Late last month an Uber driver was unable to convince the FWC that he was an employee for the purposes of unfair dismissal protection. DP Gostencnik categorically rejected the applicant’s argument that a recent 2016 UK Employment Tribunal case which found an Uber driver was a “worker” should be applied in Australia noting that the legislation governing the UK case was “materially different to that which governs this application”.
Although ultimately finding that Uber was not an employer in Australia because the wages-work bargain was “missing”, the FWC conceded that the “traditional” tests relating to the work-wages bargain and the multi-factorial approach were developed before the “gig” or “sharing” economy and are therefore becoming “outmoded” under the current economic landscape.
For now, the decision is clearly a win for Uber (and other digital platform providers such as Deliveroo and Foodora), but for how long? With the evolving nature of the “gig” or “sharing” economy, it appears inevitable that the legal status of workers engaged to perform services in the gig and sharing economy will continue to be vigorously tested in Australia until our laws are refined (or new laws introduced) to deal with participants in the digital economy.
Definitely one to keep a close eye on in 2018!
Here’s the FWC decision: Kaseris v Rasier Pacific V.O.F  FWC 6610 (21 December 2017)