Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.
Issue link: https://digital.hrreporter.com/i/1276832
www.hrreporter.com 9 and, in so claiming, the court has indicated that it's near impossible for low-wage workers to ever be able to access any real, meaningful due process," says Godoy. "It's a big decision and that illustrates that Uber has purposefully tried to remove workers from accessing their rights. "It's significant in that I think Uber across the world has been taken to task in terms of their MO [modus operandi], which is really to set up shop and then retroactively change their operations depending on what jurisdiction, what municipality or provincial state government dictates," he says. However, the ruling won't provide complete protection for gig workers, says Lambert. "Simply put, requiring private arbitration where a worker isn't earning very much money from the job or from the gig is going to be extremely hard, based on the test that the majority set out in Heller." The UFCW continues to sign up Uber contractors, having locked up more than 300 Uber Black drivers in Toronto in June 2019. "The difficulty in the gig economy is that there is no meaningful regulation have been "as ridiculous as this one." The Uber clause required the contractor to pay a US$14,500 fee to file for arbitration. "In other cases, they might have you pay a smaller fee, and the hearing or arbitration may take place in at least more of a local or accessible city. [Uber's use] is one of the more extreme cases we've seen, but most of the app- based employers that exist in Canada are similar ones and they all use different levels of arbitration clauses," says Godoy. The practice is also employed by a lot of American companies, according to Samfiru, but "the Supreme Court of Canada sent a clear message saying, 'No, you can't do that if you choose to operate here. We have our laws here, and we have our legal system here. And that's going to be what you're going to be dealing with when you're here.'" A victory for gig workers? For the UFCW, the ruling delivers a victory for gig workers. "The ultimate finding was exactly that the arbitration clause that they're said to provide to drivers is unconscionable or legislation that exists currently to regulate these employers and so you almost literally have to take each app to court, to the labour board, to actually start fixing them one by one. We would argue that that's part of the problem here⦠that the services and the work that's being performed are delivered or are identical to services and goods and labour that has been provided for decades. The only thing that has changed is how you access that labour, which is at the push of a button," says Godoy. And deciding who to sign up has also brought challenges for the union, according to Godoy, but it's becoming easier to do. "The difficult part isn't necessarily inviting them or being able to access and speak to workers because what we found is a lot, not all, but a lot of them are plugged into social networks where they share information and, so, getting access to workers isn' t necessarily the difficult part. We found that the organizing is made difficult because of its legislation or lack of legislation that exists." The next step is to certify the lawsuit, says Samfiru, and this means the fight will continue for years to come. "Given the fact that there's always the option to appeal decisions, I do think that it's going to take time. Our courts now, especially, as you can appreciate, are backlogged because of COVID-19; they're just starting to reopen now. As slow as matters tend to move usually, they're going to move even slower right now, unfortunately," he says. "It's fair to say that there's going to be some time before we have this case completely over with." CHRR "The net effect would have been the death of employment law. There would no longer be any employment laws." Lior Samfiru, Samfiru Tumarkin