In a significant recent decision, the Full Bench of the Fair Work Commission (FWC) held that an UberEats delivery driver was not an employee, with the majority finding that the delivery driver was in fact an independent contractor (Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats  FWCFB 1698).
The delivery driver made an application to the FWC alleging that Uber’s parent company, Portier Pacific Pty Ltd, and Uber Australia Pty Ltd (we will refer to them collectively as Uber) unfairly dismissed her.
The matter was initially heard by Commissioner Hampton who found that the delivery driver was not an employee.
The delivery driver appealed that decision to the Full Bench.
Uber objected to the delivery driver’s application and her appeal on the basis that she was not their employee and was therefore not able to bring a claim against them.
The delivery driver argued that, notwithstanding any labelling in the contracts between her and Uber, the true nature of the relationship was that of employer and employee. The delivery driver claimed that there were a number of features of her relationship with Uber that indicated employment, including:
The delivery driver claimed that, on any view, she was performing work as part of Uber’s food delivery business and was not truly working for herself.
Uber argued that it was neither the delivery driver’s employer nor was she an independent contractor. Rather, Uber claimed it had a services agreement with the delivery driver and it provided services to her (i.e. leads for delivery jobs and a payment intermediary service) in exchange for a service fee.
Uber claimed that it did not exercise control over the delivery driver as she was free to perform deliveries whenever she wanted or indeed not at all. Further, Uber argued that its guidelines were a form of quality control for its customers and should not be viewed as exercising control over its “partners.”
Finally, Uber argued that, if there was any independent contracting arrangement afoot, it was between the restaurants and the delivery driver since the nature of that relationship was that the restaurant paid a fee to the driver, albeit through Uber.
The Full Bench considered the submissions of the parties and the legal authorities on distinguishing between employment and an independent contracting arrangement.
The majority of the Full Bench found that the delivery driver was not an employee of Uber, but that their relationship was more than that described by Uber.
The majority found that, on application of the multiple indicia test, the delivery driver was an independent contractor. The three main reasons for this finding were:
Accordingly, the majority dismissed the delivery driver’s appeal.
Deputy President Colman issued a separate judgement in which he also dismissed the appeal, but with somewhat different reasoning to that of the majority. The Deputy President agreed with Uber and found that the relationship between Uber and the driver was commercial and was neither employment nor an independent contracting arrangement.
This case is the most recent in a string of Australian decisions that have found that gig-economy drivers and delivery drivers are not employees.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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