How do you strike if you’re not an official employee? - HRM

By Alan J. McDonald

Drivers give Uber a one star rating in a push for better pay. Due to their independent status, they’re forced to use non-conventional methods.

If you live in Sydney, Melbourne, Perth, Brisbane or Hobart, and rely on the ride share giant Uber to get you from A to B, you might have noticed a substantial lack of service in your area on Monday morning. No, they weren’t all indulging in a mass sleep-in. They were on strike.

According to one estimate, 15,000 Uber drivers switched off their ride sharing app protesting for fairer rights and improved pay.

The mysterious people behind the strike

The strike was organised by membership group Ride Share Drivers United (RSDU), a faux-union, or “alt-union”, made up of drivers who remain anonymous to avoid the various companies blocking them from using the service.

The group’s anonymity might seem extreme, but according to principal lawyer at McDonald Murholme, “there are some limited protections for independent contractors under the Fair Work Act 2009 (Cth) however these are nowhere near as broad as the protections for employees. Accordingly, Uber has more scope to punish those who speak out while they are deemed to be independent contractors.”

The organisation’s spokesperson, known as Max B, says “our actions are designed to increase public awareness, help level the playing field for new entrants to the market and up the pressure on Uber, forcing [them] to lift their game, heed our demands and treat drivers, who they call “independent partners”, in a fair, lawful and dignified manner”.

“[Uber is a] multinational corporation which is exploiting drivers and customers get cheap rides and that come at the expense of drivers who take home less than minimum wage. Uber never consults drivers. Uber needs to bring prices to sustainable levels,” he says.

A list of grievances

According to the RSDU group, and the strike’s participants, they were fighting to:

• Remove upfront pricing and reinstate the ‘pay by distance/time travelled’ model;
• Stop penalising drivers who want to opt out of the UberPool option;
• Increase UberX rates by at least 15 per cent to account for continuous maintenance of vehicles.

The RSDU website says the introduction of upfront fares and UberPool, are “features designed to further shortchange and underpay drivers, eroding even more their already poor working conditions, all under a false ‘independent contractors’ pretence”.

In light of the Fair Work Commission’s recent decision regarding an Uber driver’s unfair dismissal claim – which supported Uber’s argument that drivers are in fact contractors and not employees – the question around the appropriate ways in which drivers can strike, or protest for fair work rights, is raised.

Without an appropriate avenue to air their grievances, drivers are forced to act off the books. This encourages the rise of alt-unionism (also referred to as “alt-labor” and “improvisational unionism”), which – as we’ve previously reported – is a measure used to fuel change through non-traditional, and often combative, means.

This is not the first time the RSDU group has called for drivers to strike. In fact, it’s the fifth. In April 2017, between 1,000-1,500 drivers participated in a RSDU incited strike over poor pay and safety concerns. Just over 12 months later and the number of strikers has increased tenfold, suggesting that alt-unions are on the rise and here to stay.

A driver’s perspective

Sydney-based Uber driver Anna said while she 100 per cent agrees with the reasons behind the strike, she thinks the surge prices on Monday were more attractive for some drivers than the reasons behind the strike.

“I’m on a Sydney Uber Facebook group and everyone commenting was checking the surge as an indication of how the strike was going.”

When asked what she’d most like Uber to change, Anna said that the 25 per cent commission taken by Uber was “way too high.”

“Other ride sharing companies, (such as Shebah and Ola) are at 15 per cent. I like UberPool because it’s good for the environment and the riders love it, but we get paid so little for it.”

It’s difficult to complain to Uber, she says, because they provide “generic responses, or just ignore you.”

“If I really wanted Uber to change, I’d stop ordering them for myself, but they’re just so convenient and cheap,” she says.

“It’s great that RSDU is doing something about this but the industry is changing so rapidly; it’s hard to establish standards in the ride sharing market. Also, I’m aware that my driving career is limited with the impending arrival of driverless cars. RSDU feels like a pop-up unicorn for this brief period between taxis becoming redundant and robo-cars. I’m sure Uber knows this too and wouldn’t be surprised if they upped their commission just because they can.”

The rights of contractors vs employees

Uber’s obligation to respond to RSDU’s demands are commercial not legal because the drivers are independent contractors, says Jewell.

“If the drivers were deemed to be employees, Uber would need to ensure compliance with industrial laws and the drivers would be protected from adverse action by reason of their industrial activity,” he says.

Even though Uber has no legal obligation to respond to these demands, they should probably consider doing so, as their other ride share counterparts seem to be ahead of them when it comes to driver satisfaction.

Max B says that RSDU has built “a bridge of goodwill with new platforms like Ola and Didi, which currently do not use exploitative arrangements like ‘upfront pricing’ or UberPool and generally pay drivers better and fairer.

“We are also glad to announce that both platforms responded well to our call and did their best by increasing drivers and passengers incentives/introductory offers during the strike,” he says.

Will drivers remain independent contractors?

If drivers are working across a variety of ride share platforms, it makes it more likely they’ll be classified as contractors (as we covered in our article on Foodora’s exit). But what about the drivers that are loyal to a single brand?

If that’s the case, the factors that determine a driver’s independent status include their ability to log on and off as they please, a lack of uniform, use of their own equipment (car, phone, insurance etc.), the requirement to pay their own GST, and their lack of superannuation or other employment benefits.

Taxi drivers however, who are also considered independent contractors for tax purposes, are considered employees when it comes to workers compensation and unfair dismissal claims, following a recent Fair Work Commission decision. So who knows? Perhaps it’s possible that we could see Uber drivers recognised as employees in the not so distant future. That way the people behind the RSDU could show their faces and fight for their employment rights in the light of day.

RSDU say they are yet to receive “an acceptable response” to their latest demands from Uber and have allocated 10 days to hear back from the billion dollar company.

Reference: ‘How do you strike if you’re not an official employee?‘, HRM, Tuesday 7th August 2018.