It was a groundbreaking statement last September. The Amsterdam court not only ruled that the relationship between Uber and its drivers ‘meets all the characteristics of an employment contract’, but also that all drivers should be covered by the taxi collective agreement. Whether they like it or not, and immediately. At least half a year has passed since then, but behind the wheel of the Toyota Priuses are still self-employed or, actually, false self-employed.
That has to change, says FNV. On Thursday, the union will again face Uber in court. This time to force the tech company to carry out the verdict. If Uber does not comply, the company would have to pay a penalty of 100,000 euros for every day it does not comply with the ruling, up to a maximum of 10 million euros. According to director Amrit Sewgobind, it must put an end to the ‘unwillingness’ of the tech company.
Not do-able
But Uber cannot carry out the verdict at all, says Uber itself. Director of Northern Europe Maurits Schönfeld has really tried. He had two conversations with FNV ‘of which one constructive and one less’. He had to come to the conclusion that the taxi collective labor agreement was not made for ‘our segment of taxi transport’. After all, it does not specify who has to pay for the vehicle costs. Nor is it clear when he should reward his drivers: if they are logged into the Uber app or actually accept a ride.
‘This collective labor agreement was written for the largest part of the taxi market and consists of target group transport (the transport of, for example, students and the elderly, red.)’, said Schoenfeld. ‘Since 2000, the market for consumer taxis has consisted entirely of independent taxi drivers.’ The latter is endorsed by the Royal Dutch Transport sector association. While drivers in professional transport are employed and therefore work according to the taxi collective agreement, the street taxis in the major cities have been the domain of the free boys for decades — often controlled by taxi companies such as TCA in Amsterdam.
There is, however, a difference with Uber: the taxi companies are often corporations founded by drivers themselves. As a result, they also still have a say in strategic decisions, such as discounts during off-peak hours. The meter price is also leading. It is different with Uber, says Sewgobind, where the American company decides ‘everything from A to Z’. “From the ride, the rating to the route. For example, the Uber driver has hardly the freedom to take his own road if he knows from experience that it is faster. And then there’s that algorithm, that Pandora’s box, that determines who gets which ride and who doesn’t.’
Toothless tiger
The latter argument was also why the Amsterdam court decided in September that there was an employer-employee relationship. Drivers would be “subject to the operation of the algorithm designed by Uber and unilaterally to be changed by it”. The fact that the billion-dollar company has so far been able to evade the ruling is the result of the lack of a sanction in the judgment, according to employment law teacher Johan Zwemmer of the University of Amsterdam. “It’s a toothless tiger.”
Yet he understands why there is no penalty: the statement was unprecedentedly ‘sharp’. Whether there is an employment contract is normally determined on a case-by-case basis, he explains, but the Amsterdam court adapted a sleeve by simply ordering Uber to apply the taxi collective agreement to all 4,000 drivers. “I think they wanted to send a signal with this, but give Uber some time to adjust the business model.”
According to Zwemmer, Uber and FNV could also have used that time to come up with a new package of employment conditions, so that the practical objections to the taxi collective agreement could be removed. Why didn’t that happen? ‘FNV slammed the door before we could come up with proposals,’ says Schönfeld. “Uber did everything possible to prolong the appeal process,” said Sewgobind. That is expected next year.