Uber drivers from Sydney, Melbourne launch legal action

The court will need to determine whether drivers are employees or independent contractors

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

The legal firm representing the drivers, Harmers Workplace Lawyers, are providing services on a pro-bono basis, and have enlisted the legal team that won a similar case against Uber in the UK.

The four drivers, two from Sydney and two from Melbourne, said Uber has breached the Fair Work Act by not keeping records of their employment and not providing pay slips.

As with a similar case in the UK, the court will need to determine whether drivers are employees or independent contractors, which is how they are currently classified by Uber.

A landmark Supreme Court ruling in the UK in March found that Uber drivers should be counted as workers, entitling them to basic worker rights such as holiday pay and national minimum wage.

On March 17, Uber announced all of its British drivers would be reclassified as workers, as opposed to contractors, guaranteeing them the minimum wage, as well as paid holiday leave, the pension and other conditions.

Harmers said the applicants were not seeking financial compensation as individuals. Instead, if successful the court would order a financial penalty to be paid for a breach of civil penalty provisions of the Fair Work Act.

The applicants would also ask the court to pay out any financial penalty to the Rideshare Driver Network, which represents thousands of Uber drivers across the country.

In recent months, several rulings overseas and in Australia have pushed back against the business models of gig economy platforms like Uber and Uber Eats, Deliveroo and Menulog.

On May 18, the FWC ruled in favour of a former Deliveroo rider, Diego Franco, finding he had been unfairly dismissed by the company in 2020.

By finding that the terms of work by Deliveroo were closer to employees than contractors, the ruling pushed against gig company practices that have avoided having to grant specific rights and entitlements like sick leave and guaranteed pay rates.

In Australia, Uber has so far won cases against drivers who have tried to claim rights as employees without legal representation. Last year, the company settled a case with a former Uber Eats driver who claimed she had been sacked following a late delivery.

Speaking in March, Transport Workers Union (TWU) national secretary Michael Kaine called on the Morrison government to take proactive steps against the global companies.

It should not be up to Uber to decide how few rights gig workers get. It is up to the Federal Government to act now and ensure delivery riders and rideshare drivers are not ripped off and are safe in their jobs, Kaine said.

Instead of allowing Uber to introduce static definitions on how they treat their workers, and choosing what bits of rights they will recognise, Australia must put in place a tribunal with full powers to regulate on gig workers’ rights, he said.

A spokesperson for Uber said it had received notice of the court matter on Friday and said the company would review it and respond.

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, the spokesperson said.

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, Harmer said.