The Difficult Legal Framework of Self-Employed Workers in Precarious Situations
Self-employed workers account for 15.4% of the workforce. They form a heterogeneous group that the law merges into a single legal category, that of independent contractors. Such a categorization postulates that these workers have the capacity to protect themselves and to strike a balance in their dealings with those who supply work. However, this is far from reflecting the reality of some self-employed workers who rather find themselves in a precarious situation. Recently in France and in Quebec, the issues of status and of protection mechanisms have been raised with respect to a very specific category of self-employed workers, taxi drivers who rent their vehicles (lessees). The purpose of this article is to analyze the legal treatment given to these precarious self-employed workers in the context of two different industrial relations systems. The author thus pursues two objectives. The first consists of examining how the industry functions in order to understand what the literature means by heterogeneity and precariousness regarding some self-employed workers, based on the case of lessee taxi drivers. The second aims to reflect on the measures implemented in Quebec and in France regarding this very specific case. How have these experiences contributed to easing the workers’ precarious situation? What lessons can we in Quebec learn from each of these experiences? The article begins with a description of the organization of work in the taxi industry and of the people who provide the transportation service. Companies that own taxi fleets have cars that are equipped for taxi use, and use dispatch services which forward calls to the vehicles. As for the drivers, their task is to transport the client. These drivers may work as employees or as owners, but are lessees in 70% of cases in Quebec and in 53% of cases in France. While employees benefit from a protective legal system, independent contractors, whether they be lessees or owners, do not. Many studies reveal the precarious working conditions of lessee drivers, which is particularly due to the organization of their work. The article continues by recounting two events that have questioned the legitimacy of the legal framework for lessee taxi drivers. The first event occurred in 2000 before the Court of Cassation in France. The Court redefined the taxi driver’s rental contract as an employment contract by asserting the “state of subordination” in which lessees found themselves. In reaching its decision, the Court considered the likely effects of the contract and concluded that there was a relationship of legal subordination and, hence, an employment contract. This bold reasoning was not reproduced in Quebec since, for many years now, the fate of lessee drivers has been sealed by the courts, which refused to redefine the rental contract as an employment contract. Rather, it was the government who, in 2001, intervened to regulate the industry by officially creating the Association professionnelle des taxis to promote the interests of taxi drivers. Snubbed in favour of other actors, such as the FTQ Syndicat des Métallos (Steelworkers Union), this organization has never been able to truly fulfill its mandate, undoubtedly because of the lack of a distinct status for the drivers it represented. Ultimately, this legislative reform did not change the legal characterization of lessee drivers, and did not provide any solutions for their precarious situation. Instead, it instituted the industry as being unregulated. In light of developments on both sides of the Atlantic, what lessons can be drawn, for Quebec, from the legal framework regarding lessee drivers? This is the focus of the last section, in which the author draws lessons from these two experiences regarding lessee taxi drivers, based on their own context of regulation. She notes that these experiences have helped to identify and to characterize the precariousness faced by lessee drivers (Rodgers and Rodgers, 1989) and to reveal the type of legal framework that would be desirable for these drivers in Quebec. In this respect, it would appear that redefining the rental contract of lessee drivers as an employment contract would not be desirable for various reasons, however, nor would maintaining lessee drivers in situation of absence of regulation. To remedy the precarious situation of lessee taxi drivers, the author proposes to draw upon one of the proposals put forward in the Bernier report (2003), which consists in creating a general program for the collective representation of non-salaried workers and adding a funding mechanism. The characteristic professional and socio-economic conditions of precariousness for lessee drivers make this grouping “an appropriate field of activity” for representing all lessee drivers belonging to this field of activity and enabling them to negotiate collective agreements that are adapted to the system of industrial relations. The right to unemployment insurance may also serve as a model for the collection and financing of this association. Such a proposal has the advantage of providing a common social security plan that, with government support, enables the expression of the collective autonomy of these self-employed workers.