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Uber drivers launch test case in Federal Court

By Anna Patty

A group of Uber drivers from Sydney and Melbourne have launched legal action in the Federal Court to determine whether they and thousands of other gig economy drivers are entitled to minimum rates of pay and other protections as employees.

Harmers Workplace Lawyers has enlisted Bret Walker, SC, and barrister Sheryn Omeri, who won a similar case against Uber in the UK.

The four drivers, two from Sydney and two from Melbourne, allege Uber has breached the Fair Work Act by not keeping records of their employment, and by not providing pay slips. The court will need to determine whether drivers are employees or independent contractors conducting their own business, as asserted by Uber.

Harmers, which is providing its services on a pro-bono basis, said the applicants were not seeking financial compensation as individuals, but the court could order a financial penalty to be paid for a breach of civil penalty provisions of the Fair Work Act. The applicants would ask the court to order that any financial penalty be paid to the Rideshare Driver Network, which represents thousands of Uber drivers across the country.

A spokeswoman for Uber said it had received notice of the court matter on Friday. “We will review it and respond in due course,” she said. “Australian courts and tribunals, including the Fair Work Commission, have consistently and repeatedly found that driver-partners using the Uber app are not employees of Uber.”

Uber has so far won cases in the commission against drivers who, without legal representation, had tried to claim rights as employees, and last year settled a case with a former Uber Eats driver Amita Gupta.

One of the litigants this time, Debra Weddall, who is president of the Rideshare Driver Network and has worked for Uber for five years, said she was fighting for the rights of all Uber drivers.

Ms Weddall, 63, of Melbourne, said while Uber claimed its drivers had the freedom to choose when and where they worked, this freedom was “illusory”.

“They are in control, not the drivers,” she said. “They decide when to give us jobs, and what kind they will be. They decide how much to charge, the rider pays Uber not us.

“They act just like a boss, which they are, and which makes us employees.”

Sydney Uber driver Malcolm Mackenzie, 59, who is also fighting the case, said he enjoyed driving for Uber but wanted the same rights and conditions enjoyed by other employees. He hoped the litigation would result in a more transparent process for drivers to resolve disputes with Uber.

Another litigant, Sayed Mabashir, 34, of Melbourne said he was deactivated from the Uber app in response to a rider complaint. He alleges he was unfairly sacked after not being given details of the complaint or an opportunity to defend himself after having completed more than 15,000 trips and getting consistently high ratings from his passengers.

Harmers principal Michael Harmer said his firm was seeking a full Federal Court decision that would guide Uber and other gig economy companies.

“What we need is a determination of the law at the highest level,” he said.

Ms Omeri and her colleague Jason Galbraith-Marten, QC, successfully argued that former London Uber drivers James Farrar and Yaseen Aslam were ‘workers’ entitled to rights including the minimum wage, holiday pay and whistleblower protection. Britain’s Supreme Court, equivalent to the Australian High Court delivered its judgement in February this year and found in favour of the Uber drivers.

The British ruling determined the Uber drivers were ultimately ‘workers’, who are entitled to some – but not all – of the employment rights that are afforded to employees. In Australia, workers are defined as either employees or independent contractors. A high level of control over a worker’s hours, pay and conditions usually suggest they are employees and not contractors.

Harmers will allege that Uber exercises a high level of control over drivers including when and where they work and how much they are paid. Uber can also deactivate drivers from its app if drivers decline to accept three journey requests in a row.

University of Adelaide professor of law Andrew Stewart said Uber was “highly vulnerable” to losing the argument that it only provided the technology which allowed drivers to run their own businesses.

“It is likely this case will be highly contested, both as to how Uber’s system actually works and the legal principles to be applied,” he said.

Professor Stewart said that since the Gupta case was settled, Uber had changed its contract arrangements for Uber Eats drivers to acknowledge they work for Uber, but as independent contractors and not as employees.

Separately, the High Court is considering two cases that do not involve gig workers, but which may be influential in determining whether a worker is deemed to be an employee or an independent contractor, based on their contract. Professor Stewart said that while the Uber drivers had a plausible claim, it was difficult to determine their prospects of success before knowing the outcome of the other High Court cases which he expected would be decided later this year.

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