Spin busting: Workers First prepares historic pay claim for Uber drivers

Fresh off the back of Monday’s Supreme Court judgment that found four current and former Uber drivers had been misclassified and denied the rights of full employment, Workers First Union is preparing to resume progress on claims for wage arrears and entitlements on behalf of Uber driver union members in the Employment Relations Authority and resuming collective bargaining with the company.

In the aftermath of the judgment, Anita Rosentreter, Workers First Deputy Secretary, said that she wanted to caution media and the public to "tread carefully with bad faith actors" like Business New Zealand and several other defenders of the low-wage, low-responsibility ‘gig economy’, which has driven down New Zealanders’ earnings and established a casualised and precarious class of workers over the last decade with no employment protections. Several myths and confusions are "busted" below.

Read the full Supreme Court judgment HERE.

"Monday’s Supreme Court judgment should be considered one of the most important precedents set in New Zealand employment law for several decades," said Ms Rosentreter. "It is a landmark decision and a cautionary tale for companies who’ve sought to use the ‘gig economy’ to cast aside the rights of workers and shed responsibility for their wellbeing."

"But in light of the judgment, there are so many misunderstandings and bad faith actors filling the airwaves that we feel the need to correct a few myths about what the judgment means and what its effect on the world of work will be."

Flexibility

Commenters such as Business NZ and the Employers and Manufacturers Association have implied that the judgment is an attempt to end the flexibility enjoyed by many Uber drivers regarding their work schedules and time management. Another sorely misinformed employment advocate claimed to a media outlet today that unions are seeking to set regular work hours for Uber drivers in future as collective bargaining progresses. Other claims, such as that Uber drivers will need to wear uniforms or work particular schedules have also been made.

"Nothing about this judgment or our approach to collective bargaining will mean the end of flexibility," said Ms Rosentreter. "Nothing about the precedent set by the Supreme Court judgment precludes Uber from continuing to operate in a way that offers drivers flexibility in their schedules."

"The truth is that ‘flexibility’ is used by those seeking to undermine the Court as a byword for ‘without any employment rights’."

"We note that under the current situation, the ‘flexibility’ they celebrate is often illusory and does not extend to setting their price, advertising their services or building goodwill and relationships with customers."

"For Uber’s defenders, one more thing is flexible, apparently - the truth."

"My message to them is: show some responsibility, do your best to understand the legal judgment, and think before you speak and reveal your lack of knowledge."

Precedents

Following the Supreme Court judgment, Uber has emailed drivers and has keenly noted that the judgment applies only to the four Uber drivers who originally took the case.

"It’s true that this ruling relates specifically to the four drivers - Nureddin, Mea’ole, Bill and Julian - who first filed the case through Workers First and E tū in the Employment Court back in 2021," said Ms Rosentreter.

"But given that drivers share identical terms of employment and use the same work platform, it certainly sets a precedent, and that isn’t something the Court has explicitly guarded against."

"It’s on that basis that Workers First will be progressing wage arrears claims on behalf of thousands of Uber drivers, and our legal analysis is sound."

Meanwhile, Business NZ clearly do believe the judgment sets a precedent, contradicting Uber and others who have sought to frame the judgment as limited to four drivers only, Ms Rosentreter said.

"It’s an apocalyptic hellscape in Business NZ’s dystopian world; the sky is falling, the gig economy is over, and New Zealand will have to return to the awful days where workers had actual rights enshrined in law and could stand up for themselves when mistreated or exploited."

"It just reveals that blinkered lobbyists have no genuine interest in workers, business success, the economy or our country’s wellbeing. They are there to protect shareholders and mega-profits, and their pearl-clutching is embarrassing for everyone, especially for their member businesses."

"My advice to them is to do right by their funders and give accurate advice to businesses so they can stay ahead of important developments in employment law. Or, don’t speak at all."

Ms Rosentreter confirmed that the union is well aware that the judgment applies specifically to Uber drivers and has no immediate impact on other platform-based employers like DoorDash, Delivereasy or DiDi. However, many similar companies have replicated Uber’s business model.

Contractor misclassification

After four years of proceedings and cases heard in three tiers of the country’s legal system, Ms Rosentreter said that union lawyers still genuinely have very little idea what Uber believe the nature of their employment relationship with drivers is.

"A recurrent confusion has been that this case is specifically about contractor misclassification. While that is a process that will be affected by the judgment and cause concern for those who misclassify full employees, that is not the basis for this dispute," said Ms Rosentreter.

"Uber deny ANY employment relationship with drivers and see themselves as facilitators of a contract between a driver and a passenger, but its exact nature is still unclear. They do not believe Uber drivers are contractors to their business."

"They don’t even believe that they are a transport company."

"This ruling will have an impact on anyone who has misclassified workers to save money on minimum wages and entitlements, but the process of contracting itself has not been debated."

"This does not end contracting arrangements, it does not mean all contractors become employees, and it does not mean that Uber will have to stop using contracting arrangements altogether - because they don’t argue that these workers are contractors in the first place."

Next steps for Workers First

- The union will resume collective bargaining with Uber, which was first initiated following the Employment Court’s original judgment in 2022.

- Claims for wage arrears and lost entitlements will also resume in the Employment Relations Authority. The process is set to begin with a small group of drivers, and following the Authority’s advice, larger groups of claims will then be pursued.

- The union has prepared materials and advice for its Uber driver members and will continue to hold meetings across the country with drivers over the next week.

- The union invites Uber drivers to join Workers First through its streamlined membership application and confirms that individual wage arrears and lost entitlement claims for drivers who join the union now can still be filed with the Authority.