The recent statement by the Fair Work Ombudsman that Uber drivers are contractors and not employees will, regrettably, not add certainty in this area of the law.

The basis for the conclusion appears to be that, for an employment relationship to exist, there must be (at a minimum) an obligation for an employee to perform work when it is demanded by the employer.

Is that a fundamental requirement of employment?

Casual employees (who are employees) would usually not be obliged to perform work when demanded. If that was a requirement, a casual employee would not be able to seek other casual work.

To date, the Australian judgements finding that Uber drivers are contractors have involved self-represented individual drivers arguing complex points of law against a well-resourced company. Perhaps the outcome may have been different with strong representation on both sides.

Many of the disrupters in the “gig” economy rely on a contractor model to provide services. In the absence of challenges by the FWO, these “contractors” will need to rely on either unions or litigation funders to take an interest in protecting or pursuing their interests.

The contractor v employee question will remain uncertain unless a third party is willing to stand up for the individuals who are affected.