1
Fair Work Act 2009
s.394—Unfair dismissal
Rajab Suliman
v
Rasier Pacific Pty Ltd
(U2019/2392)
COMMISSIONER BISSETT MELBOURNE, 12 JULY 2019
Application for an unfair dismissal remedy.
[1] Mr Rajab Suliman has made an application pursuant to s.394 of the Fair Work Act
2009 (FW Act) seeking relief from unfair dismissal. Mr Suliman says that his employment
was unfairly terminated by Uber. Mr Suliman commenced “working” for Uber in that he
commenced carrying “riders” in August 2017. His access to the Uber platform (the Partner
App) was removed in February 2019. Without access to the Partner App Mr Suliman could no
longer obtain access to those who sought transport through Uber.
[2] At the commencement of proceedings Uber made an application to change the name
of the Respondent to the application to Rasier Pacific Pty Ltd. Mr Suliman made no objection
to the change of name. Pursuant to the provisions of s.586 of the FW Act the file will be
amended to show Rasier Pacific Pty Ltd as the respondent to the application.
[3] Rasier Pacific Pty Ltd (Respondent or Uber) has raised a jurisdictional objection to the
application of Mr Suliman in that it says that he is a contractor and not an employee. As such
it submits the Fair Work Commission (Commission) does not have the jurisdiction to deal
with the application. Mr Suliman submits that he was a casual employee and worked on a
regular and systematic basis such that the Commission does have the power to deal with his
application. This decision deals with whether Mr Suliman was a contractor or an employee of
the Respondent.
[4] Mr Suliman was represented in the hearing of the application by Mr Mogga Suliman
(who was not a lawyer or paid agent). The Respondent was represented by Mr Cameron
Loughlin.
[2019] FWC 4807
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 4807
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Background to ‘Uber’
[5] Uber is a brand name of the Respondent that most people would recognise. It provides
a technology platform by which it enables users to book a ride and for drivers to provide
transport services. The characterisation of Uber as no more than a technology company
however was rebuffed by a recent decision in the United States District Court where the Court
held:
First, Uber’s self-definition as a mere “technology company” focuses exclusively on
the mechanics of its platform (i.e., the use of internet enabled smartphones and
software applications) rather than on the substance of what Uber actually does
(i.e., enable customers to book and receive rides). This is an unduly narrow frame.
Uber engineered a software method to connect drivers with passengers, but this is
merely one instrumentality used in the context of its larger business. Uber does not
simply sell software; it sells rides.1 [Footnotes omitted]
[6] The Rasier Pacific Pty Ltd Uber B.V Services Agreement updated 1 December 2017
(2017 Services Agreement) governs the engagement of Mr Suliman and his relationship to
Uber and to Riders.
[7] Key aspects of the operation of Uber including those in the then Services Agreement
were set out in some detail in the decision in Kaseris v Rasier Pacific V.O.F2 (Kaseris). I
repeat that below to provide context for my considerations. I accept that Mr Suliman says that
the reality of operations as a Driver for Uber are different to those set out in the 2017 Services
Agreement3 and, to the extent that these are further developed, I have considered them below.
In any event the outline of the operations of Uber in Kaseris is consistent with the evidence of
Mr Lucas Groeneveld of Uber in this matter.
[8] Deputy President Gostencnik said in Kaseris that:
[6] Uber operates across two smartphone applications. One application is for
people who require transportation services known as the “Rider App” and the other
application is for drivers who supply the transportation services known as the “Partner
App”. Both of these applications can be downloaded onto a smart phone by an
individual at any time, free of charge.
Riders
[7] The Rider App is the dedicated application for people who want to request
what is commonly known as a “trip”. In order to use the Rider App an individual must
create an account and register their contact and payment details within the
application. Once registered, an individual must accept the terms and conditions of
use and if and once they are accepted, the individual is then able to use the application
to request a trip. In order to request a trip, the Rider must open the application on their
smart phone, provide their pick up and drop off location and then select the category
of vehicle they want to ride in (discussed below at [8]. Once these details have been
provided, the Rider is given an estimate of the fare for the trip as well as an estimated
time of arrival of the Driver. If the Rider is happy with the estimated fare and the
Driver, the Rider confirms the request for the trip.
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[8] In Victoria, a Rider has a range of options about the type of vehicle in which
the Rider wishes to travel. Presently, the following options are available:
uberX – any motor vehicle that meets the minimum requirements of the
Respondent;
uberSLECT – a mid-tier luxury sedan;
uberXL – a SUV or sedan hat seats six or seven people;
uberBLACK – a high-end luxury vehicle; or
uberASSIST – a motor vehicle that can accommodate folding wheelchairs,
walkers and collapsible scooters.
Drivers
[9] The Partner App is the dedicated application for people who want to provide
transportation services to Riders. In order to use the Partner App, the first step that a
prospective Driver needs to complete is to set up an account in the application. Once
an account has been set up, the prospective Driver must go through an activation
process, which involves submitting a number of formal documents, including a valid
driver’s licence, driving history check and motor vehicle insurance to the relevant
authority (in Victoria, the relevant authority is the Taxi Services Commission). The
prospective Driver must also select which kind of Uber service, referred to at [8], they
want to provide. Once all of the mandated documents have been submitted to the
relevant authority, they are electronically uploaded into the systems owned by Uber
and are reviewed for compliance with Uber’s minimum standards. The review process
broadly involves verifying and reviewing the documents lodged by the prospective
Driver, conducting a driving history and criminal check, reviewing the results of those
checks and confirming that the motor vehicle identified by the prospective Driver
meets the minimum requirements for the service delivery option nominated and that
the registration for the vehicle is valid.
[10] If the application is approved, the final step that a prospective Driver must
complete before he or she can accept trip requests via the application is to accept the
terms and conditions contained in a services agreement. For prospective Drivers who
wish to provide trips in the uberX option, as was the case with the Applicant, this is a
services agreement with the Respondent (Services Agreement). Once a driver account
is activated, an individual must accept the terms and conditions in the Services
Agreement which is contained in the Partner App. If the individual accepts the terms
and conditions, they are then able to accept trip requests via the Partner App.
The Services Agreement and the Service Fee Addendum
[11] The Services Agreement is an agreement between a Driver and the
Respondent. The Services Agreement sets out the terms and conditions governing the
relationship between a Driver and the Respondent, including, inter alia, ratings,
vehicle requirements, fares, proprietary rights and insurance. When the Respondent
changes a term of the Services Agreement or inserts a new term, a Driver is prompted,
[2019] FWC 4807
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via the Partner App, and is required to accept the revised terms and conditions of the
Services Agreement before the Driver is able to accept any further trip requests. In the
period during which the Applicant was active in the Partner App, the Services
Agreement changed once.
[12] The Services Agreement includes a Service Fee Addendum which is specific to
the particular State in which a Driver is providing transport services. The Service Fee
Addendum specifies the service fee that is payable by a Driver to the Respondent.
changes that are made to the Service Fee Addendum are communicated to a Driver
and must be accepted by him or her in the same manner described in [11]. In the
period during which the Applicant was active in the Partner App, the Service Fee
Addendum changed once.
Rider Requests
[13] When a Rider makes a request through the application for a trip, the request is
sent to a Driver who is actively logged onto the Partner App and is either not on a trip
or is nearing the end of a trip with another Rider. The trip request is communicated to
a Driver as a pop-up notification in the Partner App and the notification includes the
name of the Rider, the Rider’s rating and the pickup location. The Driver who receives
the notification can either accept or ignore a request. If a Driver accepts the request
they may do one of four things:
a. Complete the trip;
b. Cancel the accepted trip request before they arrive at the pickup
location;
c. Cancel the accepted trip request after they arrive at the pickup location
but before the Rider is picked up by the Driver (in which case, this may
mean that a Driver is charged a cancellation fee); or
d. Cancel the trip after they have picked up the Rider but before they have
completed the trip.
[14] A Rider is also able to cancel a trip request either before or after a request has
been accepted by the Driver and in certain circumstances, this may also mean that the
Rider is charged a cancellation fee.
Trips
[15] Once a Driver has accepted a trip request from a Rider, the Driver proceeds to
the Rider’s pickup location and once the Rider has been picked up, the trip
commences and the Driver selects “Start Trip” in the Partner App. The Driver takes
the Rider to the destination and once the Driver has arrived at the destination, the
Driver selects “End Trip” in the Partner App.
[16] At the cessation of the trip, the payable fare is communicated to the Rider via
the Rider App and is charged to the credit card that is registered in the Rider’s
account. A receipt reflecting the amount charged is also sent by email to the Rider.
[2019] FWC 4807
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[17] At the end of each trip, both the Driver and the Rider are invited, via the
respective applications, to “rate” the other party. The rating is provided as a number
out of a possible five. Riders are also able to provide comments if they wish.
…
Driver use of the Partner App
[21] Use of the Partner App by a driver is flexible and allows a Driver freedom to
choose how and when the Driver works. A Driver is able to log on and log off the
application whenever he or she chooses and the Respondent does not impose any
minimum period that a Driver must be logged on to the application. Additionally, the
Respondent does not impose any disciplinary procedures on a Driver if a Driver
chooses not to log onto or not log off the Partner App.
[22] Whilst a Driver is logged onto the application, he or she has complete
discretion as to whether the Driver accepts a trip request from a Rider. The
Respondent does not impose requirements or conditions on a Driver that, in order to
use the application, a Driver must accept a minimum number of trip requests during
the time in which the Driver is logged onto the application. This was not always that
case. During the period from June 2016 to March 2017, a Driver would be
automatically logged off the application and not be able to log back on again for two
minutes if the Driver did not accept consecutive trips on three consecutive occasions.
However, since March 2017 the two minute delay was removed so that Drivers could
log back onto the application immediately.
[23] A Driver also has discretion as to the areas or locations within which the
Driver wants to provide trips, however, the Driver must remain within the State in
which the account is active and must be within areas that the Rider App is available.
[24] The relationship between Drivers and the Respondent is not exclusive. If a
Driver wants to utilise another software application to provide transportation services,
the Driver may do so, nor is the Driver prevented from providing other kinds of
services or from obtaining or holding employment whilst having an active account in
the Partner App.
Payments by Riders to Drivers
[25] Riders pay Driver’s a fare for each trip that a Driver provides. A fare is made
up of multiple components including a base fare component, a time and distance
component and a booking fee component. A minimum fare also applies and there may
be additional charges for tolls, taxes or other fees such as airport charges. A
cancellation fee of $10 may also be charged to a Rider if the Rider cancels a trip
request five minutes after making the request and the Driver has accepted the request
and is proceeding to the Rider’s location.
[26] The fare or cancellation fee is collected by the Respondent as part of the
payment collection services the Respondent provides to Drivers under the Services
Agreement. The Respondent sends a receipt, by email, to the Rider on behalf of the
Driver showing either the fare for the trip or the cancellation fee. The fare or the
[2019] FWC 4807
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cancellation fee payable by Riders is inclusive of all taxes, such as GST, applicable in
the jurisdiction in which the Driver is registered. From 1 June 2017, if a Driver had
advised the Respondent that they are registered for GST, the Respondent generates a
trip invoice which identifies the GST payable and other relevant information such as
an ABN and legal name.
[27] The Respondent remits the fares and cancellation fees, after deduction of a
service fee which is discussed below, to the Driver on a weekly basis and, since
February 2017, at the request of a Driver at any time.
…
Service Standards
[30] A requirement of providing transportation services to Riders, is that Drivers
accept and meet certain service standards which are identified in the Services
Agreement, policies and communications. The service standards are contained in the
Community Guidelines which apply to Drivers and Riders. They can also be found in
the Driver Deactivation Policy. The service standards are aimed at protecting the
“Uber” brand and aim to ensure that customer satisfaction and safety requirements are
maintained.
[31] In order to assess whether a Driver meets the service standards, the Respondent
relies on Rider’s ratings of the Driver. The ratings are averaged to provide an overall
rating. If a Driver is failing to meet the service standards, the Respondent may
deactivate the Driver’s account and only reactivate it if it is satisfied that the Driver
has taken steps to improve the quality of the service. Although Drivers are required to
meet service standards, they are otherwise able to provide a trip in any manner they
deem appropriate.
Equipment used by Drivers
[32] The Respondent does not provide any of the equipment (save for the
technology platform) that is required by a Driver to enable the provision of
transportation services. A Driver is required to supply and maintain his or her own
vehicle in accordance with the service option that the Driver chose, and to which
earlier reference has been made. Additionally, a Driver uses his or her own
smartphone or similar device which requires access to a wireless data plan. It is the
Driver’s responsibility to bear the cost of operating the device and wireless data plan.
[Endnotes omitted]
[9] Some specific aspects of the 2017 Services Agreement to which Mr Suliman was a
party warrant setting out in detail.
Relationship between Drivers and Riders
[10] Clause 3 of the 2017 Services Agreement describes the legal relationship between
Drivers and Riders as follows:
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Your Relationship with Users. You acknowledge and agree that your provision of
Transportation Services to Users creates a legal and direct business relationship
between you and the User. Rasier Pacific, Uber and their affiliates are not responsible
or liable for the actions or inactions of a User in relation to you, your activities or your
vehicle. You shall have the sole responsibility for any obligations or liabilities to Users
or third parties arising from your provision of Transportation Services. You
acknowledge and agree that you are solely responsible for taking such precautions as
may be reasonable and proper (including maintaining adequate insurance that meets
the requirements of all applicable laws) regarding any acts or omissions of a User or
third party. You acknowledge and agree that, unless consented to by a User, you may
not transport or allow inside your vehicle individuals other than a User and any
individuals authorised by such User, during the performance of Transportation
Services for such User. You acknowledge and agree that all Users should be
transported directly to their specified destination, as directed by the User, without
unauthorised interruptions or stops.
Relationship between Drivers and the Respondent
[11] Clause 4 of the 2017 Services Agreement describes the relationship between Drivers
and the Respondent as follows:
Your Relationship with Uber Group. You acknowledge and agree that Rasier
Pacific’s provision of the Uber Services creates a legal and direct business relationship
between Rasier Pacific and you. You also acknowledge and agree that Uber’s licence
to you of the Driver App creates a legal and direct business relationship between Uber
and you. Neither Rasier Pacific nor Uber shall be deemed to direct or control you
generally or in your performance under this Agreement, including in connection with
your provision of Transportation Services, your acts or omissions, or your operation
and maintenance of your vehicle. Except as expressly set out herein, you retain the
sole right to determine when and for how long you will utilise the Driver App or the
Uber Services. You alone decide when, where and for how long you want to use the
Driver App, and when to try to accept, decline or ignore a User request. A User
request can be cancelled, subject to Uber’s then-current policies (including the
Community Guidelines located at www.uber.com/legal/community-
guidelines/rides/anz-en/). You acknowledge and agree that you will not: (a) display
Rasier Pacific’s, Uber’s or any of their affiliates’ names, logos or colors on any
vehicle(s); or (b) wear a uniform or any other clothing displaying Rasier Pacific’s,
Uber’s or any of their affiliates’ names, logos or colors, unless you and Rasier Pacific
or Uber (as applicable) have agreed otherwise or if so required by law. You retain the
complete right to engage in other business or income generating activities, and to use
other ridesharing networks and apps in addition to the Uber Services and the Driver
App. Rasier Pacific retains the right to, at any time at its sole discretion, restrict you
from using the Uber Services in the event of a violation of this Agreement or any
relevant Uber policy, your disparagement of Rasier Pacific, Uber or any of their
affiliates, or your act or omission that causes harm to Rasier Pacific’s, Uber’s or their
affiliates’ brand, reputation or business as determined by Rasier Pacific in its sole
discretion Rasier Pacific also retains the right to restrict you from using the Uber
Services for any other reason at the sole and reasonable discretion of Rasier Pacific.
Uber retains the right to, at any time at its sole discretion, deactivate or otherwise
restrict you from accessing the identification and password key assigned to you by
[2019] FWC 4807
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Uber (“Driver ID”) and/or the Driver App, in the event of a violation of this
Agreement, any relevant Uber policy, including the Community Guidelines or the
Uber Privacy Policy (located at privacy.uber.com/policy/), your disparagement of
Rasier Pacific, Uber or any of their affiliates, your act or omission that causes harm to
Rasier Pacific’s, Uber’s or their affiliates’ brand, reputation or business as determined
by Uber in its sole discretion. Uber also retains the right to deactivate or otherwise
restrict you from accessing the Driver ID and/or Driver App, for any other reason at
the sole and reasonable discretion of Uber.
[12] Clause 28 of the 2017 Services Agreement provides further information relevant to the
relationship between Drivers and the Respondent.
28. Relationship
28.1 Rasier Pacific is acting as the limited payment collection agent solely for the
purpose of collecting payment from Users on your behalf, except as otherwise
expressly provided herein. This Agreement is not an employment agreement,
and does not create an employment, independent contractor or worker
relationship (including from a labour law, tax law or social security law
perspective), joint venture, partnership or agency relationship. You have no
authority to bind Rasier Pacific, Uber and/or their affiliates, or hold yourself
out as an employee, independent contractor, worker, agent or authorized
representative of Rasier Pacific, Uber and/or their affiliates.
28.2 Where, by implication of mandatory law or otherwise, you may be deemed an
employee, agent or representative of Rasier Pacific, Uber or any of their
affiliates, you undertake and agree to indemnify, defend (at Rasier Pacific’s
and Uber’s option) and hold Rasier Pacific, Uber and any of their affiliates
harmless from and against any claims by any person, entity, regulators or
governmental authorities based on such implied employment, agency or
representative relationship. The indemnity set out in this clause 28.2, insofar
as it relates to a finding by a judicial body or legislative authority of competent
jurisdiction that there is an employment relationship between you and Rasier
Pacific, Uber or any of their affiliates, applies only to that proportion of Rasier
Pacific’s or Uber’s liability that directly or indirectly relates to you holding
yourself out to be an employee of Rasier Pacific or Uber or any of their
affiliates, or any other act or omission by you that is not expressly authorised
by Rasier Pacific or Uber and would reasonably suggest to a third party that
you are an employee of Rasier Pacific or Uber or any of their affiliates. You
expressly agree that where required or implied by applicable law or otherwise,
you may be deemed an employee, agent or representative of Rasier Pacific,
Uber or an Affiliate of Rasier Pacific or Uber, any payments made to you will
be taken to be inclusive of (i) superannuation contribution amounts; and (ii)
amounts equivalent to all taxes (including but not limited to income taxes)
payable by you in respect of those payments, in each case that Rasier Pacific or
Uber (or any of their affiliates) may otherwise be required to pay under
applicable law.
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Payments by Drivers to the Respondent
[13] Clause 10 of the 2017 Services Agreement provides the following:
Service Fee. In consideration of Rasier Pacific’s provision of the Uber Services to
you, you agree to pay Rasier Pacific a service fee on a per Transportation Services
transaction basis, which as at 1 December 2017, is calculated as a percentage of the
Fare Calculation ("Service Fee") (regardless of any Negotiated Fare). Rasier Pacific
will provide you with notice via email or via the Driver App, of the Service Fee that
applies to each Transportation Service that you provide. You acknowledge that, unless
regulations applicable to your Territory require otherwise, taxes (in particular GST)
will be calculated and charged on the Fare, and Rasier Pacific shall calculate the
Service Fee on an amount equal to the Fare Calculation plus the amount of such taxes
(in particular GST) that would be calculated on the amount of the Fare Calculation.
You acknowledge and agree that Rasier Pacific may, in its sole discretion: (i) adjust
the Service Fee; or (ii) introduce a new model to determine the Service Fee payable by
you. Rasier Pacific will provide you with at least 14 days' notice in the event of an
increase to the Service Fee under (i) above or the introduction of a new Service Fee
model under (ii) above. If either of these occurs, you have the right to terminate the
Agreement immediately, without notice. Continued use of the Uber Services after any
such change in the Service Fee calculation shall constitute your consent to such
change.
Insurance
[14] The 2017 Service Agreement details the motor insurance required by a Driver and the
provision of certain information in relation to insurance that must be provided to the
Respondent.
[15] In relation to workers’ compensation insurance clause 21.2 of the 2017 Service
Agreement states as follows:
In relation to the Transportation Services, you agree that you are not an employee, or a
worker or a deemed worker for the purposes of any workers compensation laws and
therefore acknowledge that Rasier Pacific and/or Uber do not, and are not required to,
maintain or provide you with workers’ compensation insurance or maintain other
occupational accident injury insurance on your behalf. You agree to maintain at your
cost during the term of this Agreement workers’ compensation insurance or other
occupational accident injury insurance (or the local equivalent) as required by any
applicable law in the Territory (provided that the foregoing shall have no impact on
the mutual understanding between you and Rasier Pacific and Uber that you are a self-
employed individual (including from a labour and social security perspective)) and
otherwise comply with all statutory workers compensation requirements. If permitted
by applicable law, you may choose to insure yourself against industrial injuries by
maintaining occupational accident insurance in place of workers’ compensation
insurance. Furthermore, if permitted by applicable law, you may choose not to insure
yourself against industrial injuries at all, but do so at your own risk.
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Termination of the Services Agreement
[16] The 2017 Services Agreement provides that a Driver or the Respondent can terminate
the Agreement without cause at any time on 30 days’ notice. The Agreement can be
terminated immediately for a material breach of the 2017 Services Agreement or in the event
of bankruptcy or similar event.
[17] Access to the Partner App can be deactivated by the Respondent for a violation of the
2017 Services Agreement or a breach of relevant Uber policies.
Mr Rajab Suliman’s experience
[18] Mr Rajab Suliman gave evidence in proceedings on his own behalf. Mr Suliman has
had access to the Partner App since August 2017. He says that he logged on to the Partner
App every day for 12 hours a day. Mr Suliman agreed that he decided when to log on and log
off. He chose where he was when he logged on. He agreed that he could (and did) reject
requests for trips.
[19] Mr Suliman said that Uber did log him off automatically after 12 hours and he could
not then log on for 8 hours as part of a fatigue management strategy.
[20] When Mr Suliman decided he wanted to be an Uber Driver he hired a car through a
car hire business. He accessed information on companies from whom he could hire a vehicle
via the “Uber Marketplace” website. He went to the Uber Marketplace as he was told by Uber
that if he did not have his own car (which he did not) he could rent one. His first rental
agreement was through Atlas Car & Truck Rental. Mr Suliman paid the rental car company
for the vehicle and paid any fuel costs himself.
[21] In renting the car Mr Suliman was required to produce his licence. The insurance for
the car was provided through the rental company. He says that all of the paperwork in relation
to the rental was sent to Uber.
[22] Mr Suliman said that each day he would log on to the Partner App and wait for a
request to come in. Mr Suliman said that when a request came through it did not show the
destination or the estimated time of the trip unless that time was greater than 40 minutes. He
would accept the request. Mr Suliman said he would not negotiate a fare as it was easier to
accept the Uber price. He said that if he was in control he would not have accepted some of
the requests that he did accept. Mr Suliman said he was not in control of payment for a trip as
this was done through the Uber Apps and cleaning or repairs to damage of his vehicle by a
Rider was organised through Uber.
[23] Mr Suliman said that he was in control of his car but that Uber was in control of
everything else.
[24] Mr Suliman said the only relationship he had with a Rider was in driving them from
point A to B safely and as the Rider directed.
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Mr Mogga Suliman’s experience
[25] Mr Mogga Suliman gave evidence in support of Mr Rajab Suliman (in addition to
representing Mr Rajab Suliman). He is an Uber Driver with access to the Partner App. He
agreed that he was not required to accept any trip requests that came through the Partner App.
[26] Mr Mogga Suliman said that, as a Driver, he decides when to use or not use the
Partner App. He said that he was also registered with another service (Didi) and that at times
he has been logged on to both the Uber and Didi Partner Apps at the same time. If he receives
a request through both Apps he decides which request to accept.
[27] Mr Mogga Suliman said that there is a three-way relationship between Uber, the
Driver and the Rider and that Uber has a business relationship with the Driver.
[28] Mr Mogga Suliman has also worked as a casual employee at Coles Supermarkets. He
agreed that in that role he was required to wear a uniform, could not work unless a shift was
specifically available, would normally be required to work until the end of his shift and could
not just walk away from his shift when he felt like it. He said however that he could advise
Coles he was available to work and could be picked up by any store to perform work.
Submissions
Uber
[29] Uber submits that the decisions in Kesaris and Pallage v Rasier Pacific Pty Ltd4
(Pallage) provide a thorough exploration of the issues relevant to the determination of its
jurisdictional objection to the application of Mr Suliman.
[30] Uber submits that there was no obligation on Mr Suliman to perform work and that
this is a missing critical piece from this case that is present in the work-wages bargain
indicative of an employment relationship.
[31] Uber submits that a consideration of the indicia on which the distinction between a
contractor and employee may be drawn does not support a finding that Mr Suliman is an
employee.
Mr Rajab Suliman
[32] Mr Suliman submits that Uber provides a transport service and that this was affirmed
in Kaseris.5
[33] Mr Suliman says that the decisions in Kesaris and Pallage can be distinguished from
the matter before me as in neither of those cases did the Applicants show that the
(then) Services Agreement was incorrect when considered in the context of how the Partner
App actually works. That is, the 2017 Services Agreement now applicable to Mr Suliman is
not reflective of the true operations of Uber and its relationship with him.
[34] Mr Suliman submits that “the ultimate question [for consideration in this matter] is
whether the worker is the servant of another in that other’s business…”6
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[35] Mr Suliman says that the obligation to perform work when it is demanded of an
employee (the work-wages bargain) is characteristic of permanent employment and not
employment generally. The relationship between Uber and a Driver he submits is more like
that of a causal employee as the Driver performs work as a servant of Uber with control
exerted over the employee through the Partner App but that there is no requirement to be
available at all times.
[36] Mr Suliman submits that a casual employee determines his or her own availability to
work and is not required to accept work when it is offered to them yet is still considered an
employee. He submits that a casual employee does not fit the requirements of the work-wages
bargain as identified in Kaseris yet is still an employee. Mr Suliman submits that, as an
Uber Driver the “work-wages bargain” between the Driver and Uber is not distinguishable
from that of a causal employee and as a Driver he is, therefore, an employee.
Consideration
[37] I do not agree with Mr Suliman’s submission that the arrangement he has with Uber is
no different to that of a casual employee. His characterisation of the work-wages bargain as
no more than if you work you will be paid but you are not required to work when you do not
want to (for a causal employee) is an overly simplistic characterisation of the relationship
between an employer and employee, when the employee is engaged on a casual basis. The
relationship between the Driver and Uber cannot be equated to that of a casual employee and
employer with the compulsion to perform work a key differentiator. Whilst it is true that
neither a casual employee nor an Uber Driver can be compelled to attend work (if the casual
employee refuses casual work offered or the Driver decides not to log on to the Partner App),
having attended work the casual employee can be compelled to work for the period present in
exchange for wages paid. Conversely the Driver, having logged on, cannot be compelled to
accept any requests that are sent to the Partner App. The failure of a casual employee to
provide services has consequences for the offer of future work whilst, for a Driver, there are
none as the Driver controls when and if they will accept a request. That they have refused a
request has no consequences for them.
[38] The option to attend work is not the totality of the work-wages bargain – it is that in
attending work there is a requirement to provide the services for which the casual employee is
engaged and seeks to be paid. The Uber Driver differs from a casual employee as the Driver,
having attended “work” (by logging on) is not required to offer any service.
[39] The obligations placed on Mr Suliman as a Driver are not akin to those of a casual
employee. The differences can be simply illustrated. Mr Mogga Suliman who is a Driver and
a casual employee of Coles has the ability to log off the Partner App and go and work a shift
at the supermarket as a casual employee that has been offered and accepted. Having
completed his casual shift Mr Mogga Suliman can log back on to the Partner App and accept
a request. He needs no permission from Uber for any interruption to the period he is logged
on or to take the shift at the supermarket. However, in attending work as a casual employee it
would be highly unlikely Mr Mogga Suliman could leave the workplace at a time of his own
choosing, pick up a Rider, deliver the Rider to their destination and then return to continue his
shift as a casual employee without any permission being sought or given by his supervisor at
the supermarket. His freedom to act whilst engaged as a casual employee is constrained in a
way not apparent whilst he is logged on to the Partner App.
[2019] FWC 4807
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[40] For these reasons it is not apparent that Mr Suliman was “a servant” of Uber as he
claims. He was not engaged in the work-wages bargain indicative of an employee – casual or
otherwise.
[41] I have further considered the traditional tests used to assist in determining if an
employee is a contractor or employee. That “test” is as articulated in Jiang Shen Cai trading
as French Accent v Michael Anthony Do Rozario7.
Exercise of control
[42] Uber says that it lacked any control over Mr Suliman. Mr Suliman chose when to log
on and off the Partner App, how long to remain logged on, where he physically located
himself when logging on and which requests to accept.
[43] Mr Suliman submits that the key element of an independent contractor relationship is
the autonomy given (in this case to the Driver) to operate a business with complete control but
that the Partner App removes control from drivers such as himself. He submits that Uber
stripped the autonomy from Drivers.
[44] Mr Suliman says that Uber controlled how long he logged on (through fatigue
management policy), the Partner App does not give him the capacity to independently make
decisions, the Partner App did not tell him the destination of a Rider such that he could not
make an independent judgement as to the profitability of a trip prior to accepting the trip and
he had no control over pricing as he was tied to the fee agreed between Uber and the Rider
and could not alter that fee.
[45] Mr Suliman suggests that each of these matters is indicative of the exercise of control
by Uber over him as a Driver.
[46] Mr Suliman further submits that “pre-scheduled trips” allow a Rider to pre-book
travel. When the time of the trip nears the Driver App automatically creates the request
without any input from the Rider – suggesting a direct relationship (and control) between
Uber and the Driver. On this Uber submits that the process for pre-scheduled trips is no
different to any other request from a Rider. There is no evidence before me to suggest any
particular or different type of operation form a trip booked in advance.
[47] I accept that Uber did exercise some control over the continuous hours Mr Suliman
could work and it did not allow him to assess for himself the profitability of any request sent
on the Partner App so that he might have full knowledge in deciding which requests to accept.
However, this should be balanced against the control Mr Suliman had as to when, where and
for how long he worked and whether he would accept a request or not when he was logged
on.
[48] I am not satisfied that Uber stripped all autonomy from Mr Suliman. Mr Suliman still
maintained some control of what he did as a Driver and when he did it. He did not have to
accept requests and at times did not although I do acknowledge that he was not aware of the
length of a trip and had little (if practically any) control over the fare charged. This does not
equate to, however, a high level of control.
[2019] FWC 4807
14
[49] An issue arose during the hearing as to what course of action was open to a Driver
against a Rider who caused “a mess” (i.e. vomiting or the like or causing damage) to the
inside of a Driver’s vehicle. Uber clearly offer a service that involves the recovery of some
payment from a Rider at particular rates that is then passed on to the Driver to pay for
cleaning and/or repairing damage. The evidence indicates, and I am satisfied, that the use of
this service provided by Uber is a free choice of the Driver who could, if they wished, take
alternative action through the courts to recover the cost of the damage to the vehicle from the
Rider. I consider that the decision to use the service offered by Uber is based on the
convenience of that service and the information Uber has of the Rider (who must be registered
on the Rider App) but its use is a choice and is not indicative of control by Uber of the Driver.
[50] Whilst there was some limited control by Uber of Mr Suliman that control was not
substantial. This does not weigh in favour of a finding that he was an employee.
Exclusivity
[51] Uber says that the evidence of Mr Moggi Suliman supports its submission that a
Driver could work for anyone they wished to at any time. Further, it submits that there was no
requirement on Mr Suliman to work exclusively for Uber. That he chose to do so was his
choice alone and could not be put at Uber’s insistence.
[52] Mr Suliman says it was his decision to drive only for Uber.
[53] I accept that Mr Suliman was not restricted to drive only for Uber. The evidence of
Mr Moggi Suliman is clear in this respect. Further, there was nothing in the 2017 Services
Agreement to restrict Mr Suliman from driving for anyone else or undertaking any other work
of his choosing.
[54] This does not weigh in favour of finding Mr Suliman was an employee.
Tools of trade
[55] Uber says that Mr Suliman provided his own car and was responsible for repairs,
maintenance and insurance.
[56] Mr Suliman says he sourced his car through Uber Marketplace and that he was
directed to that site by Uber when he first attended their premises.
[57] Whilst I accept that Mr Suliman leased/rented his vehicle through a company he found
on the Uber Marketplace website I accept that the Uber Marketplace was a service Uber
provided which was no more than a convenient co-listing of various car leasing/rental
companies. There is no evidence the companies listed were exclusive to Uber or that they had
any particular arrangement with Uber or that they were the only places from which a Driver
could lease a vehicle.
[58] Mr Suliman did not lease a vehicle from Uber and was not required to lease a vehicle
from any of those business listed on the Uber Marketplace website. He could have supplied
his own private vehicle or rented a vehicle elsewhere. I am satisfied that the rental agreement
Mr Suliman had for his vehicle was with the rental company and Uber was not a party to that
agreement and had no interest in the agreement beyond whether the vehicle met its
[2019] FWC 4807
15
requirements as set out in the Services Agreement applicable at the time including insurance.
That Mr Suliman had to present his licence when renting the vehicle is no more than the
requirement to rent a vehicle. That he had to provide documentation to Uber about the vehicle
I take to be no more than meeting the requirements of the relevant Services Agreement.
[59] My view is not altered by the arrangement of insurance for the vehicle through the
leasing company. This was a facet of the rental/lease agreement and, apart from insurance
being an Uber requirement to access the Partner App, there is no evidence Uber had anything
to do with the insurance offering.
[60] That Uber determined the standard of vehicle required does not mean it provided tools
of trade.
[61] My findings do not weigh in favour of finding Mr Suliman was an employee.
Subcontracting
[62] Mr Suliman said that he could not give anyone else access to his Partner App and in
this respect he could not subcontract or delegate his work with Uber. Whilst Uber suggested
there was no evidence that this was the case, I am satisfied that the Services Agreement, at
paragraph 15, does state that the Driver agrees “not to give the Partner App or any associated
data to anyone else”.
[63] This does strongly suggest that Mr Suliman could not give anyone else access to his
App without violating a term of the Services Agreement which suggests that he could not sub-
contract the work.
[64] This finding weighs slightly against the finding that Mr Suliman was a contractor.
Payment of wages
[65] Care needs to be taken in considering the indicia not to inadvertently re-title any
through shorthand and then respond to the incorrect question.
[66] This matter is not related to who generates invoices or sets the price for the work
performed but whether the person is “remunerated by periodic wage…or by reference to
completion of tasks”.8
[67] Mr Suliman was not paid a periodic wage. The evidence is that he was paid for each
completed task (i.e. delivery of a Rider to their destination). I accept that, in the main,
Mr Suliman did not set the amount he would be paid for each task. I am satisfied however that
he could, through Uber, negotiate a different payment amount for each trip but that the
ultimate discretion rested with Uber.
[68] Mr Suliman paid a service fee to Uber for the services provided by Uber.
[69] Mr Suliman was responsible for his own taxation arrangements.
[70] This weighs against a finding that Mr Suliman was an employee.
[2019] FWC 4807
16
Provision of paid leave
[71] Again, re-titling this as “access to leave” is to consider the wrong question.
[72] This matter relates to whether the “worker is provided with paid holidays or sick
leave,” not leave per se.
[73] Whilst I accept that Mr Suliman could log off the Partner App whenever he chose to
do so this cannot be equated to the provision of paid leave. He did not have access to paid
leave of any description.
[74] Mr Suliman suggested that the capacity to log off was akin to a casual employee who
was entitled to unpaid personal leave. I do not agree but, given what this indicium is about
paid leave, whether these are the same is not a matter I need to decide.
[75] My finding in relation to paid leave weighs against a finding that Mr Suliman is an
employee.
Conclusion
[76] My decision must be based on the evidence before me in relation to Mr Suliman’s
circumstances, the 2017 Services Agreement and the indicia considered as a whole.
[77] The indicia set out above do not lend themselves to a conclusion that Mr Suliman was
an employee of Uber. There is no single item which by itself supports a conclusion that
Mr Suliman was an employee and no group of indicia that could lead to this conclusion.
[78] A consideration of the apparent absence of the work-wages bargain in the relationship
between Mr Suliman and Uber does not support a conclusion that Mr Suliman was
“a servant” of Uber. Mr Suliman was not a casual employee of Uber and he could not
otherwise be found to be an employee. As I have found above there are essential elements of
the work-wages bargain that are not apparent in his relationship with Uber, even if the
comparison is undertaken with a casual employee.
[79] The 2017 Services Agreement is not indicative of an employment relationship and
I am not satisfied that Mr Suliman has demonstrated that the actual operations and
relationship between Uber, the Driver and Rider was any different to that set out in the
2017 Services Agreement. Mr Suliman has not shown substantial differences between the
2017 Services Agreement and the reality of his work. In this respect there is little difference
between the circumstances in this case and those considered in Kaseris and Pallage.
[80] I agree with Mr Suliman that there was a business relationship between himself as a
Driver and Uber, but the existence of a business relationship does not create an employment
relationship.
[81] Section 382(a) of the FW Act provides that an employee is protected from unfair
dismissal if “the person is an employee…” and various other conditions are met. An employee
is defined in s.13 of the FW Act as an individual in so far as he or she is employed or usually
employed by a national system employer. For the reasons set out herein I conclude that
[2019] FWC 4807
17
Mr Suliman is not an employee within the meaning of s.382(a) of the FW Act. He therefore
cannot have been dismissed from employment.
[82] Mr Suliman was not an employee of Uber or of Rasier Pacific. For this reason he is
not be protected from unfair dismissal.
[83] The jurisdictional objection of the Respondent is made out and the application of
Mr Suliman must therefore be dismissed.
[84] An order9 giving effect to my decision will issue with his decision.
COMMISSIONER
Appearances:
M. Suliman for the Applicant.
C. Loughlin for the Respondent.
Hearing details:
2019.
Melbourne:
June 28.
Printed by authority of the Commonwealth Government Printer
PR710199
Endnotes:
1 O’Connor and others v Uber Technologies, Inc., 82 F. Supp. 3d, 1133 (N.D. Cal. 2015) cited in Kaseris v Rasier Pacific
V.O.F [2017] FWC 6610.
2 [2017] FWC 6610.
3 Exhibit R1, attachment 2. This is the latest Services Agreement accepted by Mr Suliman although he did commence his
engagement with Uber under an earlier Services Agreement.
4 [2018] FWC 2579.
5 [2017] FWC 6610 at [5].
6 See Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307 at [30] (1).
7 [2011] FWAFB 8307 at [29]-[30].
8 Jian Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307 at [30] (4).
9 PR710256.
THE FAIR WORK MMISSION THE SEAL
