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Ontario Labour Board Says Foodora Couriers Can Unionize … – Fasken

In its first gig economy decision, the Ontario Labour Relations Board (the “Board”) has  decided that Foodora’s food delivery couriers are dependent contractors.[1] This means they can unionize.
Foodora is a web services company. Through its app, the company provides an online marketplace connecting consumers and restaurants. Customers order food from restaurants using the app, and Foodora dispatches couriers to the restaurant to pick up and deliver the food to the customers. Traditionally, Foodora treated most couriers as independent contractors accessing delivery opportunities through the app.
The Canadian Union of Postal Workers (“CUPW”) conducted a union organizing campaign of couriers. The union applied to the Board for certification as the exclusive bargaining agent for Foodora couriers working in Toronto and Mississauga. On August 9, 2019, the Board conducted an electronic vote and the ballot box was sealed and not counted because of legal issues in dispute.
The primary issue at this stage in the proceeding was whether the couriers were dependent or independent contractors. This was important because if the couriers were independent contractors, the application would be dismissed.  If they were dependent contractors, the application could proceed.
The essential question for the Board was does the courier relationship with Foodora more closely resemble the relationship of an employee or that of an independent contractor?[2] To answer this question, the Board examined a series of well-established factors and evidence submitted by parties:
After a careful review of the evidence, the Board decided that Foodora couriers are dependent contractors and as a result, they can unionize.
Foodora couriers are not yet unionized. CUPW’s application for certification has only survived this first challenge. It will proceed to the next stage to resolve disputes on the eligible vote list. Once those issues are determined, the Board will unseal the ballot box. Couriers will only be unionized if the majority of votes by eligible voters in the ballot box are in favour of the union.
This is a significant decision because it is the first Ontario decision on the status of gig economy workers.  But, these determinations are extremely fact specific.  A finding that Foodora couriers are dependent contractors and able to unionize does not mean that all gig economy workers are dependent contractors. With advance planning, careful design and management, it is possible for organizations to set up gig economy relationships that will be found to be independent contractor relationships.
If you are you an organization with workers in the gig economy and would like to learn more about this decision or you would like assistance structuring your working relationship with gig economy workers, please contact us.
The assistance of Maria-Cristina Cavicchia in preparing this article is gratefully acknowledged.
[1] Canadian Union of Postal Workers v. Foodora Inc. (d.b.a. Foodora) (2020), O.L.R.B. Case No. 1346-19-R [Foodora].
[2] Foodora, para. 80.
For more information or to discuss a particular matter please contact us.
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