In a forceful decision challenging the underpinnings of the gig economy, couriers for the app-based food delivery company Foodora have won the right to join a union.
The Ontario Labour Relations Board decision issued Tuesday opens the door for couriers, who mobilized around low wages and safety issues on the job, to become the first app-based workforce in Canada to unionize.
Courier Ivan Ostos, who helped lead the union drive, said he was “jubilant.”
“This is going to be used as a precedent for every other case in Ontario and for that matter elsewhere in Canada, so it’s a big deal.”
Foodora couriers participated in a vote to join the Canadian Union of Postal Workers in August. The results of the vote are still sealed and will not be revealed until further legal issues between the company and union are resolved.
But Tuesday’s decision clears one of the biggest hurdles to app-based couriers unionizing: it recognizes their legal right to actually do so.
Foodora had challenged the union vote by arguing that the couriers were independent contractors who cannot unionize and are not protected by provincial labour laws.
In Ontario, independent contractors are defined as self-employed entrepreneurs who are not disciplined or controlled by a boss. Most app-based companies across North America, including Foodora, classify workers this way.
But in a 44-page decision, labour board vice-chair Matthew Wilson ruled that couriers were “a mere cog in the wheel that is powered by Foodora.”
“In a very real sense, the couriers work for Foodora, and not themselves,” Tuesday’s decision said.
The decision accepts CUPW’s position that couriers are dependent contractors — a middle ground between traditional employees and independent contractors that gives workers the right to join a union.
The board pointed to a long list of contributing factors, including the fact that Foodora maintains a “Strike Log” that monitors couriers’ behaviour and job performance. Couriers were sometimes disciplined by Foodora or even “de-activated” from the app for poor performance.
The board also found that couriers have little opportunity to act as true entrepreneurs. Their pay rates are set by Foodora and they are not given the opportunity to negotiate their contract with the company. Their access to shifts is also controlled by Foodora. Couriers also cannot develop their own relationships with restaurants or customers, or sub-contract work to other couriers.
Foodora argued that its couriers were independent entrepreneurs in part because they could freely work for competitors like Uber Eats. The board rejected the argument.
“This is not entrepreneurial activity,” the board ruled. “It is hard work.”
“The fact that couriers had other sources of income is not necessarily indicative of economic independence,” the decision added. “It is not uncommon for individuals to have multiple part-time jobs.”
Foodora, a multinational company headquartered in Berlin, said it inherited the independent contractor model from the Toronto-based food delivery startup it bought and took over in 2015.
The company’s managing director David Albert said Foodora was now reviewing the decision and “assessing how we’ll move forward with the couriers in Toronto and Mississauga.”
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“We respect the board’s process under the Labour Relations Act,” he added. “We’re continuing to focus on Foodora’s growth, and to operate in the best interest of our three key stakeholders: customers, vendor partners and couriers. Until the voter list is confirmed, and the unionization application votes are counted, we cannot speculate at this time as to whether the vote will sway in favour of CUPW and what this might mean for our business moving forward. Right now, it’s business as usual.”
The labour board’s decision said that the use of new app-based technology did not change the level of control Foodora wields over couriers — in fact, the decision found that the app was a key part of that control.
“The software developed and owned by Foodora in the form of an App is the lynchpin in the process to deliver food,” the decision says “It is the single most important part of the delivery process and is a tool owned and controlled by Foodora.”
The board acknowledged that despite some documented instances of couriers being disciplined or terminated, Foodora rarely interacted with its couriers’ daily work. But the decision ruled this was ultimately irrelevant because the company had the power to exercise control if it chose to.
“The focus is not on the frequency of exercising control. Rather, it is about the right and ability of the company to control how the work is performed.”
So far, just one other app-based workforce in North America has successfully unionized. In January, workers at a grocery store in a Chicago suburb for the online delivery platform Instacart voted to join the United Food and Commercial Workers (UFCW) union.
The Foodora proceedings have thrown a spotlight on the app-based economy more broadly in Canada; earlier this year, drivers for Uber Black followed in couriers’ footsteps and filed an application to join the UFCW in Toronto.
“This decision shows that the tide is turning towards justice for thousands of gig workers in Ontario and soon these workers will have the right to their union,” said CUPW president Jan Simpson.
“CUPW is proud to be part of challenging the big app-based employers, and reshaping the future of work in favour of workers’ rights, safety and respect.”
But the labour board’s decision made clear that while app-based technology is novel, the nature of the work is not.
“This is the board’s first decision with respect to workers in what has been described by the parties and the media as ‘the gig economy,’” the decision reads. “However the services performed by Foodora couriers are nothing new.”
Ryan White, the lawyer with Toronto-based firm Cavalluzzo who argued on behalf of Foodora couriers said the board’s decision “vindicates the union, which has known all along that Foodora controls the way that couriers work too much for them to be classified independent contractors.”
“This decision sets a historic precedent for precarious workers,” he said.
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