June 2020

The Nation Reviewed

Wage deals on wheels

By Russell Marks
Delivering your dinner for half the minimum wage

Data shows that Australians have been spending twice as much as we normally do on food-delivery services during the COVID shutdowns. Where once there were queues at fast-food restaurants, there are now half a dozen anxious delivery cyclists pacing in circles, their attention fixed to their screens, their box-bags occasionally bumping.

Restaurants and takeaways are forever in two minds about Uber Eats, says Hanh at the Vietnamese place around the corner from where I live. Her sister owns the business. If they didn’t participate they’d lose too many sales. But the 30 per cent fee that Uber notoriously charges for each order (this was reduced from 35 per cent during the COVID pandemic) takes a significant bite out of their profit margin (though Uber began discounting these fees during the COVID restrictions following public pressure). Every time I buy takeaway from her, Hanh thanks me for coming in instead of having it delivered.

Zac is waiting restlessly outside my local fish and chip shop. He’s taken his box-bag off his shoulders and has it open, ready to receive an Uber Eats order with maximum efficiency. Would it be okay to ask him some questions? Zac’s fine with it, as long as I keep him anonymous. We trade numbers and converse later via WhatsApp. He’s mid twenties, on a partner visa. He delivers for Uber between 40 and 50 hours every week.

What does he earn? “Around $400 normally,” he says. “Sometimes more if I’m lucky.” So, about $10 an hour? “Yes, on average.” That’s about half the minimum wage an employee can be paid in Australia. Uber pays him between $6 and $8 per delivery, depending on the distance he has to cycle, though he doesn’t know exactly how Uber calculates the fee. He explains that he has “lucky hours” when he makes two, sometimes three deliveries, but most of his day is spent waiting around for a delivery request. Waiting, and not earning.

Zac’s experience seems typical, judging from other conversations with delivery cyclists in Brisbane. In the public mind, and in Uber’s messaging, deliverers are earning a bit extra on top of their main job. But nobody I’ve spoken to has any other work. They’re mainly young, often students, rarely citizens. I’m reminded of Billy from the 2005 WorkChoices promotional booklet, the kid who John Howard told us was better off having a job that paid less than minimum wage than no job at all.

Fernando, from South America, wants to get work for one of Uber’s competitors, because he says they pay better and there’s more work. He also says they limit their deliverer numbers in each location, in order to match supply with demand and keep their deliverers busy. Not so Uber. “You can sign up and in one week you start working,” Fernando says. “With COVID there’s too many working for Uber Eats. Too much competition for [delivery] requests.” There’s a lot of downtime.

In September 2017, Amita Gupta began driving for Uber Eats in Adelaide. Actually, her husband Santosh did the driving, while Amita collected the food from restaurants and delivered it to customers (Uber calls them “eaters”). They hadn’t been able to find any other work. “We got $4.30 for pick-up and $2 for drop-off,” Santosh tells me over the phone, describing Uber’s old delivery-fee structure before it changed late last year to reflect distance travelled. “But sometimes we have to drive maybe 15 minutes to the restaurant to pick up.” The journey between home and the restaurant was entirely at Santosh and Amita’s expense, but between the restaurant and the “eater”, Uber paid them 66 cents per kilometre.

There were many frustrating trips. “When we reach the restaurant, if the food is not ready we have to wait. After 15 minutes we can cancel, but we don’t get paid anything. Many times we wait longer. The longest we wait was 55 minutes.” But Santosh and Amita wouldn’t cancel, because she believed that would affect their rating. And, if they got to the drop-off destination and the eater wasn’t there, Santosh would have to call the eater twice, five minutes apart. More waiting.

After a while, he noticed things weren’t adding up. “We were working 12 hours some days,” Santosh says, “and we were earning maybe $100 for the whole day. We got $6.30 every delivery and we were paying petrol, car, phone, parking ticket, speeding ticket.” He says he and Amita had lots of stressed conversations about continuing to drive for Uber Eats. Her health wasn’t good, and the long days weren’t helping. Their access to the app was occasionally “suspended” for a day at a time when their rating fell too low because they’d refused too many requests, or were too slow making deliveries. “I used to tell her, don’t destroy your health for $6.”

In January 2019, Santosh and Amita received a new delivery request. They accepted it, but Uber’s app gave them a “recommended” route that required them to take an immediate left turn. “We were in the right lane; we could not take left turn,” Santosh says. “We went straight. We were late by 11 minutes.” Uber blocked Amita’s access to the app, cutting her off for good.

Santosh helped Amita claim unfair dismissal at the Fair Work Commission, representing her at the hearing in North Terrace’s Riverside Centre. Something of a bush lawyer, Santosh argued that either Amita was an employee of Uber Eats (and therefore entitled to a remedy), or her contract with Uber Eats was unfair under independent contractor laws (because she was earning less than an employee would). But, like The Castle’s Darryl Kerrigan when he took on the airport consortium, Santosh had few answers to Uber’s in-house counsel, Cameron Loughlin (who’d previously worked at top-tier corporate firm MinterEllison for six years) and Sydney barrister Yaseen Shariff. The commissioner dismissed Amita’s claim on both grounds.

The decision was the first in Australia to consider Uber Eats’ business model. The Transport Workers’ Union, which has had the gig economy in its sights for some time, found Amita on Facebook and messaged her. She replied from her hospital bed. The TWU offered to appeal the decision on her behalf, and brought in barristers Philip Boncardo and Mark Gibian SC. In 2018, Gibian had successfully convinced the commission that people who delivered for German app Foodora were “employees” under Australian law. Foodora closed its operations here the same year amid multiple lawsuits.

But the commission’s full bench – including its president, Justice Iain Ross, and vice-president Adam Hatcher, neither of whom is seen by business groups as a friend to them – unanimously upheld the initial verdict. Whether someone is an “employee” or an “independent contractor” in Australia depends on a “multi­factor test”, which asks factual questions about the nature of the relationship between worker and company. The full bench came down on Amita’s side on a number of factors, but couldn’t get past three that they deemed “critical”. First, Uber Eats didn’t exercise any control over when Amita logged onto its app, or whether she accepted any particular request. Second, even while logged on, she was theoretically able to accept work from Uber’s competitors. And third, she wasn’t required to wear a uniform or display Uber’s logos.

Santosh says the full bench misunderstood the practical realities of working for Uber Eats. Sure, Amita could choose to refuse a request. But she understood that affected her rating. Refuse too many requests and Uber stopped sending them. He also explains that “refusals” aren’t always intentional. “The request displays on the phone for seven seconds,” he says. If Amita didn’t accept it during that time, Uber counted it as a refusal. “When you sit around at home for two hours, three hours, waiting for request, and the request comes and you’re in the toilet or another room, how do you accept?” Or: “If you’re driving at 60 [kilometres per hour] and you receive a delivery request, you can’t touch the phone. You need to pull over first or get fined.”

Despite the outcome of the appeal, TWU’s national secretary, Michael Kaine, says he’s quite happy with the result, because it rejected a number of Uber’s contentions about the nature of its relationship with deliverers. The problem, he says, is the law the commission must apply – it offers no practical protections for workers such as Amita, and doesn’t allow the commission to consider the social effects of work contracts.

Kaine hopes the federal government can more clearly see the regulatory gap in Australia. Why, he asks, should any workers be denied insurance for injury and protection from unfair work arrangements? Since this article’s initial publication, Uber has stated that its “eligible drivers and delivery partners with Uber and Uber Eats in Australia are insured for on-trip accidents”.

Meanwhile, the Victorian government’s inquiry into its “on-demand workforce” is due to deliver its findings in June. Queensland’s Worksafe is considering whether to extend workers’ compensation to gig economy workers. But Kaine says the Howard government’s WorkChoices package, which included the current independent contractor laws, made the issue – and the solution – federal. A 2018 Senate inquiry report, which called for legislation to protect gig economy workers, is gathering dust.

Uber arrived in Australia in October 2012 and “disrupted” – or smashed – the taxi industry. When Uber Eats got into food delivery, Menulog and Deliveroo were already here. Any reputational criticisms that the company faced were themselves disrupted by a campaign (“Tonight, I’ll be eating…”), now in its third year, that shelled out for the endorsements of our most-loved (and most-trusted) faces – Ray Martin, Ruby Rose, Rebel Wilson, Barnesy, Farnsy and Anhsy, and of course Sharon Strzelecki with Kim Kardashian West – and catapulted Uber Eats to the top of the pile.

“I order midnight Magnums on Uber Eats all the time,” a friend tells me. She’s not accustomed to considering the labour ethics of her consumption choices. Minimum wage is an institution here, and people assume that if Uber Eats is legal, and if Rafael Nadal and Lee Lin Chin are endorsing it, everyone’s rights are being protected. But the minimum wage is, after all, just another target for disruption.

— Amendments to this article have been made since publication.

Russell Marks

Russell Marks is a lawyer and an honorary research associate at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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