How Foodora couriers made history with their fight to join a union

Jordan: By now. I think most of us know the problems with the gig economy. It treats workers as disposable. It doesn’t offer benefits or protection or anything we’d traditionally associate with, you know, a job. It doesn’t pay well enough either, so a regular shift can barely make ends meet. So for the workers, yeah, not great. But for users, it’s incredibly convenient and it’s not going anywhere. And that means that if anything is going to change in terms of working conditions in the gig economy. It’s going to have to happen the same way those conditions have been changed for more than a century. With organizing. But before you can officially organize, at least in the eyes of the law in Canada, you need to be classified as workers, not as independent contractors or entrepreneurs. So that is the first fight. But once it’s been won, then the door is open and then we’ll see who tries to walk through it and how the companies that drive the gig economy try to slam it in their face. I’m Jordan Heath Rawlings, this is The Big Story. Sara Mojtehedzadah is the work and wealth reporter with the Toronto Star. She also has an upcoming podcast that is all about the fight for working conditions in the gig economy. Hi Sara.

Sara: Hi.

Jordan: Why don’t you start, because I know you’ve done a ton of this reporting, just tell me a little bit about what it’s like to work in the gig delivery economy for Foodora or companies like that.

Sara: Yeah. I’ve learned a lot over the past year about kind of the daily routine and kind of daily reality for these workers. I mean, the first thing to say is it’s obviously often a very physically demanding job that’s done and often quite harsh and frankly dangerous  conditions. Just imagine. Riding your bike around Toronto, 50 kilometres a day in, you know, -20 degree weather it’s, it’s not easy. So, uh, one of the sort of major concerns of these workers is safety on the road. And that partly speaks to as well, the way our city is designed and not being super friendly or safe for cyclists. But, you know, a bunch of the careers are also drivers and there’s a bunch of safety challenges that come with that as well in terms of having to sort of be tuned in to this app on your phone and driving around the city, having to find parking spots. It’s very challenging. Um, the second thing is that the pay is very low. I mean, it’s, they, get for Foodora, they get $4 and 50 cents for each delivery and then they get a kilometre– a dollar per kilometre from restaurant to drop off. So there’s really an, um, an incentive and a pressure to get as many orders as you can. So again, it’s quite demanding in that sense. In order to be financially viable, you really have to churn out those, those orders. So, yeah, the low pay, the unpredictable pay is a major feature of the job. And, and I think lastly, it’s a sense that there’s a bit of, a lack of respect, I think is how the couriers would have described it for their job and, uh, for the, for the people doing it. Um, so that’s really sort of what I’ve learned about the every day realities of the job.

Jordan: Well, you mentioned briefly when you were talking about driving, but to what extent are they tied to this app, at least according to like what you’ve heard?

Sara: Yeah, so there’s been hearings at the labour board over the past six months that really revealed a lot about how these app companies operate. And obviously most stock companies don’t want to have to reveal their inner workings, but in this case, they’ve sort of had to in a tribunal setting. So we’ve sort of gotten a window into how the apps intervene in workers kind of daily work flow. In Foodora’s case, there’s an algorithm that determines when you can get shifts. So basically the fastest rider, the best riders, the ones that you know, never are late logging into the app and all that kind of thing, they’re going to get first priority in terms of selecting shifts. So that’s one way that the app kind of has a little bit of control over your daily life.

Jordan: I didn’t even realize that they worked in shifts. I thought it was kind of like Uber where you, you know, you log in whenever you’re ready for some work.

Sara: No, that’s the major difference between Foodora and say, Uber Eats, Uber Eats you can just login and start picking up orders. But with Foodora there’s sort of this extra layer. So some of the features of the way Foodora operates are unique to Foodora and the shifts is definitely one of them. And then once you accept an order, you sort of have the app beeping at you and telling you whether you’re on time, in terms of delivering and that kind of thing. So that’s another way where you’re sort of interacting with the app all the time. And Foodora is also unique because it does have a layer of human dispatchers who couriers can also communicate with while they’re on shift. And what we kind of learned is that those dispatchers are in some ways monitoring courier’s behaviour. Which again, can restrict or change their ability to log into the app and get shifts so the dispatchers can issue strikes for what they see as poor performance. Um, whether it’s late deliveries or whatever it is. Um, and that can, in the worst circumstances, actually lead to couriers being deactivated from the app and not being able to log in at all.

Jordan: So you’ve kind of hinted at it a couple of times, but what is unique about Foodora, and maybe explain this just a through the lens of who is Ivan Ostos?

Sara: So Ivan Ostos is a courier with Foodora, and he’s been at the forefront of trying to organize a union. And, um, if this group of couriers is successful,  they will be the first app-based workforce in Canada to unionize, and actually one of the first on the continent. So it is a, it’s a big deal. And really the reason, uh, from speaking to and interviewing Ivan and other couriers that, that they’re sort of trying to form a union, it goes back to the wages, the safety, and the respect on the job. And really a big part of their argument is that, you know, Foodora says all of these couriers are self-employed entrepreneurs. They don’t have the right to form a union. They’re, you know, they’re entrepreneurs doing their own thing.

Jordan: Right. The independent contractors that we hear about all the time.

Sara: Exactly. And this is a huge pillar of the gig economy. And what Ivan and other careers basically said at the labour board was, I mean, no, that there’s all these ways that the app controls the way we do our job. And in that sense, it sort of resembles, and an employer telling you, you know, when to work and how to work. Um, so that was, uh, one of the main thrusts of what we heard at the labour board. And recently the labour board essentially agreed with the couriers and said, yes, this looks more like an employment relationship.

Jordan:  So what is the difference, or at least what’s the difference supposed to be, between a full time employee or even just a part time employee and the typical independent contractor?

Sara: Yeah, so I would boil it down to say that an independent contractor is someone who has a lot of power and control over the way that they do their work and they stand to either profit or lose profit from the fruits of their labour. So really easy example to think of is say like a contractor that you hire to renovate your house, your apartment. You know, you strike a deal with them and then they choose how they go about doing the job, whether they bring in five guys to do their work for them, or you know, they call the plumber to come in and do something. They’re really in control of, of how they do that work. And you can say, Hey, at the end of the day, I’m not happy. I’m gonna end this contract. But you can’t be like, you know, I’m going to give you a performance review and discipline you for this, you know, thing that I don’t like that you did because they’re not your employee. So that kind of is the essence of an independent contractor. Um, and again, most app companies classify their workers in this way.

Jordan: How does the term allow app companies to get more from these workers?

Sara: Well, I think what it does is really reduce the burden on the company. Certainly a financial burden. It means that the companies are not paying into a pension plan, into employment insurance, and neither are the workers. Um, it means that the workers have no protection under provincial employment laws. It means that they don’t have the right to join a union, that they don’t have the right to minimum wage. So, you know, it’s really downloading a lot of the responsibility for, you know, your rights and protections on the job to the individual worker and removes them from the system that is set up to protect, uh, regular employees on the job.

Jordan: What was Foodora his argument for keeping these employees as independent contractors?

Sara: So Foodora had a very long and exhaustive, um, set of reasons why they believe couriers are independent contractors. And there’s a bunch of factors that can be used to sort of establish whether someone is a true independent contractor or not. But Foodora really pointed to the degree of flexibility that couriers have. So, you know, they cited a lot of examples of couriers, you know, ending a shift early, um, or an or not being able to complete an order, and Foodora really not challenging them on that point. They did point to a courier as having a certain degree of flexibility as well in terms of selecting their own shifts. You know, it’s up to them really when they work in some ways and which shifts they decide to select. They also pointed to couriers, you know, providing all of their own tools for the job. So in this case, a bicycle or a car. And finally, probably their biggest point was that Foodora couriers often, well, almost always, don’t work exclusively for Foodora. They work for Foodora, they work for Uber Eats. And in this way, Foodora says they resemble entrepreneurs. They’re, they’re selling your services to a bunch of different kind of, I guess, providers or people who want to buy those services. Um, and Foodora argued that that really represents the kind of entrepreneurial spirit.

Jordan: So what in the end did the labour relations report say to that argument?

Sara: So the decision was actually really interesting to read because they essentially did not cede it single point to Foodora. Um, in total, there’s around 11 factors that help determine whether someone is a dependent contractor, which is the category that the Foodora couriers were aiming for, and it’s kind of like a middle ground between an employee and an independent contractor. And on each of those 11 points, the labour board ruled that couriers do not really look like independent contractors, contrary to Foodora’s argument. And he had some really interesting points to make around the kind of entrepreneurial argument where he said, you know, this isn’t being an entrepreneur, it’s being a hard worker. You know, working for multiple apps doesn’t make you an entrepreneur. It makes you someone who is not being paid very much money and needs to find multiple sources of income, much like a part-time worker who works at multiple grocery stores, or you know, works in a warehouse and works through a temp agency somewhere else. Really kind of, I think drawing parallels to the kind of precarious working conditions that a lot of us find ourselves in.

Jordan: So what happens now?

Sara: So this is really step one. Um, the, you know, one of the hurdles for these couriers to join a union was they had to prove that they weren’t independent contractors who don’t have the right to join a union. So they’ve won that. And this is the first decision, specifically about an app-based company on that front in Canada. So, um, it’s certainly precedent setting, but it’s also only, you know, one part of the battle.

Jordan: And they’re not even in union yet.

Sara: They are not in a union yet. They voted last year, but the results are sealed until a bunch of other legal issues are resolved. So now we move into that phase two of tackling all those other legal issues.

Jordan: Like what kinds of stuff?

Sara: So one is the employee list. So basically if they did form a union, who would be in the union? And they have to negotiate over that. Foodora has submitted a very long employee list, which from the union’s perspective, could potentially dilute the results of the votes that were cast in August. And so they’re going to be wrangling over who should be on that employee list. And that whole process could take months. So we don’t know what the result of the union vote is yet. And in the meantime, you know, the daily working conditions that, you know, led to this union drive in the first place, do not change. There’s a statutory freeze on, the relations between the union and the company. So the company  can’t make major changes to how they do business.

Jordan: Even if they wanted to get out ahead of unionization and improve the conditions?

Sara: Yes, it’s too late now.

Jordan: I see.

Sara: So, yeah, I mean, the daily realities will continue until there is a result to these outstanding legal issues.

Jordan: Do we know what Foodora will do now? Are they allowed to appeal this? Uh, does this go on?

Sara: They can’t appeal the ruling on the independent contractor status. They can, you know, throw up roadblocks through the next phase. They could leave the country and just shut down operations entirely. That’s an option for them.

Jordan: Is there any talk that that might be on the table? I mean, that was one of the first things I thought of when you see this story, is that there’s a lot of other cities where they can do their thing without these challenges. And we’ve seen it in other cities, right? These app based companies just being like, okay, well not this city.

Sara: Yes. So I mean, they haven’t said that yet. There is precedent for them doing it. In Australia there was an ombudsman case where a Foodora courier was found to be an employee and essentially Foodora shut down and left. That being said, there’s also precedent for Foodora couriers being unionized. In Norway they’re unionized. I believe in other parts of Europe, they are considered to be employees. So it doesn’t necessarily mean they’re going to leave. Uh, I really, I mean, I don’t know what the future holds for them. But certainly, you know, I think for some app companies, the calculation of, you know, is it worth the cost or can my business model withstand these legal challenges? That’s certainly a difficult calculus for companies to make.

Jordan: What do experts in the labour sector think of the precedent of this case? Cause you mentioned Foodora is a little bit different, but obviously this is a pretty big ruling in Canada.

Sara: Yes. I mean, it certainly opens the door to other app based workforces making similar challenges. I think that especially because the decision was so strong, it was really a resounding endorsement of what the Canadian Union of Postal Workers had argued at the labour board. There are some specific features of Foodora’s model, specifically around the degree of control over like shift selection, and the discipline. But what was interesting, I think about the decision was that it really pointed to this entrepreneurial aspect and really kind of challenge the notion that these workers are true entrepreneurs. And that applies to really every app. So I think that other apps will be looking closely at this. And I think that unions seeking to organize other gig economy workers will be looking closely. Um, Uber Black drivers have already filed a certification to unionize as well. So they are the second group to try and go this route. Um, and if you look at what’s happening in the US there really has been quite a movement to, to win stronger protections for gig economy workers. So I do feel that, you know, there’s change in the air.

Jordan: In the big picture, cause you mentioned the precedent that it’s set in other places, what does this economy look like? Obviously it would be great from the worker’s point of view, but a lot of these apps don’t even make money now, and presumably they’d have less of a path to making money should they actually have to do all these things that other workers get for granted. Is there a worry that this economy, as as fragile as it is, would just dry up?

Sara: I mean, I think that what’s happened is, you know, these apps have moved into spaces that for a long time were pretty unregulated. There hasn’t been very strong enforcement of employee misclassification, which, you know, some would argue is a pillar of the gig economy. And they’ve really been able to take advantage of that space. You know, whether you see that as a good thing in terms of job creation or you know, something sort of more sinister, I think is a matter of opinion. But you know, I think at the end of the day, if courts or tribunals are ruling that, you know, your business model is founded on breaking the law, that you have misclassified workers, you know, you can’t run a business based on breaking the law. So if the law ends up siding with gig workers, you know, I think we will see a change. And the question is, you know, do we want businesses really taking root that are sort of built on a house of cards in some ways. But you know, also, I think that. These services, you know, getting food delivered has become such an entrenched part of our society and it caters to a real need. You know, people don’t sometimes have time to cook a big family meal, so I don’t see it disappearing entirely. But I do think that, you know, maybe some of the weakest links may end up disappearing as the result of stronger kind of legal scrutiny.

Jordan: And finally, just to bring it back to this case in particular, I assume you’ve talked to Ivan since the decision was announced?

Sara: Yes.

Jordan: I know we don’t know when it will be that we’ll find out the results of that vote, but are they confident that the votes to unionize are there?

Sara: I think they’re feeling good, yeah. I did speak to Ivan. I called him right when the decision came in basically. I think it was certainly an emotional moment for, you know, couriers and also the union organizers who, I mean, really took a lot of work to build this campaign because this is such an isolated workforce. You know, you don’t go into an office and like meet your friends at work. A lot of these couriers don’t know each other. So trying to bring people together was really an uphill battle. And you know, they managed to get to a point where they were at the labor board, which is probably the biggest accomplishment, really. Um, I think they were expecting to win this first round. The kind of case law was on their side. I think that moving forward, they’re just continuing to organize people. And actually, when I called Ivan after that decision, he was like, you know, I’m basically going back to work now to, you know, keep reaching out to couriers. The next day he was on a panel talking about it. So I think that, you know, the work is just kind of continuing.

Jordan: Thanks for this Sara, and we’re looking forward to listening to your show.

Sara: Thank you.

Jordan: Sara Mojtehedzadeh, Work and Wealth reporter at the Toronto Star. Watch for her podcast. It’s coming soon. Our podcast is The Big Story. You just heard it. You can find more at thebigstorypodcast.ca. You can request topics and interviews and anything you like, though we don’t have to oblige you. On Twitter at @thebigstoryFPN. And you can rate us and review us and we hope you do anywhere you get your podcasts or at least any of the apps that let you rate and review and we’d appreciate it. Thanks for listening. I’m Jordan Heath Rawlings. We’ll talk tomorrow.

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