Asked whether they would support being put into a new category, which would see them “receive more benefits than they currently receive”, 79 per cent of respondents said yes.
The survey asked respondents whether they would support a plan that would “combine the flexibility of independent contractor status with some benefits and protections typically associated with benign an employee”.
It didn’t tell drivers exactly what it proposed they would get under this new category, and what they would need to forgo.
Speaking to the Herald, Uber New Zealand’s general manager of mobility Emma Foley couldn’t provide detail around this either, but said the category would need to entail a “minimum earning standard”.
Foley argued it was important for the Government to provide certainty by addressing the issue outright, rather than relying on a “patchwork” of court decisions.
While the outcome of the case, which will be heard by the Court of Appeal at a to-be-determined date, might set a precedent, it will technically only relate to the four drivers who are the subject of the case.
So even if Uber loses the battle, which could take years to resolve if it ends up in the Supreme Court, it could legally keep its other drivers on contractor contracts.
Foley said, “Around the world, Uber has been working with governments and unions on reform for the gig economy, striking deals with prominent unions in Australia, the UK and Canada, as well as a global partnership with the International Transport Workers Federation.
“These collaborative efforts demonstrate a collective recognition that gig workers deserve fair treatment and protections without compromising their independence.”
Foley didn’t entertain the Herald’s suggestion that Uber could give its drivers some of the benefits afforded to employees, while maintaining their contractor status.
Benefits employees enjoy include annual leave, sick leave, maternity and bereavement leave, KiwiSaver contributions, a minimum wage and options for recourse for unjustified dismissal.
Employees can also initiate collective bargaining via the Fair Pay Agreements process.
Buddle Findlay law firm partner Sherridan Cook said that if a company treated contractors like employees, this could weaken its position in the face of legal action from contractors who wanted to be employees.
It would mean contractors could say, ‘We should be given employee status, as we’re pretty much treated like employees already.’
So, why not just make Uber drivers employees?
Foley pointed to the survey results, which underlined how important flexibility was for drivers.
Uber said 95 per cent of respondents agreed driving provided them with flexibility to choose when, where and how they worked - something they couldn’t get from traditional employment.
It said 78 per cent of respondents would prefer to maintain schedule flexibility rather than drive for a minimum number of hours each week set by a rideshare or delivery company.
Cook said that in theory, contractors should be compensated for the fact they don’t get some of the protections given to employees.
He noted the Government had created a separate legal regime for screen sector workers. This provided them with somewhat of a halfway house between employee and contractor status, allowing them to collectively bargain, for example.
Cook said the model could be used as a starting point for finding a solution for the gig economy.
But ultimately, he noted that having different rules for different people was complex and costly.
He wasn’t a fan of creating a new category of worker, saying the current distinctions were fine and there would always be disputes around how people should be categorised.
Workplace Relations and Safety Minister Carmel Sepuloni confirmed the issue wasn’t on her radar.
National’s Paul Goldsmith said that if elected to govern, the party would be open to clarifying who’s an employee and who’s a contractor before the Uber case was resolved in court.
Goldsmith was also open to exploring the creation of a new category.
“We would not find it acceptable if the law was open to the interpretation that a broad section of contractors were in fact employees,” he said.
“A modern, flexible labour market requires the freedom for people to contract for work, and for legal clarity around those arrangements.”
Act has an explicit policy on the matter.
It would amend the Employment Relations Act “so that contractors who have explicitly signed up for a contracting arrangement can’t challenge their employment status in the Employment Court”.
“The contract must meet certain minimum standards that protect workers’ freedom to contract,” it said.
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.
