Uber drivers fight back

Johannesburg - Uber drivers will soon launch a new bid to get recognised as employees of the global taxi behemoth, challenging the casualised “gig economy” model of work in future in South Africa.

This follows a defeat in the labour court early last month, when Judge Andre van Niekerk overturned a watershed Commission for Conciliation, Mediation and Arbitration (CCMA) ruling that seven drivers were employees of Uber’s local subsidiary, Uber Technologies SA.

Van Niekerk rejected this as self-evidently wrong because the claim should have been made against Uber BV in the Netherlands – the company that owns the app.

Due to a mistake made by the union that the drivers previously belonged to, their cases cited the wrong company and the actual merits of the case were not even entertained by the labour court.

Omar Parker, the drivers’ current representative from the National Union of Public Service and Allied Workers, told City Press that there were three parallel legal routes to take.

First, there will be a new CCMA hearing. It was scheduled to take place on Tuesday, but it will be postponed. This one cites the correct Uber company, and the seven drivers from the older case will now be joined to this new one, Parker said.

The drivers’ lawyers, who have acted pro bono, had advised them to start from scratch rather than appeal Van Niekerk’s damning judgment.

In addition to that, the union will consider approaching the CCMA and possibly the labour court for a declaratory ruling in terms of section 200B of the Labour Relations Act, which was introduced in 2015 and permits workers to be considered jointly employed by two employers. This could apply in the commonplace arrangement in which large Uber partners command fleets of cars and hire drivers to drive them.

Most Uber drivers work under an arrangement of this type, Uber said in court papers last year.

Another potential legal strategy would be to challenge the legitimacy of the contracts that all Uber drivers have to sign – digitally – with Uber BV, said Parker. These contracts expressly say they are not employees.

It appears that Uber itself has misunderstood Van Niekerk’s ruling – or is actively misrepresenting it.

In an op-ed published in Business Day this week, the company’s legal director for the Middle East, Africa and Pakistan, Robert Kayihura, claimed that the ruling confirmed Uber’s assertion that drivers were independent businesses and not employees.

According to him, the ruling said that “Uber’s relationship with its drivers is a purely contractual one, in which the company in effect plays the role of a business facilitator for independent drivers rather than being their employer”.

The actual ruling, however, said nothing remotely like that. Instead, it turned on a technicality and the judge expressly said that “whether the drivers are employees of Uber BV, or whether they are independent contractors of Uber BV, is a matter that remains for decision”.

“It warrants mention and emphasis that this judgment does no more than conclude that, on the facts, the drivers were not employees of Uber SA [as opposed to Uber BV],” he said.