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22 June 2021 | Story André Damons
Gig economy and Uber
Left: Associate Prof Denine Smit is a lecturer in the Department of Mercantile Law, Faculty of Law, University of the Free State (UFS) where she currently lectures several modules with her focus on Labour Law. Right: Mr Grey Stopforth is a lecturer in the UFS Department of Mercantile Law, Faculty of Law.

Opinion article by Associate Prof Denine Smit and Mr Grey Stopforth, Lecturer, Department of Mercantile Law, Faculty of Law, University of the Free State 

Introduction
The modern world of work is changing rapidly – to such an extent that by 2030, 65% of primary school learners will take up positions currently unknown to man. ‘Gig work’ is an umbrella term comprising three distinct types of services: capital platform work, crowd work, and app work. (Duggan et al. 2019:117) ‘Gig work’, within the labour context, is regarded as an umbrella term comprising two distinct types of work: crowd work, and app work. Each of the previously mentioned types of gig work performs a particular service in the gig economy. To illustrate, crowd work refers to work that ranges in skills level and difficulty, which is outsourced to a large pool of online workers, for example, tasks available on Freelancer and Fiverr. In contrast, app work (also known as on-demand work) involves an application (app) that connects clients and workers via the online platform to perform tasks, also referred to as ‘gigs’, in a specific geographical area. This type of gig work consists of various types of tasks, such as ride-sharing services (e.g., Uber and Bolt), cleaning services (e.g., SweepSouth), and the running of errands (e.g., TaskRabbit and Errandworld). Uber currently serves more than 10 000 cities worldwide.  

The previous three industrial revolutions were prompted by disruptions that occurred through the harnessing of steam. The discovery of telecommunications and computers and technological advancements led to the internet of things, a typical characteristic of 4IR. It is in 4IR where the new techno-economic paradigm needs to be addressed. This is where robotic devices could replace humans. We now face two sides of the coin: working in a digitised environment where workers are not protected by traditional labour laws, such as Uber drivers, or seeking formal employment where there are not enough standard jobs.  

The changing landscape
The modern industrial workplace is already characterised by the introduction of several robotic devices that could easily replace human capital in the future. Examples hereof are rife:  Libby is a robot at the University of Pretoria that assists students. A social humanoid robot called Sophia, created with her ‘own’ passport, was interviewed on her own at the UN, and is regarded as our first digital citizen. We also have Deep Blue, an IBM computer that defeated the world's best chess player, and Watson, another IBM computer that beat the Jeopardy! champions, as well as robots that can now play the piano, grade high school tests, paint, compose music, and write newspaper articles. (Doci & Virgillito 2019: 602). A job for life and a physical workplace may both disappear in future and be replaced by gigs for payment, flexibility, and continuous learning. The COVID-19 pandemic fast-tracked 4IR, and this is becoming worrisome in South Africa, where we reached formal unemployment figures of 32,6% (7,2 million) and 42,6% (11,4 million) if discouraged work seekers are added to the mix. More critical, South Africa's youth unemployment rate is at a staggering all-time high of 74,7% (STATS SA, 5 April 2021). We need to look at new opportunities in the gig economy, like Uber, to earn a living and alleviate poverty.

Uber and work
Uber is merely an example of ‘work’ on the platform, but many gig workers are not protected by law. If we focus on the new categories of workers, such as those working for Uber, the legal landscape is exciting and problematic. However, problems have led to sporadic strike actions in several African countries such as Kenya, Nigeria, and South Africa.

In January 2021, Uber Eats drivers in South Africa laid down their 'tools' by deactivating their apps as part of a nationwide strike action in response to a decision taken by Uber Eats South Africa to lower the fee paid to drivers per delivery.  Later in March 2021, Uber and Bolt drivers from South Africa engaged in strike action, demanding that e-hailing companies adopt a fair pricing strategy, and that their own and their passengers' safety be prioritised. Other African countries followed suit shortly thereafter. In the past year, many app workers have brought court claims in different countries in the hopes of obtaining full employee status. Let’s see what happens in other countries.

United Kindom (UK)
On 19 February 2021, the Supreme Court in the UK ruled in Uber BV v Aslam (2021) UKSC 5 that Uber drivers are ‘workers’ rather than self-employed independent contractors. The court outlined several key factors to justify its decision, most of which relate to the degree of control that Uber has over its drivers. Based on this, the court found that drivers were, in reality, ‘workers’ and not independent contractors, which implies that they are legally protected.

Australia
A recent decision by Australia’s Fair Commission (FWC) in Diego Franco v Deliveroo Australia Pty Ltd (2021) FWC 2818, could impact Uber’s operation in the country in the future. On 18 May 2021, the commission ruled that a former Dilveroo driver was an employee of Deliveroo rather than an independent contractor. The FWC emphasised the importance of standing back from the detailed picture and looking at the overall effect of the relationship. Similar to the UK ruling, the FWC also noted that Deliveroo was able to implement or withdraw a significant level of control over Mr Franco, which was a decisive factor indicating the existence of an employment relationship. Having considered the facts, the FWC found the driver to be an employee of Deliveroo, and he was therefore entitled to unfair dismissal protection. Whether this decision will stand in the future remains to be seen, as Deliveroo has indicated that it will appeal the FWC's decision.

United States of America (USA)
Similar to many other countries, the USA also has several cases with mixed judgements. For the purpose of this opinion piece, we will single out Proposal 22 (Prop 22), which was passed in California at the end of 2020. The Prop provides drivers with a guaranteed minimum earning for the time worked while actively providing rides, compensation for some vehicle expenses, occupational accident insurance to cover injuries and illnesses on the job, and ‘funding for new health benefits’ that apply to drivers with prescribed minimum hours per week.

Spain
A new royal decree regulating delivery app workers, also known as the ‘rider law’, was ratified by Spain's cabinet in March 2021. The new ‘rider law’ introduces additional provisions for a new presumption regarding the existence of an employment relationship in the context of the delivery and distribution of products through digital delivery platforms. The decree also makes it mandatory for gig businesses to inform the app workers’ legal representatives of the parameters, rules, and instructions on which the algorithms or artificial intelligence (AI) systems are based, which affect decision-making that may influence working conditions, access to, and maintenance of employment, including profiling. The law comes into effect 90 days following its publication in the Spanish Official Gazette. The gig businesses, therefore, have until mid-August to comply.

The way forward for South Africa
It is currently uncertain whether South Africa’s Uber drivers will be classified as employees or independent contractors. See Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers (NUPSAW) and Others (2018) 39 ILJ 903 (LC), in which the Labour Court held that the Commission for Conciliation, Mediation and Arbitration’s ruling failed to consider the fact that Uber SA and Uber B.V. are two separate entities. The question as to whether Uber drivers are employees of Uber was subsequently left unanswered. Each country has a unique and intricate statutory framework that regulates the traditional work relationship, making a universal approach to classifying on-demand workers almost impossible. However, it would be in our best interest to be mindful of these developments to pursue a workable solution that fits our South African context.

Thus, the jury is still out on whether gig work is good, bad or a little of both.

News Archive

Arts Festival Rally promises to be great fun
2009-05-20

The annual Amazing Rainbow Rally, presented by the Department of Paediatrics and Child Health and UFS Marketing, will take place on Friday, 17 July 2009 during the Volksblad Arts Festival on the Main Campus of the University of the Free State (UFS) in Bloemfontein.

This year all the checkpoints will be on the campus and around the Arts Festival grounds. Corporate companies in Bloemfontein and departments at the UFS may still enter teams and checkpoints.

The closing date for entering teams is 26 June 2009. A team consists of two team members who must work together to complete a route with various checkpoints. The team, who finishes first after having successfully completed all the tasks, is the winner. Last year, Dr I Babst en Dr L Solomon from the Department of Paediatrics and Child Health were the winners of the Rally.

The closing date for entering a checkpoint is 17 June 2009. Teams must complete tasks at every checkpoint before proceeding to the next checkpoint. The company sponsoring the checkpoint will also be responsible for handling the activity at the checkpoint.

The “Arts Festival” Rally promises to challenge teams physically, mentally and even artistically. Festival goers will also have the opportunity to see what teams get up to and how their favourite team is doing.

The Rally will be presented for the fifth time in 2009. The main goal of this year’s Rally is to raise funds for the Department of Paediatrics and Child Health’s “Beds of Hope Campaign”. This campaign seeks to increase the number of intensive care beds in the paediatric and neonatal wards. Currently around 250 children and babies in central South Africa cannot receive the life-saving care they need because of a lack of facilities.

For more information and entry forms, contact Ms Adéle van Aswegen at 051 401 3535 or e-mail to vanasweg.stg@ufs.ac.za . You can also visit our website at http://bedsofhope.ufs.ac.za  


Media Release
Issued by: Lacea Loader
Assistant Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za

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