What changes for Uber drivers after the court decision? – 09/15/2023 – Market

While the federal government discusses proposals with companies and associations to establish rules for the relationship between drivers and delivery people and applications, a court decision has increased urgency on the issue.

Uber was ordered to pay compensation of R$1 billion and to formally hire the drivers linked to the application, according to a decision by Labor Judge Maurício Pereira Simões, of the 4th Labor Court of São Paulo.

The judge considered that the company “failed” in relation to its obligation to comply with labor legislation.

“The evasion of minimum rights, the lack of social protection, being left on the sidelines, were actions taken by the defendant (Uber) on purpose, that is, she acted intentionally in the way she interacted with her drivers”, says the decision.

The process is authored by the Public Ministry of Labor, following a complaint from the Association of Autonomous Application Drivers (AMAA).

The judge determines that 90% of the amount established for collective moral damages goes to the Worker Support Fund (FAT) and 10% to “app-based driver associations that are registered with a notary and have regular social constitution, in equal shares and of as many as are found by the Public Ministry of Labor in Brazil”.

The perspective, however, is that there will be no changes for drivers at this time.

Uber said it will appeal the decision “and will not adopt any of the measures listed in the ruling before all applicable appeals are exhausted.”

The company argues that there is legal uncertainty and that the decision was opposite to what occurred in trials of similar actions proposed by the Public Ministry of Labor against other platforms.

“The decision represents an isolated understanding and contrary to the jurisprudence that has been established by the second instance of the São Paulo Regional Court itself in trials carried out since 2017, in addition to other Regional Courts and the Superior Labor Court”, says the company in a note sent to BBC News Brasil.

Uber also argues that there is no legislation in the country that regulates the work model intermediated by platforms.

In a recent decision, Minister Alexandre de Moraes, of the Federal Supreme Court (STF), suspended a case pending in the Labor Court that recognized a driver’s employment relationship with a platform.

In a preliminary analysis, in July, the minister considered that the court’s decision was at odds with the Supreme Court’s jurisprudence regarding the constitutional permission of alternative forms of employment relationships.

Is an Uber driver an employee or self-employed person?

The discussion about whether Uber drivers and other professionals who work through platforms — such as motorcycle couriers who provide delivery services — are employees or self-employed has been recurrent in courts and governments around the world.

The topic challenges existing legislation in several countries because it has not exactly fit into traditional work configurations – employee or self-employed.

Workers who work through applications have both characteristics of one category and another — they are in the so-called “gray zone”, explains economist Leonardo Rangel, a researcher at Ipea focusing on work and pensions, who analyzed how more than 15 countries frame this relationship between drivers and companies.

“You can observe characteristics of a subordination relationship — of employment — and characteristics of independent work”, says Rangel.

Among what would be characteristics of a classic form of employment relationship, the researcher highlights that these drivers are subordinated to a company algorithm that manages and evaluates the work.

At the same time, he points out that the most striking characteristic of independent work in this model is flexibility.

“Nobody forces the delivery person or the driver to be logged in at a certain time and in a certain place.”

“So you have, at the same time, a worker subordinate to the algorithm, whose work is managed and evaluated by it, but at the same time he can turn off the application and do something else whenever he wants.”

Although this dynamic is observed in other types of services provided through applications, drivers and delivery people are “the most visible face” of this model, points out Rangel.

In the United Kingdom, in a decision that became known worldwide, the Supreme Court ruled in 2021 that drivers were “workers”, a professional category in the United Kingdom that makes them entitled to minimum wage, vacation and retirement.

In California (USA), a plebiscite was held on the subject, in which voters decided that Uber and Lyft drivers should not be considered employees.

In Brazil, there is currently a working group made up of members of the Ministry of Labor and representatives of companies and workers in the sector that seeks to develop a proposal to regulate activities carried out through platforms.

Negotiations continue, according to drivers and motorcycle couriers associations and the Brazilian Mobility and Technology Association (Amobitec), which represents companies in the sector, informed the report.

The expectation is that a proposal will be reached to be sent to Congress, with rules for working hours, remuneration and social protection for workers.

After taking charge of the Ministry of Labor, Minister Luiz Marinho said he would give priority to “the regulation of labor relations mediated by applications and platforms, especially considering issues relating to health, safety and social protection”.

This will be done, according to him, “to ensure civilized standards of use of these new tools.”

At the beginning of the year, he said he intended to present a proposal to regulate app-based work in the first half of the year – which has not yet happened.

The topic was also mentioned in the government plan of today’s president Luiz Inácio Lula da Silva (PT).

The document mentioned that his administration will revoke what he called “regressive milestones” in labor legislation and said that the government intended to propose “based on broad debate and negotiation, new labor legislation providing extensive social protection for all forms of occupation, employment and employment relationships, with special attention to the self-employed, those who work on their own, domestic workers, teleworking and home office workers, mediated by applications and platforms”.

One of the problems pointed out by experts due to the absence of rules on social security contributions for workers in the sector is that they are not protected in cases of accidents or illnesses that require time away from work.

They also do not receive maternity pay and do not leave a death benefit for dependents.

A report from BBC News Brasil showed that only one in four (23%) self-employed delivery workers and drivers pay contributions to the INSS, according to a study by researchers from the Institute of Applied Economic Research (Ipea) and the Brazilian Institute of Geography and Statistics (IBGE). In other words, the other 77%, in addition to not having their working time counted toward retirement, are unprotected.

This text was originally published here.