Gordon Campbell on Britain’s court ruling against Uber   31 Oct 2016

Column - Gordon Campbell

Gordon Campbell on Britain’s landmark court ruling against Uber

First published on Werewolf

The shockwaves from Uber’s defeat last week in a British court have reportedly already begun to wash up here in New Zealand with some local drivers thinking of taking a similar class action.

In its ruling, the British tribunal struck a blow for common sense - and for the rights of all the workers toiling away within other parts of the so called ‘gig economy’ beyond Uber, but which happen to use the same ‘independent contractor’ fiction. Uber drivers have been found to be employees - and not independent contractors who all just happen co-incidentally to use the same phone app under the same work conditions, and for the same share of the income they generate. Uber is bound to appeal, but for now…the ruling means that Uber may finally have to front up with the kind of work conditions that employees can normally expect from the boss that sets their wages, and conditions of work. For example : sick pay, holiday pay and minimum wage rates may now have to be factored into the Uber model. It is a landmark decision, available here.

The tribunal’s findings against Uber are on five points, but as the Tech Crunch site points out, the core is probably this :

Uber’s counsel had tried to argue that the company merely supplies ‘partner’ drivers with “business opportunities” but the tribunal disagreed, taking a sceptical and ultimately dim view of its arguments — including dubbing Uber’s “supposed driver/passenger contract” as “a pure fiction which bears no relation to the real dealings and relationships between the parties”.

Setting out its conclusion, the tribunal writes:

We have reached the conclusion that any driver who (a) has the App switched on, (b) is within the territory in which he is authorised to work, and (c) is able and willing to accept assignments, is, for so long as those conditions are satisfied, working for Uber under a ‘worker’ contract and a contract within each of the extended definitions.

And furthermore :

[The tribunal] goes on to say it was struck by “the remarkable lengths” to which Uber has gone to try to compel agreement with its own definition of its company and the legal relationships between the various parties involved — describing it as “resorting in its documentations to fictions, twisted language and even brand new terminology” to try to advance its arguments.

“It is, in our opinion, unreal to deny that Uber is in the business as a supplier of transportation services,” it adds. “Simple common sense argues to the contrary.”

And also :

…..Uber’s counsel had tried to argue that the company merely supplies ‘partner’ drivers with “business opportunities” but the tribunal disagreed, taking a sceptical and ultimately dim view of its arguments — including dubbing Uber’s “supposed driver/passenger contract” as “a pure fiction which bears no relation to the real dealings and relationships between the parties”.

The tribunal ruling also contained fascinating insights into how Uber dictates the terms of the relationship with its drivers : eg Uber’s control of fare levels and surge pricing, its creaming off of one quarter of the fare for itself ( a rising ratio) its discouragement of drivers being able to solicit tips, the contractual demand that drivers do not speak negatively of Uber...etc etc. The British court is right. It doesn’t sound much like an ‘independent’ relationship between equals.

Wider implications

As Scoop has been reporting for some months, the British ruling will be of interest to the court in northern California which has, for some time, been wrestling with exactly the same implications of deciding whether Uber drivers are employees or independent contractors.

For New Zealanders, the issue will have a familiar ring, given that our Supreme Court reached the same conclusion in 2005 as the British tribunal has just done, on a case brought by a worker alleged to be an independent contractor in our film industry. The Supreme Court found that he was an employee. Famously, the Key government then caved into Hollywood pressure over The Hobbit production, and passed a law that overturned the Supreme Court ruling, thereby stripping workers in our film industry of the rights and protections they would otherwise enjoy.

Fitting then that the news of the British ruling on Uber should have come through just after the public had bid its farewells to trade unionist Helen Kelly. In Britain, the parties to the Uber case have until December 2 to come up with ways on how they plan to proceed. But for now…as one leading British labour academic has said in a written statement :

“The Uber ruling will demystify much rhetoric on the ‘gig economy’ being inherently liberating, and stimulate the debate on the opportunities, limits, challenges and ways of addressing the new forms of contracting work and activities that do not fit into the traditional categories of work.

“As many rights and obligations are based on these categories — from social protection rights (such as working time or minimum wage coverage) and contributions, to taxes and representativeness — it is of paramount importance to clarify how digitalised activities will align with the more established labour market models. While these are redefined, the safer default option may be to consider these forms of work as employment rather than self-employment.”

Exactly. Hopefully, the Uber drivers here will take a class action case, and eventually re-instate the law as it was before The Hobbit cave-in.

Workin’

And here’s Nina Simone, doing her version of Oscar Brown Jnr’ 1960 jazz classic “ Work Song” …which was something of an urban civil rights anthem at the time. And we’ve still got so terribly far to go.

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