• 1 According to Statistics South Africa Quarterly Labour Force Survey: Second Quarter 2018, the unempl (...)

1In his speech on the occasion of the 16th Nelson Mandela Annual Lecture in Johannesburg on Tuesday, 17 July 2018, former US President Barack Obama identified technology and the effect it is going to have on ‘giving everybody work that is meaningful’ as the biggest challenge that South Africa’s President Cyril Ramaphosa will face during his term in office. This observation may indeed be correct, as the South African labour market has been challenged by developments such as globalisation and technological innovation to the same extent as other labour markets across the globe. Add to that existing factors peculiar to the labour markets of developing countries like South Africa, such as the persistently high unemployment rate,1 and the high incidence of informal and precarious jobs, and the challenge how to give ‘everybody’ in South Africa work that is ‘meaningful’ becomes apparent. More importantly, the manner in which work is regulated and the extent to which the law protects workers against exploitation play a significant role in how ‘meaningful’ the work is. Former President Obama’s speech therefore also draws attention to the changing parameters of labour law and what the reach and focus of labour law should be in the light of the changing world of work.

• 2 (2018) 39 ILJ 903 (LC).
• 3 Uber SA v NUPSAW par. 2. For a comparative overview of the jurisprudential stance on whether Uber d (...)

3In Uber South Africa Technology Services (Pty) Ltd v NUPSAW & others,2 Van Niekerk J remarked that ‘[t]he nature of the engagement of drivers who use the Uber App (and indeed the many others who provide services in what has been described as the ‘gig economy’) poses a challenge to traditional conceptions of employment worldwide, and has tested the boundaries of the protection extended to working people by domestic labour legislation.’3

• 4 For the distinction between ‘partners’, ‘partner-drivers’ and ‘drivers’ in the Uber business model, (...)

4Uber drivers4 who had been ‘deactivated’ by cutting them off from the Uber platform and who referred an allegation of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (‘the CCMA’) were at the centre of the cases discussed below.

• 5 Uber South Africa Technological Services (Pty) Ltd and NUPSAW and SATAWU obo Morekure & others Case (...)
• 6 Par. 52.

5In the first case where Uber drivers sought a remedy for unfair dismissal from the CCMA,5 Uber South Africa Technological Services (Pty) Ltd (‘Uber SA’) claimed that the CCMA did not have jurisdiction over the matter, as the drivers were not employees of Uber BV (the holding company registered in the Netherlands) with whom they have a contract, let alone Uber SA. The commissioner used a ‘generous’ interpretation of section 213 of the Labour Relations Act 66 of 1995 (‘LRA’), and the Constitution and application of the ‘Code of Good Practice: Who is an employee?’ to rule that the Uber drivers were employees of Uber SA. She came to this conclusion after applying the ‘reality of the relationship’ test to the relationship between the Uber and the drivers. 6

• 7 Uber South Africa Technology Services (Pty) Ltd v NUPSAW & others (2018) 39 ILJ 903 (LC).
• 8 Par. 99.

6Uber SA then applied to the Labour Court for an order reviewing and setting aside the CCMA ruling. Van Niekerk J agreed that there was no employment relationship between the Uber drivers and Uber SA.7 However, he made no finding on whether the drivers are employees of Uber BV, or whether they are independent contractors of Uber BV, as it was not the issue before the court.8

• 9 NUPSAW obo Mostert v Uber South Africa Technology Services (Pty) Ltd & others Case n°WECT18234-18, (...)
• 10 Mostert v Uber par. 18.

7In a subsequent case,9 a driver seeking a remedy for unfair dismissal from the CCMA cited not only Uber SA as the alleged employer, but also Uber BV with whom all Uber partners enter into a contractual arrangement and by whom all drivers are controlled. The CCMA commissioner ruled that the CCMA does not have jurisdiction to hear the matter. The reason, this time, was that Uber BV, the only party with whom the driver alleged to have a contractual relationship, is situated in the Netherlands.10 A clause in the agreement that drivers enter into with Uber BV stipulates that disputes between drivers and Uber BV are to be settled by arbitration in the Netherlands according to Dutch law.

• 11 Par. 19.
• 12 See, for example, D du Toit, “Uber the border and far away’ Weekly Comment” IR Network published by (...)
• 13 Asociación Profesional Elite Taxi v Uber Systems Spain SL Court of Justice of the European Union 20 (...)

8The implication of the latest ruling is that the applicant and any other Uber driver will have to go to the Netherlands to have their dispute with Uber heard there, presumably instructing Dutch counsel. Is this the end of the road for Uber drivers seeking a remedy for ‘deactivation’ in South Africa? May be not? The clearest hint that all may not be over comes from Uber itself. As the respondents in Mostert v Uber it urged the commissioner to find that the driver was not an employee of Uber (SA or BV), despite the fact that the CCMA does not have jurisdiction. Their stated reason was to ‘cover the contingency that another forum may ultimately decide that the [LRA] does apply’.11 They therefore acknowledge that another forum may come to a different conclusion, in which case the matter would be referred back to the CCMA to be argued afresh on the merits. Their concern may not be unfounded, as labour lawyers have already identified various convincing arguments why workers in South Africa should not be required to approach a foreign forum to have their case heard.12 In addition, the European Court of Justice recently held that Uber is ‘a service in the field of transport’.13 Therefore, it can be argued that Uber is a passenger transport business and, as such, its business is not merely leasing its app (from Amsterdam) to drivers and riders, but transporting passengers in Cape Town (and elsewhere).

• 14 D du Toit et al Labour Relations Law, LexisNexis, 2015, 69 highlight that amendments to labour legi (...)
• 15 F Hendrickx «Regulating new ways of working: From the new “wow” to the new “how”’», ELLJ, 2018, 9 ( (...)

10South African labour law needs to make this adjustment. Rapid developments in technology and new forms of work may mean that the traditional stratagem of ‘extending’ the reach of labour law to new categories of workers by statutory amendments will not be effective, as labour law may constantly attempt to catch up to new forms of work for which it was not designed.14 As Hendrickx states, new forms of work are being created ‘which are much less capable of being recognised by more traditional modes or patterns of labour law’.15 To quote former President Obama’s speech again, the new world of work means that ‘we’re going to have to be more imaginative, and the fact of change is going to require us to do more fundamental reimagining of our social and political arrangements, to protect the economic security and the dignity that comes with a job.’

• 16 K Mokoena, “Are Uber Drivers Employees or Independent Contractors: A Comparative Analysis”, ILJ , 2 (...)

11The Fourth Industrial Revolution (‘4IR’), which includes the development of the platform economy, artificial intelligence and robotisation, has created the need for ‘creative solutions that allow for the development of technology for the benefit of consumers, while at the same time ensuring that workers’ rights are not limited.’16

• 17 Such as the work currently being done by the ‘Labour Law in the Fourth Industrial Revolution’ niche (...)

12It is crucial that South African researchers and social partners participate in the debate on 4IR and its impact on the nature, organisation and regulation of work. However, it is even more important that the research should focus specifically on how 4IR can affect a developing economy such as South Africa within a global setting and how the law can respond.17