Should Uber drivers be recognised as employees?

Uber does not directly employ its drivers because drivers have control over “whether, when, and for how long they perform work”, according to the Fair Work Ombudsman.

Ombudsman Sandra Parker said that inspectors examined a wide range of evidence, including drivers’ contracts, log on and log off records, interviews with drivers and Uber Australia, ABN documents, payment statements, banking records and pricing schedules.

“The weight of evidence from our investigation establishes that the relationship between Uber Australia and the drivers is not an employment relationship,” said Parker.

“For such a relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer.”

Parker added that the investigation found that Uber Australia drivers are not subject to any formal or operational obligation to perform work.

She said 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,” said Parker.

“As a consequence, the FWO will not take compliance action in relation to this matter.

“This investigation related solely to Uber Australia and was not an investigation of the gig economy more generally.”

Companies in the gig economy use a range of business models and the FWO will continue to assess allegations of non-compliance on a case-by-case basis.

Meanwhile, the Transport Workers’ Union has called on the Federal Government to enact urgent legislation to ensure workers in the gig economy are given rights and protections against exploitation, following the FWO’s announcement that it will not take action against Uber.

TWU National Secretary Michael Kaine said that the decision by the FWO is “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,” said Kaine.

“If this is what our laws are guiding regulators to do then these laws are hopelessly broken and the Government must act urgently to put in place rights that protect all workers.

Kaine said that 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.”