By Jack de Flamingh and John Casey -
Snapshot
- The Fair Work Commission’s recent finding that a Deliveroo rider, engaged as an independent contractor, was actually an employee, epitomises the tensions between the traditional tests and the modern technological economy.
- The multifactorial test survives, although the FWC had some novel takes on its indicators.
- It appears increasingly inevitable that the solution to gig economy classification issues will not lie in decisions like this (or appeals from them) but rather with legislative reform.
Legal systems throughout the world are struggling to categorise work relationships at a time of profound technological, social and economic change – changes which are currently compounded by the effects of the COVID‑19 pandemic which highlight the embedded nature of gig economy work, and the lack of traditional employment benefits associated with it.
In February 2021, the United Kingdom Supreme Court created global news when it found that an Uber driver was a worker for the purposes of British employment legislation (Uber BV v Aslam [2021] UKSC 5). Closer to home, the latest instalment in this categorisation conundrum, is the Fair Work Commission (‘FWC’) decision in Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818 (‘Deliveroo’).
In some ways, the story is in a familiar one. An independent contractor, here a delivery rider called Mr Franco, claimed that he was at law truly an employee. He argued that, as a result, he was unfairly dismissed when Deliveroo Australia Pty Ltd (‘Deliveroo’) ended their relationship.
Courts have been grappling with these types of questions for an age, adding A (complex common law tests) to B (different fact patterns) to calculate C (the true nature of the relationship).
The Deliveroo decision falls squarely at the crossroads where the common law approach meets today’s rapidly evolving tech economy. As we wrote in the September edition of this Journal, those two do not often make a happy couple (see: ‘Employment relationships: when two’s company and three’s a crowd’ 70 Law Society of NSW Journal, Sep 2020, 82-83).
The long term impact of the Deliveroo decision is uncertain. It is a first instance decision which Deliveroo has announced it will appeal. Nonetheless, it is a further example of how traditional regulatory models are only just keeping up with evolving labour models.
What were the key facts?
Any successful challenge to being classified as an independent contractor rather than an employee must be built on a detailed foundation of the facts. Mr Franco rose to the challenge, with Commissioner Cambridge identifying the following key facts:
