Employment & Safety Update – 6 May 2020

Can I require my employees to download the CovidSafe app?

The Federal Government has released the “CovidSafe” app to assist medical services with tracing potential close contacts of people who are diagnosed as having COVID-19.  When activated, the app uses Bluetooth technology on your phone to record when you spend a minimum amount of time close to another user who also has the app. If you are subsequently diagnosed with COVID-19, you can provide health authorities with access to data stored on your phone about those you have been in close contact with.

Many employers are asking whether they can, or should, require their employees to download the app given their obligations under the Work Health and Safety Act.

In short, the answer is no.

The Government has issued a determination which makes it clear that a person must not require another person to download, activate or use CovidSafe. The determination also provides that an employer must not take ‘adverse action’ against an employee for not downloading or using the app.

That said, employers can inform employees of the app, and may encouraged them to use it. However, there cannot be any coercion or less favourable treatment where an employee chooses not to do so.

Case note – Gupta v Portier Pacific; Uber Australia Pty Ltd [2020] FWCFB 1698

The issue of whether workers in the “gig economy” are employees or independent contractors has been the subject of much litigation over recent years. Uber has frequently found itself involved in those disputes and, to date, has achieved outcomes agreeable to its arguments. In Gupta v Portier Pacific (the company that operates the Uber Eats platform) the Full Bench of the Fair Work Commission again found in favour of Uber and determined that an Uber Eats delivery driver was not an employee, and thus not protected from unfair dismissal.

Ms Gupta was a delivery driver for Uber and other delivery services. For apparent performance reasons, in January 2019, she was permanently blocked from the Uber Eats “Partner App”, which meant she could no longer receive Uber Eats delivery jobs. She said this amounted to a termination of employment and lodged a claim for unfair dismissal. The Fair Work Commission found that she was not an employee and her claim was unsuccessful. She appealed the decision to the Full Bench of the Fair Work Commission.

The Full Bench considered whether or not Gupta was an “employee” or an “independent contractor”. Ultimately, the Full Bench found that Gupta was not an employee.

Two members of the Full Bench:

  • found that Ms Gupta was an “independent contractor”. In doing so, they re-confirmed that the test for determining whether a person is an employee or independent contractor does not involve a “mechanical exercise of running through items on a checklist, but is rather a matter of obtaining the overall picture from the accumulation of detail” based on a multi factor test;  and
  • considered that Uber’s lack of control over when Ms Gupta worked;  Ms Gupta’s ability to refuse to work; and that she did not purport to represent Uber Eats when collecting or delivering food, were central to its determination that she was an ‘independent contractor’, and not an employee.

In separate reasons, Deputy President Colman agreed that Ms Gupta was not an employee – but went further to state that neither was she an independent contractor and that she was “simply working for herself”, despite not running her own enterprise. In short – he found there was no “work/wages” bargain between Ms Gupta and Uber and she fell into a different category.

Deputy President Colman’s finding does not sit with the traditional ‘binary’ position in Australia that a worker is either an ‘independent contractor’ or an ‘employee’ but does highlight the difficulty in applying that traditional approach to modern forms of work.

In other jurisdictions, like the UK, governments have legislated to address the expansion of the gig economy and the move away from ‘traditional’ engagement models.  Given that the gig economy continues to expand to provide more services on demand, it can only be a matter of time before legislation is introduced in Australia as well.

If you have any questions, please contact us:

Brett Cassidy
Principal
M: 0438 368 053
E: bcassidy@pageseager.com.au

Joe Mullavey
Senior Associate
M: 0416 794 061
E: jmullavey@pageseager.com.au

Published: 6 May 2020

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