During the recent years especial the pandemic lock down period, food delivery industry has developed at an impressive speed. In delivering food and beverage to customers in a very competitive industry, delivery drivers/riders often expose themselves to risk on the road .
If food delivery riders are involved in an accident while delivering food, are they entitled to workers compensation benefits?
Generally speaking this is a question of degree of how independent the riders are. Under the NSW workers compensation legislation, food delivery riders injured in the course of work are entitled to claim workers compensation if they are worker or a deemed worker.
Who is considered a worker?
This requires a careful review of all the factors including, but not limited to, consideration of the followings:
- Employer’s degree of control over the way work is performed, place of work and hours of work
- whether the worker work for others
- whether the work can be delegated or subcontracted
- method of payment and tax arrangements
- superannuation contribution
- leave entitlements
- whether the workers wear uniforms
- who provides tools and equipment
Under what circumstances a contractor is considered a deemed worker?
Food delivery riders are not deprived from claiming workers compensation by being independent contractors alone. Under the workers compensation legislation if:
- their contract to perform work exceeds $10 in value,
- the work is not incidental to a trade or business regularly carried by the contractor in the contractor’s own name or under a business or firm name,
- the contractor neither sublets the contract nor employs any worker.
These contractor maybe a deemed worker and entitled to the worker compensation.
These requirements draw a line between those contractors whose relation to the principal is special and particular and those who regularly perform work for their customers. The former class is protected under the workers compensation legislation whereas the later class is expected to be more responsible for their own work safety.
Factors that can make an independent contractor a deemed worker include if the rider never assigns the delivery orders to others, does not advertise himself/herself to the public, only works for one employer etc. can be considered as evidence in favour of being a deemed worker.
On the other hand the fact that riders may claim deductions in their income tax returns for the cost of telephone, replacement of tools etc. is not fatal because while these expenses are typical for contactors they are not necessarily indicative of carrying on a business. (Dowling v Ulmarra Investments Pty Ltd).
If you are injured in the course of delivering food, you should notify the food delivery company of your injuries as soon as possible and ask the company to lodge a workers compensation claim.
If the request is declined by the company or the insurer later denies liability it is important to seek our advice.