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Labour law

2017

The Commission for Conciliation, Mediation and Arbitration in South Africa (an independent arbitration body) ruled that Uber drivers are subject to Uber’s control, and, as such, employees. The decision came in favour of a group of drivers who were fired by Uber by deactivating them from the Uber application without reason. According to the Commission, although drivers can choose their working hours, and decide whether to accept, decline, or ignore a request for a ride, Uber controls the manner in which they work, by setting ‘clear standards and performance requirements’. Uber announced it would challenge the decision in the Labour Court.

An administrative law judge for New York State Labor Department has ruled that three former Uber drivers and ‘others similarly situated’ were eligible for unemployment benefits. Although Uber considers its drivers to be self-employed, the judge has reasoned that ‘Uber exercised sufficient supervision, direction, and control over key aspects of the services rendered by claimants such that an employer-employee relationship was created’. One issues that remains unclear in the ruling is the meaning of the term ‘similarly situated’.

The Advocate General of the Court of Justice of the European Union (CJEU), Maciej Szpunar, has issued a non binding opinion on the case in which the CJEU is asked whether Uber is an information society services provider or a transportation company. Szpunar is of the view that the service offered by Uber cannot be cannot be classified as an information society service, as the service amounts to the organisation and management of a comprehensive system for on-demand urban transport. He therefore recommends that the Court’s answer to the question at hand should be that the service offered by Uber must be classified as a service in the field of transport. Spuzar concludes that Uber is subject to the conditions under which non-resident carriers may operate transport services within EU member states.

The Internal Market and Consumer Protection Committee in the European Parliament has adopted a report titled ‘An European agenda for the collaborative economy’, inviting the European Commission and EU member states to address ‘regulatory grey areas’ related to the collaborative economy. In the MEPs’ view, the EU should reap the collaborative economy benefits while ensuring fair competition, workers’ rights, and tax compliance. At the same time, any regulation in the field should not restrict the collaborative economy. The report is expected to be discussed and voted by the full European Parliament during its June plenary session.

The Work and Pensions Committee in the UK Parliament issued a report on the self-employment practices of  ‘gig economy’ companies (such as Uber and Amazon), noting, among others, that ‘the ease with which companies are able to classify their workforces as self-employed both fails to protect workers from exploitation, and potentially increases strain on the welfare state’. To address this issue, the Committee suggests that ‘an assumption of the employment statute of “worker” by default, rather than “self-employed”, would protect both the workers and the public purse’, and that ‘companies wishing to deviate from this would need to present the case for doing so’. The report also calls on the UK government to close the loopholes that incentivise a behaviour in which gig economy companies ‘evade responsibility to their workers’ wellbeing and increase their profits’.

Uber has been granted an appeal against the ruling made last October by a tribunal in London, the UK, which found Uber drivers to be employers. The tribunal ruled that Uber drivers are not self-employed, as the company claims, but rather workers, who are entitled to rights such as holiday pay and the national minimum wage. The company will challenge this ruling, continuing to argue that the Uber application only functions as a platform linking drivers and passenger, and that drivers are self-employed, as they set their own hours and provide their own car and fuel.

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