Home - Foodora delivery rider an employee not a contractor

UpdatesDec 10, 2018

Foodora delivery rider an employee not a contractor

There has been substantial media coverage of the recent decision of the Fair Work Commission (FWC) in Klooger v Foodora Australia Pty Ltd (2018).

By Charles Power

There has been substantial media coverage of the recent decision of the Fair Work Commission (FWC) in Klooger v Foodora Australia Pty Ltd (2018).

The decision concerned an unfair dismissal claim brought by a Foodora delivery rider. The FWC would not have any jurisdiction to determine the claim unless the applicant could show he was an employee. The FWC ruled the applicant was an employee.

The applicant had signed a service contract that stipulated he had been engaged as an independent contractor and not an employee. The service contract provided for him to receive $14 for each hour, plus $5 per delivery.

To work, the applicant logged into his ‘shifts app’ that displayed available shifts for each week.

The shifts were identified with start and finish times and a specific geographical location where the delivery work would be undertaken. The applicant would accept the particular shifts that he found most desirable and commit to undertake the selected shifts in the identified geographical location.

The FWC observed the method of allocating work was similar to that used to notify casual employees of available shifts.

Although the service contract document appeared to go to considerable lengths to stipulate the contractor is not an employee, and to reinforce that the document is constructing a relationship of principal and independent contractor, the FWC observed that many provisions were similar in form and substance to those that would ordinarily be found in an employment contract document.

Examples cited were clauses dealing with rostering and acceptance of jobs, what the courier would wear at work and requirements to comply with policies and practices.

According to the FWC, the following features pointed to the relationship being one of independent contractor:

The FWC observed the following features as being consistent with its ultimate ruling that the relationship was employment:

Based on this, the FWC ruled the applicant was not carrying on a trade or business of his own, or on his own behalf. Instead the applicant was working in Foodoora’s business as part of that business.

The applicant was integrated into Foodora’s business and not an independent operation.

He was an employee, not an independent contractor.

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