Mark Branagan

The gig’s not up – Uber wins again

Mark Branagan

30 April 2020

Employment Disputes

Uber – the global face of the Gig Economy – has survived another legal challenge, and fought off the claim that Uber Eats delivery drivers are ’employees’ for the purposes of Australian unfair dismissal laws.

In 2017, and again last year, Uber won two important unfair dismissal cases in the Fair Work Commission (FWC). In those cases, the FWC had concluded that Uber was no more than a ‘limited payment collection agent’. Rather than an employer, Uber was held to be only facilitating the provision of transport services through the connection of online interests between an Uber driver and an Uber customer.

In the latest case, Gupta v Portier Pacific [2020] FWCFB 1698, the Full Bench of the FWC dismissed an appeal by an Uber Eats delivery driver, Amita Gupta. Gupta’s unfair dismissal application had been dismissed (by Hampton C) on the basis that she was not an ’employee’ as required by section 382 of the Fair Work Act 2009.

Gupta had been engaged as an Uber delivery driver collecting meals from restaurants and delivering them to customers. Uber Eats paid her a fee for the delivery. Gupta performed over 2,000 deliveries before being excluded from Uber Eats operations for not meeting timely delivery standards. According to Uber, she was not ‘dismissed’, merely ‘blocked’ from the App that supplied her work.

The FWC at first instance and on appeal closely examined Gupta’s arrangements with Uber Eats. This revealed a range of online ‘engagements’ whereby Gupta was only one of a number of parties who connected through digital technology. For example, restaurants engaged with Uber Eats through a Restaurant App to promote their products, menus and offer home delivery services. Customers accessed an Eats App where they gained access to the restaurants and authorised Uber Eats to deduct payment for the meals and their delivery. Gupta became a ‘Delivery Partner’ through a Partner App with Uber Eats. She also signed a detailed Service Agreement that incorporated service guidelines for deliveries.

Once logged on as a driver, Gupta was free to do as much work as she wished and was not obliged to accept any work. She could work for others; she could also reject particular restaurant bookings, and did so on over 500 occasions. Gupta provided her own car and smartphone; she was not obliged to wear a uniform. She was, however, required to carry out her delivery functions in a professional manner, including a requirement for due care, skill and diligence.

The Full Bench appeal raised all of the traditional issues when classifying the nature of work done by Uber Eats drivers as either employment or an independent contracting relationship. These authorities remain valid, most importantly the High Court’s approach in Stevens v Brodribb Sawmills and Hollis v Vabu (determined in 1986 and 2001 respectively) endorsing the tests of ‘control’, ‘multi-factor’ and the ‘totality of the relationship’. These in turn have been applied by the FWC in Abdalla v Viewdaze (2003) and Jiang Shen Cai t/as French Accent v Rozario [2011] FWAFB 8307 (the French Accent decision).

While the Full Bench dismissed Gupta’s appeal and found that she was not an employee, it published two separate judgments. Two members (President Ross and VP Hatcher) applied the traditional employment characterisation tests. After looking at the conventional indicia based on case law, they found that Gupta had established a ‘work-wage’ relationship with Uber but that she was not an employee. Major factors included lack of control, no obligation to work, no physical presentation as part of Uber Eats. Accordingly, they found that there was no error in the original judgment.

In a separate judgment, DP Colman found that there was no contract of service; no employment relationship; no control; no commitment to exclusive work; and no manifest representation as being part of the Uber Eats business. Gupta was not required to do any work. On that basis, there was no need to even apply the traditional tests. On DP Colman’s assessment, the Uber model did not at any stage create a ‘work-wages’ bargain and therefore the claim did not even get to first base. DP Colman did not even consider that Gupta was a contractor.

As our world has developed an increased appetite for home deliveries during the retreat into home-based work and shelter from COVID-19, services such as Uber Eats have been booming. At this stage, the law does not seem capable of dealing with technology-based service providers. These business models avoid ’employment’ because, in their purest form, they are simply matching up people who need a service. Person needs transport – Uber brings driver and passenger together. Person needs food – Uber Eats brings restaurant and customer together, linking the two through the medium of the delivery driver. Uber manages the payment and distributes to all parties. Uber literally provides the ‘platform’ for the parties to connect with each other.

It is difficult to impose well-established and sensible ’employment’ legal tests on such fast-moving dynamic technology and forms of engagement as we see with Uber. If, as is likely, we see further growth in the Gig Economy and the range of delivery services continues to expand with more creative apps and online systems, then we may need to assess whether regulation via Parliament is more effective to provide greater protections to this segment of our working market.

Please contact a member of our Employment, Workplace Relations and Safety Team if you would like our assistance or require further information.