Big Win for Gig Workers & Workers Compensation Claims

Does the company you work for consider you to be an “independent contractor” and not an employee?

While there may be advantages to being an independent contractor, a significant disadvantage is not having the same legal safeguards for workers compensation and sick leave entitlements.

However, this unfair situation may now be undergoing positive change following a recent NSW Personal Injury Commission decision entered in favour of the family of a worker who was killed working as a food delivery driver. In what is to be considered the first Australian case where workers compensation entitlements have been paid in respect to the death a gig worker, the deceased worker’s family will receive more than $800,000 in compensation plus ongoing financial support under the NSW workers compensation scheme.

As a union representative succinctly commented after the case was concluded, “while no amount of compensation will truly heal the loss the family feels, this decision goes a long way towards righting a horrible wrong”.

If your employer classifies you as an independent contractor, here’s what you need to know about your rights in case you suffer injury during the course of performing your employment duties.

What is a Gig Worker?

A gig worker is part of the “on-demand workforce” for companies operating in the gig economy. These companies create mobile apps or websites that people can use to access the services they offer. For example:

• Food delivery services such as MenuLog, Doordash, UberEats, Hungry Panda, Deliveroo and MilkRun;
• Ride sharing services like Uber, Ola and Didi;
• Personal and professional services, e.g Airtasker, Fiverr and 99designs.

People working in the gig economy are usually recruited as independent contractors. Independent contractors do not have the benefit of entitlements and protections enjoyed by employees. For example, independent contractors are not entitled to workers compensation benefits, annual leave and paid sick leave. Click on the link to learn more about what the NSW Ombudsman has to say about the rights of Independent Contractors.

The landmark decision to award workers compensation benefits to the family of a Hungry Panda delivery rider killed at work

On 29 September 2020 during the course of delivering food on his motorbike for Hungry Panda in Sydney, 43 old Xiaojun Chen died as a result of injuries suffered in a motor vehicle accident. The deceased worker left a financially dependent wife and two children. Under the NSW Workers Compensation Act 1987 entitlements which can be claimed in respect to the death of a worker include lump sum compensation, weekly compensation for financial dependents and funeral expenses. Each entitlement is indexed twice per year.

As at the date of the death of Xiaojun Chen, death lump sum compensation payable was in the sum of $827,400.

Hungry Panda paid for the deceased workers funeral expenses plus the travel expenses for his widow, Lihong Wei to travel from China.

Lihong Wei proceeded to pursue a claim for death benefit lump sum compensation and weekly compensation on the behalf of the deceased worker’s children. The claim was pursued in the NSW Personal Injury Commission.

Following the commencement of proceedings, Hungry Panda conceded that Xiaojun Chen was an “employee” for the purposes of a workers compensation claim.

In the matter of Wei v Hungry Panda Australia Pty Ltd and Ors (2022) NSW PIC 264 (2 June 2022) the Personal Injury Commission determined that Xiaojun Chen died from injuries sustained in the course of his employment with Hungry Panda. Thereafter the Commission entered orders compelling Hungry Panda to pay death lump sum compensation in the sum of $827,400 plus payments of weekly compensation in the sum of $149.30 per week for each of the deceased workers children until their 16th birthdays.

This case did not just save one family from the very difficult financial position they were placed into by the death of their husband and father. The legal significance of the case is that a gig worker was recognized as an employee in relation to a workers compensation claim.

However, it should be noted that the case did not set a precedent in respect to whether a gig employee will be automatically categorized as an employee for workers compensation claim purposes. As Hungry Panda conceded that Xiaojun Chen was an employee, the Commission was not required to make a finding as to whether the deceased worker satisfied the definition of employee under the NSW Workers Compensation Act.

Do you have a gig worker workers’ compensation claim?

Every day, LHD Lawyers help Australian workers receive the benefits they are entitled to with their workers compensation claims.

If you (or a family member) have been employed as an independent contractor/gig worker in the gig economy and had been injured in the course of doing your work, it is only fair that you receive all the legal and financial support you are entitled to as an employee, to get life back on track – and we can help.

We are so sure of our abilities to win your case that we stand firmly by our No Win No Fee Policy. Call 1800 455 725 to arrange a consultation and to discuss your unique circumstances.

Author: Jasmina Mackovic

Original Publish Date: July 29, 2022

Last Updated: March 25, 2024