Written by David Doorey, York University
In this January 2022 post, I discussed the breaking news that UFCW and UBER Canada had reached some sort of secret deal that involved UBER recognizing UFCW as a representative of UBER drivers in Canada in exchange for UFCW supporting UBER’s lobbying efforts to obtain a watered-down version of legislative employment standards that it calls Flexible Work+.
At that time, little was known about the agreement beyond what the parties themselves had publicly disclosed on their websites. In my 2022 post, I set out some of the legal issues that could arise from an agreement like this. The most interesting legal issue I thought related to the fact that, at the time this UFCW-UBER agreement was announced, another union (CUPW) was actively engaged in an organizing campaign of the UBER drivers.
The issue is that Canadian labour laws prohibit employers from, to cite Section 70 of the Ontario Labour Relations Act, “interfering with the formation, selection or administration of a union” or contributing “support” to a union. As a general rule, if Union X is actively organizing a company’s employees, it would be unlawful for the company to suddenly recognize or otherwise give assistance or preference to Union Y. However, this is general rule and sometimes labour boards have permitted some forms of assistance, particularly when the union that benefits is a “real” arms-length union (not a company union sham) and the board believes that the employees are still able to freely choose which union to join.
In my 2020 post, I pondered what would happen if CUPW asked UBER to provide it with the same suite of entitlements to access and represent UBER drivers as it afforded UFCW. I wrote:
CUPW or any other union that is organizing Uber drivers in Canada might want to demand that Uber also distribute an announcement promoting that union as well. Uber is in dangerous unfair labour practice territory if it claims that it will only communicate with drivers about the UFCW and no other unions.
As it turned out CUPW did just that. In August 2022, CUPW wrote to UBER and requested the same “information and access” to drivers as had been granted UFCW. UBER refused the request. Part of its justification for refusing the request was that CUPW had not agreed to the quid pro quo that UFCW had, namely, to join with UBER in advocating for its Flexible Work+ type legislative standards for the digital gig delivery economy. After UBER’s refusal to provide it with the same access to workers as had been afforded UFCW, CUPW filed an unfair labour practice alleging a breach of Section 70 of the Ontario Labour Relations Act.
That complaint is ongoing at the OLRB. As part of that proceeding, parts of the UBER-UFCW agreement were released so we can now see what is the deal. Only those parts of the agreement that the OLRB ruled are relevant to the ULP have been disclosed. I have reviewed the released sections of the agreement. Here’s a quick summary of what’s there:
- The parties agreed to create a Joint Consultation Forum (JCF) comprised of a maximum of 5 UBER and 5 UFCW representatives. The JCF will discuss issues generally relevant to drivers, including health and safety issues, but not issues relating to individual drivers.
- Creates a model by which drivers who have experienced “deactivation” can request UFCW representation in the process challenging the deactivation. A similar process is established for other account related disputes [UFCW is promoting its representation of drivers on its website.]
- UFCW is given access to UBER’s “Greenlight Hubs” to provide “representation services” and to post information about UFCW’s representation for drivers to see.
- UFCW is given the opportunity to have information distributed by UBER via email to all UBER drivers 4 times per year.
Most interesting, in my opinion, is the provision in the agreement that provides that “UFCW is the sole representative” of UBER drivers for the purposes of the dispute resolution processes created by the agreement, and the agreement by UBER (under the heading of “Exclusivity”) that “it will not enter into any agreements similar to this Agreement with any other labour union.” This appears to preclude even the possibility of CUPW entering into a similar arrangement that would have it join UBER in lobbying for a special gig worker labour standards regime in order to gain access to the same access and representation rights as UFCW, were CUPW so inclined. Only UFCW can have that deal.
Therefore, there is no question that the agreement provides UFCW with a suite of access and representation rights and that the parties have agreed that no other union will be given the same (or “similar”) benefits. If UBER had granted CUPW’s request for equal access and representation rights to UFCW, it would have been in violation of the agreement with UFCW. The question that is before the OLRB right now is whether UBER violated Section 70 of the OLRA by granting only UFCW these access and representation rights. CUPW asserts that it was actively organizing UBER drivers when UBER agreed to grant UFCW “exclusive” representation rights.
Some questions to ponder:
What do you think about CUPW’s case? Has the secret deal between UFCW and UBER crossed the line into unlawful interference in the formation, selection, and administration of trade unions?
If CUPW wins its unfair labour practice complaint, what do you think the proper remedy should be? Should/could the OLRB strike down as unlawful the representation agreement
Some other final thoughts on UBER and Worker Status Issues:
Keep in mind that this case is taking place at the same time that the two other important UBER cases are before the OLRB that raise head-on the question of whether UBER drivers are “employees” under employment standards legislation.
The first case is the Heller v. UBER class action. UBER has already dragged out that case for years by attempting to defend its ludicrous mandatory arbitration clause that required drivers to pay thousands of dollars to launch an arbitration process held in the Netherlands to recover even $20 in unpaid wages. Thankfully, the Supreme Court struck down the arbitration clause and a great precedent was created when the Ontario Court of Appeal ruled that any arbitration clause that blocks access to statutory complaint procedures is void. The class action is now back before the court ready to proceed on the merits of whether UBER drivers are “employees”.
The second case is Uber Portier Canada v. Sharma, which involves a challenge launched by UBER against an employment standards officer decision finding that an UBER Eats courier was an “employee” of UBER under the ESA. I’m attaching below my summary of the ESO decision taken from my forthcoming 3rd edition of The Law of Work. Given UBER’s history of racking up millions of dollars in legal fees to drag out legal cases, the final outcome of this case may not be known before the 4th edition of Law of Work is done.
I noted in my 2020 post that an aspect of the UBER agreement with UFCW that is interesting is that the agreement may actually help the argument that UBER drivers are “employees”. How many independent contractors (that is, “people running a business”) are represented by a trade union in their dealings with management? The UFCW-UBER agreement describes an arrangement in which workers are subordinate and vulnerable in their relationship with UBER and in need of protection. The arrangement is one in which a trade union is representing workers who sure look like employees.
I argued a case over 20 years ago regarding whether an owner-operator taxi driver was an employee of a dispatch company under workers’ compensation legislation. The facts were not identical to the UBER situation, but there’s overlap and the fact that there were rules about when the driver could be suspended from the dispatch and that a union representing the drivers could challenge that “discipline” was important. We’ll see whether the terms of this agreement between UBER and UFCW end up playing a role in the ongoing “worker status” cases.
Onward and upward!
