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BLB4135 Employment Law in Australia - Foodora Fires

Question

1. Discuss the legal issues arising from this newspaper article

Foodora fires courier for refusing to quit workers' chat group

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Foodora courier Josh Klooger was sacked after refusing to hand ownership of a worker chat group to the company. Eddie Jim

Food delivery service Foodora fired one of its cyclists for refusing to hand over control of an encrypted chat group that its workers were using to talk about pay and conditions.

The Transport Workers Union on Wednesday launched legal action on behalf of the cyclist, Josh Klooger, in a case it hopes will set a precedent on whether contractors in the food delivery industry are in fact employees entitled to minimum pay and conditions.

Mr Klooger set up the invite-only "Teamchat Foodora Melbourne" in 2016 via the encrypted messaging service Telegram to allow cyclists to exchange tips about the job and swap shifts.

But after Foodora removed base rates and set pay at $7 a delivery, cyclists started using the group to talk about pay and conditions and to find out what other similar jobs were paying.

Emails show Foodora's compliance unit, based in Singapore, advised Mr Klooger on February 22 that he was "potentially breaching confidentiality and intellectual property rights of Foodora by maintaining and/or refusing to transfer ownership of telegram groups created by you within the scope of your contract with Foodora".

The company requested that Mr Klooger "immediately leave the groups so that Foodora can become owner by recreating them with the contractor network".

Fired days after TV appearance

The use of informal chat groups has become a common tool for gig economy contractors to share information about the job, including at Uber and Deliveroo. But as rates have fallen, workers have increasingly used the groups to organise over conditions.

Mr Klooger, who was hired by Foodora in 2015 and paid $14 an hour plus $5 a delivery, has been a vocal critic of Foodora lowering rates and addressed cyclists at a TWU protest about the issue in Melbourne on January 31.

He later appeared on Channel 10's The Project on February 25 for a story on claims that riders were underpaid, injured, racially abused and threatened.

The following week, on March 2, Foodora emailed Mr Klooger saying he had failed to respond or comply with its previous notification to transfer the Telegram groups.

In that regard, specifically the breach to IP rights of Foodora, we decided to not continue contracting your services and take the opportunity to serve you this notice of contract termination effective immediately."

The company flagged it may take further action to "recover" its IP assets.

'No rider punished for public activity'

In his defence, Mr Klooger said Foodora was also an administrator of the group and that when he received its February 22 email he helped transition drivers to new group chat platforms provided by Foodora.

A Foodora spokeswoman said "we can assure that neither Josh Klooger's or the termination of other riders' services is done lightly".

"In light of this, no rider has ever been punished or had their services revoked due to their participation in any public activity or for expressing an alternative view."

Unfair dismissal claim a test case

The TWU has filed an unfair dismissal claim in the Fair Work Commission on behalf of Mr Klooger as well as another Foodora cyclist, Avi Winner, who was sacked for "inactivity".

In his claim, Mr Winner said he was hired at $10 a delivery last year but was automatically removed on February 20 when he failed to secure a shift for four weeks.

He said Foodora had moved him down to a lower-priority "batch" of cyclists after he went on holiday, despite notifying them beforehand. The batch made it harder for him to get shifts despite multiple attempts.

When he requested his account be reactivated, Foodora said he would have to reapply for the job but based on the lower $7-a- delivery contract.

The commission will first have to determine whether Foodora's contract arrangement resembles an employment relationship, including by considering the company's level of control over the cyclists, hours and requirements for uniforms.

But if successful, the ruling could entitle Foodora cyclists and others in the food delivery service to minimum wages, paid sick leave, superannuation and penalty rates.

'No guarantees on hourly rate'

TWU national secretary Tony Sheldon argued Foodora had classified the cyclists as independent contractors but treated them like employees.

These unfair dismissal cases are about demanding rights for workers and standing up to the tech billionaires who continue to slash rates and conditions as new entrants enter the market," he said.

"Delivery riders are demanding a voice to raise issues of exploitation and safety without being victimised in any way."

Foodora's spokeswoman said contractors "have the freedom to work when and where they want, as much as they want".

"The nature of the contractor status is that there are no guarantees in terms of an hourly rate."

However, she said "no Foodora contractor is or has ever been penalised for taking time off work if their absence is registered or communicated via the appropriate channels".

Source: 

Australian Financial Review.  14 March 2018. 

Hints:

Your approach should be to write about each key paragraph of the article.   Identifying the key legal words or phrases in the article and explain what they mean (definitions).  Next, provide a more detailed discussion of how these legal concepts relate the matters being discussed in the article.  For example, “In Paragraph 1, The Fair Work Commission has the power to cut penalty rates because......".     “In paragraph X, the different industries are discussed separately because each industry has its own Award.  An award is a legall binding order made by the Commission.....”

When defining and discussing the law, you must refer to appropriate sections of legislation and/or appropriate cases.

In addition to discussing and explaining, your answer should also incorporate your own opinions, thoughts and arguments.  For example, you may argue the Commission’s decision was fair; or you may argue that Commission's decision was unfair.

Please use the materials from class (slides, including links to information in the slides where relevant), the Interteaching Class Discussion Guides and textbooks to answer the questions.  Further research of the law is expected where appropriate (It is appropriate to read the case in order to discuss the issues fully – the link is included ;  if the article is talking about a section in the Fair Work Act, it is appropriate to read the section on www.austlii.edu.au)

2. Your task is to find a news articles published in the last 12 months and discuss the employment law issues. The article must be discussing Australian employment law.

Here are some ideas of where to look:

  • The Age, Financial Review and other major newspapers.
  • Workplace Express
  • net.au

Choose the articles which are most interesting to you.  Discuss and explain the articles to someone who has no legal knowledge at all. 


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