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Fair Work Ombudsman media release: Uber drivers not employees

Jack Malarkey

Well-Known Member
Full text of Fair Work Ombudsman statement:

Uber Australia investigation finalised
7 June 2019

The Fair Work Ombudsman has completed its investigation relating to Uber Australia Pty Ltd (Uber Australia) and its engagement of drivers.

Fair Work Ombudsman Sandra Parker said that inspectors examined a wide range of evidence, including drivers’ contracts, log on and log off records, interviews with drivers and Uber Australia, ABN documents, payment statements, banking records and pricing schedules.

“The weight of evidence from our investigation establishes that the relationship between Uber Australia and the drivers is not an employment relationship,” Ms Parker said.

“For such a relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer.”

“Our investigation found that Uber Australia drivers are not subject to any formal or operational obligation to perform work,” Ms Parker said.

“Uber Australia drivers have control over whether, when, and for how long they perform work, on any given day or on any given week.”

“Uber Australia does not require drivers to perform work at particular times and this was a key factor in our assessment that the commercial arrangement between the company and the drivers does not amount to an employment relationship,” Ms Parker said.

“As a consequence, the Fair Work Ombudsman will not take compliance action in relation to this matter.”

“This investigation related solely to Uber Australia and was not an investigation of the gig economy more generally,” Ms Parker said.

Companies in the gig economy use a range of business models and the Fair Work Ombudsman will continue to assess allegations of non-compliance on a case-by-case basis. Anyone with concerns about their employment arrangements should contact the FWO.

(https://www.fairwork.gov.au/about-us/news-and-media-releases/2019-media-releases/june-2019/20190607-uber-media-release)
 
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Jack Malarkey

Well-Known Member
  • Thread Starter Thread Starter
  • #2
(1) Role of the Fair Work Ombudsman

Fair Work Ombudsman

Parent Portfolio: Jobs and Innovation

The Fair Work Ombudsman promotes harmonious, productive and cooperative workplaces. They help employees, employers, contractors and the community to understand and comply with Australia's workplace laws. They provide information and advice, investigate workplace complaints and enforce Commonwealth workplace laws.

Fair Work Ombudsman - external site: https://www.fairwork.gov.au/

(https://www.australia.gov.au/directories/australia/fairwork)

(2) Sandra Parker, Fair Work Ombudsman

Sandra Parker - the Fair Work Ombudsman
Sandra Parker PSM was appointed to the position of Fair Work Ombudsman for a 5 year term on 15 July 2018.

Under the Fair Work Act 2009 Sandra is responsible for promoting harmonious, productive and cooperative workplace relations and ensuring compliance with Commonwealth workplace laws.

Sandra was awarded a Public Service Medal for her outstanding contribution to workplace relations policy and program delivery on Australia Day 2018.

Prior to her appointment as Fair Work Ombudsman, Sandra served as a Deputy Secretary at the Department of Jobs and Small Business and its predecessors for eight years. She was Deputy Secretary, Employment Services and Deputy Secretary, Workplace Relations and Economic Strategy.

In earlier roles, Sandra was the head of the Office of the Australian Safety and Compensation Council and a senior executive at the Commonwealth Department of the Prime Minister and Cabinet. She has also held various policy and program management positions in the vocational education and training field, at both Commonwealth and state government levels.

Sandra began her career in education with secondary teaching roles in Tasmania, the Australian Capital Territory and in London.

She holds a Bachelor of Education from the University of Tasmania and is a graduate of the Australian Institute of Company Directors. She is also an alumnus of the Harvard Kennedy School of Government and the Australia New Zealand School of Government.

(https://www.fairwork.gov.au/about-us/key-people/sandra-parker-the-fair-work-ombudsman)
 
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RabbleRouser

Well-Known Member
London’s “Tribunal” says Employees
the outback say Contractor

Split the difference: it’s a crap ? Gig
period
 

UberDriverAU

Well-Known Member
“For such a relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer.”
I've gotta say, it's very concerning that the FWO has never heard of casual employment.
 

Kyanar

Well-Known Member
I've gotta say, it's very concerning that the FWO has never heard of casual employment.
That's a slightly invalid comparison. For casual work, the employer sets shifts and offers the set shift times to the employees. For Uber to be a casual job using that logic, they'd have to pre-set shifts and only allow you to log on during set shift times. "Sorry, you cannot sign on at 4:57 PM. The next shift starts at 6 PM and runs until midnight. Do you want to take that shift?"
 

UberDriverAU

Well-Known Member
That's a slightly invalid comparison. For casual work, the employer sets shifts and offers the set shift times to the employees. For Uber to be a casual job using that logic, they'd have to pre-set shifts and only allow you to log on during set shift times. "Sorry, you cannot sign on at 4:57 PM. The next shift starts at 6 PM and runs until midnight. Do you want to take that shift?"
That is often how casual employment works, but there is no legal requirement for shifts to be of preset hours. I've picked up many a casual employee who has been sent home earlier than expected, and they haven't been paid for the hours they didn't end up working. When there is an offer of work, there is no obligation on the part of the casual employee to accept it, yet they are still employees. The FWO's reasoning is flawed.
 

RoboRider

Well-Known Member
That is often how casual employment works, but there is no legal requirement for shifts to be of preset hours. I've picked up many a casual employee who has been sent home earlier than expected, and they haven't been paid for the hours they didn't end up working. When there is an offer of work, there is no obligation on the part of the casual employee to accept it, yet they are still employees. The FWO's reasoning is flawed.
Difference still is that the employer sets the hours of work. They may have offered a shift and then ended it early but they set the hours - that is not the case with rideshare. You really think you understand the employment rules better than the FWO :rolleyes:
 

UberDriverAU

Well-Known Member
Difference still is that the employer sets the hours of work. They may have offered a shift and then ended it early but they set the hours - that is not the case with rideshare. You really think you understand the employment rules better than the FWO :rolleyes:
Again, that's not a legal requirement for casual employment. Reread what the FWO said, and then answer this question: is it true that a casual employee is obliged to work if their employer demands it? According to the FWO, that is (at a minimum) what is required to make someone an employee. Forget about Uber and shifts, because thinking about her statement doesn't require thinking about either. The FWO says the answer is yes, do you agree, yes or no?
 

Kyanar

Well-Known Member
Again, that's not a legal requirement for casual employment. Reread what the FWO said, and then answer this question: is it true that a casual employee is obliged to work if their employer demands it? According to the FWO, that is (at a minimum) what is required to make someone an employee. Forget about Uber and shifts, because thinking about her statement doesn't require thinking about either. The FWO says the answer is yes, do you agree, yes or no?
You're reading far too much into the choice of wording. Once you have accepted a shift, yes you absolutely are obliged to work. Unlike Uber/Ola/Bolt.
 

UberDriverAU

Well-Known Member
You're reading far too much into the choice of wording
Not really. It's quite a firm statement about what must exist before someone can be considered to be an employee. And if you are honest with at least yourself, you will have to acknowledge that it's simply not true. You might come to the conclusion that someone isn't an employee for other reasons, but a lack of obligation to work on demand can never be one of them under current Australian law.
Once you have accepted a shift, yes you absolutely are obliged to work.
That's not true. Either party can end a period of work without notice unless an agreement states otherwise.
 

DA08

Well-Known Member
Not really. It's quite a firm statement about what must exist before someone can be considered to be an employee. And if you are honest with at least yourself, you will have to acknowledge that it's simply not true. You might come to the conclusion that someone isn't an employee for other reasons, but a lack of obligation to work on demand can never be one of them under current Australian law.

That's not true. Either party can end a period of work without notice unless an agreement states otherwise.
What you say is true only if you don't wanna work there anymore.... Even on casual employment you can't decide when you finish and want to go home...
 

UberDriverAU

Well-Known Member
What you say is true only if you don't wanna work there anymore.... Even on casual employment you can't decide when you finish and want to go home...
It's simply not correct to say a casual employee has a legal obligation to work when their employer demands it or has a legal obligation to finish a shift that they've agreed to work. In the absence of an agreement to the contrary, the lack of commitment goes in both directions. Whether you're likely to be offered further work may be a practical consideration, but it doesn't equate to an obligation.
 

Thing

Well-Known Member
My last casual job was different to Uber. I would receive requests to work certain shifts. The employer set the start and end time. I couldn't just turn up and decide to work a few hours here and there.
With Uber I could. I could start and end when ever I wanted.
My employer had to pay me for a minimum of 2 or 4 hours (I cant remember now) every time they offered me a shift and I commenced working that shift.
With Uber if I log on for 30 mins then log off I didn't get a minimum payment of 2 or 4 hours. I only got paid for whatever fares I did in that 30 mins, if there was no fares then I get paid nuthin :smiles:
 

UberDriverAU

Well-Known Member
My last casual job was different to Uber. I would receive requests to work certain shifts. The employer set the start and end time. I couldn't just turn up and decide to work a few hours here and there.
With Uber I could. I could start and end when ever I wanted.
When you accept an Uber trip, can you just turn up when you feel like it to complete the work? Could you kick someone out of the car half way to their destination because you wanted to finish up there and then? What would happen if you did?
My employer had to pay me for a minimum of 2 or 4 hours (I cant remember now) every time they offered me a shift and I commenced working that shift.
With Uber if I log on for 30 mins then log off I didn't get a minimum payment of 2 or 4 hours.
That's because your (former?) employer acknowledges that you are an employee and had to abide by an award or agreement. There isn't a legal obligation for minimum hours for casual employees outside of an award or agreement. Uber doesn't recognise you as an employee, so they're not going to pay you as such.
 
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Kyanar

Well-Known Member
When you accept an Uber trip, can you just turn up when you feel like it to complete the work? Could you kick someone out of the car half way to their destination because you wanted to finish up there and then? What would happen if you did?
Terrible example. Independent contractors are also required to actually complete any unit of work they are contracted to complete. This example does not support your argument.

That's because your (former?) employer acknowledges that you are an employee and had to abide by an award or agreement. There isn't a legal obligation for minimum hours for casual employees outside of an award or agreement. Uber doesn't recognise you as an employee, so they're not going to pay you as such.
And even then, unlike an employer, Uber doesn't offer you any shifts. As such of course they aren't going to give you minimum pay just for signing on, because they never asked you to work in the first place. Another example that doesn't support your argument.
 

UberDriverAU

Well-Known Member
Terrible example. Independent contractors are also required to actually complete any unit of work they are contracted to complete. This example does not support your argument.
It's not a terrible example, it's an example of how you can't just start and finish work whenever you feel like it as an Uber driver. Once you have accepted that offer of work, you had better start heading towards your passenger within a few minutes or there are potential consequences.
And even then, unlike an employer, Uber doesn't offer you any shifts. As such of course they aren't going to give you minimum pay just for signing on, because they never asked you to work in the first place. Another example that doesn't support your argument.
People bring up all sorts of misunderstanding about what a casual employee really is. You don't have to accept work that is offered to you when it is offered or demanded by your employer. You're not entitled to minimum hours unless an award or agreement applies. You can end your shift (ie. period of employment) whenever you want unless an agreement to the contrary applies. And you do indeed get a minimum amount for completing an Uber trip, even if it's a 10 second, 100 meter trip. You need to distinguish between "logging on" which is letting Uber know that you are "available to work right now", and "accepting a trip" which is the same as "accepting a shift".
 

Kyanar

Well-Known Member
It's not a terrible example, it's an example of how you can't just start and finish work whenever you feel like it as an Uber driver. Once you have accepted that offer of work, you had better start heading towards your passenger within a few minutes or there are potential consequences.
No, it really is a terrible example. As an independent contractor, not Uber driver, you still can't just start and finish work whenever you feel like it. If you take on a contract, you better be willing to complete that contract within the terms set or there are consequences. This does not support your argument that Uber drivers are employees. At all.

People bring up all sorts of misunderstanding about what a casual employee really is. You don't have to accept work that is offered to you when it is offered or demanded by your employer. You're not entitled to minimum hours unless an award or agreement applies. You can end your shift (ie. period of employment) whenever you want unless an agreement to the contrary applies. And you do indeed get a minimum amount for completing an Uber trip, even if it's a 10 second, 100 meter trip. You need to distinguish between "logging on" which is letting Uber know that you are "available to work right now", and "accepting a trip" which is the same as "accepting a shift".
I think it is you who is misinterpreting parts to try and suit the narrative that a driver is an employee. There really is nothing to suggest this is the case, with the driver providing the tools, the labour, no set expectation of hours or method of work - all signs point to the FWO being absolutely correct as to the status of a driver. And frankly, why would you want to be an employee? Way to kill all the flexibility that exists for those of us who aren't interested in another 9-5.

What you should be fighting for is protections against unfair conditions in Uber's contractual arrangements- an end to unilateral rate changes, an end to unfair deactivations, an end to one sided treatment of rider/driver disputes.
 

UberDriverAU

Well-Known Member
No, it really is a terrible example. As an independent contractor, not Uber driver, you still can't just start and finish work whenever you feel like it. If you take on a contract, you better be willing to complete that contract within the terms set or there are consequences. This does not support your argument that Uber drivers are employees. At all.


I think it is you who is misinterpreting parts to try and suit the narrative that a driver is an employee. There really is nothing to suggest this is the case, with the driver providing the tools, the labour, no set expectation of hours or method of work - all signs point to the FWO being absolutely correct as to the status of a driver. And frankly, why would you want to be an employee? Way to kill all the flexibility that exists for those of us who aren't interested in another 9-5.

What you should be fighting for is protections against unfair conditions in Uber's contractual arrangements- an end to unilateral rate changes, an end to unfair deactivations, an end to one sided treatment of rider/driver disputes.
My point is, this is wrong according to our courts:

FWO said:
“For such a relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer.”
FWO said:
“Uber Australia does not require drivers to perform work at particular times and this was a key factor in our assessment that the commercial arrangement between the company and the drivers does not amount to an employment relationship,” Ms Parker said.
This isn't true for casual employment, therefore it cannot be used to distinguish between an independent contractor and a casual employee. As I said earlier, there may be other factors which make someone something other than a casual employee, but this factor certainly cannot be a "key factor".

If an employer calls a casual employee up and demands that they work between 9am and 5pm tomorrow, are they obliged to do so? I know that you know the answer to that is no. It's pretty clear that the FWO's statement isn't correct.
 
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Kyanar

Well-Known Member
If an employer calls a casual employee up and demands that they work between 9am and 5pm tomorrow, are they obliged to do so? I know that you know the answer to that is no. It's pretty clear that the FWO's statement isn't correct.
You've already been told numerous times why you're misinterpreting that statement. I'm not engaging with it any further.
 

DA08

Well-Known Member
My point is, this is wrong according to our courts:



This isn't true for casual employment, therefore it cannot be used to distinguish between an independent contractor and a casual employee. As I said earlier, there may be other factors which make someone something other than a casual employee, but this factor certainly cannot be a "key factor".

If an employer calls a casual employee up and demands that they work between 9am and 5pm tomorrow, are they obliged to do so? I know that you know the answer to that is no. It's pretty clear that the FWO's statement isn't correct.
Dude give it up... Know when you're beaten...

Btw why in the world would you want to be an employee?? Give it a rest - we're not employees, i DON'T WANT TO BE an employee.... You wanna be an employee go get a job with an employer.
 
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