A landmark decision by the NSW government disputes resolution body, the Personal Injury Commission, with see the family of a food delivery rider killed in a traffic accident in 2020 receive $830,000 in compensation after food company and its insurer accepted liability for his death.
Xiaojun Chen, 43, died in September 2020 after his bike collided with a bus. He took the job with delivery company Hungry Panda to support a wife and two children in China, and along left behind a dependent 75-year old father.
Law firm Slater and Gordon took up the case with support from the The Transport Workers’ Union (TWU), which has been campaigning for food delivery riders to have rights such as minimum wages and workers’ compensation benefits.
iCare workers’ compensation scheme insurance agent Employers Mutual Limited (EML) agreed that Chen was employed by HungryPanda when he died, meaning his family is now entitled to benefits.
Slater and Gordon Practice Group Leader Jasmina Mackovic said the outcome as ground breaking.
“To our knowledge, this is the first case where there has been an admission that a gig economy driver has been considered a worker,” she said.
“Gig economy workers and their families are usually denied any entitlements because they are considered independent contractors rather than employees, meaning they are unable to access workers’ compensation and other benefits such as annul leave and sick leave.
“This also means that workers or their families are not guaranteed loss of wages payments, medical payments or a lump sum for any impairment suffered if they are injured or ill, or even in the case of death as has happened here.”
Chen’s death was part of a spate of deaths by gig economy riders that led to a NSW parliamentary inquiry into the sector, which led to the state ramping up education and training to improve safety.
During the inquiry Hungry Panda’s HR manager gave evidence that she didn’t know there was a legal obligation for companies to immediately report deaths to SafeWork NSW.
The company is now collaborating with the TWU to improve its conditions and operating standards.
‘Nothing can fix this’
Chen’s widow, Lihong Wei, said in a statement that the decision would bring “respect and recognition to all food delivery workers for the essential service they provide”.
Wei said her husband was planning to return to China to open a business together to take care of their extended family before he died
“Now that dream will never be realised. The grief my children, their grandparents and myself feel cannot be put into words,” she said.
“My children miss their daddy every day. My daughter has begun struggling with school and my son has lost his father forever at just eight years’ old. My father in-law has lost his only son. Nothing can ever fix this.”
TWU National Secretary Michael Kaine welcomed the decision.
“After two long years, justice has finally been delivered for Xiaojun’s family,” he said.
“No family should have to experience the indescribable grief of losing a loved one at work. While no amount of compensation will truly heal the loss Xioajun’s family feels, this decision goes a long way towards righting a horrible wrong.”
He praised Wei’s “incredible strength” in fighting to change the industry for how “she has bravely spoken truth to power”.
“For too long, gig companies have been able to skirt the edges of our out-dated industrial relations law which divides workers into two camps: one which receives hard-won rights, and one which is not entitled to any basic protections,” he said.
“Denying workers’ rights has created an industry rife with underpayment, extraordinary pressure, injuries and death.
The new Albanese government is looking to implement national standards for the gig economy to provide better protections for workers.