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As it stands, gig workers across Canada are independent contractors and not entitled to minimum wage, vacation pay and health benefits.Fred Lum/The Globe and Mail

Ontario’s move to legislate a $15 minimum wage for gig workers is facing mounting criticism from workers rights groups, who say that the language in the proposed bill will effectively result in them earning less than minimum wage.

The condemnation of this particular clause in Bill 88 (which the government has also termed the Working for Workers Act) comes as the bill inches closer to achieving royal assent ahead of the provincial election on June 2.

On Tuesday, RidefairTO, a coalition of organizations aiming to change the rules around ride-sharing, released a brief report demonstrating that under the new law, ride-hailing drivers for platforms such as Uber and Lyft will end up earning 52 per cent less than minimum wage on average every hour, or $7.20. They say this is because drivers will only be paid for “engaged time,” that is, the time they spend completing a passenger pick-up and drop-off, as opposed to the entire period in which they are out on the road.

“Bill 88 won’t help gig workers. Rather, it allows the government to introduce ‘engaged time’ as a legal principle to allow employers to cut away at workers wages in all sectors as soon as their work is organized by gig platforms,” said Earla Phillips, a veteran Uber driver and member of RidefairTO.

The issue of how wages are calculated for gig workers – which include not just ride-share drivers, but grocery and food delivery couriers as well – is at the heart of a heated global debate over whether these tech-platform workers should be categorized as employees and afforded protections under labour laws.

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As it stands, gig workers across Canada, a growing proportion of the labour force, are independent contractors and not entitled to minimum wage, vacation pay and health benefits. They also do not contribute to federal programs such as the Canada Pension Plan and employment insurance.

In recent months, however, Ontario Premier Doug Ford has made a series of moves aimed at helping lower-wage workers and those who work for app-based companies in an attempt to garner support ahead of his re-election campaign this spring. The Digital Platform Workers’ Rights Act, part of Bill 88, will force companies to pay gig workers minimum wage, disclose more about how the apps they use operate, and provide workers with a formal payday.

But the language in the clause regarding minimum wage is unclear, critics say. The bill states that platform operators should pay minimum wage for “each work assignment performed by a worker.”

RidefairTO’s report based its $7.20 an hour calculation on data from a November, 2021, study published by the City of Toronto on the impact of ride-hailing services on traffic conditions. The study found that ride-share drivers in the Toronto area spend approximately 40 per cent of their time waiting for a trip and 60 per cent of their time engaged in a trip. While engaged, 48 per cent of a driver’s time would be spent driving a passenger while 12 per cent would be spent driving to pick up a passenger, or waiting for one.

RidefairTO’s wage claim assumes that a driver will only be paid for the time they spend driving a passenger.

“The way the act is worded, a platform might be able to claim that time spent driving to a customer doesn’t count,” said Andrew Monkhouse, a Toronto-based labour and employment lawyer. From a worker-protection standpoint, leaving it up to the employer to decide what “engaged time” means is problematic, he added.

Ontario Labour Minister Monte McNaughton defended his government’s gig-worker minimum wage at a press conference Tuesday, saying that RidefairTO’s assertions were “not correct.” He said gig workers in New York, which has brought in similar rules, had seen their pay go up.

“We’re the first province in Canada to move forward with a package of rights for gig workers,” he said.

Mr. McNaughton referred to a December, 2020, study conducted by Michael Reich, a labour economist at the University of California, Berkeley, which showed that after New York imposed a minimum wage standard of US$17.22 an hour for drivers in February, 2019, average hourly pay increased by 8.9 per cent compared with what they were getting paid without having a wage floor.

But the study also noted that Uber and Lyft responded to the policy by ceasing the onboarding of drivers and restricting the number of drivers on their apps, hence reducing the idling time between rides.

Uber is advocating that app workers get paid $18 an hour in Ontario, in order to compensate for non-engaged time. The rideshare giant argues that during non-engaged time, drivers and delivery people may be completing other tasks or they might be actively receiving requests on other delivery and rideshare apps. “Our research shows that 52 per cent of drivers and delivery people engage in multiapping, so it isn’t clear which platform would be accountable for non-engaged time” said a statement from Uber Canada.

The company also said that RidefairTO’s analysis based on the Toronto report only takes into account one day’s worth of data, not a pattern over time.

Jennifer Scott, president of Gig Workers United, says the language in the bill is confusing because it does not address unforeseen circumstances. “If a courier’s car or bicycle breaks down, which results in them not completing the order, does that mean they don’t get paid for the time in which they went to get the order? We simply don’t know what it will look like,” she said.

Joshua Mandryk, a labour lawyer at Toronto-based Goldblatt Partners LLP, told The Globe that the bill feeds into false narratives that platform-based gig workers are somehow different from other workers in a legally significant way.

Instead of carving out special employment rights in the form of a new bill, Mr. Mandryk argues, the government should instead take steps to “crack down on misclassification” and clarify the employee status of gig workers under the Employment Standards Act.

But some gig workers, especially those who work for delivery apps part-time, say the present system works just fine. According to Spencer Thompson, a long-time Uber Eats courier based in downtown Toronto, bicycle couriers who are particularly fast and able to take on numerous deliveries in a single shift already earn well over minimum wage. “If the tips are good and it is busy enough, I can earn more than $30 per hour these days.”

Mr. Thompson, whose main source of earnings is working for a software company, said he had not logged on to Uber Eats for months, but decided to use the app last weekend and was offered an $80 bonus for completing 10 deliveries.

“I think the algorithm wanted to incentivize me to keep working for the app since I hadn’t been on in a while. It’s a good set-up if you’re doing it part-time,” he said. “But I would probably want to have full employee rights if this was my only job.”

With files from Jeff Gray

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