An Uber driver picks up a fare in Toronto on Aug. 24, 2022.Christopher Katsarov/The Globe and Mail
The United Food and Commercial Workers, one of Canada’s most prominent private-sector unions, worked closely with representatives from Uber Technologies Inc. to ensure that app-based drivers and delivery workers in Ontario would not be granted employee status – a change that would have expanded their pay and benefits.
UFCW Canada and Uber have been linked in the public eye since January, when the two organizations announced they had struck a deal. Under the formal agreement, Uber gave the union the right to represent its 100,000 Canadian drivers and delivery couriers in job-related disputes, such as appeals of deactivations of their Uber accounts.
But hundreds of pages of e-mails and reports obtained by The Globe and Mail through freedom-of-information requests to Ontario’s Ministry of Labour show that the union’s partnership with Uber went far beyond what the two organizations disclosed publicly. The documents detail the way the union and the tech giant jointly pressed the Ontario government to exclude app-based gig workers from being covered by the province’s Employment Standards Act, which requires companies to provide benefits and a minimum wage to their employees.
Instead, the UFCW and Uber worked together to encourage the province to allow app-makers to continue to classify their workers as independent contractors. And the two organizations also worked together to influence the wording of the province’s Digital Platform Workers’ Rights Act, which was passed earlier this year. The new law provides some protections to gig workers, but denies them the full suite of benefits that would be their due if they had formal employment.
Uber and the UFCW say their deal protects gig workers’ ability to work on their own schedules, as much or as little as they want. But labour experts say it’s unusual for a union to co-ordinate to this degree with a large employer – especially one like Uber, which has long been criticized for using its power over workers to defeat their attempts to win benefits and higher wages.
“To see a prominent and powerful union essentially in cahoots with Uber in such a blatant way to undermine gig workers is quite startling,” said Veena Dubal, a professor of law at the University of California, Hastings who researches the impacts of technology on workers.
Ontario is not the only jurisdiction that views gig workers – such as Uber and Lyft drivers – as independent contractors. They have the same status throughout Canada, and are therefore not entitled to things that come with being employees, such as pension plans, unemployment insurance, a minimum wage and paid sick days.
Labour advocates – including unions, labour lawyers and workers themselves – have spent years fighting against what they perceive to be an erosion of workers’ rights in the name of flexible gig work. In Ontario, they have been pushing for gig workers to be reclassified as employees under the province’s Employment Standards Act.
But for Uber, a change in employee status in any jurisdiction where it operates (especially one as big as Ontario) would be damaging to its business model, because providing those benefits and ensuring drivers make at least minimum wage would dramatically increase its operating costs.
For years, Uber has been trying to counter legislative challenges from governments and the labour movement. One of the ways it has sought to do that is by reaching agreements with unions to provide drivers and couriers with some benefits, while ensuring they remain independent contractors.
After Uber announced its agreement with UFCW Canada in January, the documents show, the company and the union worked together to influence the Ontario government’s labour policy.
Between Feb. 1 and March 24, Mark Hennessy, a special assistant to UFCW Canada’s president, and Jake Brockman, Uber Canada’s manager of policy, together exchanged 11 e-mails with staff members from Ontario’s Ministry of Labour.
Uber and the UFCW were attempting to convince the government to adopt a number of proposals on gig workers’ rights that both parties had come up with. One of those proposals was that workers not be classified as employees, and that regulation governing them be excluded from the province’s Employment Standards Act.
The flurry of e-mails and documents coincided with a major legislative proposal that the Ontario government was in the midst of crafting.
In April, provincial legislators passed the Digital Platform Workers’ Rights Act (also known as Bill 88), which included, among other things, provisions for a benefits fund that gig workers will be able to draw from. The bill also instituted a minimum wage for those workers, but only for “engaged time,” meaning companies are required to pay them for periods when they are driving customers or doing deliveries, but not for wait times in between.
Gig workers have long said that Bill 88 will not change their wages at all, because of the engaged time clause. And the bill did not change their employment status; the province still considers them independent contractors.
In the lead-up to the bill being passed, the documents show, the UFCW and Uber successfully convinced the government to include certain things in the legislation.
“We have already begun putting together a fulsome information package of what we hope governments, like Ontario, will implement in regards to app-based workers,” the UFCW’s Mr. Hennessy wrote in a Feb. 1 e-mail to Alexandra Rodgers, director of policy at the Ministry of Labour, as well as Walid Abou-Hamde, who was then director of stakeholder relations at the ministry, and Uber’s Mr. Brockman.
“Please feel free to contact Jake Brockman, Uber Canada, or myself, should you have any questions or require additional information,” Mr. Hennessy added.
On Feb. 10, Mr. Hennessy e-mailed what he called a “confidential document” to Ms. Rodgers, Mr. Abou-Hamde and Mr. Brockman. The 13-page attachment is titled “App-Based Workers Act – Legislative Considerations.” The document says it was jointly prepared by Uber and the UFCW.
Among other things, the document says app-based work is different than other types of work, and therefore does not fit well into existing employment legislation.
In the document, Uber and the UFCW propose that the government make an amendment to current legislation to ensure that the Employment Standards Act and the Occupational Health and Safety Act do not apply to app-based workers. The document says this would allow the province to implement better working standards while “preserving flexibility” for gig workers.
On March 24, Mr. Hennessy sent ministry representatives a fact sheet outlining the UFCW and Uber’s joint position on Bill 88. (At this point, the bill had been outlined and was being debated by policymakers.) The fact sheet specifically says the government should adopt “dependent contractor” status for gig workers, a classification that was first proposed by the government-appointed Ontario Workforce Recovery Advisory Committee in a December, 2021, report.
A dependent contractor would get some benefits (such as minimum wage for engaged time, and a benefits plan), but would still not be classified as an employee under provincial legislation. The government ended up not adopting that classification, instead applying some of those benefits to independent contractors.
Uber spokesperson Keerthana Rang told The Globe that the company’s joint advocacy work with the UFCW, which she said is ongoing, protects flexibility for drivers and delivery people. And she noted that the effort had secured new benefits for workers, including a minimum earnings standard and a benefits fund.
“85 per cent of all drivers and delivery people expressed support for the Uber-UFCW agreement,” Ms. Rang said. She added that 89 per cent of Uber workers were supportive of provincial governments enacting the package of industry reforms the company and the UFCW had proposed.
“When you see how closely linked UFCW Canada is with Uber, the most important question is, why would both sides do this?” the University of California’s Prof. Dubal said. “For Uber, it is strategic to build relationships with unions to have an ally when lobbying governments on labour legislation. For some unions, the incentive can be financial.”
According to both the UFCW and Uber, the January deal between them does not involve gig workers becoming dues-paying members of the UFCW. Rather, both entities share the administrative costs associated with the union’s representation services. Because of this, it’s unclear if the UFCW gained financially from the deal. The union did not directly respond to a question about this from The Globe.
In an e-mailed statement in response to questions about why it struck the deal, and about the union’s stance on whether gig workers should be classified as employees, the UFCW said “a worker is a worker is a worker.”
The union added that it is “fully committed to representing the interests of drivers and delivery people on the Uber platform and all gig workers.”
Since striking its national agreement with Uber earlier this year, the UFCW said, it has received 7,300 requests for assistance from workers, and has brought forward nearly 400 cases to Uber.
“We successfully negotiated the reactivation of 80 drivers to the Uber platform. That means, in just 8 months, the union has been able to get 80 drivers back to work,” the e-mail said.
David Doorey, a professor of labour law at York University, said the arrangement between Uber and the UFCW represents a sort of “quid pro quo” for the union.
“In this case, the deal appears to be that the UFCW was granted some sort of voluntary recognition to a thin form of representation of Uber drivers in exchange for its agreement to advance a joint position on law reform to the government,” he said.
Uber has struck partnerships like that in other parts of North America. In February, the state of Washington passed a bill that gave gig workers benefits such as paid sick time, a process to appeal account deactivations and workers’ compensation, while continuing to classify them as independent contractors. The bill was collectively backed by Uber, Lyft and the Teamsters union.
In 2019, in California, Uber and Teamsters supported a similar bill, which gave workers certain benefits but didn’t reclassify them as employees. At the last minute, Teamsters pulled its support for the bill.
“This tactic used by Uber is not new. Ultimately, the company does not want to pay workers by the hour. Right now, they can use an algorithm to assert control over their workers and limit the share of revenue that workers receive,” Prof. Dubal said.
Prof. Doorey said it appears that what the UFCW and Uber were pushing the Ontario government to adopt in Bill 88 aligned strongly with Uber’s vision for regulating app-based workers. “It is certainly interesting, if not surprising, that UFCW’s position is so out of line with the general thrust of reforms being pushed by other organizations representing gig workers across North America.”
Jennifer Scott, president of Gig Workers United, a union backed by the Canadian Union of Postal Workers that has been pushing for gig workers to be classified as employees, said it is disappointing that even unions can’t agree on “who is and who isn’t an employee.”
Ms. Scott noted that a decision by the Ontario’s Ministry of Labour, issued before Bill 88 was passed, found that a Toronto-based Uber courier, Saurabh Sharma, was an employee and not an independent contractor. He was awarded close to $1,000 in back wages.
“There’s a precedent for this now,” Ms. Scott said.
For Ms. Scott, the fact that Gig Workers United’s members have taken it upon themselves to organize for their collective rights shows how dire the situation is for workers.
“Why do we do all this extra work in the first place? Because we know we are employees, and we just want to be recognized as employees. This misclassification must change,” she said.
The UFCW’s own position on gig workers appears to have changed over the past two years. In March, 2021, the union criticized Uber for a proposal it sent to provincial governments called “Flexible Work,” which asked those governments to adopt a new set of regulations that would govern gig workers, excluding them from provincial employment acts.
At the time, UFCW Canada’s president, Paul Meinema, called the proposal “a cynical ploy about so-called benefits” and emphasized that Uber workers were “employees entitled to the full protection and rights under current labour laws.”
When asked why the UFCW had changed its position on the employment status of gig workers, the union did not respond.