Disguised Employees

By Joe Hendry

The messenger industry is infamous for its ability to flout employment standards and labour laws. Company owners have become accomplished magicians; making most of their employees instantly disappear. But if you look closer you’ll see that all the employees are still there. They have simply been disguised. It’s not even a clever disguise but it’s often good enough to keep governments from enforcing their own standards and laws.

The ingenious, magical technique that messenger services employ is deceit. They lie to their messengers. They lie to government and they lie to their clients.  Our messengers are “brokers”. They are self-employed, “independent contractors”.  Never mind that bicycle couriers clearly satisfy the common-law tests which define the employee-employer relationship. Never mind that the company has the right to exert full control over their messengers has all the risk of loss and opportunity for profit. The company owns all the major tools required except the messenger’s bike and clothes. Yet all they have to do is say “my messengers are not employees” and they think that’s enough.

By practicing deceit, courier company owners attempt to avoid those pesky, 20th century employment standards. Companies claim it’s unfair to force them to abide by laws that give so many luxuries to workers. Luxuries like a half-hour lunch, paid statutory holidays, vacations, overtime pay. Companies complain that governments expect them to actually give notice (or pay in lieu of notice) to a worker who they fire without cause. The government even expects poor old courier companies to provide a pay stub to messengers to justify the couriers’ earnings. These laws offend many owners. Just like the child labour laws offended company owners of the 19th century.

Most governments don’t explicitly state that bike couriers are employees. They apply the common law tests. The problem with this is it encourages industry deceit. Each courier must fight to have the law applied to him or her. Companies with high paid lawyers try to muddy the picture so they may confuse officials about the employment relationship. In the last hundred years it’s happened in many industries. The courier industry is practically the last industry that’s still stuck in the 19th century.

The messenger industry has become so accomplished at deceit that according to the Ministry of Labour (MOL) there has never been a decision to clarify bike couriers’ employment status in Ontario. It’s clear that the MOL tries to discourage couriers from filing a claim, thereby avoiding the need for clarification. The MOL agrees that it’s obvious messengers are not independent contractors. But they point to the possibility that couriers may be classified as dependent contractors.

The MOL takes the position that in most cases dependent contractors would not be considered employees because the Employment Standards Act neither specifically includes them or excludes them from employment status. However, in a recent case involving dependent contractors (re: Macualay Child Development Centre), the MOL referee found the workers to be employees, emphasizing the dependence issue. It’s clear that bike couriers would also be found to be employees.

The Workplace Safety and Insurance Board (WSIB) which is also a provincial responsibility does specifically include bike messengers as workers. The WSIB applies the same common law test as the MOL to reach that determination. Many courier companies fail to register with the WSIB. They lie, insisting that they don’t employ any bike messengers and some companies order their bike couriers to never admit they were working if they become injured on the job.

At the Federal level dependent contractors are included as employees, meaning that courier companies are responsible for deducting income tax, Canada pension and employment insurance premiums from their messengers. Most companies don’t comply. Couriers should obtain the form entitled “Request for a ruling as to the status of a worker under the Canada Pension Plan or Employment Insurance Act” (CPT2) from Revenue Canada. Once you fill it out your employer will be required to remit both their share and your share of CPP an EI premiums and you will be eligible for employment insurance if you become unemployed. You will also gain contributions to your Canada Pension. As a dependent contractor you are still entitled to the same deductions as an independent contractor for income tax purposes.

Governments have been lax in guaranteeing messengers the same basic employment standards and rights that most workers take for granted. Messengers must individually pit themselves against well-financed companies and industry associations like the Canadian Courier Association, in order to receive their rights. However one Act does give messengers the tools needed to ensure their rights. The Labour Relations Act gives couriers the right to organize.  It gives messengers the right to collectively bargain for their rights to be specifically included in labour contracts. It gives all bike couriers the opportunity to end the industry’s deceit and remove the disguises.
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