Employment
The Employment Court hears the inner workings of Uber’s relationship with executives as it considers whether they are truly independent contractors, or employees of the company. Rebecca Macfie reported
Is Uber a digital marketplace where drivers and passengers are seamlessly brought together to undertake efficient private transactions? Or is it really an employer hiding in the gray folds of the law to avoid providing minimum wages, annual and sick leave and to prevent collective bargaining between managers?
Is it just a smart technology company that “fits and facilitates” the buying and selling of transportation services, just like TradeMe does in the second-hand market and AirBnB for holiday homes? Or is it games and manipulation of vulnerable communities that are desperate for an income?
Is it a neutral platform on which managers can sign up and earn money whenever they want, without schedules and fixed hours and riotous bosses? Or is this flexibility and independence a cover for economic servitude, in which power is exercised by Uber through opaque algorithms, one-sided contracts, ratings, micro-rewards and fines?
As a major trial in the Employment Court continues until its second week, these are the questions before Chief Justice Christina Inglis, who was asked by New Zealand’s two largest unions in the private sector to declare that Uber drivers do not – if the ride-sharing is not a huge insistence – independent contractors, but rather employees who are entitled to the range of statutory protections.
Uber maintains that no one is forcing drivers to do anything; they fire up the application whenever they want, are free to use competitive ride-sharing applications like Ola and Zoomy, and can even work in the traditional taxi market. They can drive their Uber pass to another job or business, study, parenting or hobbies; it’s entirely up to them.
But this idea of choice – which was repeatedly quoted by Uber lawyer Gillian Service in her cross-examination of four driver witnesses in the case – sometimes provoked emotional reactions.
“I have a family to support,” Nureddin Abdurahman told Service in response to her suggestion that it was his choice to sign the Uber service agreement and use the platform. “They decide and I just agree,” he said. He had “no power” to change anything in the agreement.
“Let me put it this way – in New Zealand there are people who work 70, 80 hours a week. why? Do you know in the refugee community, the way we live, the father leaves in the morning to take a taxi, and comes back in the evening and then the mum goes to clean in the evening. This is not a choice. It is not a choice to work 90 hours a week. ”
Abdurahman, who came from Ethiopia in 2008 and chairs the Wellington African Community Council, told the court that in addition to driving for Uber, he helped many migrants and refugees driving for the company. “My communities, we are running away from exploitative systems. I know one when I see it. The way Uber works – that’s exactly what it is.
“It’s a modern type of slavery. In the old days, people used to have guards to subject you. Now they are playing with your emotions. They know when you’re desperate, it’s when you run to them. That’s the time they cut you. “
He was driving a taxi, but the business he was with closed during the first Covid restraint. He turned Uber out of necessity, no choice, he said. As one of nine brothers and sisters, he had a duty to send money home. “For me, when I go to work, it is not how much I am sometimes paid per hour. I have to send $ 100 or $ 200 to my family this week – I do not care what it takes. I’ll just do something, I have to get that $ 200, even if it’s exploitative. “
With the opening of Uber’s defense argument yesterday, Service emphasized Abdurahman’s political tendencies – he is a Labor – endorsed candidate in the local body elections – and told the court that the plaintiff unions, E tū and First, were suing Uber estimated to fit an “agenda”.
“The plaintiffs fundamentally do not agree with the defendants’ [Uber BV and its New Zealand and international subsidiaries Rasier and Portier] digital transaction platform business models and the technology and digital services provided by the defendants. The plaintiffs consider the absence of work in ride-sharing and meal delivery platforms to be a bad thing. ”
She said Uber’s transportation and meal delivery platforms “are flexible; the platforms are accessible; and the platforms make it easier for users to manage or deliver meals whenever and wherever they want with limited obligations. It creates an environment where there are low barriers to entry for revenue opportunities for managers, delivery partners and restaurant partners. ”
The question of whether managers were employees or contractors under the Employment Relations Act required a fact-based investigation, Service said. The law has been in place since 2005 when the Supreme Court ruled in the case of model producer James Bryson, who was found to be an employee of the film company Three Foot Six (a case that five years later became an ugly dispute between actors and urged Sir Peter) Jackson on making The Hobbit, and a change in law under urgency to carve out film workers).
A succession of international court cases contradicts Uber’s argument that it is merely a technology platform, not an employer of executives. But Service said it was not convincing in the New Zealand context. While some of the facts in the cases heard by the European Court of Justice, France’s Cour de Cassation, the British Supreme Court and the Dutch District Court of Amsterdam are known, the present case concerns “four individuals and the gig economy. gone to Wellington “. ”, And it had to be decided on the evidence and under New Zealand law.
The four executives represented in the case – including Abdurahman – entered into “commercial transactional relationships” with Uber and its subsidiaries, and arrangements “worked as intended”, she said.
The elements of the Uber platform that portrayed the litigants as controlling drivers – such as minimum user standards, promotions and incentives – were simply “part of maintaining a healthy marketplace for all platform users”.
As part of the assessment of whether the various incentives, payments, fines and rewards are methods of control (an important element for the court to weigh whether the drivers are employees), or simply part of the operation of an efficient market , the court heard a wealth of detail about the daily interactions between managers and the company.
For example, if a passenger soils a driver’s car, the driver may charge a cleaning fee from Uber, but the court heard this process is one-sided and frustrating. For example, Mea’ole Keil found that when a passenger vomited in his back seat, Uber was willing to pay a $ 150 cleaning fee; but when another person stepped on dog faces and brought them into the car, Uber would only push up $ 20, even if he had to sign off the app and clean up the mess in his car during rush hour.
“Uber has to decide whether we receive the fee or not, and at what amount,” Keil said.
Drivers also described problems with Uber over the payment of $ 10 cancellation fees – which can apply when a passenger cancels or does not show up – from which Uber deducts its 28 percent service fee. The company does not have a physical base in New Zealand, and all interactions on issues such as cleaning and cancellation fees are with a call center in the Philippines.
Similarly, when drivers are suspended from the application for some reason – for example, Keil was unilaterally blocked last year while Uber looked into a complaint from an anti-wax passenger who commented on his pro-wax comments complained – any challenge should be taken up with the Philippines.
Each record of such interactions generates a so-called Bliss Ticket (named after Uber’s “support content platform”, Bliss Content), and is added to the large amount of data held about individual drivers.
Another area in which executives say Uber has total control is the operation of “rising” prices, when prices can triple and executives can increase their earnings. Emma Foley, director of management and market for Australia and New Zealand, told the court that “dynamic prices” (the official name for rising prices) are a feature of “managing demand and supply for travel”. It was an “another service that drivers access when they choose to use the New Zealand ride platform”.
But Keil said rising prices and the strategy behind them “are all determined by Uber … Drivers are not notified in advance when and where ‘rises’ occur. We just hope we catch a good wave when the boom begins.”
Drivers can earn “status” by driving regularly and achieving high passenger ratings. At the bottom are blue status, then gold, platinum and diamond at the top. To maintain high status, they must maintain a minimum rate of ride acceptance and a high customer rating. High-status drivers also get discounts on gasoline, oil changes and tire replacements.
Top status drivers also get more information – especially when a ride appears on a diamond driver’s application, they can see the length and direction of the ride, and therefore whether it’s worth accepting. Low drivers do not get this information.
Abdurahman had diamond status but lost it because he did not do enough rides.
“When I was on diamond status and maintained an acceptance rate of 85 percent or more, Uber through its app provided me with the duration and direction of the trip on a travel request. This information has helped me to manage economically and wisely. Now I’m a blue level driver – the lowest level in the reward system – my access to the additional travel information has been removed by Uber. All I can see is a request that comes through with barely any information about the trip. I have no idea how far the journey will be or how long the journey will be after pickup. I have no idea of the profitability of the trip. If I accept the trip, I can drive 30 minutes to pick up a client for a three-minute job. ”
But Uber argues that none of these elements of the system indicate control or the existence of an employment relationship.
“[N]”one of the individuals was employed by any of the defendants at any time,” Service told the court. “Instead, the real nature of the relationships in this case is, and was, that recorded in the service agreements. This is consistent with the fact that the defendants provide and support digital platform marketplaces by adapting, facilitating and encouraging users on those platforms. ”
At the same time as the court in New Zealand continues to hear the case, however, Uber’s Australasian executive has acknowledged the need for greater protection for drivers. Australia and New Zealand general manager Dom Taylor told the Sydney Morning Herald last week that the company supports standard, minimum compensation rates in Australia’s performance economy.
“We support an earnings safety net for gig workers that reflects the nature of independent work and retains the flexibility that gig workers value,” Taylor said, emphasizing that it is “critical that it be an industry-wide reform.” However, he did not believe that Uber’s workers were employees.
The New Zealand case is also taking place against a background of increasing pressure to update the law and explain what distinguishes those who actually run an independent business from those who are labeled as contractors but are under the control of and integrated into the company they work for. A three-party working group has made recommendations to Michael Wood, minister of workplace relations, which is expected to make proposals for public consultation later this year.