The [seemingly never ending] question of whether a person is an employee or an independent contractor was revisited in two recent decisions of the Fair Work Commission.
Uber Eats delivery driver
Classified as: Contractor
Held to be: Contractor
In a decision that impacts businesses and workers in the gig economy, the Full Bench of the Fair Work Commission in Amita Gupta v Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats  FWCFB 1698 dismissed an Uber Eats delivery driver’s appeal, rejecting her claim that she was an employee.
Ms Gupta originally lodged an unfair dismissal claim last year against Uber when it permanently disallowed her access to its platform after not meeting company delivery standards.
In August 2019, the Commission held that Ms Gupta was not an employee after considering a range of factors and the totality of the relationship. The Commission noted that there would be days where Ms Gupta would not log into the app at all, or accepted varying numbers of requests while logged on. Ms Gupta was found to have rejected over 550 delivery requests and cancelled 240 delivery requests after having initially accepted the delivery request. Accordingly, Ms Gupta’s claim for unfair dismissal was rejected on the basis of a finding by the Commission that she was not an employee.
Ms Gupta lodged an appeal against the Commission’s decision.
After consideration of the first instance decision and relevant case law, the Full Bench of the Commission agreed that Ms Gupta’s relationship with Uber Eats did not bear the “essential hallmarks of an employment relationship”.
Despite finding that some factors leaned in favour of a finding of employment, including that Ms Gupta did not exercise a particular trade or skill, the rates for delivery were set by Uber, and that she could not delegate work or establish goodwill, the majority of the Full Bench held that three critical factors were decisive in finding that she was not an employee:
Ms Gupta exercised significant control as to when to log on and off the app with no obligation of accepting a delivery request;
Ms Gupta had the ability to perform work for other competing food delivery platforms; and
Ms Gupta was under no obligation to present herself as an emanation of Uber Eats by wearing a uniform or displaying Uber Eats branding.
Other relevant factors including Uber’s control over delivery standards were held as “neutral”, with the Full Bench noting that it is not unusual for a principal to establish and enforce performance and quality standards of independent contractors.
While the majority conceded there is “some tension” between their conclusion that Ms Gupta was not an employee and that she was not conducting a business in her own right, the majority stated that she “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. In any event, the question we are required to determine is whether Ms Gupta was an employee … and we consider that she was not … accordingly the appeal must be dismissed.”
Classified as: Contractor
Held to be: Employee
The Full Bench decision in Advanced Health Invest Pty Ltd t/a Mastery Dental Clinic v Mei Chan  FWCFB 585 was the fourth time the parties had been before the Commission. Of most relevance was the determination of which factors were used to determine that the Dentists were employees rather than independent contractors.
Deputy President Cross, during the third hearing, reviewed the “Contractors Agreement” that Mastery Dental Clinic gave to each dentist, and analysed elements which would indicate whether the dentists were employees or independent contractors. The Deputy President’s analysis is summarised below:
In determining that the Dentists were employees, DP Cross noted “viewed practically, none of the Dentists could be viewed as conducting a business of their own of which the work in question form a part. The Dentists perform work at the MDC’s premises, using tools and equipment provided by MDC. MDC presents the Dentists to the world at large as part of their business. In performing the work pursuant to the Contractors Agreement, the Dentists have no opportunity to grow their business, or create goodwill or saleable assets.”
With regard to each Dentist being responsible for their own taxation liabilities, DP Cross stated “what is significant is that the Dentists have virtually no control over their billing and the calculation of their remuneration, other than by performing the work allocated to them” by MDC. Finally, with regard to the clause in the Contractor Agreement stating that the Dentists were not employees, “the express term cannot take effect according to its terms if it contradicts the effect of the Contractors Agreement as a whole, which it does”.
Where to from here?
The above decisions are part of an extensive line of case authority which examines the totality of the relationship between the parties in determining whether a worker is an employee or independent contractor. More recently courts and tribunals have expressed difficulty in reconciling the cases when reviewing a working relationship in gig economy. Unfortunately the seemingly conflicting outcomes in cases with largely similar facts mean that organisations will continue to face the risk that a person classified as a contractor may, when it suits, elect to argue that they should be treated as an employee. Until such time as legislation clarifies the distinction, the question remains an each way bet.