After the Herald narrowed its Freedom of Information request in response to the Ombudsman's restrictions on time and resources, the regulator released a heavily redacted document. It refused to release another relevant document, containing external legal advice, on the basis of legal professional privilege, which the Ombudsman has the discretion to waive. The Fair Work Ombudsman's redacted response to The Sydney Morning Herald's freedom of information request. Australian lawyer Sheryn Omeri, who practises as a barrister in Britain, has successfully argued in the Employment Appeal Tribunal and the Court of Appeal that London Uber drivers Yaseen Aslam, James Farrar and others are workers. A worker has basic employment rights including to the legal minimum wage and holiday pay, but not to the full range of protections, such as against unfair dismissal. In an interview with The Sydney Morning Herald, Ms Omeri said the Fair Work Ombudsman's press release provided no detail about whether its investigation considered a crucial question: whether Uber drivers were obliged to work after they had turned on the Uber app. "That was the basis for the English court's and tribunal's decision that Uber drivers are workers," she said.

Loading The Employment Tribunal heard that once they are logged on to the Uber app, although drivers are nominally free to accept or decline trips, the acceptance statistics are recorded and drivers are warned they are required to accept at least 80 per cent of trip requests to retain their Uber account status. Drivers who declined three trips in a row could be forcibly logged off the Uber App for 10 minutes. A similar system of warnings, leading to the 10-minute log-off penalty, applied to cancellations by drivers after a trip had been accepted "That is an obligation to accept work when the drivers are logged on," Ms Omeri said. The tribunal said it accepted that while the app is switched off, "there can be no question of any contractual obligation to provide driving services". "But when the app is switched on, the legal analysis is, we think, different."

The tribunal said any driver who had the app switched on was a "worker", working for Uber. Uber has appealed to the UK Supreme Court and its appeal is due to be heard in the first half of next year. University of Adelaide law professor Andrew Stewart said the legal issue still in question was whether Uber drivers in Australia were under any obligation to work. "And related to that is the question of what status, if any, is accorded to the formal terms of the contracts drafted by Uber to govern its relationship with its drivers," he said. "An Australian court might well decide to follow the Aslam case in the UK in ruling that those contracts do not reflect the practical reality of the relationship, that (at least from the moment they switch on their apps) drivers are under a practical obligation to work, and that in doing so they are working for Uber, not themselves. Or it might decide to the contrary on some or all of those points.

"These are matters of sufficient importance and uncertainty that they should have been decided in an open court, not behind closed doors. Without seeing the legal opinion, however, it’s impossible to know how thoroughly and effectively the relevant legal and policy issues were canvassed." Employment law professor Andrew Stewart is disappointed the Fair Work Ombudsman made its decision on Uber drivers "behind closed doors". Credit:James Brickwood Ms Omeri also said there was a strong public interest in understanding the full rationale behind the FWO decision and the extent to which it was outsourced to external lawyer(s). A spokeswoman for Uber said it welcomed the Ombudsman's findings, which recognised that Uber drivers "choose if, when and where they drive". "We want to work with governments and the community to ensure Australians can access independent and flexible earning opportunities, without limiting their access to the support and security they deserve,” the spokeswoman said.

Joellen Riley Munton at UTS faculty of law said the FWO had no authority to make a binding statement on the law. "It seems anomalous that Uber drivers – especially those who do the job as their main source of income – should not be treated as employees under our laws," she said. "Especially as we do have a well-established concept of casual employment, that contemplates the employee who can pick and choose their own shifts." California legislators last month approved a landmark bill that requires companies like Uber and Lyft to treat contract workers as employees instead of contractors. The Transport Workers Union (TWU) has repeatedly called on the federal government to legislate to provide employment rights for Uber drivers and food delivery riders. TWU national secretary Michael Kaine said his union had also received heavily redacted documents in response to its FOI application for information about the FWO decision on Uber drivers.

"The Ombudsman let down thousands of workers across Australia when it decided not to take a case against Uber. We have a right to know what that decision was based on," he said. "The Ombudsman interviewed just 14 drivers for its investigation into Uber and concluded Uber has no control over their work. We surveyed over 1100 and it is absolutely apparent that the company is entirely in control." Mr Kaine said Uber drivers were allocated work based on how Uber rated them, how much they made themselves available for work and whether they worked weekends and nights.