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Speaker: Confessions of an Uber Driver II: How we doing?

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  • goforit,

    Hi Ben, when the organisation I represent ask the NZTA what are they going to do about the Uber problem the answer was (a) its to expensive for us to enforce the act and (b) the reveiw process will sort it all out. This was after the results of the review was released.
    I also have in my procesions several documents from the NZTA refusing exemption from the Act to allow private hire service to do on demand and non preagreed fares.
    So who is protecting who when it come to enforcing the Transport Act.

    Auckland • Since May 2016 • 314 posts Report Reply

  • goforit,

    The only enforcement of the act I have seen is from the Policer Officers who work within the CVIU and they have a lot of there plate to enforce over the whole of the transport industry.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    Neither of those answers is good enough.
    a) They seem to have plenty enough resources to issue thousands of notices and start a big crackdown which involves paying endless staff hours, and also puts lots of cases before the courts.
    b) The review process does not give people the right to make up the law until it's finished. Indeed the stepped up enforcement would seem to directly contradict this claim. Surely if it's OK to wait for the review process then the drivers themselves who are being done could use that in court as a defence. More to the point, why have a crackdown in the first place if they are essentially saying there is no wrongdoing going because it's under review? Also, in the meantime, is it now OK for all taxi drivers to just drop their compliance too? Then they might be able to compete with Uber on a level playing field.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • Sacha,

    Not a unique strategy we're seeing play out.

    Ak • Since May 2008 • 19667 posts Report Reply

  • goforit,

    those statements where made just after the reveiw results where released, that a good thought it be great to be non compliant and just do what I want when the mood takes me.

    Auckland • Since May 2016 • 314 posts Report Reply

  • Alfie,

    Uber has published its Driver Deactivation Policies for AU and NZ.

    Dunedin • Since May 2014 • 1377 posts Report Reply

  • goforit, in reply to Alfie,

    dosn't actually tell you anything that is useful except accused you of being a crim, druggie etc.

    Auckland • Since May 2016 • 314 posts Report Reply

  • izogi, in reply to BenWilson,

    I'm late into this conversation so sorry in advance if this has already been covered...

    and most certainly want to know from NZTA what their options for directly prosecuting Uber are. I want to know if there even ARE any options

    Especially after the recent RadioNZ interviews with Richard Menzies, is there some reason why Uber in NZ couldn't be directly liable for prosecution under 66(1)(d) of the Crimes Act?

    * P endorsements are required under Land Transport Driver Licensing Rule 26, which is an ordinary rule created under the Land Transport Act.
    * Section 40 of the Land Transport Act states that it's an offence to contravene an ordinary rule, so it definitely seems to be an offence... at the very least in the way that speeding is an offence even if Police use discretion between issuing a fine and prosecuting someone in court depending on severity.
    * Then, section 66(1)(d) of the Crimes Act makes it an offence to incite, counsel or procure any other person to commit an offence.

    Isn't this exactly what Richard Menzies and NZ"s Uber presence is doing? What's the benefit in going after squillions of drivers if it's feasible to go after the body that's procuring illegal services and profiting from them?

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • Alfie, in reply to goforit,

    doesn’t actually tell you anything that is useful...

    Apart from the fact that Uber has been forced into a minor... nay, a very minor backdown. Every little chink in the armour counts.

    And I agree with izogo that Uber is plainly inciting others to break NZ law which should deserve a visit from Mr Plod. At the very least.

    Dunedin • Since May 2014 • 1377 posts Report Reply

  • BenWilson, in reply to izogi,

    is there some reason why Uber in NZ couldn’t be directly liable for prosecution under 66(1)(d) of the Crimes Act?

    So far the only reason I've heard is that "It's expensive". Yes, it can be expensive to enforce the law. But it can be even more expensive to not enforce the law. The cost is socialized, big time. The passenger laws were made in response to many years of public experiences of what can go wrong when people in charge of a dangerous machine that their customers literally get inside are not well checked.

    Sure, Uber has safety features of its own. Good on them. It was a big reason to go with them myself. But they don't replace the law. They augment it. What was broken about their model before, other than it wasn't quite doing it for their massive levels of corporate greed? They were getting a pretty steady stream of drivers signing up. The quality was high, the customer base growing. It was a cool service delivering something unique. Now it's a very uncool service delivering something that is easily replicable. The only protection left to their operation against a local solution is that a local solution simply can't get away with breaking the law. So ironically, they are currently hiding beyond the borders of the country preventing others from getting to the market internally, by dominating market share, and poised to price war anything local.

    The question I don't know the answer to is who it is that is responsible to bring such a prosecution? Is it NZTA? Or does it go beyond them? They would appear to have no stomach for the fight. I don't know if it's bureaucratic cowardice, budget cuts, or a directive from above to give Uber this free pass. But I would like to know.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • goforit,

    its all points to what we all think, one of Uber's tactics is bribery of officals in high places.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to goforit,

    I don't think ideologues even need to be bribed. They just need to not be called on it by anyone.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • izogi,

    The question I don't know the answer to is who it is that is responsible to bring such a prosecution? Is it NZTA? Or does it go beyond them?

    I guess this is a question for someone who actually knows stuff, but in the current absence of that I see that the Land Transport Act (to which the P Endorsement rule traces back) defines "enforcement authority" in section 2. The first agency on the enforcement agency list is NZ Police, for enforcement "in any case".

    The NZTA (defined earlier as the "agency") can also be the enforcement agency for an "infringement offence", but from the definition of "infringement offence" (further down) I'm not clear on whether it includes stuff like P endorsements on licences, let alone incitement for other persons to commit offences under the Crimes Act. Note that the NZTA has a published prosecution policy.

    My uneducated guess, based on all that, is that the NZ Police are the most responsible for enforcing and prosecuting this type of thing, but I'll yield to anyone who knows better.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • BenWilson, in reply to izogi,

    Note that the NZTA has a published prosecution policy.

    Cheers. Conditions for prosecution:

    Key factors and non-compliant behaviours will include:
    •where there is strong evidence of non-compliance
    •where the loss or harm (or risk thereof) caused by the non-compliance is significant
    •where the non-compliance is intentional or calculated
    •where there is a history or pattern of non-compliance
    •where there are no proper alternatives to prosecution

    As concerns Uber itself, every box here is checked.
    *They openly admit non-compliance.
    *The risk of harms is very significant - drivers are not vetted for health, total criminal history (particularly overseas), and are not having any work-time restrictions upheld. No reliable account of how much time the drivers are driving is being kept at all. This is the most dangerous aspect by far.
    *The non-compliance is absolutely intentional. Particularly in light of them having actually reduced themselves from a much more compliant situation.
    *The pattern of behaviour like this is well established internationally. In fact, it's so far a 100% pattern. This is the ONLY way they have EVER behaved ANYWHERE.
    *There are certainly no alternatives to prosecution, because the NZTA's powers to revoke licenses does not affect a body that does not, and has never, operated under a transport license. But it is certainly running a transport operation. Nothing could be clearer, both from their actual practice, and even their legal contract that drivers are meant to have undertaken.

    Further to the above, which are the evidential requirements, we have:

    Prosecutions will be initiated only if:
    •the evidence that can be submitted as evidence in Court is sufficient to give a reasonable prospect of conviction; and
    •prosecution is required for the public interest.

    The second part here is the only bit that is not prima facie, so far as I can see. It is the only possible reason that the NZTA could have for not prosecuting.

    So here we are, debating the public interest in prosecuting. I do not know anything about the Crown Law Prosecution Guidelines, which must be satisfied, but I'm yet to hear of any case ever in this country where any organization so blatantly decided to incite the breaking of transport laws. It's being done on a staggering scale. There are literally thousands of drivers, doing literally millions of trips, and Uber's openly available online documentation clearly states their complete lack of compliance in the sign up process. The many, many people that the NZTA have now caught should bolster the evidence that their openly stated policy of non-compliance is indeed also what they are, in fact, doing. It would take no effort beyond half a day's work for an enforcement officer to sign up to drive for Uber, if the testimony of hundreds of people is not sufficient documentation of their processes.

    The case against the public interest in a prosecution?
    -That Uber provides a unique service? Not true at all. There are a number of competitors already operating in NZ.
    -That customers love it? Customers also love cannabis, but that doesn't make it legal to import it from Australia in huge quantities.
    -That it provides work to people? It also takes work away from people. People who have actually followed the rules. The work that it does provide is very poorly paid (now) and the lack of independent oversight puts the public safety at risk. Also, the ability to remove the right to work is completely arbitrary and held exclusively by Uber, and it is frequently used. Essentially no due process at all is followed that ensures this is an employment situation that is in any way up to NZ standards.
    -That it has increased the safety of the public due to unique features? In this, they have a point. However, there is a due process for removal of the other safety features that the compliance process is for. This due process was entered into, and the results are simply being ignored by Uber.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • goforit,

    dont forget the chain of responsibity, everyone in the chain is equally responsible in reagrd to the Transport Act, in other words even the passenger who think they are on a good thing can receive offence notices in rationship to the Act.

    Auckland • Since May 2016 • 314 posts Report Reply

  • Sacha, in reply to BenWilson,

    I don't know if it's bureaucratic cowardice, budget cuts, or a directive from above to give Uber this free pass. But I would like to know.

    I hope by now someone has lodged OIA requests to answer where the decision has been made to shelter law-breaking.

    Ak • Since May 2008 • 19667 posts Report Reply

  • RaggedJoe,

    Uber's behaviour here is appalling, hopefully NZTA will harden up and take them on soon. Good work Ben.

    FWIW in Melbourne last weekend the three Uber drivers we had were pretty happy with life. None were full time, all happy with income for hours, and busy. When quizzed they were similarly non committal about licensing and registrations. Felt pretty loose, like what we have ended up with here....

    City of Sales • Since Sep 2008 • 72 posts Report Reply

  • Rich of Observationz,

    Playing devils advocate, the only reasonable justifications NZTA might have could be:
    - Uber are outside the jurisdiction (legally very dubious, the locus of the offence is fully inside NZ)
    - it's considered impossible to enforce any judgement against Uber because they are physically outside the jurisdiction and the framework for international enforcement of regulatory matters is lacking
    - - incitement and conspiracy don't apply to regulatory offences - would need a lawyer to answer that one..

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • BenWilson, in reply to RaggedJoe,

    Yes the model is for it to be untenable for a full timer. Part timers will accept far worse conditions and pay. And the hours flexibility is a big thing. For me it certainly is. But some people are just happy with it anyway. People who don't really need the money. People who are otherwise unemployable, might not even have the legal right work at all. People who just like the work. These people definitely exist, and with a signup machine at work they can rapidly drown out any dissenters. The number of people who can't legally work is much bigger than all the Uber drivers.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • John Farrell,

    Dunedin • Since Nov 2006 • 484 posts Report Reply

  • Rich of Observationz,

    Forgive me if I already said this, but I think one reason for their flouting of regulation is this:

    - in NZ, Uber is perfectly sustainable on a legal basis with a few tweaks (for instance, given the data they have, it would be perfectly possible to quote a firm price at booking time, as they know pretty much the time the ride's going to take, incidents en-route excepted).

    - in many overseas cities, the taxi industry and local government have a co-dependent relationship, with taxi licenses changing hands for six-figure prices. The only way Uber can bust this is to drive conventional taxis out of business so that the taxi lobby doesn’t exist and local government’s revenue source is dead. They can then push for the adoption of a simpler regulatory system (ironically, one not unlike NZ).

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • goforit,

    The down side of that argument is, taxi licences in this country are only worth the cost of the license a one off payment of approx $450.00 to the NZTA exactly the same price as after all it only the PSL that all passenger transport service operate under.
    To be a member of an ATO to operates a taxi varies from a joining fee of $250.00 to any thing some ATO asks for, some ATOs really overvalue them selves but the value of the license is still only about $450.00.
    Uber could very easily operate under our regulations as they are easy to comply to but this stuffs up there continual bull about regulations being to hard and expensive to follow.

    Auckland • Since May 2016 • 314 posts Report Reply

  • BenWilson, in reply to Rich of Observationz,

    They already were pretty much compliant when i signed up in December. In April they inexplicably canned that. We can't be sure of the reason, because the model was working fine. I speculate that it was because it was working fine that they canned it. Their disruptive model was not really disrupting anything.

    I believe that this is about establishing dominance. It is their way of showing that the government is their bitch. It is working. It is hilarious to hear the Minister of Transport whine like he isn't the most powerful official in charge of our transport industry, that he's "disappointed" with Uber. FFS, do something about it then. Bring the power of the government to bear. It's not even a hard case, the level of piss taking is so extreme.

    Auckland • Since Nov 2006 • 10629 posts Report Reply

  • goforit, in reply to BenWilson,

    Ben they canned it because of the outcome of the review, they thought by the bribe they had given to a certain MP and his side kick was going to have the review favour tthere model. They are now trying to get the Uber customers to put pressure on due to the lowered fares and the flood of new drivers giving an instance service to get the outcome of the review changed to suit there model.

    Auckland • Since May 2016 • 314 posts Report Reply

  • izogi, in reply to Rich of Observationz,

    Uber are outside the jurisdiction

    To what extent is this true?

    A quick search of the Companies Register shows at least three companies registered in the past couple of years: Uber Cabs NZ Limited (1 April 2015), Uber Taxi Services NZ Ltd (1 April 2015) and Uber Taxis NZ Limited (20 November 2014).

    Are any or all of these companies affiliated with NZ's Uber presence? Their listed directors and shareholders all seem tied to Auckland, although perhaps that's just a proxy via a local accounting company. Or are they all just vapour?

    Furthermore, Richard Menzies who was blabbing on National Radio about how the law didn't matter, and refers to himself as the New Zealand Operations Lead, is in Auckland. Is he in any way personally liable?

    Wellington • Since Jan 2007 • 1139 posts Report Reply

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