The Guardian • Issue# 1964

Gig workers fight back

Fair Work Commission rules delivery riders are employees

The Fair Work Commission (FWC) has ruled that a delivery rider for Deliveroo, a food delivery company, is an employee, not a contractor, for the purposes of employment law. The ruling has been lauded by the Transport Workers Union of Australia (TWU) as a big win for gig workers across the country. The Commission found that Diego Franco, a delivery rider in Sydney, had his employment unlawfully terminated during the COVID-19 pandemic for “delivering meals too slowly.” Franco was given only seven days notice of his termination and given no right of reply.

The FWC found that the nature of the relationship between Franco and the company had the elements of a relationship between employee and employer including a uniform, a system of organised shifts and performance reviewing. Crucially, “multi-apping” – working for multiple companies at a time – did not necessarily mean that it wasn’t an employment relationship. This means that Deliveroo riders are entitled to the basic protections afforded to all employees under Australian Law, including the right not to be unfairly dismissed.

Michael Kaine, National Secretary of the TWU said that Franco’s case would be a “major test for the gig economy in Australia.” He made the following statement:

Deliveroo should not be fighting this case but apologising to Diego and his family and ensuring its riders are working within safe parameters.

The reprehensible behaviour of gig economy companies that pay below minimum wage and refuse workers’ rights is being challenged by brave workers like Diego and unions in Australia and around the world. Following international rulings that gig economy workers are entitled to rights that are not being met, the Australian Government must catch up and regulate with a tribunal to set minimum rights and protections for all workers.

The Federal Government has proved this week it is willing to take on major tech firms like Google and Facebook in an effort to regulate them. It should apply the same determination towards Uber, Deliveroo and others and protect workers in Australia.

The FWC’s ruling comes after a series of gig workers have been killed on the job. Five delivery riders were killed in the two months between September and November 2020 alone. Aside from being a particularly dangerous job, gig workers are some of the worst treated employees in the country, precisely because they have not been considered employees and have not been extended the protections afforded to other workers. A survey conducted in 2020 showed that delivery riders for companies like Deliveroo, DoorDash, Menulog and UberEats are paid just over $10 per hour and rideshare drivers for companies like Uber and Lyft just over $12 per hour. The fast food industry award is $19.06 for casual workers over the age of 18. The award for passenger vehicle transportation workers is between $15.98 and $19.98.

The Delivery Riders Alliance and the TWU report that seventy-one per cent of delivery riders and fifty-six per cent of rideshare drivers have struggled to pay bills and buy food, with gig workers across the board noticing a decrease in their pay over time. Thirty-six per cent of delivery riders and rideshare drivers have been injured at work, with the majority receiving no support from their company. A majority have not been provided with basic PPE or safety training during the pandemic while seventy-eight per cent say they were not compensated for lost wages when forced to self-isolate.

The majority of rideshare drivers report experiencing threatening behaviour from a passenger (eighty-one per cent), and having been verbally harassed or assaulted in some way (sixty-two per cent). Forty-one per cent say they have experienced racism on the job. Horrifically, seventeen per cent have reported being sexually harassed or assaulted at work. When the Australian Human Rights Commission discovered in 2019 that twenty-six per cent of students at elite universities had been sexually harassed or assaulted there was a massive outcry and universities acted quickly to at least give the appearance that something was being done. Our gig economy workers deserve the same concern and the same protections.

The ACTU has spoken out about the mistreatment of gig workers, calling on the Morrison government to protect those in insecure work by tightening workplace laws. ACTU Secretary Sally McManus said:

At the moment, so-called-gig economy workers have less rights than workers 100 years ago. They deserve the same rights as all other Australian workers.

By allowing these workers to be exploited by their employers and by the so-called gig economy system, our Government is not only turning their back on the workers and their families, but is also creating an unfair system for employers who have to compete against these companies.

These companies are racing to the bottom by deliberately eroding workplace rights and protections for workers.

What the ACTU statement leaves out is any mention of the application of corporate manslaughter to companies employing gig workers. In July 2020, amendments to the Occupational Health and Safety Act 2004 (Vic) commenced, introducing the offence of corporate manslaughter in Victoria. The introduction of this law followed the deaths of 183 workers who were fatally injured at work across 2019.

A corporation commits corporate manslaughter where they are negligent, in breach of their duty to an employee and where that breach causes the employee’s death. It is punishable by up to twenty-five years in prison for individuals and fines of $16.5mil for companies. Similar laws exist in all states and territories except NSW, SA, and Tasmania. As of 13 May, thirty-four workers have been killed at work this year.

Following the deaths of five delivery riders in 2020, a NSW government taskforce found that riders are “under unrealistic time pressures to deliver food, causing a risk to their safety.” The treatment of gig workers by their companies has the potential to meet the corporate manslaughter threshold.

The ACTU ought also to call on the government to ensure that companies employing gig workers are captured within the scope of corporate manslaughter laws, to ensure they are held responsible for the treatment of their workers.

In this context, the finding of the FWC that a gig economy worker was an employee has been lauded as a precedent-setting ruling with “huge implications” for gig workers. Politically, this is true. Such a ruling puts pressure on companies to respect the rights of their employees and sends the message that a tribunal may intervene to enforce those rights. It may also put pressure on the government to tighten workplace laws. It is certainly a win for gig workers.

Legally speaking, the finding of the FWC itself is not binding on Courts and other tribunals. However, Deliveroo has stated that it will appeal the decision in a court of law, disputing the claim that its workers are employees for legal purposes. The outcome of any proceedings emanating from the appeal will be legally binding on lower courts. The Full Court of the Federal Court of Australia has previously held that owner-drivers of delivery trucks are employees but a worker employed by a labour-hire company is a contractor. This decision may inform the outcome of the appeal, but a court will ultimately have to decide where the chips fall for gig workers.

Deliveroo states that the freedom of self-employment is the “key reason” why people choose to work for them, and that giving their employees rights would take away those freedoms. Don’t let this rhetoric fool you – delivery riders and rideshare drivers are not “self-employed.” In Australia, an employee is “a person that’s hired to provide a service to a company either on a full-time, part-time or casual basis in exchange for payment.” Gig workers fit this definition. They are subject to terms of employment set by the companies they work for, and they should be afforded the hard-won rights that every worker in Australia is entitled to.

In a time of pandemic, gig workers are some of the most essential workers we have – and some of the most vulnerable. While Victoria and other parts of the country were in sustained lockdown for most of 2020, the demand for delivery services skyrocketed. The rich locked themselves away while the poor risked their lives to bring them food and other essential goods. Gig workers like Diego Franco were out on the streets every day at a great risk to their own health while the rest of us stayed at home. What they need is not a patronising pat on the back for their “heroism” but real legislative action to protect their rights – to fair wages, safe conditions, sick leave and sick pay. No one should have to risk their life for poverty wages.

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