One of the main disputes regarding the rise and proliferation of the gig economy is whether its workers are employees or contractors. Companies treat such workers as independent contractors, but some workers have been pushing back claiming that they are employees. This has implications for their ability to unionise. The Ontario Labour Relations Board will soon be ruling on this issue when it determines whether Foodora couriers (or 'foodsters', as they call themselves) have the right to unionise.
According to Investopedia, the gig economy is composed of individuals who work part-time, temporary or flexible jobs. It includes freelance computer programmers, dog walkers, social media influencers and YouTube personalities, among many others (for further details please see "Canadian gig economy: embracing the future of work"). According to the Bank of Canada, 30% of Canadians participated in the gig economy in 2018.(1)
In early May 2019 the Canadian Union of Postal Workers (CUPW) launched a campaign to organise Foodora's bicycle and car couriers in Toronto.(2) The foodsters' main demands were increased health and safety measures given the practicalities of cycling and driving. They also wanted better compensation because pay rates had not increased for three years.(3)
On 31 July 2019 CUPW filed an application to be certified as the exclusive representative of the foodsters.(4) The board ordered a secret ballot vote to determine whether the foodsters wanted to be represented by CUPW.(5) Shortly before electronic voting began, CUPW alleged that Foodora had been spreading lies and misinformation to intimidate couriers into voting 'no' and filed an unfair labour practice complaint.(6) Allegations of unfair labour practices are common in organising campaigns. For its part, Foodora argued that the foodsters could not be represented by a trade union because they are independent contractors, not employees or dependent contractors.(7) After the vote finished, the ballots boxes were sealed. The board will first deal with the preliminary issue of whether the foodsters are independent contractors and whether Foodora engaged in an unfair labour practice.(8)
Foodora argues that its couriers are independent contractors because they:
- exercise control over their hours and location of work, as well as work output and performance;
- supply their own equipment in order to perform work;
- may (and often do) simultaneously provide services to other companies, including Foodora's competitors; and
- have the opportunity to profit through their performance.
If the board rules in favour of CUPW and the majority of the foodsters voted to be represented by CUPW, the foodsters could become Canada's first ever bargaining unit of the gig economy.
This will have significant implications for Foodora and the foodsters. The foodsters will be able to unionise and participate in the collective bargaining process. It could also assist the foodsters in asserting employee rights under employment standards and health and safety legislation. Further, Foodora would now be required to participate in government-provided benefits, such as the Employment Insurance programme and the Canada Pension Plan. On the other hand, the foodsters would lose many of the freedoms that they enjoyed as contractors, including the abilities to control when and how they work and work for competitors. Ultimately, such a ruling by the board would erode the foundational basis of the gig economy and eliminate the main advantage of being a gig economy worker.
The hearing concerning Foodora and CUPW will proceed from November 2019 through January 2020.
Endnotes
(1) Olena Kostyshyna and Corinne Luu, Staff Analytical Note 2019-6: The Size and Characteristics of Informal ("Gig") Work in Canada at pages 2 and 3, February 2019. This statistic excludes individuals who participated in the gig economy by selling goods rather than services.
(2) CUPW, "Foodora Couriers Work to Unionize with CUPW", 7 May 2019.
(3) Justice for Foodora Couriers, "Foodster demands".
(4) CUPW, "We are FOODSTERS -We are UNITED - We vote YES!", 3 August 2019.
(5) Labour Relations Act 1995, SO 1995, C 1, Sch A, S 8.
(6) CUPW, "Foodora Couriers in Intense Push for Union Certification", 7 August 2019.
(7) CBC News, "Foodora union voting ends but battle to unionize far from resolved", 13 August 2019.
(8) CUPW, "CUPW Statement: Foodora Unionization Vote", 13 August 2019.
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