The government of Canada wants to gain a better understanding of the realities of today’s workers in federally regulated industries, especially those engaged in the so-called “gig economy” as well as Canadians’ digital work-life balance. The Canadian Bar Association’s Labour and Employment Law Section is favourable to amending the Canada Labour Code to clarify the status of gig workers but wants the government to delay consultations on the right to disconnect until after the pandemic.
In its submission the Section recommends amending the Code “to offer greater clarity and certainty on the status of gig workers.” Although there is no clear definition of gig worker, we generally understand the term to mean someone who perform tasks through apps or platforms that pay for each task completed. Think Uber drivers, Instacart delivery persons or someone who offers home repair services through a platform such as TaskRabbit, as examples that would come under provincial jurisdiction.
Gig workers “do not have the certainty of a long-term employment contract,” the Section says. “They usually do not have a predictable work schedule or a predictable income.” They are also not independent the way traditional businesspeople are since they depend on apps or platforms to gain work.
Knowing which category of workers they belong to makes a difference, since “classifying gig workers as dependent rather than independent contractors may mean that they have the right to unionize and employment standards protections,” the Section notes.
In its current form the Code includes dependent contractors in its definition of employees but is narrower than some provincial statutes. “The Canada Labour Code should offer greater clarity and certainty on gig workers’ status. Workers need to be aware of the available protections and rights at the time of entering work and employers need to know their obligations and options at the time of establishing and offering work,” the Section says.
The right to disconnect
Recognizing that technology has blurred the traditional lines between being “at work” and “at home,” the federal government is engaged in consultations to better understand the realities of workers in federally regulated industries. It wants to know how often workers have trouble balancing work and personal life, and whether they have difficulties disconnecting from work when they’re supposed to be off the clock.
The CBA Section appreciates the desire of the federal government to protect the wellbeing of workers, but believes the consultation on the right to disconnect should be delayed until the pandemic is over.
Many people are working from home now, where that balance can be harder to achieve even for those who are not also caring for preschoolers or supervising children doing their remote learning from the kitchen table. These are, the Section notes, unprecedented times and finding ways to disconnect is no doubt harder than it normally would be.
“Consulting on this issue now will likely lead to skewed data as the comments and feedback will relate to the current pandemic work situation rather than the usual work experience,” the Section writes. “Implementing changes that reflect a pandemic consultation period could lead to unintended consequences. Even after the pandemic ends, it will take time for workplaces to find their ‘new normal.’ We believe the consultation process should be postponed until that new normal has emerged.”