SA’s Uber drivers classified independent contractors, but class action lawsuit may change that

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The classification of Uber drivers has always proved a contentious one. To date, the global ride sharing platform has classified its drivers as independent contractors and not employees, which limits the rights and protections that said drivers have.

In recent years we’ve seen this issue being raised in a number of regions across the globe, with one of the latest in California, where Uber threatened to leave the state and potentially shut down its services as a change in classification would require a new business model.

South African Uber drivers too have failed to get reclassified locally, but a pending class action lawsuit could change that as greater protections and rights for drivers are being pursued.

“Pursuant to the UK Supreme Court decision, UK law firm Leigh Day, in collaboration with SA law firm Mbuyisa Moleele Attorneys, announced plans to introduce a class action on behalf of SA Uber drivers against Uber,” explains a press release published by local law firm Webber Wentzel.

“The law firms have indicated that they will argue that drivers should be provided with paid leave, overtime pay and membership of the Unemployment Insurance Fund. Uber SA maintains that most drivers wish to work independently and that Uber, using its current operating model, continues to contribute to job creation in South Africa. No indication has been given as to when the class action will be launched,” it adds.

The law firm notes that there are two legislative interventions which could assist drivers receive greater protections.

The first is the incorporation of the Fairwork Code of Good Practice for the Regulation of Platform Work in South Africa into the LRA and the second is a declaration by the Minister of Employment and Labour in terms of section 83(1) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) that ride-sharing drivers are deemed to be employees for the purposes of selected sections of the BCEA and LRA.

“Following two years of empirical research, the Fairwork Project drafted the Code of Good Practice for the Regulation of Platform Work in South Africa, which is aimed at providing platform workers with five key rights: minimum wages; protection under the Occupational Health and Safety Act 85 of 1993; written contracts setting out their working conditions; fair management; and freedom of organisation,” Webber Wentzel points out.

“Section 83(1) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) empowers the Minister of Employment and Labour to deem any category of persons to be employees for the purposes of any part of any employment legislation, except for the Unemployment Insurance Act 63 of 2001. The Minister could accordingly declare that ride-sharing drivers, or platform workers in general, are deemed to be employees for selected sections of the BCEA and LRA,” it adds.

We were recently in contact with Uber Sub-Saharan Africa (Uber SSA) GM, Frans Hiemstra on the matter, and whether anything is being doing to safeguard drivers.

“As a technology company, we have the ability to look at the economics, data and feedback in each city and pilot a wide range of new products and features to provide the best possible service to drivers and riders. We also use this method to improve current ones. For example on the driver side, we announced a series of initiatives to help drivers make the most out of using the app and invested in injury cover as well as introduced tipping, cash indicator, and rider verification,” he highlighted.

While greater access to tools have been made, the classification of drivers from independent contractors to employees shows no signs of changing from Uber SSA’s point of view. It is important to note, however, that this process is very much in the early stages though.

It also remains to be seen what the outcome of the pending class action lawsuit will be. If it finds in favour of SA Uber drivers, it could prove a watershed moment.

“The outcome of the potential class action will significantly influence not only the rights of Uber drivers, but also the rights of other individuals undertaking platform work. This is an area which we will continue to monitor, and we will provide updates as soon as new developments arise,” concludes Webber Wentzel.

Robin-Leigh Chetty

Robin-Leigh Chetty

When he's not reviewing the latest smartphones, Robin-Leigh is writing about everything tech-related from IoT and smart cities, to 5G and cloud computing. He's also a keen photographer and dabbles in console games.