It was vital for my fellow drivers and I to tell our stories to the judge, the press and the public. If we win – and this is a big if – it could set a precedent that drivers are employees
Opinion: What should I do now? How do I earn a living? How can I have more control of my time? When should I get started?
These basic questions were rolling around in my head when I left my office job in 2016 due to burnout. I needed a reset, and in a moment of experimentation, I decided to try self-employment.
I found an advert in Trademe looking for Uber drivers. They promised a rate of $35 per hour and being one’s boss, freedom and flexibility. It sounded too good to be true – and eventually proved that way six months into the job.
According to Uber, the barriers of entry were remarkably low, with no commercial licence or insurance requirements. However, a month or two into driving, I received a warning from the Land Transport Safety Authority that I was breaking the law as I was driving without a commercial licence.
I found that obtaining such a licence at that time required a driver to jump through significant but necessary hoops to ensure vehicle handling safety, fatigue management and awareness of the regulations when operating as a commercial driver ferrying passengers around.
Also contrary to the advice given by Uber, I found that private motor vehicle insurance was inadequate if I got involved in an accident. Conversations and correspondence with Uber to clarify the position were met with Uber insisting its drivers keep driving without the appropriate licence, which in my view was encouraging us to break the law.
Driving late at night was an interesting test of a driver’s tolerance, resilience and patience. The later it got, the more challenging and trickier it got for us drivers because we were regularly subjected to bad drunken behaviour.
Uber assured us it would pay the fines but refused to clarify if they would pay all of it. Furthermore, they declined to elaborate on how they would address other infringement penalties like demerit points or a license suspension.
Uber was also unwilling to detail the extent of its insurance coverage if a driver’s car met with an accident. Instead, they often repeated the line: “we will support you, and we have public liability cover”, but could never demonstrate how they supported drivers.
Uber took the approach, in my opinion, that it’s easier to ask for forgiveness than to seek permission. This strategy and approach include rapid expansion to new markets to get first mover advantage.
But unfortunately, it also involves hoodwinking drivers and riders into buying into its scheme. Uber does this by initially paying drivers generously while offering massive discounts to riders to “falsely” demonstrate the cost efficiencies of the ride-sharing system.
It’s debatable whether or not they have turned a profit yet. They undertake excessive lobbying and use consumer pressure to make the lawmakers yield to their demands. Research from the International Consortium of Investigative Journalism elaborates on how Uber likes to operate in the grey and outside of the law.
As for me, I decided to jump through those requirements and acquired my commercial licence. A few months later, Uber successfully lobbied policymakers to reduce the barriers of entry for drivers significantly.
Unfortunately, safety standards were arguably compromised for drivers and riders with the amended legislation, including demonstrating one’s ability to handle the vehicle competently, fatigue management and awareness of regulations.
The market was subsequently flooded with drivers; our incomes dropped substantially. I had to work longer hours at unsavoury times to make up for the shortfall.
Driving late at night was an interesting test of a driver’s tolerance, resilience and patience. The later it got, the more challenging and trickier it got for us drivers because we were regularly subjected to bad drunken behaviour.
Our contractual conditions were also unilaterally changed at the time I drove for Uber. These included an increase in their commission, putting drivers under more stringent monitoring and performance management with little to no warning.
I suddenly found myself logging onto the driver app one afternoon, with the rules of engagement changed with no warning but directly impacting my ability to earn a living. Suddenly, I started making less income because Uber unilaterally increased its commission or reduced its fares.
At the same time, there were more performance measures put in place to ensure compliance through enhanced monitoring and enforcement. During these moments of change, Uber made it clear that if I didn’t like the new terms, I could just choose to quit and walk away.
That advice sounded okay in theory but proved problematic for myself and other drivers in practice who relied on driving as a primary source of income.
In addition, I had financial commitments – rent to pay, mouths to feed, trying to live a normal life and being able to engage in society. I could not simply go “yeah, nah” and continue to meet my commitments. The reality is that most of us were forced to choose to accept these new terms and work longer hours to earn a living.
After some months of labouring, I noticed a driver advocacy group set up on Facebook that sought to provide support to drivers. They organised their first stop-work day in May 2017 to protest and highlight drivers’ issues.
The actions of these drivers were inspirational. Almost all the stories from drivers centred around their lived experience in Uber’s system and brought about anger, injustice, disbelief, disappointment and a sense of powerlessness.
It was all the more incredible that they were willing to risk their livelihoods to highlight how Uber mistreated them. I joined the group, and we reached out to Uber, who refused to engage with us.
We decided to reach out to the Fair Pay Agreement working group, government officials, unions, and lawmakers to highlight the injustices.
We sought to argue our case that, in reality, the nature of the relationship we drivers have with Uber is not one of an independent contractor but more akin to that of employer and employee for myriad reasons discussed below.
There were some little wins in terms of increased media coverage and having meetings with officials to get traction but maintaining momentum was increasingly difficult due to the precarious nature of the work and scheduling meetings with shift drivers. The group’s core members eventually moved on, and we lost momentum.
Union groups continued to hold the odd meeting with us, and things carried on in an ad hoc manner until I was contacted by First and E tū Unions about the filing of proceedings in the Court to have us declared as employees.
Uber claims we are independent contractors, but the relationship between Uber and its drivers is clearly one of employer and employee. The essence of the working relationship hinges on the high degree of control Uber exerts over its drivers when working in their system.
There is intense performance management, monitoring and enforcement. Even when you log off, you are regularly encouraged to stay on.
Non-compliant drivers are punished by suspension or termination with no right to redress unless using an international arbitration tribunal. How realistic is it for a driver on less than minimum wage to afford a lawyer to argue the case in the Netherlands?
Uber calls us ‘driver partners’, yet we have no say in any of their campaigns, strategies or policies, terms and conditions. We cannot set our prices and grow the business as it is all dictated by Uber.
Today, I operate a wellness business, where I am actually self-employed. In terms of control, I can write, design and implement a business plan, devise a strategy and undertake marketing to raise my business profile, set my charge out rates, determine my client demographic – including taking and giving referrals – and most importantly, grow my business by expanding into different sectors either through my advertising or word of mouth.
Uber categorically insists we are self-employed, yet we cannot exercise any of these rights. We’ve been misclassified as independent contractors but are treated like employees and have zero minimum protections. Uber uses the self-employed contractor moniker to skirt around basic labour laws and farm out their costs and responsibilities to the drivers with little to no duty of care.
I was in the firing line for about seven hours over two days. Uber’s lawyers tried in every way to find holes or inconsistencies in my evidence, lead me to agree to things I disagreed with, put words in my mouth, discredit my story and research and downplay my lived experience as an Uber driver.
Uber also insists they are an intermediary and a tech company only. However, land transport law changed in October 2017. For Uber to operate legally in New Zealand, they have to be a Licensed Transport Service Operator, making them more than just an intermediary or tech company.
Recent court rulings in the UK and France ruled that drivers were entitled to minimum protections such as pay and leave entitlements. Moreover, the movement against such exploitative practices was gaining traction in most countries with employment protection mechanisms.
With that in mind, I decided to take the plunge and help the team build the case and substantiate our claims against the tech behemoth.
On 6 June 2022, I made my first court appearance as a witness. As an average Wellingtonian going about his day doing ordinary things, it was a daunting experience as I have never been a witness in any court proceedings.
It was intimidating to stand before a Judge and a bunch of lawyers, and in full view of the press and the public gallery to give evidence. I was lucky that having worked in the compliance space, I had an implicit appreciation of what a cross-examination could feel like. Regardless, the feeling was quite different when I was in the witness box being cross-examined by Uber’s lawyers.
I was in the firing line for about seven hours over two days. Uber’s lawyers tried in every way to find holes or inconsistencies in my evidence, lead me to agree to things I disagreed with, put words in my mouth, discredit my story and research and downplay my lived experience as an Uber driver.
Most of the arguments hinged on technicalities, with Uber’s literal translation of what drivers signed up to do being their main point of attack. Uber’s insistence that we are independent contractors contrasts starkly with our lived experience in their system. I believe we argued our case as well as we could, and now it’s a case of waiting for that pivotal decision.
I thought surviving the inquisitorial process would be traumatising but to my surprise, I found the experience energising. It was vital for my fellow drivers and I to tell our stories and share our experiences with the judge, the press and the public.
If we win – and this is a big if – it could set a precedent for similar cases to reach the same conclusion: that drivers working in this system are employees.
What that means in reality is that these drivers who have been deliberately misclassified as independent contractors would start to feel the benefits of minimal protections over time. These jobs would lose their overwhelming sense of precarity and provide more security and certainty in terms of conditions and pay.
It would also mean people can start rebuilding their lives without fear of reprisal from Uber.
Longer term, I hope our collective actions will enable drivers to build a stronger sense of community in their work and home, and plan financially. It’s also heartening to know that a win could have far-reaching consequences for others in the gig economy.
These people are mainly working in precarious conditions like Uber drivers. I hope that with every legal challenge and win, guardrails will be put in place to ensure that such platforms treat their people much better.
For me, it ultimately comes down to “a fair day’s pay for a fair day’s work”, and it’s about time that even the tech giants demonstrate corporate social responsibility and start doing right by us all.
The Employment Court’s decision on the case is expected before the end of 2022
