'Deep in the pockets of Uber' - Government accused of copy-pasting company's position

The government is being accused of copy and pasting Uber's position on contractors - and adopting it as official policy.

But the Minister for Workplace Relations and Safety rejects any suggestion of preferential treatment, and says she has taken on a broad range of advice in developing the changes, which the government says will clarify the difference between an employee and a contractor.

Documents seen by RNZ show a proposal taken by Uber to a meeting with Minister Brooke van Velden in May, with "proposed amendments" to the Employment Relations Act.

Those proposed amendments are similar to the new criteria that will be used to define a contractor, announced by the Minister in September.

Green Party workplace relations and safety spokesperson Teanau Tuiono said the government was "rolling out the red carpet for big business".

"What these documents show is that the government is deep in the pockets of big business, deep in the pockets of Uber.

"What they've done essentially is just cut and pasted what they've wanted. They're copying someone else's homework, a company - Uber in this case, and just dropping it in there."

He said it was "incredibly problematic".

Tuiono said the proposals will create another barrier for people to get their "Section 6 rights," like "holiday pay, sick leave, all of those things that you get if you get recognised as an employee".

"They should be able to access those easily. This is just putting another barrier in the road."

But the minister rejected any notion that she copy and pasted policy from Uber.

"There's no preferential treatment here at all," she said, "a range of business groups and a range of unions have been consulted, and the policy that we've landed on is an amalgamation of all of those ideas.

"The proposal that we worked on has gone through quite an extensive analysis where Uber worked with Business New Zealand on a policy."

She said the Ministry of Business, Innovation and Employment analysed that policy alongside a "range of other options," confirming that seven unions were involved - as well as other business groups - in providing feedback.

"Where we've landed is actually much better than what was ever proposed by Business New Zealand or Uber, and it took into account what the unions wanted as well, which was subcontracting."

She said that was not part of the original proposal by Uber and claimed it was "very different" because it was not a "retrospective law or rule change which was in that original proposal".

The government decided against backdating the law change, but Council of Trade Unions President Richard Wagstaff said that did not cut it.

"You only have to read what they've put forward here and what the minister announced and they're virtually the same. Picking out the smallest changes really doesn't excuse the overall impression here that they've followed Uber's instructions."

Wagstaff said these documents confirmed for him where they thought the minister got her instructions from.

"We've tried to meet with her on many occasions around this issue," he said.

"Uber failed in the court, and they failed in the Court of Appeal. And so they've gone to the minister and prescribed what should be the legislative change and the policy change."

He said it looked as though the minister had "followed that word for word".

"It looks pretty clear that she does what Uber wants first and foremost, and that's demonstrated, I think, by the paragraph that has been put down here from Uber," saying it was just "basically the same" as what she had proposed.

"This government's reinforced its reputation, and certainly the ACT Party has, as a soft touch for corporate lobbyists who represent multinational companies."

Van Velden said she was creating certainty for businesses and workers, but Wagstaff said the unions did not think there was any need to amend the Act at all.

"We don't think there's any confusion about it."

Uber's proposal

Uber's proposed amendments to the Employment Relations Act included adding two new clauses (e and f) in Section 6 of the Act - 'Meaning of employee':

(e) excludes a person, in circumstances where a business or undertaking:

• (i) has a written agreement with the person which states that the person is an independent contractor and not an employee;
• (ii) does not restrict the person from performing services or work for other businesses or undertakings, including competitors, or engaging in any other lawful occupation or work, except during the time from which the person commences a specified task or engagement offered by the business or undertaking until that task or engagement is completed;
• (iii) does not require, as a condition of maintaining the engagement with the business or undertaking, the person to be available to perform tasks or other services on specific dates, or at specific times of day, or for a minimum number of hours;
• (iv) does not terminate the contract of the person for not accepting a specific task or engagement offered by the business or undertaking.

(f) The exclusion specified in section 6(e) applies from the date that a person enters into an agreement with a business or undertaking as described in section 6(e) including any agreement entered into prior to the date of the commencement of this provision.

In September, the Minister announced changes to the Act, proposing criteria for a new gateway test businesses can use to respond to any claims that a person is an employee, not a contractor. The criteria for that test includes:

• a written agreement with the worker, specifying they are an independent contractor, and
• the business does not restrict the worker from working for another business (including competitors), and
• the business does not require the worker to be available to work on specific times of day or days, or for a minimum number of hours
• OR the worker can sub-contract the work, and the business does not terminate the contract if the worker does not accept an additional task or engagement.

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