Blog

It’s a Tough “Gig”, but someone’s got to do it

Kayla Scott

17 Dec 2020

Topics

  • Consumer Law
  • Employment Law

We all love enjoying our weekly takeout meals and it was made easier when we could order it at the click of a button through various delivery platforms. However, since COVID-19, there has been a significant increase in demand for food delivery and our trusty delivery riders have stepped up to the plate to ensure that these deliveries occur.

Unfortunately, it has come to light in recent media reports that delivery riders are being poorly treated and underpaid, not the least, been placed at risk during this period. Safework NSW has also reported that delivery riders have made 25 reports of serious injuries this year, and between September and November there have been 5 deaths involving delivery riders.

The issues faced by delivery riders

Simply put, delivery riders work by its nature is unsafe, as shown by the Safework NSW statistics, and making the riders wear a hi-vis vest, for instance, is not enough to avoid accidents. Further, because the industry is unregulated, riders face a range of other issues relating to how they are engaged and paid.

Independent contractors

It’s not a new concept, whether delivery riders are considered an employee or contractor, but it remains a very pertinent one.

An employee usually works full-time, part-time or casually and works as the employer directs. A contractor, unlike an employee, is not subject to Fair Work Act and is not entitled to statutory employment benefits– including minimum rates of pay, leave and protections from unfair treatment. A contractor usually works the hours required to complete a task and has more control over the way they work. Emily Shoemark provides a detailed outline of the differences between employees and contractors here.

Currently delivery riders are considered independent contractors of delivery platforms. This is aligned with the Fair Work Ombudsman’s 2019 investigation into Uber, which found that Uber rider were independent contractors, not employees, and therefore not entitled to employment benefits and protections.  

This position was recently confirmed by a recent Fair Work Commission decision relating to unfair dismissal claims brought by two delivery riders after their accounts were deactivated by Uber due to poor ratings. The Commission found that the riders were not considered employees of Uber, and their claims were unsuccessful.

Essential service

During the trying times of an isolated population due to the impacts of COVID-19, delivery riders are considered essential workers. The continued operation of delivery services increased the already extensive list of safety risks riders face. By riders delivering food to your door, they are exposing themselves to potential health risks delivering food to those self-isolating.  

Further, as contractors are not employees, if a delivery rider does not work then they do not get paid. If a rider fell ill and needed a COVID-19 test, and subsequently were required to self-isolate, this is time not spent on the road and money not in their back pocket.

Temporary visas

There are approximately 1.1 million temporary visa holders in Australia that are excluded from the Federal Government safety net of JobSeeker or JobKeeper and many delivery riders fall into this group. Prior to the COVID-19 pandemic, some riders were able to make $200 for eight hours work. There has now been a large increase in the number of delivery riders due to a higher unemployment rate, resulting in a drastic decrease in potential earnings for each individual rider.

Around the globe

Recently, in France their highest appeal court has ruled that a former Uber partner should be recognised as an employee rather than an independent contractor. It is the first time a court has contradicted Uber’s contention that their partners are independent contractors. It will be interesting to see if the decision made by France will have any momentum here in Australia, watch this space.

Gig Economy

The issues facing deliver riders stem from the concept of a gig economy market. A gig economy is based on flexible or temporary jobs, using independent contractors. This often involves connecting with clients or customers through an online platform – including delivery platforms and their relationship with delivery riders.

Gig economies often feature a significant level of work insecurity, low pay and no employment rights or entitlements. Notably, it has been revealed three in four delivery riders earn below minimum wage prompting allegations of exploitation.

It is clear that delivery platforms need further regulation in order to curb the resulting issues that are falling on vulnerable delivery riders. That way we can all go back to enjoying our meals can be delivered right to our doors without thinking about the rights of the person that dropped it off.

How can we help?

Our Employment Law team can advise on employment policies and agreements to make sure the right policies are in place for the right people. Contact them on 02 6285 8000 or by email.