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The HR Space | Bulletin

Unionizing The Gig Economy: Contractor Or Employee?

Fasken
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Labour, Employment and Human Rights Bulletin | HR Space

One of the disputes about the rise and proliferation of the gig economy is whether its workers are employees or contractors. Companies treat these workers as independent contractors but some workers have been pushing back claiming they are employees. This has implications for their ability to unionize. The Ontario Labour Relations Board ("Board") will be deciding this issue when it determines whether Foodora couriers (or foodsters as they call themselves) have the right to unionize. 

The Unionization Campaign

According to Investopedia, the gig economy is comprised of individuals who work part-time, temporary, and flexible jobs.[1] It includes freelance computer programmers, dog walkers, social media influencers, and YouTube personalities, among many others.[2] According to the Bank of Canada, 30% of Canadians participated in the gig economy in 2018.[3] 

In early May 2019, the Canadian Union of Postal Workers ("CUPW") launched a campaign to organize Foodora's bicycle and car couriers in Toronto.[4] The foodsters' main demands were increased health and safety measures given the exigencies of cycling and driving. They also wanted better compensation because rates of pay had not increased for three years.[5] 

On July 31, 2019, CUPW filed an application to be certified as the exclusive representative of foodsters.[6] The Board ordered a secret ballot vote to determine if foodsters wanted to be represented by CUPW.[7] Shortly before electronic voting began, CUPW alleged that Foodora had been "spreading lies and misinformation" to intimidate couriers into voting "no" and also filed an unfair labour practice complaint.[8] Allegations of unfair labour practices are quite common in an organizing campaign. For its part, Foodora argued that the foodsters cannot be represented by a trade union because they are independent contractors, not employees or dependent contractors.[9]  After the vote was finished, the ballots boxes were sealed. The Board will first deal with the preliminary issue whether foodsters are independent contractors and whether Foodora engaged in an unfair labour practice[10].

Foodora argues that its couriers are independent contractors because they (a) exercise control over hours and location of work as well as work output and performance, (b) supply their own equipment to perform work, (c) may (and often do) simultaneously provide services to other companies, including Foodora’s competitors, and (d) have the opportunity to profit through their performance.

If the Board rules in favour of the CUPW and the majority of foodsters voted to be represented by the CUPW, the foodsters could become Canada's first ever bargaining unit of the gig economy.

This will have significant implications for Foodora and foodsters. The foodsters will be able to unionize 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 Employment Insurance (EI) and the Canada Pension Plan (CPP). On the other hand, foodsters would lose many of the freedoms they enjoyed as contractors, including the ability to control when and how they work, and their ability to 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. We will continue to update our readers on this important case. 

 


[1] Investopedia. Gig Economy. Accessed August 26, 2019.

[2] For more information on the social and economic benefits of the gig economy, see Sherisa Rajah and Shane Todd. April 4, 2019. The Canadian Gig Economy: Embracing the Future of Work.

[3] Olena Kostyshyna and Corinne Luu. February 2019. Staff Analytical Note 2019-6: The Size and Characteristics of Informal ("Gig") Work in Canada at pages 2-3. This statistic excludes individuals who participated in the gig economy by selling goods rather than services.

[4] CUPW. May 7, 2019. Foodora Couriers Work to Unionize with CUPW.

[5] Justice for Foodora Couriers. Accessed August 26, 2019. Foodster demands.

[6] CUPW. August 3, 2019. We are FOODSTERS -We are UNITED - We vote YES!.

[7] Labour Relations Act, 1995, SO 1995, c 1, Sch A, s 8.

[8] CUPW. August 7, 2019. Foodora Couriers in Intense Push for Union Certification.

[9] CBC News. August 13, 2019. Foodora union voting ends but battle to unionize far from resolved.

[10] CUPW. August 13, 2019. CUPW Statement: Foodora Unionization Vote.

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