Workers in the “gig economy” are organizing to transform the precarious working conditions in their sector.
On November 6, Foodora couriers and Uber drivers hosted a morning rally outside of the Ontario Labour Relations Board (OLRB) to draw attention to their respective union drives with the Canadian Union of Postal Workers (CUPW) and United Food and Commercial Workers (UFCW).
Justice for Foodora Couriers
For Foodora couriers, the labour board started to hear arguments on the crucial question of their employee status. Workers signed enough union cards to trigger a union vote back in August, however the ballot boxes remain sealed due to a legal challenge made by the company.
Foodora says their couriers are “independent contractors” rather than employees and are therefore ineligible to form a union. Couriers say this is a deliberate misclassification of their work, which the company exercises significant control over.
Erendira Bravo of the Workers’ Action Centre named misclassification as a common issue faced by precarious workers, speaking from her own experience in the construction industry. “In many sectors today, especially construction and cleaning, many companies will only offer you a job if you agree to take it as an independent contractor. They call you independent on paper but in reality there is nothing independent about your work.”
Foodora workers argue that “dependent contractor” is a more accurate classification because Foodora “de-prioritizes” and “deactivates” couriers, tells them where and when they can work, and owns the platform they rely upon.
“We have an opportunity to win a landmark struggle for workers across this country,” said Aaron Spires, National Union Representative with CUPW. “You have a right to form a union, it’s as simple as that. When we get the result we want, we will celebrate. But if for some reason the people in this building tell us that we can’t form a union, we’ll see them in the streets!” Hearings continue until January 2020.
Uber Drivers United
On the very same day, another precedent-setting case for gig economy workers, on behalf of Uber drivers, was heard in Ottawa by the Supreme Court of Canada.
Ejaz Butt, an Uber driver with UFCW’s Uber Drivers United, addressed the rally in Toronto: “Everyone has a right to collective bargaining. Why not Foodora workers? Why not Uber drivers?”
Butt was a trade unionist in Pakistan and criticized Canada for failing to live up to international labour conventions on the freedom of association and right to collective bargaining.
In June, UFCW announced that hundreds of Uber drivers had joined their union. UFCW committed to fight for fairness for Uber drivers across Canada, including recognition of their labour rights and health and safety protections under the law.
The fact that these rights are in question is a result of the app-based gig economy, which seeks to “innovate” by evading employment standards that workers collectively won over many years. It also speaks to the negligence of legislators and their failure to protect workers’ rights.
In 2017, an Uber driver filed a class action suit against the company, alleging that drivers are employees who “have been improperly denied the protection and benefit of the Ontario Employment Standards Act.” David Heller, the proposed lead plaintiff, argued that Uber was not observing minimum wage rules or providing overtime, vacation and public holiday pay.
Much like Foodora, Uber bristled at being subject to regulation and directed their lawyers to mount a vigorous legal challenge. Uber objected to the suit on the basis of the mandatory arbitration clause in their service agreement.
Known as the “black hole of mandatory arbitration”, Uber’s clause requires drivers to bring all disputes to the Netherlands for arbitration and to pay an upfront filing fee of US $14,500, regardless of the amount in question. The Ontario Court of Appeal ruled in January 2019 that the arbitration agreement was unenforceable because it was excessively unfair and “illegally outsourced” the Ontario Employment Standards Act.
Uber appealed the decision and now the matter is before the Supreme Court of Canada, which will make a ruling in approximately 6 months. If the Supreme Court upholds the Ontario Court of Appeal’s decision, it will strike a major blow against Uber’s mandatory arbitration clause and any other company seeking to use a similar mechanism to override local employment rights.
An Ontario court can then rule on the original question: whether to certify the proposed class action by Uber drivers for up to $400 million in damages and give it a full hearing. A driver with Skip the Dishes filed a similar class action claim in Manitoba last year and is awaiting the outcome in Ontario.
Agile Organizing and Intransigent Employers
Uber, Foodora and other gig economy employers are no strangers to court cases. These companies seek to maximize the amount of time they can operate outside of the bounds of the law by drawing out legal proceedings. Or put another way: they use the law to their full advantage in order to avoid being held accountable by the law.
At Wednesday’s OLRB hearing, Foodora’s corporate lawyer Craig Lawrence performed a painstakingly slow and mundane cross-examination of the first representative witness, asking questions such as “Do you pay for the lights on your bicycle? How about the batteries for the lights, do you pay for them too?” CUPW’s lawyer pointed out that much of this material was already covered in the agreed statement of facts.
App-based employers want to defer any ruling that could recognize their workers as employees, which would require them to respect basic labour laws, and also enable workers to form legally recognized unions to collectively negotiate improvements to their working conditions.
However, from a workers’ rights perspective our laws are far from perfect and there’s no guarantee that courts will rule in our favour, as CUPW’s Aaron Spires mentioned. For this reason groups like Rideshare Drivers United and Gig Workers Rising in California campaigned for legislative changes to unequivocally declare that gig economy workers are employees.
These changes can eliminate the ambiguities in labour laws that did not anticipate the app-based gig economy and the anti-worker maneuvers of its billionaire owners.
This effort was successful in California, which resulted in the passage of Bill AB5 in September, and inspired the BC Federation of Labour to call on the provincial NDP government to do the same in advance of Uber and other ride-sharing companies’ long-anticipated entry into their market.
Predictably the companies are pushing back to protect their exploitative business models. In California, Uber, Lyft, and DoorDash announced their intentions to spend US $90 million or “whatever it takes to win” on a ballot measure to overturn the new law.
Building Collective Power from Below
From legal challenges to legislative changes, it is important to recognize that precarious workers themselves are the driving force behind these efforts. Gig workers are not waiting for permission to organize, they are forming their own unions right now by coming together and taking collective action.
For Foodora union organizer Iván Ostos, there was an incredible sense of unity and power when he and his colleagues marched on their boss, Foodora Canada Managing Director David Albert, to deliver their union certification papers on July 31.
“Being here today with so many other riders also gives you a sense of our collective power,” observed Ostos, outside of the hearing room packed with supporters. “I know that everyone here is going to take this fight to the very end and we’re going to win this.”
Ostos highlighted a recent victory by Foodora workers in Norway who secured the first-ever union contract with a global food delivery platform. They won major gains by striking for five weeks, including an annual pay hike of EUR 1,500, a winter allowance, and compensation for use of their own equipment.
The Future of Work is What We Make It
Economist Jim Stanford rips the aura of innovation around the gig economy to shreds in his paper “The Future of Work is What We Make It”. He explains how the key features of gig work are not new, but rather repackaged forms of old-fashioned exploitation like on-call labour, piece work, and requiring workers to supply their own tools.
What is new is the mechanism of coordination: the app, designed to circumvent hard fought labour protections. Foodora couriers developed a slogan that succinctly summarizes this point: Gig economy, same old crap / exploitation in an app.
By confronting their exploitative working conditions, gig economy workers are shifting the balance of power in their industry and helping to “deactivate” the race-to-the-bottom model of precarious employment.