# Uber drivers launch test case in Federal Court



## Jack Malarkey (Jan 11, 2016)

_Sydney Morning Herald_

*Uber drivers launch test case in Federal Court*

_Uber drivers want the court to determine if they and thousands of other gig workers are employees and not contractors.
www.google.com.au_


*Uber drivers launch test case in Federal Court*

By Anna Patty

August 2, 2021 — 5.00am

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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## Jack Malarkey (Jan 11, 2016)

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

This is extraordinarily high powered. There is no senior counsel in Australia better than Bret Walker SC.

And Sheryn Omeri (who is from Australia) is no legal slouch either, having had victory against Uber in the Supreme Court of the United Kingdom.


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## Jack Malarkey (Jan 11, 2016)

ABC Australia

Thursday 5 August 2021









High court rejects Federal Court decision that paved the way for casual leave entitlements


The High Court rejects a Federal Court ruling that a casual mining worker was entitled to leave entitlements. Bosses are celebrating the ruling, while unions say workers will miss out.




www.google.com.au






*Bosses win in High Court rejection of backpay for casuals, Uber and Deliveroo could too*

By business reporter Rhiana Whitson


_Businesses are the big winners in the High Court's overturning of a decision that could have paved the way for long-term casuals to get leave entitlements._

*Key points:*

Businesses are breathing a sigh of relief after the High Court rejected backpay for casuals
Unions say casuals have lost hard-fought gains won in the Federal Court
A legal expert says the High Court ruling could help Uber and Deliveroo fight off claims


The court's unanimous ruling on Wednesday found a casual mining worker was not entitled to backpay and leave entitlements.

Australian Chamber of Commerce and Industry acting CEO Jenny Lambert said the appeal judgement reinstated the common law practice around casual employment, including that the express terms of an employment contract are binding.

"The decision was a vindication for hundreds of thousands of employers who were thrown into distress and disarray by the early Federal Court decision," she said.

Last year the Federal Court ruled in favour of casual mine worker Robert Rossato's claim against labour hire company WorkPac.

The Federal Court said Mr Rossato, who worked on casual contracts with WorkPac for three and a half years, was a permanent worker with rights to backpay.

The landmark ruling was one of the drivers of the federal government's industrial law reforms this year, following fears employers would be forced to spend billions on backpaying casuals.

In upholding Workpac's appeal against the Federal Court's decision, the High Court said the "the contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment".

The judges found Mr Rossato's rosters for his work at the Glencore mine in Queensland did not establish a commitment between the parties to an ongoing working relationship after each assignment was completed.

*High Court decision could help Uber and Deliveroo *

University of Adelaide law professor Andrew Stewart said the High Court's ruling backed up the federal government's industrial law changes passed in March.

"Today's ruling confirms that you're a casual if the contract you've signed says you're a casual – not if the work you're doing is genuinely casual in nature," he said.

Mr Stewart expressed concern about the court's suggestion that the same approach should be taken in determining an issue of employment status.

"It's an open invitation to businesses to hire workers as independent contractors rather than employees – meaning they don't just miss out on annual leave, but minimum wages, limits on working hours, the right to complain of unfair dismissal, and maybe super and workers' compensation as well."

Mr Stewart said the High Court decision could help businesses like Uber and Deliveroo fight off challenges to their business models.


> "It will potentially open up new ways of cutting wages and working entitlements, when workers – and the economy – can least afford it."


CFMEU mining president Tony Maher said the decision was deeply disappointing for coal miners who were desperate for change in their industry.
"The Federal Court has twice upheld the commonsense principle that you can't be a so-called 'permanent casual,'" Mr Maher said.

"We encourage all coal miners to look carefully at any work contract they sign. Today's decision makes clear that the words in the contract matter more than the reality of your working conditions."


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## UberDriverAU (Nov 4, 2015)

Jack Malarkey said:


> ABC Australia
> 
> Thursday 5 August 2021
> 
> ...


To be honest, I'm not sure that case has much relevance to gig economy platforms. They are desperate for gig economy workers to be classified as independent contractors, whereas the issue in WorkPac vs Rossato was whether the worker was a casual employee or permanent employee. There was no disagreement over whether or not Mr Rossato was an employee, just the type of employee that he was. If gig economy workers were found to be casual employees, then that would open up minimum pay, super, vicarious liability, and workcover obligations that the platforms are desperate to avoid.


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## Jack Malarkey (Jan 11, 2016)

UberDriverAU said:


> To be honest, I'm not sure that case has much relevance to gig economy platforms. They are desperate for gig economy workers to be classified as independent contractors, whereas the issue in WorkPac vs Rossato was whether the worker was a casual employee or permanent employee. There was no disagreement over whether or not Mr Rossato was an employee, just the type of employee that he was. If gig economy workers were found to be casual employees, then that would open up minimum pay, super, vicarious liability, and workcover obligations that the platforms are desperate to avoid.


It was the emphasis on the contract as written plus observations by the High Court that a similar approach would be apt in the context of determining whether or not someone is an employee.


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## UberDriverAU (Nov 4, 2015)

Jack Malarkey said:


> It was the emphasis on the contract as written plus observations by the High Court that a similar approach would be apt in the context of determining whether or not someone is an employee.


If I recall correctly, the principles behind determining whether or not someone is an enployee are fairly settled. The High Court isn't just another court of appeal, and it would be unlikely they'd grant special leave to appeal such a case unless there was something particularly novel that required it's opinion, or a particularly bad judgement from the Full Federal Court that needed attention. The WorkPac case was essentially different in that regard because it could be fairly argued that Mr Rossato would be double dipping if he got paid out leave entitelments as well as leave loading. I don't see how any of the platforms could reference this judgement to argue someone isn't an employee, when existing case law says contracts by themselves carry no weight if the reality of the relationship is substantially different.


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## UberDriverAU (Nov 4, 2015)

Jack Malarkey said:


> It was the emphasis on the contract as written _plus observations by the High Court that a similar approach would be apt in the context of determining whether or not someone is an employee_.


Are you able to point out where the High Court suggested that?  I haven't thoroughly read the whole judgement, but I haven't spotted anything like that as yet.





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WorkPac Pty Ltd v Rossato [2021] HCA 23 (4 August 2021)






www6.austlii.edu.au


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## Jack Malarkey (Jan 11, 2016)

UberDriverAU said:


> Are you able to point out where the High Court suggested that?  I haven't thoroughly read the whole judgement, but I haven't spotted anything like that as yet.
> 
> 
> 
> ...


I’ll need to get back to you.


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## Jack Malarkey (Jan 11, 2016)

UberDriverAU said:


> Are you able to point out where the High Court suggested that?  I haven't thoroughly read the whole judgement, but I haven't spotted anything like that as yet.
> 
> 
> 
> ...


I should have made clear that I was relying on the ABC report of the case where it states:

‘_Mr Stewart expressed concern about the court’s suggestion that the same approach should be taken in determining an issue of employment status’._

After now examining the judgments in the case, I must observe that, if there is such a suggestion by the court, it’s stated with such exquisite subtlety that I cannot locate it.


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## Jack Malarkey (Jan 11, 2016)

UberDriverAU said:


> If gig economy workers were found to be casual employees, then that would open up minimum pay, super, vicarious liability, and workcover obligations that the platforms are desperate to avoid.


Plus state payroll tax and federal fringe benefits tax.


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## UberDriverAU (Nov 4, 2015)

Jack Malarkey said:


> Plus state payroll tax and federal fringe benefits tax. It's going to get very messy for Uber if drivers are ever held to be employees. Most likely casual employees I would suggest.


Yep, and there might be other things too that don't come readily to mind.


Jack Malarkey said:


> I should have made clear that I was relying on the ABC report of the case where it states:
> 
> ‘_Mr Stewart expressed concern about the court’s suggestion that the same approach should be taken in determining an issue of employment status’._
> 
> After now examining the judgments in the case, I must observe that, if there is such a suggestion by the court, it’s stated with such exquisite subtlety that I cannot locate it.


The court referenced _Hollis vs Vabu_ at 100 & 101, but only do address the submission by the CFMMEU it would seem.



[2021] HCA 23 said:


> Mr Petersen submitted that WorkPac's contention that the characterisation of Mr Rossato's employment depended entirely on the express or implied terms of the contracts was wrong on two grounds. First, authorities concerning the employee and contractor distinction, including _Hollis v Vabu Pty Ltd_*[116]*, consider the "totality of the relationship" between the parties. Further, Mr Petersen contended that _Doyle v Sydney Steel Co Ltd_*[117]* was authority for the proposition that the question of who is a casual worker depends on all the circumstances. These submissions may be dealt with seriatim.
> _Hollis v Vabu_ was concerned with whether a person was an employee or an independent contractor of another. On one view, the resolution of that question may depend upon the extent to which it can be shown that one party acts in the business of, and under the control and direction of, the other*[118]*. It should be borne in mind that the answer to that question affects the rights not only of the parties to the arrangement but also of third parties with whom they deal under its colours. As much is illustrated by _Hollis v Vabu _itself. There the ultimate issue was whether the appellant enjoyed rights against Vabu or merely against the hapless and impecunious courier. In contrast, the present case is concerned with the character of an employment relationship, a question the resolution of which has no significance for the rights of persons who are not privy to the relationship. The analysis in _Hollis v Vabu_ affords no assistance, even by analogy, in the resolution of a question as to the character of an employment relationship, where there is no reason to doubt that the terms of that relationship are committed comprehensively to the written agreements by which the parties have agreed to be bound.


It would seem to me that Mr Stewart has misread the court's analysis. The court is merely saying that the principles used to deal with employee/contractor status issues can't be used to determine whether a worker is a casual employee or permanent employee. If not for the CFMMEU's submission, I doubt it would have been mentioned at all.


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## Jack Malarkey (Jan 11, 2016)

*Thomson Geer, employment lawyers:*





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Navigating the fall-out from the High Court's ruling in Rossato


On 4 August 2021, the High Court of Australia handed down its much anticipated judgment in the matter of Workpac Pty Ltd v Rossato[1] (Rossato).




www.tglaw.com.au





*Navigating the fall-out from the High Court’s ruling in Rossato: Who is a casual employee?*

*Paul Ronfeldt and Lauren Townsend
13 August 2021*

Employment Disputes Employment PoliciesLegislation Update


The High Court has clarified the common law ‘test’ for determining whether an employee is a casual employee under the _Fair Work Act 2009_ (Cth) (FW Act) and it is significant, because it departs from the established case law. However, the decision’s impact is limited because the common law test has been supplanted by a new, statutory definition that applies retrospectively.

On 4 August 2021, the High Court of Australia handed down its much anticipated judgment in the matter of _Workpac Pty Ltd v Rossato_[1] (_Rossato_).

*Background: The decision under appeal*

The _Rossato_ decision is the result of an appeal by labour hire company WorkPac, from the Full Court of the Federal Court of Australia (FCAFC) decision[2] in 2020 that its employee, Mr Robert Rossato, was not a casual employee. Some key take-aways from that decision were:

the FCAFC re-affirmed[3] that a ‘true casual’ employee does not have a firm advance commitment as to the duration of their employment, or the days or hours on which they will work;
the majority of the court determined that the relevant time for determining whether the requisite ‘firm advance commitment’ existed was _the time when an offer of employment was made and accepted_, as well as matters ascertained from the employment relationship as a whole; and
WorkPac was not entitled to ‘set off’ the casual loading that had been paid to Mr Rossato, to satisfy the debts owed to him for unpaid NES leave entitlements.
*What the High Court said*

The High Court in _Rossato_ agreed with the FCFCA that, for employment to be casual, there must be no ‘firm advance commitment’ from the employer or employee as to the duration of the employee’s employment or the days (or hours) that the employee will work.

However, the High Court held that this is to be established principally by the express and enforceable terms of the employment contract agreed between the employer and the employee.

In other words, courts must look at the enforceable terms of the deal made by an employer and employee, at the time it was made, to determine whether the employee is a casual. That means that if the parties expressly agreed that the employee would be employed on a casual basis, the employee will be a casual, even if the employee works for a significant period of time on a regular and systematic basis.

*Intervening legislative changes in the FW Act*

Between the FCAFC the High Court decisions, the Federal Government passed amendments to the FW Act to clarify casual employee entitlements. Since 27 March 2021, the FW Act has expressly defined a ‘casual employee’ in new section 15A as someone who accepts an offer of employment made on the basis of no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. In determining whether there is no such firm advance commitment, the Act permits a consideration of _only_ whether:

the employer can elect to offer work and whether the person can elect to accept or reject work;
the employee will work only as required;
the employment is described as casual employment; and
the employee will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a Fair Work Act instrument.
The FW Act makes clear that these criteria can be considered only at the time of the offer and acceptance – i.e. when the contract is made (so, subsequent conduct may not be taken into account) and that the definition applies retrospectively to cover most employees unless a court has already ruled on whether or not they are casual.

The FW Act also includes a new section 545A, which permits courts to apply a casual loading paid to an employee who has been misclassified as casual in satisfaction of certain non-casual entitlements, in certain circumstances.

*So, what does this all mean?*

The new section 15A definition applies instead of the common law definition for most employees.
However, _Rossato _sheds some light on how employers should approach the characterisation of employees as casual or non-casual pursuant to the test set out in section 15A of the Act. In particular, _Rossato_:

reinforces the position under section 15A of the FW Act that the subsequent conduct of the parties after they enter into an employment contract (particularly where a casual employee is engaged for an extended period of time on a regular and systematic basis), will not prevent the employee from being considered to be a casual employee.For example, offering casual employees shifts in accordance with a roster set even months in advance will not render the employment ‘non-casual’ under section 15A of the FW Act.
(However, because of the casual conversion provisions in Division 4A of the National Employment Standards, casuals who have been engaged on that basis may need to be offered ongoing employment); and
confirms that, if an employment contract provides that a casual employee will be engaged under the contract for a specified duration of employment (for example, several months), that factor will not render the employment ‘non-casual’, especially where the contract provides an express right for the employer to vary the engagement and to even terminate it early on short notice.
That said, _Rossato_ clearly related to an employment relationship that was covered by written casual employment agreements and enterprise agreements throughout its life. It remains open under section 15A of the FW Act for an employee to argue that they ceased being a casual, if a material change in the employment relationship has occurred (such as the original written casual employment contract expiring and not being replaced by another written contract).

*Focus on the contract*

In this sense, _Rossato_ helps illustrate a point that has become more important since the enactment of section 15A: that it is important to have a carefully drafted employment agreement for casual employees and to ensure that it is renewed regularly as the circumstances require.

In light of the very significant developments in the regulation of casual employment over the last few months, especially via the changes to the FW Act, employers must ensure they understand the new laws and how they impact on their people practices and employment obligations, and take steps to ensure they are complying with the new requirements.

This work extends to ensuring the National Employment Standards casual conversion requirements are being complied with, ensuring that casual contracts for existing and new employees are in writing and drafted correctly, and understanding the implications of an employee having been misclassified as ‘casual’ under the new section 15A definition of causal employee.

*The High Court’s reinforcement of the prominence of contracts may also have implications for independent contractors and gig economy workers.

[Emphasis added]*

Please contact a member of the Employment, Workplace Relations and Safety Team if you would like assistance with any of these issues.

Authors
Paul Ronfeldt | Partner | +61 3 9020 5757| [email protected]
Lauren Townsend | Special Counsel | +61 3 8080 3773 | [email protected]

[1] _WorkPac v Rossato & Ors_ [2021] HCA 23.
[2] _WorkPac v Rossato _[2020] FCAFC 84
[3] Drawing on prior authority in _Hamzy v Tricon International Restaurants _(2001) 115 FCR 78 and _WorkPac v Skene _(2018) FCR 536.


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## UberDriverAU (Nov 4, 2015)

Jack Malarkey said:


> *Thomson Geer, employment lawyers:*
> 
> 
> 
> ...


Something has been bothering me about this judgement Jack, and I think I've figured out what it is. There has been much emphasis on the "prominence of the contract" in this case, and the reason why can be summed up in this little excerpt from the hearing transcript:



http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2021/84.html said:


> *KIEFEL CJ: *Mr Murdoch has argued this for his client and it is not suggested that the contract is a sham or that it does not reflect the bargain reached between the parties. You are not in a position to vary that position on behalf of his client.


In a employee misclassificatiom lawsuit such as this one launched in the Federal Court by Uber drivers, it's a given that it will be argued that the contract is a sham arrangement. The High Court certainly didn't place much prominence on the contract in _Hollis vs Vabu_, and the judgment in _WorkPac v Rossato_ certainly doesn't read as overturning the established principles used in _Hollis vs Vabu_.


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