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[4] After being satisfied it was appropriate to do so, I amended the name of the
Respondent in Mr Pallage’s application to Rasier Pacific Pty Ltd, pursuant to
s.586(a) of the Act, which deals with the capacity of the Commission to correct
or amend applications and other documents. An order to that effect was issued
on 7 May 2018. 4
[7] Mr Pallage appeared in these proceedings on his own behalf, and Rasier
Pacific Pty Ltd was represented by Cameron Loughlin, a solicitor employed by
Uber Pty Ltd on the basis of me accepting his representation that Rasier Pacific
Pty Ltd had no employees and that the two companies were associated entities.
[8] The material filed by Rasier Pacific Pty Ltd submits that Mr Pallage was a
party to a succession of Services Agreements, most recently between it and
Uber BV, and earlier with Rasier Pacific V.O.F, with those agreements being
operative between 25 July 2016 and 4 December 2017.
[10] Mr Pallage successfully activated his Partner App account and proceeded
to “login and accept trip requests”. The practical effect of this appears to be that
it is said Mr Pallage would logon to the App in a particular area, see what work
was available and, if he wanted, accept trip requests being made independently
by customers.
[11] The material provided by the Respondent in this matter shows that there
were many occasions, in the hundreds if not the thousands between July 2016
and December 2017, where Mr Pallage logged on and became available to
accept trip requests or not. While Mr Pallage does not accept the material as
accurately showing how or when he worked, or that that he refused 3,687 trip
requests in the period, I have no reason to believe the company’s calculations
of the individual trips are other than accurate.
[12] Rasier Pacific Pty Ltd also notes that, as a result of the Services
Agreements invoices were issued on behalf of Mr Pallage to customers. From
18 July 2017 the invoices identified GST payable in connection with the trips.
Likewise the Respondent or related entities collected fares and cancellation fees
from customers and remitted payments to Mr Pallage after deduction of the
service fee. The Respondent also notes that at any time or duration of his
choosing Mr Pallage was able to log into and out of the Partner App and was
able to accept or not accept requests for trips. It then puts forward that it
terminated the Services Agreement in accordance with its provisions.
[18] In any event, the evidence before the Commission is that there was a
relationship of some magnitude between the parties in this matter. In the 14
months of their relationship, Mr Pallage was offered 10,597 trips, declined
3,403 trips and completed 3,857 trips. In that time he spent 136,813 minutes
on-line and 87,291 minutes active, 9 equal to 1,454 hours of activity. In
perspective, an employee working 38 hours per week for 48 weeks would work
1,824 hours. For the purposes of illustration only, if Mr Pallage had logged on
and worked every day between 27 July 2016 and 4 December 2017 (and I do
not suggest he did; the comment is for the purposes of illustration) he would
have averaged more than seven completed trips each day. This was not an
insubstantial or tenuous relationship.
“... the ultimate question will always be whether the worker is the
servant of another in that other’s business, or whether the worker
carries on a trade or business of his or her own behalf 12: that is,
whether, viewed as a practical matter, the putative worker could be
said to be conducting a business of his or her own13. This question is
answered by considering the terms of the contract and the totality of
the relationship14.””15 (references in original)
[21] In assessing this question, the Commission will take account of the nature
of the work performed and the manner in which it is performed. It will consider
the terms and terminology of the contract between the parties. It will also give
consideration to the various indicia drawn from authorities to guide a decision.
A consideration of those indicia informed by the context of the nature of the
work performed and the terms of the contract may point overwhelmingly one
way or another and a determination should then be in accordance with that
result:
[24] The evidence allows findings generally that the work of Mr Pallage was
performed in the vehicle he owned, often alone, with customers having the
capacity to not only rate his performance, but to complain about it if they saw a
need. In overall context, the work he performed for Rasier Pacific Pty Ltd was
the work of transporting customers. That matter was addressed in Kaseris,
wherein it was found:
First, these couriers were not providing skilled labour or labour which
required special qualifications. A bicycle courier is unable to make an
independent career as a free-lancer or to generate any ‘‘goodwill’’ as a
bicycle courier. The notion that the couriers somehow were running their
own enterprise is intuitively unsound, and denied by the facts disclosed in
the record.” 22
“We think it particularly significant that the joint judgment endorsed the
proposition that ‘‘the distinction between an employee and an independent
contractor is ‘rooted fundamentally in the difference between a person who
serves his employer in his, the employer’s, business, and a person who
carries on a trade or business of his own’’’. In [47] their Honours dealt with
the issue in the case before them by in essence asking whether, ‘‘viewed as
a practical matter’’ the workers in question were ‘‘running their own
business or enterprise’’ with ‘‘independence in the conduct of their
operations’’” (reference omitted) 23
[28] Mr Pallage’s work and his work environment may be similarly cast to the
observations in Hollis v Vabu. He sold rides to customers and was paid for
them, along the way paying a fee for the services rendered by Rasier Pacific
Pty Ltd and its associates. He may have been in business himself, but equally
he may not. Consideration of his work and his work environment does not
persuasively lead to a finding that he was.
“(3) The terms and terminology of the contract are always important 26.
However, the parties cannot alter the true nature of their relationship by
putting a different label on it27. In particular, an express term that the
worker is an independent contractor cannot take effect according to its
terms if it contradicts the effect of the terms of the contract as a whole28:
the parties cannot deem the relationship between themselves to be
something it is not29. Similarly, subsequent conduct of the parties may
demonstrate that relationship has a character contrary to the terms of the
contract30.”31 (original references)
[26] Moreover, the nature of the ultimate question is such that in any given
case that is not clear cut, reasonable judicial minds may differ as to the
correct answer in any given case. This was explicitly recognised in Roy
Morgan 32. This necessarily means that there is an area of uncertainty for
businesses that wish to engage only on the basis of independent contract
and not on the basis of employment. Any change to the present approach is
a matter for the legislature. Our duty is to continue to apply the established
general law approach until legislation or the High Court requires
otherwise.”33 (reference and italics in original)
[36] I am satisfied that, as with the Applicant in Kaseris, Mr Pallage was able
to choose when to log-in and log-off to/from the Partner App; that he had
control over the hours he wanted to work; and that he was able to accept or
refuse trip requests. There has been no endeavour by Mr Pallage to bring
evidence to the Commission which shows that these generalities of his
engagement were supervened in other actions on the part of the Respondent to
control the method by which he worked.
Equipment
Delegation or subcontracting
[42] The evidence on this indicator is that the Services Agreement provides for
mutual rights of termination. The last of the applicable Services Agreements,
dated 1 December 2017 provides the following in respect of its termination;
“16. Term & Termination. This Agreement shall commence on the date that
the Agreement is executed by you (electronically or otherwise) and will
continue until terminated by you, Rasier Pacific or Uber, which any party
can do (a) without cause at any time on 30 days' prior written notice to the
other parties; (b) immediately, without notice, for any other party's material
breach of this Agreement; or (c) immediately, without notice, in the event
of the insolvency or bankruptcy of any other party, or upon such other
party's filing or submission of request for suspension of payment (or similar
action or event) against the terminating party. In addition, Rasier Pacific
may restrict you from using the Uber Services and/or Uber may deactivate
or otherwise restrict you from accessing or using the Driver ID and/or
Driver App immediately, without notice, in the event you no longer qualify,
under applicable law or the standards and policies of Rasier Pacific, Uber
and their affiliates, to provide Transportation Services or to operate the
vehicle, or as otherwise set out in this Agreement.”
[43] The evidence is that Rasier Pacific Pty Ltd terminated the Services
Agreement immediately and without notice pursuant to part (b) of the above
clause for conduct said to be a breach of Uber’s “community standards”. Mr
Pallage believes that such conduct relates to two separate complaints made by
customers about him. 35 In the absence of cogent evidence on the subject from
the Respondent, whether or not those complaints (or any others it may have
considered) may reasonably be said to have amounted to a “material breach” of
the Services Agreement by Mr Pallage is unknown.
[44] It has been held on numerous occasions that the right of a principal to
suspend or dismiss a person engaged, most pertinently in instances of
misconduct, 36 is one of the features more suggestive of a contract of service,
or employment, rather than a contract for services.37
Taxation
Mode of remuneration
[48] The evidence before the Commission is plainly that Mr Pallage was not
paid a periodic wage or salary and that such payments as he received were
reference to the completion of tasks, being the acceptance of an undertaking of
trip requests. Therefore consideration of this indicator resolves in favour of a
finding that the relationship between the Respondent and Mr Pallage was closer
to that of an independent contractor than of an employee.
Business expenses
[52] Other than in relation to matters such as a vehicle loan and running costs
and the maintenance of a mobile phone, there is no evidence before me of a
persuasive nature in relation to this matter. It is unknown whether the costs
associated with those things was an incidental or major proportion of Mr
Pallage’s earnings. Accordingly, this indicator is also a neutral consideration in
my decision.
[53] Having had regard to each of the indicia accepted by the Full Bench as
included within the multifactorial test for determination of whether a person is
an employee or independent contractor, it is evident that the weight of those
indicators leads to the finding that Mr Pallage was not engaged as an employee,
but instead as an independent contractor. Consideration of all but two of the
indicators, delegation or subcontracting and capacity to suspend or dismiss,
resolve against Mr Pallage. While elements of the contract itself appear more
consistent with an employment relationships (for example, those dealing with
termination), most do not. The nature of the work and its environment, in which
unskilled work is performed, albeit alone, repetitively and over many
engagements for the one principal also has some consistency, possibly greater
consistency, with a finding of employment. Nonetheless, while noting the
caution of the Full Bench to the effect that the overall assessment is not a
mechanical exercise, that not all details are of equal weight or importance in
any given situation and that instead it is a matter of the overall effect of the
matter, I am satisfied that the indicators I have found in favour of Mr Pallage
are not in this case of sufficient weight to displace the findings made against his
interests.
COMMISSIONER
Appearances:
Hearing details:
2018.
Melbourne:
4 May.
<PR606912>
4 PR606840.
21 Exhibit R2, Attachment 8, 1,521 trips out of 3,857 completed trips were
rated, (39%).
22 [2001] HCA 44, 106 IR 80, [47] – [48], per Gleeson CJ, Gaudron,
Gummow, Kirby and Hayne JJ.
27 “The parties cannot create something which has every feature of a rooster,
but call it a duck and insist that everyone else recognise it as a duck.” Re
Porter (1989) 34 IR 179 at p. 184 per Gray J; Massey v Crown Life
Insurance [1978] 2 All ER 576 at p. 579 per Lord Denning approved by the
Privy Council in AMP v Chaplin (1978) 18 ALR 385 at p. 389.
33 Ibid.
34 Following the indicia set out in French Accent [2011] FWAFB 8307, [30]
(4).
37 Brodribb, p.36, per Wilson and Dawson JJ; see also, for example Abdalla
v Viewdaze Pty Ltd (2003) 122 IR 215, [34]; ACE Insurance Ltd v Trifunovski
and Others [2013] FCAFC 3, 235 IR 115, [50], [63], [91].