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Norman Waterhouse

Full Bench confirms that Uber Eats driver was an independent contractor

On 25 October 2019, we updated readers on the Fair Work Commission’s (the Commission’s) judgment of Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd [2019] FWC 5008 (the Initial Decision), where Commissioner Hampton held that Ms Amita Gupta, an Uber Eats driver, was an independent contractor and as such, was not covered by unfair dismissal laws pursuant to the Fair Work Act 2009 (Cth) (FW Act).

Ms Gupta appealed the Initial Decision and on 21 April 2020, the Full Bench of the Commission (the Full Bench) handed down its judgment of Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats [2020] FWCFB 1698, upholding the Commission’s initial determination that Ms Gupta was not an employee.

Facts

Ms Gupta was a Delivery Partner in connection with the Uber Eats business for the period 19 September 2017 to 14 January 2019 (the Relevant Period). Portier Pacific Pty Ltd (Portier Pacific) and Uber Australia Pty Ltd (collectively, Uber) are constituent corporate elements of Uber Eats. Ms Gupta and Uber were parties to a Service Agreement during the Relevant Period.

Commissioner Hampton determined that Ms Gupta was not a person protected from unfair dismissal within the meaning of the FW Act because Ms Gupta was not an employee of Uber but an independent contractor. This conclusion was reached after an application of the ‘multi-factor’ test established in Shen Cai trading as French Accent v Michael Anthony Do Razario [2011] FWAFB 8307 (French Accent).

On appeal to the Full Bench, Ms Gupta submitted that the application of the relevant principles to the circumstances of her performance of work as a Delivery Partner reveals her to have been an employee working in the Uber Eats business, because, among other things:

  • The work she performed did not require any special skill or qualification;
  • Ms Gupta was told via the Partner App, where orders were to be collected from, the location of the customer and the route to be taken;
  • Ms Gupta was not permitted to have any independent contact with customers which might allow her to accrue goodwill or establish her own customer connection to any business she may have been running;
  • Ms Gupta was not permitted to subcontract or delegate her work, and was required to verify that she was the person using the Partner App by logging in from time to time using facial recognition software;
  • The rates Ms Gupta was paid were determined by Portier Pacific, and the freedom to negotiate lower rates was nugatory; and
  • Ms Gupta was performing work in Portier Pacific’s food delivery business and was not operating a business of her own.

Uber rejected Ms Gupta’s submissions and submitted that the Initial Decision was correct. Specifically, Uber made reference to the Commission’s findings that the essential elements of the ‘work wages’ bargain (reciprocal obligations to work and to pay) were absent in the present case and thus no employment relationship existed. Further, Uber submitted, among other things, that there was an absence of control on the part of Uber.

Decision of the Full Bench

Justice Ross and Vice President Hatcher of the Full Bench (the Majority) pointed out that the multi-factorial evaluative approach set out in French Accent proceeds on the premise that the individual in question personally performs work pursuant to a contractual relationship with another person or entity, so that the question to be determined is whether the first person does so in the capacity of an employee or as an independent contractor. The Full Bench had to first determine whether Ms Gupta performed her delivery work pursuant to a contractual relationship with Portier Pacific at all. Uber submitted that she did not, because Ms Gupta performed each delivery task pursuant to a contract with the relevant restaurant, while Uber acted as an agent of the restaurant in arranging for Mr Gupta to pick up and deliver the meal.

While the Service Agreement supported Uber’s position, the Majority held that Ms Gupta performed her delivery work for and was paid for it by Portier Pacific, notwithstanding the labelling in the Service Agreement.

The Majority then considered whether Ms Gupta performed her delivery work for Uber as an employee or independent contractor, by determining whether Commissioner Hampton’s conclusion concerning the existence or otherwise of an employment relationship was correct. In doing so, it considered the High Court decisions of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu (2001) 207 CLR 21.

While the Majority was of the view that some factors lean in favour of an employment relationship (including the fact that Ms Gupta’s work did not involve the exercise of any particular trade or skill and there was no aspect of her work which would permit it to be characterised as the carrying on of an independent business or enterprise), it ultimately held that there were three critical factors which point decisively away from a finding of employment and provide a significant point of distinction from the factual scenario considered in Hollis v Vabu. Those factors were:

  • Portier Pacific exercised no control over when or how long Ms Gupta performed her work;
  • Ms Gupta was able, even when logged on and even when performing work pursuant to a delivery request, to accept work through other competitor food delivery apps or perform other types of passenger or delivery work provided this did not compromise her capacity to effect her Uber Eats deliveries within time expectations; and
  • Ms Gupta was not presented as an emanation of the Uber Eats business in the performance of her work.

The Majority therefore determined that the conclusion reached by Commissioner Hampton in the Initial Decision was correct and dismissed the appeal.

We note that while Deputy President Colman agreed with the Majority’s findings that Ms Gupta was not an employee of Uber, he went further and stated that Ms Gupta was not even a party to a contract for services with Portier Pacific as an independent contractor.

Take Home Messages

The decision of the Full Bench makes it clear that drivers in connection with Uber, Uber Eats and arguably other gig-economy meal delivery services, are independent contractors, not employees. While such persons have other distinct rights under the FW Act and at common law, they are not persons protected from unfair dismissal.

The decision once again reiterates that when determining whether a worker is an employee or an independent contractor, a Court, Tribunal or the Commission will consider the totality of the working arrangement. The difference between an independent contractor and an employee is a common question and will always rely heavily on the facts. While this decision provides some clarity for this industry, each case should always be dealt with individually.

For more specific information on any of the material contained in this article please contact Ganesh Krishnan on 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on 8217 1331 or agravas@normans.com.au.

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