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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

The failure of the law
2004-06-04

 

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.
 

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

 

 

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