The Supreme Court has been told that Uber's arguments against drivers being employees are "fairytales". Photo: AFP
Uber driver's contracts were "repressive" and could be altered "at the stroke of a pen", lawyers for E Tū and First Union have told the Supreme Court in Wellington.
Uber is appealing after losing a previous appeal against a landmark Employment Court decision in 2022, where four Uber drivers were granted workplace protection.
This could give the drivers employee benefits such as leave entitlements, minimum wage and holiday pay.
Counsel for the drivers Peter Cranney said they were seeking fundamental "human rights" in relation to the work they did for the company.
"What we want out of it is minimum entitlements and we also want the right to unionise and to organise, because that's fundamental to human rights in any country such as ours and there's thousands of people that don't have it," Cranney said.
Overseas courts ruled against Uber assertions
Cranney told the court that Uber's arguments against drivers being employees were "Jack and the Beanstalk, fairy tales".
He said courts overseas had ruled against the company's assertions of a contract between drivers and passengers - independent of Uber - and Uber's lack of control over drivers, and called them "fictional".
"The passengers send a request to Uber and Uber doesn't say 'yes, I'll send a taxi', Uber sends a price and you accept it as the passenger.
"It's nothing to do with the driver. The contract is formed at that point," Cranney said.
'A total surrender of all contractual power'
Cranney said driver's pay and employment status could be instantly changed by the company "at the stroke of a pen".
He said the contractual relationship between Uber and the drivers was "repressive"
"It allows the engager [Uber] to do anything at all it wishes to do. It is a total surrender of all contractual power to Uber.
"The driver has no control over the rider driver contract. It's not really a contract, it's a rule written by Uber. Uber controls the entire contractual relationship," Cranney said.
Cranney highlighted an example in 2016 when the company unilaterally lowered fare prices in Auckland and Wellington by 20 percent - drastically altering the income drivers in the area were able to achieve.
'Serious consequences' for drivers
He went on to argue the company's points and level systems, which offered benefits to drivers who attained high levels of acceptance of jobs - at times dictated by the company - and who received low levels of complaints, constituted a degree of control greater than a traditional employer would exercise.
"If you fall below 4.7 in your behaviour, through a system which they totally control... you're in big trouble.
"You must have almost perfect behaviour or at least face the possibility of very serious consequences - if the car was smelly or wet or you said something out of kilter. But most importantly you must work these hours to get the points - after midnight and so on," Cranney said.
He described the practise as an "intense form of control" and a "classic form of subordination".
Uber says Employment Court 'erred' in interpretation of Act
Yesterday counsel for Uber outlined their arguments behind the assertion drivers were not employees in the terms dictated by the Employment Relations Act (ERA).
They said the Employment Court and the Court of Appeal had erred in their interpretation of the ERA in determining that drivers were employed to do work for hire or for reward while they were logged into the Uber app.
They said drivers acted as independent providers of transportation services to "riders" and "eaters" with whom they entered into contracts using the app provided by the Uber companies.
Uber's lawyers argued drivers had the freedom to work when and where they wanted using the app, and were also free to engage in other employment opportunities as a result of the arrangement.
Counsel for the company told the Supreme Court drivers were fully aware of the contractual relationship between themselves and the company when they signed up to Uber.
'Drivers choose to accept and use it'
This morning lawyer Paul Wicks told the court drivers were in control of important business decisions in a manner not typical of an employee situation.
"They decided whether, when, where and for how long to drive or whether to do other work instead.
"They also had the ability to - and did - make business decisions around assets, business costs and organise their tax affairs.
"Uber accepts that drivers did not have input into the structure but the drivers choose to accept and use it. They entered into a service agreement with knowledge of what the deal was and acted accordingly," Wicks said.
The judiciary panel reserved their decision.
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