28 April 2020

Anthony Forsyth on the Fair Work Commission’s decision to put legal chicanery ahead of reality: “The upshot of the FWC Full Bench’s decision is that Ms Gupta — who was found to be devoid of any real prospect of developing an independent business — had no legal recourse when the organisation for which she provides delivery services ended that relationship. It’s pretty simple really: Ms Gupta performed work over the course of more than a year from which Uber Eats directly benefited. She did not perform work for anyone else. Yet through the interposition of various legal entities and obscure contractual documents, Uber Eats distanced itself from Ms Gupta and any responsibility for her right to decent treatment in the work she performed. … The FWC Full Bench has now sanctioned that exercise in sophistry. … This case highlights, yet again, the need for legislative intervention to recognise the reality that work is being performed in the gig economy by workers. In the Australian context, that means employees with the full suite of employment rights — unless it is clearly demonstrated that someone is operating a genuine business on their own account.” This is an awful decision that allows a lawyer’s fantasy to displace what is obvious to everyone (including Uber) — that Uber drivers are Uber Drivers.