A recent case before the Fair Work Commission in relation to ride service giant Uber may have ramifications for general practice.
A new decision from the Fair Work Commission has proven that gig workers can make a case for unfair dismissal – and while it doesn’t mention GPs, it’s not as big a leap as one may think.
The decision itself centres on a rideshare driver whose Uber account was abruptly suspended following a dispute with passengers.
While his account was eventually reactivated by Uber, the driver has now sued for unfair deactivation and for a restoration of lost pay during the period he was deactivated, under new gig worker laws introduced last year.
He was represented in court by the Transport Workers Union.
On Tuesday, the Fair Work Commission ruled that the driver was, in fact, unfairly deactivated and handed down a decision ordering Uber to restore his lost pay.
This is the first time a case for unfair deactivation has been made by a gig worker using the protections given by the new laws.
The reason this is relevant to GPs is that, on paper and in terms of contracts, many practices work similarly to Uber.
A recent judgement in a case involving Uber heard in the Supreme Court of NSW made specific, repeated references to the Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue 2023 case, a landmark GP payroll tax ruling.
“Just because it doesn’t have the word ‘GP’ in it doesn’t mean it’s not relevant to you,” healthcare accountant David Dahm told The Medical Republic.
“Case law is based on legal principles and commercial principles, and the principles are important here.”
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While there are yet to be any cases of GPs successfully suing a clinic for something Fair Work-adjacent like unpaid superannuation or unfair dismissal, Mr Dahm said the fact that the NSW Supreme Court recently drew a line between the way Uber operated and the way GP clinics operated should be cause for concern at the least.
“In the last month or two months, I’ve got inquiries from practitioners – two are on the east coast for unpaid super,” he said.
“These are practitioners [who] were contractors [at a clinic that] they decided to leave after eight years, and now they want to set up their own practice, and they’re looking for funding.
“Literally, they contacted me and said, ‘how can I make some bank on this so I can go off and do my own thing?’
“We have [heard from] someone in Western Australia, where people have been claiming for long service leave.”
Mr Dahm said that GPs were “starting to become a lot more aware” of their employment arrangements, rights and obligations.
“Don’t expect Fair Work to be quiet on this issue, particularly for the gig economy, which doctors, particularly GPs, would probably be characterised under, [especially in telehealth cases where] someone was working remotely.”
Fair Work, the Australian Taxation Office and state revenue offices represent what Mr Dahm called the “trifecta” of agencies which could potentially be circling GP clinics in the wake of Thomas and Naaz.
“What people need to appreciate is, if you’re being kind of called out as being an employee or employee-like contractor, it opens the question of are you really a genuine business?” he said.
“Because if you don’t have your own marketing, if you don’t have your own independent advertising, you probably should spend a few bucks, and they’ll save you a lot of headaches.
“The tax office doesn’t have a definition of what an employee is. They leave it normally to case law or what other regulators say.
“But what this will do now is it now allows the ATO now to pair your tax profile to the way the ATO sees how you’re being profiled … this is the trifecta of what we’ve been trying to warn people about.”
As ever, Mr Dahm’s advice was for GPs or practices with concerns to seek independent accountancy and legal advice.
