The most significant ‘gig economy’ decision yet?


Posted By on 22/04/20 at 11:39 AM

Michael Cochrane shares his continued analysis and insights on trends in the ‘gig economy’ and the latest instalment in what has been a string of ‘gig economy’ rulings in recent times.

Yesterday, a Full Bench of the Fair Work Commission unanimously held that an Uber Eats delivery driver (Ms Gupta) was not an employee (Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 169).

In upholding an earlier decision of Commissioner Hampton which dismissed Ms Gupta’s application for an unfair dismissal remedy against Uber Eats on the basis that she was not an employee, the Full Bench held that there were 3 critical factors which pointed decisively away from a finding of employment in this case.

These were that:

  1. Uber Eats exercised no control over when or whether Ms Gupta performed her work. That is, Ms Gupta was both legally and in practice entirely in control as to when she logged onto the Uber Eats ‘Partner App’ and for how long she remained logged on. Further, once logged on, there was no obligation upon her to accept any particular delivery request.
  1. Ms Gupta had no obligation of exclusivity of service to Uber Eats. Ms Gupta was free (even when logged on to the Uber Eats ‘Partner App’ and even when performing work pursuant to a delivery request) to accept work through other competing food delivery apps or perform other types of similar work provided it did not compromise her capacity to effect her Uber Eats deliveries within required time expectations.
  1. Ms Gupta was not represented as an ‘emanation’ of the Uber Eats business when performing her work. Specifically, she was not required to wear a uniform, her car bore no logos, and there was no evidence that she was required to even represent that she was part of the Uber Eats business beyond collecting the particular meal from the restaurant and delivering it to the customer.

Gig economy - Uber Eats driver found to be employee

In otherwise applying the well settled multifactorial test, the Full Bench unanimously concluded that there was no contract of service, and therefore no employment relationship.

What is really interesting about the decision is only Justice Ross and VP Hatcher determined that Ms Gupta was providing delivery work ‘for’ Uber Eats as an independent contractor.

DP Coleman took it one step further than this finding that Ms Gupta was neither an employee nor an independent contractor of Uber Eats. Rather, DP Coleman found that Uber Eats was merely a “commercial intermediary” (or a paymaster-type platform) between restaurants, customers and delivery drivers only.

Notwithstanding the different views about the nature of the relationship between Ms Gupta and Uber Eats, the unanimous Full Bench decision is clearly a significant one in terms of such workers categorically not being employees.

We see the decision having wider implications for the gig economy more generally as it essentially now maps out the blueprint for how gig economy businesses and platforms can ensure that they do not put themselves at risk of non-compliance with workplace laws.

Whilst naturally the TWU may still appeal the Full Bench decision, for now it appears that Uber (and other gig economy businesses that set up and run their business model adopting similar principles) are out of the woods.

However, it is important that gig economy businesses keep in mind that the decision is still quite specific to Uber Eats and how it operates. Both gig economy providers/platforms and companies that use their services should therefore continue their ongoing review and assessment of their models (both contractually and in practice) in order to reduce the risks of any potential allegations of non-compliance with Australian workplace laws.

If you have any questions, please don’t hesitate to contact our Workplace Relations & Safety team.

Michael Cochrane Principal Solicitor

Michael is a principal solicitor in our Workplace Relations & Safety group, and practices all aspects of workplace relations law with a particular focus in the areas of employee relations, corporate... Read More