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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

Questions about racial integration in residences answered
2007-07-31

Answers to frequently asked questions about the racial integration of student residences at the UFS

1. Why does the UFS want to change the current situation in the student residences?

There are many reasons why a new approach to placement in the student residences is necessary. However, the main reason is of an educational nature. As a university, the UFS should create an environment in its residences where students can learn to appreciate and respect the rich diversity that is on offer at the university. A university accommodates students from many different backgrounds in terms of race, language, religion, economic status, culture and other aspects. If a student can learn to appreciate the value in this rich diversity at university, he or she will also be able to appreciate the value of this diversity in the workplace and broader society.

The current situation of predominantly white and predominantly black residences has not been able to cultivate such an appreciation for diversity and respect for one another as human beings, and will not equip students with the knowledge and skills required to manage diversity.

Besides this, there are many other areas of life in the residences that need attention. For one, we need to urgently establish a human rights culture in the residences so that the rights of all students can be respected. We need to address the abuse of alcohol, provide disabled students with their rightful place, and last but not least, really entrench a culture of learning in student residences.

Let us make the residences places we can be proud of – places of learning, of diversity, of respect; places of growth and development. This is the ideal we should all strive to achieve.  

2. Why does the management want to force us to integrate?

It is a false argument to debate the issue in terms of “force”. Any decision by a University, or any other organisation, regarding matters of policy, rules and regulations implies a restriction on the choice of an individual and an obligation to comply.  What we should focus on is whether this decision of the Council is in the best interests of our students.

The management of the university believes that it has a responsibility to give students the best education possible, not only in terms of what you learn in the lecture rooms, but especially in the residences as well. The residences can be very powerful places of learning about matters of great importance, both academic and non-academic.

The parallel-medium language policy separates students into largely white/Afrikaans and black/English classes. Efforts are being made to bridge this divide in the classroom, but we can also try to eliminate it in the residences.

The university is committed to building a new culture for the entire institution that is based on values and principles – such as an academic culture, non-racialism, respect for human rights and diversity – among staff and students.

In the context of student residences, the application of these values and principles still allows substantial room for the voluntary exercising of choice by individuals as well as by Residence Committees, notably with regard to the placement of students (they can still place 50 percent of first-year students), as well as the determination of the future character and traditions of a diverse residence.

Furthermore, students can still choose their residences (subject to availability of places), can choose a roommate, and so forth.

3. What about freedom of association?

The rights we enjoy in a democracy must be balanced against other rights, as well as the laws of the country. This means that the right to freedom of association must be balanced against laws that make it illegal to discriminate against other people on the basis of race, language or religion, for instance.

Freedom of association pertains to the right of individuals to form voluntary organisations such as clubs or private boarding houses, or their right to join or not join existing organisations.  You exercise that right when you decide to become a student of the UFS, and again when you choose to live in one of its residences.

However, once you have decided to join an organisation voluntarily, you cannot subsequently demand that that organisation should provide a “club” or residence to your liking where, for instance, you only associate with your choice of co-members. You must accept the policies of that organisation.

In any case, how would that right of yours be balanced against the right of another individual who wishes to associate with a different set of co-members? (For instance – what about the freedom of a student to associate with students NOT from his own background, but indeed from another language, cultural, racial or economic background?) 

The constitutional right to freedom of association can, in any case, not be used to exclude or discriminate on the basis of race or religion (Section 18 of the Bill of Rights).

Besides, the new policy guidelines will still make provision for freedom of association. This right can be exercised freely within a diverse residence with regard to friendships, joint academic work, socialising, sport, etc.

4. Will residences not lose their traditions?

The University appreciates that there are many valuable elements of tradition in residences. However, we must bear in mind that the traditions and character of student residences have evolved and changed over time, and they will continue to evolve and to change. In addition, we do not need to accept all aspects of residence life purely on the basis of tradition, including the unacceptably high level of alcohol abuse and unsavoury, humiliating and discriminatory orientation practices. The new approach to integrated residences provides the opportunity to retain the positive aspects of the current traditions and character, but also to develop new traditions and give residences a new character.

We can now establish a tradition and a character for each residence that are reconcilable with the values of the University as a place of scholarship and are aligned with the human rights approach of our country’s Constitution, the laws of our country and the strengths and diversity of the students in a particular residence.

5. Have students been involved in this process? Is there a role for them to play after the decision has been taken by the Council of the UFS?

In the first semester of 2007, during two rounds of consultations, the primes, SRC and student organisations were consulted about the proposed new placement policy to increase diversity in residences. Some residences also made written submissions on the matter (such as Madelief, Soetdoring, Wag-'n-bietjie, Vergeet-my-nie, Emily Hobhouse). Other residences requested and were granted more time, but did not make any submissions in the end (such as Reitz and Armentum).

Management also had several meetings with the above-mentioned structures to hear first-hand from students their concerns and solutions regarding possible challenges presented by integration in residences.

During these interactions, several excellent ideas and proposals were put forward by students. These views had a definite impact on the eventual proposal that was taken to the University Council, in particular regarding the minimum level of diversity (30%) in junior residences and the fact that residences still want to have a say in the placement of students, rather than the placement decision being left in the hands of Management alone (hence the 50% placement portion of residences). Management values the effort that was put into the process by the primes and residence committees, and thanks them for their contributions.

However, it should be stressed that consultation should not be understood as a process of negotiation, nor does it imply that consensus must be reached. What it means is that Management must take a considered decision after hearing the views of stakeholders.

Management would like students to continue to provide input and ideas regarding the implementation details of the policy guidelines. Task teams have been established and students will be informed about how they can interact with the task teams on an ongoing basis.

6. But integration in the residences was tried in the past (in the late 1990s), and then it failed. Why will it work now?

Yes, the University of the Free State did integrate its residences as far back as 1993, and for a few years it worked. The UFS did it at that time and is now doing so again, because it is the right thing to do. Yet it is important to understand why the previous attempt at racial integration in residences was not successful.

Firstly, both black and white students were much polarised because of the apartheid past. Secondly, there was insufficient management support for students in the residences, the student leaders generally as well as residence heads, in terms of dealing with diversity and related issues. Thirdly, the institutional culture of the UFS and the residences in particular was not addressed as part of broader transformation and integration in residences, whereas it is now being addressed.

In addition, the current decision to integrate residences has the benefit of being implemented after several more years of integration in schooling, sport, workplaces and other aspects of life.

This decision is also based on Management’s commitment to give all the possible support it can to this process.

This is a very important initiative that the UFS is undertaking. Management, in co-operation with students, must ensure that it succeeds. Integrated residences that produce high-quality graduates equipped to deal with the challenges of the workplace and our society is a worthwhile ideal we should all strive to achieve.

If you would like to make a proposal regarding the implementation and practical aspects of the new policy, please send it to the following email address: rector@ufs.ac.za

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