The Ontario Labour Relations Board ruled on Tuesday that Foodora Canada couriers are dependent contractors and have the right to unionize.
The ruling, which sets a precedent for app-based workers seeking to unionize, agreed with Foodsters United and the Canadian Union of Postal Workers that Foodora’s relationship to its couriers and their working conditions rendered them dependent contractors.
A dependent contractor classification is a middle-ground between independent contractors and full-time employees that permits couriers to unionize and have the same rights and protections as employees while still allowing them some flexibility.
“This decision shows that the tide is turning toward justice for thousands of gig workers in Ontario and soon these workers will have the right to their union,” said Jan Simpson, national president of CUPW, in a press release. “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.”
In August 2019, couriers voted on whether to join the CUPW, but the vote was challenged by Foodora and the results were sealed until the board had ruled. The CUPW has also said it will negotiate a better compensation model for couriers if they vote to join the union, along with health and safety protections for when workers are injured and recognition of basic workers’ rights.
The labour board, which began hearing the case in September 2019, heard evidence from Foodsters United, CUPW and Foodora, which opposes the unionization effort, on whether couriers were able to subcontract their work or swap shifts. Matthew Wilson, the labour board arbitrator, noted in his decision that couriers’ inability to employ a subcontractor the way a plumber or electrician might “strongly resembles an employment relationship rather than an independent contractor relationship.”
The board also heard about the importance of certain “tools” required for couriers’ work, including their bicycles, delivery bags provided by Foodora and the app itself. While both couriers and the company invest in some of the necessary job tools, wrote Wilson, the app’s importance to couriers “more closely resembles an employee who is permitted to use the company’s software than an independent contractor.”
Wilson noted that while Foodora allowed couriers to work for other apps, the couriers’ relationship to those apps doesn’t suggest “entrepreneurial activity” but rather is akin to working multiple part-time or casual jobs. He also noted that while couriers are on the clock for Foodora, they don’t have the right to repeatedly decline orders or not show up.
The company, he added, has a “network of incentives and prohibitions to steer and control the behaviour of the couriers,” including controlling the structure of shifts and when they’re offered, how or whether a shift can be swapped and removing couriers who haven’t registered for a shift in eight weeks — effectively requiring couriers to maintain an ongoing relationship with Foodora, rather than moving from client to client like an independent contractor. Couriers must also make a request if they want to take a break from a shift or leave it early.
In addition, Foodora has a strike system for couriers, with escalating strikes for more serious bad behaviour. “This type of listed behaviours supports the union’s contention that couriers have very little choice once on the shift.”
In his ruling’s conclusion, Wilson noted this was its first decision regarding gig-economy workers. “However, the services performed by Foodora couriers are nothing new to the board and in many ways are similar to the circumstances of the board’s older cases,” he wrote.
The treatment of app-based workers has become a hot-button issue globally as major players like Uber, Lyft and a range of delivery companies challenge assertions that the people doing the driving and delivering are employees.
In 2018, a court in the U.K. found that Uber drivers should be classified as workers rather than self-employed contractors, while California legislators are trying to pass a new law to limit when some companies can label workers as independent contractors.