News article from Workplaceexpress.com.au Uber not an employer, says FWC Monday, January 15, 2018, 10:25am An Uber driver's failure to convince the FWC that he is an employee is unlikely to deter other challenges according to an academic, while the case raises questions as to whether traditional legal tests can be applied to the gig economy. Deputy President Val Gostencnik late last month rejected a Victorian Uber driver's bid to establish he was an employee protected from unfair dismissal, but acknowledged the work-wages bargain test might be "outmoded". Uber, which terminated the driver's service agreement last August over poor passenger ratings, submitted that its terms and the lack of a wages-work bargain meant "it can in no way be concluded that an employment relationship [with the driver] existed". The agreement says Uber is not a party to the "direct business relationship" between drivers and passengers and stipulates that drivers have a right to use other "software application services" to perform as much work as they like and to charge less than its recommended minimum fare. The driver argued that if he was truly an independent contractor, he would be free to charge either a lower or a higher fare. He also called on the FWC to take into account a 2016 UK Employment Tribunal decision (upheld in November), which found an Uber driver was a "worker" under the UK's Employment Rights Act (see Related Article). But Deputy President Gostencnik found that judgment of "no assistance". While Uber's UK and Australian operations are similar, he said the legislation at issue in the UK tribunal case was "materially different to that which governs this application". That case was "decided on the basis of [the UK's] expanded definition of a 'worker'. . . which is self-evidently broader than the definition of an employee and encapsulates some independent contractors", he continued. Regarding the services agreement covering the Victorian driver, the deputy president said he had not "seriously challenged" the fact Uber has no legal obligation "except to provide access to the partner app and remittance of the fares and cancellation fees that the rider pays to the driver". Employment relationship notions may be outmoded: Deputy President Deputy President Gostencnik agreed with Uber that the "wages-work bargain which is essential to an employment relationship is missing" and that, "on this point alone, the [driver's] application fails". However, he also observed that the "notion that the work-wages bargain is the minimum mutual obligation necessary for an employment relationship to exist, as well as the multi-factorial approach to distinguishing an employee from an independent contractor" was developed before the gig or 'sharing' economy. "It may be that these notions are outmoded in some senses and are no longer reflective of our current economic circumstances," the deputy president said. "These notions take little or no account of revenue generation and revenue sharing as between participants, relative bargaining power, or the extent to which parties are captive of each other, in the sense of possessing realistic alternative pursuits or engaging in competition." He added that "perhaps the law of employment will evolve to catch pace with the evolving nature of the digital economy [or] the legislature will develop laws to refine traditional notions of employment or broaden protection to participants in the digital economy". "But until then, the traditional available tests of employment will continue to be applied." Case assists push for change: Academic University of Technology Sydney Associate Professor Sarah Kaine told Workplace Express that Deputy President Gostencnik's "observations about ongoing relevance are pertinent". "Of particular significance is the recognition that currently our approaches do not take into account relative bargaining power or take account of realistic alternatives for workers," Kaine said. She added that while tribunals and courts are limited by the legislative framework within which they work, she believes "this one decision will not deter other challenges where the details of the case may favour a different interpretation". Kaine said that, given Australia's "legal straitjacket that cannot easily adjust to changes in the characteristics and relationships of work", any "'fix' to acknowledge the changing realities of the labour market and the economy are likely going to have to be initiated through legislative change". As this is "only likely to come when there is enough of a public groundswell of opinion in favour of better protections for gig workers", she said even unsuccessful cases play a role "in raising public awareness about the fairness or otherwise of the treatment of workers (contractors of employees) engaged by multi-million dollar 'new economy' business". Meanwhile, a Ride Share Drivers United spokesperson Max B. told Workplace Express the lobby group was "very disappointed" with the judgment and felt the FWC had "wrongly dismissed the UK ruling". "The driver in question was not part of the RSDU group at time of hearing of this case, he was not legally represented and did not seriously contest Uber's description of the relationship," the spokesperson said, adding "we can only hope that this driver appeals the decision". "The ruling in this case clearly shows that the system is broken and that the rules need to be changed to keep up with the digital/gig economy," he said. "We feel this ruling gives a stamp of approval to employers wishing to profit by disguising employees' real status, engaging them in work on demand via an app." An Uber spokesperson said the main reason drivers use the platform is "because they value the freedom to choose if, when and where they drive". He said Uber was "pleased with the Commission's ruling which maintains that standard for drivers".