Gadens Lawyers said a recent landmark decision in the UK Supreme Court against Uber found the company’s drivers were ‘workers’ for the purposes of the employment legislation, and that they were working not only when they were driving passengers, but also whenever they were logged into the Uber app and ready and willing to accept trips.
Gadens’ Jonathon Hadley said the UK employment system was different from Australia’s system which is regulated by the Fair Work Act and does not have a ‘worker’ classification, but legal challenges were coming and there could be severe implications.
He said there had also been a strong focus by the Fair Work Commission in relation to the identification of sham contracting arrangements, whereby an employment relationship is misrepresented as a contractual one.
“In such cases, the commission will look beyond the contract at the actual relationship between the parties by considering a number of similar criteria to the Uber case,’’ Hadley said.
“These indicia relevantly include the level of control over the way work is performed, whether the person is paid by job, whether the person supplies their own expensive equipment, and if the person is free to work for others at the same time.
“The gig economy has also been tested in recent cases, and although the Full Bench of the Fair Work Commission last year decided that UberEats drivers were not employees, the UK decision has once again spurred pushes for reform in Australia.
“Drivers and their associated union bodies have referenced the UK Supreme Court’s findings on Uber’s control in their arguments that drivers are employees, with the Transport Workers Union citing the case in a workplace tribunal hearing against Deliveroo on February 22, 2021.
“Further legal challenges to Australia’s employment legislation are likely to come, which could lead to legislative reform and have severe implications for companies such as Uber and Deliveroo.’’