Uber can breathe a big sigh of relief as the Fair Work Commission, in dismissing an unfair dismissal application, has ruled that its drivers are not employees.
Uber terminated a driver's service when he (we assume) failed to offer enough mints to keep an adequate user rating. The driver brought an unfair dismissal application riding the coattails of a recent UK decision that found Uber drivers to be employees.
Luckily for Uber and other similar shared economy businesses, with a resounding 'no', the FWC determined the driver was an independent contractor. In doing so, it had regard to the well-established criteria for determining if an individual is an employee or independent contractor, including:
Control: the driver had complete control over the way in which he wanted to provide the services. He could work when he chose, accept or reject fares at his discretion and operate and maintain his vehicle how he saw fit. Uber couldn't tell him when and where or how to work.
Equipment: the driver provided his own car, phone, and data plan. In addition, the driver managed his own insurance and registration.
Uniform: the driver didn't wear an Uber uniform and wasn't permitted to display the Uber name, logos or colours on his vehicle.
GST: the driver had to be registered for GST and manage his own tax and the income the driver received was not treated as PAYG by Uber.
Those factors were enough to comfortably satisfy the FWC the driver was an independent contractor and therefore unable to bring an unfair dismissal application.
However, the FWC noted that in the future, to keep up with changing technology and industries, the law may see new categories of 'workers'. In the meantime, traditional tests will apply. Uber is safe, for now.
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