For the last two years, the Fair Work Ombudsman’s office headed by Sandra Parker has been investigating the relationship between Uber and its drivers.

The result has caused surprise in several quarters, seeing that her final statement read as follows: “The weight of evidence from our investigation establishes that the relationship between Uber Australia and the drivers is not an employment relationship.”

Her reasons?

“Uber Australia drivers have control over whether, when, and for how long they perform work, on any given day or on any given week.

“Uber Australia does not require drivers to perform work at particular times and this was a key factor in our assessment that the commercial arrangement between the company and the drivers does not amount to an employment relationship.”

Parker emphasised that the FWO investigation focussed solely on Uber and did not include the gig economy “more generally”, though some commentators believe the decision will affect the whole sector. However, the ombudsman was adamant that her office would “continue to assess allegations of non-compliance on a case-by-case basis”.

COMMENTS

  1. University of Adelaide law professor Andrew Stewart said the FWO decision was very disappointing.
    “That is a matter that could and arguably should have been tested in court, not behind closed doors. As it is, Uber remains vulnerable to claims from drivers and/or unions. But it will rightly feel that the regulator has endorsed its business model.”
  2. RideShare Drivers United, an advocacy group operating in both the U.S and Australia, argued Uber was operating “in sharp contradiction to Australian workplace laws” by classifying drivers as contractors without allowing them to negotiate or have a say over pricing or other business decisions which “real subcontractors are able to make”, accusing them of sham contracting.
  3. Centre for Future Work
    Jim Stanford is the director of the Centre for Future Work, a new initiative housed within the Australia Institute, to conduct and publish progressive economic research on work, employment, and labour markets.
    Stanford said the FWO decision created an enormous loophole that would threaten labour standards in many other occupations.
    “Yes, in most cases workers can choose when to clock on with the app,’’ he said, but added that workers operate “absolutely under the thumb” of Uber in every other dimension of their work.
  4. Transport Workers Union national secretary Michael Kane said the FWO decision was devastating for workers in the gig economy.
    “Last year we had a landmark victory when a Foodora rider won an unfair dismissal case and we know the same control factors are in play for workers in Uber and right across the gig economy,’’ he said.
    “In jurisdictions around the world from London to New York and Los Angeles, Uber is being held to account and faced down despite its massive lobbying efforts and bullying. Yet in Australia today it has been given the green light to continue ripping riders and drivers off, sacking them without warning or the right to appeal and ignoring their pleas to be able to earn a decent living,”

WHAT UBER SAID

In refuting these opinions, an Uber spokeswoman said “driver-partners tell us they value the freedom of being their own boss”.

“They choose if, when and where they drive. In fact, more than 90 per cent of driver-partners in Australia tell us flexibility is the key attraction to using the Uber app,’’ she said. “We welcome the fact that the Ombudsman’s findings recognises this.”

THE FUTURE

The drivers’ campaign to be recognised as employees may not be over.

Associate Professor Sarah Kaine from the University of Technology Sydney said: “Do I think it’s definitive? No I don’t think so, because the Fair Work Ombudsman is not the only actor who gets to take action against Uber.”

“There are individual drivers, unions, worker bodies who also have an interest and could also take action.”

John Morrissey

T: +61 2 9331 0266
E: john.morrissey@jfmlaw.com.au

John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.

His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.

For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.

John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.
John Morrissey

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