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Norman Waterhouse

The Fair Work Commission ‘delivers’ its judgment on an Uber driver’s dismissal

The recent decision of Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd [2019] FWC 5008 has begged the age-old question of whether a worker is an “independent contractor” or an “employee”.

In this case, Commissioner Hampton of the Fair Work Commission (the Commission) held that an Uber driver was an independent contractor and as such, was not covered by unfair dismissal laws pursuant to the Fair Work Act 2009 (Cth) (FW Act).

Facts

The Applicant (Ms Gupta) alleges that she was employed as a Delivery-Partner for the Respondent, who is made up of Portier Pacific Pty Ltd and Uber Portier BV (Uber & Others).

Ms Gupta was a party to a Services Agreement between her and Uber & Others from 19 September 2017 to 14 January 2019 (Services Agreement). On 15 January 2019, Ms Gupta’s Uber driver account was deactivated by Uber & Others due to her poor passenger rating and late attendance.

Ms Gupta contends that Uber & Others’ decision to suspend, and then permanently block her access to Uber & Others’ phone application, constituted dismissal.

Uber & Others raised two key jurisdictional issues in regards to Ms Gupta’s claim, being:

  • Ms Gupta was not an employee within the meaning of the FW Act; and
  • Ms Gupta was not dismissed within the meaning of the FW Act.

Uber & Others argued that the terms of the Service Agreement defined it as a “business relationship” and not one of employment. Uber & Others submitted that there was no obligation on one side to perform work demanded under a contract and for the other side to pay for such work. Uber & Others asserted Ms Gupta was a contractor who had to ability to receive requests for food delivery but was under no obligation to accept those requests.

Decisions

The Commission liberally applied the “multi-factor” tests established in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 and Jian Shen Cai trading as French Accent v Michael Anthony Do Razario [2011] FWAFB 8307. Further, the Commission relied on the previous decision of Kaseris v Rasier Pacific V.O.F [2017] FWC 6610, where Deputy President Gostencnik held that Uber drivers are independent contractors rather than employees.

In applying the indicia established in the above decisions, the Commission held that Applicant had significant control over the way in which she conducted the services she provided for Uber & Others. In particular, the Commission noted that Ms Gupta had expressly rejected over 550 delivery requests and cancelled 240 delivery requests after having initially accepted the request.

Additionally, the Commission noted that Ms Gupta had the ability to work for other competitors to Uber & Others. Further, the Services Agreement required Delivery Partners to register for GST as income was not subject to PAYG taxation. The Commission noted that Delivery Partners were also required to provide their own tools of trade, specifically their vehicles and phone and to maintain valid vehicle registration and insurance.

Further, the Commission held that Uber & Others’ “soft-control” over Ms Gupta’s requirement for vehicle maintenance and performance standards were insufficient considerations to outweigh its finding of a principal and contractor relationship.

The Commission held that “when the totality of this particular relationship is considered” the nature of the Services Agreement was expressly between a principal and a contractor, and Ms Gupta was not an employee of Uber & Others. However the Commission stated that “simply labelling a relationship in that manner alone does not necessarily equate to the relationship being just that and the parties cannot alter the true relationship with the adoption of a label.”

Take Home Messages

This case serves as a timely reminder for businesses that classifying an agreement as one of a principal and contractor nature, or an employment relationship, is an important consideration from a legal perspective.

If a dispute arises regarding the classification, the totality of the working arrangement, in particular the terms and conditions under which the work is performed, must be looked at to determine whether a worker is an employee or an independent contractor. Whether they are an independent contractor or an employee will always rely on the facts of the arrangement.

For more specific information on the information contained in this article, please contact Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Thomas Tagirara on +61 8 8210 1337 or ttagirara@normans.com.au.


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