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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 [2020] 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 work she performed did not require any specialised skills;
• the app she worked from provided specific instructions for the collection and delivery of meals;
• Uber had the power to terminate its agreement with the delivery driver and to restrict her access to the delivery app;
• Uber’s guidelines for delivery drivers amounted to the exercise of control by Uber over the driver both in terms of how work was to be performed and expected behavioural standards;
• the ratings system operated as a kind of performance management system;
• the delivery driver was not permitted to have any independent contact with restaurants or customers outside of the app, meaning she could not establish goodwill on her own account;
• she was not permitted to delegate or subcontract the work; and
• rates of pay (being delivery fees) were determined by Uber.

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:

• Uber did not exercise control over when or how long the delivery driver performed her work. It was entirely within the driver’s control as to when she logged into the delivery app and for how long. Further, there was no obligation on her to accept any particular deliveries once logged on.
• The delivery driver was able to perform work for other delivery services even when logged on and performing services for Uber.
• The delivery driver was not presented to the world as an emanation of Uber. She was not required to wear a uniform, there were no Uber logos on her car and she was not required to represent Uber, other than to identify herself for collection and delivery of meals.

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.

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