Why Bill 88 falls short of supporting gig workers

As Ontario trudges toward a provincial election, the government has introduced several proposals to reform gig work, a highly precarious sector of the labour market. Receiving considerable fanfare, Bill 88, the Working for Workers Act, 2022, passed first reading on March 3 and was referred to the Standing Committee on Social Policy. While Bill 88 contains several proposals, this analysis examines the implications for gig workers who service some of the largest delivery and ridesharing apps, as well as the broad political implications of the government’s plan. Ultimately, the proposals fall far short of what is needed to convincingly demonstrate that the province is working for gig workers. However, that failure has also opened a window of opportunity for the working class.

Understanding the context in which the reforms are being proposed is important. Gig workers are viewed as independent contractors and consequently, they do not have access to rights granted to workers classified as employees in Ontario, such as a minimum wage and other guidelines under the Employment Standards Act. The Ontario government acknowledges that as many as one in every five Canadians works in the gig economy. A 2017 report by the Canadian Centre for Policy Alternatives found gig work to be “one of the most precarious labour markets” in the Toronto area. That study portrayed a gig economy that is highly racialized, staffed mostly by workers younger than 45 who have some post-secondary education, and consists of many parents. Statistics Canada data that examined gig work from 2005-2016 revealed the median net gig income in 2016 was just $4,303. That report also found the share of gig work to be higher among women than men, and more widespread among immigrants.

Schedule 1 of Bill 88, the Digital Platform Workers’ Rights Act, proposes several reforms for gig workers. These include the introduction of a minimum wage, the right to information about how employment algorithms work and how payment is calculated, written notice about termination, the requirement that disputes be settled in Ontario, and some protections for gig workers to assert their rights. The issue of how gig workers are classified also remains relevant. The proposals are one component of a broader agenda to strengthen the economy so that every worker can earn “a good living and provide for their families,” Premier Doug Ford said. Importantly, the province admits there would be no change for gig workers in terms of whether or not they are covered by other provincial labour laws.

Gig workers and some legal experts greeted the proposed legislation with skepticism during a recent panel discussion on TVO’s The Agenda. “I think the right direction would be for them to consider us employees,” said Iván Ostos, lead steward at Gig Workers United and a courier for Uber Eats. “There is no reason that gig work should not be part of the Employment Standards Act.” Notably, the minimum wage would apply only during what gig companies call “engaged time,” lawyer Joshua Mandryk told the panel. Laura K. Miller, the head of public policy and communications for Uber Canada, described the government’s move as “a bit of a head scratcher.” Miller pointed to recommendations made by the Ontario Workforce Recovery Advisory Committee and an agreement Uber reached with the United Food and Commercial Workers Union (UFCW). Miller noted that while the UFCW-Uber agreement covers issues such as wages, termination pay, and workers’ rights, the provincial government could go further with its proposals. Among the recommendations made by the workforce advisory committee was that a new category of “dependant contractor” be created in between the legal classification of “employee” and the “independent contractor” classification under which gig workers currently fall. Gig Workers United has condemned that idea, saying it would “enshrine worker precarity into law.” And while the UFCW-Uber deal is not a collective agreement, the fact the company has agreed to allow the union to represent drivers in discipline and termination litigation indicates that Uber “is basically giving up on the argument that it doesn’t employ the drivers,” York University Associate Professor David Doorey has written.

The reforms proposed by the government fail to address the root of the gig economy’s precarity. While claiming to extend a minimum wage to gig workers, proposed reforms would restrict any wage to “each work assignment performed by a worker.” This is akin to paying a cashier only for the time spent scanning items for a customer. Gig workers already bear the burden of providing and maintaining the tools of their trade (cars, bikes, etc.), which may require a significant investment of time and money. As well, the government’s refusal to grant gig workers employee status reinforces highly problematic assumptions upon which the gig economy is founded. Key among these assumptions is that the customer receiving the delivery of food or the passenger being transported are the only subjects worthy of consideration. But the workers employed in the gig economy are not merely passive vessels with a lack of purpose beyond the circulation of commodities and the ferrying of other people. These workers deserve the same protections and labour rights that are afforded other workers. Gig workers should not live to work. Rather, they must be allowed to work in order to live. And, while proposals to make algorithms more transparent, to permit dispute resolution in Ontario, and to provide basic written notice about termination all sound like good progress, it is fair to ask why the government has waited until just weeks before a provincial election to introduce them. Disturbingly, the proposals appear to further normalize second-tier status for many workers in Ontario. This is arguably evidence of class conflict from above. Based on this, it is hard to imagine that the government’s proposals will substantially improve the lives of gig workers.

A more effective and honest “working for workers act” would end any ambiguity about the employee status of gig workers and ensure their protection under the full force of the Employment Standards Act. Mammoth gig companies can and should shoulder more responsibility in a sector from which they are taking profits. The current government seems to be banking on the idea that it can float inadequate legislation dressed up in misleading rhetoric in an effort to gain electoral support. But the government’s flawed proposals also present Ontario’s entire working class with an opportunity to demonstrate solidarity with gig workers. Cross-sectoral labour opposition to the proposals as they are presently being considered would send a strong message to the current government—and any political party aiming to rule this province—that all workers are entitled to decent employment standards.