Employee or contractor? Supreme Court hears Uber case

Tuesday, 8 July 2025

The Supreme Court has been hearing arguments today on whether it should uphold or overturn previous court rulings that four Uber drivers were entitled to be treated as employees of the firm, rather than as contractors.

The Employment Court sent a shock wave through the employment market in 2022 when it ruled the drivers were entitled to employee benefits. That decision was upheld in the Court of Appeal the following year, before Uber’s latest appeal.

But Paul Wicks KC, opening the case for Uber, told the Supreme Court the lower courts had both erred.

Neither party intended to sign up to an employment relationship, he said. Uber was a platform for connecting passengers with drivers who didn’t go through a normal recruitment process, he argued.

“There is no interview and no selection process. In short, if you meet the entry criteria and sign up to the terms, you can use the Uber platform.”

The four drivers benefitted from the flexibility Uber offered, he said. “All of the drivers involved in this case made use of their freedom of choice whether to work, when and for how long.”

If New Zealand’s top court upholds the Court of Appeal ruling, that could have significant implications not just for Uber and its drivers but for a wide variety of so-called “gig economy” firms and their workers

It could potentially open the door for tens of thousands of workers in a variety of industries to claim backdated benefits such as the minimum wage, sick leave and holiday pay.

The Government is planning to legislate over the top of any ruling, essentially overriding any decision that could undermine Uber’s business model.

Workplace Relations and Safety Minister Brooke van Velden unveiled an amendment to the Employment Relations Act in September that would confirm workers as contractors if they had a written agreement with the business they worked for specifying that as their status, so long as those businesses met a few conditions.

Those included not preventing those workers from working for another business, not requiring them to be available at specific times or for a minimum number of hours, and not terminating their contract if they turned down a “gig” — in Uber’s case a passenger’s ride.

In a written submission to the Supreme Court, which will hear oral arguments from Uber and the First Union and E tū over the next two days, lawyers representing Uber stressed the drivers chose whether to work and, if they did, when, where and for how long.

“They provided all required equipment, including a vehicle. They were not paid in wages. They worked for competitors whenever they chose.

“The only significant thing the appellants determined was the pricing algorithm, but if drivers did not like a price, they could decide to not accept a trip, cancel a trip while it was underway, or log off altogether. That is not an employment relationship,” they said.

In court, Wicks argued drivers were in business in their own account.

Wicks accepted Uber had some control over drivers where that was necessary for the Uber platform to work, for example in determining the fares that were paid.

“Elements of control are a necessary component of the use of the platform,” he said.

But the relevance of Uber’s needs in that regard to the matter in front of the court were questioned at times by judges during the proceedings.

“That's your problem, isn't it? We're saying; ‘well, so what?’” Justice Helen Winkelmann — one of the five judges hearing the case — remarked.

Lawyers for the unions said in their written submission that the drivers did not make the type of decisions a business person would normally make and did “not bear the risks and enjoy the returns of those choices”.

“All aspects of the asserted driver/passenger agreement are determined by Uber,” they said.

Questioning Uber’s counsel in court, Justice Forrest Miller suggested the “take it or leave it” nature of Uber’s contract with drivers was “problematic” for its arguments.

They were “not provisions we might expect to see in a freely negotiated contract”, for example between a skilled computer programmer and a business they wanted to do work for remotely, he suggested when testing their evidence.

Uber said in a written statement to The Post that “gig workers” were “an essential part of communities across Aotearoa”.

“Our focus is on protecting the flexibility and independence that driver and delivery partners consistently tell us they value most.

“Nine out of 10 say they would stop earning with Uber if that flexibility were taken away.”