Ontario Foodora couriers win right to unionize in labour board ruling

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The Ontario Labour Relations Board says couriers for the food-delivery service app Foodora Inc. in Toronto and Mississauga have the right to unionize, marking a significant win for Canadians who take on contract-style “gig” work for a growing range of digital platforms.

“In a very real sense, the couriers work for Foodora, and not themselves,” wrote Matthew Wilson, the board’s alternate chair, in his decision on Tuesday. Foodora had hoped the couriers would be considered independent contractors, but Mr. Wilson said that they were instead “dependent contractors,” whose work is more akin to that of an employee.

While the results are not yet public, Foodora couriers had voted on union certification last August with the Canadian Union of Postal Workers, or CUPW. They sought protections in the face of dangerous working conditions – many deliver food by bike in harsh traffic and weather – as well as better pay and benefits.

Courier Thomas McKechnie called the decision a victory for all kinds of precarious workers, from Uber drivers to contract cleaners. “We have precedent on the books for what a dependent contractor looks like,” he said by phone. “These tech disruptions aren’t anything new or creative – they’re the oldest techniques that have been used to separate and control workers."

Labour-relations lawyer Ryan White of Cavalluzzo LLP, who represented the couriers, said the decision set a historic precedent for gig workers. “Workers and unions are trying to find a way to make their voices heard in the gig economy,” he said. The decision “makes it abundantly clear that the labour board will … assist unions in ensuring workers in the gig economy are represented."

Foodora, a subsidiary of the German company Delivery Hero SE, said in a media release that it was reviewing the decision. “Until the voter list is confirmed, and the unionization application votes are counted, we cannot speculate at this time as to whether the vote will sway in favour of CUPW and what this might mean for our business moving forward,” said David Albert, the company’s managing director for Canada.

Mr. Wilson wrote that Foodora had placed limitations on couriers’ ability to profit, saying they can’t “develop individual relationships with customers or restaurants in a way that allows for individual selection or request of that particular courier.” This, he said, can restrict entrepreneurial action open to traditional independent contractors. “The reality is that a courier cannot improve their chance to make profit through the customary entrepreneurial tools,” he continued.

The Supreme Court of Canada heard arguments in November in a case regarding Uber Technologies Inc. The ride-hailing and delivery company is trying to overturn an Ontario Court of Appeal decision that would open the door for a class-action lawsuit to have a court declare that its drivers are employees.

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