Hearings are underway in two precedent-setting battles over the future of the Canadian gig economy and workers’ rights, with the practices of two of the sector’s biggest heavyweights — Uber and Foodora — under scrutiny.

The Supreme Court heard opening arguments Wednesday in an appeal that will determine whether Uber can require drivers to lodge employment disputes through mandatory arbitration in the Netherlands — a process that costs an individual worker around $14,500.

This January, the Ontario Court of Appeal ruled Uber’s arbitration clause was an “unfair bargain” for workers and improperly denied drivers the protection of provincial employment laws. Following that decision, Uber sought leave to appeal to the Supreme Court.

Meanwhile, Toronto-based couriers seeking to become the first app-based workforce in the country to join a union faced off against Foodora Wednesday at the Ontario Labour Relations Board.

Earlier this year, the Canadian Union of Postal Workers (CUPW) launched a union drive and subsequently held a union vote in the hopes of addressing couriers’ concerns around low pay and safety risks.

But Foodora challenged the process, and the ballot results are sealed until the board rules on the legal issues under contention.

The hearing Wednesday delved for the first time into the battle’s defining question: whether or not the couriers are independent contractors, as Foodora maintains. Independent contractors do not have the right to unionize under provincial labour laws.

Lawyers for CUPW opened by briefly presenting an exhibit of a weekly Foodora email advising couriers that declining 10 per cent of orders would result in a warning, while declining more than 15 per cent would result in being “de-prioritized.”

One of the hallmarks of a true independent contractor is that the company providing work doesn’t have the right to discipline them. Other defining features of an independent contractor include supplying one’s own work equipment and being able to subcontract work to others.

CUPW lawyers said most of its submissions to the board were made in written form in order to expedite proceedings. By contrast, Foodora lawyers used an hours-long cross-examination of the union’s witness, courier Sam Tyler, to highlight workers’ flexibility and independence.

The company needs to convince the board it does not exert significant control over couriers’ working conditions in order to prove they are independent contractors.

Foodora’s questioning Wednesday centred on the application process to become a courier, which takes place largely online, does not require references, and allows couriers to work multiple jobs — including with Foodora’s competitors. Couriers are required to purchase their own equipment and are not required to wear Foodora branded material.

The company also focused heavily on couriers’ ability to request breaks and shorten, extend or delay shifts for any reason — requests that are “rarely if ever challenged,” Foodora lawyer Craig Lawrence said during the proceedings.

Tyler, the union’s witness, said since becoming a courier earlier this year, Foodora’s dispatch had unilaterally ended his shift on one occasion and had also unilaterally placed him on a break. (Foodora lawyers described this as a “mistake.”)

While riders have some ability to modify their start or end times, Tyler said couriers cannot work through the Foodora app unless they have taken a specific shift. That approach contrasts with apps like Uber Eats, where couriers can sign in to the app and automatically start receiving orders.

Foodora releases shifts for the week every Wednesday that couriers then sign up for, although they can also log in at any time and request a shift swap. Tyler said the company closely tracks couriers’ performance, including the number of “no shows,” late log-ins to the app, and average weekly delivery hours. The ensuing “rider score” impacts couriers’ ability to get shifts.

Foodora’s lawyers said the company stopped tracking how often couriers declined orders on April 14.

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CUPW’s union drive was publicly announced on May 1. The union’s key argument is that Foodora couriers are dependent contractors who are economically reliant on its app, which under Ontario law gives them the ability to unionize.

Although the issue at stake in Uber’s Supreme Court appeal are outwardly different, the two battles are connected; Uber has used its arbitration clause to deflect a proposed class action from Ontario drivers who, like Foodora couriers, are challenging their independent contractor status.

If Uber loses its Supreme Court case, drivers can continue their efforts to pursue a class-action suit.

Similar issues are also percolating south of the border. Landmark legislation passed in California this September means at least 1 million workers previously classified as independent contractors could become employees with the right to minimum wage and other protections.

Misclassifying a worker as an independent contractor when they are actually an employee is illegal in Ontario too, but unlike California, the onus is on workers to prove they have been misclassified.

Intervening in the Supreme Court hearing Wednesday, Toronto-based groups Parkdale Community Legal Clinic and the Income Security Advocacy Centre argued that “low-wage precarious workers are more likely to experience illegal working conditions” and also “face numerous barriers to enforcing their rights in the workplace.”

Uber has consistently argued its drivers “have control over when, where and how they work.”

In an emailed statement to the Star, a spokesperson for Foodora said Wednesday there had been “positive initial discussions” around couriers’ legal status and that the company would “continue to listen, grow and improve our platform.”

Foodora courier Ahmad Jarbou told a gathering of supporters outside Wednesday’s labour board hearing that couriers were “happy to inspire everybody in the gig economy to fix their contracts.”

“We’re going to win,” added courier Ivan Ostos. “One hundred per cent we’re going to win.”

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