February 27, 2020
In a highly anticipated decision, Canadian Union of Postal Workers v. Foodora Inc., the Ontario Labour Relations Board has ruled that Foodora couriers are dependent contractors and therefore have a right to seek certification.
On July 31st, 2019, the Canadian Union of Postal Workers (“CUPW”) filed an Application for Certification on behalf of couriers in Mississauga and Toronto who work for Foodora, the app-based food delivery company. Foodora challenged the application, arguing that its couriers are independent contractors.
In Ontario, and most other jurisdictions, independent contractors are defined as self-employed entrepreneurs and are generally excluded from the labour relations regime. By contrast, dependent contractors have less control over their working conditions, which more closely resemble a traditional employment relationship, and are entitled to seek union certification.
Across North America, app-based companies have sought to characterize their workers as independent contractors in order to avoid application of labour and employment legislation. These companies have largely succeeded. However, the Foodora decision – the Board’s first ruling on workers in the digital gig economy – may represent a significant shift for gig workers. Applying the traditional legal test to determine workers’ status, the Board considered eleven elements of the couriers’ working conditions and held that each relevant factor militated in favour of a finding that the couriers are dependent contractors.
Of particular significance is the Board’s discussion of the way in which technology affects the couriers’ working conditions and employment status. According to jurisprudence from the Board, and many other adjudicators across Canada and the United States, workers who provide their own tools and equipment are more likely to be considered independent contractors. Typically, this has worked against couriers, who provide their own cellphone, safety gear, and bicycle or car. In the Foodora decision, however, the Board found that the most important tool in the food delivery process is the Foodora App, which is provided, maintained, and constantly upgraded by the company. The Board wrote: “Just as the Board would not treat a shovel brought by the employee to the job site as equivalent to the backhoe provided by the contractor, the Board cannot treat the App as an equivalent to the bicycle and smart phone.”
The Board also explored the ways in which the App allows Foodora to exert control over its workers, another important factor for determining whether workers are dependent or independent contractors. As the Board points out, the fact that technology has advanced to allow Foodora to supervise the operation with minimal human interaction does not mean that Foodora does not control its workers. “To the contrary,” the Board notes, “the sophisticated technological advancements permit Foodora to closely monitor every move of the courier to ensure its service standards are met.”
Foodora workers still have a number of hurdles to clear before they can be certified. This notable ruling, however, represents a significant step forward for Foodora couriers and indeed for other workers in the digital gig economy.
Authored by Lily Hassall, Articling Student