Multi-million dollar ride-share company Uber is arguing its drivers aren't employees at the Supreme Court in Wellington, as the fight over driver's employment rights came to the highest court in the country.
It was Uber's second appeal against an Employment Court decision in 2022 to grant four Uber drivers workplace protection.
The Court is to decide whether its drivers should be considered employees.
A decision in favour of the drivers could lead to them claiming benefits such as leave entitlements, minimum wage and holiday pay.
Uber is arguing drivers were independent providers of transportation services to "riders" and "eaters" with whom they entered into contracts using the app provided by the Uber companies.
On Tuesday, counsel for Uber, Paul Wicks, said drivers were fully aware they were not signing up to a traditional employment relationship.
Uber app provides drivers the service of linking them to customers
Wicks told the court Uber did not dictate the hours that drivers worked, instead the app provided the drivers the service of linking them to the customers.
"Uber offers the opportunity for drivers to earn an income anytime, anywhere. The offer is on the table for any fit and proper person with a driver's license, a car and a smartphone. You can use the Uber platform if and when you want to, in the same way as riders do," Wicks said.
On Tuesday morning, the judiciary panel queried Uber's characterisation of payments made towards drivers - pointing out an illustration provided by the company appeared to show money flowing directly to the drivers from passengers.
Uber's lawyer Nathaniel Walker conceded the funds were held by the company and paid out following the deduction of a service fee.
He said the illustration actually depicted the effective contractual arrangement between riders, drivers and the company.
"If individual drivers were responsible for collecting the fare into their own bank account, then remitting a services fee to [Uber company] Rasier NZ, matters would get exceedingly complex, exceedingly quickly," Walker said.
"That how taxis work," interjected Justice Sir Joe Williams.
Uber protest outside the Supreme Court. Photo: RNZ / Samuel Rillstone
Counsel for Uber Paul Wicks argued a driver's freedom to decide where and when they worked was beyond typical employment relationships.
But Justice Forrest Miller said the company's control of ride prices did not support the characterisation of drivers as independently offering services facilitated by the company's app.
"It is about maximising Uber's revenue which is a proportion of the revenue gained from each rider on each ride.
"Not just sharing the platform but making sure it's used to the maximum extent because that is how Uber makes its money. Those provisions give Uber control," Justice Miller said.
Decision will set a precedent for fair treatment of gig economy workers
More than 50 drivers and supporters gathered outside the Supreme Court house on Monday as part of a protest organised by the unions defending the appeal.
An organiser for the Wellington Uber drivers network, John Ryall, said the outcome of this case would have implications for other workers across the gig economy, who were employed in the same way.
"We just think it's an insult to the workers involved. It's something that needs to be tackled and we're tackling it here," Ryall said.
Uber has previously said that this week's Supreme Court hearing was an important step in providing clarity on how gig work fits into New Zealand's modern workforce.
"Gig workers are an essential part of communities across Aotearoa and make a significant contribution to the economy."
The rideshare giant said their focus was on protecting the flexibility and independence that driver and delivery partners "consistently tell us they value most."
Mea'ole Keil was involved in the original case against Uber. He said there currently was an unfair employment relationship and classifying drivers as employees will have a huge impact on their lives.
"The impact for drivers is that they will be treated fairly and with dignity when they go to work. And that they are paid a living wage so they can look after their families," Keil said.
Former Uber driver and current Wellington City councillor Nureddin Abdurahman was hopeful the Supreme Court would uphold previous decisions granting drivers workplace protection.
"I think it's really important for us. This is the day we've been waiting for a very long time and to see such a support means a lot," Abdurahman said.
But those at the rally were concerned about what impact new government legislation could have even if the Supreme Court ruled in their favour.
Last month Workplace Relations and Safety Minister Brooke van Velden announced the introduction of the Employment Relations Amendment Bill to Parliament.
Under the amendments - which in part were intended to provide greater certainty for contracting parties - a worker is classified as a specified contractor when there is a written agreement specifying that they are contractor, and they are not restricted from working for others.
"Workers and businesses should have more certainty about the type of work being done from the moment they agree to a contracting arrangement," van Velden said at the time.
The appeal would continue on Wednesday and was expected to take two days.
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