Gig work is on the rise – you are likely to have used taxi alternatives such as Uber, Ola or DiDi and arranged food delivery via Deliveroo or Foodora. Perhaps you have engaged someone to walk your dog, move some furniture or assist with hard drive recovery via Airtasker?

A decision that made similar findings was handed down with respect to another former Uber driver, Janaka Pallage, in May 2018.

And then came the Foodora decision…

A gig worker decision late last year bucked the trend – the Commission held that a former “Corporate Rider” (delivery rider, Joshua Klooger) for Foodora Australia Pty Ltd (“Foodora”) was an employee (and consequently eligible to bring an unfair dismissal claim). This was despite the fact that (like in the Uber cases) the parties had entered into a written services agreement stipulating that Mr Klooger was engaged as contractor.

Applying the same multi-factorial test, Commissioner Cambridge noted the following indicia in support of his conclusion that the relationship between Mr Klooger and Foodora, was one of employment:

• Nature and manner in which work was performed – Mr Klooger worked shifts that were offered and selected via a shift allocation app on a weekly basis – the shifts had a fixed start time, finish time and geographical location – arrangements very similar to those for typical casual employees;
• Control – Foodora had “considerable capacity” to control the manner in which Mr Klooger performed work, including fixing start/finish times and place of work. Foodora also ranked work performance via certain metrics, and gave highly ranked riders priority in terms of choice of shifts;
• Branding – Mr Klooger wore Foodora branded attire and utilised Foodora branded equipment, in accordance with the service contract.

What does this mean for the gig workforce?

• The multi-factorial approach to distinguishing an employee from an independent contractor evolved long before the gig economy and is problematic in light of evolving nature of the digital economy and the new ways of working that are being put into practice.
• We can expect to see further test cases by gig workers asserting that they are employees – and litigation outcomes are likely to continue to differ depending on the specific factual scenario at hand.
• Businesses who are seeking to utilise gig workers and engage them as independent contractors should exercise caution and obtain specific legal advice to ensure that the way they operate in practice, as well as their written documentation, align to the indicia of a genuine principal-contractor relationship.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. © 2019 Toop Workplace Law Pty Ltd