Are gig workers entrepreneurs — or working at the whim of an app?

That’s the question now sitting with the Ontario Labour Relations Board in a precedent-setting case between Toronto-based food delivery company Foodora and couriers who aim to become the first app-based workforce in the country to join a union.

Foodora, like many app companies, maintains its workers enjoy a significant amount of freedom and flexibility and are therefore independent contractors who cannot unionize.

The Canadian Union of Postal Workers, which hopes to represent the couriers, argues the designation is wrong because of the degree of control Foodora wields over everyday working conditions.

The provincial labour board heard both parties’ closing arguments Wednesday. Its decision, expected in the coming months, will not only determine whether Foodora couriers can unionize, but will provide a glimpse into the future of the gig economy in Canada.

“We’ve already accomplished so much,” courier and organizer Ivan Ostos told a crowd rallied outside the labour board, noting an uptick in scrutiny of how gig workers are treated.

“We have already won regardless of the decision.”

The long-standing test to determine whether a worker is a true independent contractor involves several considerations, but it boils down to the degree of power and control an individual exercises in their relationship with a company.

The board will examine, among other things, couriers’ latitude in negotiating their own pay rates and working conditions; their ability to generate their own business and subcontract work to others; how essential they are to a company’s key functions; and how economically dependent they are on the company.

The crux of CUPW’s closing argument was that Foodora exerts significant control over couriers’ work, and that those couriers fulfil the core purpose of Foodora’s business.

“Foodora could not function without the couriers,” said lawyer Ryan White, who is representing the union.

As previously reported by the Star, couriers submitted evidence to the board that Foodora maintains an active “strike log” to monitor performance. Strikes can be issued for everything from late deliveries, poor communication with dispatch, or not showing up for a shift, and can impact couriers’ ability to get work — sometimes resulting in pay changes or even termination.

“Foodora says you are free to take whatever work you want. That’s not true,” White told the board. “There’s a whole network of incentives and prohibitions on the way the work is done.”

Lawyers for CUPW also noted that Foodora couriers can’t establish their own business relationships with restaurants, negotiate with customers, or subcontract their work to others. The union cited two documented examples of couriers being terminated for “account fraud” after the company found they had subcontracted deliveries to others.

Couriers’ pay rates and working conditions are set out in a contract Foodora draws up internally, White added. The company did not provide any evidence that individual couriers have ever successfully negotiated new or different terms with Foodora.

Based on that evidence, CUPW is seeking to have couriers recognized as dependent contractors — a middle ground between employee and independent contractor that still has the right to unionize.

But Foodora argued Wednesday that couriers do not demonstrate a sufficient economic dependence on the company to justify shedding their independent status. That, the company argued, is because couriers work for multiple apps or companies to generate income.

“Thinking about what proportion of their time and income is coming from Foodora is a really important part of this analysis,” said Craig Lawrence, the lawyer representing the company.

“This is not a daily, routine activity for the vast majority of couriers.”

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Lawrence said an analysis of working hours and wages found that the average Foodora courier worked 12 out of the 30 weeks the company examined in 2019. They made an average of $538 a month. Lawrence said it was “ubiquitous and common” for couriers to split their time with other apps like Uber Eats.

“They have the ability to sell their services in the market in real time. If that’s not entrepreneurial activity I don’t know what is,” he said.

“It cannot be said that these couriers are captives of Foodora’s enterprise.”

The four witnesses called by the union throughout the proceedings worked significantly more than the figures cited by Foodora. The company said their work hours and earnings were not representative of most couriers.

Foodora’s lawyers acknowledged its couriers do need to seek company approval for things like absences or leaving a shift early, but said there were “no examples of Foodora saying no.” Lawrence said strike logs were not meant to be “pejorative”

Throughout the hearings, which began in September, Foodora repeatedly emphasized that its couriers receive little formal training from the company and buy their own work equipment.

But lawyers for CUPW said couriers do not own the most essential tool of the job: Foodora’s app.

“We shouldn’t let (technological change) distract from the underlying focus on substance,” White told the board.

He added that using multiple apps to earn money was no different to other employees juggling multiple casual or part-time jobs.

Labour board vice-chair Matthew Wilson peppered both sides with questions during their closing arguments — at one point asking whether a decades-old board ruling referenced by Foodora was still applicable in “an era of job insecurity, whether it’s part-time work, casual work or piece work.”

Wilson’s decision on the couriers’ employment status will be a seminal moment in the case, but will not mark its conclusion.

If he rules in favour of CUPW, the parties must return to the board to resolve other issues raised during the union drive before the ballots cast in last summer’s union vote can be unsealed.

Following in the Foodora courier’s footsteps, Uber Black drivers this month submitted an application to the board to join the United Food and Commercial Workers union.

That, UFCW organizer Kevin Shimmin told a crowd gathered outside the board Wednesday, was in part “because of (Foodora couriers’) courage.”

“The world is watching this decision.”