Uber and Out… Gig is Up for Digital Worker

by K&L Gates LLP

K&L Gates LLP

On 21 December 2017, Deputy President Val Gostencnik of the Fair Work Commission issued a decision in the matter of Michail Kaseris v Rasier Pacific V.O.F., an unfair dismissal application in which the jurisdiction of the Commission to hear the matter was determined, in the circumstances that only true employees have access to the Commission to pursue claims of unfair dismissal.

No ordinary jurisdictional decision, the decision gave close consideration to the widely debated question of whether Uber drivers are genuine independent contractors or whether they should, at law, be deemed employees.

Factors Affecting the Decision

The question of whether a particular worker is a genuine independent contractor or an employee is not straightforward—there is no single factor that will be determinative in any case. This question is ultimately determined by taking a multi-factoral approach to make an assessment of whether a relationship is reflective of a business-to-business relationship, or a "master-servant" relationship, in which there is "wages-work" bargain pursuant to which work or services may reasonably be demanded with a corresponding obligation to provide payment for that work.

The decision provides a useful elucidation of the factors to which all employers must have regard in undertaking this assessment. These factors include but are not limited to: 

  • whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work, and the like
  • whether the worker performs work for others (or has a genuine and practical entitlement to do so)
  • whether the worker has a separate place of work and or advertises his or her services to the world at large
  • whether the worker provides and maintains significant tools or equipment
  • whether the work can be delegated or subcontracted
  • whether the putative employer has the right to suspend or dismiss the person engaged
  • whether the putative employer presents the worker to the world at large as an emanation of the business
  • whether the worker creates goodwill or saleable assets in the course of his or her work.

The Findings

In this instance, DP Gostencnik determined that an application of these factors led to the finding that the Uber driver was an independent contractor, and not an employee, having regard to the following considerations:

  • the high degree of control that an Uber driver has over their own hours of work
  • the requirement for the Uber driver to provide their own "capital equipment" to perform the services, in particular, a car and a smartphone;
  • the prohibition against wearing an Uber uniform or displaying any Uber logos on a driver's car
  • the requirement that an Uber driver be registered for GST
  • that an Uber driver is paid a service fee rather than wages
  • the clear description of the legal relationship between Uber and its drivers in its service agreement, which was consistent with Uber's role as a payment collection agent and provider of technology services

notwithstanding that

  • an Uber driver has little to no control over the fees charged to riders using their transport services
  • Uber enforces stringent service standards to protect the Uber brand and riders, limiting the control that an Uber driver has around the provision of their services.

A copy of DP Gostencnik's full decision is available here.

But is That the end of the Story?

No, this is not the end of the story. While forming a clear view that, under the law as it stands, an Uber driver should be regarded an independent contractor and not an employee, DP Gostencnik rightly raises a question as to whether the traditional multi-factoral approach might be outmoded, and does not provide appropriate protection to new types of workers in the digital or gig economy.

The short term nature of work in the gig economy through platforms such as Uber, Airtasker, Upworks, and Deliveroo, to name just a few, does not sit comfortably in traditional employment law frameworks, which are based around providing certainty in the performance of work and the conditions attached to the performance of that work. Does the nature of gig work make our systems of superannuation, severance pay, long service leave, etc, irrelevant in a modern workplace? Should gig workers properly be considered entrepreneurs who are running their own business and who should reasonably manage their own income and retirement arrangements?

While DP Gostencnik's decision was inherently focused on the Australian context, these questions are being raised globally, no less than by the K&L Gates Labour, Employment and Workplace Safety team in its recent Global Employer Solutions webinar in which we considered Managing Global Employment and Social Responsibility Risks in the Modern Workplace.

In this Global Employer Solutions webinar, we discussed the questions:

  • How do workers engaged through peer-to-peer platforms sit within traditional employment regulatory frameworks? 
  •  Should peer-to-peer workers sit within traditional employment regulatory frameworks?

Sharing DP Gostencnik's ideas that there is scope for the law of employment to catch pace with the evolving nature of the digital economy, we consider whether there arises opportunities for employment frameworks to evolve to provide appropriate protection to workers in the gig economy, including following the footsteps of other jurisdictions in the possible creation of a third category of worker, the dependent contractor.

What we do know is that in the absence of an evolution of employment law frameworks, employers will continue to face the challenges of trying to shoehorn their modern workforce into a rigid and out-dated regime of employment laws.

The webinar is available on demand on the K&L Gates Hub here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:

K&L Gates LLP

K&L Gates LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.