What is an employment relationship? The Uber Eats case

The Fair Work Commission, in an important appeal, has held that an Uber Eats operator was not an employee, and in doing so has carefully dissected the nature of the legal relationship between Uber Eats and many of those earning a living from the relationship. Here is an extract from the decision of the majority of the Full Bench.

“Consideration

[35] The approach taken by the Commissioner was to determine, by application of the indicia identified in the Full Bench decision in French Accent (derived from High Court authorities to which we will later refer), whether Ms Gupta was an employee or independent contractor of Portier Pacific. As part of that assessment, the Commissioner took into account whether there existed a “work-wages” bargain between Ms Gupta and Portier Pacific without making a conclusive finding about that issue.

[36] The multi-factorial evaluative approach set out in French Accent proceeds on the premise that the individual in question personally performs work pursuant to a contractual relationship with another person or entity, so that the question to be determined is whether the first person does so in the capacity of an employee or as an independent contractor. However in this case, a prior question arises: did Ms Gupta perform her delivery work pursuant to a contractual relationship with Portier Pacific at all? Portier Pacific denies this is the case; it says that Ms Gupta performed each delivery task pursuant to a contract with the relevant restaurant, that the restaurant had the obligation to pay her, and that Portier Pacific acted merely as the agent of the restaurant in arranging for the attendance of Ms Gupta to pick up and deliver the meal, and acted as Ms Gupta’s “limited payment collection agent” in collecting the delivery fee on her behalf and remitting it to her. In this connection, it is to be noted that clause 8.3 of the Service Agreement seeks to deny that Ms Gupta is either an employee or an independent contractor of Portier Pacific. It characterises the relationship the other way around, in that it contends that Portier Pacific (together with Uber) provide services to Ms Gupta by way of giving her access to the Partner App and collecting payments on her behalf, and for this she pays a service fee to them.

[37] If the position is as Portier Pacific contends, there cannot be an employment relationship between it and Ms Gupta because the “irreducible minimum of mutual obligation necessary to create a contract of service”, described by the Supreme Court of NSW (McDougall J) in Forstaff v Chief Commissioner of State Revenue 21 as “… an obligation on the one side to perform work (or provide service) and on the other side to pay…”, does not exist. For that reason, it is necessary first to analyse the contractual relationship between Ms Gupta and Portier Pacific/Uber, and the other contractual relationships in the Uber Eats business system, to determine whether the minimum reciprocal obligations of work and payment existed as between Ms Gupta and Portier Pacific/Uber.

[38] There is no doubt that the characterisation of the nature of the relationship between Ms Gupta and Portier Pacific/Uber in the Service Agreement supports Portier Pacific’s position to a substantial degree. We have earlier set out or described the relevant provisions of the Service Agreement. In summary:

  • the preamble seeks to cast Ms Gupta as an “independent provider of delivery services” who utilises “lead generation services” to “seek, receive and fulfil” requests for delivery services from restaurants, and who acknowledges and agrees that neither Uber nor Portier Pacific provide delivery services themselves;
  • clause 2.2 provides that Ms Gupta acknowledges and agrees that the provision of delivery services to any restaurant creates a direct business relationship between her and the restaurant to which Portier Pacific and Uber are not parties;
  • clause 8.3 (as stated above) provides that Ms Gupta is not an employee or independent contractor of Portier Pacific; and
  • clause 13 provides that Portier Pacific acts as a “limited payment collection agency” solely for the purpose of collecting payment from restaurants on Ms Gupta’s behalf.

[39] However all the above provisions may be regarded as merely labelling or characterising the nature of the contractual relationship between Ms Gupta and Portier Pacific/Uber; none of them set out the substantive rights and obligations of that relationship. It is well established that such labels cannot alter the substantive nature of the relationship. As was stated by Isaacs J in Curtis v Perth & Fremantle Bottle Exchange Co Ltd: 22

“Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance.”

[40] More recent decisions of the Federal Court Full Court have elucidated this principle in the context of the identification of whether an employment relationship exists. In ACE Insurance Limited v Trifunovski, Buchanan J (with whom Lander and Robertson JJ agreed) said that “the nature of the relationship may be legitimately examined by reference to the actual way in which work was carried out”. 23 In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ (with whom Barker J relevantly agreed) said that: “…appellate courts in Australia and the United Kingdom have been particularly alert, when determining whether a relationship is one of employment, to ensure that form and presentation do not distract the court from identifying the substance of what has been truly agreed. It has been repeatedly emphasised that courts should focus on the real substance, practical reality or true nature of the relationship in question…”.24 And in WorkPac Pty Ltd v Skene the Full Court said “The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed.25

[41] A similar principle 26 was applied in the decision of the England and Wales Court of Appeal (Civil Division) in Uber B.V. v Aslam,27 which concerned whether drivers in Uber’s passenger business in London were “workers” under the relevant legislation. Uber’s position was that the driver contracted with the passenger, and the role of the relevant Uber entity was only to act as agent of the driver to secure bookings through its technology platform. The Court majority (Etherton MR and Bean LJ) rejected this, and affirmed the conclusion of the Employment Tribunal that “it is not real to regard Uber as working ‘for’ the drivers and that the only sensible interpretation is that the relationship is the other way round. Uber runs a transportation business. The drivers provide the skilled labour through which the organisation delivers its services and earns its profits.”28 This conclusion was based on the following considerations which the Court considered of relevance and significance:

  • the relevant Uber entity (ULL) had the sole and absolute discretion to accept or decline bookings;
  • ULL interviewed and recruited the drivers;
  • ULL controlled key information concerning passengers from which the drivers were excluded;
  • ULL required drivers to accept or not cancel trips and enforced this by logging them off;
  • ULL set the default route and the driver departed from it at his or her peril;
  • ULL fixed the fare and the driver could not agree on a higher fare (with the right to negotiate a lower fare being nugatory);
  • ULL imposed numerous conditions on drivers, instructed them on how to do their work and controlled them in the performance of their duties;
  • ULL’s rating system amounted to a performance management/disciplinary procedure;
  • ULL determined issues about rebates, sometimes without reference to the affected driver;
  • ULL handled customer complaints, including complaints about passengers; and
  • ULL had the power to amend the driver’s terms unilaterally. 29

[42] By contrast, a different approach was taken when the Uber passenger business model was considered by this Commission in Kaseris 30 in the context of an application by an Uber driver for an unfair dismissal remedy. In that decision Gostencnik DP found that the fundamental requirement of “work-wages” bargain as between the driver and the relevant Uber entity were absent:

“[51] …It is, I consider, in this case clear on the facts that these fundamental elements of an employment relationship did not exist as between the Applicant and the Respondent. I briefly restate the uncontested evidence set out earlier to make good this conclusion. First, neither under the terms of the Services Agreement between the parties nor under the arrangement as it operated in practice was the Applicant required to perform any work or provide any services for the benefit of the Respondent. As the evidence plainly establishes, the Applicant was free to perform as much or as little work with it as he liked. In providing a transportation service to riders, the Applicant did so when, where and for whom he saw fit, without any further reference to the Respondent. In the provision of the transportation service to a Rider, the Applicant was not performing any contractual obligation he owed to the Respondent. Secondly, the Respondent did not make any payment to the Applicant for the provision of any work or services. Rather, the Applicant was charged a service fee by the Respondent calculated as an agreed percentage of the fee paid by the Rider for the trip in consideration for certain services provided by the Respondent to the Applicant to which reference has earlier been made. The work-wages bargain is plainly absent. There was no employment relationship between the Applicant and the Respondent with the consequence that the Applicant was not an employee and was thus not a person protected from unfair dismissal.”

[43] The same approach was taken by the Commission (Bissett C) in another unfair dismissal remedy application involving the Uber passenger service. 31

[44] In the matter before us, the question for whom did Ms Gupta perform delivery work, and by whom was she paid for it, must be answered by reference to the substantive rights and obligations under the Service Agreement, the Guidelines, the Restaurants Agreement and the commercial or working reality of the overall arrangement by which Ms Gupta delivered restaurant meals to customers. The following matters, we consider, are demonstrative of the proposition that Ms Gupta performed her delivery work for and was paid for it by Portier Pacific, notwithstanding the labelling in the Service Agreement to which we have earlier referred.

[45] First, there is no basis to conclude that there was any contractual relationship between Ms Gupta and any restaurant in relation to which she delivered a meal to a customer. There are of course no identifiable terms of any such agreement. Portier Pacific does not anywhere in the comprehensive terms of the Service Agreement purport to be acting as agent for any restaurants using the Restaurant App and engaging with Ms Gupta on this basis. The Service Agreement could not legally effect an agreement between Ms Gupta and any restaurant, regardless of the assertion in clause 2.2 of that agreement. It is difficult to see how any such contract could be formed consistent with usual contractual principles. Under the Uber Eats system, Ms Gupta was not at the time she accepted any delivery request informed of the name and address of the relevant restaurant; this was only disclosed to her after the acceptance of a request. Neither the restaurant nor Ms Gupta had any role in setting the price to be paid for the delivery to be performed; this was set by Portier Pacific. Insofar as the Service Agreement purportedly permitted Ms Gupta and restaurants to negotiate a lower fee, it was entirely nugatory, being commercially nonsensical and at odds with the way in which the arrangement operated in practice. Ms Gupta was prohibited under clause 2.1 of the Service Agreement from engaging in communication with restaurants other than for the purpose of fulfilling specific delivery requests which she had accepted, so she was effectively not permitted to form any ongoing commercial relationship or build goodwill with any restaurant in relation to which she performed a delivery. Indeed the purpose of this provision is likely to have been to prevent Ms Gupta and other deliverers “stealing” the restaurants which Portier Pacific considered to be its clients.

[46] Second, any obligations attaching to the performance of the delivery work are to be found in the Service Agreement between Ms Gupta, Portier Pacific and Uber, and the Guidelines (which, as earlier stated, were incorporated by reference into the Service Agreement). Clause 3.1 of the Service Agreement obliged Ms Gupta to provide her delivery services in a professional manner with due skill, care and diligence, and maintain high standards of professionalism, service and courtesy. The Guidelines required that delivery services be performed safely and lawfully, that all interactions with customers be appropriate and respectful, and that meals be delivered in accordance with safety and other relevant requirements. The ratings system meant that Ms Gupta was at risk of suspension or expulsion from the Partner App, and termination of the Service Agreement, if these standards were not maintained in the eyes of customers. Consistent delays in performing deliveries might lead to the same result. These obligations are most readily explicable on the basis that Ms Gupta was performing her delivery work for Portier Pacific. There is no evidence of any restaurant imposing obligations of this nature upon Ms Gupta.

[47] Third, payment for Ms Gupta’s delivery work was a matter entirely within the control and responsibility of Portier Pacific. As earlier stated, the price for the work was set by Portier Pacific, not any restaurant. Portier Pacific had the right under the Service Agreement to alter the delivery fee structure applicable to Ms Gupta without any reference to the restaurant. No money changed hands as between any restaurant and Ms Gupta; rather, Portier Pacific collected the total fee from the customer for the meal and the delivery, and distributed it to the restaurant and Ms Gupta respectively (less deductions for its own fees). There was no separate payment for each delivery; instead, in accordance with clause 4.1 of the Service Agreement, Portier Pacific paid Ms Gupta on a weekly basis for all deliveries made for various restaurants across the week. The invoices to restaurants prepared by Portier Pacific on behalf of Ms Gupta were purely notional, since payment for her deliveries had already been received by Portier Pacific from customers via the Partner App. Ms Gupta had no role in the preparation of these invoices, and the amounts nominally charged were the amounts determined pursuant to the contract between her, Portier Pacific and Uber.

[48] In summary, we consider that Portier Pacific engaged Ms Gupta to perform delivery services for it, and paid her for them, as part of a business by which it delivered restaurant meals to the general public. On that basis, the minimum reciprocal obligations of work and payment can be said to exist.

[49] Two decisions may be referred to in support of the above analysis. Relevant to Portier Pacific’s contention that it acted as agent of the restaurants in securing deliverers to deliver meals for the restaurants, the Federal Court Full Court in Building Workers’ Industrial Union of Australia v Odco Pty Ltd 32 considered the legal relationships established when a progenitor of the labour hire business model in Australia, Troubleshooters, provided labour to businesses operating in the building industry. The Court rejected a submission that in doing so, the builders entered directly into contracts with the workers with Troubleshooters merely acting as agent for the builders in obtaining the labour, for four reasons. The first was as follows:

“An alternative analysis for which the appellants contended was that Troubleshooters was the agent of the builder in engaging the services of the worker and brought about a contract of employment between its presumptive principal and the worker. The chief objection to this analysis arises from the evidence that it was Troubleshooters which fixed, and adjusted from time to time, the remuneration to which each worker was entitled. That was apparently done without reference to the builder who was only concerned to know the gross amount which he was obliged to pay Troubleshooters in respect of workers made available by it.” 33

[50] This underscores the significance we have placed upon the fact that Portier Pacific, not the restaurants, determined unilaterally the rate of delivery fees to be paid to Ms Gupta. The second reason given by the Court was that when Troubleshooters collected the fees for the labour from the builders, deducted its own fees and then paid the workers, it did so not as agent for the workers, but pursuant to a clearly express liability to pay the worker whether the builder paid for the work or not. 34 It may be accepted that there was no express provision for such liability on the part of Portier Pacific in the Service Agreement, but in any event there were no practical circumstances in which the restaurant had to actually pay for the delivery services at all, since the fee was collected by Portier Pacific from the customer. The third reason, taken from the judgment of the trial judge, was as follows:

“In the first place, when the builder’s order is accepted – subject only to later notification of inability to supply – the particular worker to be allocated is not known. Some worker will later ring in and will be offered the job – he will accept or reject it as he sees fit. It would be highly artificial to suggest that the contract with the builder had already been made on his behalf…”

[51] That proposition is entirely applicable here. When a restaurant receives and accepts a meal request via the Restaurant App, neither it nor Portier Pacific knows the identity of the deliverer who will ultimately deliver it. Nor, as explained above, does the deliverer know the identity of the restaurant prior to accepting a delivery request.

[52] Finally, the Court said: “As well, the appellant’s contention involves the awkward concept of Troubleshooters owing at one moment a fiduciary duty as agent to the builder, and then at some later undefined point, assuming a similar obligation to the worker.” 35 Portier Pacific’s case involves the same difficulty since it contends that it acts as both agent for the restaurant and Ms Gupta.

[53] In Damevski v Giudice, 36 the Federal Court Full Court determined that a cleaner, Mr Damevski, who had been directly employed by a business named Endoxos, but was then terminated and re-engaged to perform the same cleaning duties for Endoxos pursuant to an arrangement with a labour hire agency, MLC Workplace Solutions, remained at law an employee of Endoxos. In the judgment of Merkel J, the factual features of the case which distinguished it from the Odco scenario and the normal labour hire agency situation were identified. They included that Endoxos rather than MLC determined the remuneration payable to Mr Damevski, and MLC played no role in the relationship between Mr Damevski and Endoxos.37 Merkel J went on to say:

“[173] In general, the courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee-employer relationship between the client and the worker: [citations omitted]

[174] However, the present case differs in significant respects from those cases. In those cases, in general, the hiring agency interviewed and selected the workers, and determined their remuneration, without reference to the client. Usually, a client requesting a worker with particular skills was provided with one, who may or may not have been “on the books” of the hiring agency at the time the order was placed. The workers of such hiring agencies were usually meant to keep the agency informed of their availability to work, and in many cases were not to agree to undertake work for the client which had not been arranged or directed by the hiring agency. Equipment was either supplied by the worker themselves, or by the hiring agency, except for specialist safety equipment which the client often supplied. Dismissal of a worker was only able to be effected by the hiring agency. The client can only advise the hiring agency that the particular worker is no longer required by it. Had AICA/MLC acted as a labour hiring agency for Damevski to contract his services to other cleaning companies, as suggested in the chart and in the information pack, then the decisions in the above cases may have been applicable to this situation. However, that did not eventuate in the present case.”

[54] None of the distinguishing features identified by Merkel J are applicable in the present case, and the role of Portier Pacific can be regarded as analogous to a high degree with that of the normal labour hire business scenario.

[55] Having concluded that Ms Gupta performed her delivery work for Portier Pacific pursuant to the Service Agreement and the guidelines, it remains necessary for us to determine whether she did so as an employee or independent contractor. As earlier stated, a multi-factorial test has been adopted in the common law to answer this question. The application of this test in borderline cases such as the one before us is not without difficulty, since it requires the making of an evaluative judgment involving the weighing of various relevant considerations and, as such, may not produce any single clear answer. Notwithstanding this, where the existence of an employment relationship is a jurisdictional fact, as here, a decision determining that question is not to be treated as if it is a discretionary decision for the purposes of an appeal. In Sammartino v Foggo, 38 a Full Court of the Federal Court said in relation to the proper approach to be taken by a Full Bench of the Australian Industrial Relations Commission in an appeal from a decision concerning whether a worker was an employee at law:

“[9] On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King (supra). In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7).

[10] It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decision-maker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted.”

[56] Full Benches of this Commission have accordingly proceeded in appeals of this type on the basis that it is necessary to determine whether the primary decision-maker’s conclusion concerning the existence or otherwise of an employment relationship was correct. 39

[57] It is only necessary to refer to two High Court authorities concerning the multi-factorial test to be applied. First, in Stevens v Brodribb Sawmilling Co Pty Ltd 40 (Brodribb) Mason J (as he then was) said:

“…A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it (Zuijs v. Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561, at p 571; Federal Commissioner of Taxation v. Barrett [1973] HCA 49; (1973) 129 CLR 395, at p 402; Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389). In the last-mentioned case Dixon J. said (at p 404):

‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.’

But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question (Queensland Stations Pty Ltd v. Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539, at p 552; Zuijs’ Case; Federal Commissioner of Taxation v. Barrett, at p 401; Marshall v. Whittaker’s Building Supply Co. [1963] HCA 26; (1963) 109 CLR 210, at p 218). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the
putative employee.” 41

[58] The second is Hollis v Vabu, 42 in which the High Court (by majority) determined that a bicycle courier engaged by a courier company was employed by it such as to make the company vicariously liable for injury caused by the courier to a third person. In the context of a discussion about the doctrine of vicarious liability and its application to the acts of employees done in the course of their employment, but not to those of independent contractors, the majority (Gleeson CJ and Gaudron, Gummow, Kirby and Hayne JJ) attached significance43 to a passage in the judgment of Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd44 in which his Honour “fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor”. In connection with this, the majority then referred45 with approval to the statement made by Windeyer J in Marshall v Whittaker’s Building Supply Co46 that the distinction between an employee and an independent contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own”. However the context indicates that the reference to this statement was not intended to erect a substitute or proxy for the multi-factorial test referred to in Brodribb but rather to explain the fundamental import of the distinction between employees and independent contractors in the doctrine of vicarious liability. Thus the majority, after referring to Brodribb, said that in the case before the Court that “guidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” (underlining added).47

[59] In determining that the courier company’s bicycle couriers were employees (contrary to the decision of the NSW Court of Appeal under appeal), the majority placed emphasis upon seven matters, which may be summarised as follows:

(1) The couriers did not provide skilled labour or labour which required special qualifications and could not independently operate as couriers or generate any goodwill. 48

(2) The couriers had little control over the manner of performing their work. They had a required start time, were assigned to a roster and were not able to refuse work. It was unlikely that they could delegate their work or be able to work for another courier operator. 49

(3) The couriers were presented to the public as emanations of the courier company: they had uniforms with a company logo, and were required in their attitude and appearance to act as the company’s representative. This partly reflected the company’s wish to advertise its business. 50

(4) The need for deterrence in respect of the known danger of bicycle couriers to pedestrians favoured a finding of employment. 51

(5) The courier company superintended the couriers’ finances in respect of remuneration, pay adjustments and deductions, and there was no scope for the couriers to bargain for the rate of their remuneration. The method of payment per delivery was a natural means to remunerate employees whose sole duty was to perform deliveries, for ease of calculation and to provide an incentive. The company also controlled absences from work for leave purposes. 52

(6) The situation with tools and equipment favoured, if anything, a finding that the couriers were employees. The capital outlay was relatively small and bicycles were not tools inherently capable of use only for courier work, but could also be used for personal transport or recreation. The majority said: “The fact that the couriers were responsible for their own bicycles reflects only that they were in a situation of employment more favourable than not to the employer; it does not indicate the existence of a relationship of independent contractor and principal”.  53

(7) There was considerable scope for the exercise of actual control by the courier company. It retained control of the allocation and direction of deliveries. The couriers had little latitude, their work was allocated by the fleet controller, and they had to deliver goods as directed. 54

[60] The sixth matter requires some further elaboration. Before turning to the above matters, the majority had said:

“[47] In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu’s business…”

[61] The NSW Court of Appeal decision under appeal had substantially followed an earlier decision by that Court which involved the very same courier company, Vabu Pty Ltd v Federal Commissioner of Taxation. 55 In that decision, the Court had determined that the company’s couriers who used light commercial vans or domestic-type cars to perform their work were not employees for the purpose of superannuation legislation. In the judgment of Meagher JA, one of the reasons identified for finding that the couriers were not employees was that they bore the “very considerable” expense of providing and maintaining their own vehicles and making payments for repairs and insurance. The High Court refused special leave to appeal from the Court of Appeal’s decision.

[62] In Hollis v Vabu, the majority referred to this earlier decision and said:

“[22] It is significant to note that one of the considerations mentioned by Meagher JA in the taxation decision as indicating that the couriers were independent contractors was that they bore the ‘very considerable’ expense of providing, maintaining and insuring their own vehicles. It is apparent that Meagher JA was there concerned with expense in relation to motor vehicles and motorcycles. The purchase and maintenance of a bicycle could hardly be termed a ‘very considerable’ expense. It may be that, in the taxation decision, a case that was, as his Honour put it, ‘hardly without difficulty’, a different result might properly have been reached respecting Vabu’s bicycle couriers from that which obtained respecting its other couriers. However, it is unnecessary to express any conclusion on this matter. It is sufficient to say that this case concerns liability arising from the activity of a bicycle courier, not a motor vehicle or motorbike courier. For the reasons that follow, the relationship between Vabu and its bicycle couriers in the present case is properly to be characterised as one of employment.”

[63] This presents some difficulty in the present case, since it suggests that the provision by a courier of a vehicle – even merely a domestic-type car – as distinct from a bicycle would be sufficient to tip the balance away from a finding of employment. Some further assistance in this connection is provided by the Federal Court Full Court decision in Roy Morgan Research Pty Ltd v Commissioner of Taxation, 56 in which the Court affirmed a decision of the Administrative Appeals Tribunal that interviewers engaged by the Roy Morgan business were employees for the purpose of superannuation legislation. One relevant factual consideration was that the interviewers were generally required to supply, maintain and insure their own vehicle when working in the field, for which Roy Morgan paid a rate per kilometre for use of the vehicle. In relation to this issue, the Court said:

“[41] Roy Morgan’s reliance on McHugh J’s observations about the couriers’ motor vehicles in Hollis 207 CLR at [71] does not assist. His Honour’s was a lone voice on this issue. In any event there is a distinct difference between a requirement that a courier have a motor vehicle in order to be able to carry goods from one place to another, which is the essence of a courier’s job, and a flexible requirement that an interviewer have a vehicle in which to keep documents secure while working in the field. More relevant are the observations of the majority at [56]. Their Honours were of the view that bicycles are not tools that are inherently capable of use only for courier work, but provide a means of personal transport. The same may be said of motor cars. In the cases relied on by McHugh J at [71], the vehicles in question were specialised conveyances: trucks for carrying timber and gravel respectively in Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 and Wright v Attorney-General (Tas) [1954] HCA 26; (1954) 94 CLR 409. The Tribunal did not err in treating the flexible requirement to provide a vehicle in the way it did.”

[64] In French Accent, a Full Bench of this Commission usefully summarised the considerations, derived from various court authorities, which may be relevant in the application of the multi-factorial test referred to in Brodribb. However as was stated by Winneke P in the Victorian Court of Appeal decision in The Roy Morgan Research Centre P/L v The Commissioner of State Revenue, 57 the task in applying the test is not to be approached as a mechanical exercise of running through items on a checklist, but is rather “a matter of obtaining the overall picture from the accumulation of detail”. This involves “an assessment and evaluation of evidence for the purpose of identification and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion”.58

[65] We consider that a number of features of the Uber Eats business model are neutral in relation to the question of whether Ms Gupta was an employee. Firstly, we do not consider that the fact that Ms Gupta was required to provide her own motor vehicle and mobile phone in order to carry out her work necessarily points to her being an independent contractor. Beyond the very minimal requirement that the vehicle had to be of 1990 make or newer, these were not specialised items of equipment, and were not purchased for the purpose of performing Uber Eats work because they were already owned and used for personal purposes. The running cost of the vehicle’s use can be seen as being encompassed in the distance element of the remuneration model. The provision of a vehicle and mobile phone in this way is common as a feature of employment relationships as well as principal-independent contractor relationships.

[66] Secondly, the degree of control exercised by Portier Pacific through the various obligations imposed by the Service Agreement, the Guidelines and the ratings system to require the performance of the work to a satisfactory standard does not necessarily point to an employment relationship. There is nothing particularly unusual about a principal establishing and enforcing performance and quality standards in respect of independent contractors engaged to perform work.

[67] Thirdly, the fact that Ms Gupta was remunerated on a per-delivery basis, received no leave or superannuation benefits, and was responsible for her own taxation obligations does not point to her necessarily being an independent contractor. As for the mode of payment, we take the same view as the majority in Hollis v Vabu that this was a natural means to remunerate the deliverers regardless of their status. The fact that no leave or superannuation benefits were provided and no taxation was deducted is simply reflective of Portier Pacific’s view that its relationship with Ms Gupta was not one of employment. 59

[68] Some matters lean in favour of a finding of employment. Ms Gupta’s work did not involve the exercise of any particular trade or skill, and required no special qualifications. The rate of the delivery fee was set by Portier Pacific, and it superintended the payment to her of remuneration on a weekly basis (although it may be noted that it is not uncommon for principals who engage a body of independent contractors to perform work, such as in long distance road transport, to establish a standard rate or rate system which is equally applicable to all such contractors). There was no aspect of her work which would permit it to be characterised as the carrying on of an independent business or enterprise: she had no means of independently expanding her customer base or generating additional work within the Uber Eats business or of establishing goodwill with any of the restaurants or customers with whom she dealt. And, finally, she was not permitted to delegate the work, since she was required from time to time to use facial recognition software to log on, which was to ensure that she was the one using the Partner App. The evidence disclosed that, in practice, Ms Gupta’s husband actually did most of the driving work in company with her, but it is not clear that this would have been permitted to occur had Portier Pacific known about it.

[69] However, there are three critical factors which we consider point decisively away from a finding of employment and provide a significant point of distinction from the factual scenario considered in Hollis v Vabu:

(1) Portier Pacific exercised no control over when or how long Ms Gupta performed her work. Both as a matter of legal right and actuality, it was entirely within Ms Gupta’s control as to when she logged onto the Partner App and for how long she remained logged on. Once logged on, there was no obligation upon her to accept any particular delivery request.

(2) Ms Gupta was able, even when logged on and even when performing work pursuant to a delivery request, to accept work through other competitor food delivery apps or perform other types of passenger or delivery work provided this did not compromise her capacity to effect her Uber Eats deliveries within time expectations. This was not a case of a merely nominal right which cannot practically be exercised; in this case, there is no evidence of any practical impediment to her doing this, although she did not in fact choose to do it.

(3) Ms Gupta was not presented as an emanation of the Uber Eats business in the performance of her work: she was not required to wear a uniform, her car bore no logos, and there is no evidence that she was required to even represent that she was part of the Uber Eats business beyond what was necessary to collect the particular meal from the restaurant and deliver to the customer.

[70] In summary, we do not consider that Ms Gupta’s relationship with Portier Pacific bore a number of the usual and essential hallmarks of an employment relationship, namely a requirement to perform work at particular times or in particular circumstances, exclusivity when work is being performed, and presentation to the public as serving in the business. For these reasons we conclude she was not an employee of Portier Pacific.

[71] It might be considered that there is some tension between this conclusion and our earlier finding that Ms Gupta was not conducting a business in her own right. A number of decisions have treated the notions of serving in the business of another and operating one’s own business as being entirely dichotomous. For example, in ACE Insurance Limited v Trifunovski, 60 Lander J said:

“[15] The primary judge did not err, in my opinion, in inquiring into the business in which the respondents were working, because if the respondents were not conducting their own business then logically it followed that they must have been working in the appellant’s business.”

[72] It may be that the difficulty is answered by the proposition that Ms Gupta 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 of Portier Pacific, and we consider that she was not.

[73] Permission to appeal should be granted because the appeal raises issues of importance and wider application. However we consider that the conclusion reached by the Commissioner was correct, albeit our reasons for that conclusion differ in some respects from his. Accordingly the appeal must be dismissed.

Orders

[74] We order as follows:

(1) Permission to appeal is granted.”

Gupta v Portier Pacific Pty Ltd and another (2020) FWCFB 1698 delivered 21 April 2020 per Ross J, Hatcher VP and Colman DP