Lawyers for the multi-billion dollar global ride-share company Uber are taking the fight over driver’s employment status to the Supreme Court in Wellington on Tuesday.
Uber is appealing – for a second time – after losing a previous appeal against a landmark Employment Court decision in 2022 when four Uber drivers were granted workplace protection.
This could give the drivers employee benefits such as leave entitlements, minimum wage and holiday pay.
Uber appealed against the decision in June 2023, but the court dismissed the appeal, ruling in favour of the drivers.
The company has now taken the case to the Supreme Court.
Uber had previously argued the drivers were independent providers of transportation services to “riders” and “eaters”, with whom they entered into contracts using software and facilitation services – an app – provided by the Uber companies.
In 2023 Court of Appeal Justices Goddard, Ellis and Wylie declined Uber’s appeal against the original Employment Court decision, pointing out that – while logged into the Uber app – drivers had no opportunity to establish any business goodwill of their own.
“Or to influence the quantity of work they receive, the quality of the work they receive, or their revenue from that work except to the extent that Uber agrees to give them some preference in relation to access to ride requests, information about rides, or supplementary payments,” they said.
The judges also asserted that Uber held a high degree of control over the services drivers offered, their conditions and remuneration while they were logged into the app.
“We do not consider that drivers can, in reality, be said to be carrying on transport service businesses on their own account at times when they are logged into the driver app, providing services to riders referred to them by Uber for the remuneration determined by Uber, and subject to the high level of control and direction that Uber exercises over the provision of services by drivers while logged in,” they said.
The judges concluded that the drivers were employees of the Uber companies at times when they were logged into the Uber driver app.
The decision applied to the four drivers who took the case against Uber, but could set a precedent for thousands of other contractors who work in the gig economy.
An Uber spokesperson said the Supreme Court hearing was an important step in providing clarity on how gig work fitted into New Zealand’s modern workforce.
“Gig workers are an essential part of communities across Aotearoa and make a significant contribution to the economy.”
The spokesperson said many chose this kind of work because it allowed them to earn on their own terms, wherever and whenever it suited them.
“Our focus is on protecting the flexibility and independence that driver and delivery partners consistently tell us they value most.”
Former Uber driver and current Wellington City councillor Nureddin Abdurahman is hopeful the Supreme Court will uphold previous decisions granting drivers workplace protection.
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Abdurahman, who was among four drivers who took the original case against Uber, said it was about giving drivers the dignity they deserved. He disputed Uber’s argument the case was about protecting drivers’ flexibility of work – saying conditions and pricing were decided by Uber.
“I’m not exactly sure what kind of flexibility, what kind of freedom they are talking about,” he told Morning Report .
“For me from the moment I joined, and when I opened my app, it’s Uber who gives me the job, and they decide the pricing – from where to go, from where to pick. I don’t have any freedom on what that work looks like.”
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