Co-op not an employer, discrimination claim fails

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Co-op not an employer, discrimination claim fails

A NSW taxi driver has had his discrimination claim dismissed, because the co-operative he worked for was not his 'employer' under the law.

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A NSW taxi driver has had his discrimination claim dismissed, because the co-operative he worked for was not his ‘employer’ under the law.

[Full text of this case: Barake v Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222 (16 September 2011)]

Maitland, Beresfield & Raymond Terrace Taxi Services is a co-operative whose function is to provide radio network services to taxi drivers in the Maitland area.

In March 2010, a taxi driver lodged a complaint with the Anti-Discrimination Board under the s8 of the NSW Anti-Discrimination Act 1977. The driver, who was born in Lebanon and is a Muslim, claimed he had been subject to various racist comments such as a ‘terrorist’, ‘paedophile’ and ‘thieving wog’.

He also submitted he had been unfairly accused of stealing fares by other drivers.

Self-employed
 
The Co-op argued that the claim must fail because it was not the bailee driver’s (one who drives a taxi owned by another driver) ‘employer’ under the meaning of s8.

It argued the driver was in fact self-employed with his own ABN, who is responsible for payment of his own super, tax (personal) and GST, and is paid a commission by the owner of the taxi.

In these circumstance, the Co-op argued, there was no relationship of employer and employee between the Co-operative and the driver.

In response, the driver argued that a ‘multi-factor test’ should be applied considering such things as:
  • he was required to wear the Co-operative’s uniform
  • the Co-operative provided training to drivers and required them to pass examinations
  • drivers received approximately 80% of their work via the Co-operative’s network
  • the Co-operative provided a meal room at its base
  • the Co-operative had the power to hold investigations and to discipline drivers for breach of the by-laws.
Co-op is a ‘facilitator’
 
Judicial member Robertson Wright noted that the primary activity of the Co-operative was ‘to operate, or arrange for the operation of, a taxi radio network’.

He also noted from the Co-op’s by-laws that generally:
  • The members of the Co-operative are registered owners of taxi registration licences issued pursuant to the relevant statute, who may be loosely described as ‘taxi owners’.
  • A driver (who is not a member of the Co-op) only becomes bound by the by-laws as a result of agreeing to be bound by them and, in effect, a member/owner or lessee cannot allow a driver to drive a member’s taxi unless the driver has agreed to comply with the by-law
  • Members, lessees and drivers participate in the network and conduct their business as taxi operators entirely at their own risk and are required to be insured against loss and to provide indemnities to the Co-op.
  • A driver’s access to the network may be terminated if the owner or lessee of the taxi driven by the driver has their access to the network terminated.
  • There is nothing to suggest that the Co-operative ever remunerated in any way drivers for driving a taxi or ever carried on a business of providing taxi services.
Accordingly, Wright found the relationship between the Co-op and the bailee driver was not ‘employer’ and ‘employee’.

‘In the present case, there was nothing to suggest that Mr Barake (driver) performed work for or provided services to the Co-operative,’ Wright said.

‘The Co-operative’s business was to provide a two-way radio network and some related services for its members and their lessees and drivers in order to facilitate and enhance the taxi businesses operated by those members, lessees and drivers.’

‘As a result, it is very unlikely that Mr Barake could be an “employee” of the Co-operative within the meaning of s 8(2) of the ADA.’

Some control exercised
 
Further, Wright said, even though the Co-op did exercise ‘some control’ over such things as conduct and uniforms, this did not indicate an employer relationship.

‘Such control as the Co-operative had over the drivers was not derived from an employment relationship between the Co-operative and the drivers but from the drivers’ relationships with the owners or lessees of the taxis they drove and the drivers’ agreement to be bound by the by-laws of the Co-operative,’ he said.

The driver’s claim was dismissed.

Barake v Red & White Star Cabs Co-operative Limited trading as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222 (16 September 2011) 
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