The Ontario Labour Relations Board (the “Labour Board”) has ruled that Foodora couriers are "dependent contractors" and have the right to unionize. Under labour relations legislation, employees and dependent contractors can legally unionize. Independent contractors do not have this right. Generally speaking, dependent contractors are a category of workers who appear to be in business for themselves but are heavily dependent on one client, thus making them economically vulnerable.
Accordingly, the question before the Labour Board was whether the food couriers closely resembled the relationship of an employee/dependent contractor or that of an independent contractor. The Labour Board engaged in a fact-based inquiry and reviewed a range of factors (outlined below) that lead to its conclusion (the first of its kind for “gig economy” workers).
- Food couriers are unable to
sub-contract for the food delivery services they provide and this
factor strongly resembled an employment relationship rather than an
independent contractor relationship.
- Food couriers provide their own
tools, such as bicycles, cars or helmets, delivery bags, smart
phones and are responsible for the maintenance and repair of these
tools. However, the most important tools for the job is supplied by
Foodora - the App. This factor suggested that couriers closely
resembled an employee than an independent contractor.
- A courier is not able to sell courier
services directly to a customer or restaurant. This factor
suggests an employment relationship.
- Despite acknowledging the fact that
couriers work multiple jobs, this was not evidence of
entrepreneurial activity. In fact, the Labour Board stated that
working multiple jobs lends more favourably to the conclusion that
there is economic dependence on different employers and supported
the conclusion that couriers are dependent contractors (and not
truly in an independent and economically viable business).
- Foodora controls the structure of
shifts, when shifts are offered, how many people can work, length
of shifts, how shifts can be swapped and geographical zones. This
weighed in favour of the conclusion that couriers are dependent
contractors.
- The inability to vary the fee charged
by a courier made the courier more like an employee that receives a
standard wage rate rather than an independent contractor who has
the ability to vary his fees.
- The lack of an opportunity for
couriers to develop any type of business or commercial relationship
with a customer or restaurant weighed in favour of couriers
resembling employees than independent contractors.
- The level of monitoring and supervision closely resembled an employment relationship whereby supervisors are told about the types of behaviour that warrant employee discipline. For example, dispatchers have the discretion to issue strikes against couriers if couriers engage in undesirable behaviour. Similar to progressive discipline, Foodora’s "Guide" calls for an escalation of strikes for more serious undesirable behaviour.
This decision by the Labour Board is the first one to deal with workers in the “gig economy” and it certainly will not be the last as other food delivery companies have always claimed that the couriers or service providers are independent contractors and do not have protections under employment standards and labour relations laws.
This precedent setting decision of the Labour Board is aimed at protecting workers that work in precarious working conditions and strives to ensure that, if desired, they can receive union representation in the “gig economy”. However, the Labour Board will still have to count the votes and determine other procedural/technical disputes between the parties before the food couriers obtain unionization.
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