The Full Bench of the Fair Work Commission (FWCFB) has confirmed the Commission decision at first instance that a delivery driver was not an employee either of Uber Eats, which provided the technology platform and advertising of its service, or of Portier Pacific Pty Ltd (Portier), the payment collection agent. The delivery driver was found to be an independent contractor providing services to Portier. The Transport Workers’ Union (TWU) represented its member Amita Gupta (Applicant) in the proceedings.
The Applicant performed “Uber Eats” delivery services from late 2017 to January 2019 and filed a claim for unfair dismissal with the Commission when her delivery account was suspended, preventing her from performing food deliveries. The respondents were parties to a Service Agreement with the Applicant for the purposes of food delivery. Once the Applicant had entered into the Service Agreement, she was required to download a Partner App. Through the Partner App, the Applicant was notified of delivery requests from the restaurants once an order had been placed and was accepted. She delivered food for over a year with her own vehicle.
The FWCFB examined key cases that have developed a multi-factor test in determining whether an employment relationship exists. A number of features of the Uber Eats business model were, in this case, found to be neutral in determining whether the Applicant was an employee:
- The requirement that the Applicant perform deliveries through the Partner App, and that she provide her own car and mobile phone to carry out the work.
- The degree of control over the Applicant imposed by a) the Service Agreement between her, Portier and Uber Eats Australia, b) the Uber Eats Community Guidelines and c) the ratings system for the performance of work to a satisfactory standard.
- The remuneration received by the Applicant for the performance of work was on a per-delivery basis, she received no leave or superannuation benefits and she was responsible for her own taxation obligations.
While the FWCFB considered that there were neutral features, President Ross and Vice President Hatcher held that the relationship between the Applicant and Portier did not demonstrate three essential hallmarks of an employment relationship, namely a requirement to perform work at particular times or in particular circumstances, exclusivity when work is being performed, and presentation to the public as serving in the business. Rather:
1. The Applicant had complete control over when she logged into the
Partner App for deliveries and the period of time she remained logged
on. She could choose whether to accept a food delivery;
2. the Applicant was not prevented from accepting work from competing
food delivery apps when logged into the Partner App; and
3. the Applicant was not required to wear a uniform, display company
logos or represent the Uber Eats brand beyond the collection and
delivery of food.
The other member of the Full Bench, Commissioner Colman, agreed with the outcome to dismiss the appeal, however disagreed with the finding that the Applicant was engaged as an independent contractor providing services to Portier. He said there was no “employer or principal at all” in the Applicant’s case and she was not a party to any contract for services with Portier as an independent contractor, but was “simply working for herself”.
This decision is considered to be controversial by some commentators and academics and will continue to attract interest given the growth of the gig economy and the opportunity to review, if not re-consider, the status of such workers and the protections to be afforded to them. The majority Full Bench of the Commission itself indicated that the application of the factors in determining whether there was an employment relationship were borderline.
The majority conceded it “might be considered that there is some tension” between the case’s conclusion, and its finding that the Applicant did not conduct a business in her own right. In their analysis the majority made reference to other decisions that treat the notion of “serving in the business of another and operating one’s own business as being entirely dichotomous”. They suggested that “the difficulty is answered by the proposition that [the Applicant] had the capacity to develop her own independent delivery business as a result of her legal and practical right to seek and accept other types of work while performing work for Uber Eats, but chose not to.”
A copy of the decision can be found here.
We note that the TWU, on behalf of the Applicant, has filed an appeal in the Federal Court.
Julia Eastoe is a Lawyer at Justitia.