Gig economy companies have come under fire for classifying workers as independent contractors with some government agencies ruling they are actually employees. A decision in Australia, however, went the other way.
Uber driver Michael Kaseris was found to be an independent contractor, according to a ruling last month by Val Gostencnik, deputy president of the Fair Work Commission.
The move comes as Uber faced continuing litigation over the independent contractors status of drivers in the US, and the company is appealing a UK ruling that the drivers were employees.
Kaseris claimed unfair dismissal by Uber; he had been let go in August 2017 because of failure to maintain an adequate driver rating, according to Fair Work Commission documents. However, Gostencik ruled Kaseris was not protected from unfair dismissal because he was an independent contractor.
The ruling found that Uber did not owe Kaseris any legal obligation other than to provide access to its app and remit fares and cancelation fees to Kaseris. This alone was enough to find he was an independent contractor, according to the ruling. Still, other indications also pointed to an independent contractor agreement, including: Kaseris could work as much or as little as he liked, was free to choose how to operate and maintain his vehicle, and provided his own equipment.
However, Gostencik noted that the notions for determining whether a worker is an independent contractor were developed before the gig economy.
“These notions take little or no account of revenue generation and revenue sharing as between participants, relative bargaining power, or the extent to which parties are captive of each other, in the sense of possessing realistic alternative pursuits or engaging in competition,” Gostencik wrote.
“Perhaps the law of employment will evolve to catch pace with the evolving nature of the digital economy,” he wrote. “Perhaps the legislature will develop laws to refine traditional notions of employment or broaden protection to participants in the digital economy. But until then, the traditional available tests of employment will continue to be applied.”