[imagesource: Amelia Holowaty Krales]
Around the world, there is debate about whether Uber drivers are employees of the company or independent contractors.
South African workers who are classified as employees are automatically afforded rights in terms of national legislation, such as the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA).
When confronted with complaints from Uber drivers, the company is quick to point out that they are independent contractors and therefore not entitled to the rights of ’employees’.
However, if you look at what an Uber driver does and how they operate, the lines become blurred.
Uber drivers are required to perform their duties personally. They don’t contract with their customers, but with Uber, and they are largely controlled by Uber, in that the company regulates their work and performance through software, controls their pricing, and also the number of drivers active in a certain area.
It’s for this reason that a group of human rights lawyers, from two top firms in the country, have decided to take up a class-action lawsuit against Uber South Africa.
Mbuyisa Moleele Attorneys, assisted by London law firm Leigh Day, reports TechCentral, will be filing the suit in the Labour Court in Johannesburg on the behalf of the drivers.
“The claim will be based on the drivers’ entitlement to rights as employees under South African legislation and will seek compensation for unpaid overtime and holiday pay,” the lawyers said in a statement.
Mbuyisa Moleele Attorneys and Leigh Day achieved the first two settlements in the silicosis litigation on behalf of gold miners in South Africa.
The claim follows a landmark ruling in the UK earlier this month that ended a six-year battle between Uber and its drivers. It will now have to treat them as full-blown workers rather than independent contractors.
Leigh Day pointed out that UK and South African legislation relating to employment status and rights is very similar, and that Uber in the UK operates using a similar system to the one that we have here.
“This, along with the fact that the Competition Commission found that after deductions, some drivers earn less than the minimum wage, means that Uber drivers in South Africa work incredibly long hours just to make ends meet. The supreme court recognised similar difficulties faced by drivers in the UK case by stating that in practice, the only way in which drivers could increase their earnings was by working longer hours while constantly meeting Uber’s measures of performance.”
According to ITWeb, Uber, which operates in Johannesburg, Cape Town, Durban, Pretoria, Port Elizabeth, and East London, was estimated, in 2018, to hold 75% of the South African taxi market.
“Uber’s argument that it is just an app does not hold water when its behaviour is that of an employer,” says Zanele Mbuyisa of Mbuyisa Moleele Attorneys.
“The current model exploits drivers; they are effectively employees but do not benefit from the associated protections. We are issuing a call to workers to stand up for their rights and join the class-action against Uber.”
Honestly, this has been a long time coming.
Drivers have been arguing this for ages – along with answering questions about how their day has been and what time they finish – so it’s no surprise that we’re headed to the courts.
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