03 March 2021
In a UK landmark case, the Supreme Court upheld that two Uber drivers could be classed as employees of Uber rather than self-employed independent contractors, giving them the right to be paid the statutory entitlements including the minimum national wage, annual leave and benefits to other protections.
In 2016, the UK Employment Tribunal found that two Uber drivers were employees and are part of Uber’s business, rather than self-employed independent contractors. Uber lost each appeal against the UK’s lower courts, and as a final resort, made its last appeal to the Supreme Court.
On 19 February 2021, the UK Supreme Court upheld the tribunal’s decision that the drivers ought to be deemed “employees” considering that the drivers were in a “position of subordination and dependency to Uber” which meant that Uber had a substantial degree of control over the drivers and that the drivers had minimal or no ability to increase their earnings other than by working longer hours. These two factors were found to be indicative of an employment relationship.
The UK Supreme Court ultimately found that the legal relationship between the driver and Uber had to be inferred from the parties’ conduct. The judgment collectively considered five aspects of the relationship which ultimately found that the drivers were employees:
What this means for Australia
In contrast to the UK Uber decision, in 2017 and 2019, the Fair Work Commission (FWC) in considering unfair dismissal applications found that no employment relationship existed between the drivers and Uber in Australia.
The FWC, in dismissing the applications, considered a number of relationship indicias for distinguishing between independent contractors and employees and ultimately found that even though some of the factors did show an extent of control by Uber, they were not overwhelmingly strong factors.
The factors considered by the FWC in those decisions weighed against a finding of an employment relationship because the facts in each case showed an absence of control on the part of Uber. For example, drivers supplied their own equipment, they were not permitted to represent Uber in any way, they were registered for GST and had the freedom to log on and log off the Uber app anytime. These factors highlighted the limited control Uber had over its drivers, leading to a finding that there was no employment relationship and that the drivers were genuine contractors.
As with the approach in the UK, the Australian courts have reaffirmed many times that the clear and unambiguous terms of the written agreement are not determinative of the relationship, but rather, the courts will consider the totality of the relationship between the parties when determining the substance and the reality of the relationship.
This approach was recently demonstrated in the case of Jamsek v ZG Operations Australia Pty Ltd  FCAFC 119 (James v ZG Operations Australia), which we discussed here, where the Federal Court of Australia found that two truck drivers working nearly 40 years as independent contractors for the same business were employees when the totality of their relationship with the business was examined. This matter is now on appeal.
The UK Uber decision and the appeal in James v ZG Operations Australia are likely to prompt further attempts by Uber drivers, among other gig-economy workers, to bring claims and test the current laws.
While the parties to a working commercial relationship are entitled to define the nature of their relationship on commencement, each case will turn on its own facts as to whether an employment relationship exists. As such, these recent decisions are a reminder for all companies to review their current arrangements and consider the question of whether the worker is carrying on their own separate trade or business, or if they are properly classified as an employee who is working directly for the company.
Authors: Michael Selinger & Sladjana Skoric
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.