Kaseris v Rasier Pacific V.O.F [2017] FWC 6610

The Fair Work Commission has determined that an Uber driver was not an employee and so ineligible to claim unfair dismissal. Deputy President Gostercnik assessed the driver’s work status using the traditional common law test, taking into account, among other factors, the minimal degree of supervision and control that Uber exercised over its drivers, the driver’s ability to perform as much or as little work as he liked, and the fact that Uber did not make any payment to the driver for the provision of services, but rather the driver paid a service fee to Uber calculated as an agreed percentage of the fee paid by the passenger.

In his concluding remarks, Deputy President Gostercnik expressed concern that the current approach to distinguishing an employee from an independent contractor does not reflect the economic realities of the new sharing economy. In particular, he said that the test takes “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.”

This is the first decision in Australia to consider whether an Uber driver is an employee. Courts in the US and UK have found Uber drivers to be ‘employees’ and ‘workers’ respectively, but Deputy President Gostercnik did not consider that those cases were instructive as to the state of the law in Australia as they were applying much broader legislation.

Until a higher tribunal or court rules on the matter, the decision will likely inform the status of other gig-economy workers in Australia.

Read the full text of the tribunal's judgment: Kaseris v Rasier Pacific V.O.F [2017] FWC 6610

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