Uber Eats not drivers’ boss, bench confirms

In a blow to gig economy worker rights, Fair Work Commission full bench rules sacked delivery driver was contractor.

Amita Gupta and her husband Santosh Gupta delivered food for Uber Eats and were sacked by Uber. Picture: Kelly Barnes

Unions have lost a significant legal action against Uber, after a Fair Work Commission full bench found Uber Eats delivery drivers were not employees.

Amita Gupta lost her job after she and her husband, Santosh Gupta, completed 2200 Uber Eats deliveries in Adelaide over 18 months. While paid $19,000, the duo had work expenses, including petrol and vehicle costs of $9000.

During one week, the duo was logged on to work for 96 hours but paid just $300. When Ms Gupta was 10 minutes late with a delivery, her access to the phone app was cut off.

The TWU lodged a full bench appeal of an earlier commission decision that found Ms Gupta was an independent contractor and not entitled to claim unfair dismissal.

The union said the commission erred by failing to take into account that Ms Gupta was not operating her own independ­ent business and the degree of “effectiv­e control” exercised by Uber over its relationship with her, including the way she was paid.

The full bench, headed by president Iain Ross, did find Ms Gupta was not conducting a business in her own right and did perform her delivery work pursuant to a service agreement with Uber’s Australian subsidiary, Portier Pacific.

It said some matters “lean in favour” of a finding of employment, including that there was no aspect of her work which could be characterised as that of an independent business or enterprise.

The full bench said Ms Gupta had no means of independently expanding her customer base or generating additional work within the Uber Eats business and was not permitted to delegate the work

But the full bench said Uber Eats exercised no control over when or how long Ms Gupta performed her work. It was entirely within Ms Gupta’s control as to when she logged onto the Partner App and for how long she remained logged on. Once logged on, there was no obligation upon her to accept any particular delivery request.

The full bench said 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.

Ms Gupta was also not required to wear an Uber Eats uniform, her car bore no logos, and there was no evidence that she was required to even represent that she was part of the Uber Eats business beyond what was necessary to collect the particular meal from the restaurant and deliver to the customer.

“In summary, we do not consider that Ms Gupta’s relationship with Portier Pacific bore a number of the usual and essential hallmarks of an employment relationship, namely a requirement to perform work at particular times or in particular circumstances, exclusivity when work is being performed, and presentation to the public as serving in the business,” the full bench said. “For these reasons we conclude she was not an employee of Portier Pacific.”

Appeal considered

While welcoming some of the findings, TWU national secretary Michael Kaine said the union would consider appealing the full bench decision.

He said the full bench found Uber had a contractual relationship with workers regardless of the labels it applied to them.

“This judgment goes further than we have ever seen in Australia in terms of tearing down Uber’s elaborate business model and exposing it as a sham,” he said.

“It states what is already clear to those who work in Uber and those who use its service: that Uber is a transport service that has responsibilities to its workers, restaurants and the public who use its app.

“The union will be looking to appeal this judgment since the commission felt it was constrained by a previous High Court case in terms of finding in favour of Amita. We believe Uber unfairly sacked Amita and we believe Uber must be stopped from abusing and exploiting workers.”

Uber Eats said the decision confirmed that delivery-partners using the Uber Eats platform were independent contractors.

“The decision found that the characteristics of the Uber Eats business point “decisively away” from a finding of employment,” a spokesperson said

“It also reflects what 87 per cent of delivery partners tell us - that they value the freedom and flexibility the Uber app provides.

“Uber Eats offers delivery partners a flexible way to make money on a schedule that works for them, and where they can be their own boss.”