Still waiting for the Uber!

We’re not quite at the end of Uber trip yet, with the High Court granting Uber Australia Pty Ltd (‘Uber’) Special Leave to appeal the decision in Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172 (‘NSWCA decision’) of 1 August 2025.

Here is a brief summary of the Uber case history:

• Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124 (6 September 2024) – NSW Supreme Court ruled in favour of Uber, accepting that there was a “relevant contract” between Uber and drivers under section 32 of the NSW Payroll Tax Act 2007 but that the payments to the drivers were not “for and in relation to the performance of work” under that contract and therefore did not constitute taxable wages.
• Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172 (1 August 2025) – NSW Revenue were successful on the appeal, with the Court of Appeal rejecting the Supreme Court’s narrower application of “for and in relation to the performance of work” and opting for a broader interpretation that would be satisfied where there was a sufficient degree of connection between the payment and the performance of work. The decision found there was a direct relationship between the performance of work and what was payable by Uber to drivers and as such the payments were “in relation to the performance of work”.

Why is this case important?

The NSWCA decision seemingly provided final confirmation as to how the payroll tax (PRT) “relevant contractor” rules contained in most State PRT systems should apply to tri-partite operating models used in many industries (“platforms”).

The concepts in the NSWCA decision extend well beyond ride-share platforms, covering a number of “contractor”-based platform operating models including widespread arrangements used in the medical/health sector (where medical practitioners ostensibly contract to receive services from a medical centre so as to allow the practitioner to treat patients at the medical centre). Readers may be familiar with earlier cases (including  Optical Superstore and Thomas and Naaz) that had already established why and how relevant contract PRT rules apply in the medical/health sector.

The NSWCA decision had the potential (had the case been decided in favour of Uber) to disturb the position otherwise resolved by those earlier cases by accepting the existence of a relevant contract but finding any payment to a contractor by a platform under the contract may not be “for and in relation to the performance of work” (which is the requisite test to make the payment taxable).

The combined outcome of all cases (prior to the granting of Special Leave) was to confirm that a payment by a “platform” (be it Uber or a different type of service provided under a similar platform contractual model including a medical centre etc) to a contractor, can be wages for PRT purposes. In particular, the cases confirmed this could be the outcome:

• even if the platform is only “passing on” money received by it but legally due to the contractor under an arrangement between a customer/patient and the contractor;
• is “for or in relation to the performance of work relating to a relevant contract” where the work is integral to the platform’s business; and
• would only not be subject to PRT where a relevant contract “exclusion” was satisfied (for example, see Victorian PRT relevant contract exclusions here)

Conclusion

With the granting of Special Leave, the question of what the correct PRT treatment remains hanging, yet again, until 2026.

If you’d like to revisit the previous Uber decisions (and broader issue of PRT and relevant contracts including in the medical/health sector), we have covered the original Uber decision in a previous article here, and our affiliate, TaxEd Pty Ltd, has discussed the NSWCA decision here.

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