Employment Law: 23 March 2019
The Victorian State government has announced plans for draft legislation providing taxi drivers, rideshare drivers and consumers with clarity to reform the multitude of issues that has riddled the industry.
Victoria has been the latest (and perhaps final) domino to fall, following concessions from State governments across Australia to provide regulatory framework to ensure that ride-sharing services, such as Uber, are here to stay. Victorian Premier Daniel Andrews announced that $2 levies will apply to all commercial vehicle operators as of 2018. Interestingly, all commercial drivers may set their own fees to increase competition given the demand of modern consumers who want an efficient service for the best price. This could hopefully have the upshot of mitigating surges in ride-share fares during periods of peak demand.
The framework will provide an answer to consumers who use Uber with reservations as to safety. Those of you who have hailed an Uber before will have no doubt questioned yourself as to the driver's experience, the condition and safety of the vehicle, and whether or not your driver is an axe murderer. Within the course of next two years, taxi drivers and rideshare drivers alike will have to be accredited by the Taxi Services Commission who will conduct a vetting process requiring drivers to pass police, medical and driving history checks before they are accredited.
While the employment status of Uber drivers is still currently in limbo, people considering employment as Uber drivers need to be aware, that presently they will still not be entitled to various entitlements that 'employees' are under the Fair Work Act 2009. Uber drivers will have to pay their own taxes, superannuation and insurance. In addition they will not be entitled to be remunerated for annual, personal or sick leave and will likely have no unfair dismissal rights, if they are arbitrarily removed from the platform. The upshot of this is that Uber drivers currently have little to no bargaining power in the workplace due to their current lack of entitlements.
Ubers appeal of flexibility does however resonate with many part-time employees and contractors who may see ridesharing as a useful platform to capitalise on their spare time between jobs or outside of regular working hours. However, most employees with written employment contracts, will undoubtedly have a clause that obliges the employee to request permission from their employer to engage in secondary employment. A recent case in Western Australia called Mervyn Jacob v West Australian Newspapers Ltd T/A The West Australian has considered this issue, and should put all those employees considering ride-sharing as a secondary income on notice. This case saw an employee being fairly dismissed for failing to disclose his secondary employment as an Uber driver to his employer. The employee in this case had a clause in his employment contract that expressly required him to obtain his employers written permission regarding secondary employment. The employer successfully argued in this instance that the employee's Uber driving was interfering with his fitness for work and his ability to perform his duties. The employee also lied about his status as an Uber driver when approached by his employer. If you are considering secondary employment outside your normal work hours, check your employment agreement as you may have to obtain your employers consent.
In summary, despite the myriad of legal issues that are presently evolving around Uber, consumers in particular will be able to breathe a sigh of relief as Uber is here in Victoria to stay.