The South Australian Employment Tribunal (Tribunal) has held that an Uber driver was in an employment relationship with the Company that provided him with his vehicle.
In taking the common law approach to the ‘gig economy’ relationship, the Tribunal considered the following factors supported a finding that an employment relationship existed:
- The Company provided the vehicle;
- Uber payments were received by the Company, who then paid the driver;
- The Company exerted significant control over the days which the driver worked, as well as which particular vehicle the Uber driver used;
- The driver wore a type and standard of dress as requested by the Company; and
- The driver wore a Company badge and handed out Company business cards.
In contrast, the following factors weighed against there being an employment relationship:
- The driver provided between 50% and 100% of fuel costs;
- The driver cleaned the vehicle at his own expense;
- The driver did not receive any leave or superannuation entitlements; and
- The driver arranged for his own taxation, including GST.
The Tribunal held the factors supporting an employment relationship outweighed the factors against. As a result, the driver was able to access workers’ compensation under South Australian legislation for an injury sustained while handling passenger luggage.
Australia’s courts and tribunals are inclined, in today’s ever changing employment environment, to apply common sense to determine the true relationship between the parties. When weighing up the numerous factors, such as ownership of equipment, branding and taxation arrangements, the Federal Court of Australia takes an approach that “involves what may be described as a ‘smell test’ or level of intuition”.
Globally, businesses continue to adapt to the rapidly evolving gig economy with Singaporean taxi companies now allowing their drivers to accept Uber fares. Meanwhile, litigation continues in the UK over the nature of the relationship between Uber and its drivers. In Australia, the Fair Work Ombudsman has commenced an investigation into Uber over possible breaches of federal workplace laws.
This article was written by Brad Swebeck, Partner and David Ellis, Graduate-At-Law.
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