Long Saad Woodbridge

Does Uber employ its drivers?

According to a recent decision of the Fair Work Commission the answer is “No”. This is a live issue in other countries where Uber operates. Decisions of the UK Employment Tribunal and a judge in New York have held, under their law, that Uber drivers were either ‘workers’ or ’employees”. Uber terminated the services of a driver, apparently, for failing to maintain an adequate user rating. The driver made an application for unfair dismissal and reinstatement and/or compensation. Uber successfully resisted the claim with the Commission agreeing the driver was not an employee but an independent contractor. In doing so it had regard to some of the well-established criteria for determining if an individual is an employee or independent contractor, including: Control: the driver had complete control over the way in which he wanted to provide the services. He could work when he chose, accept or reject fares at his discretion and operate and maintain his vehicle how he saw fit. Uber couldn’t tell him when and where or how to work. Equipment: the driver provided his own car, phone, and data plan and arranged his own insurance and registration. Uniform: the driver didn’t wear an Uber uniform and wasn’t permitted to display the Uber name, logos or colours on his vehicle. * Tax: the driver had to be registered for GST and manage his own tax and the income the driver received was not treated as PAYG by Uber. These factors were enough to comfortably satisfy the FWC the driver was an independent contractor and therefore unable to bring an unfair dismissal application. *There is now a regulatory requirement in NSW and ACT for Uber drivers, whenever online and driving with the Uber app, to display a removable sticker on the driver’s side of their vehicle’s rear windscreen



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