The BC Government’s Struggle to Respond to the Gig Work World

Dec. 14. 2022

Uber and the rest have changed the game, and solutions are complex — and slow. Part one of two.

Workers, unions and experts say B.C.’s government is dragging its feet on pledges to improve conditions for drivers and food courier workers eking out a living in the digital gig economy.

“Many workers in this field have no idea what their rights are,” said Walker, who was named Parliamentary Secretary of the New Economy in 2020. “Even if they have some protections, that traditional relationship between employer and employee doesn’t exist when your boss is an algorithm.”

Workers in the sector are considered contractors under B.C. labour laws and are not covered by Employment Standards Act protections, minimum wage laws or allowed to unionize.

The one thing most agree on is that government is late to the party.

“The government has really failed to say to Uber ‘you’re in our territory and you need to work with our system,’” said James, a Vancouver Uber driver who asked his real name not be published out of fear of reprisal from the company.

“They have the gig economy, but they haven’t made it so that it’s fair.”

Driving for Uber

James hoped Uber would be a ride to better things. He made the switch to the ride-hailing app in 2021 after years working for a Vancouver taxi company.

He liked being able to set his own hours.

But there are risks. He doesn’t know how much money he’ll make from a ride — that’s based on Uber’s algorithims and changes based on the number of drivers and demand. He isn’t paid for the time he’s not driving. And if he gets a particularly bad review or a customer complains about him, Uber can deactivate his account and stop him working, sometimes for weeks.

Walker says he’s heard similar issues from drivers on other apps.

The BC NDP pledged in the 2020 election campaign to create a government-backed benefits plan and voluntary pension fund for workers who aren’t currently covered.

But Walker said government is now investigating the “feasibility” of those plans, suggesting that other existing benefits like the Canada Pension Plan could better meet the same need.

So far, there’s no timeline on any changes.

Jim Stanford, a labour economist and the director of the Centre for Future Work, believes the slow action in B.C. and across Canada is because of the political and economic power of these corporations. He said they have pushed government to spend taxpayers’ money on benefit plans rather than require the companies to pay up.

Politicians “didn’t want to look like old farts who didn’t understand how these things work,” Stanford said.

He supports calls from the BC Federation of Labour, which issued a report in September arguing a better test should be introduced to determine if workers are contractors or employees.

Currently, the determination is made on factors like “how much direction and control the worker is subject to, whether the worker operates their own business and has their own clients, whether the worker has a chance of profit or a risk of loss, whether the work they are doing is integral to the business and whether there is an ongoing relationship,” according to a government fact sheet.

The federation wants a shift in onus. Rather than workers having to prove they are employees, businesses would now have to prove they aren’t.

A test proposed by the federal NDP in 2021, for example, would stipulate a worker is always an employee unless they are completely free from the company, do work outside the business’ normal operations or are independently established in that trade.

Stanford believes that test would determine most gig workers are employees.

“There’s no other business that can say, ‘this person is only working part time, therefore I don’t have to pay minimum wage,’” he said.

But the companies have pushed back on efforts to designate drivers as employees — and the union representing Uber drivers in Canada has signalled it is no longer pushing for that, either.

In a response to The Tyee, a spokesperson for Lyft pointed out a company survey where 100 per cent of respondents said they were pursuing other work or education in addition to their work for the app. Lyft would not say exactly how many drivers they have in B.C. and how many people responded to the survey.

“As B.C. officials move through this process, we are encouraging them to listen to drivers. Eighty-eight per cent of B.C. drivers on Lyft say a flexible schedule is very important to them and 56 per cent said they would stop driving if they lost their independence,” the response from the company said.

In 2020, Local 1518 of the United Food and Commercial Workers Union (UCFW) brought an application to the BC Labour Relations Board arguing Lyft and Uber drivers are in fact employees. The application was dismissed by the board as premature, since workers had not attempted to form a union.

Pablo Godoy, the western regional director for the union’s national branch, now says they are advocating for regulations guaranteeing drivers 120 per cent of the minimum wage in each province, as well as rules allowing them to achieve union certification.

But he avoided questions on whether he supports classifying those drivers as employees, arguing the decision is up to government. He also would not say why UFCW had changed its position after the 2020 application.

“UFCW Canada has not taken any position around classification since that application. What we’re simply saying is that no government has been able to take any action or move on this item,” Godoy said.

“What we’re saying is, neither classification as it exists today would be responsive to the realities.”

Earlier this year, the Globe and Mail reported UFCW asked Ontario’s government to not classify drivers in that province as employees.

Godoy does support a government-backed benefits plan.

Wendy Cukier, the director of Toronto Metropolitan University’s Diversity Institute, has advocated for a “portable” benefits plan that recognizes many people in this economy work for multiple companies.

But Cukier says what is missing from B.C.’s proposals is a role for the employer.

“It’s not clear what role the employers are going to have to play in terms of contributing because they are, in some ways, the principal beneficiaries of it,” Cukier said.

Stanhope argued the proposed plans were a “public relations” effort.

“Those voluntary, personalized top-up plans are absolutely useless,” Stanhope said. “They will have no impact whatsoever on the final compensation of platform workers. Essentially, it’s taking money out of one pocket, putting it in another and calling it a benefits plan.”

Barry, another Vancouver Uber driver who asked not to be named, began working for the company just before the COVID-19 pandemic after leaving a more conventional job. But he recently stopped, he said, because he can’t earn enough to cover his costs.

Barry said many drivers have to figure out “formulas” for maximizing their profits, like only accepting rides for a certain number of people or driving late at night when payments are higher, which carries its own hazards.

“Everyone who drives at night seems to have at least one passenger throw up in their car,” Barry said. He says between gas, insurance and other payments, the only way he could make it work is if he takes a risk and puts down a deposit on an electric vehicle.

“You could spend half an hour and make $5,” Barry said.

Cukier said the range of workers in this new economic space is vast. Some, she said, may be picking up the odd job or making income on the side on top of studies or another job.

But she said another segment of “gig workers” are there out of necessity.

“You have people who are pushed into gig work because they don’t have opportunities for other employment,” Cukier said. “That’s part of the reason you see the overrepresentation of newcomers and especially racialized people… where for all the reasons we know about they’ve been excluded from the traditional labour market. And this is the only way they can survive.”

Walker said he would not pre-suppose the results of the consultations.

“What we have heard from labour groups as well as the platforms is that the flexibility in the space that workers do enjoy, that is something that is paramount, especially from workers,” Walker said.

Stanhope said the choices are not binary.

“There’s lots of ways you could provide the basic protection of normal employment… without saying ‘and now you’re going to have to work rigid schedule when I tell you to work.’ That isn’t the choice,” Stanhope said.

Barry and James said they both want to continue being able to set their own hours. They said their key complaints were about compensation and transparency around how exactly their pay is determined.

NDP MLA Walker said he believes government can find a way to balance workers’ concerns and the companies’ demands — even if the path between the two isn’t yet clear.

[Top photo: Thousands of people work in the gig economy in BC without basic protections like minimum wage and WorkSafeBC coverage if they get hurt on the job. Photo via Shutterstock.]