PN1

JUSTICE ROSS: Can I have the appearances, please.

PN2

MR M GIBIAN: May it please the Commission, I seek permission to appear with Mr Boncardo for the appellant.

PN3

MR I NEIL: If the Commission pleases, I appear with my learned friend, Mr Shariff, to ask for permission to appear for Portier Pacific Pty Ltd, the present first respondent.

PN4

JUSTICE ROSS: Thank you. On the basis of the submissions put in support of the applications, we grant permission. Having regard to the complexity of the matter, we think it would be dealt with more efficiently if permission were granted.

PN5

MR GIBIAN: May it please.

PN6

JUSTICE ROSS: Mr Gibian.

PN7

MR GIBIAN: As the Full Bench knows, this is an appeal raising a question as to whether a particular delivery driver engaged as part of the Uber Eats business was an employee for unfair dismissal purposes.

PN8

JUSTICE ROSS: Just before you - - -

PN9

MR GIBIAN: I'm sorry.

PN10

JUSTICE ROSS: - - - go, Mr Gibian, the amended notice of appeal, is there any objection to the amendments sought?

PN11

MR NEIL: We consent to the amendment.

PN12

JUSTICE ROSS: Can you just summarise the amendments. Just doesn't change any of the grounds or - that I could tell on a quick read.

PN13

MR GIBIAN: No, look I don't think it's probably necessary but - and I was going to let it pass in truth, I'm not sure we press it. The only effect of it was to remove the other Uber entity as a respondent.

PN14

JUSTICE ROSS: All right, so Portier Pacific Pty Ltd remains and Uber Australia Pty Ltd is deleted, is that ‑ ‑ ‑

PN15

MR GIBIAN: That's the sole effect of it.

PN16

JUSTICE ROSS: All right. Permission is granted. The notice of appeal will be amended as sought, okay. Sorry, Mr Gibian.

PN17

MR GIBIAN: Thank you, your Honour. The background to the matter is, in broad outline, uncontroversial and it will be clear Ms Gupta was contracted to perform work in the Uber Eats business between September 2017 and January 2019. I think it's said that there were two different contractual documents, service agreements, entered into in that period of time although I don't think it's suggested there's any material difference between those two documents.

PN18

She undertook some 2200 pickups and deliveries using the Uber app during that period for which she was paid by the Uber entities. She ceased carrying out that work in January 2019 when her access to the app was blocked, was suspended initially and then blocked. The allegation in the unfair dismissal application was there was an issue in relation to the timeliness of the deliveries that she was undertaking.

PN19

She made an unfair dismissal application under section 394 of the Act which, on a preliminary hearing, the Commissioner found she was unable to make because she was not an employee for the purposes of the relevant part of the Fair Work Act. The appeal raises matters of broader significance warranting a granting of permission to appeal. The application - in particular in relation to the application of the traditional common law tests for distinguishing an employment relationship to be somewhat novel but increasingly prevalent forms of engagement in what's called the e-economy and the method of operation of those businesses, particularly the technological use of a phone app as a method of allocating work, raises issues in relation to the applications of consideration including control, operation of separate business and what has featured in some of these cases, reference to the work wages bargain.

PN20

Uber's transport, passenger transport, business has been subject of some decisions of individual members of the Commission in unfair dismissal contexts although not the Full Bench. I think in all of those cases the workers were not legally represented. There is also, of course, a decision in relation to another food delivery business, Foodora, which also of a single member of the Commission. In those circumstances we obviously submit that the matter raises matters of significance that warrant a grant of permission to appeal.

PN21

The Full Bench has our written submissions and we rely upon them. What I propose to do orally is address the matters in this order, firstly, I do think logically it's appropriate to deal firstly, briefly, with the approach on appeal to this question because there is an issue raised in the submissions in relation to that issue. Secondly, I wish to go to some of the evidence, particularly the services - the terms of the services agreement and what are referred to as the community guidelines which are incorporated as requirements within that document, particularly as they go to the endeavour that Uber Eats is engaged in to describe the relationship in a particular way which, in our submission, is a fiction and thirdly, I'll endeavour to address some of the relevant considerations particularly whether Ms Gupta could be said to have been operating her own business.

PN22

The wages work bargain and the reliance placed upon that and the element of control in the circumstances of the work undertaken, subject to anything the Bench might wish to say. Can I deal firstly then with the question of the nature of the appeal. The question of whether a person is an employee for the purposes of making an unfair dismissal application is one of jurisdiction. Either the person is an employee and able to make such an application or the person is not an employee and not able to make such application.

PN23

On appeal from a finding in relation to that question for the Full Bench, the question is whether the decision at first instance was correct or not, not whether it was open or whether the approach applied was correct or not. The respondent's submissions urge a different approach and can I note what they say - - -

PN24

JUSTICE ROSS: I'm not sure it's that different in the sense that the accept it's not a discretionary decision, they accept the question is not whether it was reasonably open. Rather, as I understood the respondent's argument, it points to the fact that the Bench would first have to satisfy itself that there was an error in the decision.

PN25

MR GIBIAN: Yes.

PN26

JUSTICE ROSS: Is that the - yes.

PN27

MR NEIL: That is so.

PN28

MR GIBIAN: Yes. Well I suppose we say two things about that. The first is we have in the notice of appeal referred to particular considerations and the manner in which they were dealt with by the Commissioner, with respect, to say there was errors in that respect.

PN29

JUSTICE ROSS: Yes, I want to go to that at a convenient time and try to - because on my reading of your submission you identified three errors. Well leave aside the error being what you say about the conclusion but three particular errors. One was the, you say, the Commissioner mis-stated the effect of the guidelines. You say that at paragraph 15, that's the point you've indicated you're going to allude to.

PN30

Then at paragraph 24, you say there's an error in the Commissioner's characterisation of the capacity to delegate and this is, presumably, the use of the facial recognition identification on the app from time to time, and the third is at paragraph 27 and following where you say that, as I understand it, that the Commissioner erred in placing decisive weight on the wages - work wages bargain point. Are those the three discreet errors and if there are others, where do you deal with them in the submission?

PN31

MR GIBIAN: The grounds or the particular errors ‑ obviously we approach it in two ways. Firstly, we do say that on appeal, by way of re-hearing, if it is incumbent upon the Full Bench to form its own view about whether or not Ms Gupta was an employee for the unfair dismissal purposes or not and if it forms a different view to the Commissioner then there was an error at first instance and it is sufficient to say that.

PN32

So far as the Commissioner's reasoning is concerned, we rely upon the matters that are referred to in point two of the grounds of appeal, the four matters that are referred to under paragraph 2.1 of the notice of appeal.

PN33

JUSTICE ROSS: Well they're really errors of weight. The only - so what I'm not clear, there's a sort of disconnect between the grounds of appeal and the submissions. The grounds of appeal, the first, 2(a), (b) and (c), really just refer to weight. I'm not - I don't say that pejoratively. What I'm pointing to is that they don't say that the Commissioner erred in his consideration of the effect of the guidelines, for example, which is what you do say in your written submissions.

PN34

MR GIBIAN: Yes. Well obviously that's relevant to the control question which is raised in the notice of appeal.

PN35

JUSTICE ROSS: All right, but in terms of the particular errors are they the three that I've identified and the grounds of appeal are really another way of saying that fail to give sufficient weight to certain factors which led to the erroneous conclusion?

PN36

MR GIBIAN: Yes.

PN37

JUSTICE ROSS: All right.

PN38

MR GIBIAN: Yes. I think that's right. We do say that the Commissioner doesn't seem to have, particularly in relation to the question of whether Ms Gupta could be said to have been operating her own business, doesn't seem to have given consideration to that. He does, at various points, refer to matters that may inform that question, matters of goodwill and the like, but it's not separately considered as a, particularly in the reasoning at the conclusion of the decision, as a factor and as I say, that is a significant matter we think, particularly when one looks at the service agreement and the way in which Uber Eats seeks to describe, in an implausible way in our submission, the way in which these relationships operate.

PN39

But I did just want to refer briefly to the nature of appeal issue because there is a difference of opinion between parties and as we'd understood my learned friend's submissions, particularly at paragraphs 21 and 22 of their submissions, at paragraph 21 the respondent says that the correct approach starts with the proposition that once, as in the decision, the correct legal test and relevant indicia are identified and applied and the facts are correctly found, then the exercise of weighing and balancing those indicia is unavoidably evaluative involving a collective assessment of the facts found and that there was, in that context, no right or wrong legal answer and in the result provided, at paragraph 22, in the result provided that the correct criteria had been applied, the fact that another decision may attach different weight to various factors is no basis for ascribing jurisdictional error.

PN40

We think that to the extent that there is reliance upon an assertion that the conclusion involves an evaluative exercise that therefore it's a question as to whether or not the correct criteria and test were applied, then it is wrong. As the Full Bench knows, in an appeal by way of hearing, re-hearing, which this is, it is necessary to identify error.

PN41

In the context - unless the decision under appeal though involves the exercise of discretion, and I note that that's not what's pressed, it's not a question as to whether or not simply the correct approach is being followed or not. The question on appeal is whether or not the correct answer has been arrived at in the decision at first instance. In that respect, we've referred to a number of decisions in the written submissions. We do have some folders I understand.

PN42

Sorry, there was one additional one. Members of the Bench would be familiar with some of these decisions but can I just note what was said in Damevski which is under tab seven in the bundle. Obviously, as the members of the Bench know, the issue in that case was whether Mr Damevski was employee or not and ultimately the matter went up to the Full Court on judicial review. Can I note what was said at paragraphs 103 and 104 of the judgment and there under the heading Relief, it was said:

PN43

The Commission was incorrect in determining that Mr Damevski was not an employee and this was a fundamental jurisdictional issue. In this circumstance, it's appropriate for the court to give prerogative relief

PN44

reference to Pawel v AIRC in which it was noted that whether under the then unfair dismissal provisions:

PN45

the Commission must determine whether an applicant is an employee in one of the categories. The jurisdiction is contingent upon the fact that the applicant was such an employee and that not the Commission's opinion or satisfaction

PN46

and then after a reference to the High Court in Eshetu:

PN47

the determination of whether an applicant is an employee is one of the categories specified - in one of the categories, I should say, specified in what was then section 170CB(1) is a determination not only of jurisdictional fact but a determination of constitutional facts.

PN48

Then at paragraph 104:

PN49

In Pawel, the relevant employee sought to invoke the jurisdiction of the Commission to entertain an application that his employment had been terminated harshly, unjustly or unreasonably.

PN50

At first instance it's noted that the Commission found the employee had not been so terminated:

PN51

The Full Bench held that the Commissioner's findings, which led him to the conclusion that Mr Pawel's employment had not been terminated at the initiative of the employer, were open to him.

PN52

In the court, Branson and Marshall JJ said:

PN53

On appeal to the Full Bench of the Commission with respect to a determination of a Commissioner as to whether an applicant was an employee in one of the categories, the Full Bench would be concerned with whether the Commission reached the right conclusion as to whether the applicant under section 170CE(1)(a) was such an employee. It would not be concerned simply with whether the decision of the Commissioner was reasonably open.

PN54

The separate case that was handed up was Sammartino v Foggo. Again a case as to whether or not a person was an employee or the applicant was an employee for relevant purposes and I note from, I don't need to read it, but from paragraph 5 the court, the Full Court, referred to the approach which had been adopted by the Commission, or the Full Bench of the Commission, on appeal at first instance in relation to that question and then at paragraph 7 it says that well first there was an error in relation to the identification of the of the correct appeal provision and then in the second sentence, the court noted, noting the reference to House v The King, said that:

PN55

House v The King summarised the principles permitting interference by an appellate court of the exercise of a discretionary judgment and was not concerned with an appeal from a decision where all that was required to be shown was an error of law or an error of fact.

PN56

There's then a passage from House v The King and at paragraph 8 a reference to another High Court matter, Lovell v Lovell and then in the - - -

PN57

JUSTICE ROSS: Is it followed from that that you have to show an error of law or an error of fact?

PN58

MR GIBIAN: Yes, but it is an error of law if the wrong conclusion was reached. Then in the second sentence at paragraph 8:

PN59

The question whether a person is an employee for the purposes of Division 3 of the Act, the then Act, is not in any way a discretionary decision. The decision maker must first ascertain what is meant by the word 'employee' when used in Division 3. Then the decision maker must make findings of fact and determine whether the facts as found establish whether the person is an employee or not. No exercise of discretion is involved.

PN60

On appeal from such a question, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King. In dealing with the appeal, the Commission is under the duty to consider all of the proven facts and those facts that have been admitted, and any inferences that may be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which the decision might depend. If, in undertaking these tasks, it finds that the Commissioner has made an error of law or an error of fact, it may exercise its powers under section 45(7).

PN61

Then at paragraph 10:

PN62

It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts and on the law than that arrived at by the primary decision maker.

PN63

Thirdly in that respect, can I just note what the High Court has said most recently in a judgment which is under tab 13 in the bundle, Minister of Immigration v a migration applicant, S - or a refugee applicant, SZVFW, which dealt with the standard of appeal in the context of matters involving an evaluative judgment. The issue in that case was whether the original decision of the relevant migration tribunal was unreasonable or invalid by reason of unreasonableness.

PN64

Again, a matter involving the exercise of judgments and evaluation but that did not warrant any approach of deference on appeal. Can I note firstly what the chief justice said in paragraphs 17 and 18 where it was said that:

PN65

On the Minister's appeal to the Full Court of the Federal Court, the Court focused on the nature of the appeal to it as a decision of the primary judge rather than the substance of her Honour's decisions. It was necessary, their Honours considered, that it be shown that the primary judge had made an error in the process of evaluating whether the Tribunal's decision was unreasonable. The approach to be taken was said to be analogous to what is necessary in appeals from discretionary judgments.

PN66

Then at paragraph 18:

PN67

The question for the Full Court was whether the Tribunal's decision was legally unreasonable and whether the primary judge's reasoning in this respect was correct. It was necessary for it to decide these questions for itself rather than defer to what the primary judge had held and require the Minister to identify some error in her Honour's reasoning.

PN68

Gageler J then dealt with the same issue at some length. Can I note what was said at paragraphs 26 - what his Honour said at paragraphs 26 and 27. Paragraph 26, his Honour said:

PN69

Applying that deferential standard of appellate review, the Full Court found that the reasons advanced by the Minister in argument before it for considering that the Tribunal's choice to proceed to make the decision was not unreasonable were insufficient to demonstrate the requisite appealable error on the part of the primary judge.

PN70

Then at paragraph 27:

PN71

Had the Full Court applied the correct standard of appellate review, the Full Court would have examined the evidence contained in the record of the proceeding in the Federal Circuit Court which gave rise to the orders under appeal to form its own conclusion as to whether the choice of the Tribunal to proceed to make a decision was unreasonable. The Full Court would have given respectful consideration to the reasons given by the primary judge for reaching the conclusion under appeal in the process of forming its own conclusion. But the Full Court would have given effect to its own conclusion if its own conclusion differed from that of the primary judge.

PN72

His Honour also then refers, as I say, at some length to the standards of appellate review and concludes in relation to that issue at paragraphs 48 and 49, the judgment:

PN73

The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge's conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable in appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction.

PN74

The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or on a topic on which judicial minds might differ.

PN75

That really does seem to be what the respondents are saying here, because it's evaluative process there is some form of deferential appellate review contemplated. Rather, his Honour says:

PN76

The line is drawn by reference to whether the legal criteria applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies.

PN77

Finally in that respect, can I note what Nettle and Gordon JJ said at paragraph 85 of the judgment where their Honours said:

PN78

On review, a conclusion by a primary judge that a decision maker has exercised a power in a manner which is unreasonable does not depend on the exercise of any discretion by the primary judge.

PN79

Same as - which is the same here:

PN80

It may involve an evaluative process. But labelling the task of a primary judge as 'evaluative' does not entitle an appeal court to determine, for example, that the purported exercise of power by the decision maker was valid because it was not legally unreasonable but then, nonetheless, go on to conclude that it was open to the primary judge to reach the opposite view.

PN81

If one applies that approach here, the line of differentiation is not based upon whether there's an evaluative process involved or whether or not reasonable minds might differ on the conclusion. It is based upon whether there is a discretion being exercised or not and if it is the former case, which it is here, then the Full Bench must determine whether the answer was correct or not. I won't take your Honours to it but as I - and as I understand my learned friends rely primarily upon ACT Visiting Medical Officers v AIRC which the issue there was whether the Commission was satisfied that the association applying for registration had a sufficient number of members who were employees so it was mediated in that way and the conclusion which is relied upon at paragraph 28 is as to whether or not there was jurisdictional error involved or not which is not the test here on appeal so with respect, we don't think that assists in resolving that question.

PN82

As I say, there's not an exercise of discretion involved here, that seems to be acknowledged. The question is simply whether the person - whether Ms Gupta was an employee able to make an application or not and it is incumbent upon the Full Bench to form its own conclusion about that based upon the evidence rather than detecting whether or not the correct indicia or approach was applied.

PN83

Obviously we have, as I say, also said that there were, with respect, difficulties in the way in which the Commissioner addressed various of the considerations, particularly in relation to the operation of a separate business, the degree of control and the wages work bargain. If I can turn then to the second matter that I propose to address and that's just to go briefly to some of the documents that are in the appeal book so far as they set out the nature of the relationship between Ms Gupta and Uber Eats, particularly the - initially the services agreement.

PN84

As I said at the outset, there's a - it's indicated that two such documents were executed by Ms Gupta, although it doesn't appear that any difference, materials of difference, is suggested between the two. The first of those or the, sorry, the second of those documents which appear to apply for the bulk of the period of the engagement commences at page 223 in the appeal book. What I wish to emphasise in relation to the services agreement is that there is an attempt to create or to perpetuate what is a fiction in the nature of the relationship.

PN85

Can I - sorry, just before I do go to the text of it itself, can I just note what the English Court of Appeal said on that issue in the Aslam matter, Uber v Aslam, sorry it's under tab 17 in the bundle. Obviously, this is the case concerning passenger drivers rather than food delivery and I think it's been noted that the issue in concerned English legislation was slightly different, or different operation. I just wanted to note though what the Court of Appeal said, or two members of the Court of Appeal said, with respect to the contractual documents and it's at paragraph 90 - sorry, it's page 37 in the copy I have, of the same. I think it's page 37, and before paragraph 90 there's a heading The Artificiality of the Contractual Documents, and at paragraph 90 the two members of the court said that:

PN86

There is a high degree of fiction in the wording of the standard form agreement between UBV and each of the drivers.

PN87

Noting that:

PN88

(a) that one of the entities wasn't present and scarcely mentioned at all, and (b) that the agreement refers to the party with whom UBV is contracting as the partner or customer as if it were a separate legal entity employing one or more of the drivers

PN89

and, indeed, the 2015 version:

PN90

The customer is described as an independent company in the business of providing transportation services but, as the employment tribunal had noted and was accepted in the court, it is common ground that the vast majority of drivers were sole operators and in the words of the employment tribunal the business consisted of a man with a car who seeks to make a living by driving it.

PN91

I then note that there was endorsement of the submission advanced by Queen's counsel for the drivers that, in (c) that:

PN92

The documents required the drivers to agree to numerous facts and legal propositions about the position of others such as the relationship between the customer and Uber and/or the driver rather than it being confined as one would expect to the mutual obligations of the parties to the agreement. This unusual feature was the hallmark of an attempt to describe the set up as Uber wished to portray it and then to bind the driver to that description whereas the function of the contract is actually to set out obligations and then only the obligations of the party to the contract. Moreover, the drivers could not be bound by facts or all legal propositions of which they were they were unaware of and/or which were false.

PN93

VICE PRESIDENT HATCHER: Mr Gibian, does this point to an anterior question in the proceedings, that is we first have to determine for whom Ms Gupta performed the transport and delivery services? That is, you say she performed it for, I'll call it, Uber.

PN94

MR GIBIAN: Yes.

PN95

VICE PRESIDENT HATCHER: The respondent says she performed them for the restaurants who wanted the deliveries and that's the first question that needs to be determined. Because it seems to me if the respondent's right about that, then that's just the end of the story because you don't even get to applying the multi-factor test.

PN96

MR GIBIAN: I wouldn't embrace your Honour's description as the end of the story but I would have to accept it's a significant consideration, yes. It's possible to employ someone to do work for someone else obviously in that sense. What - - -

PN97

VICE PRESIDENT HATCHER: Well I think - but if it goes beyond that, it says the contract for the performance of the transportation and delivery was between Ms Gupta and the restaurants for whom she delivered food, as I understand it.

PN98

MR GIBIAN: Yes.

PN99

VICE PRESIDENT HATCHER: They say the nature of the contractual relationship, I think, between her and Uber was, that, in fact, Uber was providing services to her rather than the other way round.

PN100

MR GIBIAN: Yes.

PN101

VICE PRESIDENT HATCHER: We're the first determined, aren't we, whether that's a correct analysis or not of the contractual position?

PN102

MR GIBIAN: Yes. Well as I say, certainly I don't necessarily want to embrace that it's the end of the story but certainly it's a significant consideration and look, we say that that is plainly not the situation because the individual courier has no, and isn't - has no contact with or negotiation with or relationship with each individual restaurant from which he or she might make a delivery and, indeed, is prohibited by the contract from contacting said restaurant, so the proposition that they have some relationship, some business relationship, which is asserted in the services agreement is a fiction and cannot be reconciled with either the legal position or certainly the practical position in terms of the way in which the work is undertaken.

PN103

Can I just note that - can I take that then - I did want to refer to that passage from the English Court of Appeal judgment because it does, whilst it was dealing with a different contract in relation to passenger services and passenger transportation, that the fictitious nature of the contract and the fact that one can't bind a party to the contract to such legal fiction is significant.

PN104

Can I note then that the second services agreement, commencing at page 223, firstly under the introductory part at the top of page 223 seeks to assert that (indistinct) specifically 'The Uber Eats entity will procure and facilitate the provision of the lead of generation services being on demand intermediary and related services rendered via a digital technology application that enable independent providers of delivery services to seek, receive and fulfil on demand requests for delivery services by you, an independent provider of delivery services'.

PN105

That's what's sought to be asserted as the nature of the arrangement, as your Honour, the vice president, points out. Can I note in the definitions further down that page, at 1.7, there's a reference to delivery services where there's an assertion that 'Delivery services means your provision of delivery services to or on behalf of users via the Uber services in the territory using the applicable transportation method', so there's an assertion that the delivery is to or on behalf - or is the provision of services to or on behalf of the what are described as users.

PN106

The term user is defined over the page on page 224 at 1.17 as meaning 'An end user, an individual or an entity authorised by Uber to use the Uber app for the purpose of requesting delivery services offered by (indistinct) specific delivery provider or customers'. It seems that's either the restaurant or the delivery recipient. Clause 2 then deals with the use of Uber services and at 2.1 it's said, under the heading Provision of Delivery Services, that 'When the provider app is active, user request for delivery services may appear to you via the provider app if you are available and in the vicinity of the user.

PN107

User request may specify the user's required deadline for the completion of delivery services and then if you accept the request you'll be provided with certain user information, delivery recipient information, and user instructions, et cetera, via the app'. It's then, and I don't want to read it all because it's a longer paragraph, there's an acknowledgement that 'You've received user information and certain information will be provided to the user'.

PN108

Then about two thirds of the way down that paragraph there's a sentence that says 'You shall not contact any users or delivery recipients or use any user's information for any reason other than for the purposes of fulfilling delivery services', so there's a prohibition upon having contact with the user or the delivery recipient other than to provide delivery services. Then at 2.2 there's a purported description of what the relationship with the user and delivery recipients where the person, and just by way of an aside, who is required to complete this online in order to participate in Uber Eats' business, is asked to 'Acknowledge and agree that your provision of delivery services to users creates a direct business relationship between you and the user to which Uber, Portier Pacific and their affiliates are not a party'.

PN109

What's endeavoured to be asserted is that there's a direct business relationship formed between the courier and the user, presumably the restaurant, in circumstances in which the courier does not know and is not provided with information as to who the restaurant is until it accepted the request, accepted the job, and is otherwise prohibited from having contact with the restaurant other than through the app for the purposes of facilitating the specific delivery.

PN110

At 2.3, and I'll need to return to this, there is an assertion that, or there is an acknowledgment that, there Portier Pacific's provision of Uber services creates a legal and direct relationship between Portier Pacific and the courier and the courier's asked to acknowledge and agree to the licence. It's then asserted that 'Neither Uber and Portier Pacific shall be deemed to direct or control you generally or in the performance under this agreement specifically in connection with your provision of the delivery services'.

PN111

However, there is then a reservation or an assertion of a capacity to decline or ignore requests or cancel an accepted request subject to the policy, Uber's then current policies, including what are referred to as the community guidelines and further down that paragraph, and again I don't want to read it all, it's still within 2.3, there's an assertion that the 'Portier Pacific and affiliates' ‑ well, sorry, 'In event of violation of this agreement or any other Uber policy or disparagement of the Uber Eats, of Uber Portier Pacific or any affiliates may, at its sole discretion, terminate the arrangement'.

PN112

At 2.4 there's reference to ratings that I'll refer to. Over the page on 226, and again I'll have to refer to this, there are conduct requirements at 3.1 to 3.3 including to exercise - to undertake the delivery services in a professional manner with due care - due skill, care and diligence and maintain high standards of professionalism and courtesy. Requirements at 3.2 in relation to the transportation methods used and at 3.3 indication or requirement to maintain certain document and provide certain documentation and a statement at the conclusion of 3.3 that the failure to meet any of the requirements at 3.3 or 3.1 or 3.2 shall constitute a material breach of the agreement.

PN113

Can I note then the financial terms which are referred to in clause 4 at the bottom part of page 226 at 4.1 there's, under the heading Delivery Free Calculation and Your Payment, it's stated that 'You can charge a delivery fee for each instance of completed delivery services provided to a user that are obtained via the Uber services. Where such delivery fee is applicable calculated on the basis that the base delivery fee amount plus distance as determined by Portier Pacific and/or time amounts will be a flat fee as detailed in an Uber movement site for the applicable territory'.

PN114

The amount of the delivery fee is determined by Uber Eats not by any negotiation with any restaurant. Well it's then indicated 'The distance and time amounts may be based on the expected not actual trip distance and duration as reasonably determined by Uber' and then the courier is required to 'Acknowledge that the delivery fee is the only payment you will receive', so there's not any capacity for any separate arrangement with any user or delivery recipient.

PN115

Towards the bottom of that page, four lines from the bottom, still within clause 4.1, it's indicated that 'The parties acknowledge and agree that as between you and Portier Pacific the delivery fee is a recommended amount', I should say, 'and the primary purpose of a pre-arranged delivery fee is to act as a default amount in the event you do not negotiate a different delivery fee' which is a little bit.

PN116

It then says that 'You can always have a right to charge a delivery fee which is less than the pre-arranged delivery fee' but appears not more and that in any event that arrangement - it then indicates that, right at the bottom of page 226, that 'Portier Pacific shall consider all such requests in good faith', so you can charge a lesser amount by way of negotiating with Portier Pacific, the Uber entity, for a lower amount.

PN117

It's not contemplated or, indeed, permissible that you would separately negotiate some other arrangement with an individual restaurant or delivery recipient, leaving aside how implausible that type of scenario might be in a practical matter, and I note then at 4.2 and 4.3 there's a reservation to Uber Eats entity to change the, or adjust the, delivery fees as they deem fit and at 4.7, at the bottom of that page under the heading Receipts, it's indicated that it's part of the Uber services, 'Portier Pacific provides you with a system of delivering receipts to users for the delivery services rendered'.

PN118

There's an attempt to maintain the fiction that what's happening here is the driver or courier is providing a service to the user by Uber Eats preparing receipts that make it looks like that's the arrangement that's happening and then in - and the second sentence is indicated 'Upon your completion of delivery services to Uber, Portier Pacific prepares and issues receipts to the users by email' and it's asserted to be on the courier's behalf but all of that's actually done by Portier Pacific, the Uber entity.

PN119

There are some examples of those that appear, those receipts that appear, from page 472 to 476 right at the end of the appeal book. I just note those because they purport to be a receipt and invoice involving various entities and that's - the other name noted is Amita Gupta, ABN not provided, so that's that this is some separate business arrangement with the restaurants and not to be carried through with the receipts. Can I just note with respect to the services agreement at page 231 there's - I'm sorry.

PN120

JUSTICE ROSS: Sorry, what do you mean by the last point, the business arrangement's not carried through?

PN121

MR GIBIAN: Well what is contemplated by the service agreement is that Portier Pacific will prepare the invoice and send it to the restaurants purportedly on behalf of the individual. I just note that there was no ABN provided by Ms Gupta for the purposes of the receipts, indicated some ‑ or she didn't have any part in that. That's all I meant in that respect. She didn't have any part in that occurring.

PN122

JUSTICE ROSS: No, but what's the significance of the ABN not provided?

PN123

MR GIBIAN: It just seemed to me an indication that - - -

PN124

JUSTICE ROSS: That she doesn't have an ABN does she?

PN125

MR GIBIAN: No.

PN126

JUSTICE ROSS: No, well - - -

PN127

MR GIBIAN: Yes. As I say, the issue in relation to the invoice that I wish to identify was the way in which it's described that this would occur. That is, it all - the issuing of the invoices and like occurs without the involvement of the courier. It's done by Uber Eats and it's asserted to be on behalf of the courier in circumstances in which the courier doesn't have any involvement in that in genuine sense.

PN128

VICE PRESIDENT HATCHER: Are there any invoices in evidence?

PN129

MR GIBIAN: Sorry?

PN130

VICE PRESIDENT HATCHER: Are there any invoices in evidence?

PN131

MR GIBIAN: Yes, from page 472 to 476, right at the end of the appeal book there were - I think they were described as a sample only obviously. Some of the first at 472, there's a company called PLQ Pty Ltd, presumably it's a Vietnamese restaurant, and it just notes at the bottom of the invoice that it's asserted to be issued on behalf of Amita Gupta by Portier Pacific. Finally, with respect to the services agreement, at this point at least, at page 231 of the appeal book, I just note the termination provisions at 12.2 permit termination '(b) immediately without notice in the case of material breach' and I'll come back to that.

PN132

The relationship between the parties is purportedly described at clause 13.1. That's where it's indicated that 'Portier Pacific is acting as a limited payment collection agent solely for the purposes of collecting payment for users on your behalf except as otherwise expressly provided herein' and there's an express denial of that the agreement is an employment agreement and does not create an assertion the employment is - the agreement is not an employment agreement and it does not create, it appears, any type of worker relationship and employment, independent contractor or worker relationship including from a labour law, tax law or social security law perspective, a joint venture, partnership or agency arrangement so that what's sought to be asserted is not - and I think the Commissioner did make an error in that respect in the decision, what's asserted is it's not any type of worker relationship, it's a payment agent relationship.

PN133

That is, that all Uber Eats is doing is collecting money on behalf of the courier. What the contractual or the service agreement endeavours to do, with respect, is to portray the arrangements as that in some way there's a business relationship formed between the individual courier and each restaurant presumably from whom deliveries are being made and it does so in a manner - in circumstances which is quite false, namely that the customer and the restaurant have arrangements with Uber not with - that is, they have contractual arrangements with Uber and make the arrangements for the delivery with Uber Eats.

PN134

The driver has no practical means to, and is expressly prohibited from, contacting or making any direct arrangements with the customer or the restaurant. The delivery fee is determined by Uber Eats and any adjustment to it must be negotiated with Uber Eats and the driver is prohibited from receiving any, or seeking any, additional amount and the conduct and qualification requirements for undertaking the work are determined and policed by the Uber Eats entities not by any restaurant or certainly someone in their home who's ordering food.

PN135

Finally in that respect, I note that there is some evidence, or there was some evidence, of the practical way in which the deliveries were effected which is in part B from the services agreement itself but I just note what, and this is within the evidence of the witnesses who was called by Uber Eats, at page 207 of the appeal book at paragraph 25 the witness, a Mr Mulholland, described how what was called a delivery partner receives a delivery request - who receives a delivery request, I should say - can accept or ignore the request, or select - decline to reject the request; and then if the delivery partner (indistinct) accepts the trip request, the partner app will display the restaurant partner's name and address, and then pick up instructions, as well as the kilometre distance and how many minutes away the pickup location is.

PN136

So the courier doesn't know who the restaurant is or where the delivery is to and from until they've accepted the request. So the concept there is some business relationship that has been formed is, with respect, contrary to any practical reality. And I note over the page at paragraph 30 at the top of page 208 that - perhaps at the bottom of page 207, I'm sorry, at paragraph 29, once the delivery partner, as described, arrives at the restaurant partner's location, has collected the order, they start the delivery in the partner app.

PN137

So it's only once they've collected the food order that - and then over the page at page 208, paragraph 30, that when the delivery is started in the partner app, the partner app displays what's called the eater's address, the kilometre distance to travel, time of travel, and - time of arrival, I'm sorry, as well as a map of the suggested delivery route. So it's only once the order is collected from the restaurant that the courier is told where they're delivering it to, and ‑ ‑ ‑

PN138

VICE PRESIDENT HATCHER: Am I right in saying there was a right - delay, I think it was 15 minutes, the driver can cancel on the job, and then they just get no payments. Is that ‑ ‑ ‑

PN139

MR GIBIAN: Yes. I think it was suggested - and there's something said about this in the community guidelines that the couriers were subject to, but it was said that they can cancel at any time, but there is some guidelines in terms of what's an acceptable cancellation rate. But yes, there was specific reference because of some complaints in relation to delays at restaurants.

PN140

I refer to that evidence because it describes how Uber controls the whole operation and the whole delivery arrangement. And the proposition that in some way, as described in the services agreement, this is a business relationship between the courier and each individual restaurant is both not borne out in the agreement by the terms of the agreement itself in terms of the manner in which the fee is determined and the job is allocated, but in a practical sense can't be accepted as a correct characterisation of the whole arrangement.

PN141

VICE PRESIDENT HATCHER: Is there any prescription concerning the vehicle that's provided? Like, can you do it with a bicycle or with a car, or anything that you choose?

PN142

MR GIBIAN: There is a - clause 3.2 on page 226 sets out the transportation method requirements, where the courier is required to:

PN143

Acknowledge and agree that your transportation method will at all times (indistinct) meet the then current Portier Pacific requirements for a vehicle to provide delivery services, and must be authorised by Portier Pacific for this use.

PN144

So there has to be authorisation for specific vehicle that is to be used for the purposes of undertaking the work. And then there are requirements in relation to licensing and registration, et cetera.

PN145

JUSTICE ROSS: Is the requirement for a specific vehicle, or is that the requirement that it be manufactured after 1990?

PN146

MR GIBIAN: I think it was said in Uber's evidence that that's their current requirement in terms of the vehicle. The contractual requirement is that they authorise a particular vehicle. There were also - sorry, it might take me a moment to find it. One of the reasons given as to why you may be - yes, I'm sorry, it's at page - within the community guidelines at page 281. Do you have ‑ ‑ ‑

PN147

JUSTICE ROSS: 281?

PN148

MR GIBIAN: 281. In the middle of the page there's a - under Accurate Personal Information, the second paragraph:

PN149

What leads to you losing access to your account? We will deactivate your account for activities such as providing Uber Eats with inaccurate information; allowing someone else to use your Uber account; and making a delivery using a vehicle not registered with your account.

PN150

So there is an authorisation. Now, what Uber's requirements are from time to time is a matter for it.

PN151

VICE PRESIDENT HATCHER: It talks about bicycles and walkers. Do they have the same contract, or a different one?

PN152

MR GIBIAN: I don't know that there's any evidence about that. We will accept that, but I don't know that there's evidence about that. But that is - the requirement at clause 3.2 of the contract is to authorise the particular vehicle, and that the particular vehicle satisfy whatever Uber Eats' requirements are from time to time. And then it's said - not even 'you may', 'We will deactivate your account if you use any other vehicle.'

PN153

The conclusion - the question that perhaps arises from the attempts that the services agreement makes to portray the arrangement in a particular way is what is being disguised, and what is being disguised is that when one looks at it in any practical way, Uber Eats is conducting a food delivery business, and the couriers are performing work for Uber Eats in its food delivery business.

PN154

That is, when one looks at the position of Ms Gupta, a significant consideration in the assessment of the relationship, whether she's operating some independent food delivery business, or whether she's performing work for Uber in its business. And in our submission the latter is the correct characterisation in any practical sense, both of - even on the face of the services agreement itself, but when one has even the slightest regard to the practical way in which the work is undertaken.

PN155

In that respect there is some debate in the submissions in relation to the significance of that question, that is whether or not the worker is undertaking - has their own business that they are working in, or working in the business of the purported employer. Can I just note a couple of the authorities in that respect.

PN156

Within the bundle your Honours will be familiar with the passages in Hollis v Vabu, and I won't read those, to the effect that the distinction - at paragraphs 39 and 40, that the distinction is rooted fundamentally in the difference between a person who serves his employer in his, the employer's business, and a person who carries on a trade or business of their own. And obviously the bicycle couriers there were - the concept that they were running their own business was described as intuitively unsound and denied by the facts.

PN157

We have also referred, obviously enough, to what was said in Fair Work Ombudsman v Quest South Perth under tab 9 within the bundle, where two members of the Full Court, North and Bromberg JJ, dealt with this question commencing at paragraph 176, commencing on page 50 of the print that's in the bundle. There firstly their Honours refer to the multi-factorial approach, and they're looking at the totality of the relationship, then at 177 said that:

PN158

However, at least since Hollis, it may be accepted that the distinction between an employee and an independent contractor is 'rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'.

PN159

And reference to Hollis v Vabu, and Sweeney v Boylan Nominees, and at paragraph 78 to similar statements made in Stevens v Brodribb in relation to the ultimate question. Their Honours then go on from - and I won't read it, but from paragraph 179 and over to paragraph 182, and in 182 there are a series of factors referred to in dot points, considerations as to what might indicate some type of independent business separate from the business of the employer or purported employer. And then at 183 it was said that:

PN160

In relation to unskilled workers, the prima facie position is clear. As the majority said at 48 in Hollis, it is 'intuitively unsound' to conclude that unskilled workers were 'running their own enterprise' when providing their labour.

PN161

Then at paragraph 184 where:

PN162

re the hallmarks of a business are absent, it will be a short step to the conclusion that the worker is an employee.

PN163

Referring to the judgment of Lander J in ACE Insurance in the Full Court, that:

PN164

If the respondents were not conducting their own business then logically it followed that they must have been working in the appellant's business.

PN165

I acknowledge there has been some controversy in relation to this question. My learned friend is referring their submissions to a recent judgment of O'Callaghan J in the Federal Court in a matter involving the CFMEU, CFMMEU, and Personnel Contracting, which is under tab 6 in the bundle which deals with this issue.

PN166

JUSTICE ROSS: Is that where his Honour characterises the paragraph you've just taken us to in the (indistinct) the earlier case is obiter?

PN167

MR GIBIAN: Yes. And in that judgment his Honour dealt with the question of running a business from paragraph 148 on page 43, and at paragraph 151 noted that the applicants in that matter relied on those observations in Quest South Perth. I don't need to read those. At paragraph 152, as your Honour the President noted, he says there were two important things. His Honour says, 'There are two important things that need to be said,' and at paragraph 153, the first is that they were obiter; and secondly it was asserted that:

PN168

It was inconsistent with the multi-factorial assessment to say that the absence of one factor, or the presence of that matter, should for practical purposes, dictate a result.

PN169

And a reference to the judgment of Jessup J in Tattsbet v Morrow where the conclusion of which - or perhaps in the middle part of which it's said that - in the second sentence:

PN170

To view the matter through a prism of this kind is, however, to deflect attention from the central question, whether the person concerned is an employee or not; or, perhaps, as Mason J put it in Stevens v Brodribb, to 'shift the focus of attention' to a no less problematic question.

PN171

There's then reference to something Buchanan J said in ACE Insurance in the Full Court, that:

PN172

Working in the business of another is not inconsistent with working in a business of one's own.

PN173

JUSTICE ROSS: How are you putting it in terms of the distinction between operating your own business or working in the business of another? Are you saying that's the question, or are you saying that whether or not the evidence supports the view that the person is working in their own business or operating a business is an indicia that you take into account in considering the ultimate question; or are you saying that is the ultimate question?

PN174

MR GIBIAN: I don't say it's the ultimate question, but I embrace what was said in Hollis v Vabu, that is the distinction is rooted fundamentally in that distinction, and a number of other considerations contribute to that, so issues about goodwill or the way in which payments are determined and the like can all contribute to an examination of whether the person is running their own business or not.

PN175

JUSTICE ROSS: Can't you reach the same conclusion: they all contribute to a question of whether or not the person is an employee or has some other legal status? Because you're looking at the same things, aren't you?

PN176

MR GIBIAN: Yes.

PN177

JUSTICE ROSS: You're looking at the same things to answer the question - some of the same things - about whether they're operating their own business, a business on their own account, or working in someone else's business. The answer to that question is by looking at a range of indicia. I'm not sure, is it just a difference in characterisation, or what's the effect of the distinction?

PN178

MR GIBIAN: In my submission it's an important marker which may be contributed to, as your Honour says, by a number of the other indicia which are commonly referred to in identifying employment relationship. But it's an important marker. If the person - if there are indications, or sufficient indications of some independent business being operated, then the effect of, for example, control elements might be a bit different.

PN179

But where that is absent, and on a proper characterisation there's a practical matter of the arrangements that the worker is performing work not in some independent way and on their own account, but in the business of the employer, then as Lander J said, that's a short step to the conclusion. But as I say, I wouldn't necessarily embrace some alternative test, but it's a short step to the conclusion that the person is an employee.

PN180

DEPUTY PRESIDENT COLMAN: Can I just ask, as I understand your submission, your submissions emphasise that Ms Gupta was not conducting her own business.

PN181

MR GIBIAN: Yes.

PN182

DEPUTY PRESIDENT COLMAN: And you say, I think, that in order for a person to fall on the contractor side of the binary divide, as you put it, a person would need to be conducting their own business, not working as a servant in the business, someone else's business. Is that - that's the case?

PN183

MR GIBIAN: That would be an important distinguishable feature.

PN184

DEPUTY PRESIDENT COLMAN: An important distinction. I just did want to ask you, if I could take you back to Vabu and the passage cited in your submission at paragraph 12(b). So just to recap that, the extract is:

PN185

The distinction between an employee and an independent contractor is 'rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'.

PN186

I'm just wondering what you say is the significance of the words 'a trade'. We tend to focus on business, but - and I'm just wondering whether or not that reference to trade might not be an indication that a person could be a contractor and sell their labour, their trade, not through a business in any conventional sense of the word, but outside of that context. And what do we make of all this?

PN187

MR GIBIAN: I think, your Honour, the reference to trade is a reference to a history of cases that have recognised that certain types of workers with professional or trade skills of some specialised type might be conducting their own trade or profession in that sense. If the person is a skilled tradesperson of some type, then there is a history of persons of that nature running a business in the sense of their trade, and operating in that way. That's as I would read it, your Honour.

PN188

And that is relevant in the context of Hollis v Vabu itself and some of the subsequent cases where they've looked at whether there was some specialised skill or the like involved in the work. It might provide that degree of independence, perhaps separate from other indicia of a separate business that were looked at, for example.

PN189

VICE PRESIDENT HATCHER: But the difference in the two approaches seems to crystallise itself in this Personnel Contracting case where the court found on the one hand that the person involved was not an employee, but on the other hand found that they were not operating a business or trade of their own account either. And it's some intermediate category between operating your own business and being an employee.

PN190

MR GIBIAN: We don't think the cases support that view. I was ‑ ‑ ‑

PN191

VICE PRESIDENT HATCHER: So the rubber hits the road in terms of the difference between the two approaches, doesn't it?

PN192

MR GIBIAN: Yes. I was just going to refer briefly to what was said by the Full Court in Ace Insurance, which is under tab - I think in the Full Court because it was referred to in Tattsbet v Morrow, and by inference also in O'Callaghan J's recent decision - also in O'Callaghan J's recent decision. There the major judgment was that of Buchanan J, as your Honours will know. Can I just note what his Honour said firstly at paragraph 93 - there are no page numbers, apparently. I apologise - paragraph 93 where his Honour said:

PN193

It appears to me to have been in Hollis that a real emphasis was authoritatively placed on the notion of working in the business of another, rather than in the business of the individual.

PN194

And references to the relevant passage that your Honour Colman DP has just referred me to; and at paragraph 94 to the way in which that was dealt with in terms of the individual bicycle couriers. And then from paragraph 126 under the heading Conclusions and About Employment, his Honour in paragraph 126 referred to two matters, the first was that, 'The identification (was concerned with) the purpose of attributing vicarious liability,' and in the second-last sentence in paragraph 126, the second issue was his Honour the primary judge:

PN195

Statement that the basal question to be answered was '... the putative employee toiling'.

PN196

And then at 128 his Honour said:

PN197

The second proposition was distilled from Hollis at 40.

PN198

It was then said:

PN199

Working in the business of another is not inconsistent with working in a business of one's own. The High Court in Hollis did not suggest to the contrary. Indeed, the High Court said -

PN200

and there's a quote of paragraph 40 of Hollis:

PN201

The circumstance that the business enterprise of a party said to be an employer is benefited by the activities ... cannot be a sufficient indication that this person is an employee.

PN202

His Honour then said, however, at 129:

PN203

The importance of the subsequent analysis by the trial judge was, however, that it showed that the agents had no business of their own; they were working only in the business of Combined.

PN204

So I think that's the relevant distinction in this, which is perhaps somewhat confused in some of the other judgments; that is it's not necessarily sufficient to say that the person is working in the business of the asserted employer, but it is at the least very significant, and the difference is rooted fundamentally in whether the person has their own business. And with respect to O'Callaghan J, it may be that that's not necessarily drawn out in this judgment.

PN205

In this matter, other than the contractual documents, perhaps, I don't know that it was suggested, and we don't think it could be sensibly suggested that Ms Gupta was operating some independent delivery business. She undertook delivery work for Uber Eats for delivery fees set by Uber, to earn remuneration for doing that work, rather than the pursuit of profit or return on investment. She didn't advertise, have any brand, or seek to attract goodwill, nor could she have done so. The work undertaken did not involve some professional trade or special calling as to characterise that level of independence; and that is an important and potentially decisive factor to be considered.

PN206

As I said, I think already, the Commissioner referred to some matters that might contribute to a finding in relation to whether or not there was some kind of independent business being undertaken by Ms Gupta. He referred to at paragraphs 94 to 97 whether there was a separate place of work or advertising for services; at paragraph 119 to 121, to whether she engaged in skilled work; and at 122 to 123 to whether there was a creation of goodwill in saleable assets.

PN207

He, with respect, did not appear to refer to that, to whether or not there was a separate business in any of the critical parts of his reasoning, particularly the reasoning at paragraphs 143 to 149 where the Commissioner undertook that the - what was described as the overall assessment.

PN208

The third issue, then, that I was going to address, unless there's anything further on the separate business point, was the emphasis placed upon the wages work, or work wages bargain.

PN209

JUSTICE ROSS: The provision of an insured and registered vehicle, that is the provision of the capital by which the work is done, how does that fit in?

PN210

MR GIBIAN: The provision of equipment, to the extent it's relevant to the assessment, might in a particular circumstance indicate there's some degree of investment in the business itself. As with the bicycle couriers in Hollis v Vabu, that consideration is of relatively little weight where what is provided is in this case a motor vehicle, which was not some specialised motor vehicle, but a motor vehicle that was otherwise used and available for usual personal use; and a mobile phone, which was also already most likely possessed and used for personal reasons.

PN211

Where that is the capital that's involved, it does not - particularly in itself - indicate any investment in some business. If a person is buying a special type of vehicle that's only used for that purpose, then it might have some greater significance, depending on the circumstance; but as with the bicycle couriers in Hollis v Vabu where the court said, 'Well, they bought and maintained their own bicycles, but both the expense was not great, and it was capable of being used for other purposes in any event.

PN212

JUSTICE ROSS: The problem with Hollis of course is the earlier Court of Appeal decision in Hollis v Commissioner of Taxation where special leave to appeal was refused, which had the same business with the same working system, except the person involved I think ‑ ‑ ‑

PN213

MR GIBIAN: Had a van.

PN214

JUSTICE ROSS: A van. Was it a van or a car? I can't remember - instead of a bicycle, and that seemed to be the only explicable difference between the two different outcomes.

PN215

MR GIBIAN: Perhaps two things in that respect. The first thing is that the High Court didn't say either that that was the distinguishing feature, or that the decision was wrong, so in that respect I'm not - it's difficult to read the tea leaves in that respect. People have said, of course, that there was a distinction in the sense that there was a motor vehicle involved rather than a bicycle, but the court doesn't say that that was the distinguishing feature or the only distinguishing feature. And not too much can be drawn from the denial of special leave, as such.

PN216

I would have to check, but my recollection is that the vehicle was a vehicle specially for deliveries, rather than just a common motor vehicle that one would use for personal reasons in any event.

PN217

VICE PRESIDENT HATCHER: I mean, a good bicycle I think costs more than a cheap car or van.

PN218

MR GIBIAN: It is possible to buy a bicycle for as much as a car, at least. So that's what I would say about it. That's what I would say about the motor vehicle. It's not suggested that Ms Gupta went and bought a special motor vehicle in order to do deliveries.

PN219

VICE PRESIDENT HATCHER: What was the vehicle? Was this a family car, was it?

PN220

MR GIBIAN: Yes, I daresay. So it wasn't suggested that it was a specific purchase of a specific vehicle in order to undertake this work, or some investment of that type. It was a vehicle that was possessed in any event. And one would assume that's the case for the couriers generally speaking.

PN221

JUSTICE ROSS: Just before you go to the wages bargain point, you say at paragraph 15 that the Commissioner misunderstood the effect of the guidelines, and you make that point by reference to ‑ ‑ ‑

PN222

MR GIBIAN: I mean, I think what we were referring to there was the comment by the Commissioner that the guidelines provided information ‑ ‑ ‑

PN223

JUSTICE ROSS: They were for information, yes.

PN224

MR GIBIAN: ‑ ‑ ‑ rather than standards that could result in termination ‑ ‑ ‑

PN225

JUSTICE ROSS: And that's at, I think, 84 where he makes - but - well, I'm not sure that's a fair characterisation of 84 because you need to read the full paragraph and it does say that - provides information but about general behaviour standards and the circumstances in which they can lose access to the app.

PN226

And of course, later, at 105, the Commissioner deals explicitly with the Community Guidelines and the circumstances that can lead to the app being deactivated.

PN227

MR GIBIAN: Yes.

PN228

JUSTICE ROSS: So I don't think it's fair to say that he thought the Community Guidelines only provided information. It's clear, I think, when you read the decision as a whole, that he understood that it set out certain consequences of certain behaviours.

PN229

MR GIBIAN: Yes.

PN230

I understand what your Honour says about that. We do think that, in addition, that in other respects and particularly - and this is the point I was going to come to now, that the guidelines also say something which I don't think is referred to in any clear way in the decision as to the requirement to accept or not work, in the sense that there are minimum cancellation rates and acceptance rates and the like, that are provided in the guidelines.

PN231

JUSTICE ROSS: So this is about the obligation to attend and perform work that, I think, he starts to deal with at 89 of the decision. Is that the bit that you're‑ ‑ ‑

PN232

MR GIBIAN: Well, it's relevant to the relevant to wages-work bargain (indistinct), yes. Which - and look, what I was going to - in relation to the work-wages point, the Commissioner referred, firstly, and this is at paragraph 12 on page 4 of the Appeal Book, to the earlier decision of Gostencnik DP in Kaseris, in relation to a passenger transport case.

PN233

And the - that extract of the passage, in relation to the work-wages bargain there, where it was said, at paragraph 48, of Kaseris that:

PN234

For there to exist, an employment relationship, certain fundamental elements must be present. A contract of employment is, at it's essence, a works-wages bargain so that the irreducible minimum mutual obligation necessary to create such a contract, is an obligation on the one side, to perform work or services that may be reasonably demanded, and the other side to pay for such work.

PN235

And the Commissioner at paragraph 145, on page 38 and over the page to 39 of the Appeal Book, appeared to place very great and perhaps, decisive weight on this issue. He says there that:

PN236

I also consider that what was described in Kaseris and further discussed in Suliman, as the absence of a work-wages bargain, is significant in the assessment in the nature of the relationship.

PN237

There's then reference to a decision of a judge of the Supreme Court in Forstaff, I think it's just F-o-rstaff, v the Commissioner of State Revenue and a passage of paragraph 91 of that judgment is extracted. Now ‑ ‑ ‑

PN238

JUSTICE ROSS: Why do you say, 'He applies decisive weight'?

PN239

MR GIBIAN: Well, I think I said significant and perhaps decisive.

PN240

JUSTICE ROSS: Well, he also talks about significant factors in 144.

PN241

MR GIBIAN: Yes. Yes. I don't say he only referred to that consideration, is in itself, determinative. He says ‑ ‑ ‑

PN242

JUSTICE ROSS: Are you saying the wages-work bargain issue is irrelevant or?

PN243

MR GIBIAN: Well, what I say, it is - well, the wages-work or the work-wages bargain, is - yes, well, it's interesting that that type of debate doesn't exist or isn't present in Hollis v Vabu or Stevens v Brodribb or it's not ever mentioned as one of the, kind of, considerations. In my ‑ ‑ ‑

PN244

JUSTICE ROSS: It might be seen as part of the control question.

PN245

MR GIBIAN: Yes. Exactly. So it's not, in itself, some separate matter. The work-wages bargain is a commonly understood to be an assumed characteristic of an employment - assumed but not necessary, characteristic of an employment relationship. And that's what comes out of Automatic Fire Sprinklers v Watson, rather than some identifying feature.

PN246

Now, if there's a sort of casualness of engagement, in the sense that the person can work or not work, and I'll need to deal with that, then ‑ ‑ ‑

PN247

JUSTICE ROSS: Get paid or not paid.

PN248

MR GIBIAN: Yes.

PN249

Then that might indicate, for example, a person's running their own business because they're working for lots of different clients or as the case may be, it's not that it's irrelevant, but as a central consideration in itself, the cases don't support the idea that it is, in itself a defining feature.

PN250

JUSTICE ROSS: But you keep using the language of central consideration and decisive and all the Commission has done is said, 'Well, it's significant that' - and - isn't the work-wages bargain how one frames it, really just a collection label to describe some other indicia that you already take into account when you're looking at control, payment methods and the like?

PN251

MR GIBIAN: Well ‑ ‑ ‑

PN252

JUSTICE ROSS: This doesn't really go to it's some sort of commitment to provide work and to be paid for it, is the reciprocal obligation.

PN253

MR GIBIAN: Yes.

PN254

Well, what the Commissioner appears to have adopted, from the earlier decision in Kaseris, and he refers to it again at paragraph 145, is that there is a - that certain fundamental features must be present. That is that the - and that that's the fundamental feature, what's described as the irreducible minimum mutual obligation, must be present.

PN255

We don't think that is the case if the way it is understood is a requirement of a worker to attend work and to perform work at particular times or on - when demanded by the asserted employer.

PN256

We don't think that that is a correct statement of the - but that is a defining and necessary essential, as that passage asserts, feature of an employment relationship.

PN257

JUSTICE ROSS: But is it a requirement that there be any obligation to do any work?

PN258

MR GIBIAN: Well, in the sense that one can have casual employees and not required to attend at particular times, then not necessarily. But one also has to look at it in a practical way, that when - and I want to go to Forstaff because in Forstaff, they said the workers were not required to accept any particular assignment but they were found to be employees. They could accept or reject, without penalty, any particular assignment.

PN259

DEPUTY PRESIDENT COLMAN: Yes, but once a casual employee - I mean leaving to one side, perhaps, that situation where there's a framework, agreement governing the casual relationship, typically what would occur in a casual employment relationship or a particular casual engagement is, the employer says to the employee, 'Will you work next Tuesday for eight hours?' and the employee can say no or yes.

PN260

And if she says, 'Yes', then there's an obligation on the employee to work and there's an obligation on the employer to pay. There's executory consider from each party and there are obligations. But there's nothing of that kind in the present case, is there?

PN261

MR GIBIAN: Well, here there is an overarching contractual relationship in which work is performed.

PN262

DEPUTY PRESIDENT COLMAN: But not an obligation to work, is there?

PN263

MR GIBIAN: Yes. The performance for delivery service, as defined, is work, however one looks at it. And in my submission, whether or not ‑ ‑ ‑

PN264

DEPUTY PRESIDENT COLMAN: So you say the obligation arises once you accept the job?

PN265

MR GIBIAN: In a practical sense, there is an obligation once the employee logs on to the app. And I want to go to what Community Guidelines say about that. I mean, it's said, 'Look, you can decline jobs or cancel jobs', but that's not quite what it says in the Community Guidelines, in the sense that there are acceptance rates and cancellation rates. There's some - and obviously, there is the occasion to perform the particular work and to be paid for it so the acceptance of a particular job, when - or request when the person's logged on to the app.

PN266

And that gives rise to wages-work party in the sense that there's, well, a payment for undertaking that work. Now, there is a - because in part, because of the technology that's used and the method of allocating work by the phone, is Uber's system of allocating work through the phone app, there is a degree of casualness asserted, but we don't think that is inconsistent with there being an employment relationship.

PN267

JUSTICE ROSS: But still, I'm not quite clear on what you're putting. Are you putting that the wage/work bargain proposition is irrelevant? Or are you rather saying that here, properly characterised, there was a wages-work bargain?

PN268

MR GIBIAN: Look, I think perhaps ‑ ‑ ‑

PN269

JUSTICE ROSS: Because you attack the principle.

PN270

MR GIBIAN: Yes.

PN271

JUSTICE ROSS: In the submissions, but from what you've just said, I'm understanding you to be saying that, 'Well, on it's proper characterisation of the facts here, there was, in fact, a wages-work bargain.'

PN272

MR GIBIAN: Well, we say two things. One is, I do submit that ‑ ‑ ‑

PN273

JUSTICE ROSS: I'm sorry, I might say that ‑ ‑ ‑

PN274

MR GIBIAN: I'm sorry, your Honour.

PN275

JUSTICE ROSS: ‑ ‑ ‑ the respondent identifies the same issue in the submissions. They're not sure whether it's one of fact or principle either.

PN276

MR GIBIAN: Yes. Well, it's both, in the sense that firstly, we do say that what the Commissioner appears to have embraced is a concept that there is a certain fundamental feature in the name of a work-wages bargain that needs to be found.

PN277

JUSTICE ROSS: Well, he says that early, but at the end, he talks about it being significant that there wasn't.

PN278

MR GIBIAN: Yes.

PN279

JUSTICE ROSS: Yes.

PN280

MR GIBIAN: And we don't think that, with respect, that that is correct, when one looks at the cases about the obligation to work at particular times or to accept particular assignments.

PN281

Secondly, to the extent it's a relevant consideration, we think that there wasn't proper effect given particularly, to the Community Guidelines in terms of ‑ ‑ ‑

PN282

JUSTICE ROSS: No, no.

PN283

MR GIBIAN: ‑ ‑ ‑ what is said about acceptance rates and cancellations rates and the like. It wasn't just a complete freedom to accept or reject or cancel jobs.

PN284

Can I just, in that respect, I just wanted to note what is - in relation to the work-wages bargain, what was said in relation to - in a couple of the judgments that I refer to, in that respect.

PN285

Under tab 4 in the bundles Odco, which was referred to. The passage that's relied upon from BWIU v Odco at - which is 1991, 29 FCR 104 at 113, 114. The passage that should have been referred to is from 114. But I just note that on page 113 of the report, the heading is, a third of the way down the page, 'The existence of a contract between worker and builder'.

PN286

Now, as your Honours know, Odco involve a triparted labour-hire type arrangement. What the court was actually dealing with in the passage that's referred to is whether or not there was an employment contract between the building company, which was the client of a labour hire agency, and the worker, who was sent to the building site to perform work, by Troubleshooters, the labour hire agency. Not about the characterisation of a particular contract between two parties.

PN287

And your Honours will see that in the passage that, at the bottom of page 113, where it's said - there's reference at the final paragraph on page 113, to acknowledgement that there may be arrangements when a worker's at the site. And then on the fourth line:

PN288

However, it seems to us that likelihood of such arrangements does not, without more, suggest the existence of a contract between the persons expected to make them. The suggestion might have some force if the envisaged arrangements were only made after other contract, defining the rights and liabilities, to the builder and the worker had come to an end.

PN289

However, it is clear from the evidence that they always intended that builders should remain liable to Troubleshooters for all work performed by the worker, whenever it might be done, and that Troubleshooters be liable to pay the worker for all such work, at the rate which had been agreed with him, whether or not it received payment therefore, from the builder.

PN290

As counsel for the applicant's conceded, the builder was not always aware of that rate, as distinct from the total amount per hours he was liable to pay Troubleshooters.

PN291

And it was then said:

PN292

The element of consideration, which is essential to a contract of employment, is the promise by the presumptive employer, to pay for service, as and when the service is rendered.

PN293

So two point in relation to that. Firstly, it's a payment, a requirement to pay when rendered. So it's not talking about the frequency or availability to do particular work. Secondly, what is being dealt with there is that there wasn't, it was found, a contract between the building company and the worker because there was no obligation or no promise to pay, so the ability of the company to pay the worker.

PN294

VICE PRESIDENT HATCHER: Yes.

PN295

This points then, to your question being, who you do it - who are you performing the work for and who has the obligation to pay for it, if we even start analysing what the nature of the contract is.

PN296

MR GIBIAN: Yes.

PN297

And I just note then, the extract, which your Honours will be familiar, from Automatic Fire Sprinklers v Watson, that the contract, in relation to - for the establishment of the relationship of master and servant, is to paraphrase, 'Commonly understood as involving a liability for wages or salary, unless earned by service, even though the failure to serve is a consequence of the master's wrongful act.'

PN298

It's then said, though, that of course, 'Possible for the parties to contract for the payment of a periodical sum, independently of service.' So it is not a defining feature, it's a common understanding of the consequence of the employment relationship, which can be altered by contract, apart from anything else.

PN299

So it's wrong to defeat it as a defining characteristic, in itself, the judgment which is always referred to as giving rise to the principle refers to it as a common understanding, rather than a defining feature which, with respect, the judgments have treated it as.

PN300

Can I note then what was said in Forstaff because it was referred to by the Commissioner and in Kaseris, as well. It's tab 10. And I note again, this was a triparted labour hire arrangement in the building industry. And I note that his honour dealt, and it's - that's all right - dealt with the, what was described as the 'Irreducible minimum mutual obligation', from paragraph 79, by reference to some English cases.

PN301

I just note what was said at paragraph 79, which is that by reference to an English decision, Carmichael, it should be, cited earlier, it was said that:

PN302

The decision in Carmichael suggests that it is necessary for there to be a contract of service, that the contract must impose obligations on the putative employer to provide and upon the imputative employee being to accept work. And that if that if that represents the law in Australia, then it would provide a strong, perhaps irrefutable reason for thinking that relations between Forstaff and its workers was not that of employer and employee.

PN303

And that proposition, perhaps contrary to the understanding one might get from the extracts that have been provide, was rejected by his honour, he said, 'That's not the law'. And his honour then, at paragraphs 90 and 91, not paragraph 91 being the passage that was set out in the decision of the Commissioner, having dealt with various cases, page 90 says:

PN304

It therefore, seems if I may - so with respect to the irreducible minimum mutual obligation necessary to create a contract of service, to which Lord Irvine referred, should be expressed not as an obligation on one side to provide and the other to perform work, but as an obligation on one side to perform work or provide service, on the other side to pay. That is, where there is work performed, the obligation is to pay.

PN305

And that would be consistent with what was said in Odco. His honour then said, at 91:

PN306

If in any event, having regard to Automatic Fire Sprinklers and Odco and Curo and Beyond Productions, I think that for there to be a relationship between employer and employee, it is essential that the putative employer be obliged to pay the putative employee, in accordance with the terms of the contract, or services reasonably demanded under it, and the putative employee obliged to perform such services.

PN307

And I interpolate there that his honour's not referring to an obligation to perform services, whenever required, because that's precisely what he's disavowed, at paragraph 90, and from paragraph 78. It's really an obligation to perform such services to be entitled to pay, that's what his honour's referring to.

PN308

And his honour finds that the workers are employees, despite acknowledging that, for example, at paragraph 113, that the workers had some degree of control over their work, in that they were able, without penalty, to accept or reject assignments. And that appears at paragraph - noted at paragraph 113 and indeed, elsewhere in the judgment.

PN309

So the capacity, without penalty to accept or reject assignments, is not an impediment to a finding that there is not these requirement. So one has to read the judgment, with respect, closely, in order to understand what his honour is saying.

PN310

VICE PRESIDENT HATCHER: Well, on that test, if you look at paragraph 147 of the judgment, in the second sentence, the Commissioner found that even if the work was done, Uber had no obligation to pay for it.

PN311

MR GIBIAN: Yes.

PN312

There's two things we say about that. Firstly, that doesn't seem to be a practical application of what occurred. That is, what the arrangements are is that there is a contract between the restaurant and Uber Eats, that requires it to pay an amount to Uber and a requirement on Uber to then remit the appropriate part of that amount to the driver.

PN313

So we don't think it's ‑ ‑ ‑

PN314

JUSTICE ROSS: But Uber's not undertaking to pay the amount in the absence of the restaurant paying.

PN315

MR GIBIAN: Well, there's two things to that. Firstly, this is part of the - what we described as a fictional construct, just how this arrangement is operating, that it, is it tempted to be perpetrated by the services agreement. We don't think it's - the factual way in which it would work, even as envisaged by the agreement, is that the restaurant pays and Uber pays the worker.

PN316

If, on a proper construction of the services agreement, Uber is endeavouring to give itself an out, to avoid paying the courier, if it's short changed, in some way, we don't think that that is a distinguishing - an important consideration because really, what it does is do no more than to demonstrate that this is a one-sided contract which is imposed, if it is unbeneficial to the worker, or on some view of it, exploitative in some way, we don't think that that feature, that Uber's trying not to pay, would, in certain circumstances, would merit the characterisation of the relationship as one other than employment.

PN317

Now, if one had other features of an independent business, other features of some relationship actually practically being formed between the courier and the restaurant, then it might be different. One could say, 'Okay, there is actually some genuine relationship between the courier and the restaurant'.

PN318

DEPUTY PRESIDENT COLMAN: Isn't there a genuine relationship? The driver physically goes to the restaurant, picks up the food and takes it to the person who's ordered it. It's nothing ‑ ‑ ‑

PN319

MR GIBIAN: Yes.

PN320

They only do so because the restaurant has requested that Uber facilitate a delivery, that Uber Eats facilitate the delivery. The courier does not know of the restaurant until they accept a request, they don't even know where it is or what it is. They practically, do not have the capacity to make any kind of independent arrangement and are prohibited from doing so.

PN321

And the delivery fee, the amount that the couriers are paid, is determined by Uber Eats, not by the restaurant. So their interaction, with the restaurant, is not in any way indicative of some business relationship or some contractual agreement. They simply perform the work that the restaurant wants Uber to do, that is to arrange delivery, by attending the restaurant and receiving the order.

PN322

If there are requirements for the order, they are provided by the restaurant to Uber, if they require the order to be delivered in a particular time or in a particular manner, then that's all done in the arrangement with Uber. So there is some interaction, but only in the sense of attending to collect the order, not in a manner which indicates a business relationship.

PN323

JUSTICE ROSS: So the delivery address, any delivery details, that's all provided through the app, not through the direct contact with the restaurant?

PN324

MR GIBIAN: Yes.

PN325

And it's only told, so the request, as I understand the way it works, the request - Uber - a request is made by a restaurant, that they want - well, actually, the request really starts with the person, presumably, in their home commonly, at least, who wishes to order food. They place an order through the app, to the restaurant. If the restaurant accepts that order, I think the restaurant can, I think subject also to cancellation requirements and the like, or decline requirements, but they can accept or reject.

PN326

But if the restaurant accepts the order, well, Uber facilitates the delivery of that order. The courier only - they then, presumably, see which couriers are in the area and might be able to perform the service or undertake the work, and send a request which is available for 15 to 30 seconds, I think, on the app, to a particular courier. If the courier accepts it, they are only then provided with the restaurant's address.

PN327

DEPUTY PRESIDENT COLMAN: But is it so different from a job's noticeboard? I mean, here is a noticeboard where there is indicated, restaurants, that would like people to deliver their food. Isn't that what it is, on one hand?

PN328

MR GIBIAN: Well, a jobs noticeboard is, with respect, quite different, in the sense that - or say a head-hunting agency or something of that nature. Because what is envisaged there is that the person who sees the jobs noticeboard will then make direct contact with the business that needs the job done, be - well, commonly be interviewed or at least, some assessment be made as to whether that is an appropriate - that person is the appropriate person to do that job and some direct arrangement made with that company.

PN329

None of that's present here. What is being done is, the order is placed by a consumer, or an eater, through the app, with a restaurant - well, through the app that they want food from a particular restaurant, and Uber then, under the contractual arrangements it has with the restaurants, provides the delivery, the food delivery service, by sending along a person, a courier who's contracted to them.

PN330

There's no relationship able to be or, in fact, between the courier and the restaurant, in the way that it would be if a person put up on a university noticeboard, 'We need someone to work Thursdays and Fridays at this pizza restaurant, making deliveries.' I think that's the way food delivery used to work, but a few things have changed (indistinct).

PN331

JUSTICE ROSS: You mentioned earlier that there was a prohibition on the delivery driver engaging with the eater, other than delivery of the food.

PN332

MR GIBIAN: Yes.

PN333

JUSTICE ROSS: Is there a similar prohibition in relation to their engagement with the restaurant?

PN334

MR GIBIAN: Yes. Well, that's precisely what is in clause 2.1 of the ‑ ‑ ‑

PN335

JUSTICE ROSS: Whereabouts will we find that in the Appeal Book?

PN336

MR GIBIAN: At page 224 of the Appeal Book.

PN337

Again, it's a very long paragraph for drafting, but in the middle of that paragraph, about 10 lines from the bottom, in clause 2.1, it's indicated:

PN338

You shall not contact any user or delivery recipients or use any of the user's personal information for any reason other than for the purpose of fulfilling the delivery services.

PN339

And using ‑ ‑ ‑

PN340

JUSTICE ROSS: No, but that's the recipient, presumably, that's the eater.

PN341

MR GIBIAN: I think the user is the restaurant, actually.

PN342

JUSTICE ROSS: All right.

PN343

MR GIBIAN: That's my understanding of it.

PN344

JUSTICE ROSS: (Indistinct).

PN345

MR GIBIAN: Yes. The definition at 1.17.

PN346

There is there, also in the Community Service Guidelines, I think that's referable to the consumers, but at page 276 of the Appeal Book, one of the reasons you could lose access to Uber Eats is:

PN347

Unwanted contact with consumers after delivery is over.

PN348

JUSTICE ROSS: If you - I just want to focus on what degree of regulation is there, whether it's in the guidelines or the service agreement, about the contact between the driver and the restaurant, their engagement, what covers?

PN349

MR GIBIAN: Well, in the service agreement, as I say, clause 2.1 prohibits contact with the user, which is the restaurant. In addition ‑ ‑ ‑

PN350

JUSTICE ROSS: Just bear with me for a moment.

PN351

MR GIBIAN: I'm sorry. Of course.

PN352

JUSTICE ROSS: And where's that? That's in 2.1, whereabouts?

PN353

MR GIBIAN: It's about 10 lines from the bottom. Two, four, six, eight, nine.

PN354

JUSTICE ROSS: All right.

PN355

MR GIBIAN: Commencing in the middle part of the paragraph - the middle part of the page.

PN356

JUSTICE ROSS: All right.

PN357

You shall not contact any users or delivery recipients or use, for any of -

PN358

- well, okay.

PN359

MR GIBIAN: In addition to that ‑ ‑ ‑

PN360

JUSTICE ROSS: Yes.

PN361

MR GIBIAN: ‑ ‑ ‑ there is, in relation to the fee, at 4.1, as I've indicated to you already, in about the sixth line.

PN362

JUSTICE ROSS: Yes.

PN363

MR GIBIAN: (Reads):

PN364

The courier is required to acknowledge the delivery fee, which is determined by Uber Eats, is the only payment you will receive in consideration for your delivery services to a user and then the delivery fee, translated to any gratuity. Any lower fee which is able to be negotiated must be negotiated with Portier, not with the restaurant.

PN365

JUSTICE ROSS: What does that mean? If the eater provides a tip you're not allowed to accept it?

PN366

MR GIBIAN: I think they're allowed to accept a tip at the point - not from the restaurant but from the point of delivery to the consumer.

PN367

JUSTICE ROSS: I see.

PN368

MR GIBIAN: There's also a - - -

PN369

JUSTICE ROSS: All right. Okay. So to the user.

PN370

MR GIBIAN: Yes. At page 281, within the delivery guidelines, under the heading Unacceptable Activities, it's said that:

PN371

We will take action against a delivery partner for activities such as harm to the brand - - -

PN372

Excuse me.

PN373

JUSTICE ROSS: Time's up, Mr Gibian.

PN374

MR GIBIAN: Quoting:

PN375

Unauthorised use of trademark or intellectual property or soliciting payment of fares outside the (indistinct).

PN376

So there's - in terms of any independent relationship with the restaurant, not only is there not any practical opportunity to have such a relationship, the restaurant is contractually obliged to pay Uber and the driver is, (indistinct), is unable to negotiate any different arrangement than Uber.

PN377

JUSTICE ROSS: Is a contract in existence between the restaurant and Uber?

PN378

MR GIBIAN: Yes, there is. There is what is asserted to be a sample - a standard form, I should say, it's at page 256, it's at 251 and then there's another document - actually page 265 there's an addendum at page 263 (indistinct). On page 263 there's a heading, Payment, at clause 3, Payment, and then (c) is Delivery Services, and there's an obligation to you, as the restaurant, will pay the pre delivery fee to the delivery partner (indistinct) order of meals, based on a specified fee. And there's a - - -

PN379

JUSTICE ROSS: Pre delivery partners?

PN380

MR GIBIAN: The drivers, the couriers.

PN381

JUSTICE ROSS: That suggests that the restaurant pays the driver?

PN382

MR GIBIAN: Yes, which is just - as I say, this is part of the kind of fiction that all Uber is doing is - - -

PN383

JUSTICE ROSS: So it's the (indistinct) authorisation to Portier to collect the fee?

PN384

MR GIBIAN: Yes. And, as I say, all of this is part of the what is, in a practical sense, the fiction about how it's operating, in the sense that no order for food is being made and no delivery work is being undertaken, but for Uber Eats' business and the Uber Eats app and the order being placed by the Uber Eats app.

PN385

One can't avoid the consequence of that by a contractual document saying, 'Actually you're paying the driver'. They're actually paying Uber and Uber is actually paying the driver. Uber is preparing an invoice, which purports to be from the driver, but the driver has - - -

PN386

JUSTICE ROSS: Who does he eater pay?

PN387

MR GIBIAN: The eater pays Uber.

PN388

JUSTICE ROSS: So that's where you get the remittance part of the payment?

PN389

MR GIBIAN: Yes. So there's a delivery fee, which is what the eater, I think pays.

PN390

JUSTICE ROSS: Yes. But it looks as if the eater actually pays the amount for the meal, plus the delivery fee, to Uber and then Uber remits that amount to the restaurant. Is that the way it works?

PN391

MR GIBIAN: Well, that's what the documents say, yes. In a practical sense I think you put your credit card into the Uber app and it's debited from your bank account.

PN392

VICE PRESIDENT HATCHER: But it goes through Uber, it doesn't go straight to the restaurant.

PN393

MR GIBIAN: Yes. No, it doesn't go straight to the restaurant.

PN394

JUSTICE ROSS: And then Uber provides the payment for the meal to the restaurant and takes the - - -

PN395

MR GIBIAN: Less a service fee, I think.

PN396

JUSTICE ROSS: Yes.

PN397

MR GIBIAN: I'm not sure - that's obviously what's contemplated, yes. But it all goes through Uber, it's not like there is some payment direct from the eater to the courier or direct from the eater to the restaurant or from the restaurant to the courier.

PN398

VICE PRESIDENT HATCHER: The restaurant's obligation to pay for the delivery service is an obligation that arises pursuant to its contract with Uber?

PN399

MR GIBIAN: Yes, exactly. And one can't alter the truth of that statement by saying, 'You're paying the delivery partner' when there is no contract of any nature between the restaurant and the delivery partner, courier. The courier could not sue the restaurant.

PN400

I did, just briefly, wish to - just on the wages work point, I just - we refer to it in the submissions, but I just note, at tab 3 of the bundle there's a reference to a matter involving (indistinct) and Sons v The Chief Commissioner of State Revenue, a decision of the New South Wales Court of Appeal, a judgment of the New South Wales Court of Appeal. I just note what was said in that judgment, at paragraph 87, in relation to what's called mutuality of obligation.

PN401

Sorry, it's Ipp J, and the other members of the court agreed, at paragraph 87 it was said that the respondent relied - sorry, the appellant it would have been, but:

PN402

Mr Sullivan relied heavily on the fact that the hours of work were entirely within the workers' discretion.

PN403

At paragraph 88 it was said that:

PN404

Mutuality of obligation provided work for a period and to work for that period is a usual ingredient of the employer/employee relationship.

PN405

Reference to a Victorian Court of Appeal decision. And then, at 89:

PN406

On the other hand, mutuality obligation was held not to be conclusive.

PN407

Then at paragraph 90:

PN408

Like virtually all factors relevant to the existence of employment relations, the absence of mutuality of obligation cannot be looked at in isolation and has to be seen in context and the context will colour inferences to be drawn from the fact that the worker was entitled to work whenever he or she wishes.

PN409

Another reference to the judgment in the Roy Morgan Research matter, at paragraph 92, including in the extract, and I don't need to read it, but the fact that there was a discretion as to whether to accept a job and when it was performed, at least to some degree, was not an impediment to a finding of employment relationship. Relevant to what your Honour, the President, asked me a little earlier, it was seen as relevant to control in that instance.

PN410

Than, at paragraph 93:

PN411

In the present case, I'm not persuaded of the fact that in theory that seasonal workers should work whenever they wished to conclude that they were engaged as independent contractors and otherwise the degree of control was sufficient.

PN412

Then, briefly, in On-call Interpreters, under tab 14, in the bundle dealing with, again, interpreters which - or interpreters, I'm sorry, Roy Morgan was market research obviously. At paragraphs 267 and 268, on page 76 it was said that:

PN413

The principal base upon which there was an asserted lack of control was On-call's inability to acquire panel interpreters to work, either by taking assignments, extending assignments or cancelling assignments.

PN414

The contrast on these matters is On-call's capacity to direct full-time interpreters to carry out work was central to Mr Lucy's view that Online lacked control. That, however is a matter of little significance can be attached in this case.

PN415

It then said:

PN416

Whilst an ongoing employee has an obligation to work during the hours for which the employee has been engaged, a causal employee, in particular an ad hoc casual, has no such obligation. The lack of an obligation to work is a feature of an independent contractor, it is also a feature of casual employment.

PN417

Then at paragraph 168 it was said that:

PN418

A requirement on a person to commence work at a particular time, a prohibition on the refusal of work is a manifestation of the existence of control. The absence of these requirements, especially where work is sought by the (indistinct) employer, on a regular and ad hoc basis is not demonstrative of the lack of control and did not detract from the conclusion that had otherwise been drawn, as to the nature of the relationship.

PN419

In that respect, could I note, in the community guidelines, particularly at page 278 and 279 of the appeal book, because there were two aspects that were relied upon here, as I'm apprehended by (indistinct) and that was it was said that couriers aren't required to log on at a particular time in order to work. It was then said they could cancel jobs or refuse jobs, particular deliveries, when they wished.

PN420

Perhaps dealing with it in the other order, firstly, at 279, under the heading Acceptance Rates, it was said that:

PN421

Consistently accepting delivery requests helps maximise earnings for delivery partners and keeps the system running smoothly. We know that sometimes things come up that prevent you from accepting every request, or you may want to take a break. But not accepting requests while you're online in the app causes delays and makes the app less reliable.

PN422

It then said:

PN423

While declining deliveries does not automatically lead to permanent deactivation of your account. If you don't want to accept deliveries you can just go off line.

PN424

So it's not that there is no requirement to accept deliveries, that was clearly what this system was designed to require and - - -

PN425

JUSTICE ROSS: Is there a requirement to go online?

PN426

MR GIBIAN: There's not a requirement to go online at particular times, no.

PN427

DEPUTY PRESIDENT COLMAN: The requirement, even if you do go on, it's just a consequence, it's not a requirement.

PN428

MR GIBIAN: To say there's no requirement if what is being held out is that you may permanently be deactivated if you don't accept requests in a manner that is - - -

PN429

DEPUTY PRESIDENT COLMAN: Does it say, 'Permanently deactivated'?

PN430

MR GIBIAN: Well, it says, 'You won't automatically be permanently deactivated', so - - -

PN431

JUSTICE ROSS: But the consequence is spelt out in the last paragraph there.

PN432

MR GIBIAN: Well, there's two things - - -

PN433

JUSTICE ROSS: You're logged on - - -

PN434

MR GIBIAN: I'm sorry, your Honour.

PN435

JUSTICE ROSS: - - - and - - -

PN436

MR GIBIAN: Well, there are two things that are said. One is, if there are - if you consistently decline requests, and I think it was said that if you didn't accept three in a row then you would be thrown off the app, but you could log back on again.

PN437

JUSTICE ROSS: When you say, if you could - where was that?

PN438

MR GIBIAN: I think it was in the evidence of Mr Mulholland, I'll find the reference.

PN439

DEPUTY PRESIDENT COLMAN: Are you thrown off, or are you just logged out?

PN440

MR GIBIAN: You're logged out, but you can log back in. But what is also said, on page 279, is, 'While it won't automatically lead to you permanently being deactivated, you may well permanently be deactivated if you decline too many jobs'. That's what's said.

PN441

It's also said that even if you accept a job - sorry, I withdraw that. One also has to think practically about how it operates. The say the system operates is that the request appears through the app when you are logged on and you have 15 to 30 seconds to accept or decline the request or it passes. So there is that, and you don't know anything about the request. It's then - so there's that pressure if you want to earn money by doing this work, to accept it in that period of time.

PN442

I'm sorry, paragraph 51 on page 210 of the appeal book is reference to the three consecutive trip requests.

PN443

It's also said, 'Well, you can just cancel a request even after you've accepted it'.

PN444

JUSTICE ROSS: This is at 278?

PN445

MR GIBIAN: Yes. So at 278 there's a reference to cancellation rates and it's said that:

PN446

A cancellation occurs when you accept a delivery request and then cancel the trip. When you cancel it means the delivery affects the experience of both restaurants and consumers and creates a poor customer experience.

PN447

We understand that you may, at times, when something comes up and you have to cancel, but minimising cancellation is crucial.

PN448

There's then a reference to how your cancellation rate is cancelled - is calculated, I should say, and, at the bottom of page 278, that:

PN449

If your cancellation rate is much higher than the average in your city we will alert you, after which you'll be logged out of the app. If your cancellation rate continues to exceed the maximum limit you may lose access to your account.

PN450

I may just remind the Bench that within the services agreement, at 2.3 on page 225 of the appeal book, it says that:

PN451

You retain the option, by the provider app, to cancel - to attempt to cancel -

PN452

I should say:

PN453

or to decline or ignore a user's request for delivery services via Uber Services, or to cancel an accepted request for delivery services via the provider app, subject to Uber's then current policies, including community guidelines.

PN454

That's in about eight to 10 lines down in clause 2.3 on page 225.

PN455

So it's not as if there was no obligation, that is, a complete freedom to accept or reject the deliveries. I note that that requirement or the issue of cancellations - sorry, of accepting requests is also referred to in the information that was provided to or available for Ms Gupta, particularly at page 171 of the employee book, under what happens when you decline a request. Yes, and at 193, where there's reference to what happens if you cancel a delivery. And at 194, a reference to deactivation of you have a high delivery rate - a high cancellation rate, I should say, that the average figures.

PN456

So it's not as if there was no obligation to perform work. I think I've dealt with the obligation to pay, in answer to your Honour Hatcher VP's question. I'm sorry, I'm at point - if I could just go back to the services agreement, at clause 4.1 on page 226 and 227? At the top of page 227 it indicates that:

PN457

Portier Pacific agrees to a (indistinct) to be remitted at least weekly, the delivery fee less the applicable service feel.

PN458

It's not expressly, at least, said that that is contingent upon receipt of it. It might be said it's implicit in the concept of remittal, but it's not expressly said, 'Well, if we don't get the fee from the restaurant then we won't pay you'.

PN459

VICE PRESIDENT HATCHER: I thought the Commissioner was said, at 147, that if there was a default Uber Eats has no obligation to pay.

PN460

MR GIBIAN: Yes. Sorry, your Honour, I'll refer to paragraph - - -

PN461

VICE PRESIDENT HATCHER: If you find clause 7, that is the sentence.

PN462

MR GIBIAN: When one looks at the footnote, footnote 62, what the Commissioner seems to be referring to there is the cancellation. So default, I think, as the Commissioner was referring to, was a cancellation rather than just a not paying, as it were.

PN463

VICE PRESIDENT HATCHER: I see.

PN464

MR GIBIAN: That's dealt with separately, at 4.6, where there is - on page 227 of the - - -

PN465

JUSTICE ROSS: But the last sentence (indistinct) though, doesn't it?

PN466

MR GIBIAN: I'm sorry?

PN467

JUSTICE ROSS: In the footnote?

PN468

MR GIBIAN: Yes. And that's the issue that I'm saying is not entirely clear, from the services agreement. As I say, it doesn't say that as such, it says - unless one says that it is implicit in the concept of (indistinct). But it doesn't say, 'We have an obligation to you if we're not paid by the - - -

PN469

VICE PRESIDENT HATCHER: But isn't the obligation for Uber to pay once the delivery is done, critical in the sense of the four staff analysis that you took us to? The four staff analysis on work/wages bargain, which you characterise as being, 'Once performed the work, there's an obligation to pay'.

PN470

MR GIBIAN: Yes.

PN471

VICE PRESIDENT HATCHER: Doesn't that conclusion in the footnote become critical in that context?

PN472

MR GIBIAN: I think I'd say two things about that. The first is that here - whether one has it on - in one contract or not, what we have here is an arrangement that's put in place by Uber Eats whereby the restaurant is required to pay for the deliver, under a contract with Uber Eats, and Uber Eats is required to pay the courier, under the contract that it has with the individual driver, individual courier, and that is sufficient for there to be a wages work bargain in that sense, in the sense that if the delivery work is done, then there is an obligation to pay.

PN473

Now, if one was to interpret, and, as I say, I don't think this is clear, but if one is to interpret that it's a services agreement as Uber Eats saying, 'Well, if for some reason we don't get the money from the restaurant, then we're not going to pay you an you will bear that loss'. In my submission, that doesn't alter the fundamental nature of the relationship. It's merely an unbeneficial relationship. That's why, in employment circumstances, we have provisions, and have for many years, that prohibit deductions and the like from wages.

PN474

So the fact that there is an arrangement which is unbeneficial to the worker, in that unusual scenario, doesn't alter the fundamental nature of the relationship as to what's expected to happen is that the work will be performed and there will be an obligation to pay.

PN475

VICE PRESIDENT HATCHER: So I suppose, technically, if there's non payment by the restaurant that's a breach of its agreement with Uber. Uber would then, presumably, seek to enforce it's own contract with the restaurant, would obtain the money and then the remittance obligation, in its contract with the driver, would kick in and the driver would end up being paid that way.

PN476

MR GIBIAN: Yes.

PN477

VICE PRESIDENT HATCHER: But it is dependent upon Uber seeking enforcements under it's own contract with the restaurant.

PN478

MR GIBIAN: As I say, I'm not sure that's fundamentally very clear, from the services agreement, but it's a possible - but whether that is the case or not, that's clearly not the way in which Uber intended to operate and it would be the atypical circumstance. If there's an attempt to make that atypical circumstance beneficial for the worker, that doesn't the fundamental nature of the relationship, in my submission.

PN479

JUSTICE ROSS: There's no evidence, in this case, that payments were not made for deliveries.

PN480

MR GIBIAN: No. And I mean I don't know how much the evidence went to this, but I think to participate you have to put your credit card in and it be available to be debited anyway, I think both the restaurants and the users. So I think, as a practical matter, it's difficult to see that that's a significant issue. There's no evidence in this case.

PN481

VICE PRESIDENT HATCHER: Sorry, does the eater pay over the app before they receive the meals?

PN482

MR GIBIAN: That's my understanding.

PN483

VICE PRESIDENT HATCHER: So that means there's always money - perhaps this is the wrong word, but money in trust being held by Uber, from which it can - - -

PN484

MR GIBIAN: In a non-technical sense. Perhaps in a technical sense, yes.

PN485

VICE PRESIDENT HATCHER: - - - it can deduct the delivery fee. So the issue of default should never arise, as long as the eater's paid for the mean in advance?

PN486

MR GIBIAN: Indeed.

PN487

VICE PRESIDENT HATCHER: All right. You touched on cancellations before. On page 193, that panel on the right-hand side, the last paragraph starts talking about the consequences of excessive cancellations that is cut off. Do we know what - is that on the next page?

PN488

MR GIBIAN: Yes, it goes on to the next page, as I understand it. And it reflects what's in the - - -

PN489

VICE PRESIDENT HATCHER: It's on the left-hand side, I see.

PN490

MR GIBIAN: It's on the left-hand side. It indicates that how that cancellation rate is calculated and then, in the second or third paragraph:

PN491

If your cancellation rate gets much higher than the average for your city you will receive a notification. If it continues to be higher you may be deactivated.

PN492

Cancellation charges are dealt with at 227, which - at page 227 at clause 4.6, which indicates that Portier may charge a user cancellation fee on your behalf. Certainly on (indistinct) behalf, if there's a cancellation.

PN493

But, as I say, if the arrangement is that the work - the courier might do work for which they are remunerated, it is a feature of the - perhaps other separate - in the absence of other indicators of some separate business, it's just an indication of whether it's a beneficial or not arrangement.

PN494

I do just want to briefly refer to a couple of aspects of the documentation that address matters of control. In relation to the principles, I don't wish to dwell on one or other of them to note that control, as your Honours knows, control remains a consideration, but not determinative and that what is necessary is not the actual exercise of control but the capacity to exercise such control to the extent there is scope for it.

PN495

That is relevant in the application of the traditional test, in the present circumstances for the reason that the technology, the mobile phone apps, the tracking, the manner in which those systems are able to operate, creates, in a sense, the capacity for the worker to work without reporting to a particular depot or be in contact, consistently, by a person to despatch orders, or the like, from the employer.

PN496

But the cases, over a long period of time, obviously indicate that what is important is the capacity to exercise control, so far as there is scope for it, given the practicality of the commitment of operation of the business.

PN497

In that respect, in relation to control, I noted, in passing, the requirements that are imposed by the services agreement, at page 226 of the court book, in clauses 3.1 to 3.3, particularly the requirement in the middle part of clause 3.1:

PN498

To provide delivery services in a professional manner, with due skill, care and diligence and maintain high standards of professional service and courtesy.

PN499

Subjecting to background and driving checks, and the like. Now, this is all relevant to control. It's also relevant and makes clear that this is Uber's business. It wants people to behave appropriately when delivering, pursuant to its business.

PN500

3.2 we've dealt with, in relation to the delivery methods. There's maintenance obligations and the like.

PN501

3.3 deals with documentation requirements and the capacity of Uber Eats to review and examine such documents. Then, as I noted in the final part, failure to meet any of those requirements is a material breach of the services agreement and opening the way, as one might expect, in clause 12.2, to immediate termination for a material breach.

PN502

The second point I wish to make, in relation to the control issue, is that something is made in relation to the assertion that the courier is able to choose the route that they take to make the delivery and is not subject to control in that respect. Can I say three things about that?

PN503

The first is that the worker is, or the courier is denied the opportunity to plan their work in any sensible way, by the function and the way in which the orders at despatched. That is, that the request is sent without information as to where the restaurant is and where the delivery is to. The courier, if they accept the request, are only then, at that stage, told where the restaurant is. They're not, at that stage, told where the delivery is to, they're only told where the restaurant is, and they have to collect the order before they are given the - then they note that they've collected the order and they are given the address for the delivery.

PN504

VICE PRESIDENT HATCHER: So what do you know before you accept, just the amount of money you're going to get?

PN505

MR GIBIAN: I'm not sure that you know anything. I'm not sure the evidence explains that you know anything, other than the pay requests for a delivery is being notified to you.

PN506

DEPUTY PRESIDENT COLMAN: You probably know it's in your general vicinity, don't you? Well, you know what city it's in, you must know what side of town it's on. You're not going to drive an hour out of your way to deliver a meal.

PN507

MR GIBIAN: One assumes that - Uber decides who it gives the job to and it is up to it how it allocates the work. Maybe it has algorithms and the like that do this, I don't know.

PN508

VICE PRESIDENT HATCHER: Well, that's what I thought. There's no human behind this, it's just a computer. But it knows your location, once you - - -

PN509

MR GIBIAN: I don't think the evidence goes to that, but that may be right.

PN510

VICE PRESIDENT HATCHER: Once you've logged on it knows where you are.

PN511

MR GIBIAN: Yes. It knows your location, because you've logged on from your phone and it's tracking where you are. So one assumes that it endeavours to achieve efficient deliveries by not sending a courier from Surry Hills to Parramatta, if there are people who are in Parramatta who are available to work, but that's entirely up to Uber.

PN512

The point I was making is that the courier is denied any practical control. They can't say, 'Well, I've got a delivery to do in Surry Hills and then one in Bondi and then one in Maroubra so I'll coordinate the way in which I do that work in a manner which is most efficient for me, because they don't know. All of that is controlled by Uber. When they go in they don't even find out where they're allocated to go. Uber knows that, because it's got the order, the restaurant and the delivery location, but it doesn't tell the courier until they accept the request and the delivery address until they pick up the order.

PN513

Now, presumably, that is because if the pick up is in Bondi and the delivery is in Parramatta that - I don't know whether that's permissible, but if it's inconvenient in some way then there's some prospect the courier will turn it down and Uber wishes to maintain control in that way and deny the courier to the capacity to organise their work in the way that they might - be efficient for them.

PN514

The second point I wish to make about that is that Uber calculates the distance - sorry, the delivery fee that will be paid to the courier by reference to the route which it determines as the most direct route.

PN515

Mr Mulholland did provide some evidence in that respect, at paragraph 54, on page 210, of the appeal book, where he said that the paid for each - the delivery partners were paid, it was said, by the restaurant. The second sentence:

PN516

The delivery payment does not take account of the actual time spent because it susceptible to fraud. For the same reason he distance component is calculated by using the most direct route rather than the actual distance travelled by the delivery partner.

PN517

That is, essentially, Uber Eats doesn't trust its couriers to determine their own work, it determines the fee by reference to the - what it determines to be the most direct route.

PN518

I think it was put, in cross-examination, I think, that the courier could decide to go a different route, and I think the answer was, 'Well, why would you do that, because you're not going to be paid for some other route'.

PN519

The third matter I wish to draw attention to is, firstly, at clause 2.1 in the service agreement there is reference to a deadline being imposed for deliveries. And at page 279 of the appeal book, within the community guidelines, under the heading Delivery Delays it said that:

PN520

Our restaurant partners and consumers choose Uber Eats for its high quality, reliability and speed. As a result, delivery partners who are consistently slow to complete trips with a significant number of deliveries materially deviated from the ETA for arriving at the premises for pick up or arriving at the delivery location for a drop off may lose their access to accounts.

PN521

And:

PN522

If you start to (indistinct) give you an opportunity to improve.

PN523

So, as one would expect, Uber Eats is not agnostic as to whether the work is being done efficiently or content for couriers to choose whichever route they wish, no matter how long it takes.

PN524

I also note, in that respect, that the community guidelines have various - particularly at page 276 and 277 of the appeal book, have various conduct type requirements that are imposed, in relation to language and appearance and physical contact and the like. Compliance with the requests.

PN525

And at page 277 the community guidelines say what leads to you losing access to your account. And it's said:

PN526

If we are made aware of behaviour in violation of these community guidelines we will contact you so we can look into them and depending on the nature of the concern we may put a hold on your account during our inquiry. If the issues raised are serious or a repeat offence, or you refuse to cooperate you may lose access to Uber Eats.

PN527

Then it's said:

PN528

Any behaviour involving violence, sexual misconduct, harassment, discrimination or illegal activity while using Uber Eats can result in immediate loss of your account.

PN529

Further reference to serious complaints or the like. So there's clearly norms of conduct which are imposed and enforced by Uber Eats, including by a process which is contemplated that is one that is familiar to employment contexts of notification of concern, perhaps suspension if it's from the whole, if it's seen as appropriate. Investigation and inquiry, perhaps also in communication with the courier, and the determination, including, in effect, removing access to - termination and removing access to the platform.

PN530

All of those indicate - all of those features indicate that Uber Eats exercises very considerable control over the performance of work. The Commissioner, in that respect, and this appears at paragraphs 87 and 88, at paragraph 88 there was acceptance there was some level of soft control, in terms of the ratings arrangements. That's true, there's, again, a - the couriers may be terminated or their access to the account deactivated, or the service deactivated if their ratings fall below 85 per cent, I think.

PN531

The Commissioner accepted that was an element of soft control. And also the determination of the fee, by reference to the route selected by Uber. With respect, we don't think that quite encapsulated the various other controls that were in the contract, in the services agreement and in the community standards, with respect to conduct, cancellation, acceptance, delays and various other unacceptable activities.

PN532

Now, as I say, with respect, the Commissioner doesn't seem to have quite encapsulated the degree of control that was exercised in the various ways to which I've endeavoured to refer, although he accepted some degree of soft control was present.

PN533

I'm sorry, just looking at paragraph 87 of the Commissioner's decision, it was asserted there that Ms Gupta appears to have very significant control over the way in which she conducted the services:

PN534

Ability to choose to log on or off, although often control of the hours it is accepted the capacity to accept or refuse delivery requests it was said, with very limited caveats.

PN535

We don't accept that that's a correct reflection of the cancellation rate and acceptance rate requirements. 'Free to choose which vehicle', is also not a correct - that is, it has to be a vehicle authorised and registered with the account, otherwise the account will be deactivated.

PN536

VICE PRESIDENT HATCHER: That's what said.

PN537

MR GIBIAN: Sorry?

PN538

VICE PRESIDENT HATCHER: Provided any car be registered - - -

PN539

MR GIBIAN: I'm sorry, you're right, yes. I'm sorry, you're right.

PN540

But also it has to be an authorised vehicle and that's entirely to Uber as to what standard it wishes to apply in that respect.

PN541

As to, just briefly, other considerations, there is an express denial of an employment relationship, in the services agreement, at clause 13.1.

PN542

The Commissioner appears, at paragraph 149, to say that the relationship is said to be - it says:

PN543

The relationship is described as a payment collection agent and providing technological services.

PN544

Then, in the third sentence:

PN545

The services agreement also expressly provided that the relationship is that involving an independent contractor.

PN546

Maybe the Commissioner meant, not involving a relationship of a contractor, because that's what it says at clause 13.1. I'm not sure if that was just a mistake or it reflects a misapprehension as to the services agreement. The services agreement, as I've indicated already, falls to exclude any contract or employment or any worker type relationship.

PN547

Now, in that respect, we don't think the express provision, in this type of case, is one that would be given any weight at all. This is a document which has to be executed, in order to participate in the app, on an online way. It's obviously a one-sided document drafted by Uber Eats and not susceptible to any meaningful negotiations.

PN548

The taxation arrangements would be treated in the same way, and we've referred, in the written submissions, to authorities such as Ace Insurance, at paragraph 37, that indicate difficulty in attaching any independent weight to taxational insurance arrangements. I've dealt with the provision of equipment, in terms of the motor vehicle and the phone.

PN549

Finally, in relation to assignment and personal service, clause 14.4 of the services agreement, which is at page 232, here it is assignment of transfer without prior written consent. There's evidence, at page 165 and 215 of the appeal book, in relation to the use of a facial recognition - - -

PN550

VICE PRESIDENT HATCHER: So what pages were those in?

PN551

MR GIBIAN: 165, at paragraph 33.6, and 215 at paragraph 92 of the facial recognition component for the use of the app. And at page 281, I think I've referred to this already, but page 281 of the appeal book, the community guidelines say:

PN552

Your account will be deactivated -

PN553

Or:

PN554

We will deactivate your account for allowing someone else to use your account.

PN555

JUSTICE ROSS: What was the page reference there?

PN556

MR GIBIAN: 281. That's (indistinct). Unless there's anything further.

PN557

JUSTICE ROSS: Thanks, Mr Neil?

PN558

MR NEIL: I'll maybe start by addressing the nature of this appeal and the question raised by the appeal. For that purpose I'll start by reminding the Full Bench of what was said in the ACT Visiting Medical Officers case.

PN559

We have two bundles of - we have a bundle of authorities, which is on our part A list, the ACT Visiting Medical Officers case is behind tab 2.

PN560

This was an application to a Full Federal Court, for prerogative relief, in relation to a decision of a Full Bench of the then Australian Industrial Relations Commission. The question was concerned whether members of an organisation that was an applicant for registration as an organisation of employees were, in fact, employees.

PN561

The argument that was put, unsuccessfully, on behalf of the applicant for prerogative relief, is set out in paragraph 12, on page 232. What there appears might well stand as a description of the argument that is here put.

PN562

May we next remind the Full Bench what was said about the nature of the task of a court or a tribunal in determining whether a relationship was one of employment, in paragraph 17. In particular, we have in mind the second sentence in that paragraph. Then paragraph 18. Next, paragraph 28, which begins at the foot of page 235. In that paragraph we place significant weight on both sentences, particularly the second, as being determinative of the nature of this appeal.

PN563

May we focus, for a moment, on that point? It's the point that we address in paragraph 21 of our written submissions. May we remind the Full Bench of three of the authorities to which we have there referred? The first is Boden, a copy of which is behind tab 7 in the bundle, where, at paragraphs 15, 16 and 17 the Full Bench will find collected many of the leading authorities in this area.

PN564

Next, O'Kelly v The Trust House Fort, which we have copied behind tab 8 in the bundle. This is a case that concerned whether casual banqueting staff were employees, under a contract of employment. The passages of which we'd wish to remind the Full Bench have often been cited in cases of this kind. The first of those passages begins at page 128, at about point (e).

PN565

There Fox LJ referred to the celebrated decision of Woods v WM Car Services Peterborough Ltd. There the question was whether an employer had repudiated a contract of service, and it was argued, before the Court of Appeal in O'Kelly, that that was an analogous circumstance to a question - and required an analogous process of factual and legal reasoning to the question of whether a person was an employee.

PN566

That proposition went only so far, as Fox LJ held, in the passage that begins at page 120, at about point (q). Then the Full Bench will see, at about point (h), that it was sought to distinguish Woods, and that proposition was rejected, at the top of page 120, finishing at about point (b).

PN567

The passage that has been - the aspect of that passage that has been particularly influential is captured in the last sentence:

PN568

The precise quality to be attributed to various individual facts is so much a matter of degree that it is unrealistic to regard the issue as attracting a clear legal answer.

PN569

The Master of the Roles dealt with the same issue, in a judgment that begins at page 122, at about point (f). We had wished to remind the Full Bench - - -

PN570

JUSTICE ROSS: Sorry, what page was that again?

PN571

MR NEIL: Page 122.

PN572

JUSTICE ROSS: Thank you.

PN573

MR NEIL: The particular passage begins just after point (h), the last two lines on that page, and it continues over to point (d), on page 123.

PN574

Finally, may we remind the Full Bench of the passage in the judgment of the Master of the Roles, it begins at point (gh) on page 123, with the words, 'There is no doubt'. 123, point (gh), with the words, 'There is no doubt', and may we respectfully invite the Full Bench to read down to point (e), on page 124?

PN575

The same process or concept and process of reasoning has frequently been applied in this Commission and, with respect, correctly so. French Accent is a case that is often referred to in this area. A copy of that is behind tab 5 of our learned friend's bundle, in paragraph 41, the final paragraph of the reasons for decision is the passage of which we wish to remind the Full Bench.

PN576

We round the submission of in this way, by making two propositions. Provided that, as in this case, a circumstance that is agreed on all sides, by the appellant as much as the respondent - - -

PN577

JUSTICE ROSS: Could you just go back to French Accent?

PN578

MR NEIL: Yes.

PN579

JUSTICE ROSS: How do you say that supports your - because the Commission, at 36 - - -

PN580

MR NEIL: The penultimate sentence. The penultimate sentence of that paragraph.

PN581

JUSTICE ROSS: Sure, but where to they deal with the test on appeal? They reach the same conclusion as the Commissioner below - - -

PN582

MR NEIL: That's so.

PN583

JUSTICE ROSS: - - - despite having conducted the exercise for themselves and attributing more weight to one factor. The real point is, they reached the ultimate conclusion, the same conclusion.

PN584

MR NEIL: Correct.

PN585

JUSTICE ROSS: If they had reached a different conclusion but, nevertheless, dismissed the appeal, that would go in favour of your construction, but how does it help you?

PN586

MR NEIL: This is the same process of reasoning being described. The question is, the weight that we attach to this is the reference to the ultimate question, being a matter on which reasonable minds might differ, once the principles have been correctly identified and the exercise correctly undertaken.

PN587

JUSTICE ROSS: I don't see how French Accent helps you though. I'm just not following - - -

PN588

MR NEIL: I can't take it any further than that.

PN589

JUSTICE ROSS: Because their they conduct the analysis themselves, they reach the same conclusion as the member below, albeit they would have given greater significance to some factors.

PN590

MR NEIL: Correct.

PN591

JUSTICE ROSS: And, having reached the same conclusion they dismiss the appeal.

PN592

MR NEIL: They reached the same conclusion - the critical point for our purposes is, that the Full Bench there reached the same conclusion, notwithstanding that they would have attached different weight to particular factors. That was not a circumstance that - sufficient to ascribe error to the judgment below, to the decision below, and for that reason - why, because that decision had correctly - in that decision the primary decision maker had - the Commissioner has - was correctly instructed as to the law and undertook the process of weighing the various factors. The fact that different minds might come to a different view, was exactly the reason that the Master of the Roles had identified in O'Kelly, was not a circumstance that justified appellant intervention.

PN593

JUSTICE ROSS: No, I think you're conflating two things. The Master of the Rolls is talking about the ultimate conclusion.

PN594

MR NEIL: Correct.

PN595

JUSTICE ROSS: Well, that's not what they're talking about in 41. They are talking about a factor. They would have assumed greater significance to a particular indicia.

PN596

MR NEIL: Correct.

PN597

JUSTICE ROSS: They say reasonable minds might differ about that - the weight to be attributed to that - but the key point is they reached the same conclusion.

PN598

MR NEIL: Correct.

PN599

JUSTICE ROSS: They look at it for themselves, all the factors. They form their own view on it and they reach the same conclusion as the member below, therefore the appeal is dismissed.

PN600

MR NEIL: That is just another way, in our respectful submission, of saying the same thing. It is not an error to ascribe a different weight to a particular factor - - -

PN601

JUSTICE ROSS: Well, not if you reach the same conclusion.

PN602

VICE PRESIDENT HATCHER: But even in a discretionary decision that wouldn't be an error.

PN603

JUSTICE ROSS: No.

PN604

MR NEIL: Yes, that's correct.

PN605

JUSTICE ROSS: Well, you wouldn't have upheld the appeal.

PN606

MR NEIL: Correct.

PN607

JUSTICE ROSS: Even if it was a discretionary decision.

PN608

MR NEIL: And the reason is there is no error. The proposition we put involves two elements. One is that which is set out in the last sentence of our paragraph 21; within limits which are indefinable in the abstract is a matter of - a question of whether a worker is or is not an employee is a matter of degree of which there is no exclusive measure and to which there is no right or wrong answer.

PN609

VICE PRESIDENT HATCHER: So that follows, therefore, that access to the Commission's unfair dismissals jurisdiction - there is no single right or wrong answers of whether you have access. In a borderline case it's a matter of who you get on the day.

PN610

MR NEIL: That's one way of putting it, but it's a matter of the evaluation that is made by the tribunal to whom the task of making that evaluation is assigned. It's unavoidable - the cases say this with one voice. Excluding the cases on either side, between them there will be cases in which it is a matter of degree and there is no clear right or wrong answer. It is a question excluding those extreme cases on either side.

PN611

It is a question to which inherently there is no clear answer, no, right or wrong answer, provided that the law has been correctly identified - I withdraw that. Provided that the facts have been found correctly, the decision‑maker has correctly instructed themselves or directed themselves as to the law and the decision‑maker has applied the law. In this case, by weighing the various indicia or factors identified in the findings of fact that have already been made.

PN612

In a case of this kind there are, as ACT Visiting Medical Officers instruct, really three steps in the reasoning process - or the decision‑making process. The first is to make findings of facts; findings of fact as to the relevant incidence of the relationship, both contractual and having regard to the reality of the relationship. The way the relationship actually worked in practice. The first step is a fact‑finding exercise.

PN613

The second step is to identify the law and that being, in the case of this kind, the principles set out in, for example, French Accent which in turn is properly understood, we would respectfully submit, as an articulation of the principles laid down by the High Court in Hollis v Vabu and before that Stevens v Brodribb Sawmilling.

PN614

The third step is to undertake the exercise that the law requires and that is an exercise in weighing or balancing the indicia or factors identified in the facts as found to ascertain the totality of the relationship. The first step involves questions of fact, the second and third steps involve questions of law. That leads to the second proposition that we wanted to put by way of summarising our submissions in this area and that is the proposition that is set out in terms in the last sentence of paragraph 28 of the ACT Visiting Medical Officers case, page 236. I'll just quickly read it, if we may:

PN615

Provided the correct criteria have been applied, the fact that another decision‑maker might have attached different weight to the various factors is not a basis for ascribing jurisdictional error.

PN616

In a moment - I'm not sure when - - -

PN617

JUSTICE ROSS: Well, we'll let you finish this discrete area. It's probably the easiest way.

PN618

MR NEIL: Very well, perhaps take it up to a point. I did want to say something about Damevski's case, but I'll perhaps postpone that until after lunch. I'll make this point, if we may: we accept, as accept we must, that a finding that an applicant for relief against unfair dismissal is or is not an employee is a finding as to a jurisdictional fact, but it's a jurisdictional fact that has two distinctive features.

PN619

One is that it is, in truth, a mixed question of fact and law and that captures the concept that is described in the second sentence of paragraph 17 of the ACT Visiting Medical Officers case. The second distinctive feature is that it is a conclusion or a finding in relation to which uncertainty of result is a significant factor; a circumstance in which there is no right answer. In characterising it in that way we quoted from the judgment at paragraph 154, the judgment of Edelman J in SZVFW, which is behind tab 13 in our learned friend's bundle.

PN620

I wonder if that would be a convenient point to stop for the moment. We haven't finished the nature of appeal point, but we have reached a convenient step in the argument.

PN621

JUSTICE ROSS: All right. 2.15.

LUNCHEON ADJOURNMENT [1.08 PM]

RESUMED [2.18 PM]

PN622

JUSTICE ROSS: Yes, Mr Neil.

PN623

MR NEIL: If it please the Full Bench, what we had proposed to do on the question of the nature of the appeal and the question that arises on appeal is remind the Full Bench of what, in our submission, are the salient aspects of three authorities that bear on this question; Damevski is one, Sammartino is the second and the migration case SZVFW is the third.

PN624

The first, Damevski. Damevski is a case unlike the present case. In Damevski there were two critical questions. The first involves the construction and effect of the contracts that comprised a tripartite arrangement, and in particular whether there was a legal relationship between the putative employer and the putative employee.

PN625

The second question was whether and how it was permissible to depart from contractual characterisations of the arrangement, and look at the reality of the relationship. The critical point is that both of those questions were legal questions capable of a right or wrong legal answer and that, in our submission, explains the emphatic finding of error in Damevski. The questions in Damevski were, in that respect, materially different from those that arise in a case such as the present.

PN626

If we could shortly remind the Full Bench of where the two questions are crystallised in Damevski. It's behind tab 4 of our bundle. First, the question of the construction and effect of the contracts comprising the tripartite arrangement, that's an error which is identified in, for example, the first sentence of paragraph 100. The question of whether and how it was permissible to depart from contractual statements or characterisations of the arrangement and look at the reality of the situation, one finds that identified in a number points but, for example, paragraph 80 on page 453; paragraph 102, particularly the last sentence of that paragraph on page 457; and paragraph 172, which is on page 478.

PN627

The critical point for present purposes, in our submission, is that they were both entirely legal questions capable of a legally right or legally wrong answer.

PN628

VICE PRESIDENT HATCHER: An analogous question to that in 100 arises here, does it not? That is, the first thing we need to do is characterise who is working for whom and in particular for whom Ms Gupta is performing delivery services for, and who has an obligation to pay her.

PN629

MR NEIL: Correct. The difficulty there for the appellant's case is that the Commissioner made plain findings about the latter circumstance, the latter fact, and they are not challenged on appeal; at least not directly so far as we can see. The finding was that the respondent did not have an obligation to pay the appellant in respect of any delivery services.

PN630

VICE PRESIDENT HATCHER: Well, that's in the work‑wages bargain part of the analysis you're talking about.

PN631

MR NEIL: That's where the finding appears, but it's a finding of fact.

PN632

VICE PRESIDENT HATCHER: Yes. I mean, that was analysed as if it was one of the indicia where there was an employment or independent contract relationship when in fact on one view it's an entirety antecedent question, because on your analysis Ms Gupta was neither employed nor an independent contractor for you. Whatever she was, she did it for the restaurant.

PN633

MR NEIL: Correct.

PN634

VICE PRESIDENT HATCHER: And you provided the services to her by way of facilitation.

PN635

MR NEIL: Correct.

PN636

VICE PRESIDENT HATCHER: That's the first thing that needs to be answered before you even look at the indicia.

PN637

MR NEIL: We submit that that is the correct approach.

PN638

VICE PRESIDENT HATCHER: But that's not what the Commissioner did.

PN639

MR NEIL: It isn't what the Commissioner did. What the Commissioner did was to look at that question in the context of the so‑called work‑wages bargain and to use his consideration of the facts pertaining to that bargain both as an element in his evaluation of the indicium of control, and also as a way of reinforcing or supporting his evaluation of the totality of the relationship.

PN640

In our submission, when one looks at the authorities - Forstaff is one - the correct position is that what perhaps for convenience we might continue to call the work‑wages bargain, the obligation expressed in the passage from Forstaff which is quoted in the decision at paragraph 145 on page 39 of the appeal book, that identifies something that is essential - its existence is essential - if the relationship is to be on of employment.

PN641

The correct approach is that if that condition is not satisfied then that is the end of the inquiry, because whatever one has from that point on, it is not a contract of employment. That's the approach that is authorised by the passage in Forstaff which uses the word 'essential' to capture that consideration. The principles are there discussed and its application in that way are, in our submission, entirely orthodox, including in this Commission the taxi driver's case, Voros v Dick, is an example of that. That is in our bundle at tab 10.

PN642

Just perhaps to quote from the - if we may, if it's convenient to depart from the scheme of our argument for a moment to deal with the point that your Honour the Vice President has raised with us. Voros v Dick is behind tab 10 and the passage that we had in mind are paragraphs 13 through to 16. We place particular emphasis on the first sentence in paragraph 13, then there is the conclusion set out in the sentence in paragraph 14.

PN643

The balance of paragraph 14 deals with one side of the work‑wages bargain. That is, was there a requirement in the putative worker to perform any work or provide any services for the benefit of the putative employee. There was not in that case, as in this case. Paragraph 15 deals with the other side of the bargain. The first sentence captures the point there. Then might we remind the Full Bench of the whole of paragraph 16.

PN644

Now, on both sides of the bargain both obligations were found by the Commissioner not to be present here. If one applies the approach identified and described in Forstaff and here in Voros v Dick, then that would be the end of the matter.

PN645

JUSTICE ROSS: How does it sit with Forstaff? If the implication is that you have to have an obligation to perform work or you can't have a work‑wages bargain - - -

PN646

MR NEIL: An obligation to provide the services reasonably demanded under the contract.

PN647

JUSTICE ROSS: Yes. Well, in Forstaff there wasn't.

PN648

MR NEIL: There was; after the worker accepted the engagement.

PN649

JUSTICE ROSS: Yes.

PN650

MR NEIL: That's paragraph 113 of Forstaff.

PN651

JUSTICE ROSS: All right. What is the distinction here?

PN652

MR NEIL: Here there was no obligation to provide any services even after the driver, the delivery partner, accepted the delivery request - - -

PN653

JUSTICE ROSS: All right.

PN654

MR NEIL: - - - because a delivery partner could unilaterally and of their own motion cancel any delivery order that they had accepted at any time.

PN655

JUSTICE ROSS: I see how you put it with this case. I just struggle with the notion more broadly that - and it may depend on how it's framed - it's some form of essential requirement that the putative employee has to be under some obligation to provide services, when that's just not the case with casual employment.

PN656

MR NEIL: The analysis is that which is undertaken in paragraph 113 of Forstaff.

PN657

JUSTICE ROSS: No, I've got that in front of me. It's really whether you accept the assignment.

PN658

MR NEIL: Yes, but then once you accept the assignment - sorry - - -

PN659

JUSTICE ROSS: Once accepted, there is little control over it.

PN660

MR NEIL: A casual employee, it is true, may not be obliged to accept an assignment that is offered to them. To that extent they may be like a delivery partner here who is considering whether to accept, ignore or reject a delivery request, but a casual employee, once they've accepted the assignment, is obliged to perform the services required of them under the assignment and they are entitled to be paid for the whole of the assignment equally.

PN661

The analysis is undertaken, usefully in the present case, in a passage from Suliman which is quoted in paragraph 89 of the decision below.

PN662

JUSTICE ROSS: I'm just not sure that it advances the argument any further. We have got Brodribb, we've got the indicia test and are you suggesting there is a different test?

PN663

MR NEIL: Not a different test. The correct approach - and perhaps we should emphasise this. There are two questions here and as it happens the answer to both questions is the same, as both of them will support the decision that the Commission made. If one looks at Forstaff, at Voros, at Odco, they all say the same thing; a contract of employment has certain essential features. If it doesn't have any of those features, it is not a contract of employment, whatever it is.

PN664

One of those features is what is described loosely as the work‑wages bargain and the content of that is captured in Forstaff, in paragraphs 90 and 91. Forstaff is in our learned friend's bundle behind tab 10. If a contract or a relationship does not have that feature, then it is not a contract of employment as we - - -

PN665

JUSTICE ROSS: Yes. That's not the approach the Commissioner took.

PN666

MR NEIL: But that's one approach and it is not the approach that the Commissioner took.

PN667

JUSTICE ROSS: So did he make a mistake?

PN668

MR NEIL: It doesn't matter for our purposes, because the Commissioner took a different approach which was to do two things: one was to take half of the work‑wages bargain, the obligation to perform services reasonably demanded under the contract, to make a finding that there was no such obligation here and to use that finding to evaluate the criterion of control. That happens in the decision below in paragraphs 89 and 90.

PN669

The second way in which the Commission used it was either to reinforce or to support his evaluation of all the factors, including the factor of control, and that occurs - as your Honour the President pointed out - at paragraphs 144 and 145. In 144, which is on page 38 of the appeal book, the Commissioner pointed out that there were factors tending for and against the relationship being one of employment, but held in the first sentence that the more significant factors tended to weigh against the relationship being one of employment. That, in the scheme of the Commissioner's reasoning, was the governing conclusion.

PN670

JUSTICE ROSS: I follow that approach, but can you take me to any High Court authorities that have adopted the wages‑work bargain as the appropriate test that you apply?

PN671

MR NEIL: No, but it's not a test. That's the point, it's not a test.

PN672

JUSTICE ROSS: Well, you say absent the wages‑work bargain there is no employment relationship.

PN673

MR NEIL: In every case that the High Court has ever examined, the wages‑work bargain exists. It existed in Hollis v Vabu, it existed in Stevens v Brodribb Sawmilling - - -

PN674

JUSTICE ROSS: But it's not dealt with expressly.

PN675

MR NEIL: No, it is not. The concept really had its origin in - - -

PN676

JUSTICE ROSS: Automatic Fire Sprinklers. When you look at that, I'm not sure that carries you the distance.

PN677

MR NEIL: It doesn't. It probably was also influenced by the decision of, I think, the Court of Appeal in England in Carmichael. That's explained in Forstaff.

PN678

JUSTICE ROSS: Yes, well, it's explained there, but it's disavowed. That's not authority that applies in Australia.

PN679

MR NEIL: Only insofar as it is inconsistent with Automatic Fire Sprinklers, because in Carmichael the notion - in the United Kingdom the notion that service might consist of standing and waiting as much as where it is active does not have currency, whereas in this country - - -

PN680

JUSTICE ROSS: Ready, willing and able.

PN681

MR NEIL: - - - it is orthodox. It is the law. That's the point that is made in Forstaff in paragraph 91.

PN682

JUSTICE ROSS: It doesn't appear to me to be a rock solid foundation on which to build this general principle. They all refer to the same authorities, but when you go back to them - and in this case, as you say, it may not make any difference.

PN683

MR NEIL: In this case it doesn't - - -

PN684

JUSTICE ROSS: Because it's not the approach the Commissioner adopted in any event. It depends on how you characterise the guidelines and the service agreement, but the essence of your point is that here even upon the acceptance of a particular delivery - to use a neutral term - there was no obligation on the appellant to actually perform that function.

PN685

MR NEIL: Correct, correct.

PN686

JUSTICE ROSS: Because they could cancel.

PN687

MR NEIL: At any time. We want to develop that a little later if we may - - -

PN688

JUSTICE ROSS: No, no, certainly.

PN689

MR NEIL: - - - but that's the foundational proposition.

PN690

JUSTICE ROSS: And it's put against you that, well - at least as I understand it that's true as far as it goes, but it's said that there are consequences for cancellation. As a practical matter that has the effect that really your capacity to cancel is significantly constrained by those consequences.

PN691

MR NEIL: Yes, that's the point.

PN692

JUSTICE ROSS: Yes.

PN693

MR NEIL: To the extent that there is one, yes.

PN694

JUSTICE ROSS: Do you accept that there are consequences if you cancel?

PN695

MR NEIL: No.

PN696

JUSTICE ROSS: All right.

PN697

MR NEIL: The reason is this: cancellation per se can lead to an adverse rating.

PN698

JUSTICE ROSS: Yes.

PN699

MR NEIL: The consequence attaches to having an adverse rating rather than the cancellation itself.

PN700

JUSTICE ROSS: Well, okay.

PN701

MR NEIL: There is lots of buzzing beside me saying it's a distinction without a difference, but it's an important one. There is no penalty for cancelling. The appellant's case is a powerful demonstration of this. As the Commissioner found - - -

PN702

JUSTICE ROSS: I think she had, what, 240; a large number.

PN703

MR NEIL: - - - she cancelled something in the order of 240 delivery requests after having accepted them.

PN704

JUSTICE ROSS: Yes.

PN705

MR NEIL: That finding is at paragraph 67.

PN706

JUSTICE ROSS: Yes.

PN707

MR NEIL: She rejected over 550 delivery requests and - - -

PN708

JUSTICE ROSS: Yes, I think it's set out in the witness called by your client to the proceedings below.

PN709

MR NEIL: It is, but the actual finding is the last sentence of paragraph 67.

PN710

JUSTICE ROSS: Yes.

PN711

MR NEIL: And the evidence was that was all without consequence. There was no connection between either of those circumstances and - - -

PN712

JUSTICE ROSS: No, I follow. So that makes good your point, you say, that - - -

PN713

MR NEIL: Yes. It's a practical demonstration of the point is the way we would put it.

PN714

JUSTICE ROSS: Yes. I see, yes.

PN715

MR NEIL: I did want to take up one proposition that your Honour the President raised with us and that was, as your Honour put it, the uncertain foundation of the work‑wages bargain concept.

PN716

JUSTICE ROSS: Yes.

PN717

MR NEIL: That, as your Honour will understand, is not a proposition which we would - - -

PN718

JUSTICE ROSS: No, no, I - yes.

PN719

MR NEIL: That we would accept. It is important for present purposes to bear steadily in mind that that bargain has two sides to it. Your Honour have raised one with us - - -

PN720

JUSTICE ROSS: Yes.

PN721

MR NEIL: - - - and that is the obligation to provide for services reasonably requested under the contract. The other side is the obligation to pay and that's an obligation that must inhere in the putative employer and be for the benefit of the putative employee.

PN722

JUSTICE ROSS: Yes.

PN723

MR NEIL: Now, there is very firm foundation for that side of the bargain and that is in Odco, which is a decision of a full - it's in our exhibit.

PN724

JUSTICE ROSS: No, no, I follow.

PN725

MR NEIL: That's in the joint - - -

PN726

JUSTICE ROSS: And that also has a firm foundation in Watson, for that matter.

PN727

MR NEIL: It does. We just wanted, if we may, to take a moment to remind your Honours of the language with which it is discussed in Odco. Odco is behind tab 4 of our learned friend's bundle and the passage which we particularly wish to remind the Full Bench is on page 114, the first full paragraph:

PN728

The element of consideration which is essential to a contract of employment is the promise by the presumptive employer to pay for service as and when the service is rendered.

PN729

Then, as your Honour the President has pointed out, Automatic Fire Sprinklers is given as authority for that proposition.

PN730

JUSTICE ROSS: Speaking for myself, I have no difficulty with that proposition and that proposition drawing from Automatic Fire Sprinklers. My difficulty comes when you start to frame the other side of the obligation and it can depend on how it's put, but in some of the instances or some of the expressions it rather suggests that to be an employment contract there has to be an obligation on the employee to perform services.

PN731

MR NEIL: Yes.

PN732

JUSTICE ROSS: Whereas, as you've said, you would confine that to where they have agreed to undertake the service, they have to provide it.

PN733

MR NEIL: Yes, yes. It must be the service as reasonably demanded under the contract.

PN734

JUSTICE ROSS: Yes. I find that, I suppose, more palatable than the broader proposition.

PN735

MR NEIL: Yes.

PN736

JUSTICE ROSS: I'm still having trouble identifying that second part - well, I don't get it from Odco.

PN737

MR NEIL: No, Odco doesn't address that.

PN738

JUSTICE ROSS: I'm not sure how it arises from Automatic Fire Sprinklers.

PN739

MR NEIL: Essentially from the passage the idea that it is - and perhaps I'm just looking at the passage from Automatic Fire Sprinklers, the celebrated passage which is quoted on page 114 of Odco. Your Honours will see that just after the reference to 'Inland Revenue Commissioners'.

PN740

JUSTICE ROSS: Yes.

PN741

MR NEIL: It says:

PN742

The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration - - -

PN743

and so on, then there is a qualification or a description of what 'service' actually means.

PN744

JUSTICE ROSS: Yes.

PN745

MR NEIL: As the Full Bench knows, it doesn't mean just the performance of work. It is being ready and able to work when that is required. That is again, in our submission, language which is redolent of a description of something that is characteristic of a contract of employment. If you don't have that, it isn't a contract of employment. If one takes a step backwards, it's not a difficult proposition to say what is it that is characteristic of employment; it's the provision of service.

PN746

JUSTICE ROSS: Yes.

PN747

MR NEIL: Including service in its larger Automatic Fire Sprinklers sense and that is the proposition which is put in paragraph 91 of Forstaff.

PN748

VICE PRESIDENT HATCHER: So your case in this respect depends on a proposition that the driver enters into a contract with the restaurant for the provision of work in return for payment?

PN749

MR NEIL: Yes, although I - - -

PN750

VICE PRESIDENT HATCHER: Somebody has got to be obliged to pay for this work.

PN751

MR NEIL: Yes.

PN752

VICE PRESIDENT HATCHER: And it's either the restaurant or Uber.

PN753

MR NEIL: That's correct.

PN754

VICE PRESIDENT HATCHER: You say it's the restaurant?

PN755

MR NEIL: Yes, although I - - -

PN756

VICE PRESIDENT HATCHER: At what point is that contract formed? That is, when does offer and acceptance occur?

PN757

MR NEIL: I wanted to go on to say - before coming to the question that your Honour the Vice President has asked of us - it's not necessary for our case to say that there is a contract formed between the restaurant and the driver, the delivery partner, although probably there is. There is a relationship between them. If you're analysing it in terms of contract, the offer is made by the restaurant at the point when the restaurant publishes the delivery request on the respondent's platform. That offer imports all of the incidents which are the subject of the contracts between the restaurant and Uber, including the obligation to pay the delivery partner and the rate at which that payment is to be made. The contract, if contract it is, is formed when the delivery partner accepts the delivery request. In contractual terms, that's acceptance.

PN758

JUSTICE ROSS: Yes, but acceptance of what? What has been the offer?

PN759

MR NEIL: The offer? The offer is an offer to - - -

PN760

JUSTICE ROSS: Does it name a price? Does it name what you're expected to do for it?

PN761

MR NEIL: It does, because the offer imports all of those terms.

PN762

JUSTICE ROSS: But if the driver - as I understood the facts described by the appellant - doesn't even know the identity of the restaurant, let alone the price they're contracted for and where they're going to and from - - -

PN763

MR NEIL: Yes.

PN764

JUSTICE ROSS: - - - then how can you have a contract if you don't know the identity of the other party?

PN765

MR NEIL: In a sense it doesn't matter, because as soon as you do, you can cancel. There is a point in time at which the delivery partner is possessed of every piece of information that they might need to know in order to form a contract. It doesn't much matter when that point of time occurs because they have the power to cancel at any time.

PN766

JUSTICE ROSS: So acceptance might be when they find out the details and they decline to cancel?

PN767

MR NEIL: Yes.

PN768

JUSTICE ROSS: It's an iterative process and you learn more about it and when you actually pick up the food, that's when you engage in the contract?

PN769

MR NEIL: Correct, and that point of time might occur at different stages in the process, according to the facts of the particular transaction. But for our purposes it's not really necessary to enter into the analysis. The point holds good, regardless of whether there is a contract formed between the restaurant and the delivery partner or not. The critical point is we don't pay the delivery partner and we don't have any obligation to do so. The restaurant has that obligation.

PN770

JUSTICE ROSS: I thought the restaurant's obligation was to pay Uber pursuant to its contract with Uber?

PN771

MR NEIL: Yes, acting in that respect as the agent of the delivery partner.

PN772

JUSTICE ROSS: Does the contract say that?

PN773

MR NEIL: Yes.

PN774

JUSTICE ROSS: Can you show me where that is?

PN775

MR NEIL: There are two contracts that are relevant: the contract between the respondent and the appellant or the delivery partner begins at page 223. One starts with the recital, the first sentence of the second paragraph:

PN776

Portier Pacific will procure and facilitate - - -

PN777

MR NEIL: - - - et cetera. Perhaps I might draw attention to all of the salient provisions of the contract, if we may, while it's open?

PN778

JUSTICE ROSS: I think the point is at 13.1.

PN779

MR NEIL: It starts at 4.1, page 226: 'You can charge a delivery fee,' et cetera. Then there is - the service fee is the subject of 4.5. In 4.1 I should also draw attention to the top of page 227:

PN780

Portier Pacific agrees to remit or cause to be remitted to you on at least a weekly basis - - -

PN781

MR NEIL: Then there is a service fee, which is the subject of 4.5. Then as your Honour the President has pointed out, there is clause 13.1, particularly the first sentence, which essentially gives effect to the recital. Then if one goes to 256 - - -

PN782

JUSTICE ROSS: 256?

PN783

MR NEIL: - - - 256 of the appeal book, one sees the form of the contract between the respondent and the restaurants.

PN784

JUSTICE ROSS: The payment provision was on 263?

PN785

MR NEIL: I just - before we came to that - wanted to draw attention to the first paragraph on page 257 and then the first paragraph in clause 4. Then there is an addendum to that contract, the contract between the respondent and the restaurants, which begins at page 263 and the relevant provisions are clause 3, payment, subclauses (b) and more particularly subclause (c).

PN786

JUSTICE ROSS: But (c) is an obligation under the contract with Uber.

PN787

MR NEIL: Correct.

PN788

JUSTICE ROSS: It's not an obligation under any putative contract with the driver.

PN789

MR NEIL: That's so.

PN790

JUSTICE ROSS: So it's in a sense an obligation that the restaurant gives as consideration as part of its contractual arrangement with Uber?

PN791

MR NEIL: Correct - in consideration for its participation in the - - -

PN792

JUSTICE ROSS: It's not - - -

PN793

MR NEIL: - - - platform.

PN794

JUSTICE ROSS: Uber enters into these contracts in its own right. It's not acting as - purporting to act as agent. This is not a contract, in substance, with Ms Gupta, with Uber being her agent.

PN795

MR NEIL: It is not. The contract whereby Uber is appointed as Ms Gupta's agent for the purpose of collecting the delivery fee is the contract between her and Uber - page 231, clause 13.1. It doesn't - - -

PN796

JUSTICE ROSS: What Uber does is get the payment from the eater and then provides the meal payment to the restaurant and the delivery fee payment to the driver, less some form of service fee that it imposes on both parties.

PN797

MR NEIL: Correct - in receiving money from the eater the respondent acts as the agent for the restaurant.

PN798

JUSTICE ROSS: Indeed, and the driver.

PN799

MR NEIL: Correct, correct - but the obligation to pay the delivery fee is not an obligation that adheres in Uber.

PN800

JUSTICE ROSS: But Uber has got the money?

PN801

MR NEIL: Yes.

PN802

JUSTICE ROSS: Nothing happens without the payment.

PN803

MR NEIL: That's so.

PN804

JUSTICE ROSS: So you've got the money, which includes the delivery fee?

PN805

MR NEIL: Yes.

PN806

JUSTICE ROSS: On what basis could you resist the payment of the delivery fee of the driver?

PN807

MR NEIL: But the point is it's not our payment. We're not making the payment. We're making the payment on behalf of somebody else. So we are physically transferring the money; we're physically collecting the money. We are physically remitting the money. That's the language of the contract. When we receive it, it's not our money.

PN808

JUSTICE ROSS: Don't have an obligation to transfer the money, acting as agent for the restaurant?

PN809

MR NEIL: Correct - that is not a payment by us. It's a payment by the restaurant, made on behalf of the restaurant by us. That is a materially different thing. The appellant's answer to all of this is to say, repeatedly, 'That's just a fiction.' The difficulty is that - and there are two: (1) that is not what the Commissioner found and there is no challenge to the Commissioner's findings of fact in this regard. Paragraph 147 is a plain finding that we do not make the payment and it's supported by the findings that are made in paragraph 65 on page 18. The second difficulty is that the appellant cannot point to anything that might demonstrate that the arrangement does not in practice work in exactly the way that the contracts contemplate. All of the documents that pass between the parties reflect that arrangement and, so far as the evidence - and there is no suggestion anywhere in the evidence that the money does not flow on the courses and in the way that the contract stipulates.

PN810

The result is the Commissioner's finding must stand. It is not our money. We are not making the payment. It's the restaurant that makes the payment. That holds good. It's not necessary for us so to submit but we do that there is a contract between the restaurant and the delivery partner, affected at some point in time in the transaction that the Commissioner describes.

PN811

JUSTICE ROSS: It's sufficient for your purposes to make good the point that Uber has no obligation to make any payment?

PN812

MR NEIL: Correct, correct, and that is all a consequence of the fact that is not Uber's business. Uber acts as an intermediary between restaurants, customers - who are called eaters - and the drivers, the delivery partners. Restaurants, the customers order food from those restaurants and the people who collect the food from the restaurants and deliver it to the customers; that is our business. It's a business which as the - to use the language that the Commissioner used in the last sentence of paragraph 86 at the foot of page 28 - it's a business that involves facilitation. We facilitate the transaction between the customer and the restaurant, when the customer orders the food, and the restaurant accepts that order. We facilitate the transaction between the restaurant and the delivery partner when the restaurant makes a delivery request and the delivery partner accepts it.

PN813

The other thing that we do, again to use the language the Commissioner uses in that sentence, the last sentence in paragraph 86 on page 28, we act as an agent. The respondent acts as an agent; an agent for the purpose of collecting money from the customers and remitting it to the restaurant and from the money that goes to the restaurant, remitting the delivery fee, less the service charge, to the delivery partners. So that was - - -

PN814

JUSTICE ROSS: The contract between the restaurant Uber in its capacity as agent for the restaurant?

PN815

MR NEIL: The contract between them is a contract relevantly of agency but what Uber did in that contract was to - the contract appointed Uber as the restaurant's agent for the purpose of collecting and distributing the money paid by the customers, and that's in the passage which is at the top of page 257 and in clause 4 and it also assumed or gave effect to its obligations as the agent of the delivery partners in the provisions of clause 3 on page 263.

PN816

JUSTICE ROSS: So it's part of the same contract?

PN817

MR NEIL: Yes. That is a reflection of the fact that in the arrangement, the respondent did two things: it collected money for the restaurants and distributed it to the restaurants and it collected money for the delivery partners and distributed it to them.

PN818

JUSTICE ROSS: So it's a contract with them acting as agent for the delivery partners; it's a contract with the delivery partner, isn't it? How can it be those two things at the same time?

PN819

MR NEIL: No, I'm sorry; I must not be following what your Honour has said. In the arrangements that Uber has with the restaurants, there are two aspects. The first aspect is Uber is an agent of the restaurant for the purpose of collecting money from the customers.

PN820

JUSTICE ROSS: I get that part.

PN821

MR NEIL: That's page 257. The second thing that Uber does is to act as the agent of the delivery partners for the purpose of collecting from the restaurants money payable in respect of deliveries and remitting it to the delivery partners. So it has two functions in the overall arrangement.

PN822

JUSTICE ROSS: Yes, but it's two different contracts for that.

PN823

MR NEIL: Essentially, yes, but in the contract with the restaurant, Uber does what it is obliged to do on behalf of the delivery partners, because in the contract with the restaurant, Uber deals on page 263 with what it has to do as the agent for the delivery partners; that is, collect the delivery fee - - -

PN824

JUSTICE ROSS: So in fact it is in part a contract with Uber in its capacity as agent for the delivery partner?

PN825

MR NEIL: Correct.

PN826

JUSTICE ROSS: That makes it effectively a contract with the delivery partner.

PN827

MR NEIL: In effect, yes - I'm sorry, that is the point that your Honour is raising with me?

PN828

JUSTICE ROSS: Yes.

PN829

MR NEIL: It must be so. We've rather drifted from the question of the nature of the appeal. I wonder if we could just make two very short points about the cases that remain, going back to that part of the exercise before we then come to deal with some of the factual controversies. Sammartino was a case to which our learned friends referred, and I think there is a loose copy of that. Paragraph 9 is important. The last two sentences explain what it is meant - what paragraph 10 means. In the penultimate sentence the Full Court said this:

PN830

It - that is the Commission - is also under a duty to determine the content of any point of law upon which its decision might depend. If in undertaking any of those tasks it finds that the Commissioner has made an error of law or an error of fact it can exercise its appellate powers.

PN831

MR NEIL: So the error of law that the Full Court was there referring to is an error in determining the content on any point of law on which the Commission's decision depends. That concept flows through into the first sentence in paragraph 10 and into the concept of error that is discussed in paragraph 15. That is not what is alleged here on the appeal. It is not said that the Commissioner's decision was vitiated by any error in determining the content of the law. Next the migration case, SZVFW. It's important, in our respectful submission, to bear in mind that this was a case about the abuse of a statutory power on the ground of unreasonableness and that attracted special tests when it came to the question of an appeal.

PN832

The relevant principles are illuminated by - best illuminated, in our respectful submission, first in the judgement of Gageler J, starting at paragraph 30 on page 8. There, his Honour is discussing an appeal - the nature of an appeal by way of rehearing, which is of course this is, emphasising in paragraph 30 that an appeal by way of rehearing is a procedure for the correction of error. Then on paragraph 35 on page 11 his Honour began a consideration of what his Honour described as two standards of appellate review. In the first sentence of paragraph 35 his Honour observed that this was the subject dealt with of the legislative allocation, relevantly dealt with the legislative allocation of decision-making authority between the trial court and the appellate court.

PN833

In paragraph 36 his Honour dealt with appeals against the judgement on a matter of practice and procedure; in paragraph 37 appeals that turn on the exercise of a discretion. Then in paragraph 39 his Honour turned to appeals from judgements that involved evaluative conclusions. In paragraph 39 his Honour discussed an early theory of judicial restraint that applied to judgements of that kind which, as his Honour held in paragraph 40, was rejected by the majority in Warren v Koons. Paragraph 41 his Honour set out the well-known passage from Warren v Koons. Then in paragraph 42 he dealt with or began dealing with decisions of the High Court that dealt with the decision in Warren v Koons, including, importantly, Norbis v Norbis, to which his Honour turned in paragraph 43.

PN834

Norbis v Norbis, as the Full Bench will see at the top of page 15 was a case that concerned the application of a statutory criteria that called for value judgements, in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right. The whole of paragraph 44 is important, particularly the passage in the last half of that paragraph in which his Honour sets out from the reasons of Mason and Dean JJ, with whom Brennan J agreed, the following:

PN835

Their Honours in Norbis v Norbis went on to explain that the line of demarcation which they identified stemmed from the fundamental conception of an appeal as a process for the correction of error. If the questions involved lend themselves to difference of opinion which in any given range are legitimate and reasonable answers to the ons, it would be wrong to allow a court of appeal to set aside a judgement at first instance, merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance.

PN836

MR NEIL: Then in paragraph 45 his Honour referred to Singer v Berghouse, from which that did not depart from Norbis v Norbis. The passage at the top of page 16 in paragraph 45 is important, explaining that the majority expressed agreement with the statement that:

PN837

Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision makers, they will inevitably invite appeals to a different evaluation, which objectively speaking may be no better than the first. To describe the second evaluative determination as no better than the first is necessarily to postulate that both determinations are legally permissible.

PN838

MR NEIL: The same point is made in the reasons for judgement of Edelman J, for example, in paragraph 150 and paragraph 154. So in our submission the migration case, when it is properly understood, is entirely consistent with the reasoning in ACT Visiting Medical Officers case. That is what we wanted to say on this subject, other than to summarise it in this way: the proposed appeal amounts to no more than an invitation to this Full Bench to come to a different assessment of the relationship than did the Commissioner, by giving different weight to some of the indicia. That is not to ascribe error and certainly not jurisdictional error to the Commissioner. Even if we are wrong about that, it is for the reasons that we have addressed in writing; not an appeal that would attract the public interest which in turn attracts permission to appeal.

PN839

Could we turn to some of the particular submissions that have been made? The first relates to the concept of a business which as we take it is the subject of the first ground in the notice of appeal, ground A in part 2.1. There are two aspects to this ground of appeal as we read it. One focuses on the nature of the respondent's business. It's asserted in the notice of appeal that the respondent's business is in providing food delivery services. That is not what the Commissioner found. The Commissioner's findings in this regard are in paragraphs 2 and 86. The Commissioner found that the respondent's business was to market and provide a food-ordering and food-delivery platform. That is paragraph 2, page 2 of the appeal book.

PN840

That finding is not challenged. On the evidence, in our submission, it could be challenged. The evidence was, as we have submitted, that the respondent's business was to act as an intermediary between restaurants, the customers who order food from the restaurants and the person who collects the food from the restaurants and delivers it to the customer. That is what the Commissioner meant when he referred to the agency and facilitator or facilitator role at paragraph 86 on page 28, the last sentence of that page. The arrangement is accurately described at page 15 of the appeal book in paragraph 44. The findings there made are not challenged. There are two elements of the respondent's food delivery platform. They are accurately identified in paragraph 45 on page 15. The operation of those two elements are the subject of detailed and unchallenged findings which are set out in paragraphs 45 all the way through to 65.

PN841

Customers, called the eaters, and restaurants, use one element of the platform, the so-called Eats app to respectively place and accept orders for food. Restaurants are then connected with people who can collect and deliver the food. They are called delivery partners. That is done by the second element of the respondent's platform, the so-called partner app. Using the partner app, restaurants make delivery requests. The platform sends it to a delivery partner, who is logged on to the partner app in the general area of the restaurant. The sole criterion by which the delivery partner is selected by the platform is proximity. That is a finding that the Commissioner made in the first sentence of paragraph 51 on page 16 of the appeal book. Ratings, we observe at this point, have nothing to do with that process.

PN842

The Commissioner made that finding on page 18 of the appeal book, paragraph 62. The process is described in clause 2.1 of the contract between the respondent and delivery partners. That is on page 224 of the appeal book where, in clause 2.1 the Full Bench will see, set out in detail, the process that the Commissioner has correctly described.

PN843

The delivery partner, who receives a delivery request can choose to accept, ignore or expressly decline it. Those findings are made on page 17 of the appeal book, at paragraphs 52 and 53.

PN844

Then the process is completed, in the way that the Commissioner found, first in paragraphs 56 then paragraph 58. We emphasise again, at the risk of over-elaboration, all of the findings to which we refer are unchallenged.

PN845

That's one side of the business question, 'What is our business'. The second aspect of ground (a) in the notice of appeal focuses on the applicant.

PN846

JUSTICE ROSS: Just in relation to 'What is your business', what do you say about paragraphs 85 and 86 of the Commissioner's decision?

PN847

MR NEIL: Eighty-five?

PN848

JUSTICE ROSS: And 86.

PN849

MR NEIL: Yes. So 85 is, we would say that read together one would have to conclude that the Commissioner found that what was being sold by the platform, by the model, was the delivery of food. One transposes 'delivery of food' for 'rides'.

PN850

He then goes on to identify what we say is consistent with the finding in paragraph 2, on page 2 of the appeal book, that what is more evident in practice is the agency or facilitator role. That may not have been the most elegant answer.

PN851

So we don't resile from the finding, the propose of the whole model is to enable customers to order food from restaurants, restaurants to provide that food, and to deliver that food to the customers. What is our business? It is to act as an agent or facilitator for those purposes. That's the way in which we read those two paragraphs together.

PN852

Now - and that's our answer to your Honour, the President's question.

PN853

Can we move to the second aspect of the business ground of appeal, the aspect that focuses on the appellant? The appellant contends that such goodwill as she created did not accrue to her. The difficulty for the appeal is that the Commissioner took that fact into account as a factor that favoured employment. One sees that on page 33 of the appeal book, in paragraphs 122 and 123 and on page 38 of the appeal book, in the last sentence of paragraph 144, in a way that is entirely orthodox, in point of principle and does not - in fact, is not said to constitute an error.

PN854

The applicant's notice of appeal goes on to make the contention that she did not operate her own independent business and to suggest that that is a circumstance that should be taken into account. How? In the end, although there was, with respect, some equivocation about this, in the end this is what was put by the appellant, as we understood it, that where a worker is found not to be operating her own independent business, then it is a short step to find that that worker is an employee.

PN855

That proposition is wrong. It's wrong for the reasons that are given in Personnel Contracting, a copy of which is behind tab 2 in our bundle - no, I'm sorry, behind tab 3 in our bundle, starting at paragraph 151, on page 44. Every passage on which our learned friends relied for that proposition is there disproved or disapproved, and disapproved on the ground that it is inconsistent with the authorities, including the decision of the Full Court in TattsBet v Morrow.

PN856

We would adopt, with respect, the analysis that appears at paragraphs 151 through to 157 and to adopt that as being correct. It is supported in all of the authorities, including Whitby v ZG Operations Australia Pty Ltd, which we have referred to in paragraph 38 of our written submissions, on the authority of TattsBet v Morrow. The heart of it, as I'm reminded to remind the Full Bench, is in paragraph 154 of Personnel Contracting.

PN857

The reasoning behind all of that is this, working in the business of another is not inconsistent with working in a business of one's own. That's Ace Insurance, at paragraph 128. And one cannot be operating a business but still not be an employee. That was Personnel Contracting, as appears in paragraphs 156 and 157.

PN858

JUSTICE ROSS: Is there any earlier examples of where a result of that nature has pertained? That is, you're not in business but you're not an employee?

PN859

MR NEIL: Not as clearly as that. Perhaps not so clearly as that, as we stand here now. Some of the vicarious liability have that thread running through them. But for present purposes, we would put to this as a very clear illustration of that proposition.

PN860

The sort of error that results by asking the wrong - I withdraw that. The real - the reason why it is fraught with the possibility of error to focus on the question of whether a worker is operating her own independent business is that a conclusion - as Personnel Contracting demonstrates, a conclusion that the worker is not operating her own independent business does not lead to the conclusion that she is an employee. The focus is - so that it is not an alternative, in that sense. If not operating her own business then she must be an employee. That's an erroneous process of reasoning. That's what TattsBet v Morrow would be saying, in our respectful submission.

PN861

Now, in grounds (b) and (c) of the notice of appeal, amended notice of appeal, the appellant deals with what the Commissioner called soft control, and the appellant characterises as the right to effect real and practical control, or effective control, over her work.

PN862

She points, in the written submissions made on her behalf, to several mechanisms by which she says the respondent had the right to effect real and practical or effective control over her work.

PN863

There are four of them: the right to terminate the relationship, insistence by the respondent on certain standards of behaviour, the ratings system, and the respondent's indirect influence over the delivery route. They're the four mechanisms to which she points.

PN864

The difficulty here, as elsewhere in the appellant's case, is that as to all of those matters the Commissioner made correct and unimpugned findings of fact and then weighed all of them in the balance. So far as the right to terminate the relationship is concerned, the Commissioner dealt with that on page 31 of the appeal book, at paragraphs 104 to 106. Insofar as all the other matters are concerned, the Commissioner dealt with them on page 29 of the appeal book, in paragraph 88 and 89.

PN865

The appellant's submissions focus on the community guidelines, and we did want to say a little bit about that, if we may, because they have been, in our respectful submission, profoundly misunderstood.

PN866

The Commissioner, has said, as your Honour, the President, pointed out, the Commissioner has said, in the appellant's written submissions, to have misstated the effect of the guidelines and failed to appreciate their significance. That submission is made in paragraph 15 of the appellant's written submissions. It's the first of the three errors, only three errors, the first of the three errors to which the appellant points.

PN867

In our submission, that is unfair. That submission is unfair, when one looks at what the Commissioner actually said, rather than quoting only one word in isolation. What the Commissioner actually said is on page 28 of the appeal book, in paragraph 84, and in paragraph 105, on page 31. Those findings are not challenged, they are, in any event, correct.

PN868

The guidelines appear - begin at page 267 of the appeal book. May we begin with a point that starts in the very first paragraph, under the heading Australia and New Zealand? This is a point that the Commissioner made, in paragraph 84 of the primary decision. The community guidelines are directed at everyone who uses the respondents platform. They're directed at restaurants, described in the last sentence of the first paragraph:

PN869

A restaurant partner looking to deliver your food, a consumer hungry for a good meal or a delivery partner wanting to make money.

PN870

It's directed at all of them.

PN871

On page 267 one sees set out two core principles that, in terms, apply, without discrimination, to restaurants, eaters and delivery partners.

PN872

The concept of rating is introduced on page 268, under the heading, Feedback makes us all better. As the first sentence of that passage indicates, everyone, every user of the respondent's platform can be rated. Consumers, restaurants and delivery partners. That point is made good on page 277, in the first paragraph, under the word 'Quality'. Everyone who uses the respondent's platform can lose access to it, everyone. It's use of and access to the platform is a privilege for consumers, for restaurants and delivery partners.

PN873

On page 268, and carrying over to page 270, the Full Bench will see set out the circumstances in which consumers can lose access to Uber Eats, including by engaging in what it described, on page 269, as, 'Problematic behaviours', which are there set out.

PN874

On page 270 one can see, all the way over to page 275, circumstances in which restaurants can lose access to Uber Eats. There one will see, on page 271 and 272, standards of personal behaviour. On page 272 and 273 provisions which regulate quality. On page 273 unaccepted orders are dealt with. On page 274 missing or wrong orders are dealt with. Page 275, compliance with the law.

PN875

If - I withdraw that. Then, on page 275 one can see set out the circumstances in which delivery partners can lose access to the platform. If what there appears is an instance of soft control, on the part of the respondent over delivery partners, then what appears in relation to restaurants and even consumers, even customers, is equally instances of soft control. The very same kind of behaviour is the subject of - is addressed, in relation to restaurants as it is to delivery partners.

PN876

Against - that is - now, while the Full Bench has that open, can we draw particular attention to the concept of rating, which is addressed in relation to all participants in the platform, under the heading Quality, at page 277? The system of rating is described in the second sentence of the paragraph, immediately under that heading, in the following terms:

PN877

This system improves accountability and helps create a respectful, safe and professional environment for everyone.

PN878

Then there is a discussion about delivery ratings for delivery partners, under the heading, 'How is my rating calculated'. This is - the subject of this are the ratings that are given by restaurants and consumers to delivery partners. It's not the rate of deliveries, as the appellant's written submissions would suggest.

PN879

Delivery ratings, ratings, essentially, of the quality of the service given by the delivery partner to, respectively to restaurants and to consumers, can eventually lead to a delivery partner losing access to the platform, and that is set out in the last paragraph of - the second full paragraph on page 278.

PN880

All of that was taken into account accurately by the Commissioner, in paragraph 88, on page 29, 'The soft controls'. None of those findings are challenged. Each of them is accurately described in the first sentence of paragraph 89, as 'Business efficiency rules'. The respondent plainly has an interest in maintaining the quality of its product, being the platform that connects restaurants, consumers and delivery partners.

PN881

That circumstance explains the presence of the soft controls that are described in the community guidelines, and are applied to delivery partners and to restaurants and even to consumers.

PN882

That circumstance describes the way in which the Commissioner treated these business efficiency rules in the first - or evaluated these business efficiency rules, in the first sentence of paragraph 89. They are not, as the Commissioner found, of themselves, particularly strong signals of the type of relationship, they're neutral. They can be explained as indicia of employment and of any other kind of relationship that might be relevant.

PN883

Then, if one looks at the second sentence of paragraph 89, I should say, before we leave paragraph 88 and the first sentence of paragraph 89, the Commissioner also made findings about the ratings system, again unchallenged, in paragraph 62, on page 18 of the appeal book.

PN884

Having taken all of those, accurately found the facts pertaining to the so-called soft controls, or, as the respondent would call them, real and practical controls, and having then weighed them in the balance, the Commissioner went on to focus on one circumstance, one kind of control that, as the Commissioner held, was commonly associated with employment, which the Commissioner found, rightly found, was not present, and that is the obligation to provide services of the kind required by the contract. That's in the second sentence, and following, of paragraph 89, including the passage from Suliman, which is there set out.

PN885

That passage from Suliman, and particularly paragraph 37 in Suliman, addresses in a way which, in our submission, is correct, the distinction between casual employees and people like delivery partners using the respondent's platform.

PN886

In this passage:

PN887

Whilst it is true that neither a casual employee nor an Uber driver can be compelled to attend work, if the casual worker refuses casual work offered or if the driver decides not to log on to the partner app, having attended work, the casual employee can be compelled to work for the period present, in exchange for wages paid. Conversely, the driver, having logged on, cannot be compelled to accept any requests that are sent to the partner app. The failure of a casual employee to provide services has consequences for the offer of future work, whilst for a driver there are none, as the driver controls when and if they will accept a request. That they have refused a request has no consequences for them.

PN888

The Commissioner held that that analysis was apposite to the degree of control exercised in and the nature of the relationship in this case. That conclusion is not challenged and, in any event, is correct.

PN889

It is reinforced by the finding which appears in the first sentence of paragraph 147, on page 39, which again is not challenged and is correct.

PN890

There was never an obligation upon Ms Gupta -

PN891

Found the Commissioner:

PN892

to elect to provide any delivery service, even when the partner app was activated, which of itself was also optional.

PN893

Now, the respondent does - the appellant, I'm sorry, does say - does make the submission, in paragraph 27 of the - of her written submissions, that if she wished to continue to perform work for the respondent she had to maintain a sufficient level of work. That submission is flatly wrong, flatly wrong. The Commissioner made no such finding and, on the evidence, could not have done so. Delivery partners, as the contractual documents make plain, as the community guidelines make plain, delivery partners are free not to accept a delivery request and if they accept such a request they are free to cancel it, unilaterally and for any reason, or no reason at all, at any time.

PN894

Now, in relation to accepting requests, the finding is on page 16 of the appeal book, in the first sentence of paragraph 48. It is significant, in our submission, that the only consequence, the only consequence for a delivery partner who consistently declines delivery requests is that they will be logged off. That consequence is a trifle. So much so that it is immaterial. That is the subject of the passage on page - in the community guidelines, to which the Full Bench has already been taken, at page 279, under the heading Acceptance Rates. The third sentence to the end:

PN895

While declining deliveries does not automatically lead to permanent de-activation of your account, that consequence is excluded. If you don't want to accept delivery requests, you can just go offline. There is no minimum requirement to you to log on to the app or to accept deliveries when you have. But logging on is an indication that you are available to receive deliveries. If you consistently decline delivery requests, we will assume you do not want to accept any more deliveries at that time and your account may be automatically logged off until you log back on.

PN896

MR NEIL: Our learned friend submitted that that sentence should be read to indicate that a delivery partner might be permanently de-activated if they decline too many jobs. Plainly that is not so. What follows, being logged off, was the subject of evidence given on behalf of the respondent at page 210 of the appeal book, paragraph 51. If a delivery partner is logged off because they have not accepted three consecutive requests, they can log back on immediately. Then there is a reason given for that arrangement. The ability of delivery partners to consistently decline delivery requests without consequence - without any meaningful consequence - is usefully contrasted with the consequence for restaurants who have what is called a high unaccept rate. They may lose access to the platform all together. That is the subject of the community guidelines at pages 273 and 274.

PN897

I am reminded that I should also invite the Full Bench to look at page 207, paragraphs 26 and 27. That is cancellation. I'll come to that in a moment. So far as acceptance is concerned the appellant cannot point to any positive obligation imposed on or accepted by her to accept a minimum number of delivery requests. Even if she could she would need to be able to specify what the minimum obligation was. She cannot do that. There is no minimum obligation. That is acceptance. Cancellation is a different but related subject. The Commissioner's findings about that are on page 17 of the appeal book at paragraphs 53 and 54 and 55. I'm sorry; paragraphs 54 and 55. The issues of fraud that are referred to in paragraph 55 are explained in the community guidelines at pages 281 and 282, particularly under the heading on page 282: 'What leads to you losing access to your account?'

PN898

Essentially what all this means is once a delivery partner takes delivery of food from the restaurant, they are at law the bailey of the customer because the customer has already paid for the food and there may be consequences if a delivery partner takes food that belongs to the customer. But that is a different matter than cancellation. It is, as your Honour the President pointed out to us, an element in the appellant's case that the respondent monitors delivery partners' cancellation rates and if they are too high, that can lead to a delivery partner losing access to the platform. The reason for that is stated at page 278 in the community guidelines under the heading, 'Cancellation rate.' Second sentence:

PN899

When you cancel, it negatively affects the experience for both restaurants and consumers and creates a poor customer experience.

PN900

MR NEIL: Passing over the next sentence and then this, the fourth:

PN901

Minimising cancellations is critical for the reliability of the system.

PN902

MR NEIL: That is what, in essence, the reliability of the system and the experience that consumers and restaurants have, is what the respondent sells. This is the kind of business efficiency rule that is instituted by the respondent in order to protect and maintain the quality of its product, the platform that connects restaurants and consumers and delivery partners. The same reasoning is applied to restaurants that have high un-accept rates or high rates of missing or wrong orders as is made plain on page 274 of the appeal book. Perhaps I should make the point: everything that we have said and everything the Commissioner found in relation to acceptance of delivery requests and cancellation of requests once accepted, is set out in clauses 2.1 and 2.3 of the contract between the respondent and delivery partners, pages 224 and 225 of the appeal book.

PN903

So here one has a circumstance where under the contract and as the arrangements actually work out in practice delivery partners have a high degree of independence. They can decide for themselves if, when, where, how much and for whom they will work. They can set and adjust their working schedule, when and how they want to do so without any intervention from the respondent. That is the antithesis of an arrangement of employment, of any arrangement of employment. As we point out in paragraph 35 of our written submissions, delivery partners are in that respect - in respect of their degree of independence - analogous to the beauty consultants who were held in Mary Kay Cosmetics not to be employees because the level of their activity was and remained entirely a matter for them, regulated by their self-interest, not that of the respondent.

PN904

So far as the - we had ground D of the notice of appeal, deals with the significance of the work wages bargain and we essentially said what we want to say about that in writing and in answer to questions that the Full Bench asked of us a little earlier. Can we deal with some particular matters? First the question of delegation, the right to delegate: the critical findings of the Commissioner are on - first on page 3 of the appeal book in paragraph 7 and on page 31 of the appeal book in paragraphs 102 and 103. In those paragraphs, the Commissioner accurately stated the effect of the evidence which appears at page 211 of the appeal book. The criticism of the Commissioner in this regard, in paragraph 24 of the appellant's written submissions, the second of the three errors to which he points, is in our respectful submission unfair.

PN905

The findings of fact were correct. They are unchallenged and the Commissioner took them into account. Another circumstance of particular relevance here is the right that delivery partners have to do other work, even while they are doing work for the respondent. That is the subject of a finding that is made in the last sentence of paragraph 107 of the primary judgement at appeal book 31 to 32. It is not here challenged.

PN906

VICE PRESIDENT HATCHER: So does that include the right to use other people's apps to do food delivery work?

PN907

MR NEIL: Correct, and that is the subject of clause 2.3 on page 225, at about the middle of that very - these words appear:

PN908

For the sake of clarity, you - that is the delivery partner - you understand that you retain the complete right to (1) use other software application services in addition to the Uber services and the provider app and (2) engage in any other occupation or business.

PN909

MR NEIL: That, in our respectful submission, as the Commissioner found in paragraph 107 is antithetical to a relationship of employment and is, as we submit, a strong indication that this was not such a relationship. Next, some questions were asked of the appellant about the provision of capital equipment. That was dealt with by the Commissioner in paragraphs 98 to 101 of the primary judgement in findings that were not challenged and are correct. The respondent is agnostic as to the transportation method that delivery partners employ. It requires only that delivery partners indicate what transportation method they have chosen and stick with that until they otherwise notify the respondent. That is dealt with in clauses 3.1 and 3.2 on page 226 of the appeal book; that's clauses in the services contract.

PN910

It's the subject of evidence which is set out on page 205 in paragraph 15(b) and there is also a mention of it at page 207 in paragraph 28 of the evidence there set out. Another particular circumstance that we wanted to say something further about is the prohibition against communication. That in our respectful submission has been misrepresented in the appellant's case. If one looks at that prohibition it appears on page 224 of the appeal book in clause 2.1. The prohibition is not, as it was submitted, absolute, but it is qualified. It's in these terms, about the middle of clause 2.1:

PN911

You shall not contact any users or delivery recipients or use any user's personal information for any reason other than for the purposes of fulfilling delivery services.

PN912

MR NEIL: In effect, all that is - so it's not a blanket ban against communication. It's in effect a form of covenant against using introductions effected by the use of the respondent's platform for purposes other than the provision of delivery services, which are defined in clause 1.7. It's a way of protecting the product from which the respondent derives its profit and has no other present significance than that.

PN913

Now, the last matter we wanted to say something particular about is the significance of the contractual descriptions of the relationship, this is dealt with in paragraph 29 of the appellant's written submissions. The Commissioner dealt with this topic at paragraph 149, of the primary decision, in a way that is, in our respectful submission, entirely correct.

PN914

It accords with the approach that is set out in Personnel Contracting, paragraphs 49 and 50 - sorry, from paragraph 49 on page - I withdraw that, let me start again. It accords with the approach that is set out in Personnel Contracting, beginning at paragraph 173, on page 49, through to 177 on page 50.

PN915

The appellant answers all of that by saying, and saying repeatedly'

PN916

Well, the contract is just a fiction, it's implausible.

PN917

The difficulty is that the appellant does not identify, anywhere in the evidence, a reality that is different from the arrangement that is stipulated in the contracts.

PN918

VICE PRESIDENT HATCHER: Well, this brings me to a question I was going to ask you and Mr Gibian. The Aslam case in the UK seems to me, they've been entirely dependant upon the application of the decision in Autoclenz.

PN919

MR NEIL: Yes.

PN920

VICE PRESIDENT HATCHER: And the principles of that cases are summarised, conveniently, in paragraph 119 in the dissenting judgment, but it was obviously, relied upon by the majority.

PN921

So my question was going to be, does Autoclenz have any equivalence in Australia's law?

PN922

MR NEIL: No.

PN923

Because both Autoclenz and Aslam concern the statutory extended worker concept.

PN924

VICE PRESIDENT HATCHER: I know that question. It's the concept that, even if - leaving aside the statutory definition they had, it's the principle arising from Autoclenz that the employment tribunal could disregard the terms of a written agreement, even if it's not a sham, on the basis that the tribunal should take a realistic and more worldly-wise approach and it was based, particularly, on the concept where there's a disparity in binding power and the employers, who are in a position to dictate the terms of the paperwork.

PN925

So the contract's not necessarily a sham, but nonetheless, as it appears, a discrete incident of employment law, a tribunal could disregard the terms of the written agreement if they considered it was inconsistent with the reality.

PN926

So it's really those propositions, I'm asking whether there's any equivalence of that in Australian law?

PN927

MR NEIL: To a degree.

PN928

Autoclenz, in our submission, goes further than Australian law authorises. The correct approach is that - not relevant - is that which is discussed in - I'm sorry, if your Honours will just give me a moment.

PN929

Discussed in Damevski at paragraph - for example, paragraph 80. The last sentence at paragraph 102 and the reference to the real substance to the agreements in paragraph 172.

PN930

VICE PRESIDENT HATCHER: I mean, Damevski involved the implication of a contract based on the circumstance of the case.

PN931

MR NEIL: Correct.

PN932

VICE PRESIDENT HATCHER: So that's one aspect which I'm not sure is relevant here. The second, obviously, well-established principle, is that in this employee versus independent contract analysis, you can, if necessary, disregard a characterisation of the nature of the contrary, given in the contract.

PN933

MR NEIL: Correct.

PN934

VICE PRESIDENT HATCHER: So that's obviously, well established.

PN935

But Autoclenz seems to go much further than that and say you could actually disregard operative terms of the written agreement, if they appear to be inconsistent with what you perceive as the reality. It's that last aspect which I'm wondering.

PN936

MR NEIL: Yes.

PN937

That's the point at which Autoclenz, in our submission, goes further than Australia law authorises. So what - the passages in Damevski that we pointed to are, in our submission, the high-water mark of Australian law, in that area. And it falls short of Autoclenz.

PN938

VICE PRESIDENT HATCHER: All right.

PN939

MR NEIL: And Autoclenz, for the reason that we just touched on a little earlier, and that your Honour, the Vice President, pointed to, Autoclenz requires great care because it is not concerned with employment, expressly not concerned with that.

PN940

It's concerned with the test for the extended statutory definition of worker, that prevails in the United - that applies in the United Kingdom, is in force in the United Kingdom. And so too, Aslam. Aslam makes - repeatedly points out, it has nothing to do with the question of whether the putative worker is an employee or not.

PN941

A particular point where Autoclenz goes too far, in our submission, is the significance that it attaches to the relative bargaining power of the parties. And when we say, 'Too far', farther than Australia law goes. That's not a relevant consideration for the purpose that your Honour, the Vice President, is asking us about.

PN942

We have, in our written submission, particularly addressed the question of permission to appeal. We don't wish to add to anything that we have said, in that regard, but in saying that, we would not, of course, wish the Full Bench to think that we are not pressing those submissions.

PN943

I'm sorry, do you want to excuse me for one moment?

PN944

Perhaps - I'm just - just for completeness. In Personnel Contracting, at paragraphs 126 and following, there's a reference to the principle that is applied in Damevski, which is drawn from the judgment of Lord Denney in Massey v Crown Life Insurance. And the passage from Massey is set out in paragraph 129 of Personnel Consulting - Contracting, so that - it's the same point.

PN945

VICE PRESIDENT HATCHER: Can I just check one factual matter with you, Mr Neil?

PN946

The delivery service fee, there's only one fee, isn't there?

PN947

MR NEIL: I'm sorry, your Honour, I just didn't hear what your Honour was saying.

PN948

VICE PRESIDENT HATCHER: The delivery service fee. There's one delivery service fee charged?

PN949

MR NEIL: Correct.

PN950

In respect of each delivery charged by Uber to the delivery partner. It's the delivery partner who pays the service fee.

PN951

VICE PRESIDENT HATCHER: The delivery partner pays it? Not the ‑ ‑ ‑

PN952

MR NEIL: Yes.

PN953

Delivery partner pays Uber.

PN954

VICE PRESIDENT HATCHER: So what's the consideration passing between the restaurant and Uber, under their contract?

PN955

MR NEIL: Access to the platform.

PN956

There is also - I'll just check. Access to the platform, and I think, just subject to checking, there's also a service fee charged there.

PN957

VICE PRESIDENT HATCHER: So there's two fees, there's not just one fee?

PN958

MR NEIL: Yes.

PN959

VICE PRESIDENT HATCHER: All right. That's what I wanted to confirm, so.

PN960

MR NEIL: So the - I'm sorry, yes.

PN961

I'll just give your Honour the reference for that. So the service fee that is paid by the delivery partner, to Uber, is the subject of clause 4.5, on page 227. And the service fee paid by the restaurant to Uber is the subject of clause 3(b) on page 263.

PN962

And of course, at the risk of ‑ ‑ ‑

PN963

VICE PRESIDENT HATCHER: Sorry, sorry. What page was that in?

PN964

MR NEIL: 263, clause 3(b).

PN965

That's the restaurant to Uber. To the respondent.

PN966

VICE PRESIDENT HATCHER: And how is that calculated?

PN967

That's a per cent. So it's a percentage of the price of a meal, is it?

PN968

MR NEIL: Yes.

PN969

There was no particular evidence about that. The most that one knows about that is what appears in subclause(b).

PN970

VICE PRESIDENT HATCHER: And the fee payable, by the delivery partner, is a percentage of the delivery price?

PN971

MR NEIL: Correct.

PN972

And that's clause 5.4. And at the risk of labouring the point, far from having a circumstance here, in reality, both contractually and in reality, far from having a circumstance where the respondent pays the delivery partner, the delivery partner pays the respondent.

PN973

Now, unless the Full Bench has anything more of us, those are the submissions we had wished to make, by way of supplementing that which we have put in writing.

PN974

VICE PRESIDENT HATCHER: Thank you.

PN975

MR NEIL: If the Full Bench pleases.

PN976

VICE PRESIDENT HATCHER: Mr Gibian.

PN977

MR GIBIAN: Your Honour, can I deal with the issues in the order that they arose.

PN978

Firstly, with respect to the issue on appeal point, can I just note, with respect to ACT Visiting Medical Officers Association, which is under tab 2 in my learned friend's bundle, that what was said - what was noted at paragraph 2, after the extract from the section was that section 189 of the Act provided that before the AIRC could register the Association, as an employee association, it needed to be sat that the association has, at least, 50 members who are employees.

PN979

So it's mediated by satisfaction and it's within that context that the passage that my learned friend places so much reliance, at paragraph 28 of the Full Court judgment was said, the first part of paragraph 28, merely says:

PN980

It is well recognised that informed minds may differ as to the proper conclusion to be drawn from the exercise of balancing relevant factors.

PN981

Now, we don't dispute that, but the gist of what, or the substance of what is said by the High Court, in SZVFW is that the fact that minds might differ or there's an evaluative exercise involved, doesn't mean that there's not one correct answer. And that there's something other than what they refer to as the correctment standard of appellant review applied.

PN982

The second sentence in paragraph 28, to which reliance is placed, merely said no more than provided the correct criteria of reply:

PN983

The fact that another decision maker might have attracted - attached, sorry, different weight to bear as factors, is not a basis for ascribing jurisdictional error.

PN984

Is no doubt right, in the context of a search for jurisdictional error to a finding that turns on satisfaction. In this circumstance, we are not dealing either with a requirement that there be jurisdictional error, nor is there a finding mediated by satisfaction.

PN985

The other decisions - judgments referred to the older English cases that really say nothing more than, that there are - that views might differ on the correct outcome. All of those - to the extent that my learned friend relies upon those judgments is suggesting some different form of appellant review on where hearing, they found entirely upon the High Court's decision in The Minister v SZVFW, which made clear, in the passages to which I already took the Full Bench, that:

PN986

The dividing line between the correctness standard and a more deferential standard, is when there is involved an exercise of discretion, or not.

PN987

It is clear from Sammartino and other cases, and not challenged, that the finding as to whether a person is an employee, is not a discretion. The person is an employee or they are not. They are able to make application, and the Commission has jurisdiction to deal with such an application, properly does not.

PN988

My learned friend referred to Norbis. The issue in Norbis v Norbis described in Gageler's judgment at paragraph 43 was an exercise of a statutory power conferred on the Family Court to make such order as it thinks fit altering the interests of the parties. So it was that kind of discretionary judgment, a power to make any order that it thinks fit.

PN989

As Gageler J went on to say at paragraphs 48 and 49, merely because a decision is evaluative or reasonable minds might differ does not give rise to a different standard of review and avoid the need for an appellate court to form its own judgment.

PN990

My learned friend also referred to paragraph 154 in the judgment of Edelman J. At paragraph 155 Edelman J goes on to say, by reference to a finding of legal unreasonableness, that:

PN991

Although there may be uncertainty in some, perhaps many, cases involving decisions of legal unreasonableness, and although the assessment of legal unreasonableness involves value judgments upon which it might be said that reasonable minds could differ, our constitutional tradition has never been to exercise judicial restraint in relation to appeal or judicial review of this category of question.

PN992

It's exactly the same category of question that we are dealing with here.

PN993

So far as frank access is concerned, paragraph 41 entirely supports our contention - and we have to accept that it has swings and roundabouts, in the sense that if the Full Bench forms the view that the conclusion of the Commissioner is correct but that the Commissioner did not take a particular matter into account, or gave weight to a matter that he ought not have, then we'd still lose, but we do rely upon the judgments that make clear that the Full Bench is required to form its own view.

PN994

I add in that reference paragraph 11 of Voros v Dick, which is under tab 10 in my learned friend's bundle. At paragraph 11 the Full Bench there in relation to the employment question said, on page 256:

PN995

The question of whether a person is an employee for the purposes of an application for an unfair dismissal remedy made under section 394 of the Act is one of jurisdictional fact. In this appeal we must therefore determine whether the Commissioner reached a right conclusion as to whether Mr Dick was an employee, not simply whether the Commissioner's finding, with respect, was reasonably open to him.

PN996

A similar statement was made at paragraph 40 in Kimber v Agreston Auger, which is on my learned friend's B list at tab 28 - or referred to in their list at point 28.

PN997

MR NEIL: 40.

PN998

MR GIBIAN: Yes, paragraph 40, and that reflects the approach in this Commission.

PN999

So far as, if I just stick with Voros v Dick for a moment, reliance was placed upon what was said in respect of the wages, work bargains, in paragraphs 13 to 16, I just note in that respect that the circumstances that are described in paragraph 14 and 15 in relation to the taxi driver are quite different, that is, the absence of payment by the owner of the taxi to Mr Dick who hired the taxi out, is not present here, that is, the payment is from Uber Eats, was collected by Uber Eats and paid.

PN1000

Uber Eats facilitates the delivery - or makes the requests for the delivery orders to the courier, unlike the position of the taxi driver who receives the work entirely separately from the taxi driver.

PN1001

It was said in that respect that there is cancellation without consequence of even accepted jobs, and my learned friend said that the only consequence - initially at least, the only consequence for the cancellation was it had a potential effect on ratings. Ratings and cancellation - no doubt cancellations might affect ratings, perhaps, but they are dealt with distinctly in the community guidelines.

PN1002

Can I just note, and I was going to say this initially, that the community guidelines appeared - and I think this is the way in which my learned friend tells it, that there are parts that deal with customers and restaurants and delivery partners. The part that deals with delivery partners and their obligations commences at the bottom part of page 275 of the appeal book, as I understand it, commencing with the heading Why Delivery Partners Can Lose Access to Uber Eats.

PN1003

At page 277 there is under the heading Quality, the ratings system, can I just emphasise that what's described as the purpose of the ratings system is all about control, that is, in the second sentence, 'This system improves accountability of delivery partners,' and there's then reference to how the ratings is - this is solely dealing with delivery partners, as is apparent from the next sentence, 'Delivery partners can see their current ratings in the ratings tab of the Uber app.' This is all dealing with - and then the next part, 'How's my rating calculated? Your delivery rating is based' - so it's all about delivery partners section of it.

PN1004

Then over the page there's, 'An indication of your rights if your rating starts to approach the minimum level or persistently falls below the minimum level then you lose access.'

PN1005

Then on page 278, as I took the Full Bench to earlier, cancellation is dealt with separately, that is, if you are above the relevant cancellation rate then you can also have your access to the account terminated, and that is dealt with quite differently.

PN1006

Can I note in that respect in relation to Ms Gupta particularly, the evidence of the witness Mr Mulholland who gave evidence for Uber Eats, on page 107 of the appeal book at PN785 indicated the basis of her termination - or the basis of the termination was that Mrs Gupta didn't meet certain service requirements, service standards. So she was terminated because in Uber Eats' view she didn't meet the service standards. So that is a very real element of control involved.

PN1007

So far as the services agreement and the restaurant contracts is concerned, my learned friend said Uber is only an agent for everyone and doesn't do anything other than be an agent, and in that respect he really relied upon the statement at clause 13.1 of the services agreement, which is plainly in the category of being a self‑serving declaration of the nature of the relationship rather than an operative term.

PN1008

The proposition that Uber Eats acts as agent and avoids any obligation to make payments is entirely dependent upon an assertion that there is some contract formed between a restaurant and the individual courier and that all Uber is doing is acting as an agent to collect money.

PN1009

That has a number of difficulties. It firstly ignores the whole context, which is that Uber Eats creates this whole enterprise of persons ordering food from particular restaurants available on an app and having it delivered to them at their home by Uber's deliver service.

PN1010

What's more, the concept that Uber is acting as an agent for each deliver partner in its contracts with the restaurants or each courier in its contracts with the restaurant, founders on all type of practical considerations in contractual formation. Which couriers? Is it only the couriers that are already contracted before the contract is made with the restaurant? What about people who become couriers after the contract with the restaurant? Are they agents in a contract that's already been formed? When is the contract formed?

PN1011

It was said that because of the difficulty of the courier not knowing even the name or identity of the restaurant when they receive the request, it was said, well, it may be when they don't cancel. When is that? Is it a minute after, if they don't cancel within a minute or five minutes or 10 minutes? When is the contract actually formed?

PN1012

Is any authority referred to that allows a contract to be formed by a failure to cancel an arrangement? If they do cancel the arrangement half an hour later was there a contracts in place in the meantime and it then evaporates or is it terminated? All of these considerations point to the unreality of the submission and the fact that it founders on even the most basic concepts of contractual formation.

PN1013

What's more, there's no negotiation. The delivery fee is determined by Uber, not in any negotiation between the restaurant. The courier is expressly precluded and will have their account immediately terminated if they solicit any additional payment. What's what the community guidelines say.

PN1014

We do read the provision about communication as saying that there's a prohibition on communication other than affecting the delivery service, and that would not be negotiating some different payment, and as my learned friend said, to protect Uber's business, which is Uber's contact with the restaurant, and prevent the courier from having some separate arrangement with the restaurant, that is, to prevent them running their own business or operating their own business separate from Uber.

PN1015

What's more, if Uber is merely an agent, then it has no contract at all with the restaurant or the - that is, the obligations of the courier are owed to the restaurant and not to Uber. On what basis is Uber enforcing the community guidelines in relation to conduct or investigating complaints or terminating drivers in that situation? Self‑evidently they claim to have contractual rights that they are able to exercise when it's convenient to them, but they wish to deny any such obligations for the purposes of advancing their quite fictitious construction of a way in which the arrangement in practice operates.

PN1016

VICE PRESIDENT HATCHER: When you say they're a fiction, does that - this is going back to the question I asked Mr Neil. Are you asking us to disregard any of the operative terms of the written contracts?

PN1017

MR GIBIAN: In my submission, I think there are certainly - the provisions that I say are creating this fiction are the provisions such as 2.2, which requires the acknowledgement that there is a business relationship of an undescribed type between the courier and the restaurant.

PN1018

VICE PRESIDENT HATCHER: So you say it's what, a ‑ ‑ ‑

PN1019

MR GIBIAN: They're really more declaratory of a ‑ ‑ ‑

PN1020

VICE PRESIDENT HATCHER: A labelling exercise rather than a ‑ ‑ ‑

PN1021

MR GIBIAN: Yes, a labelling exercise, a declaratory or descriptive of what is asserted to be a circumstance, which when you look at practically how it operates is not correct, rather than an operative provision as such.

PN1022

VICE PRESIDENT HATCHER: So we don't need an Autoclenz to reach the result that you ‑ ‑ ‑

PN1023

MR GIBIAN: That's my submission, yes. I'm not confident that I can tell your Honours whether the cases go that far in Australia or not. In relation to what was said about Autoclenz, there were two matters that come to mind. One is in relation to bargaining power.

PN1024

There are certainly cases which say in assessing whether or not weight should be given to an express description of the contractual relationship one might have regard to whether the contract - the evidence suggested there was actually some genuine negotiation in relation to the contractual terms or not.

PN1025

I think Online Interpreters refers to the prevalence of disguised employment arrangements and the like, and one can see as a matter of common sense why that would be relevant. If there's actually a negotiation which includes such a provision of a genuine type, then you might give it weight. If it's a standard form contract, which as in this instance is required to be executed in order to participate in the business at all, then one would give it, we would say, little or no weight.

PN1026

The second, as to whether one can disregard operative terms of a contract, as I say, I'm not 100 per cent confident I can tell your Honour whether that is something that's been found in Australia or not. One could certainly imagine circumstances in which the reality of the way the parties conducted themselves didn't match that ‑ ‑ ‑

PN1027

VICE PRESIDENT HATCHER: That's a sham. You're not asking to find that, are you?

PN1028

MR GIBIAN: There are cases which suggest that sham is a very limited concept where both parties intended to falsely describe, which is perhaps inapt in its application to a one‑sided contract which is drafted by one party which seeks to achieve a particular outcome. So I don't preclude that one could do that, but as I say, the terms that I say give rise to the fiction are the description of the way things operate rather than the operative provisions.

PN1029

In terms of payment, I just wanted to note that at clause 4.1, the passage at the top of 227 of the appeal book says that, 'Portier Pacific agrees to remit or cause to be remitted to you on at least a weekly basis the delivery fee less applicable service fee.' Again, that doesn't say, 'Only if we've received it from the restaurant.' Secondly, even if it did do that, there is still a requirement for Uber to pay, even if it is contingent upon some other event, contingent upon receipt of money. Furthermore, I note what is the provision in 4.3 which allows for the specific - or reserves a right to adjust the delivery fee in particular instances, in (i).

PN1030

JUSTICE ROSS: Are the service fees a percentage of the delivery fee, not a percentage on top of the delivery fee?

PN1031

MR GIBIAN: I think - the service fee is something that is - I think what he has said is it's paid by the courier to Uber. We don't think that's quite right, it has reduced the delivery fee. So the net amount that is received by the - - -

PN1032

JUSTICE ROSS: If they say, for arguments sake, 3 per cent, the driver will get the delivery fee less 3 per cent.

PN1033

MR GIBIAN: Yes, that's right. We don't think it's quite accurate to describe the courier as paying that to Uber because the couriers never have and Uber is calculating that on all payments and determined what those amounts are.

PN1034

I was just going to note at 4.3 that there is a capacity reserved to adjust the delivery fee in particular instances e.g. if you took an inefficient route, failed to properly end the - at a particular instance, technical error in Uber Services or two, cancel the delivery fee or if the delivery fee has been paid require reimbursement from the delivery fee from you. So that's quite independent of anything that has happened with the restaurant it seems, that Uber is reserving itself to change the fee or recover some of it or all of it, again indicative of the payment, direct payment, obligation and arrangement between Uber and courier.

PN1035

JUSTICE ROSS: I think in the evidence there was reference to the appellant having her fee changed on 95 occasions.

PN1036

MR GIBIAN: Mr Boncardo says that's right, I'll get him to go through it. In relation to personnel contracting and Tattsbet it is perhaps instructive that the only judgment that was referred to was suggesting there was some (indistinct) of work that was either a contractor in their own right or an employee, is a very very (indistinct) judgment of a single judge in the Federal Court. To the extent reliance was placed on Tattsbet, in personnel contracting at page 153 there's a passage from a judgment of Jessup J and preceding that reference at paragraph 153, it's in our bundle - I'm sorry, I'm up to tab 6. His Honour says, 'As Jessup J said in Tattsbet v Morrow', and then in brackets, (Allsop and White agreeing), Allsop J actually said at paragraph 3:

PN1037

Secondly the recent published decision in the Full Court in Fair Work Ombudsman v (indistinct) South Perth does not require any different conclusion in this particular case. The case of Ms Morrow as an employer of workers in the agency, the means of remuneration and other factors pointed to in the reasons of Jessup J lead to the factual conclusion of a sufficient (indistinct) in inverted commas, being undertaken by her to warrant the conclusion reached by Jessup J with which I agree.

PN1038

That is it wasn't necessary to say that she - that Ms Morrow worked in Tattsbet's business rather than running her own business because on the facts she clearly ran her own business, she employed people and derived profits and the like. His Honour then said - and so anything Jessup J said about that we might respond is also obiter. The Chief Justice then said:

PN1039

That makes it unnecessary to say anything about any necessity for an inquiry into whether a commercial enterprise is a going concern with employed capital and undertaking risk is being carried on by the putative independent contractor or employee and the extent to which as a matter of principle an answer to such an inquiry is likely to be generally determinative.

PN1040

So he just expressly did not deal with that issue. So it is wrong to say that he agreed, on that issue at least, he agreed in the outcome in that particular case.

PN1041

I think at 114 of the decision the Commissioner - yes, I'm sorry, and the footnote there, there's a reference to the number of times that there's an issue about payment rates.

PN1042

So far as the obligation to accept work is concerned my learned friend read guidelines - the guidelines contain the not very comforting statement that declining deliveries does not automatically lead to permanent deactivation of your account. Clearly it may lead to permanent deactivation of your account. So in that respect what was said in Suliman at paragraph 37 in relation to passenger transport and whether it was true in that context or not, I don't know, that there is no consequences for declining jobs is not right in this context and the same - sorry, it was also said that we misunderstood the ratings as being the rate of delivery, we certainly didn't consciously do that. The ratings are accountability of quality, delivery delays and the speed of deliveries and matching the ETAs is separately a ground for deactivation or exclusion from the business, at the bottom of page 279 of the appeal book.

PN1043

In terms of the right to do other work, that is to work for some other company at the same time. All we would say here is that firstly, there's no evidence that that was the case here, that Ms Gupta did any other work for anyone else at the same time or even at different times. Secondly, what the community guidelines say is that when you are logged on to our app that is our expectation, that you will be available to do deliveries for us, that is for the efficient operation.

PN1044

JUSTICE ROSS: Just tell me where that is so that I can understand that submission.

PN1045

MR GIBIAN: Yes. So in the performance guidelines it says, at page 279, there is no minimum requirement for you to log on to the app or to accept deliveries but logging on is an indication you are available to accept deliveries. The information provide to Ms Gupta made the same point at page 171 in the left hand column.

PN1046

The third aspect I was going to refer to there is that - and this appears at page 192, and is also referred to in Mr Mulholland's evidence, is the app gives you 15 to 30 seconds to accept delivery. So that is the way it worked. You'd get a request, you don't know what it is, you have 15 to 30 seconds to accept it. So that is the immediacy of the demand of being logged on.

PN1047

There was one further matter, yes, sorry. Your Honour the Vice President asked me about whether or not the same contract applied to different forms of transportation. I was just going to note that in Mr Mulholland's evidence at page 205 of the appeal book at paragraph 15 he describes the process of becoming a courier and at (b) in paragraph 15 says, 'The individual must choose whether they deliver by car, motorbike or bicycle'.

PN1048

JUSTICE ROSS: Once they choose it's still the same contract?

PN1049

MR GIBIAN: I don't know that he said that precisely but that seems to be what is being said in the sense that you go through the same process, you choose whether you're on a bicycle or a car or a motorbike. So that is as we certainly read the inference of what Mr Mulholland is saying. Unless there is anything further?

PN1050

MR NEIL: Can we just take one moment to raise a point of clarification so we understand the case that is put against us. It is not, I am sorry to say, clear to us what is being said about the significance of the terms of the contract. The subject is deal with in writing at paragraph 29 of the appellant's submissions where it is said that the express terms describing the nature of the relationship should be accorded little weight. That submission doesn't seem to touch the operative provisions of the contract, that the provisions that - - -

PN1051

JUSTICE ROSS: That's as I understood the oral submission as well. It is really the characterisation, labelling clauses which are said to not attract much weight, is that the proposition?

PN1052

MR GIBIAN: Yes. We don't limit that to 13.1 which says that this is not an employee contract, we also apply it to other terms which purport to describe this relationship in a way which we don't think matches reality. Yes, your Honour has understood it correctly.

PN1053

MR NEIL: I think that clarifies the position.

PN1054

JUSTICE ROSS: Thank you both for your submissions. We will adjourn.

ADJOURNED INDEFINITELY [4.41 PM]