29 May, 2018
In December last year, there was an important legal development in the employment law/gig economy space.
The Fair Work Commission (FWC), Australia's employment tribunal, decided that a former Uber driver was not an employee and could not therefore bring an unfair dismissal claim against the ride sharing behemoth.
In Kaseris v Rasier Pacific V.O.F [2017], the FWC considered how to interpret gig economy work within the traditional and well-established parameters used to determine whether a worker is an employee or a contractor. The FWC went through the process of considering the common law multi-factorial test, where no single factor is solely determinative and considered factors such as control, risk, right to delegate work, and provision of tools and equipment.
Despite this consideration, the FWC was most persuaded by Uber's argument that the contract of employment, at its core, is about a work-wage bargain, and that the relationship between a driver and Uber lacked this fundamental element. The work-wage bargain can best be described as the contractual exchange, whether express or implied; in which there is an offer of a wage, in exchange for which the worker agrees to work.
In reaching his conclusion, the FWC Deputy President was clear in his view that until legislation changes to keep pace with the gig or digital economy, the courts will have no choice but to continue to apply the same "outmoded" criteria.
For further information, please contact:
Kristy Peacock-Smith, Partner, Bird & Bird
kristy.peacock-smith@twobirds.com
