Lawyer calls Uber’s agreement with drivers a legal fiction
Agreements rideshare giant Uber had with drivers were a legal fiction that dictated terms and said “You are not an employee”, the Court of Appeal has been told.
The New Zealand Council of Trade Unions was allowed to make submissions as an “intervener” in the appeal a group of companies from the Uber group had taken against two unions.
The companies’ appeal was an attempt to overturn an Employment Court finding that four drivers, who were union members, were employees not contractors.
As employees they would have guarantees such as minimum wages, holidays, and other work conditions.
Yesterday, the second day of the Court of Appeal hearing, a lawyer for the Council of Trade Unions, Simon Mitchell, KC, said the terms of the agreement between Uber and the drivers did not reflect reality.
Over time, and as Uber faced other action from drivers, parts were carved out of the agreement that pointed to the drivers being employees.
Uber did not negotiate the agreement. It was presented to drivers on a “take it or leave it” basis, Mitchell said.
Uber dictated the terms and told the drivers they were not employees. Mitchell asked the Court of Appeal to look beyond the terms of the agreement, which he said was a legal fiction.
The case before the court directly concerns four drivers, but it was told that about 900 others, who were now union members, had filed cases in the Employment Relations Authority. They want wage arrears and other minimum conditions available to employees.
Most are members of First Union, but some are with E Tū. Those cases are awaiting the Court of Appeal decision, which was reserved.
The two unions opposed Uber’s appeal. Their lawyer Peter Cranney also told the court that the agreements did not reflect reality. He said they were complex and disguised the nature of the relationship between Uber and the drivers, most of whom were immigrants just trying to make a living.
There was no way to conclude the drivers were working in their own businesses on their own account.
Uber collected the money and paid the drivers their share of the fares that Uber set, Cranney said.
Uber controlled all aspects of the transaction, and the customer loyalty and goodwill flowed to Uber, not the driver, he said. With 6000 or 7000 workers, Uber was one of New Zealand’s largest employers, he said.
Business New Zealand was also allowed to make submissions as an “intervener” in the case. Its lawyer Peter Kiely said the case showed the challenges of new ways of working.
What was needed was certainty of principles and predictability around who was an employee.
The Employment Court decision under appeal had created uncertainty, he said.
Paul Wicks, KC, the lawyer for the Uberrelated companies, said giving the drivers employee status would cause practical difficulties.
The unions suggested the minimum wages calculation for drivers would start when they signed in to the Uber system. But they could do that when they were at home and not actually working.
If they ignored three trips offered to them they could be signed off the system, but then they could just sign back in anyway.
Uber said most drivers want the flexibility of deciding where, when, and for how long they work.
They were able to have other jobs, including with Uber’s commerical rivals.