TORONTO - Foodora couriers in Toronto wrapped voting on union certification Tuesday, but the drive to create Canada's first unionized workforce in the gig economy has taken a back seat to a ruling on the fundamental question of whether the workers are considered employees.
Ballots have been sealed pending decisions by the Ontario Labour Relations Board on contested issues filed by both sides, including the company's assertion that the couriers are independent contractors who are ineligible to unionize.
"Legally, Foodora can fight us and drag this out, but the reality is undeniable: we're united and we're still growing," Alexander Kurth, Foodora courier and union organizer said in an email after voting ended.
"A lot of eyes are on Foodora right now, and they'd be better off to recognize us and come to the negotiating table so we can work together to solve our issues."
The company, which operates the food delivery service in seven Canadian cities, has objected to a Canadian Union of Postal Workers application for certification under a section of the Ontario Labour Relations Act.
"The reality is that there has to be a determination made by the board as to whether they're employees or independent contractors before the ballots are counted. The outcome of the vote will only become relevant once this is determined," said Foodora spokeswoman Sadie Weinstein.
That decision process could take days or weeks if it is expedited or drag on for months, as has been the case when employers have dug in their heels in a concerted effort to block unionization, said Larry Savage, a professor at Brock University's department of labour studies.
The Ontario Public Service Employees Union's efforts to unionize part-time college instructors, for example, were litigated at the labour board for more than a year, he said.
"There's all sorts of legal manoeuvres that both sides are going to use now that the voting has ended in order, from the employer's perspective, to quash the drive without ever counting the ballots," he said in an interview.
"If I'm the employer I don't even want to get to the ballot counting because the ballot counting means that there's a possibility I could lose."
The board's decisions could be a game-changer that would represent a real shift in the gig economy because it would determine if app-based workers in ride hailing services and other food courier businesses are also eligible to unionize, Savage added.
The union's best-case scenario is if the board determines that these workers have rights to unionize, it wins the certification vote and is then able to move into bargaining, he said.
"The worst-case scenario for the union is for that ballot box to never be opened and for the board to determine that these workers are ineligible for union membership."
CUPW recently filed its application with the labour board last month after a campaign was launched that addressed working conditions.
The union says couriers intend to negotiate a better compensation model, as well as health and safety protections for when workers are injured, as well as recognition of basic workers' rights.
Foodora's workers are paid $4.50 per order plus $1 per kilometre between the restaurant and delivery address, while restaurants pay the company up to about 30 per cent of the order total.
The postal workers union says it filed an unfair labour practice complaint with the labour board over what it claims are Foodora Canada's spreading of misinformation to scare couriers to vote against certification.
It says Foodora has attacked the union drive by threatening the income of couriers through emails and directly messaging them on the app.
The treatment of workers in the new gig economy has become a hot button issue at a time when overall unionization rates are on the decline.
The United Food and Commercial Workers union is also conducting a drive to organize Uber drivers but has not yet achieved certification.
Note to readers: This is a corrected story. An earlier version identified Savage as an assistant professor and misidentified the Ontario Public Service Employees Union.