Case Review: Canadian Union of Postal Workers v Foodora Inc (dba Foodora) (2020), OLRB Case No 1346-19-R
In a new decision with potentially far-reaching consequences, the Ontario Labour Relations Board (the "Board") has held that Foodora couriers have the right to unionize.
You've almost certainly seen them buzzing around your neighborhood on their bikes, braving the elements while sporting their trademark pink backpack. Foodora couriers are always a welcome sight at your doorstep or in your office, supplying that critical late-night donair or chicken soup when you're not feeling so hot. These couriers are just one of many emerging groups of workers who form part of the "gig economy."
The gig economy refers to a new wave of businesses like Uber, Lyft, Etsy and Airbnb who are generally based around a technology platform that dole out work, or "gigs", to enterprising contractors. In theory, the use of such technology platforms provides workers with the freedom to choose who they work for and how much they work. However, a growing chorus of voices has argued that the businesses behind these applications are taking advantage of these arrangements and avoiding legal responsibilities as "employers".
Foodora Challenges Couriers Unionizing
In August 2019, a certification vote was held by the Board to determine whether Foodora couriers would join the Canadian Union of Post Workers. Foodora brought an application challenging the couriers' attempt to certify, arguing that its couriers were independent contractors and therefore not eligible to unionize under the Ontario Labour Relations Act, 1995. The vote's results were sealed pending the Board's decision. The primary issue before the Board was whether the couriers were independent contractors, as claimed by Foodora, or dependent contractors. Dependent contractors are a classification between independent contractors and employees that recognizes instances where a contractor receives virtually all of his or her work and compensation from a single business relationship such that the person is "dependent" upon that relationship. In such instances, dependent contractors serve the same function as employees and are recognized to have the right to unionize under the Ontario Labour Relations Act, 1995. Of note, the BC Labour Relations Code includes the same recognition for dependent contractors to unionize.
Couriers have Right to Unionize
The Board dismissed Foodora's application and held that Foodora couriers were properly characterized as dependent contractors and had the right to unionize. The Board's Vice-Chair commented on the nature of the working relationship, noting: "The couriers are selected by Foodora and required to deliver food on the terms and conditions determined by Foodora in accordance with Foodora's standards. In a very real sense, the couriers work for Foodora, and not themselves."
The Vote is Still Out
It bears noting that, while the couriers provided the majority of their own tools, the level of control Foodora exerted over the couriers via the foundational tool for its business – its "app" platform – contributed significantly to the Board's conclusion. In addition, the Board arrived to its conclusion despite the fact the union's evidence focused on couriers who worked almost twice as much as the average Foodora couriers and evidence that all Foodora couriers were entitled to accept assignments from Foodora competitors such as UberEats, which many did and often at the same time they were providing services Foodora.
To date, the votes have not been counted and we do not yet know whether the Canadian Union of Postal Workers will win the right to represent Foodora employees or whether Foodora intends to appeal the Board's decision. Assuming the Board's decision stands, it will set an important precedent and will almost certainly lead to other gig economy workers throughout Canada attempting to unionize.
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