Deliveroo is battling a test case that threatens to find its delivery riders are employees and potentially entitled to minimum pay and conditions by arguing that workers who can do other gigs during their “shifts” cannot be employees.
The Transport Workers Union kicked off its case against the on-demand delivery company on Tuesday with its claim that rider Diego Franco, who was terminated in April, was not an independent contractor but a casual and so had unfair dismissal protection.
The case is being judged by Fair Work Commissioner Ian Cambridge, who previously found a rider at gig company Foodora was not carrying out his own business but was part of the business as an employee.
Deliveroo has long sought to distance itself from the arrangements of Foodora, which folded in 2018 after the Tax Office declared its riders were employees. Sham contract claims against UberEats have so far failed.
But the TWU is arguing that the way Deliveroo required its riders to work was more like Foodora than UberEats.
Under a system Deliveroo started in January 2018 but scrapped in December last year, riders had to log in and book periods of time in particular areas where they could accept work.
Once the rider booked in a period they could not change their suburb or hours. However, they could cancel a session with more than 24 hours’ notice.
TWU legal counsel Philip Boncardo argued that this was a “self-serving, self-selective system akin to a shift system”.
And it did not matter if there was no obligation for the rider to accept work or for Deliveroo to offer it. “That is the essence of casual employment,” he said.
Working for competitors
But Deliveroo argued that even casuals are not allowed to do other work during shifts and this was what Mr Franco did, fielding orders from Doordash and UberEats at the same time as Deliveroo.
“Mr Franco was miles away from being a true casual employee,” legal counsel Marc Felman said.
“Even a casual employee, when he or she is on, has to serve his employer dutifully and faithfully and give all his attention…
“They can’t go and serve some customers at Coles checkout and when it’s quiet go across the road and serve the Woolworths checkout.”
What Mr Franco did was “entirely up to him and where he worked was entirely up to him”, Mr Felman said.
“Critically he was not required to perform the services at all. The contract required him to arrange for the services to be performed, not to perform them himself.”
However, Mr Franco gave evidence that cancelling a shift under the old system without 24 hours’ notice would impact on his “statistics”.
“This would impact on the number of shifts I would have the following week and impact on my income.”
He also wore a Deliveroo uniform and used a Deliveroo insulated bag while working, which the union argues presented him as part of the business.
Mr Franco was terminated for completing his deliveries too slowly and the TWU argued the termination was a “paradigm case of procedural unfairness” as even on Deliveroo’s own evidence it never had benchmarks for delivery times.
“This is a case where my client was sacked at the height of the COVID pandemic after three years of service to Deliveroo and in circumstances where he received no prior warning whatsoever about the dismissal or reasons for dismissal,” Mr Boncardo said.
Mr Felman argued the company had a valid reason for dismissal but conceded that, seen through the lens of employment, “the boxes weren’t ticked”.
Deliveroo has since scrapped its previous booking system and now allows riders to log in whenever they like.
This article was originally published by the Australian Financial Review. Read the original here.
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