Fair Work Com­mis­sion Full Bench Con­firms Gig Work­er’s Status

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.