# Fair Work Commission decision holds that an Uber driver is NOT an employee



## Jack Malarkey

On 21 December 2017, a single member Fair Work Commission decision held that an Uber driver is NOT an employee under Australian law.

The case was Kaseris v Rasier Pacific VOF and involved a claim of unfair dismissal. The decision was that of Deputy President Gostencnik.

I suspect that litigation on this matter has some way to go and will ultimately end up in the High Court of Australia (or at least the Full Federal Court) in some form.

Here is a link to the full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc6610.htm.


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## Ben Hall

interesting reading, thank you very much Jack Malarkey.

I think this gives a good indication of what will happen to other claims of uber drivers being employees rather than contractors


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## Hugh G

Wrong date in paragraph 38...too many xmas drinks for proof reader ? ...

*[1] *Mr Michail Kaseris has applied under s.394 of the _Fair Work Act 2009_(the Act) for an unfair dismissal remedy*. On 29 August 2016, he entered into a services agreement*

*The relationship between the Applicant and the Respondent*

*[38] **On 29 August 2017, the Applicant entered into the Services Agreement with the Respondent.* The Applicant provided all of the mandated documentation to the Respondent including vehicle registration, insurance certificates and proof of identity. On 11 August 2017, the Respondent deactivated the Applicant's access to the Partner App


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## UberDriverAU

Ben Hall said:


> I think this gives a good indication of what will happen to other claims of uber drivers being employees rather than contractors


I wouldn't bet on it. Commissioners (and judges in general) can only rule on the points of disagreement and arguments presented to them. A better legal argument may have resulted in a different outcome. After a quick scan of the judgement, it seems to place undue consideration on the wording of the contract compared with recent rulings from higher courts. It also references older cases rather than these recent cases in it's reasoning, some of the more recent cases contain very detailed reviews of previous decisions and how the indicia used over time have changed. I wouldn't be surprised if this decision is overturned by higher courts, as long as a good enough legal argument is put forward.


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## Icecool

I don’t think this guy will take this matter to court . Just for the sake of keep driving for Uber . he dosen’t have or can’t afford a lawyer meaning he has to do his own work like submission and he need to a put a strong argument for this . If he loses the case he will need to pay for ubers expensive barristers and solicitors legal bill which is enough to make him bankrupt . While Uber on the other hand will hire the top solicitors and barristers to represent them as they got the money. The decision of the case just proved how strong Uber contract is .


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## UberDriverAU

Icecool said:


> The decision of the case just proved how strong Uber contract is .


No it doesn't, because our courts are happy to disregard contracts if they don't agree with reality. It proves how poor the application to the FWC was. My intial impression was the FWC looked at the contract to reveal the reality of the situation, rather than looking to the reality of the situation to reveal whether the contract should be ignored. The decision uses things like how taxes are arranged to support a view that an independent contractor arrangement exists, when higher courts have stated that this can be a consequence of how the stronger party chooses to characterise the relationship, especially when it's a "take it or leave it" proposition. There's no doubt that Uber gives drivers a "take it or leave it" proposition in a standard form contract, so accordingly such factors should be given less weight compared with parties that have equal bargaining positions (eg. two sole traders or similarly sized companies) have actually negotiated a contract.


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## Bandy

Jack Malarkey said:


> The decision was that of Deputy President Gostencnik


Gostencnik?
Kalanick?
Relative?
Patriotic?


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## Icecool

UberDriverAU said:


> No it doesn't, because our courts are happy to disregard contracts if they don't agree with reality. It proves how poor the application to the FWC was. My intial impression was the FWC looked at the contract to reveal the reality of the situation, rather than looking to the reality of the situation to reveal whether the contract should be ignored. The decision uses things like how taxes are arranged to support a view that an independent contractor arrangement exists, when higher courts have stated that this can be a consequence of how the stronger party chooses to characterise the relationship, especially when it's a "take it or leave it" proposition. There's no doubt that Uber gives drivers a "take it or leave it" proposition in a standard form contract, so accordingly such factors should be given less weight compared with parties that have equal bargaining positions (eg. two sole traders or similarly sized companies) have actually negotiated a contract.


Uber has gave a lot people an opportunity to earn an income . And a moron like this guy because he can't drive due to has a poor customer services or what ever that cause him to be deactivated. Seriously if he win this case then that the ends of how uber operate . If we are going to be treated as an employee then this guy wouldn't even be allow to drive for uber in the first place . As Uber will select only the qualify and experienced driver to drive for them . every body will be on a roasters and be strict to drive in a certain time , area . Just like a normal . None of this when you can log on or off anytime . Most of us are happy as how uber is operating it will be a tragedy to see one guy like this spoil it for the rest of us .


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## UberDriverAU

Icecool said:


> Uber has gave a lot people an opportunity to earn an income . And a moron like this guy because he can't drive due to has a poor customer services or what ever that cause him to be deactivated. Seriously if he win this case then that the ends of how uber operate . If we are going to be treated as an employee then this guy wouldn't even be allow to drive for uber in the first place . As Uber will select only the qualify and experienced driver to drive for them . every body will be on a roasters and be strict to drive in a certain time , area . Just like a normal . None of this when you can log on or off anytime . Most of us are happy as how uber is operating it will be a tragedy to see one guy like this spoil it for the rest of us .


If we are correctly classified as employees, then that is because Uber has setup their platform to treat us as such. The onus is on them to get it right, or face the consequences.

This is a flawed judgement in my opinion. It's concerning that Deputy President Gostencnik doesn't seem to understand the concept of casual employment:

From [53]
_Whether the worker is provided with paid holidays or sick leave._
_Whether the work involves a profession, trade or distinct calling on the part of the person engaged._ 

Such persons tend to be engaged as independent contractors rather than as employees.

...

It is also apparent that the Applicant is responsible for his own taxation affairs and does not accrue the usual concomitants of employment such as annual, sick and long service leave. The Respondent also does not make any superannuation contributions on behalf of or for the benefit of Drivers. These are matters which all point away from the existence of an employment relationship.​
Compare that with Justice Bromberg's reasons in On Call vs Commissioner of Taxation:

219. Whether or not income tax has been withheld and whether annual, long service or sick leave is afforded are often also used as relevant indicators: _Stevens v Brodribb _at 37; _Yaraka Holdings _at [44]-[48]. It is not incorrect to have regard to these factors, but there are differing views as to the inference which should be drawn from such arrangements: _Wesfarmers Federation Insurance _at [40]-[42]. Reliance on these factors may involve circularity of reasoning particularly where these factors are based upon the self-assessed and objectively incorrect label that the parties have attached to their relations: see _Hollis _at [37] and Owens and Riley at 140. Further, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: _Sgobino _at 293 and 308; _Yaraka Holdings _at [50];

295. I have already stated my reluctance to utilise the absence of deductions of income tax and the failure to provide leave as indicators of any utility because of the circularity of reasoning involved. Even if these indicators were to be put in the mix, the absence of these factors is a common feature of most casual contracts of service and thus no assistance in this case: _Sgobino_ at 308. Finally, the supply of equipment by interpreters was not a matter of any significance for most panel interpreters, although it was more significant in the case of translators working at home.
​


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## Icecool

UberDriverAU said:


> If we are correctly classified as employees, then that is because Uber has setup their platform to treat us as such. The onus is on them to get it right, or face the consequences.
> 
> This is a flawed judgement in my opinion. It's concerning that Deputy President Gostencnik doesn't seem to understand the concept of casual employment:
> 
> From [53]
> _Whether the worker is provided with paid holidays or sick leave._
> _Whether the work involves a profession, trade or distinct calling on the part of the person engaged._
> 
> Such persons tend to be engaged as independent contractors rather than as employees.
> 
> ...
> 
> It is also apparent that the Applicant is responsible for his own taxation affairs and does not accrue the usual concomitants of employment such as annual, sick and long service leave. The Respondent also does not make any superannuation contributions on behalf of or for the benefit of Drivers. These are matters which all point away from the existence of an employment relationship.​
> Compare that with Justice Bromberg's reasons in On Call vs Commissioner of Taxation:
> 
> 219. Whether or not income tax has been withheld and whether annual, long service or sick leave is afforded are often also used as relevant indicators: _Stevens v Brodribb _at 37; _Yaraka Holdings _at [44]-[48]. It is not incorrect to have regard to these factors, but there are differing views as to the inference which should be drawn from such arrangements: _Wesfarmers Federation Insurance _at [40]-[42]. Reliance on these factors may involve circularity of reasoning particularly where these factors are based upon the self-assessed and objectively incorrect label that the parties have attached to their relations: see _Hollis _at [37] and Owens and Riley at 140. Further, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: _Sgobino _at 293 and 308; _Yaraka Holdings _at [50];
> 
> 295. I have already stated my reluctance to utilise the absence of deductions of income tax and the failure to provide leave as indicators of any utility because of the circularity of reasoning involved. Even if these indicators were to be put in the mix, the absence of these factors is a common feature of most casual contracts of service and thus no assistance in this case: _Sgobino_ at 308. Finally, the supply of equipment by interpreters was not a matter of any significance for most panel interpreters, although it was more significant in the case of translators working at home.
> ​


I think the Australian law and the British law are not the same . This Uber driver dosen't have any pay legal representatives . You don't expect the judge to do the work of researching the cases for him do you ?. This is what call submission. As Uber got lawyers they find all the relevance court cases to support their claim . Finally I find Justice Bromberg saying that the supply of equipment is not significant. In our case our cars and phone are very significant without it we can't do the job . That's a strong indicator of being a contractor . Can a translator do the job without any equipment the answer is yes .
The Uber Drive must have big balls to go ahead with the court as this can be very expensive fir him . If he lose he need to pay for the Ubers lawyer this a risk I don't think he'll take . Sorry but this is a rich man's world .


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## UberDriverAU

Icecool said:


> Finally I find Justice Bromberg saying that the supply of equipment is not significant. In our case our cars and phone are very significant without it we can't do the job .


You haven't read ACE Insurance vs Trifunovski yet.


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## Icecool

UberDriverAU said:


> You haven't read ACE Insurance vs Trifunovski yet.


Maybe you should represent this guy if he goes to court since he can't afford a lawyer. Like I said I it's not the judges job to find these cases it is the Uber driver job . The judge make a decision on what is given to him . If it not there then you can't blame him for making that decision without it


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## UberDriverAU

Icecool said:


> Like I said I it's not the judges job to find these cases it is the Uber driver job . The judge make a decision on what is given to him . If it not there then you can't blame him for making that decision without it


Yes I agree with that, I disagree with your contention that using a car and phone are strong indicators of an independent contractor. Our courts say that where the equipment used can be used extensively for personal use and doesn't require specialised training, not much weight can be given to that indicia. Someone who owns and operates a 20T mobile crane is much more likely to be an independent contractor due to the specialised nature of the equipment.



Icecool said:


> The Uber Drive must have big balls to go ahead with the court as this can be very expensive fir him . If he lose he need to pay for the Ubers lawyer this a risk I don't think he'll take . Sorry but this is a rich man's world


As far as I know, the next step is the Full Bench of the FWC. Courts are one step beyond that.


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## Twitter

Icecool said:


> The judge make a decision on what is given to him . If it not there then you can't blame him for making that decision without it


It was not a judge that ruled on this case. The FWC (by delivering this disgrace) clearly turned a blind eye to rampant sham contracting abuse.

Courts around the world rule in favour of drivers beeing employees. Our legal system should not be ruling otherwise.

This driver is a fool and is going to spoil it for many. Hopfully the TWU union will pick this case in time.


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## UberDriverAU

Twitter said:


> This driver is a fool and is going to spoil it for many.


I doubt it. Unless everyone else runs the exact same case, he'll only have spoiled it for himself.


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## Icecool

Twitter said:


> It was not a judge that ruled on this case. The FWC (by delivering this disgrace) clearly turned a blind eye to rampant sham contracting abuse.
> 
> Courts around the world rule in favour of drivers beeing employees. Our legal system should not be ruling otherwise.
> 
> This driver is a fool and is going to spoil it for many. Hopfully the TWU union will pick this case in time.


Uber can only operate as it is . If every driver in this planet think this is a sham contract then why they still drive uber . If Nobody drive then no uber


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## BrisLegal

Twitter said:


> This driver is a fool and is going to spoil it for many.


Representing yourself maybe foolish under some circumstances, it depends on if he, indeed did represent himself for his own benefit or perhaps there was another reason he represented himself.

For the next & sebsequent legal matters against Uber for the _employment _argument, it certainly would be extremely advantageous to know what the respondent (Uber) was going to use as their arguments to validate their position. Now we know thanks to this plaintiff.

So perhaps he was asked to represent himself simply so as to extract the argument of the other party into the _playing field _so to speak. Its unlikely that he was recruited to defend himself for some larger cause, however I have heard of this tactic being used before. If so, he would have been handsomely compensated for his efforts 



UberDriverAU said:


> I doubt it. Unless everyone else runs the exact same case, he'll only have spoiled it for himself.


Exactly, a prudent litigator would examine this case with a microscope & find relevant case law to dispute each argument Uber has presented in this matter if they were going to litigate against Uber for a similar employment matter.

This failure actually makes the next case a lot easier to argue thanks to all the information we all now have regarding Ubers position on how they argued this case.

This issue was due to a supposed termination of employment dispute & thus the FWC was the cheapest avenue available to the driver (plaintiff) - other future matters might be better argued in a different arena such as state or federal courts.


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## Icecool

BrisLegal said:


> Representing yourself maybe foolish under some circumstances, it depends on if he, indeed did represent himself for his own benefit or perhaps there was another reason he represented himself.
> 
> For the next & sebsequent legal matters against Uber for the _employment _argument, it certainly would be extremely advantageous to know what the respondent (Uber) was going to use as their arguments to validate their position. Now we know thanks to this plaintiff.
> 
> So perhaps he was asked to represent himself simply so as to extract the argument of the other party into the _playing field _so to speak. Its unlikely that he was recruited to defend himself for some larger cause, however I have heard of this tactic being used before. If so, he would have been handsomely compensated for his efforts
> 
> Exactly, a prudent litigator would examine this case with a microscope & find relevant case law to dispute each argument Uber has presented in this matter if they were going to litigate against Uber for a similar employment matter.
> 
> This failure actually makes the next case a lot easier to argue thanks to all the information we all now have regarding Ubers position on how they argued this case.
> 
> This issue was due to a supposed termination of employment dispute & thus the FWC was the cheapest avenue available to the driver (plaintiff) - other future matters might be better argued in a different arena such as state or federal courts.


this driver might be a fool but at least he has the balls of taking his case to the FWC . We got so many know it all and law experts in this and none of them have the balls to take on uber only talk about it but no action . So I wouldn't worry about any future case . You have a better chance of an ex uber driver going to the taxi council and ask them to represent them in the court as they love to see uber die .


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## Twitter

UberDriverAU said:


> I doubt it. Unless everyone else runs the exact same case, he'll only have spoiled it for himself.


This case was a major first battle win for Uber and will have remofications re FWO investigation.

It feels like foul play, unless appealed and taken further. I find the fact Uber choose not to settle this case very Interesting.


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## Ben Hall

Twitter said:


> It feels like foul play


Why do you say that?



Twitter said:


> I find the fact Uber choose not to settle this case very Interesting.


Why would they settle? Judgement was in their favour


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## Twitter

Ben Hall said:


> Why do you say that?
> 
> Why would they settle? Judgement was in their favour


Uber settled a number of unfair dismissal cases before yet choose not to settle this one.

Uber drivers are found to be employees in courts around the world. Why would they think this case was clearly in thier favor?


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## Ben Hall

Why would they think this case was clearly in thier favor?

They did their research.
It seems that in the case featured in this thread the criteria used to decide employee/contractor status is used in all cases. A family member recently got a decision from the FWO regarding their status. They were found to be an employee using the same criteria.


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## Twitter

Ben Hall said:


> They did their research.


I am sure Uber did their research in the UK, Spain, and USA too, yet failed in a number of courts on the very same question, time and time again.

Why did Uber think this case will be different and choose not to settle? In a country like Australia, known for its tough IR laws?

It is unclear to me how long this driver was working for Uber and for how many weekly hours. Anyone knows?


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## Jack Malarkey

Twitter said:


> It is unclear to me how long this driver was working for Uber and for how many weekly hours. Anyone knows?


The reasons for decision suggest that the applicant was an Uber driver for just under one year from late August 2016 to early August 2017. There is no indication of how many hours he would drive each week.

Additional comment by Jack Malarkey:

The then Minister for Workplace Relations, Bill Shorten, gave some information about Mr Val Gostencnik's work background in the announcement of the latter's appointment as Director of the Fair Work Building Inspectorate:

"Deputy President Gostencnik is a highly experienced workplace relations lawyer and practitioner.

Prior to his recent appointment to the Fair Work Commission, he was a Partner at Corrs Chambers Westgarth for 12 years where he led the Workplace Relations practice group. Deputy President Gostencnik has over 30 years workplace relations experience, including having worked at a national construction and civil engineering company".

(http://www.billshorten.com.au/fair-work-appointments)

Deputy President Gostencnik's LinkedIn public profile provides further information: https://au.linkedin.com/in/val-gostencnik-90b4a526.


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## Twitter

Jack Malarkey said:


> The reasons for decision suggest that the applicant was an Uber driver for just under one year from late August 2016 to early August 2017. There is no indication of how many hours he would drive each week.
> 
> Additional comment by Jack Malarkey:
> 
> The then Minister for Workplace Relations, Bill Shorten, gave some information about Mr Val Gostencnik's work background in the announcement of the latter's appointment as Director of the Fair Work Building Inspectorate:
> 
> "Deputy President Gostencnik is a highly experienced workplace relations lawyer and practitioner.
> 
> Prior to his recent appointment to the Fair Work Commission, he was a Partner at Corrs Chambers Westgarth for 12 years where he led the Workplace Relations practice group. Deputy President Gostencnik has over 30 years workplace relations experience, including having worked at a national construction and civil engineering company".
> 
> (http://www.billshorten.com.au/fair-work-appointments)
> 
> Deputy President Gostencnik's LinkedIn public profile provides further information: https://au.linkedin.com/in/val-gostencnik-90b4a526.


It seems to me like somthing went terribly wrong in that "hearing".

Here's a good read:
https://www.cgw.com.au/publication/uber-drivers-employees-independent-contractors/


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## SolsUber101

Simple, Val took an Uber commision and handsome it was.


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## Bandy

Icecool said:


> Maybe you should represent this guy if he goes to court since he can't afford a lawyer. Like I said I it's not the judges job to find these cases it is the Uber driver job . The judge make a decision on what is given to him . If it not there then you can't blame him for making that decision without it


and that is the main reason it failed...


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## bluwhale

What about the Fair Work Ombudsman Investigation in Perth West Australia? Is this still ongoing?


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## Jack Malarkey

This afternoon, I had reason to look at the on-line application form for an ABN (short for Australian Business Number). Issuing ABNs is part of the responsibilities of the Australian Taxation Office.

Preliminary to completing the main part of the form, the applicant needs to confirm that they're carrying on a business or soon will be.

The key characteristics of carrying on a business, as listed on the form, caught my eye. I don't recall seeing anything in those terms when I applied for my own ABN back in November 2015.

The applicant needs to answer 'yes' to the following:

I meet a number of the key characteristics of a business, or will once started, eg:

I source my own clients
I can delegate my work to others if I choose
I invoice for my work and set my rate of pay
I have a bank account for the business separate from my own bank account
I am responsible for my own public liability, professional indemnity and/or workers compensation/income protection insurance
I have taken real steps to start my business, or
I am running an enterprise or
I am a Corporations Act company (Read more)









The first few listed characteristics are problematic in the context of rideshare driving.

Uber (and other) rideshare drivers don't source their own clients: Uber sources them via the app.

Uber drivers can't delegate their work to others if they choose. (They can, however, not accept a ride request on the basis of incomplete information such as the precise pickup point or the destination and the ride request is allocated to another driver to accept or decline.)

Uber drivers don't set their rate of pay. Uber determines the rates. (The driver under the contract may technically negotiate a lower rate with the rider. To give effect to such an agreement, the driver needs in practice to request a fare adjustment after the Uber-specified fare has been initially charged.)

Many Uber drivers would have a separate business bank account but I strongly suspect that a great many do not.

This whole topic becomes more interesting by the day.

Here's a link to the ABN application form: https://abr.gov.au/ABRWeb/Apply/Abn...ortantInformation&Target=AbnApply&pid=71&js=1.


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## Sleepo

I note in reading some of the links provided that there seemed to be a basis for some part of the decisions that if you drove for uber, you could not drive for someone else, now that competition is arriving all over the place, the fact that drivers make themselves available for several companies at the same time would to me seem a far more independent relationship is established


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## Skipper

Jack Malarkey said:


> This afternoon, I had reason to look at the on-line application form for an ABN (short for Australian Business Number). Issuing ABNs is part of the responsibilities of the Australian Taxation Office.
> 
> Preliminary to completing the main part of the form, the applicant needs to confirm that they're carrying on a business or soon will be.
> 
> The key characteristics of carrying on a business, as listed on the form, caught my eye. I don't recall seeing anything in those terms when I applied for my own ABN back in November 2015.
> 
> The applicant needs to answer 'yes' to the following:
> 
> I meet a number of the key characteristics of a business, or will once started, eg:
> 
> I source my own clients
> I can delegate my work to others if I choose
> I invoice for my work and set my rate of pay
> I have a bank account for the business separate from my own bank account
> I am responsible for my own public liability, professional indemnity and/or workers compensation/income protection insurance
> I have taken real steps to start my business, or
> I am running an enterprise or
> I am a Corporations Act company (Read more)
> 
> 
> 
> 
> 
> 
> 
> 
> 
> The first few listed characteristics are problematic in the context of rideshare driving.
> 
> Uber (and other) rideshare drivers don't source their own clients: Uber sources them via the app.
> 
> Uber drivers can't delegate their work to others if they choose. (They can, however, not accept a ride request on the basis of incomplete information such as the precise pickup point or the destination and the ride request is allocated to another driver to accept or decline.)
> 
> Uber drivers don't set their rate of pay. Uber determines the rates. (The driver under the contract may technically negotiate a lower rate with the rider. To give effect to such an agreement, the driver needs in practice to request a fare adjustment after the Uber-specified fare has been initially charged.)
> 
> Many Uber drivers would have a separate business bank account but I strongly suspect that a great many do not.
> 
> This whole topic becomes more interesting by the day.
> 
> Here's a link to the ABN application form: https://abr.gov.au/ABRWeb/Apply/Abn...ortantInformation&Target=AbnApply&pid=71&js=1.


I think you are 100% correct that this description of ABN requirements is contrary to Uber Driving but is only really a catch-all description. Other ATO rulings are much more explicit.


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## UberDriverAU

Jack Malarkey said:


> (The driver under the contract may technically negotiate a lower rate with the rider. To give effect to such an agreement, the driver needs in practice to request a fare adjustment after the Uber-specified fare has been initially charged.)


I have a documented instance of Uber refusing to lower a fare when I had network issues and couldn't end the trip when the customer got out.


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## Jack Malarkey

Skipper said:


> I think you are 100% correct that this description of ABN requirements is contrary to Uber Driving but is only really a catch-all description. Other ATO rulings are much more explicit.


Agreed, Skipper.



UberDriverAU said:


> I have a documented instance of Uber refusing to lower a fare when I had network issues and couldn't end the trip when the customer got out.


Thanks, UberDriverAU. I am aware of a case where Uber did charge a lower fare than that specified. It involved the removal of a surge component of the fare where driver and rider had agreed this should happen. Uber also reduced its service fee component accordingly.


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## Jack Malarkey

Here is an article by a large law firm about this case: https://www.lexology.com/library/detail.aspx?g=5890591d-6574-4ff7-afad-3e2a37d87830.


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## UberDriverAU

Jack Malarkey said:


> Here is an article by a large law firm about this case: https://www.lexology.com/library/detail.aspx?g=5890591d-6574-4ff7-afad-3e2a37d87830.


I'd be wary of putting any weight on the opinion in this article given they haven't done an extensive review of the case law to reach their opinion, and they even acknowledge that this issue is mostly "yet to be explored". The FWC judgement is flawed for a number of reasons, primarily because it gives too much weight to things that higher courts say should not be given much weight in such circumstances. A judgement by the Full Bench of the Federal Court of Australia has considerably more weight in stating what the law is than a decision by the Fair Work Commission (which isn't even a court, it's a tribunal).


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