23 May Uber not an employer
The Fair Work Commission has found that Uber is not an employer and thus not subject to unfair dismissal laws. With the rise of the gig economy, employment benefits such as minimum wages and conditions, entitlement to annual, sick and long service leave, superannuation, and protection from unfair dismissal and unlawful termination could all be threatened.
The FWC determined there were no relevant indicators of an employment relationship:
- Control: driver had complete control over service provision through the app, including work hours, accepting or refusing trip requests, operation and maintenance of his vehicle;
- Equipment: driver was required to supply his own vehicle, registration, insurance, smart phone, and wireless data plan;
- Uniform: driver was not permitted to display Uber name, logo or colours on his vehicle and was not required to wear any uniform or other clothing connected to the Uber brand;
- Liability to GST and other taxes: driver was required to register for GST and remit all tax liabilities to the ATO, while the income received by the driver was not treated as being subject to PAYG tax;
- Description of the relationship: both Uber and the driver agreed the relationship was solely one of independent contractor;
- Other: the driver was responsible for their own tax affairs and did not accrue annual, sick or long service leave, Uber also did not make superannuation contributions on behalf of drivers.
These tests used by the FWC are similar to those used by the ATO to determine whether a person is an employee or contractor. It is likely that under both employment law and taxation law, an Uber driver will be considered an independent contractor. This decision has ramifications in other areas of the gig economy such as food delivery and tasks-on-demand. This could be a worry for future generations, as the Deputy President of the FWC has said:
“Perhaps the law of employment will evolve to catch pace with the evolving nature of the digital economy. Perhaps the legislature will develop laws to refine traditional notions of employment or broaden protection to participants in the digital economy. But until then, the traditional available tests of employment will continue to be applied”.
What do I do now?
Until the law changes, protections will not be afforded to people who are classified as contractors. Talk to us if you would like to know whether you’re classified as an employee or contractor.