Are Uber drivers employees or entrepreneurs?
Firm’s employment model under scrutiny at provincial labour board
The province’s labour board began hearing arguments Friday over whether limousine drivers for ride-sharing giant Uber can join a union — a debate that strikes at the heart of the gig economy’s employment model.
At the tribunal Friday, lawyers for Uber described its drivers as “independent individuals” who use the company’s platform to “efficiently” identify potential customers. App companies typically designate workers as independent contractors, a category that has no legal right to unionize.
In submissions made to the board and obtained by the Star, Uber contends limousine drivers working through its luxury Black platform are entrepreneurs — similar to vendors “selling goods on eBay, Etsy or Shopify.” The United Food and Commercial Workers union argues Uber Black drivers are like casual employees working in construction or live entertainment. Despite the use of technology, lawyers for the union said the gig world was “not a new kind of workplace.”
“These are for-hire vehicle drivers who, rather than receiving their work through a radio dispatcher receive it through an app on their smartphone,” said lawyer Michael Wright.
In February, a precedent-setting decision at the Ontario Labour Relations Board granted couriers for food-delivery app Foodora the right to join a union, because they were not true independent contractors as the company claimed.
It was the first decision of its kind about the gig economy in Canada.
Like Foodora couriers, Uber Black drivers contend they are not independent contractors and are seeking better pay and protection from unjust dismissal.
At Friday’s labour board hearing, the two sides debated over how to decide which drivers are eligible to vote for a union.
UFCW is seeking to represent around 330 Uber Black drivers, and says it has reached the required 40-per-cent card-signing threshold necessary to hold a vote.
Uber has submitted a list of up to 1,100 individuals it says drive for the luxury ride-sharing service, which would dilute the union’s ability to meet the 40 per cent threshold.
Matthew Badrov, the lawyer for Uber, argued Friday that the more expansive list was necessary to capture drivers who temporarily stop working through the app, only to later return.
In testimony, a senior manager for the company said internal calculations showed a significant proportion of drivers return at high rates after a gap in service. Badrov emphasized the “unique” nature of a “21st-century workplace” that attracted workers interested in flexibility and independence.
Lawyers for UFCW hammered the company on its analysis, which it described as an attempt to “defeat the effort for a collective voice.”
The union’s submissions say Uber’s proposed list includes every driver that has ever gone online through the app and provides no insight into how many drivers are regularly active. That, the submissions said, would give a vote to drivers who may not have worked for Uber Black “for years” — and may never have completed a single trip.
After deciding on the evidence debated Friday, the board will tackle the deeper issue: whether or not Uber Black drivers are independent contractors with no right to join a union.
In its submissions, Uber compares drivers accepting rides through its app to entrepreneurs “selling goods on eBay, Etsy or Shopify.”
“Similarly, a Black Car driver offering transportation services through the Uber app is not an employee or dependent contractor.”
The submission also argues that Uber Black drivers set their own schedules, use their own cars to make pickups and dropoffs, can work for rival apps, and have “the opportunity to profit through individual performance.”
UFCW’s submissions argue that drivers are “essentially casual employees” of Uber Black.
“As with casual employees generally, they have some ability to select when they make themselves available to work, and do not have set shift times and working hours,” the submission says.
Nonetheless, the union’s submission argues that Uber still exerts “significant” control over its luxury ride-share drivers through “incentives, suggestions, contractual requirements and threats.”
In February, the labour board rejected Foodora’s claim that its couriers were independent contractors who could not unionize.
Alternative chair Matthew Wilson, who is also presiding over the Uber Black case, ruled instead that couriers had no real ability to act as entrepreneurs since they did not establish their own base rate of pay or establish individual relationships with customers.
The decision ruled that evidence of couriers working for rival apps constituted “hard work,” not entrepreneurialism, and noted that while couriers use their own bikes and cars to make deliveries, they did not own the app itself — the most important tool of their trade.
In April, two months after the ruling, Foodora announced it was leaving the country and initiated insolvency proceedings. The Canadian Union of Postal Workers has filed an unfair labour practice complaint as a result.
On top of the union case currently being heard at the board, Uber is facing other legal battles in Canada.
The Ontario Court of Appeal recently ruled Uber’s arbitration clause requiring drivers to travel to the Netherlands to pursue workplace disputes was an “unfair bargain” for workers. Uber has appealed the decision to the Supreme Court, where UFCW is an intervener in the case.
The Star’s podcast series Hustled investigates how the gig economy is changing work. Subscribe at Apple Podcasts, Spotify or wherever you listen to your favourite podcasts.