App delivers and drivers: the uberization of these work and the resistance of workers

The historic year of 2020 has mobilized deep discussions about humanization and the demand for the maintenance of social rights in a scenario of worker exploitation, social inequalities and the enrichment of the elite who benefits from the contradictions of capital. It's against this backdrop that we're seeing app delivery workers paralisation.

Thus, if the context of technology diffusion and the creation of delivery applications allows the optimization of the user's time due to the endless daily activities due to work, studies, leisure, family, etc. On the other hand, this type of work between the owners of these applications and delivery people result in precarious work.

We cannot ignore the direct consequence of the unfair labor and social security reforms approved by the Brazilian Congress that affected those labor relations. This broadens the discussions on the State interference as a regulator of labor relations in opposition to the Welfare State, noting how its minimal intervention based on the Liberal State conceptions harms the worker.

Those who advocate alleging the precariousness of this professional category, which includes uber drivers, app deliverers such as Rappi, Ifood and Ubereats, support the phenomenon of uberization, a term that exactly refers to the Uber company that transformed the work model by reducing drastically the social and human conditions.

Those who are against the logic established by these applications, warn us that while the creators of the applications are getting richer, the deliverers don't even have any employment contracts. They assume the risks in carrying out the delivery without the companies being held responsible. Owners do not offer the minimum necessary such as cell phone, thermal bag and jackets. Also, in the event of an work accident they will be completely unprotected.

Unfortunately, the requirements of the labor legislation, such as: the proof that the employee is a natural person who does not provide occasional service to the employer, under the employer's dependence upon salary, has been relaxed by the judges. There is an understanding that this type of professionals has control over their working hours, as they can start and end their own journey whenever they decide.

However, those who advocate for the prevalence of full protection for workers, constantly suits these powerful companies to make they assume the risk of the labor activity of delivers and drivers. There are minority and courageous decisions by judges that made us think about how workers will be protected in this new technological scenario.

Thus, swimming against the tide, the judge from Campinas, a city in Sao Paulo, Bruno da Costa Rodrigues of the Regional Court of the 2nd Labor Court of the 15th Region, decided to recognize the employment relationship. In the decision, he rejected the hypothesis that delivery applications are exclusively a "facilitating" digital platform, but rather a "service taker", since, among other factors, they have full control over pricing, the registration of users, as well as the penalties imposed on drivers.

The decision highlights that "we cannot admit 'fantasies' and legal or normative 'allegory' that deliberately try to hide the exploitation of labor in economic activity". Referring to the way in which the Uber company adhesion contract was established as 'formal camouflage' that deviate from social protection.

This understanding could also be extended to food applications, as no one looks to platforms as just a facilitator, that is, people usually say: “I'll order ifood”, “I'll order ubereats”. This is what judge Francisco Ferreira Jorge Neto decided in the 1st Panel of the Regional Labor Court of the 2nd Region about the company rappi, understanding that there is personality, onerousness, non-contingency and subordination.

In the decision, it was established that the delivery service requires a person, since a personal and non-transferable registration is made; there is onerousness, as the delivery person provides a pecuniary service; the service is provided on a continuous and non-eventual basis and, finally, there is subordination, as the delivery person is linked to the delivery time imposed by the application and the delivers classification system impacts the division of orders between delivery people.

On the other hand, those who adopt the majority position, unfavorable to the worker/deliver, supporting the inexistence of an employment contract, say that digital platforms are just a form of dynamic and mutual interaction, so that deliverers can even connect with competing applications , which mischaracterizes the dependency. In addition, they work whenever and wherever they want, reiterating their eventual character; and receive for the service rendered, which denatures the wage obligation.

Companies qualify delivery workers and drivers as partners and not employees and emphasize the fact that professionals have total control over their routine, with no targets to be met, boss or supervisor to whom the professional responds.

This is the prevailing understanding in the Superior Court of Justice and the Superior Labor Court, which classifies these professionals as self-employed and says that there is no employment relationship. They suggest that applications only play the role of bringing drivers/deliverers and customers closer together, with no hierarchical relationship between the people involved.

Defenders of this type of work emphasize that this way of interaction comes from a sharing economy mentality, in which the provision of services in the most diverse areas is intermediated by technology companies, which is why workers become individual entrepreneurs.

This unfavorable understanding for the worker also prevailed in the public civil action filed by the Ministério Público do Trabalho em São Paulo - Labour Department, where judge Shirley Aparecida de Souza Lobo took a position that: “observing the unromantic employment contract, it is to be expected that there is a significant portion of the population with skills, capacities and the will to work in a way other than an employment contract and, if there are mechanisms capable of generating such work opportunities, they must be regulated in order to fulfill their social function”.

It cannot be ignored that labor relations are changing sharply, due to the increase in unemployment and the possibility of maintaining immediate income through these apps. On the other hand, the protection of these workers is fundamental.

Therefore, although the Court maintains a consolidated position regarding the non-adoption of the employment relationship in divorce to the interests of delivers and drivers app, we welcome the street protests as an expression of the organization of this class that mobilizes in favor of the maintenance of rights that have historically been conquered by workers.