The Supreme Court’s Uber judgment (Rasier Operations BV v E Tū Inc [2025] NZSC 162) has delivered clarity of a sort. The Court dismissed Uber’s appeal, upholding the finding that drivers are employees when logged into the Uber app.  

The decision was unanimous on the outcome but divided on reasoning. The majority judgment of Winkelmann CJ , Williams and Miller JJ and the separate judgment by Glazebrook and Ellen France JJ disagreed on fundamental questions, including whether the Court of Appeal had erred in the role of subjective intention in the analysis.  

Yet remarkably, neither judgment engaged with the duty of loyalty. This is not a minor technical difficulty. It raises a direct doctrinal contradiction: How can employees owe their employer a duty of loyalty while at the same time taking jobs from competing platforms? 

The Court’s decision sits within a wider judicial trajectory. Over the past two decades, appellate courts have progressively expanded the reach of section 6 of the Employment Relations Act 2000 through increasingly purposive reasoning, often favouring a protective outcome where the statutory text leaves room for debate. The Uber decision is the latest and perhaps clearest expression of that trend. 

Though the Court’s reasoning may be confined to its facts, it demonstrates why Parliament must intervene to restore coherence to employment law in the digital economy. 

What the duty of loyalty requires 

The duty of loyalty (or fidelity) is a core incident of the employment relationship. Under settled New Zealand law, employees must not, during working time, take competing work in preference to their employer. The duty requires employees to act in their employer’s interests and not compete with the employer’s business during the period they are “at work.” 

This principle is not new or contested. It underpins the statutory duty of good faith in section 4 of the Employment Relations Act 2000. Courts have consistently enforced it. Without fidelity, the employment relationship – built on mutual obligations of trust – cannot function. An employee who systematically performs work for a competitor during working time breaches this fundamental obligation. 

The duty permits secondary employment. An employee may work two jobs, even in the same industry. But there is a crucial limitation: the employee cannot use the first employer’s working time to compete directly with that employer’s commercial interests. That is precisely what the duty forbids. 

What gig platforms actually do 

Cross-platform work in the rideshare economy is not merely “secondary employment”. It is real-time, algorithmic arbitrage across competing platforms. 

Drivers with multiple apps like Uber, DiDi, Bolt – compare offers simultaneously. When Uber presents a ride request, a multi-apping driver evaluates it against competing offers appearing on other screens at precisely the same moment. If Didi offers a better fare or Ola shows a shorter pickup distance, the driver accepts that ride instead. The driver’s income depends on this instantaneous cross-platform comparison. 

This is not like a nurse who works part-time at two different hospitals. It is continuously and systematically taking work for competing platforms during the period they purport to be available to Uber. Under orthodox employment law principles, this conduct is the paradigmatic example of what the duty of loyalty forbids. 

The Court’s sleight of hand 

The Supreme Court’s judgment runs to 190 paragraphs. Not once does it mention “duty of loyalty” or “duty of fidelity.” The omission is remarkable given that multi-apping is a core feature of the gig economy model the Court was examining.  

Instead, the Court treated multi-apping as merely one factual indicator in assessing whether drivers are “in business on their own account” (at [124]). It accepted that drivers have a contractual right to work for other platforms, describing this as “on its face a strong indicator” of independent contractor status. But it then downplayed this right, finding that “multi-apping is not an available option in reality” due to Uber’s monitoring and acceptance rate requirements (at [124]). 

The Court’s conclusion was that drivers are employees when logged into the app (at [142]–[143]). It reasoned that casual and seasonal workers may work intermittently for the same employer, and gaps in employment “should have [no] bearing on employment status when working” (at [122]).  

Why “time-slicing” creates conceptual impossibility 

The Court’s reasoning attempts to address multi-apping through temporal division: drivers are employees only “when logged in,” just as casual workers are employees only when working particular shifts. But this analogy is flawed. A casual nurse might work Monday at Hospital A and Tuesday at Hospital B. These are genuine “gaps” – distinct periods when the worker owes duties to different employers at different times. The duty of loyalty operates during each employment period but not across the temporal gap between them. 

Multi-apping involves no such separation. When a driver is logged into Uber and Didi simultaneously, comparing and choosing between competing offers, there is no temporal gap at all. The driver is purportedly Uber’s employee at the precise moment they are evaluating and accepting a competing offer. Under the Court’s logic, the driver owes Uber a duty of loyalty while accepting a job from a competing platform during the very period that duty is said to apply. Time-slicing does not resolve this contradiction; it exposes it. 

And the contradiction intensifies. If a driver is logged into two or three platforms at once, the Court’s logic requires them to be the simultaneous employee of two or three competing firms – owing each an exclusive duty of loyalty at the same time. That is not an employment relationship; it is a contradiction in terms. 

The minimum wage compounds the absurdity. On the Court’s own reasoning, each of those “employers” would also owe the driver the minimum wage for the same hour of work. Employment law does not – and cannot – recognise concurrent minimum-wage obligations across competing firms, yet that is the inevitable consequence of the Court’s classification. 

The Court’s flawed assessment of multi-apping 

The Court’s conclusion that multi-apping is impractical (at [124]) also mistakes how platforms work. A driver who wishes to accept a trip from DiDi or Bolt need only log out of the Uber app after accepting the rival job. Because Uber monitors refusals only while drivers remain logged in, logging out eliminates any sanction. The driver simply forgoes earning Uber ratings while unavailable. This is not a “penalty” for multi-apping – it is a feature of how the platforms operate. 

The Court conflated refusing an Uber ride while logged in (which triggers consequences) with being logged out before a ride is offered (which does not).  

More fundamentally, even if the four drivers involved in the proceedings before the Supreme Court rarely multi-apped, the doctrinal question persists: employment law must work generally, and not only for plaintiffs who chose not to engage in a defining economic behaviour of the industry. 

An employment relationship that prohibits (or is incompatible with) the behaviour that defines the industry cannot be coherent employment law. 

The practical consequences 

The Supreme Court’s approach creates perverse incentives that will harm workers, consumers, and competition. 

First, platforms now face legal pressure to prohibit multi-apping. If platforms are employers, they now face strong legal and economic pressure to prohibit multi-apping altogether. If drivers are employees, the platform must ensure compliance with the duty of loyalty. No employer can sustain an arrangement where employees receive minimum wage protections whilst remaining free to prioritise rival platforms’ offers. The simplest way is to forbid drivers from working for competitors while logged in. That would destroy one of the most flexibility-enhancing features of the gig economy: workers’ ability to optimise across competing platforms. 

Second, worker autonomy will shrink. Drivers value the ability to compare platforms in real time. It increases income and reduces dead time. Under the Court’s model, platforms-turned-employers must now police the very behaviour that most benefits workers. 

Third, competition among platforms will decline. Multi-apping by drivers lowers barriers to entry for new platforms. A driver can join a new app without abandoning existing ones, and riders try new platforms knowing that drivers can be summoned from multiple networks. If platforms are pushed toward exclusive employment models, that competitive dynamic is lost. Incumbents become entrenched and the market becomes less contestable – an outcome entirely at odds with the pro-competitive and innovation-enhancing features of gig work. 

Fourth, consumers will face higher costs. Competition among platforms keeps fares low and wait times short. Exclusive employment relationships reduce the competitive pressure that benefits riders. 

Parliament must step in 

The Supreme Court’s decision has created an employment relationship that cannot coexist with established employment law doctrine. By classifying drivers as employees while sidestepping the duty of loyalty, the Court has left platform businesses without coherent legal guidance. Only Parliament can resolve the contradiction the Court has created. 

Parliament’s proposed gateway test in the Employment Relations Amendment Bill provides a solution. The test offers a safe harbour for genuine independent contractors who, among other requirements, retain the ability to work for others including competitors. By explicitly preserving contractor status for workers who maintain multi-platform freedom, the gateway test will eliminate the duty of loyalty contradiction the Court has created. 

The New Zealand Initiative’s submission to the Select Committee argued that the gateway test must be broad enough to capture platform facilitation models. The Supreme Court’s decision proves this recommendation essential. Without legislative clarification, platform businesses face continued uncertainty about whether their arrangements violate employment law duties that their business models cannot satisfy. 

The Supreme Court’s judgment creates more problems than it solves. It establishes employee status for these four drivers while leaving a fundamental doctrinal contradiction unresolved. The next case involving different facts may force the Court to confront what it has sidestepped here. In the meantime, Parliament must act. The gateway test is no longer merely desirable policy reform – it is necessary to restore coherence to employment law in the digital economy. 

Roger Partridge is chair and a senior fellow at The New Zealand Initiative. He is a former Bell Gully litigation partner and chair. He is an honorary fellow and former executive director of the Legal Research Foundation and a former member of the New Zealand Law Society Council. Uber is one of the Initiative’s approximately 90 corporate members, but the views expressed in this column are those of the author. 

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