South Australian Employment Tribunal Deputy President Steven Dolphin accepted that the arrangements between Pirot Pty Ltd t/a Blue Ribbon Passenger Services and its chauffeur pointed towards him working under a contract of service.
“[The chauffeur] was providing little more than his labour.
“I find that he was not working in his own business, but working within Blue Ribbon’s system and practices of work.
“Accordingly he was engaged in a contract of service with Blue Ribbon and as such is a worker pursuant to the [now-repealed Workers Rehabilitation and Compensation] Act,” he said.
He concluded the chauffeur operated within the “obedient milieu” set down by Blue Ribbon – it told him which vehicle to drive and where to pick up and drop off clients; it booked and allocated jobs through its systems or through the Uber system and it required him to complete worksheets each work day to record his jobs.
He worked under a regime under which there was no flat weekly fee or minimum hours and no set hours of work.
In addition to the 50% of income he paid to Blue Ribbon as part of the lease fee for the vehicle, the company also required its drivers to pay a shift fee of $6.50 to cover comprehensive car insurance and the Uber phone each time they leased a vehicle, the deputy president said.
The company also directed the chauffeur to sign up to Uber, with Blue Ribbon’s managing director’s son helping him to register and set up an account.
When driving for Blue Ribbon, the chauffeur was logged into Uber and electronic payments from customers were transferred from Uber to Blue Ribbon (the company’s director told the tribunal that 90% of its drivers’ work was obtained through Uber).
Blue Ribbon would retain 50% and the chauffeur would keep the other 50%.
The company also required the chauffeur to wear a black suit, white shirt, red tie and a name badge, while he handed out Blue Ribbon business cards when he was working.
Only a few factors suggested he was a contractor, including his tax arrangements, his payment for the vehicle’s cleaning and 50% of petrol or 100% of LPG costs, his holding of an ABN, and the employer’s failure to pay him
for leave or superannuation.
In reaching his decision, Deputy President Dolphin considered the system and work practices the chauffeur and Blue Ribbon operated under and looked at the authorities – the High Court rulings in Hollis v Vabu and Stevens v Brodribb – which adopted a broad approach to whether there is a contract of service.
University of Adelaide Professor of Law Andrew Stewart told Workplace Express that in the wake of cases involving Uber drivers in the UK (see Related Article) and South Africa, Deputy President Dolphin’s ruling won’t offer the ride-sharing service much comfort, as it indicates that courts and tribunals are prepared to prepared to look at the “underlying substance” of working arrangements.
He says that Uber relies on its contract that provides that drivers are not providing services to it – they simply run their own business and the service assists them.
But Uber might be vulnerable if courts and tribunals “look past” contractual descriptions and examine the substance of the relationship, Stewart says.