• CMI Legal

To Be an Employee or Not to Be: Expounding the Rights of Delivery Riders

As we see more and more cyclists on the road with big squares on their backs, especially during the COVID-19 pandemic, the legal debate over the classification and rights of delivery riders continue to intensify. Reports emerged that, within only two months, at least five riders have died while on delivery duty, and one rider died every 11 days between September and November last year. Should Uber Eats and fellow companies such as Menulog and Deliveroo take the brunt for the risky working conditions?

Photograph by Mart Production

App-based companies facilitating the food deliveries have mostly kept their hands off the reigns, referring to the agreements to which riders sign up as contractors. The companies argue that such arrangement gives riders the freedom to choose when and where to work, and to accept and reject delivery orders as they please. This allows riders to complete deliveries without compromising other commitments such as work, study and caretaking.

The disadvantage is that employers are not responsible for the health & safety of contractor riders, among an array of other things such as minimum wages, paid sick live and injury compensation. This perspective on gig work is more or less settled in Australia, especially after the full bench of the Fair Work Commission decided in 2019 that a terminated rider was not an employee of Uber Eats and hence could not make a claim for unfair dismissal against the delivery platform giant.

However, the uncertainty is far from over as other test cases have been settled out of court and even decided otherwise. A year prior to the Uber Eats case, when a then Foodora delivery rider raised public concerns regarding his pay, he was sacked by the company. The Transport Workers Union (TWU) took the unfair dismissal to the Fair Work Commission, who found that the delivery riders were in fact casual workers and Foodora owed more than $8 million in wages, superannuation and tax.

In the highly publicised UK case of Uber BV and others v Aslam and others [2021], the UK Supreme Court found that Uber drivers are “workers” entitled to minimum wage and annual leave, not self-employed. The Employment Rights Act 1996 (UK) defines employment as such:

  1. Those who are employed under a contract are “employees”;

  2. Those who have entered into a contract to perform work or services for another party, but the other party is not a client or customer (i.e. the other party is an employer), are “workers”.

The term “worker” in the UK is further expounded as “an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else”. In short, all employees are workers, but an employee has more employment rights.

Such shift in stance by UK law on the status of gig workers will be highly relevant to the High Court appeals due to be decided this year. It also signals that it is probably time for Australia to expand its common law notion of “employee”.