This article by Sam Kargbo examines the changing world of work, and calls for law and policymakers to respond to the pace of work-related changes, with particular reference to Gig Workers, and prepare for a future that may change the concepts of work and the workplace. He uses Uber, one of the largest firms in the Gig economy, to illustrate the challenges of Gig business to law and policy makers
The world of work is changing; it has changed, and will continue to change. Jobs have been lost; they are being lost, but many more are emerging by the day. Globalisation, the internet, digital and virtual technologies, artificial intelligence, automation, robotics, e-commerce, the digitalisation of the economy and industry and developments in information and communications technology, ICT, are shaping and reshaping the world of work by the day. Some skills are losing their relevance and essence, whilst some are readymades for the megatrends that are transforming the global labour market.
The Fluid World of Work
Etymologists and lexicographers are having a hard time trying to seal the borders of words like work, workplace, employer, employee, and independent contractor in the context of the fluid world of work. The meanings of those terms have been blurred by technological developments, in the world of work.
I grew up with the picture of a worker being one who is engaged in a long-term relationship with an employer, under well-stated terms and conditions that include wages or salaries and retirement or disengagement benefits. Temporary arrangements like project-based, task-based or part-time jobs did not define a worker for me. Terms employer and employee or worker, have gone beyond the scope and boundaries of the definitions in our statute books.
It is an understatement, to say that we are living through a fundamental transformation in the way we work and relate to the workplace. The emergence of automation and ‘thinking machines’ at the workplace, is naturally concerning to those who fear that they would not only replace human tasks and jobs, but may also add to the mounting unemployment problems. Their capacity to change the skills that employers are looking for, is high. These momentous changes, raise policy and legal challenges.
This discussion calls for law and policymakers to respond to the pace of work-related changes, and prepare for a future that may change the concepts of work and the workplace. The article is also a contribution to the necessary preparation by giving a sneak peek of the future world of work, with particular emphasis on how it might be shaped by science and technology.
One of the emerging trends in the world of work, is that of gig workers. These set of workers ply their trades not as employees of employers, but as floating independent contractors or freelancers. Gig workers can be online platform workers or on-call or on-demand, or temporary workers. The backbone and driving force of this set of floating workers, is e-commerce. An advantage that the gig market seems to have over the traditional labour market, is the freedom and power of the gig workers to choose their jobs in the sharing market.
Digitisation of the economy and related developments in information and communications technology, ICT, have created a boom for gig workers. With a smartphone, they can stockpile their clientele. The gig freedom gives the gig worker not only a high level of flexibility and autonomy, but avails him or her with task varieties and multitasking opportunities.
Continued advances in technology, will have the potential to increase gig work activity. Online technology will continue to create new forms of work, with the potential to expand the gig economy. The story of the emerging gig market, is not without its concerns. Regulating the relationships between the hirers and providers of gig services, has not turned out to be easy for law and policymakers. The need to integrate the gig labour market into the traditional labour legal regime, is mounting by the day. Municipal authorities need to provide them with the protections available to the conventional workers, and must also pin them to the applicable tax regime for the traditional workers. They must be made to pay some taxes, even if categorised as self-employment taxes. There is also the danger of profit-oriented companies being motivated by gig arrangements to trim down their workforce, and thereby compound the growing unemployment crisis.
Uber services will be used here to illustrate the challenges of the gig business, to law and policymakers. According to Wikipedia, Uber Technologies, Inc., commonly known as Uber, is an American technology company. Its services include ride-hailing, food delivery, package delivery, couriers and freight transportation. The company is based in San Francisco in the United States of America, and has operations in over 900 metropolitan areas worldwide. It is one of the largest firms in the gig economy.
On 19 February 2021, the Supreme Court of the United Kingdom, which is the final Court for appeals in civil and criminal cases from England, Wales, and Northern Ireland, decided that Uber drivers work for Uber under workers’ contracts and so qualify for minimum wage, paid annual leave and other workers’ rights. The case is Uber BV and Others v Aslam and Others (2021) UKSC 5. That decision should be of interest to African law and policymakers who have not responded to what – and have not answered the questions posed by what – Lord Leggatt, who delivered the sole judgement with whom the other Justices agreed, termed the “(n)ew ways of working through digital platforms”.
The parties in the case are Uber BV, a Dutch company and its two subsidiaries in the UK as Appellants, and Mr Yaseen Aslam and Mr James Farrar as Respondents. Aslam and Farrar work or used to work as private hire vehicle drivers, performing driving services booked through the Uber app. According to the Supreme Court, there were 30,000 Uber drivers operating in the London area and 40,000 in the UK as a whole, as at the time of the employment tribunal hearing in 2016.
The decision of the Supreme Court, was based on the inferences it made from the nature of the relationship of Uber with the drivers. In particular, the Supreme Court had a critical look at the Uber system, and the level of control that the Uber company has over the system and the driver. In the first place, the drivers do not own individual licences to accept private hire bookings, rather they utilise Uber’s licence as workers of Uber, even if it is only on a trip-by-trip basis.
The Court considered the substantial level of autonomy and independence of the drivers in particular reference to their freedom to choose when, how much, and where to work. The Court also found that though the contractual arrangements between drivers and Uber did subsist over an extended period of time, they did not bind drivers during periods when drivers were not working: rather they established the terms on which drivers would work for Uber on each occasion, when they chose to log to the Uber app. The decision focused on the relationship between Uber and a driver, at any time a driver picks up a passenger under the Uber app and not otherwise.
The judgement also highlighted the following controls that Uber has over the Uber system:
First and of major importance, the remuneration paid to drivers for the work they do is fixed by Uber, and the drivers have no say in it (other than by choosing when and how much to work). Uber also fixes the amount of its own “service fee, which it deducts from the fares paid to drivers.
Second, the contractual terms on which drivers perform their services are dictated by Uber. Not only are drivers required to accept Uber’s standard form of the written agreement, but the terms on which they transport passengers are also imposed by Uber, and drivers have no say in them.
Third, although drivers have the freedom to choose when and where (within the area covered by their PHV licence) to work, once a driver has logged onto the Uber app, a driver’s choice about whether to accept requests for rides is constrained by Uber.
Fourth, Uber exercises a significant degree of control, over the way in which drivers deliver their services. The fact that drivers provide their own car, means that they have more control than would most employees over the physical equipment used to perform their work.
A fifth significant factor is that, Uber restricts communication between passenger and driver to the minimum necessary to perform the particular trip, and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.
In the words of the Supreme Court: “Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app, is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable, and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors – in particular, the inability to offer a distinctive service or to set their own prices, and Uber’s control over all aspects of their interaction with passengers – mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice, the only way in which they can increase their earnings is by working longer hours, while constantly meeting Uber’s measures of performance”.
The decision of the Supreme Court of UK on Uber operations in UK should spur critical thinking amongst law and policymakers, on how to ensure that gig businesses like Uber and it’s like are regulated as employers of labour, and subject to tax regime and regulations that are applicable to private employers of labour.
There is the urgent need for law and policymakers to push the frontiers of labour and employment laws, beyond the narrow and anachronistic frontiers of collective bargaining/employee collective action. The emerging trends are giving employers of labour more and wider range of options, both in terms of tasks and skills, and are at the same time reducing the power of collective employee actions. With a proactive legal and policy response, the worker, in whatever form or status, may dangerously be left at the mercy of employers of labour.