Source: Radio New Zealand
The Employment Relations Bill could override the Uber court decision. RNZ / Samuel Rillstone
An expert in employment law says new legislation will override a Supreme Court ruling, but that bill is full of holes – and will itself end up being tested in the courts.
The union for four Uber drivers who went through the Employment Court, Appeal Court and Supreme Court – the highest in the land – to win their case for being employees rather than contractors, may have to start all over again.
The Employment Relations Amendment Bill is at select committee stage and is due back before Parliament on Christmas Eve. It aims to define the nature of contracting to give everyone certainty.
Employment law expert Simon Schofield, a professional teaching fellow at the University of Auckland, says it has provision in it to exclude ‘specified contractors’, measured by a five-point gateway test.
“If a person is found to be a specified contractor they will not be an employee, and the Employment Relations Act won’t apply.”
Those tests are that there needs to be a written agreement that specifies the worker is an independent contractor; the worker is not restricted from working for others; the worker is not required to be available to work certain times or days or for a minimum period, or is able to sub-contract the work; and the business does not terminate the arrangement for not accepting an additional task.
The hiring business must give workers the chance to seek advice on the written agreement before signing it.
Asked if the bill as written would override the Uber court decision, Schofield says “yes – although that’s not problematic from a legal perspective”.
But he expects there will be some tinkering with the bill before then, for clarification purposes.
“I think they need to change parts of the bill. Uber has said there should be amendments; Business New Zealand has suggested certain changes. The unions of course have said, ‘throw the whole thing out’; I’m not sure that’s the answer either.
“I would hope that there are changes. There’s a real tension between the written contract, and how the relationship works in practice.”
‘Creates more uncertainty’
He says the way the bill is drafted now, a lot of people who were seeking certainty won’t be getting it.
“I don’t think this bill is a silver or gold bullet to fix the problem. A lot of issues will continue to arise, and we need a strong framework to assess that.”
Schofield believes the bill, when it becomes an act, will be refined by court decisions, but that’s not the best way to make legislation.
“The way in which the bill is currently drafted creates more uncertainty rather than less uncertainty, despite what the minister is saying.”
Meanwhile he says the next step will be the unions seeking to collectively negotiate with Uber in the wake of the Supreme Court decision.
“I imagine Uber will be stonewalling them, saying ‘no we’ve got this Employment Relations Amendment Bill going through Parliament, we’re not going to negotiate with you’ – or at least drag out those negotiations.
“I would also think the unions will be asking for arrears in respect of those Uber drivers going back six years, and of course that will be a massive calculation and will no doubt attract a number of previous Uber drivers to that litigation.”
Schofield says Uber is looking at payouts in the millions.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
