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A Foodora courier is pictured picking up an order for delivery from a restaurant in Toronto in February 2020. THE CANADIAN PRESS/Nathan Denette

Despite Foodora ruling, app-based workers face uphill union battle

The Ontario Labour Relations Board recently cleared the way for couriers who work for the app-based food delivery company Foodora to unionize.

The couriers had filed a union certification application at the board last summer with the help of the Canadian Union of Postal Workers (CUPW). This in turn triggered a board-supervised union certification vote.

Foodora objected to the application because, the company argued, its couriers were neither employees nor dependent contractors, but rather independent contractors, in business for themselves.

The difference in status matters because independent contractors, unlike dependent contractors or traditional employees, are ineligible to unionize in Ontario. The ballot box was sealed, pending a board decision on the status of the couriers.

Six months later, the board ruled that Foodora couriers were dependent contractors eligible to unionize. The landmark ruling was celebrated as an important precedent for workers in the gig economy that could result in transformational change in the sector. Despite winning a legal right to unionize, however, app-based workers still face an uphill battle when it comes to unionization.

Obstacles to unionization

The level of union membership among precariously employed workers in the service sector has always been extremely low. For example, unions are virtually non-existent in fast-food restaurants or in shopping malls, even though most of these workers have long had a legal right to unionize.

One reason for such low rates of unionization is that employers typically deploy a variety of union avoidance strategies designed to thwart organizing efforts. These usually involve coercive tactics designed to plant seeds of doubt in workers’ minds about the benefits of unionizing, and playing on workers’ fears about job security should the boss learn about their pro-union views.

Other app-based employers will likely do what they can to discourage their employees from joining together to unionize. (Shutterstock)

If Foodora couriers win their union once the ballots are counted, in some ways their success will unwittingly make it more — not less — difficult for similar workers to follow suit.

That’s because a successful campaign will almost certainly spur other app-based employers to proactively ramp up union avoidance tactics to avoid any cascading effect.

One particular tactic that will prove difficult for app-based workers to overcome is their employers’ ability to manipulate lists of eligible voters.

Need majority support

Legally, the union must demonstrate majority support among the workers who would then form the union.

In many Canadian jurisdictions, including Ontario, this requires two steps. The first is to get a large minority (in Ontario it is at least 40 per cent) of the workers to sign a union membership card. If successful, this paves the way for a secret ballot vote administered by the board, where 50 per cent plus one must vote “yes” to certify the union.

In traditional workplaces, workers regularly labour alongside the same group of employees. In such cases, it’s relatively easy for the union to determine how many workers would need to sign union cards in order to trigger a certification vote.

But work in the app-based gig economy is less straightforward. The number of workers on a given platform is more difficult for the union to ascertain. It is also much easier for app-based employers to game the system by stacking employee lists with people who shouldn’t be there. This can force union support below the threshold needed to trigger an election.

Workers in the gig economy can be more difficult to organize than those working in an office together every day. (Shutterstock)

Unions don’t have endless resources. Certification campaigns are expensive undertakings with uncertain outcomes. While organizing new members is a strategic priority for many unions, only a handful are actively organizing app-based workers.

Not all the app-based workers who want to unionize will be guaranteed a union that’s prepared to organize them. In Canada, a lot will depend on the outcome at Foodora and of any subsequent campaigns, all of which we can expect to be vigorously opposed by employers.

Legal wrangling far from over

The issue of worker classification may continue to frustrate attempts to organize app-based workers.

While the Ontario Labour Relations Board’s decision on the Foodora case opens the door to unionization for this specific group of workers, it does not automatically cover all app-based workers.

For example, the Supreme Court of Canada is expected to hand down its own ruling in the near future regarding the status of Uber drivers.

The Supreme Court of Canada will soon rule on the legal status of Uber drivers. Dan Gold/Unsplash

Regardless of the outcome in the Uber case, app-based employers may adjust their business operations, which could have the effect of altering the workers’ status. They may even ask governments to intervene on their behalf to deny union rights to their app-based workforces, regardless of classification.

App-based employers in California, for example, have launched a multi-million dollar campaign to reverse the state’s recent decision to grant employee status to app-based workers.

Closer to home, some provincial governments, including Nova Scotia and Ontario, have moved to deny employment standards rights to minor hockey league players.

In short, while Ontario’s labour board decision appears to have set an important precedent that will open the door to unionization for thousands of app-based workers, unionizing workers in the gig economy will continue to be an uphill battle.

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