Don't hurt progress - Gig work and flexible hours are important to Canada's competitiveness

The world of work is changing. Gig work and flexible work hours are two places where there have been significant change in the last 10 years and government policy has struggled to keep.

Similarly, the court system has struggled as well, but for different reasons - courts are fundamentally traditional institutions - they operate by applying old precedent decisions to new situations, and so they too have struggled to adapt to the changing approaches of work, that are quite different from the traditional models.

My view on both situations is that the problem is a failure of existing policies and not the underly practices of Gig work or flexible work hours themselves. For far to long, the economy and government has been stuck with the common law 5 factor test for gig workers, which does little to proactively establish protections and norms - instead it is rooted in a court based dispute process that is applied retroactively. Not helpful at all.

On the gig side, these jobs have dramatically reduced the cost and difficulty of workers and organizations finding each other to create jobs, and enable people to gain quick and flexible access to work. They often focus on very small value transactions (like single trip deliveries or $100 creative marketing projects), which would be impossible to serve in a traditional employment model. This has made the market for labour more efficient and effective for all parties. It has also created entire new industries like 3rd party food delivery, grocery delivery, etc that are enormously popular with customers and every day Canadians.

Importantly, Gig work is not really a career or a full time job - it has a role to supplement income but the idea of making it a full time job is not what most people want from it. This is a challenging issue as there are a number of powerful special interest groups that see a community of casual workers as a threat to their existence - they are organized, have political access and will speak up loudly, but you are also probably missing the perspective of the quiet majority who work in these types of roles casually and without issue.

In my view, the core problem is that the existing definitions - employee or contractor - are no relevant to these new types of arrangements, and the common law legal test is hugely subjective and difficult to apply in a timely manner - it typically requires years of court litigation to get the question answered. The other critical issue for business is that the common law test is entirely retroactive - this means it cannot understand and plan for costs with any confidence, which affects businesses ability to innovate with new products or services.

Canada, and indeed the whole world grappling with this question, needs a new third way that involves a simple objective test, that can be easily determined by anyone, no lawyers required. The new model should provide a blend that supports the flexibility and access that makes contracting so effective, with the addition of reasonable protections or benefits for workers.

On the Right to Disconnect issue, I see a real struggle with the trend towards flexible work hours. During COVID-19 and likely afterwards my workplace has moved to flexible hours. They did this to support workers who were grappling with having their kids at home and couldn't commit to being fully engaged 9-5 due to the needs to also be a parent. The flexible hours make it possible to manage these two things, and more than that, a lot of people like having the flexibility in their day, so it will probably continue into the future.

Any effort to remove flexibility or mandate 'connected' hours will run into a big problem, because that's what many people want. It might work well for some jobs that are shift driven, but most professional work isn't these days. There's also critical services that require 24/7 uptime and that's another challenge to mandated disconnection. People need to be on call to respond to emergencies.

Everyone - companies, employees and managers need to have good digital habits and put their phones down when work is over. I don't know if it is possible to regulate that in legislation - it makes more sense to have it established and enforced through company or organization policies, so there's clear organization level expectations and anyone can act safely (ie not engage after hours) knowing what these expectations are.