Uber drivers can’t really unionise

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It is futile for Uber drivers to join a union, say labour experts, as Uber only provides a technology platform for drivers to use, making them self-employed.

Unions protect the rights of employees and enforce fair working conditions, so unions can’t do much for people who are self-employed, they say.

Last week, it was reported that 500 Uber drivers in SA joined the South African Transport and Allied Workers’ Union (SATAWU). However, all Uber drivers are technically independent contractors.

The Uber business model is disruptive because the international transport company does not employ any drivers or own any cars. Instead, it provides the technology platform that enables the connection between driver and passenger.

Zanele Sabela, the union’s media officer, says the drivers joined because they are unhappy with their working conditions. She notes that joining the union would give them the “muscle” to fight against Uber.

However, when SATAWU spoke with the company, Uber posed the independent contractor argument, says Sabela. “We have referred the matter to our lawyers. They are currently looking into how we can assist.

“Something needs to happen; we are still trying to figure out what though. We would like to find a way to help the drivers.”

Uber says in a statement: “Drivers on the Uber platform in South Africa are diverse in how they use the platform and it would be difficult to see how a third-party could represent their interests.

“Driver-partners have a number of ways they can speak to us about their individual concerns. Our partner support team operates 24/7.”

Not the norm

Tony Healy, a labour expert at Tony Healy & Associates, says: “SATAWU would appear to be viewing Uber as a traditional company, unwisely and incorrectly in my view.

“I would be surprised if SATAWU will have much success in organising in an entity of the nature of Uber − there would be significant challenges orchestrating a collective of drivers, each of whom act in an individual capacity with passengers.”

Sabela says the drivers came to the union because they wanted to get “more out of the deal”.

“They complain the rates are not competitive and that other service providers in the industry are charging more. They are also unhappy that Uber is able to unilaterally kick them off the system (without giving them a hearing) if their rating falls below a certain level,” says Sabela.

Michael Bagraim, a labour consultant at Bagraims Attorneys & Labour Law Specialists, says these are all legitimate complaints, but because drivers are not employed by Uber, joining a union is the wrong port of call to effect change.

By using Uber, drivers are agreeing to the terms and conditions of the platform. Drivers are required to stay above a certain rating over a certain number of trips, which is similar to how franchises require franchisees to stay above a certain level of hygiene, explains Bagraim.

“It is not unfair dismissal because they are not employed by Uber.”

He says the drivers may have an unfair competition or breach of contract case, but as it stands, it will not stand up in a labour court.

“If a good chunk of drivers got together and went to court to say that when they joined Uber their contract was ‘x’ and now it is ‘x -2′, they would be able to get the organisation to change,” says Bagraim.

Earlier this year, Uber lowered its rates. A lot of drivers were unhappy about this decision because they said it meant they did more work for less money.

Uber says: “Even though we guaranteed earnings during the price cut in May 2016, we reversed that decision when those price cuts didn’t work out for drivers.”

Long-term view

Bagraim says Uber is just a taste of what business is going to be like in years to come, “We need to embrace it. It is a completely different model so therefore we need different ways to deal with it.”

Healy says: “Labour legislation evolves to deal with atypical employment models − my sense is that our current legislation would not cater for this development, although case law may do so.”

Bagraim also points out SA can’t legislate to stifle market forces, as then competitors will not want to enter the market.

“More opposition in the business will encourage better conditions on the platforms as they will have to work to keep drivers with them.”

He says competition will come, it is just a matter of time. Lyft, Sidecar, Toro Ridge and Opali are some of the similar services available in other markets already.

There are examples from around the world, where Uber divers are organising, without calling it a union.

In New York, The Independent Drivers Guild represents the city’s 35 000 drivers and aims to: “Fight to enhance the earning ability of all drivers while affording independent contractors traditional benefits and protections not currently available between Uber and working drivers.”

In California, the California App-Based Drivers Association was created to: “Ensure that app-based drivers have the resources they need so they can speak with a unified voice and build a better life for themselves and their families.”

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