Tripping Out - FWO investigation finds Uber drivers not employees

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

At present, Uber is facing a class action law suit from taxi and hire car drivers in Australia, as well as an enquiry into the working conditions of on-demand workers by the Victorian Government. Globally, drivers have protested seeking fairness in pay and better safety conditions.

Of all the issues faced by Uber, one of the most persistent has been the employment status of its drivers – are they Uber employees or independent contractors working for themselves?

The issue has been the subject of debate both internationally and here in Australia.

In the Fair Work Commission (FWC), several Uber drivers have brought unfair dismissal applications alleging that they were employees of Uber and were unfairly dismissed when their access to the driver app (through which they can accept driving jobs) was switched off.

The FWC has found that those Uber drivers were not employees able to access the unfair dismissal jurisdiction.

Despite these findings, commentary about the status of Uber drivers continued with ongoing calls for the office of the Fair Work Ombudsman (FWO) to intervene. This resulted in the FWO conducting an investigation into Uber’s arrangements with its drivers.

That investigation was recently concluded with the FWO finding that the relationship between Uber and drivers was not an employment relationship.

The FWO released a statement confirming the outcome of its investigation and advising that it had examined a wide range of evidence, including driver contracts, log on/off records, as well as interviews with drivers and Uber Australia, ABN documents, payment statements, banking records and pricing schedules.

Fair Work Ombudsman Sandra Parker said that key to any employment relationship is the obligation to perform work and that this obligation was absent in Uber’s arrangements with drivers. Ms Parker said drivers are not required to perform work at a particular time but rather, they have control over whether, when and for how long they work on any given day or week.

As a consequence of its findings, the FWO has announced that it will not take compliance action in relation to Uber’s arrangements with its drivers.

This finding will likely put to rest the calls for the FWO to intervene in Uber’s dealings with drivers but the FWO has noted that its findings relate specifically to Uber and not to the gig-economy more generally.

The FWO confirmed that it will continue to assess allegations of non-compliance with workplace laws in the gig-economy on a case-by-case basis.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 |

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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