The status of gig economy workers has been a source of extensive debate in recent years. Michael Byrnes, Partner and Emily Capener, Solicitor examine a recent decision by the Full Bench of the Fair Work Commission which confirmed that delivery drivers working for gig economy giant Uber Eats are not employees.

In Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698, handed down on 21 April 2020, the Full Bench of the Fair Work Commission confirmed that Uber Eats delivery drivers (engaged on the same basis as the Applicant) are not employees.

The matter was heard on appeal before President Justice Ross, Vice President Hatcher and Deputy President Colman, and considered an unfair dismissal application brought by Ms Amita Gupta against Portier Pacific Pty Ltd (Portier Pacific) and Uber Eats (Uber).

In Australia, applications for an unfair dismissal remedy can only be sought by 'national system employees'. As such, the TWU (acting on Ms Gupta's behalf) submitted that Ms Gupta was an employee of Uber (and was therefore not operating under to an alternative working arrangement, as submitted by Uber).

While the TWU argued that Portier Pacific and Uber exercised a strong degree of control over Ms Gupta's work, Uber maintained its (universal) position that its workers are not employees.

Interestingly, the written service agreement between the parties stated that Ms Gupta was neither an employee nor independent contractor. Rather, Uber and Portier Pacific contended that each delivery task was predicated on a contract between Ms Gupta and the relevant restaurant, and that it was the restaurant's responsibility to pay Ms Gupta for her delivery work. Portier Pacific and Uber considered themselves to be Ms Gupta's 'limited payment collection agent' by providing Ms Gupta with services (such as access to the "Partner App" and payment collection on her behalf) in exchange for a service fee.

In rejecting Portier Pacific and Uber's characterisation of the delivery work, Justice Ross and Vice President Hatcher (in their majority judgment) stated that the relationship was "demonstrative of the proposition that Ms Gupta performed her delivery work and was paid for it by Portier Pacific, notwithstanding the labelling in the Service Agreement". They further remarked that there was "no basis to conclude that there was any contractual relationship between Ms Gupta and any restaurant in relation to which she delivered a meal to a customer". Accordingly, the Commission was satisfied that "Portier Pacific engaged Ms Gupta to perform delivery services for it, and paid her for them, as part of a business by which it delivered restaurant meals to the general public. On that basis, the minimum reciprocal obligations of work and payment can be said to exist."

Conversely, while it was held that Ms Gupta was not conducting a business in her own right, the Commission did not find Ms Gupta to be an employee of Uber.

When applying the multi-factorial test, the Commission identified those aspects of the Uber business model which were 'neutral' on the question of whether Ms Gupta was an employee. For example, the Commission did not consider it was necessarily detrimental to Ms Gupta's case that she was remunerated on a per-delivery basis and did not receive leave and superannuation benefits. Rather, this payment structure simply reflected Uber's position that Ms Gupta was not an employee. Furthermore, although Ms Gupta was required to use her own motor vehicle and phone to perform her duties, the Commission acknowledged that this was not special equipment purchased by Ms Gupta for the specific purpose of working as a delivery driver.

On the other hand, the Commission also pointed to several factors which did suggest Ms Gupta was an employee, including that the delivery work did not require any particular trade or skill, and that the rate of delivery fee was determined by Portier Pacific.

However, there were three factors which the Commission considered critical in their finding that Ms Gupta was not an employee:

  • Control over working hours - Portier Pacific and Uber exercised no control over when or for how long Ms Gupta performed her work as a delivery driver. These were factors entirely within Ms Gupta's control. Ms Gupta was also under no obligation to accept any particular delivery request when working.
  • Exclusivity - Even when logged on and performing work for Uber, there was no legal or practical impediment against Ms Gupta accepting work from a competitor delivery app (so long as her capacity to perform work for Uber was not compromised).
  • Presentation - Ms Gupta was not required to wear a uniform, bear logos on her car or represent herself as an emanation of the Uber business (other than when collecting meals from the restaurant and delivering them to customers).

In his minority decision, Deputy President Colman went further by finding Ms Gupta was neither a contractor nor employee of Uber, which was a 'commercial intermediary' between restaurants, customers and deliverers. On this view the analysis did not even need to proceed to the usual multi-factorial contractor v employee determination.

As such, the decision of the Full Bench of the Commission was that Ms Gupta was not entitled to pursue an unfair dismissal remedy against Uber.

While cases considering whether a worker is an employee or independent contractor turn on their own facts, given the usually strict uniformity of engagement when workers sign up to a 'gig economy' platform, decisions of this kind are highly instructive as to how other workers who provide their services on that specific platform (in this case Uber Eats) will be classified.

Other employers should carefully note those factors (as canvassed above, specifically control over working hours, exclusivity and presentation) that proved determinative in categorising Ms Gupta as an independent contractor rather than an employee.

For those concerned about the lack of regulation of 'gig economy' workers (such as the union movement), it will provide further evidence that the existing legal framework is inadequate to protect this growing cohort. That, in turn, might lead to legal reforms (such as an expansion of what constitutes an 'employee') that will have implications for employers generally.

For further information please contact:

Michael Byrnes Partner
Phone: +61 2 9233 5544

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