What if Uber loses?

2017-08-27 07:04 - Dewald Van Rensburg
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If Uber drivers gained employee rights, this would signify only a first step towards demanding radical changes to the current model of the global behemoth, frequently described as the “gig economy”.

The imminent labour court case, which is set to determine whether Uber drivers are employees, is likely to reach the Constitutional Court.

In effect, this will serve as a continuation of the drivers’ organisational struggle that started in 2015.

Three of the seven drivers involved in the current legal tussle were leaders of The Guild, the Uber driver group formed in Cape Town in 2015 to protest unilateral changes to fares by Uber.

After being “deactivated” from the platform in 2016, the seven approached the Commission for Conciliation, Mediation and Arbitration (CCMA) to contest this as an unfair “dismissal”.

“The reasons for deactivation vary from driver to driver, but we suspect that they targeted the activists,” said Omar Parker, the Western Cape manager of the National Union of Public Service and Allied Workers (Nupsaw).

Nupsaw, an affiliate of the new labour federation led by Zwelinzima Vavi, represents three of the seven drivers in the case.

Senior CCMA commissioner Winnie Everett had ruled that the drivers were employees, but admitted in her ruling that this was not crystal clear.

“I accept that certain factors indicate that drivers are employees and others indicate that they are not,” she wrote.

“An interpretation which promotes social justice must favour the drivers, who are in a considerably weak position when compared to Uber,” she added.

“Should [the ruling] be implemented, it will have far-reaching implications for Uber,” Parker told City Press.

“Its entire model will have to be restructured.

“Suppose we win. It will mean that the union can do collective bargaining. It will mean the enforcement of the Basic Conditions of Employment Act and health and safety ... It would mean a payslip and regulated hours.”

Parker admits that the Uber model is, to a large extent, premised on avoiding exactly those obligations.

“What is apparent is that costs get passed on to other sectors,” he said.

It raises the question of whether Uber’s model would even be possible if the full costs and risks borne by drivers and vehicle-providing partners are factored in.

If the drivers get organised, they will have to address the unfair competition with traditional taxis, said Parker.

“One thing we will call for is an end to the violence, and solidarity with the taxi industry.”

WHAT THE DRIVERS WANT

In his affidavit on behalf of himself and the other drivers, Tsepo Morekure makes four demands: protection against unfair dismissal; bargaining rights for remuneration, conditions of work and “especially our safety”; protection against excessive hours; and basic benefits such as sick leave and overtime pay.

Morekure and Joseph Munzvenga, another driver in this case, started The Guild.

Talking to City Press, Munzvenga said the point now was not to be reinstated, but to win the legal basis for organising Uber drivers.

“I think Uber should provide me with resources to organise,” said Munzvenga, who is now working with Nupsaw.

The demands on Uber, he envisages, would derail the existing business model.

“We will win. Then, does that allow for Uber to reimburse drivers for fuel, car expenses and so on? That is what we want.”

The Guild started out by holding informal meetings at Cape Town International Airport. These were organised on social media and ultimately claimed 2 000 members.

Some of these members eventually resolved to join the SA Transport and Allied Workers’ Union (Satawu), which is affiliated to labour federation Cosatu.

“We wanted Satawu to refer matters to the bargaining council or the CCMA. It did not work. Sadly, Satawu said our contracts made us independent contractors,” said Munzvenga.

He, Morekure and fellow Guild organiser Derick Ongansie subsequently went to Nupsaw and later managed to secure pro bono legal support from labour law firm Bradley Conradie Halton Cheadle.

DISRUPTER OR THROWBACK?

At the CCMA, Uber’s investment in the case was apparent.

The company came armed with senior counsel, Advocate Alec Freund, in a forum technically designed to work without lawyers.

Despite all the hype around the novelty of Uber’s model, it did not really raise any novel labour questions, said the law firm’s Bradley Conradie.

The firm has committed to helping Uber at the labour court on the same basis, but thereafter, someone will have to fund the litigation.

“We think it will go to the Constitutional Court,” said Conradie.

“We took the approach that this is just a normal employment relationship.”

For him, Uber is an anomalous throwback to the era immediately following the introduction of the 1996 Labour Relations Act.

“From the earliest days of the Labour Relations Act, you saw these attempts to evade employment,” he said.

“In 1996, everyone suddenly had independent contractors. Everyone did it. The people installing your cupboards would suddenly have no employees, just independent contractors.

“We are past the time of people seeking a way out of being an employer,” he said.

UBER SAYS: TALK TO THE DUTCH

Uber’s overall argument is well rehearsed by now: It provides a “business service” to drivers who are independent contractors.

Most of Uber’s affidavit to the labour court, however, focuses on deflecting the issue to the Netherlands-based parent company, Uber BV.

The drivers took their case to the CCMA against Uber South Africa Technology Services (Uber SA), and not the parent company.

Uber SA’s in-house lawyer, Robert Kayihura, said repeatedly in his affidavit to the labour court that even if the drivers could convince a judge that they were employees, the case had to fail because they would be employees of the Dutch company, not the local one.

Commissioner Everett rejected this argument.

“The right to fair labour practices is worth nothing if it is not enforceable and dispute resolution processes in the Netherlands make it effectively impossible,” she wrote.

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