Mullane & Lindsay SolicitorsAn Uber win in the Fair Work Commission - Mullane & Lindsay Solicitors

An Uber win in the Fair Work Commission

Posted on March 6th, 2018

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The Fair Work Commission (“FWC”) has recently handed down a decision, Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, finding that Uber drivers are independent contractors and not employees of Uber.

The applicant was an Uber driver and brought this case to the FWC seeking a remedy for unfair dismissal, after Uber terminated a Service Agreement that the parties had entered. For a finding of unfair dismissal to be made, it was necessary that the driver be an employee of Uber.

The FWC examined the relationship between the parties to determine whether the driver was an independent contractor or an employee. There is no single or decisive criteria to determine whether a contractual relationship is of employment or a contract for service. The court will consider a multitude of factors when approaching this question. 

The FWC held that many of the fundamental elements of employment did not exist. It was found that while Uber controls fares, it does not make any direct payment to its drivers. As such, the “work-wages bargain” was absent and this was considered by the FWC to be an essential characteristic of employment. The FWC also noted that drivers had control of when, where and to whom they provided transport and that they were not under any contractual obligation to perform work for Uber.

In handing down the decision, the Commissioner suggested that the traditional legal tests applied to determine whether someone is an employee or an independent contractor may be outdated in the light the evolving digital economy.

Katie ThompsonKatie Thompson is a Solicitor at Mullane & Lindsay Solicitors and practises in the Commercial dispute resolution and litigation team. If you require any assistance in this area please contact Katie Thompson to arrange a consultation or contact our Newcastle or Sydney office. 

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