In a potentially precedent-setting battle for the future of gig economy workers, Foodora couriers hoping to become the first app-based workforce in the country to join a union have had their first hearing at Ontario’s Labour Relations Board.

At issue is whether couriers are independent contractors with no right to unionize, as Foodora contends, or not.

The Canadian Union of Postal Workers (CUPW) says couriers for the food delivery company are dependent contractors who are economically reliant on the app, which under Ontario law gives them the ability to unionize.

The hearing Tuesday follows a union certification vote at Foodora in August, whose results were sealed until outstanding legal issues at the board are dealt with.

Lawyers representing Foodora told the board the company exerts “little to no control” over couriers’ work, making them independent contractors who cannot join a union.

In addition to the degree of control Foodora has over workers, couriers’ level of economic dependence on Foodora will be a key debate in the proceedings — which could take months to unfold.

The parties argued Tuesday over how to establish the degree of economic dependence: the union wants to draw on a pool of 10 representative witnesses, while Foodora proposed 250 couriers provide full documentation of their earnings and income sources.

Board vice-chair Matthew Wilson described the company’s request as “unprecedented.” Ultimately, the parties agreed that the union would present its witnesses’ evidence first and Foodora would request more evidence if it believes it is necessary.

Couriers for the company make a base rate of $4.50 per order, plus $1 for each kilometre from the restaurant to the drop-off point. As first reported by the Star, workers launched a union drive in May arguing that many of their hours on the road go uncompensated and their health and safety protections are weak.

Ivan Ostos, who attended Tuesday’s hearing and has worked at the company for three years, said after he broke his arm on the job, he was asked by the company to complete his delivery and received “minimal” compensation for the four months he could not work. Foodora has maintained that “safety and superior customer service” are “tenets of our brand.”

“I wanted to do something that could help people in the situation like I was in,” Ostos, 23, said.

“People of my generation have grown up in a time where you’re being told jobs are getting more scarce, they’re paying less, it feels very hopeless. People see this and they say, there’s actually something we can do to improve our working lives.”

While the case is novel in that it involves app-based workers, delivery drivers have successfully argued to the board in the past that they are dependent contractors with the right to a union — for example, in a 2017 case involving delivery drivers for Canada Bread.

The same issue is percolating in other jurisdictions too: California is expected to pass new legislation this week that makes it much easier for gig economy workers to be declared employees rather than independent contractors. In 2016, a British employment tribunal ruled that Uber drivers were not self-employed as the company claimed, and said they must be paid a living wage.

In Ontario, CUPW will also challenge the list of workers provided by the company to determine who can vote for a union. CUPW argues many of the 1,200 individuals on the list may have signed up on the app, but don’t appear to actively work for Foodora. The union argues that only workers who have recently accepted orders should be included on the list.

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In addition to Foodora’s bike couriers, the union is seeking to organize delivery drivers who work mainly in the Greater Toronto Area.

The next hearing date is scheduled for November.