The modern workplace is rapidly transforming because of globalisation and technological innovations such as mobile phone applications (apps). The problem this presents is, whether individuals working for the companies producing the apps are ‘employees’ or ‘independent contractors’.
This article will explore the position that the United Kingdom has taken in relation to Uber Drivers and whether the mobile app gives rise to an employer-employee relationship. Whilst, the Australian judiciary is yet to deal directly with an employment matter concerning app-based companies, consideration will be made on the likely approach that the judiciary will take when assessing the status of worker as ‘employees’ or ‘independent contractors’.
The position of Uber Drivers in the UK
Uber is a technology based company that provides car transportation, and more recently has grown to food delivery through its mobile application. The company has significant global presence; currently operating in 570 cities globally. In 2015, the UK employment tribunal in the case of Aslam, Farrar & Others v Uber B.V., Uber London Ltd and Uber Britannia Ltd, considered whether Uber drivers constituted as ‘employees’ or ‘contractors’. Uber forwarded the argument that as the drivers were overseeing the transportation of people, responsible for keeping their own accounts of their dealings and accountable for their own taxes, the drivers were “third party contractors”. The concern with such a title is that ‘third party contractors’ have very minimal rights, they do not receive benefits such as minimum wage or paid leave. Uber considered that their role was to simply to facilitate the pick-up of passengers through the mobile application, thus arguing that it was not a business providing a service.
The employment tribunal outright rejected Uber UK’s viewpoint holding that when a driver takes on a passenger, it is Uber that has formulated the deal with the passenger, not the driver. Uber was held to be the controlling body since the Uber driver did not exercise power over the type of passenger it picked up and the drivers were bound to the terms and conditions of Uber, not their own terms. Thus, the decision followed that any driver that has the Uber App turned on, is within he proximity to work and is ready, willing and able to accept an assignment proposed by Uber is a ‘worker’ and not an ‘independent contractor’ for the driver has very minimal control over the process.
The position of app-based companies in Australia
Currently, two Australian based food delivery companies, Deliveroo and Foodora, are facing a similar issue to that presented by Uber in the UK. Deliveroo and Foodra are currently being investigated by law firm, Maurice Blackburn, for exploiting their couriers by hiring them as ‘independent contractors’ not ‘employees’. An ‘independent contractor’ is generally a person who is in business for themselves, and has sufficient control over how and when the work is performed. Deliveroo and Foodora employees have been vocal arguing that they did not feel like they were their ‘own boss’ when working, instead feeling like they were under the complete control of the companies. The inquiry has found that workers were forced to wear uniforms, had very minimal rights and did not have access to minimum pay rates, WorkCover, leave or superannuation. The matter is still under investigation.
‘Quacks like a Duck’ Test
In light of the above, if we apply the judgement of Justice Gray in Re Porter, where he stated, that “parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”, we can see that if all the circumstances point towards an employer-employee relationship existing, the reality is that in spite of technological innovations and the digital age, the worker will at minimum be entitled to the ten National Employment Standards (NES).
The team at Cube Workplace Solutions has extensive experience determining whether your workers are independent contractors or employees. If you are uncertain about whether your workers are employees or independent contractors, contact Cube Workplace Solutions today on 1300 122 823 to discuss your matter with a member of our professional team.