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Published: 07 December 2018
Author: Dan McGlade
A lot more bike riders are delivering food for ‘gig economy' firms like Uber Eats and Deliveroo, and that in turn is leading to a rise in the number of cycling injuries.
It raises some interesting questions: if a person is riding a bike or for that matter driving a motor vehicle in the course of their employment and they are injured, are they covered for medical expenses and compensation? And which scheme are they covered by, is it through the TAC or is it through WorkCover?
In terms of their basic entitlements to compensation such as for treatment costs and for loss of earnings while they're unable to work, they're actually covered under the WorkCover system. At least that's ordinarily how they should be covered. Sometimes, however, there's a dispute concerning whether these riders should be properly be considered employees of the company that they're delivering for.
There's a trend these days for those companies like Uber Eat and Deliveroo to say these people who are making deliveries are subcontractors and the company is not responsible for them or for their WorkCover. That really is an illusion. They would be covered by WorkCover, or they should be, and so the first port of call for a person who is injured in that situation should be to make a WorkCover claim.
Ordinarily, people who might be working in the gig economy making pizza deliveries or employed as couriers around town using a bike or a motorbike would be considered workers and employees and therefore be covered by WorkCover.
It does become a question of degree when considering how independent these riders are from the company they are delivering for, and that can become a legal issue. But generally speaking, the courts don't accept this argument when it is said: “Well they're just subcontractors we're not responsible for them”. If they're working under instruction from a company they will generally be found to be an employee of that company. But it does sometimes become a question of degree so my advice ordinarily would be that this person should be putting in a WorkCover claim.
However, it can sometimes be argued that these riders are not an employee of a company because there is sufficient independence between what they do when they did it, and how they did it, and that they didn't rely on instruction from the head company. In this case, it’s argued that they just deliver whatever they have to do when they feel like and in their own manner, and they should not, therefore, be considered to be an employee. In these cases, their rights to compensation should be sought through the TAC.
Sometimes in those situations, you can get a lot of buck-passing between the TAC and WorkCover, one side saying it's not us it’s the other, and vice versa. That’s a situation in which you have to look at the particular circumstances of the arrangement and the employment and sort that out.
It would be important to see a lawyer because in those situations it's not uncommon for the body or the company to deny they are in fact an employer. In those situations where liability for a claim is being denied by the employer or by either WorkCover or the TAC, it is important to see a lawyer to have it sorted out.
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