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Discussion Starter · #1 · (Edited)
Amita Gupta
v
Portier Pacific Pty Ltd; Uber Australia Pty Ltd t/a Uber Eats


In a decision dated Tuesday 21 April 2020, the Full Bench Fair Work Commission has confirmed (on appeal) that an Uber Eats driver is not an employee.

Here's a copy of the decision:

Business a Insider Australia:


Uber Eats drivers are not employees entitled to minimum pay and conditions, the Fair Work Commission has ruled

DAVID MARIN-GUZMAN, AFR

Apr 21, 2020

Uber delivery drivers are not employees entitled to minimum pay and conditions because of their freedom to choose when they work, according to a precedent ruling.

A senior full bench majority of the Fair Work Commission, led by President Justice Iain Ross, held on Tuesday that Uber Eats drivers were not in an employment relationship because they controlled when they logged on the app and whether to accept delivery requests.

The case, brought by the Transport Workers Union, is the most senior authority on whether gig workers are employees and departs from overseas rulings on the issue.

But the decision is unusual because the full bench majority also found the courier were not in a business relationship with Uber either, even though it found they did work for the gig business.

Terminated driver Amita Gupta brought the case as an unfair dismissal claim, which required the commission to first decide if she was employee.

Despite finding that Uber set their pay, banned delegating work and hindered the driver from expanding a commercial relationship with restaurants, the majority held three factors were decisive in finding against employment.

First, it was "entirely within" the drivers' control as to when they logged on and for how long and they had no obligation to accept a particular delivery once logged on.

Secondly, even when the driver was logged on they could, and did, accept work from other competitor food delivery apps.

Thirdly, the driver was not required to wear uniform, bear company logos or otherwise represent the Uber Eats business beyond collection and delivery.

"In summary, we do not consider that Ms Gupta's relationship with [Uber] 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," president Ross and vice president Adam Hatcher said.

The majority considered Uber had total control over payment and standards of delivery, which it enforced through a ratings system that threatened suspension or termination.

But it held this was a "neutral" consideration as there was nothing unusual about enforcing quality and performance standards in both independent contractor and employee relationships.

'Commercially nonsensical'

However, the bench majority also rejected that the driver was conducting her own business.

Uber had tried to argue its drivers' contracts were with the restaurants themselves and that it merely acted as an agent of the restaurant in arranging pick up and delivery and an agent for the driver in collecting and passing on the delivery fee.

But the majority said Uber's argument had "no basis" and the actual relationship showed Ms Gupta's did work for and was paid for it by Uber, regardless of labelling in her agreement.

It noted Uber prevented drivers from knowing the restaurant's name and address before accepting delivery and neither the driver nor the restaurant had any role in setting the delivery price.

Uber's purported permission for Ms Gupta to negotiate a lower fee was "entirely nugatory" and "commercially nonsensical", the bench found, particularly given it also forbid her from communicating with the restaurants other than to fulfil deliveries.

The majority conceded there may be "some tension" between its conclusion Ms Gupta was not an employee and its finding she was not conducting a business in her own right.

However, it suggested 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 a separate judgment, deputy president Alan Colman agreed Ms Gupta was not an employee but also found that she did not perform delivery work for Uber as there was no "work-wages" bargain.
"[Uber] acts as a commercial intermediary between restaurants, customers and deliverers, from which it earns fees," he said.

"Deliverers use the company's platform and pay a fee to [Uber] to do so. They thereby gain access to opportunities to undertake deliveries and receive a share of the monies paid by the customer."

TWU considers appeal

The TWU said it was considering appealing the ruling as it said the bench was constrained by a High Court authority.

Nevertheless TWU national secretary Michael Kaine said the judgment "goes further than we have ever seen in Australia in terms of tearing down Uber's elaborate business model and exposing it as a sham".

"It states what is already clear to those who work in Uber and those who use its service: that Uber is a transport service that has responsibilities to its workers, restaurants and the public who use its app," he said.

A spokeswoman for Uber Eats said the "unanimous ruling" confirms couriers using its platform were independent contractors.

"It also reflects what 87 percent of delivery partners tell us - that they value the freedom and flexibility the Uber app provides," she said.

"Uber Eats offers delivery partners a flexible way to make money on a schedule that works for them, and where they can be their own boss."
 

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Discussion Starter · #2 ·
Press release issued by the Transport Workers' Union (TWU):

April 21, 2020

UBER'S BUSINESS MODEL SLAMMED BY FAIR WORK COMMISSION

The Fair Work Commission has slammed Uber's business model in a ruling today stating that the company has a contractual relationship with workers regardless of the labels it applies to them.

The Commission said that Uber had set up its business to avoid responsibility, stating "labels cannot alter the substantive nature of the relationship". In a case taken by the TWU and food delivery driver Amita Gupta who was sacked for being 10 minutes late with an order, the Commission said regardless of what Uber's contracts with its workers stated, "Ms Gupta performed her delivery work for and was paid for it by [Uber]."

TWU National Secretary Michael Kaine said the judgment was an important step forward in establishing rights for Uber workers.

"This judgment goes further than we have ever seen in Australia in terms of tearing down Uber's elaborate business model and exposing it as a sham. It states what is already clear to those who work in Uber and those who use its service: that Uber is a transport service that has responsibilities to its workers, restaurants and the public who use its app," he said.

The Commission was constrained in its judgment and rejected Ms Gupta's unfair sacking case. The TWU is considering appealing the ruling.

"The union will be looking to appeal this judgment since the Commission felt it was constrained by a previous High Court case in terms of finding in favour of Amita. We believe Uber unfairly sacked Amita and we believe Uber must be stopped from abusing and exploiting workers," Kaine said.

The Commission case heard Adelaide-based driver Amita Gupta had to log on to work for UberEats for several hours to receive little pay. In one week alone she logged on for 96 hours but only receiving pay of $300.

The TWU called on the Government to urgently regulate the gig economy.

"Uber operates a model of use and abuse when it comes to its workers. It rips them off, refuses to pay them minimum rates, sick leave and sacks them without warning or the chance to appeal. Even in the middle of a pandemic Uber won't protect its workers and is offering paltry amounts to workers needing to isolate. We need to regulate this sector urgently to stop this exploitation. The Federal Government must act on behalf of workers like Amita and thousands of people like her," he added.

The Uber case is the latest case taken by the TWU against gig economy companies to establish rights for workers. The TWU is separately taking a case for gross underpayment against Deliveroo and won a case for unfair sacking against Foodora after the company sacked a rider for speaking out about pay and conditions. Foodora has since exited the Australian market.

A TWU survey of food delivery riders in Australia shows three out of every four are paid below minimum rates. Almost 50% of riders had either been injured on the job or knew someone who had. Four UberEats riders have been killed while working.

An investigation by Australian Competition and Consumer Commission forced UberEats to admit it is a transport operator, not a technology platform, in contracts with restaurants and to stop making restaurants pay for customer refunds.

(https://www.twu.com.au/press/ubers-business-model-slammed-by-fair-work-commission/)
 

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Are you Serious?
We didnt have freedom of choice by last year.
What Uber did is just cheating with their drivers.
 

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Discussion Starter · #4 ·
In this case, none of the three Commissioners considered the applicant, Amita Gupta, to be an employee but nor did any of them consider her to be carrying on her own business.
 

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What concerns me about this is, why is the TWU buying into this?
How many TWU members do Ubereats deliveries?
I'm sure 99% of Ubereats deliverers don't give a rats about the TWU, and I'm pretty sure the TWU doesn't give a rats about them.
What gives?
 

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In this case, none of the three Commissioners considered the applicant, Amita Gupta, to be an employee but nor did any of them consider her to be carrying on her own business.
That truly is a bewildering line of reasoning Jack. Courts have followed that through to it's logical conclusion and find that if you're not running your own business, then the only logical conclusion is that you're working in someone elses business, and you are therefore an employee. They also understand that genuine casual employees also have the ability to refuse work whenever they want, yet somehow are still employees despite that fact. I would be very surprised if this isn't appealed and finds its way into the court system. If there's any further proof that the FWC is out of their league on this issue, this is it.
 

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The test for whether someone is an employee or an independent contractor is set out in Stevens v Brodribb Sawmilling, a High Court case from the mid-80s, and has been the law in Australia since then. Under that test it’s pretty clear Uber and Uber Eats drivers aren’t employees. It’s hard to be an employee when you can choose when and where you work, and work for someone else at the same time. That’s what the Full Bench found.

If the TWU wants to turn that around they’ve either got to run Gupta’s case all the way to the High Court and persuade them to overturn Stevens, or convince parliament to legislate gig workers into employees.
 

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The test for whether someone is an employee or an independent contractor is set out in Stevens v Brodribb Sawmilling, a High Court case from the mid-80s, and has been the law in Australia since then. Under that test it's pretty clear Uber and Uber Eats drivers aren't employees. It's hard to be an employee when you can choose when and where you work, and work for someone else at the same time. That's what the Full Bench found.

If the TWU wants to turn that around they've either got to run Gupta's case all the way to the High Court and persuade them to overturn Stevens, or convince parliament to legislate gig workers into employees.
There are plenty of more recent cases that are relevant. Hollis vs Vabu being one where bicycle couriers were found to be employees. On Call vs Commissioner of Taxation being another. The interpreters were found to be employees despite being able to refuse work whenever they wanted. And it was found that they worked in On Call's business.
 

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There are plenty of more recent cases that are relevant. Hollis vs Vabu being one where bicycle couriers were found to be employees. On Call vs Commissioner of Taxation being another. The interpreters were found to be employees despite being able to refuse work whenever they wanted. And it was found that they worked in On Call's business.
The bike couriers in Hollis v Vabu were required to show up for work at a set time (9am), wear Vabu uniforms and were expressly forbidden from declining work.

On Call seems closer to our situation but it's only a Federal Court decision.
 

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The bike couriers in Hollis v Vabu were required to show up for work at a set time (9am), wear Vabu uniforms and were expressly forbidden from declining work.

On Call seems closer to our situation but it's only a Federal Court decision.
The High Court is not just another court of appeal. Employment law has a fairly settled set of principles, so unless something unusual comes up I would say this is unlikely to get to the High Court. The full bench of the Federal Court is as far as I'd expect to see this go.

Set hours is but one element of control, the absence of which doesn't automatically mean a worker is not an employee. I would agree that the facts of the On Call case are closer to ours, but if I recall, the reasons for judgement in Vabu contains many of the principles that are used in deciding cases. And being a High Court judgement that is more recent than Brodribb (2001 vs 1986) it is still relevant to all employment cases. If lower courts and tribunals stray from settled principles (as seems to be the case here with the FWC), that gives sufficient grounds for appeal.
 

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Discussion Starter · #11 · (Edited)
It would be helpful if this case were to go at least as far as the Full Federal Court to help ensure that the basic arrangements are no longer in a penumbra of obscurity.

The same need for clarification from at least the Full Federal Court also applies to the position of Uber rideshare drivers.

President Iain Ross (part of the joint decision) is also a Federal Court judge and a former judge of the Supreme Court of Victoria: see
.

However, a decision of a full senior Court is called for.

The Full Bench of the Fair Work Commission has, if anything, added to the obscurity by its finding that the Ms Gupta was neither an employee nor carrying on her own business.

This puts deliverers into a previously undiscovered and unlabelled netherworld where they have neither the protections afforded employees nor (perhaps) access to tax concessions for businesses such as the instant asset write-off and the small business tax offset nor (perhaps) the jobkeeper payment.

Not that I'm expecting any precipitate shifts in the Australian Taxation Office's administrative and interpretative approaches. I find all of this an instructive study in the intersection of policy, law and administration.

An Uber spokesperson is quoted in the Business Insider Australia article extracted in my original post as welcoming the fact that the Fair Work Commission had unanimously confirmed that the deliverers were independent contractors when it had done nothing of the sort and Uber's own contractual documentation had expressly sought to deny that conclusion.

I found the reasons for decision helpful in that they allowed me for the first time to gain a comprehensive understanding of the totality of the contractual documentation involving Uber, the restaurant and the deliverer.

The involvement of the Transport Workers' Union has had the very real benefit of the applicant in this case having high-powered legal representation led by a senior counsel to match the representation for Uber instead of having to represent herself.
 

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Discussion Starter · #12 ·
From Thomson Geer, lawyers:

The gig's not up - Uber wins again

Mark Branagan

30 April 2020


Employment Disputes

Uber - the global face of the Gig Economy - has survived another legal challenge, and fought off the claim that Uber Eats delivery drivers are 'employees' for the purposes of Australian unfair dismissal laws.

In 2017, and again last year, Uber won two important unfair dismissal cases in the Fair Work Commission (FWC). In those cases, the FWC had concluded that Uber was no more than a 'limited payment collection agent'. Rather than an employer, Uber was held to be only facilitating the provision of transport services through the connection of online interests between an Uber driver and an Uber customer.

In the latest case, Gupta v Portier Pacific[2020] FWCFB 1698, the Full Bench of the FWC dismissed an appeal by an Uber Eats delivery driver, Amita Gupta. Gupta's unfair dismissal application had been dismissed (by Hampton C) on the basis that she was not an 'employee' as required by section 382 of the Fair Work Act 2009.

Gupta had been engaged as an Uber delivery driver collecting meals from restaurants and delivering them to customers. Uber Eats paid her a fee for the delivery. Gupta performed over 2,000 deliveries before being excluded from Uber Eats operations for not meeting timely delivery standards. According to Uber, she was not 'dismissed', merely 'blocked' from the App that supplied her work.

The FWC at first instance and on appeal closely examined Gupta's arrangements with Uber Eats. This revealed a range of online 'engagements' whereby Gupta was only one of a number of parties who connected through digital technology. For example, restaurants engaged with Uber Eats through a Restaurant App to promote their products, menus and offer home delivery services.

Customers accessed an Eats App where they gained access to the restaurants and authorised Uber Eats to deduct payment for the meals and their delivery. Gupta became a 'Delivery Partner' through a Partner App with Uber Eats. She also signed a detailed Service Agreement that incorporated service guidelines for deliveries.

Once logged on as a driver, Gupta was free to do as much work as she wished and was not obliged to accept any work. She could work for others; she could also reject particular restaurant bookings, and did so on over 500 occasions. Gupta provided her own car and smartphone; she was not obliged to wear a uniform. She was, however, required to carry out her delivery functions in a professional manner, including a requirement for due care, skill and diligence.

The Full Bench appeal raised all of the traditional issues when classifying the nature of work done by Uber Eats drivers as either employment or an independent contracting relationship. These authorities remain valid, most importantly the High Court's approach in Stevens v Brodribb Sawmills and Hollis v Vabu (determined in 1986 and 2001 respectively) endorsing the tests of 'control', 'multi-factor' and the 'totality of the relationship'. These in turn have been applied by the FWC in Abdalla v Viewdaze (2003) and Jiang Shen Cai t/as French Accent v Rozario [2011] FWAFB 8307 (the French Accent decision).

While the Full Bench dismissed Gupta's appeal and found that she was not an employee, it published two separate judgments. Two members (President Ross and VP Hatcher) applied the traditional employment characterisation tests. After looking at the conventional indicia based on case law, they found that Gupta had established a 'work-wage' relationship with Uber but that she was not an employee.

Major factors included lack of control, no obligation to work, no physical presentation as part of Uber Eats. Accordingly, they found that there was no error in the original judgment.

In a separate judgment, DP Colman found that there was no contract of service; no employment relationship; no control; no commitment to exclusive work; and no manifest representation as being part of the Uber Eats business. Gupta was not required to do any work. On that basis, there was no need to even apply the traditional tests. On DP Colman's assessment, the Uber model did not at any stage create a 'work-wages' bargain and therefore the claim did not even get to first base. DP Colman did not even consider that Gupta was a contractor.

As our world has developed an increased appetite for home deliveries during the retreat into home-based work and shelter from COVID-19, services such as Uber Eats have been booming. At this stage, the law does not seem capable of dealing with technology-based service providers. These business models avoid 'employment' because, in their purest form, they are simply matching up people who need a service. Person needs transport - Uber brings driver and passenger together. Person needs food - Uber Eats brings restaurant and customer together, linking the two through the medium of the delivery driver. Uber manages the payment and distributes to all parties. Uber literally provides the 'platform' for the parties to connect with each other.

It is difficult to impose well-established and sensible 'employment' legal tests on such fast-moving dynamic technology and forms of engagement as we see with Uber. If, as is likely, we see further growth in the Gig Economy and the range of delivery services continues to expand with more creative apps and online systems, then we may need to assess whether regulation via Parliament is more effective to provide greater protections to this segment of our working market.

(https://www.tglaw.com.au/employment-blog/2020/04/30/the-gigs-not-up-uber-wins-again/)
 

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Discussion Starter · #13 · (Edited)
Sydney Morning Herald


[HEADING=2]Staring down the barrel of a landmark judgment on its workers' status, Uber folds[/HEADING]

[HEADING=3]By Nick Bonyhady[/HEADING]

December 30, 2020 - 5.00 am

Uber has settled a legal challenge that struck at the heart of its business model and could have resulted in its drivers and riders being classified as employees, after three Federal Court judges savaged the company's arguments at trial.

The delivery giant settled shortly after the hearing, avoiding the potential cost of having to pay its workers a minimum wage, comply with unfair dismissal rules and roster employees that could have come with a ruling its delivery workers are not independent contractors.

Uber has settled a legal challenge that struck at the heart of its business model and could have resulted in its drivers and riders being classified as employees, after three Federal Court judges savaged the company's arguments at trial.

The delivery giant settled shortly after the hearing, avoiding the potential cost of having to pay its workers a minimum wage, comply with unfair dismissal rules and roster employees that could have come with a ruling its delivery workers are not independent contractors.

In a volley of critical questions, the judges said the trial was "not a debating club", Uber should stay "in the real world" and "everybody knows what function Uber plays" as the company's lawyers argued it was not an employer but merely a service that connected customers, deliverers, and restaurants.

Uber had already won twice in the Fair Work Commission in a case brought against it by Amita Gupta, an Uber Eats worker backed by the Transport Workers Union who claimed she had been unfairly dismissed when her Uber Eats access was cut off because of late deliveries. Mrs Gupta then appealed to the Federal Court, where she became the first person to receive a settlement from the company on the question in Australia after a trial at that level.

When the case was heard in November, Uber's lawyers were met with a series of disbelieving questions as they argued Uber was a platform, not an employer.

"Everybody knows what function Uber plays. The restaurant's function is to prepare the food. Uber's function is to deliver the food; isn't that right?" Justice Mordecai Bromberg said.

Justice Richard White expressed similar sentiments while he tried to pin down whether Uber saw its riders as independent contractors.

"Well, we actually operate in the real world here," Justice White said. "Judgments are practical things, especially in this context. This is not a debating club."

The case settled before the court could deliver its judgment after the trial, where Uber was represented by a legal team from multinational law firm Ashurst.

An Uber spokesman pointed to a series of rulingsby the industrial tribunal and an investigation by workplace watchdog the Fair Work Ombudsman that all found Uber's workers were not employees before the November trial.

"We welcome the resolution of this case and look forward to continuing our efforts to improve the quality of independent work in Australia," the spokesman said.

University of Sydney labour law academic Shae McCrystal said the judges' questions showed they were sceptical of Uber's claims, which she said had an "air of unreality".

"The fact that [Uber] spent so much money taking this up to the full Federal Court and then settled suggests they were very wary of the judgment," Professor McCrystal said.

Along with other gig economy companies, Uber has fought hard against efforts here and overseas to change its workers' status.

The industry spent about $US200 million in a successful campaign to persuade voters to overturn a Californian law at the recent United States election that would have classified its workers as employees.

An overwhelming majority of its riders and drivers liked the flexibility of being able log on and off as independent contractors, Uber's spokesman said.

Transport Workers Union national secretary Michael Kaine praised Mrs Gupta and her husband, Santosh, who declined to comment but made a donation to the union from the settlement, for taking on the legal challenge.

"They held Uber to account over the manner in which drivers are forced to wait for hours unpaid for work, to race around at risk to collect and deliver food and then to get sacked for being 10 minutes late," Mr Kaine said.

[end of article]

See also this Sydney thread:

 

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Discussion Starter · #14 ·
Sydney Morning Herald


[HEADING=2]Staring down the barrel of a landmark judgment on its workers' status, Uber folds[/HEADING]

[HEADING=3]By Nick Bonyhady[/HEADING]

December 30, 2020 - 5.00 am

Uber has settled a legal challenge that struck at the heart of its business model and could have resulted in its drivers and riders being classified as employees, after three Federal Court judges savaged the company's arguments at trial.

The delivery giant settled shortly after the hearing, avoiding the potential cost of having to pay its workers a minimum wage, comply with unfair dismissal rules and roster employees that could have come with a ruling its delivery workers are not independent contractors.

Uber has settled a legal challenge that struck at the heart of its business model and could have resulted in its drivers and riders being classified as employees, after three Federal Court judges savaged the company's arguments at trial.

The delivery giant settled shortly after the hearing, avoiding the potential cost of having to pay its workers a minimum wage, comply with unfair dismissal rules and roster employees that could have come with a ruling its delivery workers are not independent contractors.

In a volley of critical questions, the judges said the trial was "not a debating club", Uber should stay "in the real world" and "everybody knows what function Uber plays" as the company's lawyers argued it was not an employer but merely a service that connected customers, deliverers, and restaurants.

Uber had already won twice in the Fair Work Commission in a case brought against it by Amita Gupta, an Uber Eats worker backed by the Transport Workers Union who claimed she had been unfairly dismissed when her Uber Eats access was cut off because of late deliveries. Mrs Gupta then appealed to the Federal Court, where she became the first person to receive a settlement from the company on the question in Australia after a trial at that level.

When the case was heard in November, Uber's lawyers were met with a series of disbelieving questions as they argued Uber was a platform, not an employer.

"Everybody knows what function Uber plays. The restaurant's function is to prepare the food. Uber's function is to deliver the food; isn't that right?" Justice Mordecai Bromberg said.

Justice Richard White expressed similar sentiments while he tried to pin down whether Uber saw its riders as independent contractors.

"Well, we actually operate in the real world here," Justice White said. "Judgments are practical things, especially in this context. This is not a debating club."

The case settled before the court could deliver its judgment after the trial, where Uber was represented by a legal team from multinational law firm Ashurst.

An Uber spokesman pointed to a series of rulingsby the industrial tribunal and an investigation by workplace watchdog the Fair Work Ombudsman that all found Uber's workers were not employees before the November trial.

"We welcome the resolution of this case and look forward to continuing our efforts to improve the quality of independent work in Australia," the spokesman said.

University of Sydney labour law academic Shae McCrystal said the judges' questions showed they were sceptical of Uber's claims, which she said had an "air of unreality".

"The fact that [Uber] spent so much money taking this up to the full Federal Court and then settled suggests they were very wary of the judgment," Professor McCrystal said.

Along with other gig economy companies, Uber has fought hard against efforts here and overseas to change its workers' status.

The industry spent about $US200 million in a successful campaign to persuade voters to overturn a Californian law at the recent United States election that would have classified its workers as employees.

An overwhelming majority of its riders and drivers liked the flexibility of being able log on and off as independent contractors, Uber's spokesman said.

Transport Workers Union national secretary Michael Kaine praised Mrs Gupta and her husband, Santosh, who declined to comment but made a donation to the union from the settlement, for taking on the legal challenge.

"They held Uber to account over the manner in which drivers are forced to wait for hours unpaid for work, to race around at risk to collect and deliver food and then to get sacked for being 10 minutes late," Mr Kaine said.

[end of article]

See also this Sydney thread:

Transport Workers' Union (TWU) media release:

[HEADING=2]FEDERAL COURT SAVAGES UBER OVER SHAM BUSINESS MODEL - Transport Workers' Union[/HEADING]
A landmark case against Uber has settled after Federal Court judges savaged the company for the elaborate way it tries to deny any link to its workers.
www.twu.com.au

December 30, 2020
[HEADING=2]FEDERAL COURT SAVAGES UBER OVER SHAM BUSINESS MODEL[/HEADING]

A landmark case against Uber has settled after Federal Court judges savaged the company for the elaborate way it tries to deny any link to its workers.

The case was backed by the TWU and involved Adelaide-based Amita Gupta, sacked after she was 10 minutes late with a food delivery.

The Federal Court judges berated Uber during the hearing when the company refused to accept that it was involved in transport, denied it had any relationship to its drivers and even stated that the link was so tenuous that drivers could abandon or steal the food orders.

The judges questioned whether Uber was "operating in the real world" and stated that "everybody knows what function Uber plays".

TWU National Secretary Michael Kaine said the Federal Court had exposed Uber's sham.

"It is clear from the court hearing that Uber was on the ropes and a settlement with its former delivery driver Amita Gupta was the only option left to the company in the face of a potential judgment which would have utterly altered how the company and other gig economy companies operate in Australia.

The judges' questions to Uber exposed just how utterly ridiculous and farcical its contract contortions are when it comes to getting around our labour laws. The judges clearly saw through Uber's spin and 'careful contract' and recognised the sham it is. Uber has constructed a business model in order to refuse its workers any rights, to minimum pay, the right to challenge an unfair sacking, to protective gear or training. The Federal Government has refused to hold Uber to account over this blatant charade but the Federal Court has exposed it," he said.

"It should not take brave workers like Amita standing up to a global multi-national corporations to hold them to account. Workers across Australia should have rights and the Federal Government must take responsibility for workers across Australia who are being abused and exploited every day by the likes of Uber. We urge the Government to carefully read the transcript of the hearing and to start looking at Uber with the same jaundiced view that the Federal Court judges in this case did."

One judge told Uber during the hearing: ""Except Uber has a longstanding reputation, if you like, in the transport business… The very name Uber would convey to the ordinary person some form of transportation service, wouldn't it?"

Another said: "Your client has drawn up this careful contract with all these provisions in it, and either does not have a view as to what is the correct characterisation of the relationship [with its workers] or is not willing to disclose it to this court."

At another point one of the judges said: "It's just a bit hard to imagine that Uber would continue to provide tasks for a person who keeps absconding with the meal."

The TWU is also currently taking a case for unfair sacking against Deliveroo and for gross underpayment against Deliveroo. The TWU is also assisting delivery riders in pursuing Deliveroo on its obligations under workplace heathy and safety laws. The TWU won a case for unfair sacking against Foodora in 2018.

Five delivery riders died while working in September and October. This prompted the NSW government to set up a taskforce. The Victorian Government is examining feedback following a report into an inquiry into the gig economy which recommended regulation of the sector. The TWU has met and written to Attorney General and Industrial Relations Minister Christian Proter asking the Federal Government to intervene and protect gig economy workers.

A survey of delivery riders in September showed average earnings after costs was just over $10 an hour while almost 90% have seen their pay decrease and 70% say they are struggling to pay bills and buy food.

The pandemic has left the essential workers exposed with more than half saying they did not have enough masks, gloves and sanitiser.

More than one in three riders has been injured on the job, with the vast majority (80%) receiving no support from their company.

Click here for the full court transcript and highlighted quotes.

Click here for the full transcript: Uber transcript

The Federal Court judges took a sceptical view of Uber's contention that:

  • It was not involved in delivery work (J Bromberg: "Except Uber has a longstanding reputation, if you like, in the transport business", "The very name Uber would convey to the ordinary person some form of transportation service; wouldn't it?")
  • It does not pay its drivers (Uber lawyer: "So, yes, physically the money - the money - physically, electronically, the money passes from the credit card of the customer into Uber's hands before - and is then held by Uber. Uber deducts its service fee and pays the restaurant - the service fee that it charges the restaurant for the services that it has rendered in bringing the customer and the restaurant and the delivery partner together.")
  • Its delivery drivers are neither employees nor independent contractors (J Bromberg: "is your case dependent upon the court finding that, not only is there not a relationship of employee between the worker and Uber, but also that there's not a relationship of independent contractor between the worker and Uber."
  • It has no idea what the relationship with them isJ White: "Your client has drawn up this careful contract with all these provisions in it, and either does not have a view as to what is the correct characterisation of the relationship or is not willing to disclose it to this court.")
  • Its drivers are independent contractors without businesses J Bromberg: "Well, that's a question for legal characterisation. But you say that you can be an independent contractor and not have a business? I can understand if you said an independent contractor can be someone with a very simple business. But the facts here seem to be, and they seem to be accepted, that the applicant does not have a business. Can you be an independent contractor without a business?"
  • Its drivers have so little relationship to Uber that they can accept to deliver a meal and then steal it J Bromberg: "It's a bit hard to imagine, Mr Neil - whether the driver is an employee or an independent contractor, it's just a bit hard to imagine that Uber would continue to provide tasks for a person who keeps absconding with the meal."
  • That delivery riders can negotiate their fee with Uber - though only for a lower rate J White: "Who specifies the fee? Uber lawyer: " In general terms, it's specified, effectively, by Uber. But the delivery the capacity to negotiate a lower fee."
  • Whether Uber's efforts through its contracts to distance itself from its drivers actually bear out in reality J White: "Again, I'm just wondering whether we're operating in the real world."
 

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It's very good to see some really tough questioning from real judges, rather than the bs that had been going on at the FWC. The FWC really needs to brush up on relevant court judgments, because as the transcripts show, this should not have gotten so far into the court system. I can just imagine the field day the Justices would have had if they were required to publish a judgment.
 

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Discussion Starter · #16 · (Edited)
Michael West:


[HEADING=2]Uber Xploitation: Uber's secret settlement presages a wave of lawsuits[/HEADING]
by Callum Foote | Jan 25, 2021 | Business

The Government's fetish for deregulation plays right into the hands of predatory multinationals Uber and Deliveroo which exploit both Australia's tax and labour laws to siphon profits overseas. Michael West and Callum Foote report on Uber's exploitation and the prospective tsunami of lawsuits rolling its way.

Picture the Uber or Deliveroo driver belting down the expressway in the pouring rain on a moped. It's night time, the trucks are whizzing past. The rider is hell-bent on getting that pizza to its destination on time and getting that $15 fee. No sick leave for this worker: no holiday leave either, no superannuation, no workplace cover, no insurance.

This poor sod is not a worker though, rather a partner, yes a "partner" of Uber. Not an employee, not really even a contractor - that's too legally binding for Uber - rather, a "Partner".

On the one side of this uniquely dubious "partnership", there is Uber, a multinational colossus with its slick hedge fund financiers, its billions in capital, its phalanx of lawyers and accountants, its PR people and government lobbyists.

On the other side of this "partnership" is the person on the moped in the wet-weather gear.
[HEADING=3]Uber settles out of court[/HEADING]
Last month, cloaked in the media darkness of Christmas, Uber Australia quietly agreed to settle a lawsuit out of court with a couple of its delivery drivers, its so-called "partners".

The details of the deal are a secret, precisely the way Uber likes it.

Sources associated with the case say the judge was close to handing Uber an adverse judgement. Such a legal precedent, in public in an Australian court, would have precipitated a rash of similar lawsuits and threatened the company's 'free enterprise' treatment of its drivers and food delivery workers.

In 2019, Amita Gupta, who together with her husband had made more than 2,000 deliveries between 2017 and 2019, was fired for being 10 minutes late to a delivery.

With backing from the Transport Workers Union (TWU), Mrs Gupta took the case to the Federal Court where Uber made a confidential out-of-court settlement before a decision could be made.

Why did the unions not pledge to match the Guptas offer and back them all the way to a public judgement? Such a strategy might have benefited not only the Guptas but also thousands of its members, indeed thousands of workers subject daily to gig economy exploitation.

It seems Uber's settlement offer must have been too large for the Guptas to refuse and too large for the TWU to match.

When asked by Michael West Media if the TWU considered matching Uber's offer in order to keep fighting the case to judgment, a TWU spokesperson said "the union was not in a position to match Uber's offer."
[HEADING=3]Silicon parasite[/HEADING]
Uber employs a string of corporate structures, legal loopholes and confusing internal procedures to avoid tax and employer obligations.

In 2015, Fortune Magazine analysed Uber's corporate structure, finding that it then operated 60 subsidiaries in the US. On top of this there are dozens of subsidiary companies around the world.
As Forbes said:

"Outside the US, the company's network of subsidiaries has been carefully pieced together to create a state-of-the-art structure for minimising taxes."
For example, in response to a European crackdown on tax havens in 2019, Uber shifted assets from Bermuda to the Netherlands to create a US$6.1 billion tax deduction, according to Bloomberg.

Similar structures have allowed Uber to dramatically reduce the amount of tax it pays in Australia.

There are at least six Uber companies operating in Australia: Rasier Pacific Pty Ltd, Portier Pacific Pty Ltd, Uber Pacific Pty Ltd, Uber Pacific Holdings Pty Ltd, Uber Australia Pty Ltd and Uber Australia Holdings Pty Ltd.

According to the Australian Tax Office, Uber Australia reduced its taxable income from $1.1 billion in revenue to just less than $50 million in 2019, a reduction of $1.05 billion. As a result, Uber paid less than $15 million in tax for the year. This was, however, up from the $5 million they paid the year before.

This is achieved in part through transactions made between Uber Australia Holdings, its owners the Dutch Uber International B.V. and American Uber Technologies Inc. and its subsidiaries in the pacific region. All in all, over $5 billion AUD was transferred between these companies in 2019-20. Related party transactions, particularly international transactions, can be used to manufacture losses or debts in order to reduce taxable income for companies operating in high tax regions such as Australia.

The enormity of the related party transactions, and the tiny tax payments which appear to have only bobbed up last year, suggest Uber is not contributing enough to the society in which it operates. Clipping 30% from restaurant orders, all the road use, all for $15m in income tax on $2bn in revenue?

[HEADING=3]You can be your own boss[/HEADING]
Word salad 'agreements' imposed on Uber's delivery workers and drivers are used to work around Australia's industrial relations laws.

"Many ridesharing and delivery apps have consciously and deliberately created contractual arrangements to ensure their workers do not fall under the protective umbrella of the Fair Work Act as 'employees' and operate in an entirely unregulated space where these companies are able to dictate rates and terms of engagement." said one lawyer who is an expert on employment law.
Uber only mentions the word contract between itself and its partners when minimising the legal liability it has to the general public. According to Uber's financial reports:

"A contract exists between the Group and a Partner after the Partner accepts a transaction request and the Partner's ability to cancel the transaction lapses… As a result, end-users are not the Group's customers."
Uber uses the term "partners" when referring to those people who conduct rides and deliveries using the Uber app.

However, Uber's lawyers also consider its partners - the men and women who carry out deliveries and rides - to be its customers.

Partners are paying for the right to use Uber's technology to carry out their own independent business.

Uber goes on to say:

"Partners are the Group's customers and pay the Group a service fee for each successfully completed transaction between the Partner and end-users."
Uber's legal double-speak even goes so far as to leave the exact nature of its service up to legal interpretation:

"Judgment is required in determining whether the Group is the principal or intermediary in transactions with Partners and end-users."
This handy non-definition is doubly important because it gives Uber wriggle room so that it can settle a case that may result in an adverse court judgment that would set a precedent, as was the situation with Mrs Gupta.

It was certainly the view of Gupta's lawyers, as their submissions made plain, that there was a good argument that Ms Gupta was an employee of Uber and deserved the same rights as any other employee in Australia.

Uber exercises significant legal and practical control over the conduct of work by its drivers, including by imposing an array of sanctions on drivers (including termination of employment) if they do not perform in the manner Uber requires.

Moreover, Uber prohibits substitution/delegation, i.e. the driver is required to perform the deliveries themselves and cannot delegate the job to someone else, which employment law experts say is a powerful indicator of employment rather than of working as an independent contractor.

Uber's partners have been pushing hard for fairer working conditions, more protections and higher payouts as in the case of Dede Freddy, an Australian Uber Eats rider who was killed while doing a delivery last year in Sydney. His family are seeking compensation.

The Federal Government could use its corporations power under the Constitution to regulate gig economy work and create minimum rates of pay for such work. However, such a move is unlikely, given that all its industrial relations focus is on creating a lower paid, more flexible work force.

It seems, therefore, that legal action will be the only way to force companies to offer delivery workers and drivers in the gig economy better conditions.

And they are reportedly lining up in droves. A source associated with Mrs Gupta's case said numerous delivery workers and drivers had come forward with their grievances and intended to bring them to court.

The walls are closing in around Uber, and similarly structured companies. In 2019, a Spanish court ruledthat Deliveroo riders were employees and in 2020, a Californian appeals court ruled that Uber and Lyft must treat drivers as employees. The UK Supreme Court ruled that Uber drivers were to be granted the legal designation of 'workers', which offers them some employment rights.
 

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Discussion Starter · #17 ·
Sydney Morning Herald

29 January 2021

www.smh.com.au

[HEADING=2]Uber Eats overhauls business model amid pressure over workers' status[/HEADING]
The Transport Workers Union argues the changes are an attempt to escape pressure on the company to classify its workers as employees.

[HEADING=2]Uber Eats overhauls business model amid pressure over workers' status[/HEADING]
Nick Bonyhady


[HEADING=3]By Nick Bonyhady[/HEADING]

Uber Eats has overhauled its business model in Australia, requiring riders to hold ABNs and letting them transfer delivery jobs to others in a move that will make it harder for critics to claim its workers are employees rather than independent contractors.

The company's new contract with riders, seen by this masthead, marks a sea change for the delivery giant, which is abandoning its claim to merely be a matchmaker between restaurants and riders, akin to a dating service, and instead is directly contracting its riders.

Uber Eats' move follows an unfair dismissal case last year in which three Federal Court judges criticised the company's argument a worker was not an employee in part because she was allegedly contracted by restaurants.

In a message to riders and a blog post announcing the change, which will come into effect in March and has been in the works for 12 months, Uber Eats said it would make its services better for everyone using its app and was part of the company's plan to expand into delivering non-food items from stores in more cities.

Transport Workers Union national secretary Michael Kaine, whose union supported the worker in the unfair dismissal case, which Uber Eats eventually settled, said the changes were designed to avoid classifying workers as employees.

Unlike almost all independent contractors, employees are entitled to a minimum wage, unfair dismissal protection and workers' compensation.

"It's a sign of absolute desperation, their intention is to quickly plug the gaps before another matter gets before the full bench [of the court]," Mr Kaine said.

In a letter sent to the TWU on January 25, Attorney-General Christian Porter left the door open to a union proposal to have an independent tribunal monitor the gig economy sector to ensure workers had minimum rights, but argued it would be risky and difficult to implement.

As well as requiring an ABN and allowing deliveries to be delegated, Uber Eats' new contract, which is mandatory for workers who want to stay on the app, says riders can cancel delivery requests at their "absolute discretion" after they have collected items, though repeated failures to deliver could trigger fraud and quality management processes.

University of Sydney labour law academic Shae McCrystal said the measures suggested Uber Eats was looking to at least create the appearance of having less control over its riders, which is an indicator of independent contractor status.

"These changes are signalling a shift. Whether that becomes reflected in the reality, we'll have to wait and see," Professor McCrystal said.

She also said a provision in the contract that allows Uber Eats to suspend a rider's app access if they cause "regulatory scrutiny" could violate industrial laws.

"That could be a breach of the general protections provisions of the Fair Work Act, which protect the right of employees to enquire and complain about their workplace rights," Professor McCrystal said.

An Uber Eats spokeswoman said the provision was in the previous version of its contract.

"We have never terminated a contract because someone has made a report to a regulatory or oversight body," she said.

Mr Kaine has been lobbying Mr Porter to establish a tribunal to ensure that whatever business model platforms such as Uber Eats adopted, their workers would not be disadvantaged, following the deaths of five riders late last year.

Mr Porter did not reject the proposal - which Labor supports - outright, but said in the letter "an ill-considered approach that may have unintended consequences for workers and, more broadly, the economy needs to be avoided".
 

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well as requiring an ABN and allowing deliveries to be delegated, Uber Eats' new contract, which is mandatory for workers who want to stay on the app, says riders can cancel delivery requests at their "absolute discretion" after they have collected items, though repeated failures to deliver could trigger fraud and quality management processes.
Simply requiring an ABN doesn't make someone an independent contractor. And the details surrounding any supposed "delegation" are very important. If it's mere substitution for another delivery "partner" who will be paid directly by Uber, then that's not going to count as "delegation" within the context of employment law.

Jack, what are your thoughts on their upcoming prohibition on doing both rideshare and deliveries?
 

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I'm puzzled by it as I can't see how that strict division (the Great Wall of Uber) helps Uber's case either in relation to delivery or rideshare given that the work has separate contracts.
I find it puzzling too. Now they can't claim they don't prevent you from working for someone else. It would make more sense to have separate apps for rideshare and delivery if they want to maintain the appearance of separateness.
 
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