Uber Eats delivery riders are not employees, the Fair Work Commission says

A former Uber Eats rider who was removed from the platform for being 10 minutes late with a delivery has lost her unfair dismissal case after the Fair Work Commission (FWC) found she was an independent contractor to the company and did not meet the benchmarks to qualify an employee for an unfair dismissal claim.

The dismissal of the appeal before the full bench of the FWC sets the standard for gig economy workers

Pensioner Amita Gupta and her husband, Santosh Gupta, had made 2200 UberEats deliveries in Adelaide between 2017 and 2019 before their access to the app was stopped in January 2019. With the backing of the Transport Workers Union, she lodged an unfair dismissal claim against Portier Pacific Pty Ltd, the Australian company behind the Uber app, and Uber Australia. That claim was initially dismissed in August last year. She appealed, but the case was dismissed this week.

In the ruling, FWC president Justice Iain Ross wrote: “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. For these reasons we conclude she was not an employee of Portier Pacific”.

He ruled that Gupta “had the capacity to develop her own independent delivery business as a result of her legal and practical right to seek and accept other types of work while performing work for Uber Eats, but chose not to”.

Deputy president Alan Colman said none of the contractual obligations she had to Portier Pacific required her to perform work for the company.

“She was free to undertake whatever deliveries she wished, or no deliveries. She could log on at any time. She could choose not to log on. Once she accepted a delivery opportunity, she could cancel it,” he wrote.

“Ms Gupta made no promise to Portier Pacific to undertake work, and the company did not seek any such promise. Portier Pacific was in fact indifferent to whether Ms Gupta accepted delivery opportunities.”

The FWC heard that she had “rejected over 500 delivery requests without adverse consequence” before she was cut from the platform.

The FWC looked at 15 issues to consider whether an Uber Eats delivery driver was an employee, including control (how and when they work), their ability to work for others, the deduction of income tax and GST, the provision and maintenance of tools and equipment, paid leave and the nature of the work.

Ross concluded that while there were competing signs and some weighed in favour of an employee relationship, overall they did not.

But TWU National Secretary Michael Kaine claimed a victory, while also calling on the federal government to regulate regulate the gig economy.

“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. 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,” he said.

“We need to regulate this sector urgently to stop this exploitation. The Federal Government must act on behalf of workers like Amita and thousands of people like her.”

The TWU is now considering appealing the appeal.

“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,” Kaine said.