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Manitoba not tracking labour complaints from short-term, casual workers

Hey there, time traveller!
This article was published 31/7/2018 (818 days ago), so information in it may no longer be current.

As a proposed class-action lawsuit aims to challenge labour laws that separate employees from independent contractors, a provincial spokesperson says the Employment Standards branch doesn't keep a tally on how many Manitobans share similar concerns.

Complaints lodged

Independent-contractor complaints are handled first by Employment Standards and are referred to the Manitoba Labour Board on appeal. Employment Standards complaints referred to the Manitoba Labour Board in recent years:

2015: 29

2016: 34

2017: 28

2018, year to date: nine

-- source: Manitoba Labour Board

Manitoba receives about 2,000 complaints each year from workers who say employment standards aren't being followed. However, the province doesn't track how many of those complaints come from people who believe they're missing out on wages and benefits because they aren't technically considered employees.

Charleen Pokornik, a Winnipeg courier for food-delivery service Skip the Dishes, launched a legal challenge in Manitoba's Court of Queen's Bench last week, claiming the company avoids providing employee benefits to its couriers by classifying them as independent contractors — who, under provincial law, aren't included in the Employment Standards Code and aren't entitled to receive benefits.

When previously contacted by the Free Press, a spokesperson for Skip the Dishes declined to comment while the claim is before the court.

A spokesperson for the office of Blaine Pedersen, Manitoba's minister of Growth, Enterprise and Trade, did the same Tuesday, when asked whether provincial labour laws need changing as the economy evolves and short-term, casual work proliferates.

It would be inappropriate to comment on labour laws while the case is before court, the spokesperson wrote in an email.

A driver from Skip The Dishes picks up some food at local Winnipeg restaurant.

JOHN WOODS / WINNIPEG FREE PRESS

A driver from Skip The Dishes picks up some food at local Winnipeg restaurant.

Pokornik — and her lawyers, who are trying to get court approval to expand her claim to represent couriers in all eight Canadian provinces in which Skip the Dishes operates — argues she is legally an employee of the company because she was interviewed, hired and trained, and worked under its supervision.

Couriers aren't independent contractors, the claim argues in part, because they can't sub-contract out their work, they can't compete with Skip the Dishes, and they aren't paid directly by the customers, in most cases. They are not paid an hourly wage to deliver food customers' orders through the company's online platform and mobile app, collecting only per-order delivery fees and tips.

Of the roughly 2,000 annual complaints received under the province's Employment Standards Code, only 28 of them made their way to an appeal at the Manitoba Labour Board in 2017. So far this year, the board hasn't ruled on any cases involving independent contractors who claim they are employees and should be paid as such.

The number of Manitobans working in the so-called gig economy — taking on short-term or casual work that doesn't fit within the definition of traditional jobs — is more difficult to pin down.

Statistics released earlier this summer estimated about 10 per cent of Americans are doing temporary, alternative or freelance work. But in Canada, according to labour force data released in June by Statistics Canada, part-time job growth has declined and full-time work is increasing.

Gail Holm, a 61-year-old former courier for Skip the Dishes, said the option to choose her own work hours and make some extra money appealed to her when she started delivering food for the Winnipeg-based company last July. But after a month, she said she realized the gig wasn't for her.

"I thought it would just be a little bit of extra income... I thought this would be perfect, I could do it on my days off," she said. But after a few weeks went by, Holm said she did the math and realized after the cost of fuel for her vehicle, she wasn't making much money at all.

"I tracked for a month my expenses and what I was making, and I don't even know if I broke out even," she said.

The difference between an employee and an independent contractor can be "complicated," Manitoba's Employment Standards branch notes on its website.

"Self-employed persons/independent contractors are not covered by the Employment Standards Code, but this type of employment relationship can be complicated. The nature of the relationship between both parties would determine whether someone is truly an independent contractor," the website states, adding details such as the method and ability to control payments, as well as who sets duties and work schedules, would have to be considered.

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

Katie May

Katie May
Justice reporter

Katie May reports on courts, crime and justice for the Free Press.

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