The battle between Foodora and its Toronto couriers will be before Ontario's labour relations board Tuesday as the company pushes back against their efforts to unionize, saying couriers are independent contractors and not employees.

If successful, Foodora couriers could become Canada's first unionized app-based workforce.

In August, Toronto couriers for the food delivery company voted on union certification, but the results remain sealed until the board decides whether they had the right to cast the ballots in the first place.

At issue is whether people employed in the gig economy should be able to join a union.

According to the national president of the Canadian Union of Postal Workers (CUPW), the answer is clear.

"We consider the workers up at Foodora to be dependent contractors. The Foodora company is hiding behind the app, but they still have the ability to hire, fire, discipline, and they also direct the work of these of these couriers every day," said CUPW's Jan Simpson.

Simpson said Foodora couriers approached the union, which has been organizing such workers since 1999, adding that the Foodora workers must do 24-hour shifts and cannot subcontract them to other drivers.

'We're planning to win'

She hopes the labour board will agree to unseal the votes at Tuesday's hearing and allow them to be counted so couriers can proceed with the next stage of unionization.

"We've fought this independent contractor model before and we've won, and we're planning to win again with the Foodora drivers."

The company, which operates in seven cities across Canada, has a decidedly different take. It argues that unionizing could negatively impact couriers' flexibility and having to pay union dues would hurt the workers, who they say are often newcomers to Canada.

"A third-party business would interfere with our current open-door policy at our Toronto office, where our couriers can drop by at any time to discuss their challenges or issues with us," the company said in a statement. "Their feedback, whether in person, by phone or email, directly influences the features and developments to the platform that we continue to push for from our global team."

Foodora argues the gig economy is beneficial to all parties, from courier to company to consumer, with flexibility among its biggest benefits.

Flexibility largely in company's hands: courier

The couriers are paid $4.50 per completed order in addition to $1 for each kilometre travelled, and any customer tips. Foodora says that because couriers can usually deliver multiple meals per hour, they earn an average of $21 per hour.

In August, Toronto couriers for the food delivery company voted on union certification — but the results remain sealed until the board decides whether they had the right to cast the ballots in the first place. (Stefano Rellandini/Reuters)

The company also says it provides a minimum rate in less dense areas so couriers there are compensated. Compensation is also provided for excessive wait times, it says. Couriers are also covered for lost time due to an injury and given medical coverage, and are covered by the Workplace Safety Insurance Board to receive up to 85 per cent of their pre-injury rate, Foodora says.

Ivan Ostos, a Foodora courier for over three years, said that while app-based companies market flexibility, it's largely within the company's hands.

"They say you can get shifts whenever you want, but the reality is that only means if they make enough shifts for you ... There's not enough shifts for everyone," he told CBC News.

Ostos also pointed out that while the company says couriers average $21 an hour, that number is much lower after factoring in the upfront costs that aren't covered.

'I see this making big waves'

Ostos said: "That's not accounting for all the costs of doing your work, so me as a cyclist, I pay for my own bike, my own cellphone, the data, any costs of repairs. Drivers have gas, they have insurance. So you should really minus a big chunk of that for just running this thing.

"Tips come and go, so you can't really say it's average so and so."

If successful, Foodora's couriers could become Canada's first unionized app-based workforce.

Christo Aivalis, a postdoctoral fellow focusing on labour at the University of Toronto, said: "Win or lose, they are testing the waters for the definition of independent contractor right now, but it can't be stressed enough that even if they are unsuccessful it doesn't necessarily mean the end of the drive to organize gig economy workers — it might just need further legislative reforms and or court challenges."

Ultimately, Tuesday's hearing could go two different ways.

The board could determine workers have the right to unionize, they win the certification vote and bargaining can begin.

Workers aren't eligible and the ballot box isn't opened.

Either way, Aivalis said, the case could end up taking months or even years.

Regardless, Ostos said, he's excited the case is being heard and for what it means for workers who face "precarious" employment in the gig economy.

"I think it's going to set a precedent in how we do work in this century, so I'm really happy about it, and I see this making big waves in Canada and the world as a whole."