The Senate in California has recently approved a bill stipulating that companies behind the so-called 'gig economy', like Uber, will have to treat their staff as employees. As a result, Uber drivers in California will be entitled to the minimum wage, paid holidays and sick leave. Please note that the bill only becomes law once the governor has signed it.
The question is whether this legislation will put an end to the worldwide gig economy saga regarding the status of workers (employee v self-employed)?
On 16 January 2019, the French-speaking Commercial Court of Brussels ruled that there is no line of authority between Uber and its drivers because the drivers choose where they work, when they work, how long they drive, which rides they take or don’t take, all the drivers have their own car (or at least lease or hire one) and they are not obliged to work exclusively for Uber. Please note that this case is currently pending before the Court of Appeal.
The Belgian courts will now need to consider whether Uber’s drivers in Belgium are genuinely self-employed or not under Belgian employment legislation. To do so, they will need to take into account the four ‘general’ criteria included within the Belgian legislation, namely:
- the intention of the parties involved
- the freedom to organise their own working time
- the freedom to organise their own work
- the possibility to exercise supervisory and hierarchical control over the self-employed worker
However, for taxi services, there are nine specific criteria. If five or more of these criteria are met, then the contractual relationship between the parties is presumed to be an employment contract:
- no financial or economic risk
- no responsibility and decision-making power regarding the company’s financial resources
- no decision-making power regarding the company’s purchasing policy
- no decision-making power regarding the company’s pricing policy
- no obligation to complete the work to be done
- guaranteed payment of a fixed fee
- no personnel of their own and no opportunity to have the work performed by a replacement
- no acting as an ‘entrepreneur’ towards other persons and the principal, or primarily or habitually working for one principal
- conducting transport services with a vehicle that is not the driver’s property or that has not been leased by the driver and/or with a vehicle that is put at his/her disposal and is financed by the principal.
To assess these specific criteria, a lot depends on what constitutes ‘the company’. Is this the company of the contractor (in this case, the driver), or the company of the principal (in this case, Uber)? The Belgian legislation specifies that ‘the company’ means the company that holds an official licence or permission for a taxi service, i.e. the driver.
Taking this definition into consideration, and although such matters should always be assessed on a case-by-case basis, it seems likely that only one or two of the specific criteria above will be met by Uber’s Belgian drivers, namely ‘no decision-making power regarding the company’s purchasing policy’ (as Uber drivers are not allowed to freely set their price). Also, it is relevant that in the context of the Belgian social security legislation, taxi drivers who hold a taxi licence and who are also the owner of the vehicle they drive (or have leased this vehicle) are not regarded as employees for social security purposes.
In anticipation of the jurisprudence and clear national laws, it is clear that the saga continues…
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