1
Fair Work Act 2009
s.604 - Appeal of decisions
Deliveroo Australia Pty Ltd
v
Diego Franco
(C2021/3221)
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CROSS
SYDNEY, 13 AUGUST 2021
Appeal against decision [2021] FWC 2818 of Commissioner Cambridge at Sydney on 18 May
2021 in matter number U2020/7066.
[1] In a statement issued on 6 August 2021,1 we indicated that we intended, in light of the
decision of the High Court in Workpac Pty Ltd v Rossato & Ors,2 to give consideration to
deferring the determination of the appeal in this matter until the High Court has heard and
determined two appeals before it, being appeals against Federal Court Full Court decisions in
Jamsek v ZG Operations Pty Ltd3 (matter S27/2021) and CFMMEU v Personnel Contracting
Pty Ltd4 (matter P5/2021). These appeals are both concerned, like the appeal before us, with
the employee/independent contractor distinction, and will be heard together by the High Court
on 31 August and 1 September 2021. We conducted a hearing earlier today to provide the
parties with an opportunity to make submissions about the postulated deferral.
[2] The appellant, Deliveroo Australia Pty Ltd (Deliveroo), submitted that the
determination of this appeal should be deferred pending the determination of the two High
Court appeals. It submitted:
“Having regard to the observations in Rossato at [101], the plurality has clearly
foreshadowed that the appeals in Personnel Contracting and Jamsek may involve a
reconsideration, clarification, or qualification of Hollis v Vabu.
Given this indication in Rossato, it is respectfully submitted that it would be unsafe for
this Full Bench to determine this appeal prior to the resolution of the above appeals.
1 [2021] FWCFB 4840
2 [2021] HCA 23
3 [2020] FCAFC 119, 279 FCR 114, 297 IR 210
4 [2020] FCAFC 122, 279 FCR 631, 297 IR 269
[2021] FWCFB 5015
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 5015
2
Furthermore, to wait for guidance from the High Court would not involve significant
delay. The appeals are to be heard in a couple of weeks, namely, on 31 August 2021
and 1 September 2021.
In addition, the reality is that a decision in this appeal, in the absence of guidance by
way of these High Court appeals, will provide little certainty going into the future for
Deliveroo and the Transport Workers’ Union, let alone Mr Franco.
Accordingly, with respect, Deliveroo submits that any decision in this appeal should
be deferred until the High Court appeals are heard and determined.”
[3] Deliveroo consents to the current conditional stay order remaining in place in the
event that a deferral is granted.
[4] The respondent, Mr Franco (who is represented by the Transport Workers’ Union of
Australia), submitted that the determination of the appeal should not be deferred, on the basis
that the decision in Rossato was concerned only with the proper characterisation of what was
inarguably an employment relationship and was not concerned with the
employee/independent contractor distinction, and that the decision was not to be understood
as calling into question the principles stated in the High Court decision in Hollis v Vabu.5 Mr
Franco also pointed to the considerable delay which would be occasioned by any deferral.
[5] We have decided that the appropriate course is to defer the determination of this
appeal until the High Court has heard and determined the appeals in Jamsek and Personnel
Contracting. This appeal is a matter of some importance, given that it is likely to have
significance for the whole of Deliveroo’s workforce and perhaps also for the “gig” sector of
the economy more broadly. We agree with Deliveroo that the decision in Rossato (particularly
at [101]) has, intentionally or otherwise, called into question what principles are to be applied
in determining whether a relationship is one of employment or independent contracting and
the status of Hollis v Vabu in that respect. In all likelihood, the High Court’s decisions in
Jamsek and Personnel Contracting will provide authoritative guidance as to these issues.
[6] It is obviously necessary to take into account the interests of Mr Franco. A consent
order has previously been made staying the operation of the reinstatement order which Mr
Franco was successful in obtaining at first instance. This stay order operates subject to the
following conditions:
“a. Deliveroo Australia Pty Ltd (Deliveroo) pay Mr Diego Franco the sum of $300.00
per week to a bank account nominated by Mr Franco;
b. Such payments are made until the determination of the appeal in matter number
C2021/3221; and
c. Deliveroo will not seek restitution of moneys paid to Mr Franco in the event the
appeal is upheld and the decision and order of Commissioner Cambridge are quashed
by a Full Bench of the Commission.”
5 [2001] HCA 44, 207 CLR 21
[2021] FWCFB 5015
3
[7] The parties agreed to this stay order in circumstances in which it could reasonably
have been expected that the appeal would be determined in a comparatively short period of
time. Deliveroo’s consent to this conditional stay order remaining in place if the
determination of the appeal is deferred, which will undoubtedly cause a delay of some months
at least, is therefore a matter of significance. Mr Franco properly conceded that the
continuation of the conditional stay order would mean that a deferral would not cause him
financial prejudice. While we accept that Mr Franco would prefer to return to his work with
Deliveroo, this does not on balance weigh against the grant of the deferral.
[8] For the reasons stated, we will not determine this appeal until the High Court has
delivered its judgments in the Jamsek and Personnel Contracting appeals. The matter will be
relisted for further hearing after this has occurred.
VICE PRESIDENT
Appearances:
J Bourke QC with M Felman of counsel for the appellant.
M Gibian SC with P Boncardo of counsel for the respondent.
Hearing details:
2021.
Sydney (by video-link).
13 August.
Printed by authority of the Commonwealth Government Printer
PR732822
OF THE FAIR WORK MISSION THE
