Fair Work fight on Uber Eats starts

Denham Sadler
National Affairs Editor

A Fair Work challenge against UberEats will have “enormous” implications for the regulation of the gig economy, according to Transport Workers Union national secretary Michael Kaine.

The Transport Workers Union (TWU) argued at the Fair Work Commission (FWC) on Monday that gig economy workers should be classified as employees and receive the benefits associated with that, with Mr Kaine slamming the federal government for a lack of action in the space.

The TWU announced in September that it had taken on the case of UberEats delivery driver Amita Gupta, who was kicked off the app after she was 10 minutes late making a food delivery.

Ms Gupta took her dismissal to the FWC, but it was ruled she was unable to make such a complaint as she wasn’t an employee. The TWU has now joined the case and is appealing the decision, again at the FWC.

The case was heard on Monday, with the TWU arguing that the original decision didn’t take into account the fact that Gupta wasn’t operating her own business, and that UberEats was exercising a large amount of control over her work and how she was paid.

Ms Gupta, an Adelaide-based delivery driver, completed more than 2200 deliveries with her partner, Santosh, from September 2017 to January this year.

But when she was 10 minutes late making a delivery earlier this year, her access to the UberEats app was revoked

The union is arguing that for all intents and purposes, Ms Gupta was an employee of UberEats and should be entitled to the corresponding rights and benefits, including the ability to claim unfair dismissal.

The case strikes at the heart of the gig economy, with most companies operating in it classifying their workers as independent contractors rather than employees.

On Monday, the TWU argued that the commission should look beyond the classification of UberEats workers as independent contractors and focus on the practical relationship.

“We put it to them that the relationship that had been created by Uber was a legal fiction built on top of a legal fiction, and that the Fair Work Commission needs to look beyond that to see the heart of the relationship,” Mr Kaine told InnovationAus.com.

“We hope that the Fair Work Commission reserves its decision, takes the time to think this through and brings a decision that looks through the artificial structures to see the heart of what’s going on, which is the exploitation of people like Amita right through the modern economy.”

The test of what constitutes an employee is outdated, Mr Kaine said, and the federal government needs to intervene.

“The test that Amita has to navigate, the hurdle she has to get over, is based on an ancient test that is less and less applicable. Even if a worker falls just on the independent contractor side, they get none of the rights,” he said.

“We say that’s not an appropriate test, and the federal government should intervene and legislate to put appropriate tailored protections in place. But it’s failing to do that, so we have to take these cases and attempt to show the truth of the matter.”

The TWU has been campaigning for legislative reform around the gig economy for several years. But the federal government has remained silent on the matter, Mr Kaine said.

“The government’s position of silence is aiding and abetting these tech giants in perpetuating this myth that workers run their own businesses, and the myth you can only have flexibility if you’re an independent contractor,” he said.

“We’re actively out there trying to bust this myth and hope the Fair Work Commission comes out in our favour. We’ve made multiple approaches to the government and Minister Porter.

“The response has been to say the law in this area is settled. But that’s precisely the problem – it’s totally inappropriate to the modern economy, it’s an archaic test born in the master and servant relationship and not applicable to the modern economy.

“Hopefully the Fair Work Commission will take up our submission and look to the heart of the relationship.”

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