FEDERAL COURT OF AUSTRALIA

Oze-Igiehon v Uber Technology Inc [2017] FCA 1024

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application dated 19 July 2017 as to service of the first to third respondents be adjourned to 12 September 2017 at 9.30am but otherwise be dismissed with no order as to costs.

2.    The proceedings as against the fourth respondent be dismissed.

3.    The applicant pay the costs of the fourth respondent in relation to the proceedings including the costs of its interlocutory application dated 30 June 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1    There are two interlocutory applications for determination. The first is by the applicant seeking leave to join the Commissioner of Taxation (Commissioner) and the Fair Work Ombudsman (FWO) as third parties. In that application, the applicant also seeks leave to amend the address for service for each of the first, second and third respondents.

2    The second application is by the fourth respondent, Uber Australia Pty Ltd (Uber Australia) which seeks an order pursuant to r 13.01(1)(a) of the Federal Court Rules 2011 (Cth) (Federal Court Rules) that the proceedings against it be dismissed with costs. The proceedings against Uber Australia are primarily in the nature of superannuation claims.

3    Both interlocutory applications were heard by me on 11 August 2017, on which occasion I reserved my judgment.

The applicant’s interlocutory application

4    The applicant conceded at the hearing, correctly in my opinion, that he has no standing to seek relief as against either of the Commissioner or the FWO. As Besanko J in Kronen v Federal Commission of Taxation (2012) 213 FCR 495, 505 at [50] concluded, the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) contains a scheme which does not give an employee any rights under that Act. His Honour further specified that an employee did not have the right to require the Commissioner to take action in relation to a claim by an employee that their employer was not making superannuation contributions according to law. Accordingly, the leave sought in respect of the Commissioner and the FWO will be refused and this interlocutory application in that respect will be dismissed.

5    There is no utility in granting leave to amend the addresses for service of the first to third respondents as these addresses are overseas. Should the applicant fail to serve them within the jurisdiction, then he will require, if still minded to prosecute his claims, to obtain the leave of this Court to serve each of them overseas.

6    For this reason I will adjourn the applicant’s application confined to the issue of service of those respondents to 12 September 2017 at 9.30am. In the event that the applicant still intends to advance claims against those respondents, I am prepared to allow the present interlocutory application to be the vehicle for seeking leave to serve those respondents or any of them overseas.

Uber Australia’s interlocutory application

7    The proceedings against Uber Australia, which its application seeks to have dismissed, are set out in the applicant’s originating application, which seeks the following relief:

(1)    an injunctive order for Uber to pay superannuation to current Uber drivers pursuant to ss 12 and 16 of the SGA Act;

(2)    an injunctive order for Uber to pay outstanding superannuation to previous Uber drivers who no longer work for Uber pursuant to ss 12 and 15B of the SGA Act; and

(3)    a declaratory order that Uber drivers and Raiser Operations BV are in an employee-employer relationship in Australia.

8    It may be seen that the first two claims, relating to superannuation, make no distinction as between the four respondents, instead referring merely to “Uber”. The third claim seeks declaratory relief that Uber drivers and the third respondent, Raiser Operations BV, are in an employee-employer relationship in Australia. I will address these claims in order.

The superannuation claims

9    I will assume that the first two claims include relief as against Uber Australia. As I outlined above at [7], the originating application seeks orders under ss 12, 15B and 16 of the SGA Act that Uber Australia collectively pay superannuation to a group of persons, namely current and former Uber drivers. For the reasons that follow, I find that the applicant, so far as concerns his claim against Uber Australia, does not have the standing to bring those claims.

The superannuation guarantee charge statutory scheme

10    The relevant statutory scheme for the applicant’s claims comprises the SGA Act and the Superannuation Guarantee Charge Act 1992 (Cth) (SGC Act), which are to be read as one: s 3 of the SGC Act.

11    In general terms, this statutory framework creates an obligation for an employer to provide a prescribed minimum level of superannuation to all employees: Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52 at [4]. Where an employer fails to make superannuation contributions as required, the employer is liable to pay a tax imposed by the SGC Act, known as a superannuation guarantee charge.

12    Section 5 of the SGC Act establishes an obligation to pay a superannuation guarantee charge, by imposing the charge ‘on any superannuation guarantee shortfall of an employer for a quarter’. Section 16 of the SGA Act then provides that the obligation is on the employer to pay the charge. Section 15B extends the application of Part 3, including s 16, to contributions for the benefit of former employees. Superannuation guarantee shortfall is to be calculated using the method set out in ss 17 and 19 of the SGA Act.

13    ‘Employee’ and ‘employer’ are defined for the purposes of the SGA Act in s 12, which relevantly provides:

(1) Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):

(a) expand the meaning of those terms; and

(b) make particular provision to avoid doubt as to the status of certain persons.

…

(3) If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

14    There was no issue in this case that employers are required to pay superannuation to employees either into a superannuation account or Retirement Savings Account. Ordinarily, the obligation to pay superannuation will be found in a modern award. It was accepted that the applicant was not an employee of Uber Australia within s 12 of the SGA Act. Accordingly, there could never have arisen an obligation on the part of Uber Australia to make a superannuation claim to him. The applicant has no standing to make such a claim on behalf of other Uber drivers.

15    Whilst the obligation to pay superannuation necessarily depends upon a person being an employee, in the event that superannuation is not paid and there is a ‘shortfall’, this is dealt with by the SGC Act. That shortfall is payable as a debt to the Commissioner and the Commissioner is the one that has standing to recover that debt. I will return to the role played by the Commissioner in relation to the superannuation guarantee charge later in these reasons.

16    The liability to pay a superannuation charge arises as a statutory obligation under s 16 of the SGA Act. It is not a contractual entitlement: Shaddock v Cockburn Cement Ltd [2004] WAIRC 11726 at [6].

17    The superannuation guarantee charge is payable by the employer as a debt due to the Commonwealth and must be paid to the Commissioner: Taxation Administration Act 1953 (Cth) sch 1, s 250-10(2), s 255-1, 255-5(1).

Consideration of the claims

18    The applicant, in his written and oral submissions, did not assert that he is an employee of Uber Australia, nor has he sought to demonstrate, why in any capacity, he has any right under ss 12, 15B or 16 of the SGA Act or otherwise. Indeed in the course of the hearing, the applicant conceded as a fact that he was not an employee. However, even were he an employee of Uber Australia, then it would avail him nothing.

19    This is so because the only persons who have standing to bring a claim in respect of any payments due under either the SGA Act or the SGC Act are the Commissioner, a Second Commissioner or a Deputy Commissioner. Section 43 of the SGA Act provides that the Commissioner has the general administration of that Act.

20    It follows that no employee is entitled to seek recovery of any superannuation shortfall from their employer for an alleged breach of s 16 of the SGA Act.

21    The applicant’s submission that Uber Australia’s interlocutory application offends the principle of natural justice is wholly unmeritorious. The grounds advanced for this submission, none of which advances the applicant’s cause were that:

(a)    no man should be a judge in his own cause;

(b)    justice must not only be done, but obviously and indubitably be seen to be done; and

(c)    both sides should have the opportunity to be heard.

22    Beyond this, no submissions of any substance were put to support this unparticularised assertion.

23    The applicant also called in aid r 26.01(b), (c) and (d) of the Federal Court Rules, seeking summary judgment to dismiss Uber Australia’s interlocutory application on the basis that, as per those sub-rules:

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court.

24    This submission, given my earlier conclusions, is without merit.

Orders

25    I would, for these reasons, accede to Uber Australia’s application and order that the proceedings against it be dismissed with costs.

26    These reasons also demonstrate why the applicant’s claims as against the first to third respondents cannot succeed. I am minded, of my own motion, to dismiss the claims made against them but will refrain from doing so in order to give the applicant time to consider these reasons and have an opportunity to be heard as to why I ought not dismiss those other claims.

27    I will hear any such argument on the adjourned date namely 12 September 2017 at 9.30 am.

Associate:

Dated:    31 August 2017