In a recent unfair dismissal case before the Fair Work Commission, Commissioner Nick Wilson has followed the reasoning of Deputy President Val Gostencnik in the December 2017 Kaseris decision , finding that an Uber driver was an independent contractor rather than an employee.
After weighing the circumstances against the multifactorial indicia test established by the Full Bench in 2011 that was applied by DP Gosterncnik in the Kaseris case, Commissioner Wilson found that in spite of 1,454 hours of driving logged over 14 months, the indicators supported a finding that the driver was not engaged as an employee but as an independent contractor.
The Commissioner found that:
- the driver did not bring anything especially entrepreneurial to the arrangement; and
- the purpose of the provision of transportation services rather than the use of technology as a platform
However, he also found that:
- there was a business-to-business relationship between Uber and the driver;
- it was clearly the intention of the parties that there should be a direct legal relationship between the driver and passengers to whom he provided services;
- the driver was able to choose when to log in and out from the platform and was able to accept or refuse trip requests;
- the driver did not have to wear a uniform or display branding, used his own equipment and had tax arrangements that were not consistent with employee arrangements; and
- was able to work for others.
He found that the driver’s work and work environment did not persuasively lead to a finding that he was engaged as an employee.
Referring to the Kaseris decision, Commissioner Wilson noted that “While it may be valid to view the Commission and court precedents on the matter of classification of employment as involving a dichotomy only between employee and independent contract, and one that because of its limited prism does not countenance alternatives, Kaseris was settled in accordance with established precedent on the dichotomy.” The unfair dismissal application did not proceed on the grounds of the jurisdictional objection that the driver was not an employee and therefore could not make an unfair dismissal application.
Professor Joellen Riley, the Dean of the University of Sydney’s law school, said in January this year that a new classification of “dependent worker” was needed to fill the vacuum between employees and those defined as independent contractors. It was nonsense, she said, to portray those using shared technology platforms to obtain work as “entrepreneurial business people”, that the dichotomy between employees and contractors was creating incentives for industries to work outside the employment model and that statutory change was needed.