Uber delivery drivers are not employees entitled to minimum pay and conditions because of their freedom to choose when they work, according to a precedent ruling.

A senior full bench majority of the Fair Work Commission, led by President Justice Iain Ross, held on Tuesday that Uber Eats drivers were not in an employment relationship because they controlled when they logged on the app and whether to accept delivery requests.

The case, brought by the Transport Workers Union, is the most senior authority on whether gig workers are employees and departs from overseas rulings on the issue.

But the decision is unusual because the full bench majority also found the courier were not in a business relationship with Uber either, even though it found they did work for the gig business.

Terminated driver Amita Gupta brought the case as an unfair dismissal claim, which required the commission to first decide if she was employee.