A recent US court ruling to make Uber drivers full-time employees may embolden gig economy workers around the world to seek similar status. But SA’s two largest ride-hailing providers seem confident that this is unlikely to happen locally.
Last month, a court in the US ruled that Uber should convert the status of its drivers — it calls them independent contractors — in California to full-time employees, with benefits. There’s no doubt that the ride-hailing giant will contest the ruling, but it does open a can of worms for a company notorious for its poor treatment of drivers.
Regardless of whether this ruling will be upheld over time, the possibility of drivers becoming employees is now a reality.
Legally in SA, gig economy workers are not subject to employment law.
"But the relationship is open to legal challenge because it resembles employment to a significant degree and SA courts have declared ‘independent contractors’ to be ‘employees’ in some cases," points out points out Richard Heeks, social science co-lead for labour organisation Fairwork.
Gareth Taylor, country manager for Bolt SA, which has over 10,000 local drivers, tells the FM that most drivers who use its platform drive for less than 20 hours a week, making them "true gig workers" who are driving to supplement another income, or to earn an income stream while they are studying, as an example.
"If drivers were to become full-time employees, this entire cohort of drivers would be excluded, as full-time employment would not suit their needs," he says.
Uber has a network of more than 13,000 active drivers in SA Samantha Fuller, head of communications at Uber Sub-Saharan Africa, says the vast majority "want to work independently, and we’ve already made changes to our app to ensure we support this".
She says: "We will continue to advocate the independence and choice drivers tell us again and again in surveys, polls, focus groups and personal conversations that they value most."
However, some drivers have already tried to challenge the status quo, without luck.
The Commission for Conciliation, Mediation & Arbitration has now twice found that drivers using Bolt were not employed by Bolt. The commission said this is because the driver owned his vehicle and the phone the Bolt app ran on. It said the driver could also determine days and hours of work, and was not subject to the control and supervision of Bolt.
And a ruling in 2018 identified a more complicated relationship between worker and platform than exists in the US (California specifically) because of differences between Uber SA and Uber BV, the Netherlands-based main company.
However, in May, Fairwork published a scathing report about the conduct of Uber Eats, Bolt, Mr D Food and OrderIn, saying the firms had failed to take responsibility for workers’ lost wages during the Covid-19 lockdown.
Uber has since worked with vehicle companies to help bring the cost of vehicles down.
The company has also changed its policy, allowing drivers to cash out to their bank account once a day instead of weekly.
Meanwhile, Bolt says it offers free sanitiser refills, has introduced safety screens in vehicles and has worked with the government to make sure drivers can continue working through the lockdown.
Heeks characterises the relationship between ride-hailing companies and drivers as "mixed".
On the one hand, "drivers appreciate the income-earning opportunities that working for these platforms provides, and that Uber particularly has tried to help its drivers during Covid, for example, through provision of sick pay".
Conversely, drivers have been concerned about lower earnings, threats to their safety and the absence of mechanisms for discussions with the platforms, Heeks says. "It is these issues that are behind the various strikes of Uber and Bolt drivers that have occurred in SA."
But the law is evolving. There is a good likelihood that this type of work will soon be defined as an employment relationship, says Jonathan Goldberg, CEO of Global Business Solutions, a law and industrial relations consultancy. However, he says the matter is complex as there are two types of drivers: those who drive to supplement their income and would likely want to remain as independent contractors, and those who derive their sole income from driving and may want the guarantee or protection of employee status.
To make matters more complicated, Goldberg highlights the fact that in SA, many drivers fork out a portion of their earnings to the owners of the vehicles they drive.
"The person who owns the five or 10 vehicles that are contracted to Uber or Bolt might be the employer," he explains.
"Specifically where there are individuals owning more than one car, potentially the employment relationship will be between the car owner and the driver, not necessarily Uber or Bolt."
As SA law is more similar to UK law than US law, Heeks says "we will be watching with interest" the UK Supreme Court judgment in the case Uber vs Aslam, due in the coming weeks, which considers whether Uber drivers should be regarded as employees.
Besides drivers, there are also consumers to consider.
Taylor paints a dystopian picture, saying if drivers become full-time employees the cost of fares could increase, leading to reduced demand, which would mean that the drivers would have fewer opportunities to earn money.
Additionally, drivers would have to work set schedules at set times, and "would not be able to work for multiple ride-hailing companies concurrently as many do now. This would also ultimately result in reduced earnings," he says.
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