Uber drivers: Long shifts, low fares and freedom (but only kind of)

John Campbell takes an in-depth look at the plight of Uber drivers and their ongoing battle for improved working conditions.

Driver 1, we'll call him, works 12 hours a day, with a one-hour lunch break, six days a week.

He has Sunday off. He drives floating hours on Saturday. And from Monday to Friday, he drops his son at school, then heads out onto Auckland's roads like one of the Joads in The Grapes of Wrath: "This rusty car creaking along the highway to the west."

They're not rusty cars, of course. Uber demands that.

So drivers go into debt to buy Uber-approved vehicles, then hit the roads. Uber says they want their drivers to be "underpinned by the safety net Kiwis expect", but when it comes to a guaranteed minimum wage, they're not.

Nine until nine, Driver 1 works. Long, slow hours. Being an Uber-driver in Auckland is like being a sprinter in deep mud — you're seldom going as fast as you need to.

Watch: John Campbell investigates the Uber economy

Seventy-two hours, minus lunch breaks, and Driver 1 regularly doesn't make minimum wage (after costs).

Driver 2 told us she earns as little as $1200 for a 60-hour week. That’s roughly $20 an hour, before expenses. The minimum wage is $22.70.

Uber, the company itself, told us last November, is "most proud of… being able to create flexible work opportunities for thousands of Kiwis each day. These are jobs giving people the freedom to earn as and when they wish".

Freedom.

Drivers have it. And they don't.

Uber knows this. But their narrative, like almost everyone in the business of proselytising their half-shiny dream, looks up at the stars, not down at the gridlock, the driver-glut and the potholed bitumen.

We've made a documentary about this.

It comes as the country awaits the Court of Appeal's decision on whether leave will be granted for Uber to appeal a potentially game-changing Employment Court decision, released last October.

Then the Employment Court reflected on an absence of freedom: "Drivers", Chief Judge Christina Inglis determined, "were not free to organise their work other than in respect of when and if they logged in to the Uber App and the rides they accepted or declined, which were choices made under the shadow of significant adverse consequences, determined and unilaterally imposed by Uber."

It was a judgement strikingly at odds with Uber's own insistence that "these are jobs giving people the freedom to earn as and when they wish".

No, Chief Judge Inglis said: "The evidence disclosed that the degree of 'flexibility' and 'choice' said to be enjoyed by each of the plaintiff drivers under the Uber operating model was largely illusory".

The reasons for this?

Again, the Employment Court's judgment is illuminating. The points below were set out as a single paragraph in the judgment, but I have broken them up here, for clarity. They are all reproduced verbatim:

All of those points were made by the Chief Judge of the Employment Court.

The drivers I spoke to all lived them. Driver 1's 12-hour days. Driver 2 making $12.50 an hour, before expenses, on the morning I interviewed her. Driver 1, who talked of spending 30 minutes travelling a tiny distance in the heavy Auckland traffic and rain, and making five or six bucks. A driver at the airport who was waiting three to four hours for a fare that could be worth as little as $15 to $20 — that's $5 an hour, less than a quarter of the minimum wage.

They're the real lives of real New Zealand workers.

It stands to reason, of course. But we somehow missed the reason.

If human-made things are cheap the labour that produces them will also be cheap, right?

Those of us who read Naomi Klein's No Logo, almost a quarter of a century ago, and experienced then, somewhat embarrassingly, an understanding that we should certainly have reached on our own, could have immediately recognised how Uber works.

"No Logo", The Guardian wrote in 2019, "was published on the cusp not just of a new millennium, but a new phase of globalisation, in which household names such as McDonald's, Nike, Shell, Starbucks, Disney, Coca-Cola, Pepsi and Microsoft could trample over workers' rights, local laws and civic opposition in pursuit of ever bigger profits, as western outsourcing crashed against the shores of the developing world, leaving behind human misery and environmental ruin as the tide rolled out."

Wow! We won't let that happen again! Thanks Naomi!

“

Despite being described as 'his own boss', [Uber driver] Mr Leota did not exercise any real degree of autonomy over his work

—  Chief Judge Christina Inglis in 2019 |

But give us a brilliant app and a fare into town so relatively cheap that it can only, possibly, come from a driver at risk of sometimes not earning a legislated minimum, and we are using it, baby!

So, where to from here?

Uber says, and we must take them at their word: "A solution that works for everyone is in sight. One where people can continue to enjoy the flexibility that comes from working in the gig economy while benefiting from the protections and standards that Kiwis rightly expect."

There's room for Government action, here. A Labour government, in particular, surely?

But, case by case, the Employment Court is getting on with charting a route forward. (A bit like the Uber app itself.)

The Uber case isn't the first. Nor are rideshare drivers unique in the precariousness of their ability to consistently earn even a minimum wage.

In 2019, Mika Leota, who'd been "a driver for a courier company, Parcel Express Ltd", went to the Employment Court to ask "for a declaration that he was an employee of the company". Parcel Express said that "Mr Leota was an independent contractor, not an employee".

Mika Leota won.

Again, the case was heard by Chief Employment Court Judge Christina Inglis.

And again, her judgment contains passages of bristling clarity. Perhaps none more so than this: "There is no doubt that in some cases the perceived benefits of characterising a worker as an independent contractor are decidedly lopsided, and that a degree of cynicism has likely informed the way in which the relationship was described from the outset."

The same themes recur — Uber drivers, courier drivers, the two judgments echo with similarities: "Despite being described as 'his own boss', Mr Leota did not exercise any real degree of autonomy over his work", Chief Judge Inglis writes.

And then, this bugle blast: "The mere fact that an industry considers that its workers are engaged as independent contractors cannot, of itself, be enough."

And yet, until the Employment Court's judgments, the right of Uber, and the right of courier companies, to simply declare their drivers are independent contractors has somehow held sway.

This is not without appeal for some drivers. If Uber is a side-hustle, a couple of hours a night on top of another job, independence makes obvious sense.

If Uber is a retirement job — a few hours, a couple of days a week, on top of the pension, independence makes obvious sense.

But the idea that a driver doing 50 hours a week, and more, with their work entirely controlled by Uber's app, isn't an employee, does seems to be more convenient for the employer (sic).

"Stripped back to its fundamentals, Uber is the only party running a business," Chief Judge Inglis wrote. "It is in charge of marketing, pricing and setting the terms and nature of the service provided to riders, restaurants and eaters. The Uber business is reliant on drivers providing personal labour for the benefit of its transport service, to be performed as dictated by Uber. The plaintiff drivers were required to provide their labour with due skill, care and diligence, and to maintain high standards of professionalism, service and courtesy — all set and enforced by Uber."

If full-time Uber drivers are employees, as Chief Judge Inglis determined in the case of the four drivers whose situation she was considering, then the world changes. Fast. (Way faster than an Uber in peak hour traffic.)

The Employment Court reminds us that employment status "is the gate through which a worker must pass before they can access a suite of legislative minimum employment entitlements, such as the minimum wage, minimum hours of work, rest and meal breaks, holidays, parental leave, domestic violence leave, bereavement leave and the ability to pursue a personal grievance".

Surely the gate must be opened?

That there are thousands of New Zealand workers for whom the gate is locked, would not seem to constitute freedom, or choice or a "safety net".

Or don't we need to worry about that?

Do we think the cheap rides are worth the cheap labour?