Gig Workers – Employees or Independent Contractors?

The question that has been before the Fair Work Commission this year and last year particularly is whether gig workers who receive work via digital platforms such as Uber Eats drivers are engaged as independent contractors or employees?

If these workers are classified as employees, then they can seek the protection of unfair dismissal laws and also the entitlements that follow for employees under the Fair Work Act 2009. This is in contrast to independent contractors who are not entitled to the entitlements and protection afforded to employees under the Fair Work Act 2009.

The case of Gupta v Portier Pacific Pty Ltd: Uber Australia Pty Ltd T/A Uber Eats [2019] FWC 5008 23 August 2019 known as “Amita Gupta and Uber Eats”, raises the issue of employee versus independent contractor and demonstrates how the Fair Work Commission has chosen to deal with the subject of these gig workers.

Between 26 September 2017 until the 15 January 2019, Ms Gupta worked as a delivery driver for Portier Pacific Pty Ltd and Uber Australia Pty Ltd T/A Uber Eats. (Collectively these companies are referred to as Uber Eats for the purposes of the court action). She was allegedly dismissed on 15 January 2019. Ms Gupta brought an application in the Fair Work Commission for an unfair dismissal remedy pursuant to Section 394 of Fair Work Act claiming she was an employee.

Ms Gupta argued that Uber Eats decision to suspend and then permanently block her access to her Uber Partner App, constituted an unfair dismissal.

Uber Eats opposed Miss Gupta’s unfair dismissal application on the ground of jurisdiction stating that Ms Gupta was not entitled to bring such an application in the Fair Work Commission as this was a business relationship and not one of employee and employer within the meaning of the Fair Work Act 2009.

Ms Gupta indicated that she was an employee based on the level of control Uber had over her. Some of the important points raised by Ms Gupta were as follows:

1. Ms Gupta was obliged to use the Uber navigation App to calculate payment based on the Uber Apps assessment of the best or fairest route;
2. Uber controlled the work given to her and also used its rating system based upon restaurant and customer feedback to exert more control;
3. Uber took the risk associated with the delivery work as Ms Gupta was not required to hold indemnity insurance;
4. Ms Gupta did not supply any specialist equipment;
5. Ms Gupta was unable to subcontract the work and was required to undertake it personally.

Uber Eats raised the following arguments to defend the unfair dismissal application as follows:

1. Ms Gupta was a party to a Tripartite Service Agreement between herself, Uber and Portier from the 19 September 2017 to 14 January 2019;
2. Ms Gupta had no relationship with Uber Australia.
3. Uber Eats is a technology business that provides “lead generation software”;
4. Ms Gupta was a delivery partner who intermittently used Uber software and a mobile phone App to receive requests for food delivery services on behalf of the restaurants;
5. Ms Gupta was under no obligation to sign on to the App or when logged on to accept any delivery request;
6. Ms Gupta paid Portier a service fee and Uber Eats did not pay Ms Gupta but rather acted as a limited payment collection agent to permit the Restaurant to pay Ms Gupta;
7. There was no work wages bargain between Ms Gupta and Uber Eats;
8. The terms of Service Agreement defined the relationship as being a business relationship and not one of employer and employee;

The Fair Work Commission referred to the relevant indicia previously referred to in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (2011)FWAFB 8307 and held that Gupta had significant control over the way in which she conducted the services she provided for Uber Eats. In particular the Commission noted that Gupta had expressly rejected over 550 delivery requests and cancelled 240 delivery requests after initially accepting the request.

In addition, the Commission noted that Gupta had the ability to work for other competitors to Uber Eats. Also, the services agreement required Gupta to register for GST as income was not subject to PAYG taxations. The Commission noted that Gupta was also required to provide her own tools of trade, specifically her vehicle and phone and to maintain a valid vehicle registration and insurance.

Further the Fair Work Commission held that Uber Eats “soft control” over Gupta’s requirement for vehicle maintenance and performance standards, were insufficient considerations to outweigh its finding of principle and contractor.

The Commission examined the “totality of this particularly relationship” and the nature of the services agreement which was expressly stated as between “principle and contractor”. As a result it held that Ms Gupta was not an employee of Uber Eats.

For a relationship to exist the courts have determined that there must be, at a minimum, an obligation from an employee to perform work when it is demanded by the employer.

Since the Gupta decision by the Fair Work Commission on the 26 August 2019, the Transport Workers Union has lodged an appeal in September 2019 on behalf of Gupta to the Full Bench of the Fair Work Commission which has not been determined as yet.

Even though the question regarding Gupta being an employee is on appeal, it is important to understand that each working relationship is different. The court weighs up the factors in each working relationship and examines the “totality of the relationship” in each case. For example the case of the Uber driver is different from the case of the Foodora driver who is arguably under the control of the employer and is considered an employee. It would be unwise to view every gig worker as an independent contractor as it is important to examine all the facts first.

Johnston Withers Lawyers can help!

Johnston Withers’ employment lawyers have experience in providing advice to employers, employees and independent contractors. If you’d like advice or direction from a lawyer, please contact us on (08) 8231 1110, or get in touch online.

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