Are Australian Uber drivers employees or independent contractors?
Presently, Australian Uber drivers are engaged under a contract for services, where the driver (the contractor) agrees to provide a specified service to Uber. Under a contract for services, no employment relationship is created between the parties.
The advantage to this arrangement is that it provides drivers with the flexibility to work as and when they like. The advantage to the person or business receiving the services is that they can hire the contractor as and when needed and are not required to pay Award rates, leave entitlements, or other entitlements under the Fair Work Act.
In a landmark decision, a recent UK employment tribunal held that in the UK, Uber drivers are not self-employed contractors, they are, in fact, employees. As a result, Uber will be required to pay the national minimum wage as well as any holiday entitlements to Uber drivers. We are informed that Uber UK will be appealing this decision.
There has been no similar ruling in Australia and, at present, Uber drivers are still considered to be independent contractors. However, in the event that a test case is brought to the Federal Court of Australia, the status of Uber drivers in Australia may change.
Uploaded 7 December 2016
Demotion at Work May Constitute Unfair Dismissal
In the decision of
Philip Moyle v MSS Security Pty Ltd  FWCFB 372 (3 February 2016), the applicant claimed that he had been unfairly dismissed by his employer as his demotion reduced his wage and removed many of his responsibilities. Nevertheless, he continued to work for his employer at the reduced wage. The applicant made an application to the Fair Work Commission (“FWC”), claiming that he had been unfairly dismissed under section 386 of the Fair Work Act (“FWA”).
The FWC initially decided that a reduction in duties or remuneration is not sufficient to constitute a dismissal, and that a mandatory requirement is that the applicant must have ceased employment with the employer. This decision was rejected by the Full Bench of the FWC who held that a demotion DOES constitute a dismissal, UNLESS:
1. The demotion does not involve a significant reduction in the employee’s remuneration or duties; and
2. The employee remains employed with the employer.
The onus is on the employer to prove the above 2 requirements.
Section 386(2) of the FWA provides other exceptions to when a person has been “dismissed”.
Unfortunately the applicant in this case was ultimately unsuccessful as the Full Bench of the FWC also held that his variation in wage and duties was permissible under the terms of his contract of employment (“Contract”).
The Contract provided that the employee could be required to carry out a wide range of duties at different sites at a remuneration subject to conditions applying to the duties actually performed from time to time.
Article Uploaded 25 May 2016