Two-faced Mike to destroy drivers’ rights

NSW Parliamentary Inquiry into Workplace Arrangements in the P2P Transport Industry.
Whilst Queensland and Victoria are taking their time before legalising ‘ridesharing’ the NSW Government is firing on all cylinders to create a bogus ‘level playing field’. With its new Passenger Transport Act passed by parliament it’s ready to do an “Allan Fels” and turn the whole P2P sector on its head. New regulations are on the way, CTP insurance is under review and most recently it launched a parliamentary inquiry into workplace arrangements in the P2P transport industry. Stakeholders were invited to make submissions by 8 July and five pre-selected industry groups were allowed to address the committee at a public hearing in Parliament on 28 July.

by Peer Lindholdt

It’s hard to believe that NSW Premier Mike Baird has only been in the job for two years and equally what he has accomplished, for better or for worse, in that short space of time. With a treasury flush with cash from the Sydney real estate boom and the flogging off of public assets Mike is busy bulldozing the place for new trams, trains and toll roads to make it easier for us all to commute. Long overdue and, in some cases, commendable. What is not commendable is the messy and ill-conceived legalization of ‘ridesharing’ and reforms of the taxi industry.

As soon as the Government had gotten its new Passenger Transport Act legalising UberX through Parliament with bipartisan support from Labor and the Greens, it announced a parliamentary inquiry into the workplace arrangements in the point-to-point passenger transport sector. Now, it doesn’t take a genius to work out that when a neo-conservative liberal government decides to fiddle with industrial relations it’s not to improve the conditions for workers. However, from reading the terms and conditions of the inquiry, nobody could have foreseen how far this government plans to go to destroy taxi drivers’ rights and prevent other P2P drivers from having any. Not until the hearing in Parliament House on 28 July did that become clear.

Unique in Australia, Sydney bailee taxi drivers have industrial rights under a Claytons award called a contract determination (CD), which comes under the auspices of the NSW Industrial Relations Commission. It applies specifically to Sydney bailee taxi drivers and amongst other things contains provisions for holiday pay, sick pay and unfair dismissal. The ‘award’ comes under Chapter 6 (Public Vehicles and Carriers) of the NSW Industrial Relations Act, which also covers anything from couriers to owner-driver truckies. The representative union is the TWU (Transport Workers Union).

It should come as no surprise that the NSW Taxi Council absolutely hates the Taxi Driver CD and wants to get rid of it, or that Uber wants to get rid of Chapter 6 altogether. And so apparently does the nice Mr Baird. In fact, if the attitude of the chair of the inquiry Mr Alister Henskens is anything to judge by the nice Mr Baird would like to get rid of the NSW Industrial Relations Commission altogether and hand its function to the Commonwealth, just like his soul-mate, former Premier of Victoria Jeff Kennett did, twenty-something years ago. And here I was, believing that Mike Baird had a soft spot for cabbies.

Back in December 2013, when he was Industrial Relations Minister, he appeared very concerned that Sydney taxi operators were ripping off drivers’ leave entitlements. He told Fairfax Media “This is illegal and must be addressed” and that drivers were often reluctant to complain because they feared losing their job. “The NSW taxi industry is made up of a large number of workers who speak English as a second language,’’ he said. “This makes them particularly vulnerable as they are not always aware of their entitlements.”

Well, that hasn’t changed Mike!

Whether it is 7-eleven or Coles, Deliveroo or Dominos, tourism or hospitality, taxis or ride-share, it’s ripping off vulnerable workers that keeps the domestic economy ticking so the ‘1%’ can get richer, 50% stay comfortable and the leftovers, the working poor, work 60 to 80 hours a week to pay the rent and put food on the table. No inquiry or taskforce established by a Liberal government is going to change any of that for the better.

Talking about taskforces, on 19 May in the wake of the 7-eleven case and two weeks out from the Federal Election, the Turnbull Government announced it would establish a Migrant Workers Taskforce, headed by Professor Allan Fels, former competition and taxi reform guru, to provide oversight and advice to the Fair Work Ombudsman on targeting employers who exploit migrant workers. The same Allan Fels who only a month earlier accepted a directorship of Uber Technologies in San Francisco.

Should the Baird Government decide to get rid of the NSW Industrial Relations Commission and the applicable Act and hand the responsibility to the Australian Fair Work Commission, it will be to the Fels taskforce to which at least half the state’s P2P drivers will have to lodge their claims of exploitation.

However, regardless of whether P2P drivers’ work conditions come under state or federal jurisdiction their workplace rights depend on how they are classified. If they are classified as employees they have rights, if not they don’t. Classifying a 7-eleven worker is simple as they are paid an hourly rate of pay. P2P drivers are not. Their income depends on how much they turn over while they work. 99% of UberX drivers own their car and pay their own expenses while 80% of taxi drivers ‘rent’ or bail the car from an owner who covers most if not all expenses. Chalk and cheese.

Uber drivers deal with only one entity; Uber. NSW bailee taxi drivers will soon deal with five or more; the owner, the booking services, the taxi service company, ihail and Cabcharge, each of them exerting some level of control over the driver either directly or by delegation to his operator.

Uber wants its driver classified by regulators as independent contractors. The NSW Taxi Council is pushing for a similar classification for taxi drivers. It’s a dramatic shift from its 30-year love affair with the archaic ‘bailee/bailor’ system. In its submission to the inquiry it states:

The NSW Taxi Council therefore considers that the most appropriate course of action to address the above concerns [that the Sydney CD is an oddity] is for Chapter 6 of the IR Act to be amended to remove reference to bailment of taxi cabs and any reference to contracts of bailment, bailee drivers or bailors.

It is critical to the establishment of a competitively neutral regulatory framework for point-to-point transport providers that legislation should as far as possible treat all drivers in the same manner to avoid advantages being enjoyed by any particular method of service or another.

The government seems to agree. The inquiry’s terms of reference in part calls on it to report on the uneven application of workplace arrangements across the point-to-point transport sector and nationally, which suggests it too wants to streamline them.

Go for it guys, go for it! Take it all the way. Get rid of the bloody NSW IR Act and the Commission and let the Fair Work Commission be the adjudicator using the Federal Passenger Vehicle Transportation Award 2010 (Modern Awards), which covers all P2P drivers provided they can demonstrate they are employees or are treated as such. That may not be as difficult as some claim.

The NSW Taxi Council has spent past two years in the NSW Industrial Relations Commission fighting against an application by the TWU for a minimum wage and superannuation for bailee taxi drivers. However, hearings have continually been postponed while the Ministry of Transport was grappling with its new P2P Transport Act and most recently due to the current inquiry into P2P workplace arrangements, which may lead to the Commission losing its powers to deal with the case. No contract of bailment, no case!

In case the Taxi Council should win its argument to have the Contract Determination for taxi drivers removed and have them classified as independent contractors (ICs) it may find its members in a worse position than they were before. The new Point to Point Transport (Taxis and Hire Vehicles) Bill 2016 [NSW] has eliminated a large number of government regulations, most of them relating to service and safety standards, and has passed the responsibility for delivering them on to what we used to call ‘the taxi network’ but which is now a company which hold accreditation as both a taxi services company and a booking service. For now let’s call them P2P networks. To abide by the conditions of their accreditations they will be forced to introduce management strategies and practices generally used by employers, whether applied to taxi owner-drivers or their employees or sham contract ICs.

As a consequence P2P networks that take bookings and dispatch taxis, provide their decals and equipment, demand that affiliated drivers wear their branded uniforms and conform to their rating system will in my humble layman’s opinion, be treating both the owner and his drivers as employees within the Federal Passenger Vehicle Transportation Award or its state equivalent. Of course it will take a lengthy court battle to determine whether I’m right, but that would give the TWU a chance to assert itself and shine … and attract thousands of new members whether they’re owner-drivers or employee drivers.

I am of course counting on the nice Mr Baird’s government to make the archaic bailee/bailor system a thing of the past.

Go for it guys! Go for it! It’s time! •

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OZ Cabbie February 2017

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