By signing a contract, he said drivers were effectively telling Uber, “You can do anything to us”.
For example, when Uber cut its fares and changed its systems in 2016, drivers had no choice but to accept the reduction to their income.
It was the same story when Uber specified drivers who did Uber Eats were independent contractors. Uber simply changed the contract at the “stroke of a pen”.
Cranney also noted Uber could reprimand drivers for misbehaviour when they were off the clock.
Making the bulk of its case to the court on Tuesday, Uber put weight on the fact drivers knew what they were signing up to, as it was all specified in black and white.
It said drivers enjoyed having the freedom to choose when they worked, could control their expenses via their choice of vehicle, insurance and fuel, for example, and could influence their income by maximising the incentives put in place by Uber.
However, Cranney said it was “fictional” for Uber to claim in its contracts it doesn’t control drivers.
He accused Uber of designing its contracts to get around employment law.
Cranney also questioned Uber’s assertion it is merely the provider of a platform through which drivers can connect with customers.
He made the case for why Uber was integral to the arrangement to support his argument for why drivers should be employees.
Cranney highlighted the fact Uber sets fares, collects payments and handles complaints made by customers.
It also penalises drivers if they don’t accept jobs quickly, take too long to complete rides, or don’t get five-star customer ratings.
Uber, which has faced similar court action overseas, said it was focused on protecting the flexibility and independence that “driver and delivery partners” say they value most.
It said nine out of 10 drivers told it they would stop driving if flexibility were taken away.
“Many choose this kind of work because it allows them to earn on their own terms – wherever and whenever it suits them,” Uber said.
The panel of Supreme Court judges is expected to take some time before delivering a verdict.
While the ruling will technically only apply to the four drivers who took the case, the unions say they are working with about 1000 other drivers who want to challenge Uber.
The decision could also affect the employment status of other workers in the gig economy.
That said, the Government is changing the law to codify what constitutes being an “employee” versus a “contractor”.
It is proposing to classify a worker as a contractor when there is a written agreement that specifies the worker is an independent contractor; the worker is not restricted from working for others; the worker is not required to be available to work certain times or days or for a minimum period, or is able to sub-contract the work; and the business does not terminate the arrangement for not accepting an additional task.
The Employment Relations Amendment Bill was introduced to Parliament in June and is due to have its first reading in coming weeks.
The outcome of the Uber case could affect the way parts of the new law are applied.
The Supreme Court will need to consider Uber’s case under the existing law.
Jenée Tibshraeny is the Herald’s Wellington business editor, based in the Parliamentary press gallery. She specialises in government and Reserve Bank policymaking, economics and banking.
