Sacked Uber Eats delivery worker's Federal Court appeal commences

Her legal representatives said in court that the ability to choose when to work should not dictate whether delivery workers are defined as employees or independent contractors.
Written by Campbell Kwan, Contributor

TWU national secretary Michael Kaine (second from the left) and former Uber Eats food delivery worker Amita Gupta (far right)

Image: TWU

A former Uber Eats delivery driver on Friday continued her fight to be classified as an unfairly sacked employee.

The former delivery worker, Amita Gupta, was allegedly sacked by Uber Eats for being 10 minutes late with an order. She also claimed in the lawsuit that she was only paid AU$300 for 96 hours of work. The Australian minimum wage is AU$18.93.

Gupta brought the dispute to the Federal Court after the Fair Work Commission (FWC) in April found that she did not have an employee-employer relationship with Uber Eats.

The FWC came to the decision that such a relationship did not exist between Uber Eats and Gupta as she could perform her work whenever and for as long as she wanted. This reason, among two other "key critical factors", was what steered the commission's decision.

This was despite the FWC noting that Uber Eats has the power to set drivers' pay, ban drivers from having commercial relationships with restaurants, and ban drivers from subcontracting work to others. At the time, these factors were not enough to meet the threshold of creating an employer-employee relationship.

Appealing the FWC's decision, Gupta's senior counsel Mark Gibian said on Friday that the ability to choose when to work should not dictate whether delivery workers are defined as employees or independent contractors. He said this was because Uber has a significant degree of control over how deliveries are conducted.

Gibian provided the example of how delivery workers are not provided with the names of the restaurants they would pick up from until they accept delivery requests, which he argued puts workers in a position where it has to rely heavily on Uber. 

"Uber exercises what we would regard as a significant degree of control and supervision over the matter in which work is performed .. with the sanction of termination or deactivation," Gibian said. 

Meanwhile, Uber Eats' legal representative Ian Neil said the company continued to support the FWC's full-bench decision. 

In addition, Neil said delivery workers are represented just as equally by Uber Eats and restaurants under a "quadrilateral relationship", explaining that consumers can make a complaint to either restaurants or Uber Eats about the delivery workers when explaining how these workers are reprimanded.

In conjunction with that statement, Neil clarified that delivery workers are neither Uber Eats employees nor people conducting their own business, but rather, they are just "people working for themselves". 

Responding to questions about how this could be the case, Neil said it is not a binary test and that delivery workers are sole traders. He also explained that for the purposes of determining whether delivery workers are employees, it was not necessary for Uber Eats to prove delivery workers did not conduct their own business.

"It's not necessary in order to demonstrate that somebody's not an employee. It's not necessary to show that they built up goodwill and so on," he said.

The start of the appeal comes shortly after the New South Wales government announced it would commence an investigation into whether improvements are required to enhance the safety of gig economy workers. 

Since September, five food delivery workers have died while on the job, with two of them occurring in the past week. The two most recent fatalities were Uber Eats deliver workers.

If the FWC's decision is overturned, it would be a shift from past decisions made in Australia. Last year, the Fair Work Ombudsman, much like the FWC, found that Uber Australia's relationship with its drivers was not an employment one.

"For [an employment] relationship to exist, the courts have determined that there must be, at a minimum, an obligation for an employee to perform work when it is demanded by the employer," Fair Work Ombudsman Sandra Parker said at the time.


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