The modernization of the workforce has created a class of people whose work related rights have been uncertain. Those most vulnerable include those known as “gig workers”.

As a general rule, if someone has a wage dispute or is injured on the job, a claim for employment benefits can be pursued with the Fair Work Commission or a WorkCover claim can be made. The issue with gig workers is whether or not they are employees,  If they are not employees they are not entitled to these benefits.

Relevant considerations as to whether someone is an employee under Federal employment laws and/or Victorian Workers’ Compensation laws include but are not limited to:

  • their control over the work that is being done;
  • whether they are doing ongoing work or one job;
  • whether they have set hours;
  • whether they have their own equipment or tools;
  • superannuation arrangements;
  • methods of payments; and
  • leave entitlements.

Recent cases involving Uber and Foodora have highlighted a potential need for clarification and change. In the Uber case, the Commission considered the application of Fair Work laws following an allegation of unfair dismissal. Ultimately, access to such protection was denied because the driver was not considered to be an employee.

In the Foodora case, the dispute heard by the Commission related to allegations of underpayment and again, the primary issue was whether the drivers were considered employees. Factors considered by the Commission which suggest an employee/employment relationship included the degree of control Foodora has over its staff, fixed hourly rates and the requirement to wear a uniform. We await the outcome of that decision which could significantly impact on a growing number of the working public.

Even if it is found that a gig worker is not entitled to the benefit of WorkCover compensation because they are not an employee, it is important to remember that other compensation avenues exist. These could include public liability claims, a claim under the TAC system and/or a claim for an insurance benefit from their superannuation provider.

Further, it should be noted that recent changes to TAC laws mean that cyclists injured as a result of contact with a stationary vehicle, a car door or a moving vehicle are entitled to access TAC insurance. This could be of particular benefit to gig workers who may not otherwise be covered through the Workers’ Compensation system.

At Rubicon Compensation Lawyers, we will consider all options available to you in your injury or employment case. Please contact us on 8529 5985 or at

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