Nonetheless, the Government has committed to waiting until the drivers’ case works itself through the courts before reviewing the law.
A long-awaited public consultation on how employment law could provide more clarity around what constitutes being a “contractor” versus an “employee” was among the work cut from the Government’s agenda following Chris Hipkins becoming Prime Minister earlier in the year.
Talking up the value of the flexibility that comes with being a contracted Uber driver, Foley said, “The freedom to choose how and when to work is a cornerstone of the gig economy, and we believe this can come with better protections under the law.
“Governments around the world have embraced the changing nature of work and have begun passing fit-for-purpose laws that better protect gig workers and flexible working arrangements. There’s no reason New Zealand can’t join them.”
Specifically, she said in a blog post, there should be “minimum earnings standards for gig workers while working”.
FIRST Union, which took the drivers’ case to court with the E tū union, was sceptical.
Its president Robert Reid believed drawing clearer lines around what constitutes an “employee” would only make it easier for companies like Uber to ensure they do everything to ensure workers fall outside this definition.
Alternatively, Reid feared the creation of a new third category between an “employee” and “contractor” could leave workers with even fewer rights than they currently have.
His concerns were based on what he saw in Australia and the United Kingdom.
Speaking to the Herald in March, Dundas Street law firm associate Jack Rainbow saw the Government’s decision to defer work on the matter as a missed opportunity.
He said the Government could bolster the abilities of labour inspectors to ensure workers are correctly classified or ensure a legal determination on someone’s status can be applied to others in their sector.
Rainbow struggled to see how waiting for the case to go through the courts was going to affect government policy or lawmaking, as the decision would simply provide another piece of case law for judges to lean on in the future.
Buddle Findlay partner Sherridan Cook made the same point, saying uncertainty would remain following the Uber case’s conclusion.
Cook believed the Government could update the law to expand on the test currently used for determining whether someone is a contractor or employee.
He didn’t support creating a “halfway house” category.
His observation was that the Employment Court had recently tended to lean towards categorising people as employees rather than contractors.
Cook said the issue was a part of employment law where different courts tended to come to different conclusions.
Council of Trade Unions secretary Melissa Ansell-Bridges in March told the Herald the irony of the Government putting the matter on ice to focus on the “cost of living crisis” was that it would harm misclassified contractors struggling to meeting rising living costs.
She worried some contractors were effectively working for less than the minimum wage, all the while missing out on the flexibility and autonomy contracting should provide.
