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Speaker: Confessions of an Uber Driver II: How we doing?

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  • goforit,

    Sorry Ben even though I admire your views and what you think is right its the people who drive for Uber whom are non compliant with the Act. I can think of three areas without digging deep where Uber drivers are in breech of the ACT

    (a) fares are not prebooked
    (b) fares are not preagreed at time of booking usually on a hourly basis.
    (c) dodgy PSLs etc

    The first two alone if the NZTA had acted when Uber first raised its ugly head would have shut it down.

    Only taxis can do on demand/non preagreed price work and to do this Uber should have been an ATO.

    Auckland • Since May 2016 • 314 posts Report Reply

  • Brent Jackson,

    Wrt Uber's low pricing, I was wondering, with them being an American Co, do they expect the drivers to be picking up tips with each trip ?

    Auckland • Since Nov 2006 • 615 posts Report Reply

  • BenWilson, in reply to Brent Jackson,

    do they expect the drivers to be picking up tips with each trip ?

    No, quite the opposite. Even in America, they make it very clear that tips are not to be asked for and are not built into the pricing. You can tip, of course, and I’m yet to hear of the driver that would be offended to be tipped, it being quite literally the only way to reward them at all, since the rating system’s highest setting is “Acceptable”. There is no bonus system of any kind whatsoever for being a good driver. There is only the threat of completely arbitrary termination of your job when your rating falls below 4.5. There being no comeback or recourse of any kind whatsoever available to a driver, they naturally want to receive only 5 stars, or nothing at all.

    As far as I can tell, it’s a stretch to even call us independent contractors. The contract that I can find, which I don’t recall ever being asked to sign, and which carries no signature or any other proof of authenticity from Uber, explicitly removes every possible right, including even the jurisdictional right for the contract to be subject to NZ law. We are, apparently, subject to the laws of the Netherlands. I presume that means the country in Europe, rather than some new realm in cyberspace, but it’s really quite impossible to be sure. It’s an amazing document really, I’m quite glad I made a copy of it. It would be hard to find a more convincing document of the sick nature of neoliberal contract mentality.

    It begins with a long preamble about how they are not supplying a transport service at all, that they are merely a software organization supplying “leads” to the drivers. This goes on for several paragraphs to make the point really clear that they can’t possibly be held to account for anything that happens to anyone at all for anything anytime anywhere anyhow. Then it proceeds to spend the rest of the document outlining the specific nature of their transport system and how they have complete and total control over everything you do whilst driving for them. You can’t refuse the “leads” without risking termination. You can’t take any “lead” as a personal customer. You will never know the destination the “lead” wants to go to until you accept the sale. You will drive exactly how the customer wants. You will be polite, blah, blah, blah…on it goes for page after page of the rules of how their taxi service works.

    So what are we? Contractors or employees? Or perhaps, peons? I don’t really know.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • BenWilson,

    TBH I think the contract is a front. It's not actually ever signed or agreed to by anyone. I don't even think Uber want to be held to it. It's a front to give the appearance that people who are essentially working outside of any formal arrangement at all are, in fact, contractors.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • BenWilson, in reply to goforit,

    its the people who drive for Uber whom are non compliant with the Act

    I've never said any different. What I think you're not getting is that Uber themselves are not reachable because they are not an ATO. They don't even pretend to be an ATO in NZ. They simply ignore any requirements relating to that outright. They specifically claim not to be a transport organization at all.

    Until the recent changes, they did this by putting the whole onus on proxies - either the PSL conduits, or drivers holding their own PSLs. Now, they can't even be arsed to do that, so unreachable have they become. It is clear from the inertia of the NZTA in this, that they literally have no place to grasp. I don't know why because the NZTA will never explain, other than to say that they have no option. If you know better than the people running the NZTA what their powers, brief and mandate are, please give me as much information as you have, and I'll press them, and encourage any and every other person who wants to as well.

    Sure, it's possible that there's some massive scandal going on here, a government backhander. I'm not really conspiratorial enough to believe that. I think it's more that the NZTA really is telling the truth, that they have no answer to what Uber is doing. It's not in their jurisdiction. If it is a conspiracy, then I'm pretty sure that we'll be shining a bright torch on it pretty damned soon. Whichever politicians want that free shot can go for broke, one at a time, or all together. My own feeling is that at the moment we want to exhaust the non-partisan line first, because political division over our rights would be likely to harm them more. I want the government to be able to back down if they are in some dodgy conspiracy, and to do so without egg on their faces, but instead hurrying to help us out.

    If they don't, however, and the window is closing fast on that, make no mistake, I fully intend this to be something that blows up in Nationals face right in the middle of an election year. For now, however, there's no evidence of wrongdoing beyond the bizarre inertia to enforcing NZ law that has been going on.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • Ian Dalziel, in reply to BenWilson,

    They don’t even pretend to be an ATO in NZ. They simply ignore any requirements relating to that outright.They specifically claim not to be a transport organization at all.

    They live on 'The Planet of the Apps'!

    Christchurch • Since Dec 2006 • 7889 posts Report Reply

  • BenWilson, in reply to Ian Dalziel,

    Just don't call me Caesar. Also, annoyingly, I can't find the Orangutan's comeback, it's very apposite to my current situation. He looks down to a couple of chimps brawling over a banana (while he and Caesar are having this deep and meaningful) and says "Apes stupid".

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • Alfie, in reply to BenWilson,

    The contract that I can find, which I don’t recall ever being asked to sign, and which carries no signature or any other proof of authenticity from Uber, explicitly removes every possible right, including even the jurisdictional right for the contract to be subject to NZ law.

    I’m not a lawyer but I understand that any contract which is not signed by both parties is completely invalid in law and would not stand up in any court.

    Uber’s stance that they only provide “leads” to independent contractors is inherently weak. After all, they are solely responsible for collecting all the money and take a decent cut for themselves. And as a company they are inciting law-breaking by encouraging people to drive using their software platform without the relevant P-endorsement, TSL, or COF.

    To me, that places Uber fair and square at the heart of a business which makes its money by deliberately encouraging people to break NZ law.

    Guilty, your honour.

    Dunedin • Since May 2014 • 1386 posts Report Reply

  • BenWilson, in reply to Alfie,

    Uber’s stance that they only provide “leads” to independent contractors is inherently weak.

    Oh, Yes. They dictate the entire job, and process all the payments, and enforce quality of service. They keep records not only of the origin and destination, but also the entire route traveled, and bill accordingly. They are running the actual meter. There's no way they really just provide leads.

    On the rest, IANAL. It looks prima facie to me. I would not have even got involved with any of this organization if I didn't think there's a massive glaring case to answer, a huge violation of many aspects of the NZ legal system, not to mention the injustice that it naturally inflicts upon the main victims, the drivers. If they had literally turned up in pin-striped suits telling us that they'd sort the cops out for us if we just pay them from the till, it could hardly have been more obvious what was going on.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • goforit,

    The reason given to us from the NZTA is "its to expensive to chase Uber but the new regulations in 1 to 2 years time will take care of all the problems".
    what a joke, Uber is never going to follow the regulations.

    Auckland • Since May 2016 • 314 posts Report Reply

  • goforit,

    The NZTA thinking is under the new (yet to be ratified) regs Uber has to become an ATO even if they state are are a communication company and that ATO status brings them within NZ Law.

    Auckland • Since May 2016 • 314 posts Report Reply

  • goforit,

    All the above doesn;t mean a thing until those regs come into effect. In the meantime the currant law must stand and be enforced and that means hitting the drivers until Uber come to the party. The industry is not against Uber as it is a open market these days but they need to follow NZ Law.
    I operate within the law and so should every one else.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    How can you be sure this is their thinking? I can’t see why Uber has any more reason to become an ATO in the future than it does now. It’s the law now, and it will be later, and they’re ignoring it now, without consequences. Why would they not ignore it later?

    ETA: And why would you think NZTA doesn't realize this?

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • Sacha, in reply to BenWilson,

    bizarre inertia to enforcing NZ law

    a feature of this government in many portfolios.

    Ak • Since May 2008 • 19688 posts Report Reply

  • Sacha, in reply to Alfie,

    they are inciting law-breaking by encouraging people to drive using their software platform without the relevant P-endorsement, TSL, or COF

    Seems so. Pretty sure those past cases of fake passports by dodgy immigration agents etc have seen action against said fraudsters, not just the people who bought their services. If Expedia exhorted hotels to ignore employment laws or the building code, wonder who govt regulators would go after?

    Ak • Since May 2008 • 19688 posts Report Reply

  • BenWilson, in reply to Sacha,

    If Expedia exhorted hotels to ignore employment laws or the building code, wonder who govt regulators would go after?

    The employees and the builders probably.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • goforit, in reply to BenWilson,

    The NZTA lives in a fairy world these days, they do think Uber will abide to the new regs, but as we all know they will not. Uber mandate is to have zero regs so they can do what they wish when they wish.

    Auckland • Since May 2016 • 314 posts Report Reply

  • Sacha, in reply to BenWilson,

    the guests, surely

    Ak • Since May 2008 • 19688 posts Report Reply

  • BenWilson, in reply to Sacha,

    the guests, surely

    After the building collapses on them? :-)

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • Katharine Moody,

    Sounds to me like the Employment Relations Act is the one to target Uber on. If a contract is not in place, you are not contractors - that makes you employees to my mind;

    http://www.legislation.govt.nz/act/public/2000/0024/latest/DLM58619.html

    You should seek a declaratory judgement from the courts with respect to your employment status.

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • goforit,

    when you downloaded the app did you not agree to the terms and conditions after reading them or did you just do as most do just ticked the box to complete the download.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    Before I answer that, can I ask which one you did? Tell me the exact pathway of agreeing to any contract that you recall engaging in. As in, literally, where on the screen was the link to the terms and conditions? We are talking about an app that gets updated on a weekly basis, which runs on several phone operating systems, which requires you to accept permissions on every upgrade, and never gives you a hard copy of the terms and conditions. So, in all seriousness, can you tell me in any detail what the contract that you effectively agreed to was, and how and when you agreed to it? On what date, and where you were?

    I'll find out mine, if you find out yours.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • goforit,

    Hi again, I just been informed by a tax expert in regard to GST. Did you know that the commission you pay to Uber and in the case of the dodgy PSLs the commission paid the PSL holder you are subjected to an additional GST ammount on these commissions paid.

    ie Fee of 20% for the older drivers, newer drivers and the 25% commission paid should be plus GST and the 5% you pay for a dodgy PSL should be plus GST.

    This of course will push the toalcommissions up 28.75% (GST inclusive)

    This is another area where Uber and their drivers are not being compliant to NZ Law.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    Yes, I think you raised that before. And yes, there is a continual discussion going on at the moment about where the hell we all stand on GST, with multiple competing expert resources giving different views. So I'm personally staying the hell out of that discussion. I am not an account or a lawyer.

    It's a stretch to say the drivers are not compliant to NZ law, though. You have to make a hell of a lot of assumptions about what people are doing with their taxes. Most drivers get professional accountants to do their taxes for them and I can't say with any confidence whatsoever what they are doing, because it's private and confidential, and most likely has massive variation across the drivers.

    So far as I can see, the discussion is an absolute mess. I'm certainly not going to muddy it any further other than to say that I'm well aware that there is messy discussion on this going on.

    Auckland • Since Nov 2006 • 10641 posts Report Reply

  • goforit,

    i think the bottom line is, Uber should be telling their contractors exactly what is expected of them in regard to all the NZ laws not Ubers version of the NZ Laws. As after all its their system the contractors are driving for.

    Auckland • Since May 2016 • 314 posts Report Reply

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