Employment’s new frontiers still need old-style boundaries
The poster children of the fourth industrial revolution, Uber and AirBnB, were “on trial” in SA last week. If you were to read this introductory paragraph on a signboard along a busy road, it might seem alarmist. However, nothing is nearer to the truth.
It started with a South African film-maker being thrown down a flight of stairs by a Dutch AirBnB host. Reminded that “Amsterdam isn’t Africa”, she became a flashpoint for the age-old European mistrust of all that is foreign. We should be grateful that her friend, artist Zanele Muholi, caught it all on tape.
Then it was Uber’s turn to face the fire via the blockades and protests to which we have become accustomed in the duel between Uber and metered taxi drivers.
However, the contest with the most far-reaching implications for the future of the sharing or gig economy happened in the chambers of the Commission for Conciliation, Mediation and Arbitration (CCMA), far from the blocked off-ramps or the violence of a racist Dutch AirBnB host.
Last week, the CCMA was charged with determining whether dismissed or “disconnected” Uber drivers were entitled to recourse for unfair dismissal. The underlying dispute was whether they were employees of Uber or independent contractors.
Uber has often suggested that its drivers are “partner drivers” (independent contractors) and no employment relationship exists between the technology platform and the drivers. Surely, this is the case, as Uber owns no cars and merely provides technology, right?
The CCMA found otherwise, despite the fact there is no direct or physical supervision and control is exercised through technology. As such, Uber drivers have now been classified as employees.
One expects Uber to appeal against this judgment, as it has in other jurisdictions across the globe.
A lesson emerges: digital and technology shifts are inevitable, but this should not imply a hands-off regulatory approach when the consequences of doing so are so stark.
Unlike AirBnB, where contracting happens between the guest and the accommodation provider, with the technology platform connecting the two contracting parties, “riders choose Uber to provide them with a lift through its drivers”, the CCMA noted.
It went further, arguing that the rider has no interest in or say over which driver arrives. A corollary point is that the driver has no say over the fare (and no negotiating power) and is not aware of the destination until the rider requests the trip and is picked up.
Such an asymmetrical power relationship is characteristic of an employment relationship rather than that of an independent contractor. This is despite, as Joseph Munzvenga of the Cape Town Uber Drivers Guild told me last week, drivers signing digital agreements reinforcing their role as “independent contractors”.
DIGITAL AND TECHNOLOGY SHIFTS ARE INEVITABLE, BUT THIS SHOULD NOT IMPLY A HANDS-OFF REGULATORY APPROACH
What will this “award” mean? Mario Jacobs, a researcher at the University of Cape Town’s Labour and Enterprise Policy Research Unit, says if the award stands, it will mean Uber drivers will be entitled to payment for overtime, leave, unemployment insurance and other allowances. It may also mean greater payroll taxes for the state and a likely end to the global price undercutting strategy that Uber has used to muscle in on the territory of metered taxi operators.
More important, it throws down the gauntlet to the organised labour movement, which has committed to organising casualised and atypical workers.
These “gains” of the emerging tech-mediated labour movement will need to be defended. Will the established federations come to the party? Only time will tell.