DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janaka Namal Pallage
v
Rasier Pacific Pty Ltd
(U2017/13448)

Application for an unfair dismissal remedy.

[1] A jurisdictional objection to the continuation of an unfair dismissal application by an Uber driver, Mr Janaka Pallage, was heard and determined by me on Friday 4 May 2018. At the conclusion of the hearing I informed the parties that I was not satisfied that Mr Pallage was an employee for the purposes of s.380 of the Fair Work Act 2009 (Cth) (the Act) and that I would dismiss his application for want of jurisdiction. I advised the parties that my reasons for doing so would be provided to them within a week. These are my reasons for decision.

[2] On 19 December 2017 Mr Pallage applied for an unfair dismissal remedy following the deactivation of his capacity to work as an Uber driver in Melbourne, which had taken place on 4 December 2017.

[3] The application made by Mr Pallage refers to the Respondent as being either “Uber” or “Uber Australia” with the ABN/ACN being “don’t know”. Mr Pallage’s relationship with Uber started on 25 July 2016, and his first trip was undertaken on 27 July 2016. 1 The relationship he entered into was with a partnership registered in the Netherlands by the name of Rasier Pacific V.O.F.2 On 1 December 2017, that relationship changed to being one between Mr Pallage and jointly of Rasier Pacific Pty Ltd (Rasier Pacific), an Australian company, and Uber BV (Uber), a Netherlands company.3

[4] After being satisfied it was appropriate to do so, I amended the name of the Respondent in Mr Pallage’s application to Rasier Pacific Pty Ltd, pursuant to s.586(a) of the Act, which deals with the capacity of the Commission to correct or amend applications and other documents. An order to that effect was issued on 7 May 2018. 4

[5] The original response to Mr Pallage’s application by Rasier Pacific Pty Ltd and it’s later submissions to the Commission indicated an objection to the continuation of Mr Pallage’s application for the reason that while Mr Pallage had entered into a Services Agreement (the Agreement) with Rasier Pacific Pty Ltd, the nature of that relationship was one of independent contractor, and not of employment. 5

[6] Following an unsuccessful conciliation of the matter Mr Pallage’s application was listed for determination of the objections raised against the continuation of his application. In the usual manner the Respondent was directed to file the material upon which it relied by 16 April 2018 and Mr Pallage was required to file the material upon which he relied by 26 April 2018.

[7] Mr Pallage appeared in these proceedings on his own behalf, and Rasier Pacific Pty Ltd was represented by Cameron Loughlin, a solicitor employed by Uber Pty Ltd on the basis of me accepting his representation that Rasier Pacific Pty Ltd had no employees and that the two companies were associated entities.

[8] The material filed by Rasier Pacific Pty Ltd submits that Mr Pallage was a party to a succession of Services Agreements, most recently between it and Uber BV, and earlier with Rasier Pacific V.O.F, with those agreements being operative between 25 July 2016 and 4 December 2017.

[9] In relation to whether Mr Pallage was an employee of Rasier Pacific Pty Ltd, or any other entity, Rasier Pacific Pty Ltd relies upon the things done at the time the original arrangement with Mr Pallage was entered into in 2016. Mr Pallage entered into a formal Services Agreement with Rasier Pacific V.O.F and activated an account in the Uber Partner App (Partner App) which would then enable him to commence driving. Rasier Pacific Pty Ltd puts forward that in order to activate and maintain his Partner App account Mr Pallage needed to provide certain identification and accreditation documentation, together with information about the vehicle he would be using, as well as his consent for a criminal history check to be undertaken.

[10] Mr Pallage successfully activated his Partner App account and proceeded to “login and accept trip requests”. The practical effect of this appears to be that it is said Mr Pallage would logon to the App in a particular area, see what work was available and, if he wanted, accept trip requests being made independently by customers.

[11] The material provided by the Respondent in this matter shows that there were many occasions, in the hundreds if not the thousands between July 2016 and December 2017, where Mr Pallage logged on and became available to accept trip requests or not. While Mr Pallage does not accept the material as accurately showing how or when he worked, or that that he refused 3,687 trip requests in the period, I have no reason to believe the company’s calculations of the individual trips are other than accurate.

[12] Rasier Pacific Pty Ltd also notes that, as a result of the Services Agreements invoices were issued on behalf of Mr Pallage to customers. From 18 July 2017 the invoices identified GST payable in connection with the trips. Likewise the Respondent or related entities collected fares and cancellation fees from customers and remitted payments to Mr Pallage after deduction of the service fee. The Respondent also notes that at any time or duration of his choosing Mr Pallage was able to log into and out of the Partner App and was able to accept or not accept requests for trips. It then puts forward that it terminated the Services Agreement in accordance with its provisions.

[13] The material provided to the Commission by Mr Pallage as well as his evidence on these matters does not directly contradict the matters put forward for consideration by the Respondent. In fact the material provided by the Applicant deals primarily with what he perceives to be the unfairness and injustice associated with his circumstances.

[14] In relation to whether Mr Pallage was an employee of Rasier Pacific Pty Ltd, the Respondent submitted that the nature of the Services Agreement between it and Mr Pallage was such that he was not an employee and that his circumstances are indistinguishable from those of the applicant in the matter determined by Deputy President Gostencnik in Kaseris v Rasier Pacific V.O.F 6 (Kaseris). In Kaseris the Deputy President dismissed an application for unfair dismissal for reason that the relationship with the Applicant in that matter did not contain the indicia of an employment relationship. The Respondent argues there is no relevant distinction between the facts of the two matters.7 While their submissions on the subject were unclear, the Respondent appeared to be arguing that for reasons of comity that the Commission as presently constituted should view that decision as standing for the authority that Uber drivers generally are not employees. In this regard, it argued that absent plainly distinguishable circumstances, comity predisposed an application of already decided authority; per Re Construction, Forestry, Mining and Energy Union [2013] FWC 2748, [49]; CEPU v Kentz (Australia) Pty Ltd [2016] FWC 718, [29]. Such amounts to a submission that I should follow Kaseris as applying in this case without the need for detailed enquiry into Mr Pallage’s circumstances.

[15] Such submission however, overlooks the need to test Mr Pallage’s case, as presented to the Commission, against his assertion that he was an employee, and Rasier Pacific Pty Ltd’s assertion that he was not.

[16] The Respondent’s case to some extent appears to rest on the proposition referred to within Kaseris of an essentially tenuous relationship between the parties in that matter, which reduced Rasier Pacific V.O.F’s obligation to merely providing access to the Partner App and then to remit payments. 8 Within the overall context of Kaseris, it is doubtful there was an intention to suggest that this was such a tenuous relationship that there could never be a possibility of entertaining a claim of employment, leading subsequently to the automatic dismissal of the mater. Such would be wholly counter-intuitive to the facts then before the Commission, as well as greatly under-representing the analysis conducted therein.

[17] While it may be valid to view the Commission and Court precedents on the matter of classification of employment as involving a dichotomy only between employee and independent contractor, and one that because of its limited prism does not countenance alternatives, Kaseris was settled in accordance with established precedent on the dichotomy.

[18] In any event, the evidence before the Commission is that there was a relationship of some magnitude between the parties in this matter. In the 14 months of their relationship, Mr Pallage was offered 10,597 trips, declined 3,403 trips and completed 3,857 trips. In that time he spent 136,813 minutes on-line and 87,291 minutes active, 9 equal to 1,454 hours of activity. In perspective, an employee working 38 hours per week for 48 weeks would work 1,824 hours. For the purposes of illustration only, if Mr Pallage had logged on and worked every day between 27 July 2016 and 4 December 2017 (and I do not suggest he did; the comment is for the purposes of illustration) he would have averaged more than seven completed trips each day. This was not an insubstantial or tenuous relationship.

[19] The path to be followed therefore is through consideration of Mr Pallage’s case against the factors that were also at the heart of the reasoning within Kaseris – a careful and measured application of the well settled principles for determination of whether a person may be held to be an employee.

[20] The Commission’s approach, following the Courts on the matter, is to apply a multifactorial approach to determination of whether a person is subject to a contract of employment or contract of services. The Full Bench most recently set out the relevant principles in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 10 (French Accent). In that decision the Full Bench explicitly continued earlier reasoning on such determinations with its reference to Abdalla v Viewdaze Pty Ltd:11

“[18] We endorse the proposition in sub-paragraph (1) of the Abdalla summary, based on the High Court authorities, that:

“... the ultimate question will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf 12: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own13. This question is answered by considering the terms of the contract and the totality of the relationship14.””15 (references in original)

[21] In assessing this question, the Commission will take account of the nature of the work performed and the manner in which it is performed. It will consider the terms and terminology of the contract between the parties. It will also give consideration to the various indicia drawn from authorities to guide a decision. A consideration of those indicia informed by the context of the nature of the work performed and the terms of the contract may point overwhelmingly one way or another and a determination should then be in accordance with that result:

“…. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. …” 16

[22] Remaining uncertainty may then require resolution through consideration of the terms of the parties’ documented agreement, or principles of vicarious liability. 17

Nature of the work performed and the manner in which it is performed.

[23] Amongst other things and as preliminaries to the performance of work as well as for its continuation, Mr Pallage was required to be eligible to provide passenger transportation services by way of the Partner App. The Partner App enabled him to both activate his account and accept trip requests or not. He then needed to undertake the trip required by a customer and conclude it in the Partner App in order to elicit payment. 18 In all these things he would provide transportation services with him being bound to do so “with due skill, care and diligence” and being obliged to “maintain high standards of professionalism, service and courtesy”. In doing so, he had to:

“… meet the then-current Rasier Pacific requirements for a vehicle to provide the Transportation Services and must be authorised by Rasier Pacific for this use, be properly registered, licensed and generally suitable to operate as a passenger transportation vehicle in your Territory, either owned or leased by you or otherwise in your lawful possession, kept in a clean and sanitary condition, and maintained in good operating condition consistent with industry safety and maintenance standards for a vehicle of its kind and any additional standards or requirements in the applicable Territory.” 19

[24] The evidence allows findings generally that the work of Mr Pallage was performed in the vehicle he owned, often alone, with customers having the capacity to not only rate his performance, but to complain about it if they saw a need. In overall context, the work he performed for Rasier Pacific Pty Ltd was the work of transporting customers. That matter was addressed in Kaseris, wherein it was found:

“[5] Uber commenced its operations in approximately 2010 and is now one of the most widely used means of private transportation across the globe. Uber is the trademark name for the software application which is more popularly known as the “Uber App”. The Respondent describes Uber as a technology based business premised on supplying lead-generation software and is in no way affiliated with providing transport services in Australia. Respectfully, the distinction drawn by the Respondent is one that is in reality, without a difference. Whilst it may be correct that the Respondent does not directly provide transport services in Australia, it and the technology upon which its business is based facilitate the provision of transport services. Moreover, it generates its revenue directly as a consequence of the transport services provided by drivers to members of the public who are brought together by the Uber App. To quote from a recent United States District Court decision concerning a similar issue to this application:

“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.” 20” (italics and references in Kaseris)

[25] Consideration of the work actually performed by Mr Pallage informs a finding that the character of the relationship between him and the Respondent, however framed or desired by Rasier Pacific Pty Ltd, is not about the development or use of technology, but the provision of transportation services. Certainly Uber’s technology may be an aide to the provision of those services, or may make the provision of those services better or more profitable, however the technology has no purpose without the provision of transportation services by people such as Mr Pallage.

[26] Consideration of the work performed by Mr Pallage and the manner in which it was performed leads to the conclusion of it being relatively high volume, largely unskilled and performed alone with customers. He did not bring anything especially entrepreneurial to the arrangement, merely the provision of things such as his time and his car to deliver a homogenous transportation service to the customer who might rate his performance at the end of the trip, but more often than not did not do so. 21 In their volume it is more likely than not that any one trip was indistinguishable to either Mr Pallage or the customer from the other 7 or 10 trips he did each day. The situation of Mr Pallage’s work and the manner in which it was performed is analogous to that seen by the High Court in Hollis v Vabu Pty Ltd T/A Crisis Couriers:

“In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu’s business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees.

First, these couriers were not providing skilled labour or labour which required special qualifications. A bicycle courier is unable to make an independent career as a free-lancer or to generate any ‘‘goodwill’’ as a bicycle courier. The notion that the couriers somehow were running their own enterprise is intuitively unsound, and denied by the facts disclosed in the record.” 22

[27] The usefulness of this reasoning to resolve the contractual dichotomy was confirmed by the Full Bench of the Australian Industrial Relations Commission in Abdalla v Viewdaze Pty Ltd, which said:

“We think it particularly significant that the joint judgment endorsed the proposition that ‘‘the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own’’’. In [47] their Honours dealt with the issue in the case before them by in essence asking whether, ‘‘viewed as a practical matter’’ the workers in question were ‘‘running their own business or enterprise’’ with ‘‘independence in the conduct of their operations’’” (reference omitted)  23

[28] Mr Pallage’s work and his work environment may be similarly cast to the observations in Hollis v Vabu. He sold rides to customers and was paid for them, along the way paying a fee for the services rendered by Rasier Pacific Pty Ltd and its associates. He may have been in business himself, but equally he may not. Consideration of his work and his work environment does not persuasively lead to a finding that he was.

Terms and terminology of the contract between the parties.

[29] The contract entered into by Mr Pallage records that it was the parties’ intention that there be a direct legal relationship between him and the passengers to whom he provided services. It also provided that there would be only a business relationship between him and the Respondent, and that “[n]either Rasier Pacific nor Uber shall be deemed to direct or control you generally or in your performance under this Agreement”. 24 The Agreement explicitly states that Mr Pallage is not an employee of the Respondent or Uber or any of its affiliates, and that he indemnifies the Respondent if it is found he is.25

[30] It is to be noted that the Services Agreement that applied to Mr Pallage’s engagement was given to him by the Respondent in July 2016. Associated with the Services Agreement was a Service Fee Addendum which specified the charges to be made by Rasier Pacific V.O.F for its efforts. The three Services Fee Addenda regulated the fee to be paid by Mr Pallage to the entities with whom he contracted for the provision of their services. The fee itself was constant at 25% of the fee for each trip request, save that GST was added on top of the fee from 18 July 2017.

[31] The Services Agreements provided for fare calculations to be provided for each trip, said to be a recommendation, with Mr Pallage and Rasier Pacific Pty being allowed to make adjustments in certain circumstances.

[32] These matters are relevant inasmuch as the enquiry to be conducted in matters such as this is a focus on the character of the contract between the parties, with it being said in French Accent that:

“(3) The terms and terminology of the contract are always important 26. However, the parties cannot alter the true nature of their relationship by putting a different label on it27. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole28: the parties cannot deem the relationship between themselves to be something it is not29. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract30.”31 (original references)

[33] This finding was informed by the Full Bench’s earlier considerations on the subject of the terms of contracts:

“[24] The benefits and protections enjoyed by employees may be seen as reflecting a social consensus, expressed in legislation, that workers who are properly characterised as employees should have the benefits and protections of superannuation, workers’ compensation insurance, sick leave, annual leave and award entitlements (and it is not to the point that other protections, for example unfair dismissal protection, have been more contentious in recent years).

[25] The FW Act imposes obligations on employers in relation to their “employees” and confers benefits and rights on “employees” without defining when a worker is an employee as distinct from an independent contractor. The definition of “employee” leaves it to the general law to supply that distinction. The nature of the established general law approach to distinguishing between employees and independent contractors may be seen as contributing to the problem precisely because the nature of the general law test is such that it does not admit a clear answer in every case. Once one adopts the position, as the general law has done, that the distinction is rooted in the objective character of the work relationship two things follow. First, the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract but some of which are less clear cut. Secondly, that character of a work relationship is what it is and cannot be changed simply because the parties agree to label it differently (unless, of course, the relationship is sufficiently ambiguous that a clear determination is not possible, the situation addressed by the Massey Proposition). That is a matter clearly recognised by the courts and tribunals.

[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan 32. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment. Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.”33 (reference and italics in original)

[34] These features of the contractual arrangements will be considered further after the characteristics of the contractual indicia have been explored.

The contractual indicia

[35] I make the following findings in relation to the relevant indicia. 34

Control

[36] I am satisfied that, as with the Applicant in Kaseris, Mr Pallage was able to choose when to log-in and log-off to/from the Partner App; that he had control over the hours he wanted to work; and that he was able to accept or refuse trip requests. There has been no endeavour by Mr Pallage to bring evidence to the Commission which shows that these generalities of his engagement were supervened in other actions on the part of the Respondent to control the method by which he worked.

[37] The material before the Commission in relation to matters of control resolve against Mr Pallage in this respect, with the available evidence suggesting that there was relatively weak control of him by the Respondent. Accordingly, consideration of this indicator resolves in favour of a finding that the arrangement between the parties was that of an independent contractor.

Performance of work for others

[38] The Commission’s attention was not drawn to any relevant prohibition upon the capacity of Mr Pallage to perform work for others. Mr Pallage’s evidence was unclear about whether he actually did perform other work; while it seems he did not, I put that uncertainty down to language difficulties, with him giving his evidence at least partly through an interpreter. I accept that there was no such prohibition and that accordingly, consideration of this criterion resolves in favour of Rasier Pacific Pty Ltd.

Separate place of work/advertising to the world

[39] There is no direct evidence before the Commission on this indicator and so it is a neutral consideration.

Equipment

[40] The evidence before the Commission is that Mr Pallage provided substantial equipment to the contract, principally in the form of a motor vehicle and less so in the form of a mobile phone with an attendant broadband connection. In order for the motor vehicle to be used it was required to be licenced, insured at the time of registration and certified as roadworthy before Mr Pallage was able to access the Partner App. It is to be noted that in Kaseris the Commission gave regard to the fact that the Services Agreement specified that the driver was not an employee or otherwise entitled to workers compensation. There is no evidence in this matter that would suggest a contrary arrangement in respect of Mr Pallage. Again, consideration of matters relating to equipment would resolve in favour of a finding that the relationship was more likely one of an independent contractor than that of an employee.

Delegation or subcontracting

[41] The overall evidence would lead to a conclusion that Mr Pallage was unable to delegate or subcontract any work obtained through the Partner App. Rasier Pacific Pty Ltd submitted that Victorian Government regulations prevented the delegation of work, but their submissions do not address the question of whether rides assigned through the Partner App could be delegated to other people, friends or associates or even employees of Mr Pallage for instance, who held the requisite Government license. While there may well be appropriate security, regulatory or other considerations why the work must be performed personally, the absence of the capacity to delegate or subcontract work obtained through the Partner App must lead to a finding that the arrangement is more consistent with an employment relationship than an independent contracting one.

Capacity to suspend or dismiss

[42] The evidence on this indicator is that the Services Agreement provides for mutual rights of termination. The last of the applicable Services Agreements, dated 1 December 2017 provides the following in respect of its termination;

“16. Term & Termination. This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and will continue until terminated by you, Rasier Pacific or Uber, which any party can do (a) without cause at any time on 30 days' prior written notice to the other parties; (b) immediately, without notice, for any other party's material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of any other party, or upon such other party's filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Rasier Pacific may restrict you from using the Uber Services and/or Uber may deactivate or otherwise restrict you from accessing or using the Driver ID and/or Driver App immediately, without notice, in the event you no longer qualify, under applicable law or the standards and policies of Rasier Pacific, Uber and their affiliates, to provide Transportation Services or to operate the vehicle, or as otherwise set out in this Agreement.”

[43] The evidence is that Rasier Pacific Pty Ltd terminated the Services Agreement immediately and without notice pursuant to part (b) of the above clause for conduct said to be a breach of Uber’s “community standards”. Mr Pallage believes that such conduct relates to two separate complaints made by customers about him. 35 In the absence of cogent evidence on the subject from the Respondent, whether or not those complaints (or any others it may have considered) may reasonably be said to have amounted to a “material breach” of the Services Agreement by Mr Pallage is unknown.

[44] It has been held on numerous occasions that the right of a principal to suspend or dismiss a person engaged, most pertinently in instances of misconduct, 36 is one of the features more suggestive of a contract of service, or employment, rather than a contract for services.37

[45] Accordingly, consideration of this criterion resolves in favour of Mr Pallage.

Whether an emanation of the business

[46] The Services Agreement requires that Mr Pallage neither display anything that would identify his vehicle as being an Uber vehicle or to wear a uniform or other clothing that might do the same. Consideration of this indicator weighs against a finding in Mr Pallage’s favour and instead is more consistent of what one would expect of an independent contractor.

Taxation

[47] The evidence plainly shows that persons taking trips in Mr Pallage’s vehicle were charged an amount which included a payment of GST, at least from July 2017. The evidence indicates that Mr Pallage was required to obtain an Australian Business Number (ABN), register for GST and remit all tax liabilities in accordance with the applicable law. There is no evidence before the Commission that any PAYG taxation payment was deducted by the Respondent and remitted to the Australia Taxation Office on behalf of Mr Pallage as one would expect with an employee. Therefore, consideration of this indicator also resolves against Mr Pallage and in favour of finding that the relationship was one of independent contractor.

Mode of remuneration

[48] The evidence before the Commission is plainly that Mr Pallage was not paid a periodic wage or salary and that such payments as he received were reference to the completion of tasks, being the acceptance of an undertaking of trip requests. Therefore consideration of this indicator resolves in favour of a finding that the relationship between the Respondent and Mr Pallage was closer to that of an independent contractor than of an employee.

Provision of holidays or sick leave

[49] There is no evidence that either forms of leave were available to Mr Pallage, and it is noted that the Services Agreement makes no reference to the subject. Of course, it is the case that a casual employee will not have direct access to paid leave and it is possible that a claim could be made by Mr Pallage that he was somehow a casual employee. However, such situation is not within the direct evidence before the Commission. On balance this indicator is a neutral consideration in my decision.

Profession, trade or distinct calling

[50] There is no direct evidence on these matters and so they are a neutral consideration in my decision.

Creation of goodwill or saleable assets

[51] There is no direct evidence on these matters and so they are a neutral consideration in my decision.

Business expenses

[52] Other than in relation to matters such as a vehicle loan and running costs and the maintenance of a mobile phone, there is no evidence before me of a persuasive nature in relation to this matter. It is unknown whether the costs associated with those things was an incidental or major proportion of Mr Pallage’s earnings. Accordingly, this indicator is also a neutral consideration in my decision.

[53] Having had regard to each of the indicia accepted by the Full Bench as included within the multifactorial test for determination of whether a person is an employee or independent contractor, it is evident that the weight of those indicators leads to the finding that Mr Pallage was not engaged as an employee, but instead as an independent contractor. Consideration of all but two of the indicators, delegation or subcontracting and capacity to suspend or dismiss, resolve against Mr Pallage. While elements of the contract itself appear more consistent with an employment relationships (for example, those dealing with termination), most do not. The nature of the work and its environment, in which unskilled work is performed, albeit alone, repetitively and over many engagements for the one principal also has some consistency, possibly greater consistency, with a finding of employment. Nonetheless, while noting the caution of the Full Bench to the effect that the overall assessment is not a mechanical exercise, that not all details are of equal weight or importance in any given situation and that instead it is a matter of the overall effect of the matter, I am satisfied that the indicators I have found in favour of Mr Pallage are not in this case of sufficient weight to displace the findings made against his interests.

[54] Accordingly, the finding must be made by me that Mr Pallage was not an employee within the meaning of Part 3 – 2 of the Act. It follows therefore that Mr Pallage was not at the relevant time a person protected from unfair dismissal and that his application for unfair dismissal remedy must be dismissed. An order to that effect is published separately to this decision.

COMMISSIONER

Appearances:

Mr Janaka Namal Pallage on his own behalf

Mr Cameron McLoughlin Employment Counsel, ANZ on behalf of the Respondent

Hearing details:

2018.

Melbourne:

4 May.

Printed by authority of the Commonwealth Government Printer

<PR606912>

 1   Exhibit R1, Witness Statement of Lucas Groenveld, [67] – [68].

 2   Exhibit R2, Respondent’s Bundle of Documents, Attachment 3, Services Agreement dated 23 December 2015.

 3   Ibid, Attachment 1, Services Agreement dated 1 December 2017.

 4   PR606840.

 5   Exhibit R3, Respondent’s Outline of Submissions, [2] – [3].

 6   [2017] FWC 6610.

 7   Exhibit R3, [17].

 8   [2017] FWC 6610, [51].

 9   Exhibit R2, Attachment 8.

 10   [2011] FWAFB 8307 at [10].

 11   (2003) 122 IR 215, [34].

 12   Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217 per Windeyer J approved by the majority in Hollis v Vabu (2001) 207 CLR 21 at para [40]; see also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb) at 37.3 per Wilson and Dawson JJ.

 13   Hollis v Vabu (2001) 207 CLR 21 at [47] and [58].

 14   Brodribb esp Mason J at 29.3.

 15   French Accent [2011] FWAFB 8307, [18].

 16   Ibid, [30] (5).

 17   Ibid, [30] (5) – (6).

 18   Exhibit R1, [14] – [16].

 19   Exhibit R2, Attachment 1, [6].

 20   O’Connor and others v Uber Technologies, Inc., 82 F. Supp. 3d, 1133 (N.D. Cal. 2015).

 21   Exhibit R2, Attachment 8, 1,521 trips out of 3,857 completed trips were rated, (39%).

 22   [2001] HCA 44, 106 IR 80, [47] – [48], per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.

 23   (2003) 122 IR 215, [33].

 24   Ibid, [4].

 25   Ibid, see, for example, [21.2], [22],[28].

 26   Brodribb per Wilson and Dawson at p.37.2.

 27   “The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck.” Re Porter (1989) 34 IR 179 at p. 184 per Gray J; Massey v Crown Life Insurance [1978] 2 All ER 576 at p. 579 per Lord Denning approved by the Privy Council in AMP v Chaplin (1978) 18 ALR 385 at p. 389.

 28   AMP v Chaplin (1978) 18 ALR 385 at 389.

 29   Hollis v Vabu (2001) 207 CLR 21 at para [58].

 30   AMP v Chaplin (1978) 18 ALR 385 at p. 394.

 31   [2011] FWAFB 8307, [30].

 32   (2010) 184 FCR 448 at [29]-[32].

 33   Ibid.

 34   Following the indicia set out in French Accent [2011] FWAFB 8307, [30] (4).

 35   Exhibit A1, Applicant’s Outline of Submissions.

 36   See, for example Zuijs v Wirth Bros Pty Ltd, (1955) 93 CLR 561, p.572, per Dixon CJ, Williams, Webb, Taylor JJ.

 37   Brodribb, p.36, per Wilson and Dawson JJ; see also, for example Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215, [34]; ACE Insurance Ltd v Trifunovski and Others [2013] FCAFC 3, 235 IR 115, [50], [63], [91].