Uber ruling could pave way for couriers and many others to claim employee rights

Saturday, 29 October 2022

NZ Post won’t say if it thinks its courier drivers may be able to claim they have been employees all along, but Chorus says “all employers” with contractors will be considering an Employment Court ruling.

Broadband company Chorus is backing claims that a landmark ruling by the Employment Court could have implications well beyond Uber and the so-called “gig economy”.

The court ruled on Tuesday that four Uber drivers were actually employees of Uber, and not self-employed as Uber had claimed.

The ruling means those workers could make backdated claims for benefits such as paid leave and rest and meal breaks, as well as access to protections such as the minimum wage and the right to make personal grievance claims.

Unions believe the judgment could open the floodgates for not just Uber drivers, but potentially tens of thousands of contractors in other industries to launch similar claims.

The development was the second big win for employment rights advocates this week, coming a day ahead of the passage of the Fair Pay Bill which is designed to help workers bargain collectively for new minimum pay and conditions.

* Employment Court rules four Uber drivers are employees

The United Kingdom's highest court has concluded that Uber drivers should be entitled to the minimum wage and holiday pay. (Video first published March 2021)

* Bus drivers tipped to be first in line for a Fair Pay Agreement

Uber is appealing the judgment. But, assuming it stands up, First Union special projects coordinator Anita Rosentreter said courier drivers were an obvious example of another group of workers who could be impacted by the Employment Court’s decision.

It could also benefit owner-drivers in the trucking industry, subcontractors in the construction industry, and home-care workers who the union believed were increasingly “misclassified” as self-employed, she said.

“On a typical building site, you will often have a mix of carpenters, labourers, hammerhands and even apprentices, all of them pretty much wrongly labelled as contractors,” she said.

NZPost, which engages large numbers of self-employed drivers in its CourierPost arm, said it was unable to comment on the Uber ruling.

But Chorus spokesperson Steve Pettigrew said “all New Zealand organisations with a contracted workforce” would be considering its implications.

“We are reviewing the Employment Court decision in the Uber case and have noted that Uber has indicated it will appeal,” he said.

Chorus has used hundreds of self-employed subcontractors – many of them migrant workers – to build and connect customers to its broadband networks.

The company acknowledged in 2019 that it did not do all it should have to protect them from exploitation and an Australian law firm has previously attempted to get a class action lawsuit off the ground to secure them employment rights.

Chorus has used hundreds of self-employed subcontractors to build its broadband networks.

Pettigrew said Chorus’ service company arrangements were quite different to the Uber model “so it will not necessarily be directly applicable to field technicians working for our subcontractors”.

He declined to detail what Chorus believed those differences to be.

One of the tests the Employment Court decided to apply in its Uber ruling appeared to be who controlled the terms under which services were delivered to passengers, including who set the fares charged by Uber drivers.

“Stripped back to its fundamentals, Uber is the only party running a business,” chief judge Christina Inglis stated in her ruling.

“It is in charge of marketing, pricing and setting the terms and nature of the service provided to riders, restaurants and eaters. The Uber business is reliant on drivers providing personal labour for the benefit of its transport service, to be performed as dictated by Uber.”

One of the drivers was retrospectively judged to have been an employee for a period of almost five years, between February 2017 and January 2022.

Rosentreter said one of the factors that might limit the ability of contractors to use the judgment as a precedent was a lack of organisation in many workplaces.

“The problem we usually have is if there isn’t a union actively organising in their space, sometimes nothing really kind of comes of it.”

A working group established by the Government which includes union and employer representatives is currently considering how to amend law to make the boundary between employees and contractors clearer in future.

It also recommended in December that the “critical question” should be whether a worker was ”genuinely in business on his or her own account”.

Rosentreter said she had been expecting Workplace Relations Minister Michael Wood to make a decision this month on the next step in the law reform, but speculated that the Government might have been waiting on the Uber ruling, given its significance.