Union lawyer says unwritten contracts between Uber drivers and passengers ‘a fairy story’

Wednesday, 9 July 2025

Rally outside Uber employment case at Supreme Court

Lawyers representing unions have urged the Supreme Court to uphold a landmark Court of Appeal ruling that a group of Uber drivers were employees, entitled to benefits such as holiday pay and sick leave.

On the second and final day of Uber’s appeal to the top court, Peter Cranney, representing the Workers First and E tū unions, said it was “a fiction” Uber didn’t exercise control over drivers when they were working for Uber, and that they were totally integrated with Uber’s business.

On Tuesday, Paul Wicks KC, representing Uber, told the court that the Employment Court and Court of Appeal had erred in their ruling in favour of the drivers.

Neither they nor Uber had intended to sign-up to an employment relationship, and Uber drivers were in business on their own account, in part because they could make commercial decisions on when and where they worked, he said.

He told the Supreme Court that Uber saw itself as providing a platform for drivers and passengers to do business, and there was an “unwritten” contract between those drivers and passengers that arose from Uber’s contracts with passengers and drivers.

Protesters gathered outside the Supreme Court on Tuesday in support of drivers’ rights.

But Cranney said the assertion there was “a legal and direct business relationship” between Uber drivers and passengers was also a fiction, describing the unwritten contracts Wicks referred to as “fairy story, Jack-and-the-Beanstalk contracts” that were supposed to spring into being.

What drivers and unions were seeking from the case were the rights to minimum entitlements for drivers and collective bargaining, he said.

“We want the right to unionise and organise because that is fundamental to human rights in any country such as ours.”

The legal test of whether someone is an employee or a contractor is currently a broad one that doesn’t only revolve around what is stated in their contract and what can be ascertained about the company’s and worker’s intentions.

The degree of control workers have over when and how they do their job, how important those workers are to the business, and whether they could truly be said to be in business in their own account can be equally or even more decisive.

Because of the nature of the Uber technology it was able to use its knowledge of its system “to control the workforce in a way which enables them to achieve when the company wants them to work, and how the company wants them to work, and at the times and days the company wants them to work. It takes you to an intensive system of control,” Cranney said.

“We're talking here about 11,000 workers, most of whom are at least from the names, immigrant workers, working throughout New Zealand, including delivering food day and night, with absolutely no form of any protection and under total control of a large corporation in every aspect of what they do, including their prices, their disciplinary, whether they get dismissed or not. And they've got … no rights to do the things which are designed to actually counter employer control.

Uber’s current business model is on the line in the courts, though the Government may be riding to the rescue with a law change. (File photo)

“Every single aspect of every aspect of the business is controlled by Uber,” he said.

If the Supreme Court upholds the Court of Appeal ruling, that could potentially open the door for tens of thousands of “gig economy” 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 by confirming workers as contractors if they have a written agreement with the business specifying that as their status and their relationship meets a limited number of conditions.

But Workers First Union general secretary Dennis Maga said ahead of the court case that the Supreme Court ruling would still be important, in part because any law change would not be retrospective.

Cranney told the court the Government’s planned change to the Employment Relations Act would still not allow Uber to treat its drivers as contractors.

“It doesn’t get Uber off the hook in its current form”, as one condition was that contractors were able to subcontract their work to a third party, which Uber drivers could not currently do, he said.

The Supreme Court’s hearing is due to wrap up this afternoon, but it almost always reserves its judgment, meaning it does not deliver a ruling immediately.