In a recently completed investigation conducted by the(“FWO”), relating to Uber Australia Pty Ltd (“Uber Australia”) and its engagement of drivers, the employment watchdog has decided that Uber drivers in Australia are not employees, and thus not entitled to a full range of benefits including sick pay, superannuation and annual leave because of the level of control over the work they perform.
Thewas launched to determine whether Uber's Australian operations could be considered as that of an “employer” and thus protected by Australian employment law.
According to the(“SMH”), Sandra Parker (Fair Work Ombudsman) said her agency's investigation found that Uber Australia did not require drivers to perform work at particular times, and that this was a key factor in its decision that the commercial arrangement between the company and the drivers did not amount to that of an employer and employee. Ms Parker said that “drivers had control over their work, including when and for how long they picked up customers on any given day.”
According to the FWO, Australian courts have previously determined that for an employment relationship to exist there must be, at minimum, an obligation for employees to perform work when it is demanded by the employer.
Thealso reveals the investigation examined a range of materials, including their contracts, log-on and log-off records, payment statements, banking records, pricing schedules and personal interviews.
also reports that for the last two years, the FWO had been looking into whether the ride-share giant had engaged in "sham contracting". The watchdog wanted to know whether Uber was misrepresenting its drivers as, essentially, people who are running their own business — to avoid paying employee benefits.
Speaking to the, Ms Parker said:
The decision means the FWO will not take further action to require Uber Australia to comply with Australian workplace laws under the Fair Work Act 2009 (Cth). The findings were specific to Uber Australia and did not have wider implications for the gig economy more generally.
, Employment Law expert from the University of Adelaide said the decision was "very disappointing", given the significant uncertainty that exists over the legality of Uber's arrangements. Professor Stewart said:
, Professor of Labour Law at the University of Sydney, said the decision was "uncontroversial". Ms Riley said a British court has held that Uber drivers were employees under the common law:
Afor Uber said the company welcomed the findings:
Anwho declined to be identified said that "… the decision is wrong because the drivers are not allowed to set their own rates … Any contractor should be able to set their own rates.”
The Transport Workers' Union (“TWU”) has called for law reform, TWU National Secretarysaid:
, Principal Lawyer at McDonald Murholme says while the FWO might be able to claim the ruling “technically” has no broader effect on the gig economy, in reality that’s not the case. Mr Jewell believes other gig economy businesses will now be emboldened with their business models, and with the FWO ruling this way it could be bad news for Uber drivers in Australia. Mr Jewell said:
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