The Supreme Court of the United Kingdom recently affirmed an Employment Tribunal ruling that found Uber drivers to be ‘workers’ within the relevant legislation, affording them rights including a minimum wage and leave benefits.
While this may bear consequences for the Australian judicature, legislative distinctions and previous Australian rulings may limit the applicability of this decision.
The United Kingdom case – Uber BV & Ors v Aslam & Ors [2021] UKSC 5
The claimants were Uber drivers who sought to enforce employment rights. Fundamentally, within the framework, such rights are only available to ‘employees’ or ‘workers’, as opposed to ‘self-employed’ persons.
Following an Employment Tribunal ruling in favour of the drivers, the matter found its way to the UK Supreme Court through several unsuccessful appeals by Uber.
Uber asserted that it was merely a technology provider operating as a booking agent, with contracts arising between drivers and passengers directly. Uber largely relied on the wording of its standard contracts with drivers and passengers, alongside drivers’ ability to choose their own hours of work. The Court noted that it was inappropriate to look first to contracts between the parties, as employers are prohibited from contracting out of statutory protections.
In dismissing the appeal, the Court emphasised five factors from the Employment Tribunal’s finding that the drivers were ‘workers’:
- Uber sets trip fares and thus determines the drivers’ pay.
- Uber unilaterally sets the contract terms for driving services.
- While using the App, Uber deter drivers from reject trips, including through penalties for declining or cancelling rides.*
- Uber manages drivers’ performance, including through minimum passenger rating requirements.
- Uber restricts communications between drivers and passengers to prevent ongoing relationships from being established.
*Note that Uber has since changed its terms to remove penalties for declining rides. See e.g. Rajab Suliman v Rasier Pacific Pty Ltd [2019] FWC 4807.
The Australian position
In similar matters brought before the Fair Work Commission in Australia, the Commission has determined that no employment relationship existed. See, for example, Kaseris v Rasier Pacific V.O.F [2017] FWC 6610. In such cases, the Commission pointed to factors including the lack of an obligation on drivers to perform services for Uber and drivers’ ability to determine their own hours. In Kaseris, the Commission held that the finding of the Employment Tribunal in Aslam regarding the statutory definition of ‘workers’ was not relevant to the common law meaning of ‘employee’.
In 2019, following an investigation, the Fair Work Ombudsman determined that there was no employment relationship between Uber and its drivers. An employment relationship was defined as requiring, at a minimum, an obligation for an employee to perform work when demanded by the employer.
Most recently, in Amita Gupta v Portier Pacific Pty Ltd [2020] FWCFB, the Commission’s Full Bench found that an Uber Eats driver was not an employee. While this decision was appealed to the Federal Court of Australia, Uber settled the matter before a judgment was handed down, meaning there is no authoritative Court ruling on the issue in Australia.
For now, it seems that we must await a further matter being brought before the Federal Court: considering the findings in Kaseris, it appears unlikely that the Commission will apply the latest Aslam decision to determinations of employee standing.
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