GIG ECONOMY LITIGATION DATABASE
Gupta v Portier Pacific Pty Ltd (2019)
Please note that this decision has been the subject of an appeal: see Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698
Citation/case number: [2019] FWC 5008
Country: Australia
Year: 2019
Court: Fair Work Commission
Status: Determined
Topic/theme: Employment relationship
Issue: Unfair dismissal
Claimant type: Individual
Respondent type: Corporation
Legislation considered: Fair Work Act 2009 (Cth), ss 380, 382, 386, 394
Factual background and procedural history
The claimant commenced work as a delivery driver for Uber Eats in September 2017, pursuant to services agreement with Uber BV and Portier Pacific Pty Ltd ("Portier Pacific"), an Australian subsidiary of Uber BV. In December 2018, her access to the platform was suspended. Her access was later restored, but she was then subsequently permanently blocked from accessing the Uber Eats app in January 2019. There was evidence that the reason for the claimant's suspension and subsequent blocking was that she was failing to meet Uber Eats' standards for timely delivery.
The claimant subsequently applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). The respondents to the application were named as Portier Pacific and Uber Australia Pty Ltd ("Uber Australia"), two Australian subsidiaries of Uber BV ("the Uber entities"). The Uber entities opposed the application, raising two jurisdictional issues: (1) that the claimant had no relationship with Uber Australia and as such it was not a proper respondent and the application insofar as it concerned that entity should be dismissed; and (2) that the claimant was not an employee of Uber Eats and therefore, by virtue of sections 380 and 382 of the Fair Work Act, was not entitled to protection against unfair dismissal.
Key issues for determination
(1) Was Uber Australia correctly identified as a respondent in the application?; and (2) was the claimant an "employee" of Uber Eats so as to be entitled to an unfair dismissal remedy under section 394 of the Fair Work Act?
Finding
The Commissioner first dealt with the matter concerning the identification of the correct respondents, making two observations in this regard. The first was that Uber Australia provided marketing and support services to Uber BV and Portier Pacific and was not a party to the services agreement with the claimant, and there was therefore no proper basis to find that Uber Australia was a proper respondent (at [34]-[35]). The second was that, in light of the arrangements in place under the services agreement, if any of the Uber entities were to be considered the claimant's employer, Uber BV would most likely be the relevant party. The fact that Portier Pacific was responsible for receiving and making payments from and to customers, restaurants and drivers respectively did not detract from that position, as Portier Pacific was acting as an agent, or portal, for all parties (at [36]).
The Commissioner then turned to consider whether the claimant was properly considered an employee of Uber Eats. After setting out the legal principles applicable to distinguishing between employees and independent contractors, the factual framework of the matter, and the relevant terms of the service agreement, he then considered each of the factors identified for consideration under the multi-factor test for distinguishing between independent contractors and employees under Australian law. In this regard, he made the following observations:
- Control: The claimant had significant control over the way she wanted to conduct the services she provided, including when she worked, how long she worked, what delivery requests she performed, the type of vehicle she used and how the vehicle was operated and maintained. Uber Eats had a measure of "soft control", including through the ratings system, its capacity to suggest the route to be taken and its setting of the maximum delivery fee, but these were common business efficiency rules and not of themselves strong signals of any particular type of relationship. This factor weighed against a finding of the existence of an employment relationship (at [87]-[90]).
- Entitlement to work for others: The claimant had the express right to use other food delivery systems and to use her vehicle for other services, although there were practical limitations on her capacity to accept requests from multiple apps at the same time. This weighed against a finding of the existence of an employment relationship (at [91]-[93]).
- Separate place of work and advertising of services: The claimant undertook work in and around her vehicle, visiting restaurants and delivering to the premises of customers. There was no evidence that she advertised her services or had the practical scope to generate work as an individual. This was a neutral consideration (at [94]-[97]).
- Provision and maintenance of tools and equipment: The claimant provided and maintained her own capital equipment. She was provided with an insulated delivery bag which was subject to a refundable deposit that was deducted from her payments, which she could have provided herself if she wished. This factor weighed marginally against a finding that an employment relationship existed (at [98]-[101]).
- Entitlement to delegate or sub-contract work: There was no formal right for the claimant to delegate or sub-contract the work, which weighed in favour of the existence of an employment relationship. However, in practice she was often assisted in the performance of her duties by her husband and this was also a relevant matter weighing against the existence of an employment relationship (at [102]-[103]).
- Right to suspend or dismiss: Uber Eats had the right to suspend or conclude the relationship on certain grounds enumerated under the services agreement. This type of right tended to exist in any business or employment relationship, and was not a significant factor. However, the right to suspend did not sit well with the concept of employment (at [104]-[106]).
- Public presentation: The claimant did not, and was not permitted to, display any Uber Eats signage on her vehicle, and was not required to and did not wear any Uber Eats uniform or identification. However, the marketing and provision of the service by Uber Eats contemplated that a deliverer arranged using the Uber Eats platform would deliver the meal. This was a neutral factor (at [107]-[109]).
- Deduction of income tax and GST: The claimant was required under the service agreement to deal with any applicable GST, and Uber Eats did not deduct income tax from the payments made to her. This marginally weighed against the existence of an employment relationship (at [110]-[111]).
- Provision of invoices and periodic payment: Invoices were generated by Portier Pacific on behalf of the claimant, and although the parameters of the delivery fee were, in effect, controlled by Uber Eats, the claimant had the capacity to negotiate a lower fee, to accept or reject particular delivery requests, and to dispute the delivery fee calculation. The absence of anything approaching a wage and associated payments weighed against a finding of an employment relationship (at [112]-[115]).
- Paid leave: There was no provision of any paid leave, but in the circumstances this factor was of little assistance (at [116]-[118]).
- Nature of the work: The work did not involve a profession, trade or special calling, and this weighed in favour of a finding that an employment relationship existed (at [119]-[121]).
- Creation of goodwill and other saleable assets: The claimant did not have the capacity to generate goodwill or any saleable assets, and this weighed in favour of a finding that an employment relationship existed (at [122]-[123]).
- Proportion of remuneration spent on business expenses: After noting that there was little evidence about this, the Commissioner observed that there was little by way of "business" expense in relative terms apart from the claimant's costs of operating a vehicle and a mobile phone (at [124]-[126]).
After weighing these considerations, the Commissioner concluded that "the more significant factors tend to weigh in favour of this particular relationship not being that of employment". Specific mention was made of the control indicia and the manner in which the delivery work was organised, actually carried out and remunerated, as well as the various roles of the parties under the services agreement (at [144]).
In reaching this conclusion, the Commissioner referred to a number of previous decisions dealing with the digital labour platform business model, including Kaseris v Rasier Pacific VOF; Pallage v Rasier Pacific Pty Ltd; Suliman v Rasier Pacific Pty Ltd and Klooger v Foodora Australia Pty Ltd. He also had regard to the UK Court of Appeal's decision in Uber BV v Aslam, but considered it not to be of direct assistance because it was made in the context of a different regulatory environment and was concerned with a legislative definition of employment (which specifically included a distinct intermediate category of "worker"), rather than the common law test for an employment relationship (at [135]-[142]).
Outcome
The claimant was held not to be an employee of Uber Eats for the purposes of sections 380 and 382 of the Fair Work Act, and was therefore not protected from unfair dismissal.
