Deliveroo is not an Employer: Decision of Full Bench of the Fair Work Commission in Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156

• Published date: 23 August 2022
• Law Firm: Holman Webb
• Author: Mr Nick Maley

Summary

In a Full Bench of the Fair Work Commission, the Vice and Deputy Presidents applied recent decisions of the High Court to determine that a Deliveroo delivery worker, Mr Franco, was not an employee and was an independent contractor. The matter in question is Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156.

The full bench, when applying the rationale in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 ('Personnel Contracting') and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 ('Jamsek'), found that on a strict interpretation of the terms of the agreement to carry out work, Mr Franco was a contractor and not an employee.

The full bench did say that had they applied the multifactorial test which applied before Jamsek, it would have concluded that Mr Franco was an employee.

Implications

This case shows the practical application of Jamsek and Personnel Contracting and how it may play out in future decisions. It means that the process requires analysis of the terms of the agreement, without going further and analysing how the parties subsequently conducted themselves.

Whilst it appears to be a reasonable application of the High Court authority, the Full Bench clearly wished to clarify that it would have decided the matter differently had the High Court not handed down those decisions.

We can expect more decisions of this nature in the near future, both in the Fair Work Commission and also in relation to injury cases involving workers.

Facts of the case

Mr Franco was retained to provide services to deliver food by Deliveroo in April 2017. He supplied his own motorcycle and mobile telephone. In 2019, the terms of his contract were updated and a new contract was entered into.

Mr Franco was also engaged to provide services for other service providers, including DoorDash and Uber Eats. He did not delegate any of his work to any person. He is entitled to not sign on and to reject any job, even after it had been allocated to him.

Because of alleged poor performance and delays, in April 2020, Mr Franco's contract with Deliveroo was terminated and his access to the application (and thus his ability to obtain jobs) was disabled. Mr Franco brought a claim with the Fair Work Commission alleging that he was an employee, and he had been unfairly dismissed.

By a decision made on 18 May 2021, Commissioner Cambridge at first instance accepted that Mr Franco was an employee and that he had been unfairly dismissed. He ordered reinstatement. In...