In a landmark ruling, a HungryPanda worker who died after he was hit by a bus in Sydney while working for the company, has been deemed an employee and not a contractor, resulting in his family receiving more than $830,000 in compensation.
While the ruling is significant for the deceased worker’s family, according to expert in industrial relations Professor Anthony Forsyth from the College of Business and Law RMIT, it was unlikely to have broader implications on the gig economy as a whole. Until the government passes appropriate legislation, gig economy workers would continue to work under precarious and insecure work conditions, he says.
The driver, Xiaojun Chen, was delivering food on his motorbike in Zetland, Sydney, when he was hit by a bus. He leaves behind his wife, Lihong Wei, two children and his 75-year-old father.
The NSW state workers’ insurer Employers Mutual Limited (EML) ruled this month that Chen was employed by HungryPanda when he died, allowing his family to receive benefits.
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“To our knowledge, this is the first case where there has been an admission that a gig economy driver has been considered a worker,” according to Slater and Gordon Lawyers practice group leader Jasmina Mackovic.
Transport Workers Union (TWU) national secretary Michael Kaine meanwhile described the decision as “justice” for Xiaojun’s family.
“No family should have to experience the indescribable grief of losing a loved one at work. While no amount of compensation will truly heal the loss Xioajun’s family feels, this decision goes a long way towards righting a horrible wrong,” Kaine said.
The TWU has been campaigning for a number of years for better protections and rights for food delivery riders, including minimum wages and workers’ compensation benefits. In May this year DoorDash signed an agreement with the TWU which laid out six key principles for workers and companies operating in the gig economy, supporting calls for enforceable industry standards.
But while HungryPanda’s ruling, as Kaine says, brings justice to the family, Forsyth says its implications may be “fairly limited” and there was a long way to go.
“I think it’s important that there has been this finding that this person was an employee or worker whose family qualified for the death benefits payable under the scheme,” Forsyth said.
“But wider implications may be fairly limited because it’s decided under that specific legislation. The finding doesn’t translate more broadly into any likelihood that gig workers would be considered employees under the fair work act.”
Forsyth points to a ruling last week where the High Court turned down an unfair dismissal claim against Uber after it found that the Uber driver in question, Asim Nawaz, was an independent contractor and not an employee.
“This has further hampered the ability of gig workers to challenge their employment conditions,” Forsyth said.
“The High Court of Australia, earlier this year, made a number of decisions which say that when you’re trying to work out if someone is an employee and covered by employment regulation, or whether they’re a contractor who falls outside of that, you just look at the terms of the contract.
“You don’t look at whether the agreement is fair, you don’t look at what is actually happening in the reality of that relationship.
“This played out in last week’s Uber case, where the High Court is saying we don’t care if that is an unfair bargain or what the reality of those workers’ conditions are. We only care if they agree to certain terms and conditions.”
There may, however, be hope for gig economy workers, as the federal Labor government has promised to put forward legislation that would stand up for casual workers.
According to Labor’s Secure Australian Jobs Plan, Labor will “legislate a fair, objective test to determine when a worker can be classified as casual, so people have a clearer pathway to permanent work”.
Forsyth says that while he welcomed this, he felt Labor had to do more.
“They should legislate to redefine what is employment and include that in the Fair Work Act. That would have the effect of deeming people to be employees until the platform proves otherwise, rather than the upside down approach that we have at the moment.”