A recent agreement between Uber and a union has sparked debate over how to calculate minimum earnings for drivers, with questions arising about whether time spent waiting for rides should be included as “work time.”
Helena Braga Marques, a lawyer and coordinator of the economic transport unit at PRA – Raposo, Sá Miranda & Associados, believes the memorandum of understanding between Uber and Sindel, which guarantees a minimum wage for delivery drivers and TVDE drivers, “represents an innovative step.” Though, she points out that uncertainties remain regarding the calculation of this value, particularly considering the unique characteristics of the TVDE profession.
Braga Marques emphasizes that the memorandum, as currently published, “does not clarify” what constitutes “time on service” for TVDE drivers.
The coordinator at PRA – Raposo, Sá Miranda & Associados highlights the ongoing debate: should a driver’s work time be calculated solely based on the time actively spent transporting passengers, or should it likewise include periods when they are available to work?
“This remains unclear,” Braga Marques stated, adding that “clarification is needed” regarding the definition of “time on service.”
What Constitutes Work Time?
The lawyer explains that “time of availability” may or may not be considered work time. For Uber drivers, the time they spend online and ready to accept trips “could be considered” work time.
Referring to the general rules outlined in the Labor Code, Braga Marques points to situations where time of availability is not counted as work time: “When availability time is not considered work time; if the worker is outside the workplace but remains available and reachable, that time is generally not considered work time,” she clarified.
She cited a ruling from the Supreme Court of Justice dated November 19, 2008, as an example. “if the worker remains at their workplace and is available to work, that period of time should be considered work time; if the worker remains available or accessible to work, but outside their workplace or the employer’s controlled location (for example, at their home), that period of time should be considered rest time,” the ruling states.
“The time a worker spends at home (or another location of their choice), even if they can be contacted, does not count as work time,” the court decision noted.
Returning to the general rules of the Labor Code, Helena Braga Marques identifies scenarios where availability time can be considered work time. “If the worker is physically present at the workplace and available to work,” she emphasized.
The lawyer also noted that the specific regulations governing TVDE drivers include rules for mobile workers, where availability time is not considered work time.
“For example: Ruling of the Supreme Court of Justice of July 17, 2018. ‘Availability time as defined in paragraph c) of Article 2 of Decree-Law No. 237/2007 of June 19, does not have the nature of work time for the purposes of paragraph 1 of Article 197 of the Labor Code,’” the ruling states.
Occupation Rate Stands at 50%
The definition of how work time is calculated is particularly relevant given the so-called occupation rate. This rate represents the amount of time a driver spends actively providing transportation services. According to Ivo Miguel Fernandes, president of APTAD – the Portuguese Association of Undocumented Automobile Carriers, in statements to JE, the average rate is 50%. So a TVDE driver spends, on average, 50% of their available time waiting for a ride request and the other 50% actively transporting passengers.
Considering the minimum wage agreed upon between Uber and Sindel is based on a 40-hour work week, this would mean a TVDE driver would necessitate to work 80 hours in a scenario where they are only paid for the time they are actively providing transportation. This calculation is particularly important as it impacts driver earnings and potential legal compliance.
This situation also presents another challenge. Legally, TVDE drivers are subject to hourly restrictions. The president of APTAD previously pointed out to JE that legislation stipulates that a TVDE driver cannot work more than 60 hours per week and cannot average more than 48 hours of work over the last four months. “In other words, they would only be paid for 24 hours (if the occupation rate remains at 50%),” Fernandes stated.
