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Speaker: Confessions of an Uber Driver III: How do I rate?

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  • BenWilson, in reply to goforit,

    Under the current act there is 5 forms of small passenger service and the one that descibes the Zoomy operation is a taxi service therefore the regulations around taxi service must be complied to

    To me it looks more like the drivers are operating private hire services, but they're not following the laws around setting the price. If they were taxis they could have signs on their roofs, accept street hails, and sit in taxi stands.

    One cannot choose which regulation they wish to be compliant with and which regulation does not suit them

    That's true, but you can choose what service you are claiming to provide and they claim to be providing private hire services.

    those innovations could and should still follow the current regulations.

    I was trying to work out yesterday what that would actually look like for a private hire service. You could certainly offer a pre-agreed price. But the passenger could not vary the trip. Or you could offer a per hour rate, in which case it would be pot luck for the passenger whether they got caught in slow traffic, or the driver if they got asked to drive at 100km/h all the way to Hamilton.

    Certainly it could be done. Would it be a particularly popular service, in competition to Uber? Who knows? Someone should try it. I expect Zoomy is winging it, because it would look extremely bad for NZTA to enforce on them the operator licensing rule that they have failed to enforce on Uber, essentially driving out the local competition in favour of a multinational. And if they did do that, Zoomy could certainly implement a price structure change.

    But as I said before, there is no will among enforcement over this particularly arcane and technologically outdated aspect of transport law that isn't even statute law. They have much, much lower hanging fruit in drivers not even having P Endorsements, COFs, or using logbooks. Those are things that people can easily see are problematic compliance violations. Also they will continue to be violations even after the law changes.

    Using a different (and in almost every way considerably superior) kind of meter is something that they just don't want to break. I get that. Maybe they change that sometime soon. If so, I'd say Zoomy can change their app in a few days, and Uber would just pull out of NZ.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Rich of Observationz,

    If you've got a database like Uber's (or even from publically accessible resources like Google Maps) then it's fairly straightforward to estimate within reasonable margins the journey time/distance and give the passenger a firm quote - which wouldn't often lose the driver money. If they want to reroute, they get a new price (what happens if you book a conventional private hire and decide you want to divert?)

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • goforit, in reply to Rich of Observationz,

    (what happens if you book a conventional private hire and decide you want to divert?)

    When this happens and of course it does occassionly, a new price has to be negotiated at the time of changed circumstances.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    When this happens and of course it does occassionly, a new price has to be negotiated at the time of changed circumstances.

    Sounds like it could be made effectively identical to a taxi in pricing structure. So the question that probably occurred to the regulators was "if it's functionally equivalent then why bother enforcing a farcical situation that it must be presented as different?".

    But also possibly they actually found that it might be quite hard to prove that a negotiation had never happened. The driver could very well have actually said the cost of the trip beforehand and the passenger said "OK then". You'd need the passenger as a witness in court. I'm not sure how many passengers would be willing to be party to busting an Uber driver they booked for an Uber trip, especially since they are then a party to the crime.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • goforit,

    We are not talking about a taxi fare that is metered but a private hire fare that must be agreed upon in advance, usually most private hire operators say for instance $25 per hour or part of an hour and that usually covers variations.
    You may say its a farcical but it is the transport act at the moment, when the act chonges the method of calculation must be agreed upon before the hire commences.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    Yes, you are right, and no one but taxi drivers care. Not passengers, not the NZTA, not the CVIU, not the Minister of Transport, not the general public. It's been tested in court and it died the death that farcical old laws that are going out under a law review always die. The informal death that precedes the formal death.

    Personally, obviously, I also don't care. I would not drive for Uber or ride in one if I cared about this. There are actually important rules to focus on. Things that go to public and driver safety. I'd rather push for cameras in Ubers than muck around talking about how meters used to work. I'd rather the laws covered important aspects of taxation so that Uber pays its tax obligations. I'd rather look at how the enforcement of the law is failing even on those important aspects before worrying about something that neither has been, nor is, nor can, nor should be enforced.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • goforit, in reply to BenWilson,

    Ben as you know I do agree with just about every thing you say and when and if the act is ammended most of the issues will disapear. All I am saying in the meantime the current act is the law and it has been tested and drivers over the years have been done under the law.
    I have had several talks with the NZTA over this and have applied twice for an exemptions to the regulations (prebooked and pre agreed fares) to operate both my private hire vehicle and taxi (in private hire mode) using an app to meter the fare.and on both occassions been denied and the regulations and penalites high lighted to me. This tells me even though a blind eye has been turned a complaint is received by NZTA from the public over these issues the law would be enforced.
    The review and changes to the act was asked for by Uber and I have the feeling when the changes become law Uber just going to ignore them. On the positive side Uber I think by ignoring the changes will have the law enforcers (NZTA and IRD and other gov't departments) go them big time.
    When the changes take place I think you will find the taxi industry also become the bulk of the private hire industry and take the lead in both fields

    Auckland • Since May 2016 • 314 posts Report Reply

  • Sacha,

    Short article about some of the legal/moral issues holding up self-driving cars.

    Ak • Since May 2008 • 19707 posts Report Reply

  • Sacha, in reply to goforit,

    This tells me even though a blind eye has been turned [if] a complaint is received by NZTA from the public over these issues the law would be enforced.

    Not if their Minister is instructing otherwise.

    Ak • Since May 2008 • 19707 posts Report Reply

  • goforit,

    http://nypost.com/2016/10/23/uber-warns-of-fake-driver-scam-spike-at-city-airports/

    I did a giggle to myself when I read this, Uber is now complaining about others working their patch, was not to long ago Uber was the one working someone else's patch at this location. This is what happens when regulations are thrown out the window a free for all.
    .

    Auckland • Since May 2016 • 314 posts Report Reply

  • goforit,

    Auckland • Since May 2016 • 314 posts Report Reply

  • Rich Lock,

    Not sure how relevant this UK decision will be for NZ, but may be of interest: https://www.theguardian.com/technology/2016/oct/28/uber-uk-tribunal-self-employed-status?CMP=fb_gu

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Ben Austin,

    Uber has lost a first level Employment Tribunal claim in England today on the question of employment status (or more precisely, worker status*). Page 26 onwards has the conclusions.

    https://www.judiciary.gov.uk/wp-content/uploads/2016/10/aslam-and-farrar-v-uber-reasons-20161028.pdf

    *Similar to employment, but a new statutory concept. Entitled to national minimum wage, holiday pay and subject to working time rules (say hours of work).

    text__Any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.__text

    London • Since Nov 2006 • 1024 posts Report Reply

  • BenWilson,

    @ rich I expect it will be very relevant. Much to digest there.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • BenWilson,

    I'm getting too many interviews to keep up with on this today. Watch TV3 and One tonight, listen to NewsTalk ZB or RNZ or read NewsHub. That's so far....

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • BenWilson,

    Busy day:
    TV3
    One News
    Granny
    Radio NZ
    …and I can’t find the Newstalk ZB interview.

    I can’t say I have a deeply informed opinion about this case that was just ruled on a day ago on the other side of the world, nor can I claim to be speaking on behalf of all drivers in my opinions. But I stick to the view for now that this ruling can only be good for drivers. Certainly most would probably prefer to remain independent contractors, particularly part-timers. But some might prefer a proper employment situation, particularly full-timers. More to the point, when operating under conditions that so closely resemble that of an employee, the ability to choose is important, and what contracts the independents do operate under should be enforceable in the jurisdiction that they operate in, and afford them more than no protection at all, which is the situation at the moment, if you were to take them at face value.

    If Uber appeal it, then the outcome is very likely to form a strong precedent here. And before the appeal, it’s also very relevant.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • goforit,

    Hi Ben, I have thought about this situation for several days and if the current NZ laws are aplied this would be the situation. I have broken it down to three situations;

    (a) fully compliant driver with TSL/PSL
    (b) dodgy driver using a TSL/PSL that belongs to someone else.
    (c) fully non compliant driver as most Uber drivers now appear to be.

    As I have stated before the TSL/PSL is the legal idendity of the person or persons responsible for the service.

    (a) fully compliant driver with TSL/PSL

    The person shown on this document is responsible for all aspects of the service and if they employ a driver the TSL/PSL holder must pay all wages and holiday pay etc.

    (b) dodgy driver using a TSL/PSL that belongs to someone else

    As in above even though a driver may be using the TSL/PSL document in this way they legally can only be an employed driver (any other arrangement is illegal) and the name on the TSL/PSL document is still the responsible person for wages/holiday pay etc.

    (c) fully non compliant driver as most Uber drivers now appear to be.

    In this situation there is no responsible person in control as there is no documentation to that effect, note the certificate of regrisation does not prove the responsble person as in most cases a finanace compamy would be the legal owner of the vehicle used.
    In this situation this is where Uber could have shot itself in the foot and they must be the person held responsible for the service and could be made to pay wages etc to there drivers under this arrangement.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    IANAL, but I don't think that the details of the driver compliance make much difference in this case. It's about the actual nature of the work, much more than it is about the legal fictions that have been invented around it. That ruling Ben Austin referred to is absolute dynamite. It exposes what anyone reading the Uber contract immediately sees, and what anyone who has dealt with them for more than a few weeks already knows.

    In a nutshell their legal position is farcical. It requires seriously difficult mental conniptions to maintain the position that they are trying to maintain, because it is so contradictory at so many levels.

    I think this is why the only people I've seen churn faster than the drivers on average is the frontline staff. In the 11 months I've been dealing with Uber, their entire front office staff has changed 4 times. Each time there is literally no one I've ever seen before there.

    I think this is because it's incredibly stressful to tell lies all day, especially lies that could be actionable. The staff probably realize that they are literally being set up as Patsys, and who wants that for the SFA they get paid? Who would or could feel loyalty to an organization that tells you to pretend not to even be working for them, if pressed on any legal matter? An organization where the management hide out and never ever allow calls to escalate to them, lest they be held accountable?

    Uber drivers are essentially contractors being treated as employees with no rights. I doubt there is any driver in this country working under someone else's TSL and getting paid a wage. The number of people working under someone else's TSL as a front has dwindled massively in the last few months as CVIU actively chased down the 3 main people doing that, and the biggest one of all shut down immediately, taking out over 100 drivers. I'm not entirely sure, but I think the other two are being taken to court by NZTA.

    TSL exams are being booked out solidly, and I get a steady stream of people who have been caught driving without one who are being ordered off the road, and are then joining our organization.

    So there is a third category, those who are partially compliant. Quite a few drivers are getting a P endorsement, but haven't got the rest. Without a TSL they can't get a COF, nor can they use Logmate (the preferred online option) so if they're keeping a logbook it has to be a paper one.

    But definitely the completely non-compliant drivers are the majority. I understand that the police are treating them much more harshly now, since firstly Uber is paying the fines anyway, and secondly, they can't claim they weren't given fair warning, and ignorance of the law is no excuse anyway.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • goforit,

    But Uber going to get on top of every thing now with their talk of driverless flying cars, its a bit like flying pink elepants Lol. they haven't got driverless on the road cars right yet.

    Auckland • Since May 2016 • 314 posts Report Reply

  • Sacha,

    Gordon Campbell on the UK ruling.

    Ak • Since May 2008 • 19707 posts Report Reply

  • BenWilson, in reply to Sacha,

    It's a good analysis, as usual.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Singh Singh,

    Question, to start with Uber or Taxi the driver should have TSL , P endorsement plastic ID card, COF for the car. What is PSL ? Is it been referred again to TSL? If I missed any to be compliant, please advise. Cheers

    Wellington • Since Oct 2016 • 6 posts Report Reply

  • BenWilson,

    A PSL (Passenger Service License) is a kind of TSL (Transport Service License). Yes, you need it to be compliant. You need your own one, for Ubering, unless you are an employee of the person holding it, who must also own your car, and be paying you a wage. So, in practice, you need your own one. Otherwise you face a fine and and a stop working order. I've spoken to 3 people this has happened to in the last couple of months. The fine is around $500 for the first offence, but it could be $10,000 if you continue (as Uber is likely to advise you to do). One of the guys had his car impounded.

    You actually need the TSL to get the COF. Of course it's quite possible to use someone else's one for that purpose. You probably shouldn't, but it would seem that there is no checking of any kind going on on that.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

  • Rich of Observationz,

    Are you sure Ben, coz it sez here: "If your vehicle is required (my bold) to operate under a transport service licence (eg goods vehicles 6000kg or over, vehicle recovery vehicles or large passenger vehicles) then you must provide your transport service licence number to the inspector before the CoF will be granted."

    A Prius isn't required as a vehicle to operate under a TSL if you're just driving it for domestic (or company car) purposes. The TSL is required for the service?

    You need a COF for a big motor caravan or housebus also, but that doesn't need a TSL for personal use.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • BenWilson, in reply to Rich of Observationz,

    Not sure what you're asking if I'm sure about, Rich. A passenger service vehicle is required to operate under a PSL. So they require you to produce one. What I'm saying is that AFAIK there is no checking done on whether the TSL you show them belongs to someone who employs you. Just so long as you show the TSL card, and you pass the vehicle inspection otherwise, you are granted the COF.

    If you apply for a COF, you have to say what kind of commercial vehicle service it is for. Obviously you don't have to apply for a COF at all. But if you're caught driving passengers for hire or reward in a vehicle without one, you will very likely cop a fine and a stop-work order.

    Auckland • Since Nov 2006 • 10650 posts Report Reply

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