Uber Driver Challenges Contract in Landmark Gig Economy Case
The ‘Good’ in ‘the Good, the Bad and the Ugly’ from our 11 July 2025 podcast on Working From Home, from 11 July 2025.
A self-represented Uber driver has launched a potentially precedent-setting case before the Fair Work Commission (FWC) challenging the fairness of his contract under new laws introduced through the Closing Loopholes reforms.
On 5 January 2025, Somphong (Em) Thongkhamchanh lodged an application under Section 536ND of the Fair Work Act 2009 (Cth) (the FW Act), a provision introduced as part of the 2023 legislative amendments aimed at protecting independent contractors.
What Is Section 536ND?
Section 536ND of the FW Act allows a person who is party to a services contract to apply to the FWC for a remedy if the contract contains unfair terms—provided their income falls below the contractor high income threshold. This is part of a broader push to extend workplace protections to “employee-like” workers in the gig economy.
The Driver’s Claims
Thongkhamchanh alleges that Uber’s contract:
- Fails to hold the company accountable for persistent app malfunctions that prevent him from working;
- Allows Uber to penalise drivers for cancellations, even when caused by technical issues beyond their control; and
- Enables unsubstantiated accusations (e.g. failing to report a lost item) to negatively impact drivers without due process.
He is seeking:
- Amendments to the contract requiring Uber to promptly address technical issues and improve communication with drivers; and
- $50,000 in compensation for lost earnings, missed bonuses, and emotional distress caused by Uber’s alleged negligence.
Uber’s Response
Uber, represented by Ashurst, argues that the contested contract terms do not relate to workplace relations matters and that the application should be dismissed for lack of jurisdiction. The company also contends that the driver has not clearly identified which terms are allegedly unfair.
Why This Case Matters
This is the first major test of the new unfair contract term provisions under the Closing Loopholes reforms. The outcome could set a significant precedent for how digital platforms like Uber are held accountable for the terms they impose on gig workers.
The case, listed as UC2025/1, is being overseen by Deputy President Saunders, and a dedicated case page is available on the Fair Work Commission website titled ‘Application for an unfair contract term remedy (UC2025/1)’.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.