our legal vessel and these are all federal matters. Could the federal telecommunications power play a role in our story? What about federal immigration law?
Maybe you end up with a chart that looks something like my quickly thrown together chart at the bottom of this post. Or maybe your vessel looks a lot different. Or maybe we should drop this entire concept of the “autonomous worker” category and insist that “gig” workers simply be swept under existing employment standards legislation, by extending the definition of “dependent contractor” or by introducing California’s “ABC Test” for deciding if a contractor is an “employee”. This latter position is the popular view at the moment. However, even then, you would need to sort out which special rules apply, how hours of work are calculated, who is the employer when a gig workers is sitting on the side of the road waiting for a call from any of 5 platform companies, and so forth. We can leave these questions to labour boards to sort out, or ask politicians to design targeted legal models. What is your preference?
David Doorey, “Regulating Autonomous Workers” Canadian Law of Work Forum (December 1 2020): http://lawofwork.ca/?p=13104