The difference between an independent contractor and employee is not always black and white, as is evidenced in a recent Fair Work Ombudsman investigation into Uber Australia.
Following my recent blog regarding the difference between a contractor and an employee, the Fair Work Commission (FWC) has recently handed down a decision confirming that at least in the case before it, it was found that the Uber Eats driver was not an employee but rather an independent contractor.
The driver brought an application for unfair dismissal alleging she was employed by Uber on the basis that:
Uber Eats rejected that the driver was an employee on the basis that:
Commissioner Hampton considered previous decisions of the FWC dealing with the Uber business model and found on balance that the driver was an independent contractor and not an employee as:
As this case demonstrates, this is a complex area of the law and unfortunately there is no black and white answer.
Each case turns on its own facts and the legal position as to whether or not a person is a contractor or employee may not actually be known until a Court or Tribunal (or the Australian Taxation Office) makes a finding for that particular matter.
To make matters more complicated, if it is found that someone is legally designated incorrectly, then the employer (if that is what they are) may be liable for the employee's unpaid tax and superannuation or be liable for damages if they injure themselves.
We have been advising clients on this area of the law for more than 30 years and can advise parties as to their legal rights and obligations under existing or new arrangements and also advise businesses on how to best engage employees or contractors.
We have extensive experience in drafting these agreements to suit businesses and their requirements.
The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.