Deliveroo will seek on Monday to overturn a Fair Work ruling that one of its riders was an employee and not an independent contractor, in proceedings with significant implications for the gig economy.
Diego Franco worked for Deliveroo for three years until he was sacked and removed from the app for allegedly delivering orders slower than other riders.
Much of the original case focused on Mr Franco’s employment status, with Deliveroo maintaining he was an independent contractor with no unfair dismissal claim rights, while the Transport Workers Union argued he was an employee and could pursue a legal remedy for his sacking.
Uber last year settled legal action that could have seen its workers classified as employees, while Foodora left the Australian market in 2018 in the wake of a test case launched by a rider.
Mr Franco also worked for UberEats and the commission said Deliveroo giving permission to riders to work for competitors and engage in multi-apping was a factor that did point against the existence of an employment relationship.
Commissioner Ian Cambridge said the compelling conclusion was that the relationship between Mr Franco and Deliveroo “is that of an employee and employer”.
“Importantly, the level of control Deliveroo possessed, and which it could choose to implement or withdraw, whilst not immediately apparent, when properly comprehended represented an indicium that strongly supported the existence of employment rather than independent contracting,” Mr Cambridge said.
In its appeal, Deliveroo says the commission erred by failing to conclude Deliveroo had little or no control over the way Mr Franco provided his services, citing the number of orders he refused without consequence.
Deliveroo says the commission gave insufficient weight to Mr Franco working for multiple competitors.
Arguing against the appeal, the TWU says the absence of an obligation on a worker to accept work at particular times is not inconsistent with the existence of an employment relationship “A casual employee, particularly an ad hoc casual, has no obligation to work at particular times or particular hours,” the union says.
“The fact that mobile mapping and communication technologies permit Deliveroo to organise its workforce with some flexibility does not alter the fact Mr Franco was a worker not operating his own business but working in and for the food delivery business of Deliveroo and under its control and direction.”