Traditional labour markets have undergone major shifts over the years that extend beyond the COVID-19 era, where the provincial and federal governments must keep pace with these changes of a resilient economy. More specifically, the gig economy is a fast-growing employment sector that requires government support to thrive. On February 28, 2022, the Ontario government introduced Bill 88 - Working for Workers Act, 2022 – which aims to respond to the labour market transition and the increasing numbers of gig workers. If passed, the Act said to establish employment standards. This new approach aims to regulate gig workers and treat them more fairly. There is a current fear, however, that the provincial government’s plan will leave digital app workers with less rights. The following summary clarifies the definition of gig work and recounts the proposed legislation’s key provisions.
What is ‘Gig Work’?
Gig work consists of income-earning activities outside of standard, long-term employer-employee relationships. According to the Act, gig workers are referred to digital platform workers ‘who provide ride-share, delivery, or courier services for payment and are offered work assignments by an operator through the use of digital platforms’.
The Proposed Legislation
If passed, the Act will establish employment standards and provide certain rights through the enactment of the Digital Platform Workers’ Rights Act, 2022 (the DPWRA). Such rights include guaranteed minimum wage, the protection of tips, guaranteed pay periods and a recurring pay day, rights to information, rights to notice of removal, and dispute resolution in Ontario. Notwithstanding that the legislation will give gig workers employment rights, it will not address the employment status of app-based gig workers (who are largely classified as contractors and not employees). It also worth noting that the DPWRA will be separate from the Employment Standards Act, 2000 (the ESA).
Minimum Wage & Right to a Reoccurring Pay Period/Pay Day
The DPWRA mandates that workers who accept and perform digital platform work be entitled to the minimum wage rate payable under the ESA (currently $15.00 per hour). A digital platform operator’s compliance with this obligation is determined based on each work assignment and the DPWRA stipulates that tips and other gratuities shall not be included in determining compliance. Additionally, an operator must establish a reoccurring pay period and reoccurring pay day, where all amounts earned during each pay period must be paid no later than the pay day for that period, including tips and other gratuities the digital platform operator collected.
Tips and Other Gratuities
Under the DPWRA, an operator is prohibited from withholding, deducting, or causing a worker to return amounts earned by the worker or the worker’s tips or other gratuities, unless authorized to do so under the legislation. As noted above, any tips earned will be paid to the gig worker by the digital platform operator on the pay day for the period that said tip was earned.
Right to Information
The DPWRA requires that the operator provide the gig worker with a range of information, including (but not limited to) a description of how pay for digital platform work is calculated and whether tips or other gratuities are collected by the operator. The DPWRA also sets out that a worker’s right to information must be given to them within a certain time period.
Right to Information
The DPWRA would require operators to give workers notice of and rationale for their removal from a platform if they are removed for more than 24 hours.
Right to Resolve Disputes in Ontario
The DPWRA sets out that all digital platform work-related disputes between an operator and a worker must be resolved in Ontario.
Concerns Raised with the Proposed Legislation
While the provincial legislation may intend to regulate the industry and treat gig workers more fairly, legislative gaps have been suggested. Critics have raised concerns over some apparent gaps in the minimum wage allowance, which would not apply to time between assignments like rides or deliveries. Further, it has been suggested that employment standards for employees, such as notice of termination with severance pay and pay stubs, have not been addressed within the legislation for gig workers.
Conclusion
For organizations who facilitate digital platform work in Ontario and classify as ‘operators’ under the legislation, several new obligations will apply if the Act is passed. Despite some concerns, the legislation presents an opportunity to better protect gig workers in non-traditional working relationships by mandating a minimum set of rights. Notably, Ontario would be the first jurisdiction in Canada to introduce specific rights and protections for digital platform workers if the legislation is passed.
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