the negotiator
A
Eric’s minimum wage mystery s you will have read elsewhere,
may make 10 journeys but during another 2021 has finally come good for some similar period they may make only four. of the members of the GMB trade So Dennot, you may ask, what has this union. We have been able to mount a got to do with the price of fish. Well, there number of successful campaigns against appears to be a dilemma highlighted by the the “fire-and-rehire” tactics of some bosses. Supreme Court decision. Namely, is the Our driver members have been afforded payment of the NMW inclusive of earnings protection through our recognition over and above the NMW hourly rate for the agreement with Uber and other companies, period worked or exclusive of such earnings. and in February 2021 the Supreme Court Let’s use the example of Eric, who works Dennot Nyack unanimously found in favour of my union, for a well-known South London operator. in a case we brought on behalf of our driver Eric contacted me to complain, amongst members against Uber. other things, that his employer had The union view That historic decision clarified the underpaid him for his time worked. To keep from our GMB employment position of professional private it simple I will illustrate it as follows. Eric representative hire drivers. However, it has led to some claimed that he had worked a 10-hour shift issues requiring further interpretation. One during which he had some tasty easy runs of these is whether the hourly earnings of in the first three hours in which he earned a driver which are over the hourly national £320.16. He was then logged onto their app minimum wage (NMW) can be aggregated with that paid by for the remaining seven hours and earned nowt, zero, zilch, the “employer”, so as to offset the sum paid by the latter. nada, as there had been no jobs coming in to the firm. The rates of pay under the NMW are set by government He contended that he should have been paid £8.91 for and are based on the recommendations of an independent each of those seven hours, or a total of £63.37, in addition body. They are currently £8.91 per hour for all workers over to the £320.16 earned during the happy period. While I 23 years of age. would agree that had he earned £63.37 during the seven What did the Supreme Court decide? They clearly found hours, I believed that the £320.16 also had to be paid, so I that drivers logged on to the Uber app, and by extension, was unsure on what basis Eric felt that he was entitled to those of other companies, were “workers”. The Court said the £63.37. that they thought: “…it clear that the employment tribunal If Eric is right, then it would appear to me that he would was entitled to find that the claimant drivers were workers be entitled to the NMW for every hour he was available who worked for Uber London under ‘worker’s contracts’ for work including including the hours when he also within the meaning of the statutory definition.Indeed, earned the £320.16. What would the “employer” do in that was ... the only conclusion which the tribunal could such a situation? It is likely that they would so arrange reasonably have reached.” the contract as to give them the option to refuse Eric the Working time was said by the Court to fall under opportunity to be “on call”, either through contractual or regulation 2(1) of the Working Time Regulations, as “any technical arrangements, or a mixture of both. period during which he (sic) is working, at his employer’s I am certain that the lawyers for the large app companies disposal and carrying out his activity or duties”. are already gaming the options open to their clients. I The court went on to state: “There is no difficulty in believe that my colleagues in the union are also assiduously principle in a finding that time when a driver is ‘on call’ studying the measures that can be taken to clarify such falls within this definition.” potential anomalies and substantiate the arrangements they have entered into with the companies. ‘On call’ in this context means when a driver has logged In this way maybe Eric’s mystery – and my dilemma – on to the app and is awaiting work from Uber or any other can be solved. similar operator. So, the Court concluded, logging onto the —Dennot Nyack Uber app meant that the driver was working for Uber from then until they logged off. n D ennot is a AGM trade union member and was a The Court further defined the NMW for private hire former representative of the GMB’s professional drivers as “unmeasured work”, one of the categories drivers. He is also an author and broadcaster with a described under the National Minimum Wage Regulations, strong knowledge of the private hire industry and an and not “time worked”. What this means is that where equality and diversity specialist. there is not a regular output produced in a work role, for example, by a worker producing widgets in a factory, but email: dennotnyack@yahoo.com rather a variable output for which payments are made mobile: +44 0740 625 276 according to that output. For example, for a period a driver
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