NZ Employment Court: Uber drivers are employees and not independent contracors

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#2988829 27-Oct-2022 15:07

wellygary:

The same could be said about the minimum wage going up 33% in the last 5 years....

Or this "fair pay agreement" BS that's a rather blatant attempt to return the country to being under the thumb of the unions.

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#2988945 27-Oct-2022 22:41

johno1234:

Kyanar:

No, what's bullshit is Uber claiming that the drivers are contractors to avoid having to meet employment standards, then exerting a level of control that clearly steps so far over the employment line. Like I said, there's a simple solution for Uber - exert less control. Stop penalising cancellations, and provide all the information necessary to make informed business decisions to the driver (which, by the way, would have the side effect of reducing cancellations!)

Your take is just wrong.

It wasn't just Uber claiming the drivers are contractors - the drivers agreed that they are too. They entered into a signed contract willingly.

"Your take is just wrong" ... oh please, proof by blatant assertion?

https://www.employmentcourt.govt.nz/assets/Documents/Decisions/2022-NZEmpC-192-E-Tu-Anor-v-Rasier-Ops-BV-Ors-Judgment.pdf

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#2988948 27-Oct-2022 22:46

wellygary:

johno1234:

It wasn't just Uber claiming the drivers are contractors - the drivers agreed that they are too. They entered into a signed contract willingly.

"Your take is just wrong" ... oh please, proof by blatant assertion?

This path of questioning whether a "contractor" is actually an employee has been traversed before,

in the late 2000s a worker at WETA took a case that also claimed that he was an employee ( even though his contract specifically stated he was a contractor)

After bouncing through the Employment court and court of appeal , which respectively concluded that he was an employee and then not, The Supreme court decided that he was an Employee, and that the general terms and conditions in the film sector were akin to employment rather than contracting....

In that case the Government rode to the aid of the Film sector (which threatened to blacklist NZ) and passed special legislation that excluded film workers from becoming employees. aka the "Hobbit" law

Just because you sign a piece of paper that says contractor, you are not exempt from the laws of NZ that define what the conditions of a contactor must be ( and ipso facto what must be proven to be an Employee)

The current Government will not ride to UBER's defence in this situation, so there are going to be some very serious $$$ conversations at UBER regarding whether they find a model for their NZ business that is both legal and viable...

Despite Uber BV vs Aslam finding that Uber drivers were workers Uber continues to offer their services in the UK.

Their business has built predicated on deliberately baffling authorities with bull shit. Their deliberately complex legal structure is just one example.

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#2988949 27-Oct-2022 22:54

GV27:

Lias:

Personally my vote would firmly be for liberalizing our employment laws to ensure we don't lose the convenience of the gig economy.

The convenience of the gig economy? It's convenient for employers who want to keep low headcounts and undermine others in the same industries who actually employ people.

We already have massively reduced redundancy provisions compared to ten years ago, our company super contributions are pathetic compared to Australia and we work some of the longest hours in the developed world for pay that comes nowhere close to covering our living costs.

Falling even further behind because we want to be able to retain huge multinational companies who run at super-massive losses for years at a time in our country doesn't seem like a great deal.

Yeah. New Zealand has seen a massive transfer of wealth from workers to the owners of capital in the last 40 years. The promised benefits to most people certainly haven't materialised, they have gone backwards in almost all material aspects.

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#2988986 28-Oct-2022 08:48

Handle9:

Yeah. New Zealand has seen a massive transfer of wealth from workers to the owners of capital in the last 40 years. The promised benefits to most people certainly haven't materialised, they have gone backwards in almost all material aspects.

Correct, and added to that, that shift hasn't been reflected in the tax base either, so paid labour is now contributing over and above the returns over the same period, compared to the tax treatment of things like capital receipts. It really has been a raw deal. I mean I'm not that much better off in terms of career growth vs. my graduate wage and the growth in the minimum wage over the same period of time, but that's a symptom of the problem, not the actual problem.

Remember, until relatively recently, income over $70K was taxed at 39 cents in the dollar.

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#2989007 28-Oct-2022 09:13

GV27:

Remember, until relatively recently, income over $70K was taxed at 39 cents in the dollar.

The 39% rates actually started out at all income over 60K, its was adjusted to income over 63K in 2008,

39% mover from $60,001 to $63,673

https://www.beehive.govt.nz/node/23095

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#2989011 28-Oct-2022 09:25

wellygary:

The 39% rates actually started out at all income over 60K, its was adjusted to income over 63K in 2008,

39% mover from $60,001 to $63,673

https://www.beehive.govt.nz/node/23095

We had a really messy period where rates were all over the place as Labour exited and National came in.

https://www.parliament.nz/en/pb/research-papers/document/00PLEcoC5191/income-tax-rates

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#2989017 28-Oct-2022 09:33

Lol love the commenter's arguing against the decision as if they have more knowledge than the EMPLOYMENT COURT.

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#2989021 28-Oct-2022 09:42

Lias:

wellygary:

The same could be said about the minimum wage going up 33% in the last 5 years....

Or this "fair pay agreement" BS that's a rather blatant attempt to return the country to being under the thumb of the unions.

How is giving employees - especially more vulnerable employees - more bargaining power and protections a bad thing?

As for "under the thumb" - while a union needs 10% of a given sector (or 1,000) signed up to enter negotiations - it still needs greater than 50% of said employees to vote in favour of any agreement before it comes into effect. So it will be a decision driven by the employees.

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#2989535 29-Oct-2022 16:36

Lias: …our employment laws are IMHO overly restrictive and anti employer.

Yeah right, give me a break. In what ways? Our employment regime is average to employees in most respects and below average in many.

Important to remember that an employment relationship has an inherent power imbalance, and there is an obvious need to try and redress that by tilting the balance back in favour of the employee.

wellygary:The same could be said about the minimum wage going up 33% in the last 5 years....

Ah yes, would that be roughly the same time period we’ve seen things like world record inflation, massive and continued house price increases, among other things; as well as coming off of a relatively low base (compared to many other countries)?

It is a real shame that the minimum wage and median wage are so close in this country - but the answer is increasing median wage, not cutting minimum wage.

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#2989972 31-Oct-2022 11:34

PolicyGuy:
The full text of the Court Judgement is here: https://www.employmentcourt.govt.nz/assets/Documents/Decisions/2022-NZEmpC-192-E-Tu-Anor-v-Rasier-Ops-BV-Ors-Judgment.pdf

There is an accompanying Press Release here: https://www.employmentcourt.govt.nz/assets/Documents/Decisions/2022-NZEmpC-192-E-Tu-Inc-Anor-v-Rasier-Op-BV-Ors-Media-Release-25.10.22.pdf

The Chief Judge of the Employment Court (Chief Judge Christina Inglis) found that all four drivers were employees of Uber during the periods where they performed transportation services.

The Employment Court highlighted the need to adopt a purposive approach to determining the status of the drivers, having regard to the applicable legislation and its role in protecting vulnerable workers, regulating the labour market, and ensuring the maintenance of minimum standards. It was held that the broader social purpose of the legislative framework must be kept in mind when considering whether a worker is an employee. Thus, the task for the Court is to ascertain whether the individual is within the range of workers to which Parliament intended to extend minimum worker protections.
The Employment Court also reiterated that the question of whether someone is an employee depends on the substance of the relationship and how it operated in practice rather than the label attached to the relationship in the written agreement.

Edit: Formatting

I’m not sure I agree that the purpose of courts is to determine parliamentary intent. It’s to interpret law as it is written not guess what it may have meant.

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#2989976 31-Oct-2022 11:57

Geektastic:

I’m not sure I agree that the purpose of courts is to determine parliamentary intent. It’s to interpret law as it is written not guess what it may have meant.

That's the reality of law though. There are shades of grey, there are definitions that aren't clear, there is wording which could be ready any number of ways. Does the specific exclude the general or vice versa? And so on.

Who else but the Courts? Parliament cannot draft a law that anticipates its every possible application.

Kyanar

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#2989980 31-Oct-2022 12:12

Geektastic:

I’m not sure I agree that the purpose of courts is to determine parliamentary intent. It’s to interpret law as it is written not guess what it may have meant.

No. Courts have to determine intent because by necessity, legislation is often ambiguous or intentionally vague. Common law is literally built entirely off precedent set by courts interpreting and reinterpreting past law and precedent.

Literalism always leads to a very bad time.

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#2990210 31-Oct-2022 16:59

Lias:

Which loops us back to we are either going to pay through the nose for, or lose, a variety of services, because our employment laws are IMHO overly restrictive and anti employer.

Personally my vote would firmly be for liberalizing our employment laws to ensure we don't lose the convenience of the gig economy.

Well, no. It loops us back to paying a reasonable amount for a service. Maybe we'll lose a few unviable services. If Uber has to screw its drivers over so that you and I can have a cheap ride home from the pub, I'm happy to kiss it goodbye.

I have no problem with gaining the convenience of the gig economy, and certainly the taxi company prices were way out of line, but liberalising employment laws is the wrong thing thing to do when sharks like Uber & McDs & the like infest our waters.

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#2990229 31-Oct-2022 17:28

frankv:

Well, no. It loops us back to paying a reasonable amount for a service. Maybe we'll lose a few unviable services. If Uber has to screw its drivers over so that you and I can have a cheap ride home from the pub, I'm happy to kiss it goodbye.

I have no problem with gaining the convenience of the gig economy, and certainly the taxi company prices were way out of line, but liberalising employment laws is the wrong thing thing to do when sharks like Uber & McDs & the like infest our waters.

Easy agree - look at the US Employment market to see what liberalizing employment means, the likes of Amazon and McDonalds are consistently delivering below (our) minimum for their employees there. Humanity and compassion is for the humans, not the businesses.

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