Gig Workers and Employee Entitlements 2.0

In Australia, workers are classed as either an employee or a contractor. This has been a source of tension for some workers in the gig economy, such as Uber drivers, who forego employee entitlements for some degree of flexibility over their work. Some have called for a third ‘category’ to be created where some employment protections are provided to certain gig economy workers.

While Australia is dualistic in the sense that workers are either an employee or a contractor, the UK has this third category, and it is simply titled “worker” status. A recent unanimous Supreme Court ruling in the UK found that Uber drivers are workers – not contractors, but not employees. The Court found that Uber retains some control over Uber drivers through setting fares, setting contract terms with no opportunity for negotiation, disincentivising Uber drivers from rejecting ride requests, and penalising drivers who maintain an unsatisfactory rating. It also found that Uber drivers are considered ‘workers’ during the time that they are logged into the app – not just the time spent driving, but also the time spent waiting for ride requests.

How is this Relevant to Australia?

Australia has had its own inquiries into Uber and UberEats drivers and riders practices. In 2019, the Fair Work Commission found that Uber Australia drivers are not employees. Interestingly, the crux of the decision fell, just as in the decision of the UK Supreme Court, on the level of control that Uber Australia maintains over its workers.

Unlike the Fair Work Commission, the UK Supreme Court found that Uber maintains a significant degree of control over its drivers, eliciting ‘worker’ status. While this appears to be an opposing decision to that of the Fair Work Commission, it is not: rather, the UK maintains that Uber drivers are not quite contractors nor employees. Because Australia only maintains these two classifications, if a case is brought before Australian courts, it may be difficult to find this degree of control sufficient for the establishment of an employment relationship. Nonetheless, because Uber Australia does maintain control over the driver’s relationship with customers, there is nothing to stop the Fair Work Commission or Australian courts from finding an employment relationship in the future.

Overall, gig workers play a large role in Australia’s economy. This has been brought to the forefront during the pandemic, where necessary services involved safe and private transport, and food and grocery deliveries. The upcoming Senate inquiry into the status of UberEats drivers and riders is reflective of an increasing awareness of both the value and the needs of certain gig workers.

If you wish to learn more about employee entitlements during these exceptional times, you may speak with one of our experienced employment lawyers. Call us at (02) 4929 7002, email us or complete an enquiry form.