Analysis by Dr Bryce Edwards.
Political Roundup: Why the Uber court ruling is a major victory against worker exploitation
Do you believe that workers deserve basic employment rights and protections against exploitation? Do you think that workers should be entitled to the minimum wage, have protection from unjust dismissal, have the right to sick leave, holiday pay and KiwiSaver contributions, and the right to unionise and collectively bargain? If so, yesterday’s Employment Court decision in favour of four Uber drivers who were declared to be legal “employees” rather than “contractors” will be news very worthy of celebration.
The decision will have significant ramifications for low-paid workers in the rising “gig economy”. Although there are still some barriers before the ruling sets a full legal precedent, if Uber drivers are to be classed as employees, then the labour movement can now push to afford other vulnerable contractors the rights of employees. Expect to see courier drivers, pizza deliverers, and various health workers given higher standards of employment and incomes as a result.
The ruling highlights the power of tech companies rorting employment laws
The Employment Court case pitted the multi-billion-dollar Uber ride-sharing company against some of their workers who were backed by two trade unions. The unions took on the case to help clarify the rights of workers in the new “gig economy” in which businesses seek to offload some of their legal responsibilities by misclassifying their workers as “self-employed businesspeople”.
It’s a massive win for the labour movement and precarious workers. The landmark ruling potentially has huge implications for how the gig economy operates in New Zealand. Tech companies such as Uber have spent huge amounts of effort and lobbying power to be allowed to operate as they want to. Now, however, they might not get their way.
The power of Uber’s political lobbying in New Zealand has not yet been fully explored. But there should now be questions about how the company has been able to establish its current operational model.
Today in the UK, Uber’s former top lobbyist has turned into a whistleblower, releasing documents about how his former company created “disproportionate” and “undemocratic” power in European countries. Mark MacGann, who was involved in the company’s lobbying operations in 22 countries in 2015-16 has claimed that Uber had “unequal unprecedented access to the very highest levels” in the European Commission as well as every European member state. And throughout the world, he claims that ruling politicians have turned a blind eye to Uber’s “highly unorthodox” employment model.
Releasing 124,00 Uber company files to the Guardian, he says that Uber was successful in getting governments everywhere to deregulate the taxi industry and allow their company to regard their employees as contractors. Although none of this was illegal, he labelled it “borderline immoral”.
Why employment status is a vital “gateway” for workers’ rights
The misclassification of workers as “contractors” by companies like Uber has been a deliberate strategy of companies that are trying to get around the rules which afford basic rights to workers. The gig economy has been created, alongside what Employment Court chief judge Christina Inglis says is “the growing fragmentation, casualisation and globalisation of work and workforces”.
The judge says legal employment status is a vital part of this, because a worker’s legal categorisation as an “employee” is an important “gate” to much more rights and benefits. By passing through this gate, workers can access all sorts of legislative employment entitlements such as annual and sick leave, Kiwisaver contributions, parental and bereavement leave, and the right to bring a personal grievance if sacked without cause. She also said that the employee status was a gateway for government Labour inspectors to be able to take actions on behalf of a workplace or employee.
So, in the case of the four Uber drivers, the judge ruled that the company’s arguments that they were really contractors were “not supported by the evidence”. She commented on Uber’s employment agenda, saying “the applicable employment laws in New Zealand do not allow it to have its cake and eat it too”.
There should be some caution before accepting that the ruling creates a legal precedent for other workers. Technically, it might not yet do this, but the judge was very clear that the ruling might be used by other workers to get the same rights. This is therefore a real game-changer for the huge numbers of the precariat in this country.
What happens now?
Two unions helped the Uber drivers take the legal action – First Union and E tū. They are now calling on other Uber drivers, current and past, to claim their employee status and thereby get backpay and holiday pay. The unionisation of this sector is now occurring – a new Uber driver association has been formed, and First Union is now recruiting members at a discounted dues rate.
Uber has announced that it will appeal the ruling. But there seems to be limited ability to do so. Legal academic Gordon Anderson of Victoria University of Wellington is reported as saying that Uber doesn’t have much room for mounting its appeal. Likewise, employment lawyer Garry Pollak argued yesterday that the declaration of the specialist Employment Court will be hard to overturn: “It alone interprets collective agreements, and it alone interprets or decides whether somebody is an employee or a contractor.”
How will the Labour Government respond?
The Government doesn’t appear to have yet responded to the ruling. Although Employment Minister Michael Wood might have been expected to have celebrated the ruling, he is probably right to take time to consider its huge ramifications. It could also be very tricky for his government to navigate.
The Labour Government have been somewhat on the back foot on the gig economy. Previously when in opposition there was a lot of noise from Labour about improving rights for precarious and vulnerable workers categorised as contractors. But so far this has come to nothing.
The Government has set up a working group to make progress on this under its “Better Protections for Contractors” workstream. However, this work seems to have disappeared while the Government has pursued other priorities.
As part of this programme, Labour had been looking to deal with the problem of vulnerable workers being legally categorised as contractors by creating a new hybrid legal category of “contractor-workers”. These employees wouldn’t have the full rights of workers, but would have better conditions than contractors. It was a compromise solution, which is actually inferior to what the Employment Court ruled yesterday. Hence, it can be said that the Government and Wood are pushing for something less progressive than the courts.
Uber and other employers are likely to lobby the Government to continue with this “solution”, which might avoid them having to afford full employee status to all their workers. And yesterday the following was reported: “Uber says it supports reform and believes the only way workers and platforms can have certainty is if change is made through the parliamentary process rather than by the Employment Court.”
Labour will now be under pressure from the labour movement not to give in to Uber on this. Given the scope of yesterday’s decision, unions will want the Government to make it easier and faster to implement and monitor the new definition of “employee”, rather than creating new categories that large employers might use to undermine this newfound chance for vulnerable workers to get full legal protections.
Much of the New Zealand economy is vulnerable to being “Uber-fied”. Pressure will need to be applied by the political left and unions to counter the lobbying of the large “gig” employers who will be doing their best to fix what they will see as a major defeat in the Employment Court yesterday.
Further reading on NZ Uber drivers’ employment
Rebecca Macfie (Newsroom): Gates open for flood of Uber drivers
Melanie Carroll (Stuff): Explainer: What happens now that four NZ Uber drivers have been ruled employees?
Tracy Neal (Herald): Clutch of New Zealand Uber drivers granted workplace protection as employees after landmark court win
RNZ: Uber to appeal against ‘historic ruling’ against rideshare company
Dita De Boni (NBR): Uber to appeal Court’s call on drivers employees, not contractors (paywalled)
RNZ: Court deems Uber drivers to be employees in landmark ruling
Rebecca Macfie (Newsroom): Landmark NZ court ruling: Uber drivers are employees
Herald: Eight New Zealand Uber drivers to be granted workplace protection as employees after landmark court win
1News: NZ Uber drivers win employment rights court case
Tess McClure (Guardian): New Zealand Uber drivers win landmark case declaring them employees
Ben McKay (AAP): NZ court in landmark Uber employee ruling
No Right Turn: A victory for worker’s rights
Other items of interest and importance today
HEALTH
RNZ: Little forced to defend health system with lengthy wait times and stretched workforce
Jenna Lynch (Newshub): Health Minister Andrew Little ‘doing lots’ as new figures reveal one in four waiting over six hours to be treated at ED
Rowan Quinn (RNZ): More than 100 recommendations to cut surgery wait times – but some could take years to implement
RNZ: Surgeon calls for higher pay, free training for nurses to help cut surgical wait times
Bridie Witton (Stuff): Amid a health crisis, this new plan hopes to ease surgery waitlists
Michael Daly (Stuff): Summary: Two recent deaths put spotlight on swamped emergency departments, workforce shortages
Rachel Maher (Herald): Woman dies after allegedly waiting three hours to be seen in overcrowded ED
RNZ: Family of child who died at Wellington Hospital speak out
Michael Neilson (Herald): National wants health performance targets back as ED wait times skyrocket, surgery backlog balloons
William Hewett (Newshub): Christopher Luxon calls for Government to prioritise more funding for frontline nurses as severe staffing issues cripple sector
1News: Death of Wellington boy ‘absolutely tragic’ – Robertson
Niva Chittock (RNZ): Ōtautahi doctor says people waiting four hours in urgent care clinic
Bridie Witton (Stuff): A meal or a GP visit’: Families struggling with cost of living will add to health system woes
RNZ: Grant Robertson on health spending, UK prime minister
Ireland Hendry-Tennent (Newshub): Acting PM Grant Robertson defends NZ’s health system after string of deaths amid severe staffing issues
Adam Pearse (Herald): Deputy PM Grant Robertson defends health funding after Sebby Chua’s death
Francesca Rudkin (Newstalk ZB): How are you navigating our health system at the moment?
Newstalk ZB: Figures show 50% of GPs plan on retiring in the next decade
Stephen Forbes (Local Democracy Reporting): Junior doctor denied Medical Council registration in NZ calls for change
Kelvin McDonald (Te Ao – Māori News): Māori ‘disproportionately’ carrying $860m a year cost of health inequities
Ashleigh McCaull (RNZ): Māori input crucial in alcohol harm reduction bill, says consultant
Hannah Martin (Stuff): Pharmac aims to fund meningococcal B vaccine for babies, teens and young people
Krystal Gibbens and Ashleigh McCaull (RNZ): Suspected suicides rates continue to drop, but Māori still disproportionately affected
Emma Russell (Herald): Suicide in NZ: Significantly lower number of people taking their own life
Sophie Harris (Stuff): Suicides in Aotearoa decrease for the third year in a row
Troels Sommerville (Stuff): Covid-19: 16,399 new cases in New Zealand over the last week
ECONOMY, EMPLOYMENT, BUSINESS
Richard Harman: Upbeat Robertson says Labour yet to sort its election campaign tax policies (paywalled)
Susan Edmunds (Stuff): Individual tax approach ‘incompatible’ with household-focused benefits system
Ireland Hendry-Tennent (Newshub): Grant Robertson rules out tax cuts for wealthiest Kiwis, won’t reveal whether low and middle-income earners should expect relief
Bernard Hickey (Interest): Robertson proud of 5 years in charge of economy
Gordon Campbell: On why wages and jobs shouldn’t be inflation cannon fodder
Eric Crampton (Newsroom): In fairness to New Zealand’s tax and transfer system
Jo Moir (Newsroom): The climate-conscious are looking to NZ, says Grant Robertson
Mark Quinlivan (Newshub): New Zealand’s deficit unlikely to be surplus ‘anytime soon’, economist Cameron Bagrie says
David Hargreaves (Interest): Reserve Bank chief economist Paul Conway says ‘tradeable’, or imported, inflation has been ‘our friend’ in recent decades, but this era could be coming to an end
Dileepa Fonseka: Prepare to be stuck in this ‘stunted growth’ time warp
Richard Prebble (Herald): Central banks and governments have lost the inflation battle (paywalled)
Melanie Carroll (Stuff): Millennium & Copthorne Hotels to pay $252k to 12 staff redundant after Covid hit
Tom Pullar-Strecker (Stuff): Hundreds of thousands of workers set to get right to training and development
Dita De Boni (NBR): Push for pay transparency took Govt too long: Greens (paywalled)
Amy Williams (RNZ): Tauranga stevedore paves way for port workers to get better conditions
Krystal Gibbens (RNZ): Report lays out path for settlement between firefighters, FENZ
Jordan Bond (Newsroom): Steel mill expects 20-plus year consent, thanks to loophole in climate law
Tim Hunter (NBR): Prison contractors claim extra $430m in Covid costs (paywalled)
PARLIAMENT, PARTIES, ELECTION
Tim Murphy ((Newsroom): Labour’s re-election chances snookered
RNZ: Sweeping review of electoral rules includes voting age and longer term
Tova O’Brien (Today FM): Smalley bet her house Jacinda Ardern will resign by Xmas – I’ll take that bet
Tova O’Brien (Today FM): Would you want to be the Prime Minister?
No Right Turn: Mahuta, cosyism, and ethical standards
Bridie Witton (Stuff): Prime Minister Jacinda Ardern to reattempt trip to Antarctica after ‘boomerang’ flight
Thomas Cranmer: Ardern makes second attempt to reach Antarctica
Amelia Wade (Newshub): New Labour MP Soraya Peke-Mason not enthusiastic about Government in resurfaced video
Adam Pearse (Herald): History-making MP Soraya Peke-Mason lauds Three Waters in maiden address
Anneke Smith (RNZ): Women will have equal share of seats in Parliament with Soraya Peke-Mason’s swearing-in
Karl du Fresne: How the word misogyny has been twisted to suit woke ideology
Johnny Blades (RNZ): Fair Pay Bill hogs limelight again this week
HAMILTON WEST BY-ELECTION
Adam Pearse (Herald): National sets candidate expectations amid diversity dilemma
Jo Moir (Newsroom): National wants to see NZ better reflected in its MPs
David Farrar: Hamilton West candidates
LOCAL GOVERNMENT, THREE WATERS
Herald: Wayne Brown to meet Local Government Minister Nanaia Mahuta to ‘raise issues’ over Three Waters
Pattrick Smellie (BusinessDesk): Watercare rebuffs Wayne Brown’s three waters reform demand (paywalled)
Todd Niall (Stuff): Auckland mayor Wayne Brown wants less paperwork, more local control
Herald: Auckland mayor Wayne Brown vows to keep rates down and wants local boards to have more power
Dita De Boni (NBR): Backing Beck: the story of how it went wrong (paywalled)
Brendon McMahon (Local Democracy Reporting): West Coast council executive drops bombshell at meeting
Emily Ireland (Local Democracy Reporting): New Wairarapa council code nods to Treaty of Waitangi
Susan Botting (Local Democracy Reporting): Northland Regional Council selects New Zealand’s first wahine Māori chairperson
Felix Desmarais (Local Democracy Reporting): New Rotorua mayor Tania Tapsell sworn into role at inaugural meeting
MEDIA
David Skipworth (Stuff): TVNZ boss’ $2m exit – including $195k in holiday pay
Herald: Former TVNZ CEO Kevin Kenrick pocketed nearly $2.1 million after final eight months at state broadcaster
Glen McConnell (Stuff): National promises to reverse RNZ-TVNZ merger – but only if it’s not too tricky
Stewart Sowman-Lund (Spinoff): ‘I still get my political hit’: Why Tova O’Brien isn’t missing parliament
EDUCATION
Katarina Williams (Stuff): $63m Te Pūkenga deficit dials up pressure to minimise job cuts
Gabrielle McCulloch (Stuff): Grave concerns as nearly 1000 students absent from school for more than a year
Michael Neilson (Herald): NCEA changes: Just 2 per cent of decile 1 students pass new writing pilot
John Gerritsen (RNZ): New NCEA tests could jeopardise Māori and Pacific students’ achievement rates
Emma Hatton (Newsroom): Learning support for schools can’t come soon enough
James Perry (Te Ao – Māori News): Te Wānanga o Raukawa seeks independence from the Crown
Benjamin Plummer (Herald): Auckland Grammar threatens to withhold end-of-year reports if parents don’t pay fees (paywalled)
Carly Gooch (Stuff): Boys’ school cancels ‘Wife Beater Wednesday’ at 11th hour
CHILD WELFARE
Joseph Los’e (Herald): Minister’s plea to give Oranga Tamariki kaimahi a fair go and remember they are human
Andrew McRae (RNZ): Royal Commission of Inquiry into Abuse in Care: Public hearings finish with warning to institutions
Andrew McRae (RNZ): Govt agencies failed to protect community from convicted Gloriavale child abuser – former member
ENVIRONMENT
RNZ: New Zealand’s inter-regional rail network has dwindled, but could it make a return?
Phoebe Wright (Stuff): Why I helped to block Transmission Gully
RNZ: Protesters rally around country against mining on conservation land
Felix Walton (RNZ): Canal Road tree protesters escape convictions in Auckland District Court
INEQUALITY
Jamie Tahana (RNZ): Retirement Commission report suggests policies not working for tangata whenua
Stefan Dimitrof (Te Ao – Māori News): Retirement hard-going for kaumātua, study finds
John Minto (Daily Blog): “If you want to get tough on crime – get tough on poverty”
Brent Edwards (NBR): National’s social investment approach about results (paywalled)
Duncan Garner (NBR): Redesign welfare to avoid perverse outcomes (paywalled)
POPULATION
John Weekes (Herald): Auckland’s population has fallen, NZ population grows but only slightly (paywalled)
Mark Quinlivan (Newshub): New population figures show a drastic change in where New Zealanders are living, economist Brad Olsen says
RNZ: Annual population growth slowest since late 1980s – Stats NZ
HOUSING
Susan Edmunds (Stuff): Landlords want to lift rent, survey shows
Will Trafford (Te Ao – Māori News): Demand at all-time high, despite gov’t efforts – City Mission
Jonathan Killick (Stuff): Auckland homeless could be displaced as Dilworth School extends $1b property empire
INTERNATIONAL RELATIONS
Thomas Manch (Stuff): New Zealand’s relationship with China could face further challenge as Xi Jinping tightens his grip
Michael Neilson (Herald): UK election: Grant Robertson says British PM Rishi Sunak ‘a good friend of NZ’
Tess McClure (Guardian): New Zealand couple detained in Iran for months leave the country
OTHER
Tom Pullar-Strecker (Stuff): Daily power charge set to rise again in April amid no sign of early rethink
Kingi Snelger (Herald): What role does tikanga play in the future laws – and lore – of Aotearoa New Zealand?
Will Mace (NBR): Evolving the iwi trust structure (paywalled)
Gill Bonnett (RNZ): Concern over NZ Defence Force-trained extremists
Damien Venuto (Herald): Incel threat – How dangerous are NZ’s young men becoming?
Tom Kitchin (RNZ): Space policy feedback: Māhia mana whenua want to protect principles
Will Trafford (Te Ao – Māori News): Petition to reinstate Aotearoa as official name of New Zealand, accepted by select committee
Stephen Ward (Waikato Times): Vandalised James Cook monument at Kōpū to be removed
Piers Fuller and Tom Hunt (Stuff): 129 passengers have Covid on first cruise ship in 2½ years to dock in Wellington
RNZ: More than 130 Covid-19 cases on one of first cruise ships to return to New Zealand
Kirsty Frame and Soumya Bhamidipati (RNZ): Whakaari / White Island eruption: Pilots who took risk to rescue people honoured for bravery
