PLATFORM WORKERS AND COLLECTIVE LABOUR ACTION IN THE MODERN ECONOMY.

• Author: Hastie, Bethany

Introduction

Work in the digital platform economy, such as for Uber, Lyft, Foodora, Door Dash, and other similar services, has given rise to substantial legal and scholarly attention in recent years. Like many other forms of work and employment, platform workers are often characterized as precarious. These workers face significant obstacles, both formal and practical, in accessing legal rights and protections related to their work. Scholars in general, and legal scholars in particular, have largely been preoccupied with the question of status or taxonomy for platform workers to date, unpacking and debating the question of whether platform workers are properly characterized as employees or independent contractors. While the question of taxonomy is important, as will be discussed in this article, it has largely deflected attention away from the multitude of strategies and avenues that platform workers can, and do, use to advance their labour interests regardless of their employment status. The current focus on taxonomy reveals a deeper concern for the challenges facing gig workers as workers, regardless of the status ascribed to them, and of the possibilities for innovative solutions to improve advance their interests beyond or outside of existing legislative regimes. While a variety of legislative and policy responses to regulating the platform economy have been explored, (1) this article examines how platform workers are engaging in various forms of collective labour action to directly advance their needs and interests outside of, or in furtherance of, formal regulation and response by government and business actors.

This article surveys existing efforts by platform workers to collectively organize and advance their labour interests, with a view to improving their working rights and conditions. After reviewing the status of platform workers, the challenges and contours of their work, and the needs and interests that may be served through collective labour action in Section I, this article describes and comments on identified forms of collective labour action undertaken by platform workers across a number of jurisdictions in Section II. As this article discusses, collective labour action, in its many modalities, both formal and informal, creates a context in which the traditional legal debates regarding the status of the worker become less important, focusing instead on the actual needs, interests, rights and conditions of work at issue. Collective labour action, as a tool for improving workplace rights and conditions, as well as a political strategy, also creates greater space for the participation and voice of workers. The rich and diverse forms of collective labour action undertaken by platform workers provide both illustrations and lessons that can be drawn for workers in other precarious industries and jobs, and more broadly in considering the future of labour law in a modern economy increasingly characterized by work outside of traditional direct employment, a discussion taken up in Section III. This article thus sets a descriptive foundation for further dialogue on the future of labour law in the modern economy, both for platform workers and the many other, and growing, populations of workers falling outside of traditional labour and employment protections.

1. Mapping the Landscape of Platform Work

   Platform work has given rise to a substantial body of literature, litigation, and legislation, concerned with classifying platform workers for the purposes of labour and employment law. This debate has largely focused on determining whether workers are 'employees', and thus entitled to existing rights and protections afforded in domestic labour and employment law, or 'independent contractors' who fall outside the purview of legal regulation of employment. (2) The implications of this question of status are clear; workers who are employees have the benefit of access to rights, such as minimum wage, and protections, such as in relation to health and safety, and against unjust dismissal. Workers who are not employees, but independent contractors, receive no rights or protections under employment law and are thus required to negotiate their working conditions directly with their 'clients'. The status question also relates directly to efforts to unionize amongst platform workers.

   Most jurisdictions, including Canada, historically developed legal tests to determine whether a worker is an employee or independent contractor. These tests often look to a variety of factors with a view to ascertaining the extent of control exerted over the worker and their working conditions. Factors typically include: who owns the tools of the trade; whether the worker has a uniform; whether the worker can set their own schedule or hours of work; and, others. (3) Platform work poses obvious challenges in attempting to use such factors as a basis for categorization. While platform workers typically "own the tools of the trade" (their vehicles or bicycles), (4) the extent of control that the companies may exert over working conditions, hours, future work prospects, and wages, is significant. (5) As such, a nuanced application of historical employment tests under law produces a less-than-clear, and contestable, result for platform workers.

   Recent recognition of the growing number of workers in various industries who are neither clearly employees nor independent contractors has given way to new categories of workers, such as "dependent contractor", in some jurisdictions. For example, Ontario recognizes the category of "dependent contractor", which it defines as: "non-employment work relationships that exhibit a certain minimum economic dependency, which may be demonstrated by complete or near-complete exclusivity." (6) Recently, the Ontario Labour Board ruled that Foodora workers are dependent contractors, a category which, under the Ontario Labour Relations Act, extends with it a right to form a union and collectively bargain with the enterprise. (7) These intermediary categories aim to reflect new forms of working relationships that are characterized by degrees of dependence and control, and yet over which workers also exercise control and autonomy. Despite these new categories, where they exist, issues remain in classifying platform workers. Overall, the question of employment status does not resolve the issues facing platform workers in relation to their labour rights and interests.

   As with many other forms of precarious work, workers in the platform economy are said to face varying levels of exploitation associated with their work. Concerns regarding wages, health and safety, and access to legal remedies are commonly documented. (8) Scholars engaged in the classification debate largely see the solution to exploitation as expanding current legal definitions of employment to encompass platform workers. Some scholars have focused attention on the underlying normative criteria that employment tests might focus more substantially on, such as subordination, (9) while other approaches have argued for the creation of intermediary categories between employee and independent contractor. (10) Yet others have argued for a radical shift away from classification under employment law, advocating for the extension of a set of core rights and protections for all forms and modes of work. (11)

   The debate about status has likely been a focal point in existing scholarship precisely because of its assumed consequences in extending labour rights, as mentioned above. If platform workers are employees, they are subsumed under existing labour and employment legislation; if not, they fall wholly outside of it. (12) Yet, regardless of their legal status, platform workers suffer from a lack of clear access to legal rights and protections, as well as from isolation, which may work independently and in concert to facilitate circumstances in which workers' labour is exploited. The focus on status or taxonomy neglects to account for the difficulties in accessing rights in practice, even where they are extended on paper.

   This evidences an underlying core concern about the material working conditions of platform workers, regardless of their legally defined status. (13) Indeed, the precariousness of working conditions for platform workers is increasingly documented, as are some of the negative consequences that can be associated with such work. While the debate concerning status has obvious merit and urgency, it has, in some way, deflected attention from a deeper discussion of the labour needs and interests of workers that might be served through alternative forms of collective labour action.

   Many of the features of platform work are simply a new instantiation of enduring labour precariousness: the casual or on-call nature of the working hours, minimal wages, lack of clear safety protections, and others. (14) These reflect a general trend associated with neoliberalism away from standard employment, characterized by full-time permanent work, towards labour fragmentation and piece-work, facilitated through short-term contracts. (15) This shift in the construction of labour markets is evidenced by the shedding of legal liability for labour and employment laws by enterprises, the transfer of risk from employer to worker, and often, consequential economic benefits passed onto the consumer. (16) These are each hallmarks of platform work, though they are not unique to this kind of work.

   Yet, there are features of platform work--or, at least, its representation--that are distinct in understanding the labour issues surrounding platform work, and which, in turn, produce distinct consequences for platform workers. The emphasis placed on technology--both in affirming and disruptive discourses about platform work--is of particular significance. Specifically, the role of the intermediary platform (or 'employer') has been especially obfuscated. This obfuscation is an...