Workers Compensation



Recently, there have been news reports announcing that families of two Uber Eats riders who were killed in the course of their employment with Uber Eats have filed applications for statutory death benefits with the NSW Personal Injury Commission. We await these decisions with interest. Statutory death benefits are awarded to the families of NSW workers killed during the course of their employment. So, what is unusual and newsworthy about this? Until recently, workers in the Gig economy were mostly excluded from workers compensation benefits. They were held to be independent contractors and not workers.

In what some might say was a cynical exercise, gig economy businesses such as Uber contracted their delivery riders using agreements that excluded them as employees. Uber has argued that these riders are contractors and not employees. The company argues that working in the GIG economy offers individuals flexibility and conversation. They claim the gig economy allows workers the opportunity to work when and how often they want and to balance work with personal commitments such as study, family responsibilities or hobbies.

Frequently, this ignores the truth and the reality of the situation, that is that these workers are subject to extensive direction by their GIG economy employer. They wear uniforms, they are required to undertake duties in an organised fashion and are subject to rules, policies and procedures that control where and how they carry out their work.

In March 2022 the Fair Work Commission ruled that delivery drivers and delivery workers working in the GIG economy may be given rights as employees instead of as independent contractors. This case, Diego Franco v Deliveroo Australia Pty Ltd (U2020/7066) is subject to an appeal. Deliveroo is appealing the decision arguing that the relationship between Deliveroo and its riders, is subject to the terms of the contract that was signed and thus they submit that the Full Bench of the Fair Work Commission ought to conclude that Mr Franco was not an employee of Deliveroo.

They seek to argue that Mr Franco was not employed by them. They argue, amongst other things, the following:-
• that he was running his own business,
• he was able to subcontract the delivery services,
• he was not prevented from simultaneously working for competitors and
• that he supplied the critical equipment necessary, i.e. the bike that he rode.

Whilst the scope of what a “worker” is under the Workers Compensation Act 1987 is much wider than the purposes of determining an employee/employer relationship the Fair Work Commission, many of the same issues will be considered in the Personal Injury Commission.

We await further news on this interesting case.

If you have been involved in a workplace injury, you are involved in the GIG economy or have suffered an injury in the course of your employment, our team of Industrial, Employment and Workers Compensation lawyers are here to help you ensure your rights are protected and the compensation that you are entitled to receive is paid to you.

This summary contains general advice only and does not take into account your particular circumstances. For advice on your particular circumstances, please make contact with any of our above-mentioned experts. Liability limited by a scheme approved under Professional Standards Legislation.