25 Oct 2022

Uber to appeal against 'historic ruling' against rideshare company

7:08 pm on 25 October 2022

By Tracy Neal, Open Justice reporter of NZ Herald

Greater Wellington has funded a limited number of Uber fares for people with significant needs such as the eldery while they rectify their timetable and route issues as a result of recent changes.

The Employment Court has deemed four Uber drivers as employees of the international ride-hailing service. Photo: RNZ / Rebekah Parsons-King

Global rideshare company Uber is to appeal against what's been described as an historic ruling by the New Zealand Employment Court today.

Celebrations by unions were short-lived, as Uber announced its plan to appeal against a decision granting four drivers the status of employees rather than contractors.

The case was brought jointly by FIRST Union and E tū, which predicted it might have significant implications for other Uber drivers.

However, the court said the formal declaration was made in respect of the individual drivers in this case.

It did not have jurisdiction to make broader declarations of employment status to include, for example, all Uber drivers, Chief Employment Court Judge Christina Inglis said.

"It follows that there is no immediate legal impact in relation to other Uber drivers.

"In other words, they do not, as a result of this judgment, instantly become employees."

NZCTU President Richard Wagstaff said everyone who worked for Uber, and similar gig economy companies, deserved to be treated as employees.

"These drivers deserve protection under New Zealand's employment law, including pay, guaranteed hours, leave, Kiwisaver contributions, and the right to unionise."

Uber told Open Justice it was disappointed by the Employment Court's decision, particularly considering the same court in 2020 ruled a rideshare driver using the Uber app was not an employee.

The court said in the only New Zealand case before this, an Uber driver was found not to be an employee.

"We are reviewing the decision in detail and will be filing an appeal," a spokesperson for Uber in Australia and New Zealand said.

In response to Uber's statement, Wagstaff told Open Justice that while the appeal announcement was not entirely unexpected, it was nonetheless disappointing.

"It will delay justice for these workers".

Wagstaff reiterated how significant the court's decision was for the wider workforce, on which Uber depended.

Uber acknowledged that the ruling underscored the need for industry-wide minimum standards for on-demand work.

It was committed to improving standards for all independent workers, across all platforms, but it was equally important to preserve the flexibility and autonomy that drivers said was important to them.

"Kiwi drivers consistently tell us that the flexibility that comes with driving with Uber is what they value most," Uber said.

Uber said many OECD countries, including Australia, the US and UK, were leading the way on policy reform that reflected the realities of a modern gig economy and raised the bar for independent contractors.

"We will continue to work collaboratively with industry and the New Zealand government throughout the contractor policy reform process."

Wagstaff said the ruling came as unions waited for a response from the government's Better Protections for Contractors workstream.

Judge Inglis said on a general level the Uber cases reflected a "testing of approach" to determining employment status, and minimum employment entitlements, in light of fast-moving changes to how work was done.

Employment status was described as the gate through which a worker must pass before they could access a suite of legislative minimum employment entitlements, such as: The minimum wage, minimum work hours, rest and meal breaks, holidays, parental leave, domestic violence leave, bereavement leave, and the ability to pursue a personal grievance.

It was also the gateway to union membership and collective bargaining, and the gate through which the Labour Inspector must pass before taking action on behalf of a worker, or against a workplace.

"The width between the gate posts has always been important, but it is fair to say that it has assumed increased importance in light of the growing fragmentation, casualisation and globalisation of work and workforces in New Zealand," Judge Inglis said.

She noted similar declarations of employment status had been advanced in other jurisdictions, with mixed results.

In concluding that each of the plaintiff drivers was in an employment relationship when carrying out driving work for Uber and was therefore entitled to a declaration of status, Judge Inglis considered a list of matters relevant to assessing the real nature of the relationship between the company and the drivers in this particular case.

She said globally such (digitally run) platforms were becoming increasingly commonplace, and New Zealand was no exception.

This story originally appeared in the New Zealand Herald

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