Technological advancements in artificial intelligence will impact heavily on the transportation industry and jobs.  Artificial intelligence in the transport industry is a double-edged sword.  While it will create new job opportunities, the technology will render others obsolete.  The question around the use of autonomous self-driving cars is no longer hypothetical.  All Tesla vehicles have the hardware needed for full self-driving capability. Volvo, which appears to be leading the pack, aims to have fully autonomous vehicles on the road by 2021. (Volvo is reportedly scaling back its ambitious self-driving car experiment)

Autonomous cars, could provide significant opportunities for freight and goods transport businesses.  On a safety and reliability level, with the human factor removed, the likelihood of road accidents could reduce by an estimated 80%-90%. (How Do Self-Driving Cars Actually Work? (Tesla, Volvo, Google); Self-driving cars could dramatically reduce the road toll)

While the possibilities for innovation are exciting, employers face a moral and legal dilemma, namely how best to transition the workforce, and how to manage such a transition.

Uber makes for an interesting case study in future readiness in circumstances where the status of Uber drivers are placed into question, because if Uber begins using AI technology to drive its vehicles, then  drivers who are recognised as employees may face retrenchment.

The company has faced litigation around the world on the simple question of whether Uber drivers are actually Uber employees.

The response varies in different countries. In the United Kingdom, the courts have held that Uber drivers are its employees.  (Uber loses appeal in UK employment rights case)  Conversely, in the United States, the courts have held that Uber drivers are independent contractors.  (Uber settles lawsuits to keep drivers as independent contractors in California and Massachusetts   In South Africa the Labour Court found that the contractual relationship is between the drivers (Uber SA) and Uber BV (based in the Netherlands).  It accepted the concession by the drivers that there was no contractual arrangement between them and Uber SA.  The Labour Court held that there was no employment relationship between the drivers and Uber SA but left open the question of whether the drivers were employees of Uber BV.  (Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers (NUPSAW) and Others (C449/17) [2018] ZALCCT 1 (12 January 2018))

At first glance, it appears that Uber’s stance that there is no employment relationship between them and the driver partners removes the drivers’ entitlement to certain employee rights and benefits, in turn reducing costs to Uber users.  The current relationship allows more flexibility on their part.  It is conceivably beneficial to their autonomous future that Uber is able to end their relationships with their current driver partners with minimal litigation and costs, without the need to pay severance to drivers pursuant to a retrenchment process should they venture toward driverless vehicle technology.

How can South African transport companies which are not in the same position as Uber transition into a driverless future?

Sections 189 and 189A of the Labour Relations Act govern the requirements if an employer is considering retrenchment.  Employers wishing to retrench due to structural and economic reasons must follow the provisions in that Act or be exposed to litigation due to unfair dismissals.  According to the Labour Relations Act, retrenchment should be the last option.

When transitioning into the future, employees across all sectors should diversify their skills to allow job flexibility and employers must understand the laws governing employment relations.  Moving into a more ‘tech driven’ workplace is inevitable.  The companies that transition the smoothest and adapt the quickest will be the ones which are able to thrive in the new environment.

This article was written by Lovanya Moodley, Associate and Nkululeko Tselane, Candidate Attorney, Norton Rose Fulbright South Africa Inc

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