One of the prominent employment law themes in 2023 has been the increased interest and attention to the working conditions of individuals engaged in digital platform-based work or "gig workers". This is perhaps unsurprising given that the share of Canadian workers who perform gig economy work has nearly doubled over the past 15 years, growing from 5.5% in 2005 to roughly 10% in 2020.1 According to another recent study, the number of employees engaged in the gig economy has increased to a whopping 8.7 million (or 28%) Canadian adults in 2023.2
As more Canadians engage in the gig economy, the regulation of this type of work becomes increasingly crucial, highlighting the growing importance of establishing effective regulatory measures. Public consultations to this end are well underway and frameworks for the regulation of gig work are starting to appear in some Canadian jurisdictions.
Federal Jurisdiction
In March 2023, Federal Minister of Labour released the report "What We Heard: Developing Greater Labour Protections for Gig Workers"3(the "Federal Report"). The Federal Report summarizes the feedback that Employment and Social Development Canada gathered from their consultations with various Canadian stakeholders, including academics, gig work experts, labour groups, Indigenous organizations, and the Canadian public, between February 2021 to December 2022, to better understand gig workers' experiences in federally regulated sectors.
The Federal Report describes "gig workers" as individuals who enter more casual work arrangements such as short-term contracts with firms or individuals to complete specific and often one-off tasks. Gig work is often facilitated by new technologies such as digital labour platforms.
The Federal Report summarized what the public and stakeholders reported as the key challenges faced by gig workers in Canada, including:
- misclassification;
- lower pay;
- risk of late or non-payment;
- unpredictable schedules;
- risk of unsafe working conditions; and
- limited access to dispute resolution.
The Federal Report identified a need for careful legislative intervention into the area of gig work and noted that many labour representatives pressed the Federal Government to show leadership in developing protections for gig workers to promote similar protections in other jurisdictions. At the same time, the Federal Report acknowledges that significant statistical information and data gaps still exist and contribute to an imprecise understanding of the breadth of the gig economy and the people who engage in it.
The Ministry of Labour signalled that it intended to implement some of the findings from the Federal Report, with changes to the Canada Labour Code concerning gig workers. It will be important for employers to keep monitoring the legislative landscape for such eventual changes.
British Columbia
In August 2023, British Columbia's ("BC") Ministry of Labour published its own discussion paper "Proposing Employment Standards and Other Protections for App-Based Ride-Hail and Food-Delivery Workers in British Columbia". 4
By November 20, 2023, the BC government had introduced amendments5to the British Columbia Employment Standards Act and Workers Compensation Act aimed at delivering "better working conditions with new protections, including basic employment standards"6 for app-based ride hailing and food-delivery gig workers in BC. Ten days later, on November 30, 2023, the legislation received Royal Assent.
This new legislation largely sets the table for future regulation-making power which would define and establish minimum standards for "online platform workers", but no such regulations have yet been passed.
Saskatchewan
In August 2023, the Government of Saskatchewan announced that it was undertaking a comprehensive review of The Saskatchewan Employment Act and its accompanying regulations. Along with a public request for feedback, the Ministry of Labour Relations and Workplace Safety published a legislative review discussion paper which identified key areas for consideration.7
In setting out key areas for consideration, the Government of Saskatchewan found that there was a growing trend of reliance on contract workers and growth in the gig economy, whereby workers are typically treated as self-employed. While no amending legislation has been introduced yet, it would not be a surprise to see Saskatchewan follow suit with BC given these references.
Ontario
In Ontario, the passage of the Working for Workers Act, 2022 in April 2022 created the Digital Platform Workers' Rights Act, 2022 (the "Digital Platform Workers Rights Act").8 The purpose of the Digital Platform Workers Rights Act was to establish rights for workers who perform digital platform work, including:
- the right to information;
- the right to minimum wage;
- the right to amounts earned by the worker and to tips and other gratuities; and
- the right to resolve digital platform work-related disputes in Ontario.
The Digital Platform Workers Rights Act specifically defined "digital platform work" as the provision of for payment ride share, delivery, or courier services (with the ability to prescribe other services) through the use of a digital platform.9
While public opinion strongly supported a guaranteed minimum level of income for gig workers,10 some stakeholders, including unions, have criticized the Digital Platform Workers Rights Act as not going far enough.11
To date, the Digital Platform Workers Rights Act has still not been proclaimed into force.
International Labour Organization
Legislating the employment of gig-workers is not only gaining attention in Canada, but also internationally. The International Labour Organization ("ILO"), a United Nations agency specializing in developing labour standards and policies, describes the emergence of the gig or platform economy as "one of the most important transformations in the world of work."12
In November 2023, the ILO published "Digital Employment Diagnostic Guidelines," 13 which serve as a comprehensive framework to assess, analyze, and understand the multifaceted dimensions of digital employment.
The ILO has proposed that a first discussion for standard-setting on decent work in the platform economy take place at its conference in 2025,14 whereby worker, employer and government representatives would bargain an international standard which governments can adopt.
What's Next?
It is clear is that the gig economy is growing and legislators across Canada have taken notice. The Federal Government pledged a commitment to making changes to the Canada Labour Code and to pursuing other non-legislative initiatives to ensure greater labour protections for workers in the gig economy while Ontario and BC have already passed legislation that establishes the groundwork for future regulation. It is likely that other jurisdictions in Canada will follow suit and that the initiatives of some jurisdictions will influence the rest of the country.
Footnotes
1. See What We Heard: Developing Greater Labour Protections for Gig Workers, pg. 1 Figure 1.
2. See Newswire article by H&R Block Canada Inc. titled, "Nearly half (44%) of Canadian gig workers are willing to risk not declaring income in the battle against cost-of-living increases; 51% say their primary employer is unaware of their side hustle."
3. See the Ministry of Labour's summary of the Report: What we heard: Developing greater labour protections for gig workers.
5. Bill 48, Labour Statutes Amendment Act, 2023.
6. See the BC Gov News Release: Fairness coming for gig workers.
7. See the Discussion Paper: Review of the Employment Standards Provisions of The Saskatchewan Employment Act and Associated Regulations.
8. Read more about the Working for Workers Act, 2022 and the introduction of the Digital Platform Workers' Rights Act, 2022 here:Ontario's Working for Workers Act, 2022 Now in Force.
9. Digital Platform Workers' Rights Act, 2022, s. 1.
10. See News Release: Ontario Establishing General Minimum Wage for Digital Platform Workers.
11. See Does Bill 88 Work for App-Based Delivery Workers?
12. See the ILO on Digital labour platforms.
13. Digital Employment Diagnostic Guidelines.
14. See the Agenda of the 113th Session of the International Labour Conference.
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