- There are a number of findings in the recent landmark UK Supreme Court Uber decision which will be highly relevant to a string of High Court appeals due to be heard later this year.
- This article focuses on three key issues in the Uber decision and asks the question: In Australia, is it time we move beyond the common law notion of ‘employee’ to a broader meaning of the term, as reflected in the UK legislation?
- Expanding the meaning of the term ‘employee’ would recognise that there is a large underbelly of workers who have no entitlement to a minimum wage, and terms and conditions most people take for granted.
UK Uber drivers are not self-employed contractors ‘running their own business’ but are ‘workers’ entitled to holiday pay and the minimum wage – such was the highly publicised finding of the UK Supreme Court in Uber BV and others v Aslam and others  UKSC 5 (‘the Uber decision’) in February. The Court’s unanimous decision reaffirms decisions from the court and tribunal below. It is not only limited to the gig economy.
The Uber decision is primarily a statutory interpretation case which sets out principles of general application in circumstances where there is a dispute between the parties as to the status of an alleged employment relationship. Importantly, for Australian readers, there are a number of findings in the Uber decision which will be highly relevant to a string of upcoming High Court appeals due to be heard later this year.
This paper will focus on three key issues dealt with in the Uber decision:
- Contract law principles as they apply to employment contracts, including the parol evidence rule, and how the written terms of a contract are to be interpreted where they are different from the real employment relationship;
- Interpreting legislation dealing with employee entitlements; and
- The delineation between a worker and an independent contractor.
There is a one key difference between the Employment Rights Act 1996 (UK) (‘ER Act’) and the Fair Work Act 2009 (Cth) (‘FW Act’). Section 230(3) of the ER Act contains two categories for employment – those employed under a contract of employment (an employee) and those who are deemed a ‘worker’, which is defined in s 230(3)(b) as: ‘any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual…’
The term ‘worker’ has been found to mean ‘an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else’ (Bates van Winkelhof v Clyde & Co LLP  UKSC 32;  1 WLR 2047  and ). In the UK, as in Australia, employees are guaranteed employment rights and benefits. Workers are entitled to some rights such as minimum wage and annual leave.