THE PATH THAT UBER COULD TAKE

Collaborative online platforms such as the one used by Uber, and which are relatively new in our country, are being analyzed as a model to be applied in other countries in work contexts. However, it is important not to distort them or impose criteria imported to Peru without taking into account its impact on both drivers and customers.

The Uber BV case against Aslam began a few years ago in the UK, creating a milestone in respect of companies that owned applications for taxis and their drivers. The plaintiffs, representing the taxi driver association, requested to be considered as employees of Uber and, consequently, be able to enjoy legal benefits, such as having a basic salary, vacations and others. On February 19 of this year, the Supreme Court of the United Kingdom, the highest court of appeals of that nation, ruled in their favor. [1]

Uber UK Ruling

Taxi applications carried greater safety promises, both for drivers and passengers, which allowed them to quickly establish in the market. But when incidents such as theft, mistreatment and even other major inconveniences began, a common behavior was observed in these companies: they did not take direct responsibility for the incidents, leaving us with the bittersweet feeling that they fell short of providing the safety that they advertised so much.

Regarding drivers, the situation was even more confusing. Subject to complicated legal terms and insistent “recommendations”, which they simply accepted due to the need to generate profits, they got involved in a series of increasingly demanding measures, which, when not complied with, resulted in a series of penalties. That led, naturally, to wonder when “recommendations” became an obligation and if this resulted in subordination to the app company.

In fact, one of the principles that helped strengthen the request was that of the primacy of reality, since, in the course of the trial, it was observed that such “recommendations” were distorted in the facts, causing a series of corrective measures that were getting worse, ending up in the “deactivation” of the driver’s account.

Additionally, Uber could reduce travel rates depending on the current market status; that is, directly affecting the amounts drivers would receive. Likewise, it is evident that, in view of some incidents, the company would decide to reimburse travel money to passengers as a means of compensation, assuming the business risk, which is a typical conduct of employers. In addition, Uber monitors driver performance with a scoring system; in other words, Uber evaluates driver performance.

The events in the United Kingdom raise the question: Is it possible that a similar situation exists in Peru? We do not think so; we are very far from the reality of the United Kingdom and we also believe that, in Peru, Uber has generated many benefits for both users and drivers, which could be eliminated if a similar ruling is established.

Uber in Peru

Uber began its activities in the country in February 2014. Today, 7 years later, we can see how it has revolutionized the taxi services market, and of course, taxi apps.

Taxi companies using applications are considered online commercial platform companies that charge commissions for linking a transport offer with customers through a GPS system that connects users with the nearest vehicle to take them promptly to their destination.

These platforms consist of the exchange of products, goods or services through the use of technology. Uber is just one platform of hundreds that exist; others well known include Amazon, Airbnb, Glovo, etc. There are 3 agents involved: i) service providers, ii) users of said services, iii) intermediaries, who link the two subjects mentioned above, collaborative platforms.

In recent years, a series of bills have been proposed seeking to regulate these platforms in Peru, the most appropriate being, in our opinion, the one contained in Draft Bill 6600/2020-CR. We describe below what it proposes:

1. It defines technological applications services, whose purpose is to connect users with the drivers of private motor vehicles for the provision of taxi services.
2. It establishes the creation of the national registry of companies that provide taxi services using mobile technology applications, under the Ministry of Transport and Communications. It includes registration with the latter, SUNARP, and the Ministry of Labor.
3. It orders to share the updated list of operators/drivers registered with the authorities mentioned above.
4. It establishes controlling measures, appointing SUTRAN as the entity in charge.
5. It establishes joint and several liability in administrative matters before the corresponding public authority, without prejudice to civil and criminal liabilities against each offender and the legal representative of the company.
6. It establishes that the work of the operators providing taxi services through an application is intermittent, under the scope of the private activity labor scheme.

We agree with all the provisions established, except for the last one. We consider that the concept of an intermittent contract is not ideal as it was designed for activities of a permanent nature, but intermittent due to its particular nature. For example, fishermen who interrupt the provision of their services during closed seasons.

We consider that it is a subject open to opinion and debate, that it is a new concept which needs to be analyzed, understood and developed, that it should not be adapted to an existing labor model, but rather determine, in its essence, the nature and purpose of its activities.

We believe it is important to note that the purpose of collaborative platforms is not the creation of an employment relationship, but rather to connect a product or service with the buyer or user to satisfy their current need through the use of technology. These platforms provide speed, certainty and competence.

Could we talk about a contribution in collaborative platforms? Do the rules or code of conduct adopted by these platforms, and resulting penalties, categorically involve an employment relationship?

We are certain that there is much to analyze, and that, while the events in the United Kingdom may set a precedent, first it is necessary to understand the situation of each country, the benefits or obstacles that excessive regulation of these platforms could generate, which in the case of Peru have brought safety, efficiency and immediacy in the taxi service.

Article by Mario Pinatte, senior partner at CPB Abogados.

Contact us at: [email protected]

[1] The judgment is available at: https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf