| [2019] FWC 4807 |
| FAIR WORK COMMISSION |
DECISION |
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.
[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.F 2 (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.
[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, 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.
[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 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:
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 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.
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.
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.
[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.
[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.
Uber
[29] Uber submits that the decisions in Kesaris and Pallage v Rasier Pacific Pty Ltd 4 (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
[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.
[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.
[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 Rozario 7.
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.
[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 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.
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.
[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 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 order 9 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>
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.
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.
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).