Fair Work examines gig worker's agreement, Uber's alleged 'control'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who sought an unfair dismissal remedy against Uber Australia Pty Ltd.
The worker, who had been working as an Uber driver, claimed that Uber was his employer and that he had been unfairly dismissed when his account was permanently deactivated in December 2023.
The FWC had to determine whether the worker was, in fact, an employee of Uber or an independent contractor.
The outcome of the case hinged on the nature of the relationship between the worker and the company, as defined by the terms of their agreement and the practical reality of their working arrangement.
The parties and their agreements
The worker had started driving for Uber in February 2023 after applying online and agreeing to the terms of the Services Agreement.
This agreement was between three parties: Uber B.V., which held the intellectual property rights to the Uber Drive app; Rasier Pacific Pty Ltd, which provided the lead generation services to enable the worker to receive ride requests; and the worker himself, who provided the transport services to riders.
The alleged employer argued that the Services Agreement comprehensively contained the legal rights and obligations of each party and that it was unchanged from the agreements considered in previous FWC decisions related to Uber drivers.
Uber submitted that, under the terms of the Services Agreement, it had no right of control over the worker's performance, the worker owed no exclusivity to the employer, and the worker was responsible for providing all equipment and remitting taxes.
The worker, who spoke Mandarin and some English, had assistance from his son for most of the communication with Uber.
He confirmed that he had seen the Services Agreement and had to agree to it to start work, stating, "Because if you want the job, you want to make money, you have to do that. That's why they give to you."
The Uber driver’s employment status
The central question in this case was whether the worker was an employee of Uber or an independent contractor.
The FWC had to consider the rights and obligations set out in the Services Agreement in the context of all the elements of employment, particularly the three key factors: the requirement to perform work at particular times, exclusivity when work is being performed, and presentation to the public as serving in the business.
The employer argued that the worker was not an employee, as the Services Agreement did not require him to access the app at particular times or perform any work at all, even if he did access the app.
The employer said it was entirely indifferent about who the worker was and responded to the case without regard to his individual circumstances.
On the other hand, the worker, while acknowledging that he might not be an employee in the strict sense, argued that he had an employee-like relationship with Uber because he worked with them, and they took a commission and paid him.
He submitted that he was an employee because he was paid weekly and worked 50 hours per week and that Uber could and did terminate him, which he considered a key element of the employment relationship.
Employee or not?
After considering the rights and obligations set out in the Services Agreement and the three key elements of employment, the FWC found that the worker was not an employee of Uber.
It said that the Services Agreement did not require the worker to access the app at particular times or perform any work, and the employer was indifferent to the worker's individual circumstances.
The FWC noted that the unfairness of the Services Agreement and the worker's lack of bargaining power were not relevant to the determination of his employment status.
It said that the characterisation of the relationship was a matter for the courts or the FWC, not the parties themselves.
Thus, as the worker was found not to be an employee, the FWC said that his unfair dismissal application had no reasonable prospect of success.
Fair Work Legislation Amendment Act 2024
The FWC acknowledged the worker's grievances regarding the termination of his access to the app without an opportunity to respond to the allegations against him.
It noted that recent amendments to the Fair Work Act, set to take effect in August 2024, may provide some recourse for workers in similar situations through "unfair deactivation" and "unfair contract termination" provisions.
“The unfair dismissal laws under the Act are not the avenue through which [the worker] can ventilate his concerns about his treatment,” the FWC said.
“The legislature has now provided some avenue for recourse in the ‘unfair deactivation’ and ‘unfair contract termination’ amendments to the Act contained in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024,” it said,
“However, these are of no assistance to [the worker] as those provisions do not commence until 26 August 2024(or a different date by proclamation),” the FWC added.
Thus, for the worker in this case, those changes come too late, leaving him without the protections afforded to employees under current unfair dismissal laws. Consequently, the FWC dismissed his application against Uber.
