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Uber neither employer nor platform, drivers not entrepreneurs: FWC

Friday, May 11, 2018, 3:33pm

Uber has repelled another attempt to establish that it is an employer, despite the FWC finding that a driver's relationship with the ride-sharing business was of "some magnitude".

In a case bearing many similarities to December's Kaseris decision by Deputy President Val Gostencnik (see Related Article), Commissioner Nick Wilson ruled that a self-represented driver who'd completed almost 4000 trips over 14 months was not an employee protected from unfair dismissal under s380 of the Fair Work Act.

Uber "deactivated" the driver on December 4 for a breach of "community standards" while refusing to disclose its nature, but the driver speculated that it was related to two customer complaints.

Represented by a solicitor on the understanding that Australian-registered associated entity Rasier Pacific Pty Ltd had no employees, Uber argued that the driver was an independent contractor party to a succession of services agreements.

Noting that the driver's principal argument was "what he perceives to be the unfairness and injustice associated with his circumstances", Commissioner Wilson said that despite Uber's contention that the case was "indistinguishable" from Kaseris, there was still a need to test its characterisation of a tenuous relationship limited to access to a Partner App and payment remittance.

"Within the overall context of Kaseris, it is doubtful there was an intention to suggest that this was such a tenuous relationship that there could never be a possibility of entertaining a claim of employment, leading subsequently to the automatic dismissal of the matter," said Commissioner Wilson.

"Such would be wholly counter-intuitive to the facts then before the Commission, as well as greatly under-representing the analysis conducted therein.

"While it may be valid to view the Commission and court precedents on the matter of classification of employment as involving a dichotomy only between employee and independent contractor, and one that because of its limited prism does not countenance alternatives, Kaseris was settled in accordance with established precedent on the dichotomy."

Detailing the 1454 hours of activity logged by the driver over 14 months, the commissioner emphasised that "this was not an insubstantial or tenuous relationship".

"Consideration of the work actually performed by [the driver] informs a finding that the character of the relationship between him and [Uber], however framed or desired by Rasier Pacific Pty Ltd, is not about the development or use of technology, but the provision of transportation services.

"Certainly Uber's technology may be an aide to the provision of those services, or may make the provision of those services better or more profitable, however the technology has no purpose without the provision of transportation services by people such as [the driver]."

Nothing "especially entrepreneurial"

The commissioner commented that the driver performed "relatively high volume, largely unskilled [work]. . . alone with customers".

"He did not bring anything especially entrepreneurial to the arrangement, merely the provision of things such as his time and his car to deliver a homogenous transportation service to the customer who might rate his performance at the end of the trip, but more often than not did not do so.

"In their volume it is more likely than not that any one trip was indistinguishable to either [the driver] or the customer from the other 7 or 10 trips he did each day.

"He sold rides to customers and was paid for them, along the way paying a fee for the services rendered by Rasier Pacific Pty Ltd and its associates.

"He may have been in business himself, but equally he may not.

"Consideration of his work and his work environment does not persuasively lead to a finding that he was."

Most elements of relationship point away from employee

Turning finally to the "multifactorial test" established by the full bench in 2011's French Accent ruling to determine whether the driver was an employee or an independent contractor, the commissioner observed that the driver's contract with Uber "records that it was the parties' intention that there be a direct legal relationship between him and the passengers to whom he provided services".

"It also provided that there would be only a business relationship between him and [Uber], and that '[n]either Rasier Pacific nor Uber shall be deemed to direct or control you generally or in your performance under this agreement'.

"The agreement explicitly states that [the driver] is not an employee of [Uber] or any of its affiliates, and that he indemnifies [Uber] if it is found he is.

"I am satisfied that, as with the applicant in Kaseris, [the driver] was able to choose when to log-in and log-off to/from the Partner App; that he had control over the hours he wanted to work; and that he was able to accept or refuse trip requests."

Together with that weak control, the commissioner determined that tax arrangements, not having to wear a uniform or display branding, equipment provision, being able to work for others and irregular remuneration pointed away from an employer-employee relationship.

"It is evident that the weight of those indicators leads to the finding that [the driver] was not engaged as an employee, but instead as an independent contractor.

"Consideration of all but two of the indicators, delegation or subcontracting and capacity to suspend or dismiss, resolve against [him].

"While elements of the contract itself appear more consistent with an employment relationship (for example, those dealing with termination), most do not.

"The nature of the work and its environment, in which unskilled work is performed, albeit alone, repetitively and over many engagements for the one principal also has some consistency, possibly greater consistency, with a finding of employment.

"Nonetheless. . . I am satisfied that the indicators I have found in favour of [the driver] are not in this case of sufficient weight to displace the findings made against his interests."

Janaka Namal Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579 (11 May 2018)

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lol apparently the fact that Uber states in the user agreement that we are ic's is all the Australian judges need to rule in their favor

the complete control over our operation while logged on matters not

uber must have spent a lot of money on their "lobbying" in Australia
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