Why Uber drivers in Victoria will come to regret joining a union

Uni­on­ized gig work­ers have no con­trol over their own griev­ances — unlike a non-uni­on­ized gig worker who can sue or file a human rights com­plaint. — Howard Levitt & Jensen McCauley

Uber drivers in Vic­toria, B.C. recently uni­on­ized, and in the pro­cess cre­ated an appar­ent path­way for organ­ized labour to reach the massive gig work­force.

Out-of-touch labour act­iv­ists across the coun­try undoubtedly cel­eb­rated this announce­ment, but such cel­eb­ra­tions will be short lived as drivers learn what uni­ons will actu­ally bring — man­dat­ory dues, seni­or­ity rules, griev­ance wars and no guar­an­tee of a pay increase (bey­ond the pay reduc­tion from dues soon to be deduc­ted from their pay), since both the drivers and Uber bar­gain in their own interest.

And then there is the impact on cus­tom­ers, includ­ing higher fares, poten­tial ser­vice shut­downs due to strikes and prob­lem­atic drivers becom­ing more dif­fi­cult to fire, as never-end­ing union griev­ances will replace ter­min­a­tions and drivers being banned from the plat­form.

His­tor­ic­ally, gig work­ers (which include Uber drivers) have been inde­pend­ent con­tract­ors. The worker is in busi­ness for them­selves, can set their own sched­ules and is not dis­cip­lined or con­trolled by the com­pany they per­form work for. Com­pan­ies like Uber act as facil­it­at­ors, con­nect­ing work­ers to cli­ents.

This means they did not receive the bene­fits of pro­vin­cial employ­ment stand­ards legis­la­tion. They did not receive vaca­tion days, vaca­tion pay, over­time or sev­er­ance pay — but they did receive other bene­fits, such as greater con­trol and man­age­ment over their own lives, per­form­ance and busi­ness.

This is now chan­ging. Both Ontario and B.C. have passed legis­la­tion to cre­ate pro­tec­tions for gig work­ers, includ­ing the right to a min­imum wage and pro­hib­i­tions on with­hold­ing earned tips. But even with these changes, many gig work­ers are still clas­si­fied as inde­pend­ent con­tract­ors, not employ­ees.

A high-per­form­ing, entre­pren­eur­ial Uber driver could fur­ther their busi­ness, get­ting more trips, higher rat­ings and greater earn­ings. A less entre­pren­eur­ial driver won’t — and may feel as though they are being short­changed by their clas­si­fic­a­tion as an inde­pend­ent con­tractor. This per­ceived lack of rights is likely what led Vic­toria’s Uber drivers to uni­on­ize.

Most union drives start with sym­bolic injustices and unre­solved com­plaints, and the per­ceived lack of rights (rein­forced by the legis­la­tion “extend­ing” rights to them) would be fer­tile grounds for uni­ons to take root within a busi­ness.

By uni­on­iz­ing, Uber drivers (and any other gig work­ers) will have their hands tied by the union’s rules. They will lose the flex­ib­il­ity that comes with being an inde­pend­ent con­tractor and will be bound by tighter con­trols that will ulti­mately bene­fit the union.

Seni­or­ity rules will mean that if there’s an abund­ance of drivers at any given time, the new­est one would be cut. There could be restric­tions on work­ing for other ser­vices, such as Lyft, or work­ing out­side of the industry as the employer will no longer have reason to retain their inde­pend­ent con­tractor status and will instead require them to work for it exclus­ively.

Gone would be any semb­lance of the com­pet­i­tion and innov­a­tion that his­tor­ic­ally helped ser­vices like Uber thrive com­pared to tra­di­tional taxi ser­vices. The only guar­an­tee would be the strict uni­form­ity and rising costs of uni­on­iz­ing — costs that Uber would make the con­sumers bear.

Lastly, and per­haps most cru­cially, uni­on­ized drivers would lose any semb­lance of con­trol over their employ­ment. They would lose the abil­ity to nego­ti­ate indi­vidual con­tracts with Uber, and they can­not hire their own law­yer and sue for wrong­ful dis­missal.

If a gig worker does get some bene­fit from uni­on­iz­ing — such as a higher pay rate — they are likely to be bound by that rate until the next col­lect­ive agree­ment is nego­ti­ated. Gone is any oppor­tun­ity for a raise based on hard work and merit, and any raise or new bene­fits will be paid solely by the cus­tom­ers, not the com­pan­ies.

Uni­on­ized gig work­ers have no con­trol over their own griev­ances — unlike a non-uni­on­ized gig worker who can sue or file a human rights com­plaint. Uni­ons have the legal right, with very lim­ited restric­tions, to nego­ti­ate one griev­ance away in favour of another, or decide that a griev­ance is not worth the union’s money to take to arbit­ra­tion. For that reason, very few griev­ances make it that far.

Uber drivers in Vic­toria will soon real­ize the mis­take they made by uni­on­iz­ing. They’re giv­ing up a por­tion of every paycheque to dues and, most import­antly, they’re hand­ing over their legal rights to the union, which is prone to act­ing in its own best interest.

The push to uni­on­ize gig work­ers can only mean one thing: higher costs for com­pan­ies, which will invari­ably pass those costs onto cus­tom­ers. For cus­tom­ers, that means pay­ing higher fees for drivers who are even more dif­fi­cult to fire if they com­mit mis­con­duct or are bad employ­ees, and likely an over­all lower qual­ity of ser­vice.

One poten­tial pos­it­ive side-effect: we may yet see a revival of the taxi industry, and for its drivers, an increased price for medal­lions. Howard Levitt is senior part­ner of Levitt LLP, employ­ment and labour law­yers with offices in Ontario, Alberta and Brit­ish Columbia. He prac­tises employ­ment law in all provinces and is the author of six books,

includ­ing The Law of Dis­missal in Canada. Jensen McCauley is an asso­ciate at Levitt LLP.