HK Court docket Guidelines That Gig Supply Driver Was Not an Worker | BCLP

With the continued prevalence of the “gig economic system”, a standard query that arises is whether or not “gig staff” are workers or unbiased contractors of the digital platform.

One of many the reason why this distinction is essential is as a result of it is just workers that benefit from the rights conferred upon workers underneath numerous legal guidelines, together with the Worker Compensation Ordinance (Cap 282) (“ECO”).

The time period “gig economic system” typically refers to a market system whereby platform firms (normally by digital platforms) have interaction momentary or freelance staff to carry out “gig” work. Effectively-known examples are automobile experience firms and meals supply firms.

This widespread query was the topic of one other latest court docket dispute – in Gurung, Sanjayaman v Deliveroo Hong Kong Limited [2024] HKDC 1932 (Date of Determination: 15 November 2024), the place the Hong Kong District Court docket dominated {that a} former gig rider was not an worker however somewhat was an unbiased contractor.

Temporary info

The Applicant was a former rider of the Respondent. The Applicant allegedly suffered from a visitors harm which he mentioned was sustained in the middle of his work. The Applicant then sought workers’ compensation towards the Respondent underneath the ECO.

The Respondent denied that the Applicant was its worker, and contended that it was an abusive of course of for the Applicant to hunt worker compensation when he already had taken the good thing about a voluntary insurance coverage coverage offered by the Respondent on the idea that its drivers weren’t workers.

Determination

After summarising the related case authorities, the District Court docket utilized the next “indicia of employment”, as a part of the method of deciding, as a matter of total impression, whether or not the connection within the current case was certainly one of employment:

1. Stage of management: The Applicant was free to simply accept and reject work as he wished, and will select when and the place he was accessible for work. The diploma of management exerted by the riders’ app (with its monitoring operate) was low, and was for reliable business function, facilitating effectivity, offering info to eating places and prospects, and following up on complaints towards riders.
2. Provision of apparatus: The Applicant offered and used his personal motorbike and cell phone. Though the Respondent offered him with its Riders’ Equipment, it was the Applicant’s personal option to buy the Riders’ Equipment from the Respondent.
3. Delegation and competitors: The Applicant was in a position to delegate supply duties to 3rd events and to compete with the Respondent – these had been elements towards any employment relationship.
4. Monetary dangers: The Applicant needed to keep his motorbike, and to bear the danger of committing any visitors offences and any fluctuation in petrol value. He might earn extra money by doing extra rounds of supply by environment friendly time administration.
5. Funding / administration accountability: The Applicant had a selection whether or not to simply accept orders, to handle his working hours, and he needed to keep in mind the prices of offering and utilizing his personal gear (e.g. his motorbike). These had been funding and administration selections which decided his productiveness.
6. Integral a part of the Respondent’s enterprise: The Applicant was not engaged by the Respondent on an ongoing foundation and had no administration obligations.
7. Settlement between events: The events’ settlement expressly said that the Applicant was a “provider”.
8. Tax and insurance coverage: The Respondent didn’t make any MPF contribution or tax submitting for the Applicant. Nonetheless, as said above, the Respondent did buy a voluntary insurance coverage coverage which didn’t represent an workers’ compensation insurance coverage coverage.
9. Business commonplace: The court docket famous that there was no trade commonplace which might present substantial steering in respect of this trade.

In mild of the above, the court docket discovered that there was no employment relationship between the Applicant and the Respondent, and struck out the Applicant’s declare underneath the ECO.

Dialogue

Whereas the court docket on this explicit case determined that the “gig employee” was not an worker, this determination shouldn’t be handled as authority that each one “gig staff” will probably be handled as unbiased contractors sooner or later.

Certainly, in or about 2023, the Labour Tribunal determined that six gig staff had been workers of Zeek, a digital courier platform firm, after fastidiously contemplating the indicia above^[1].

Whether or not a employee is an worker or an unbiased contractor will not be a easy matter, and every case will depend on its particular info. To minimise the danger of dispute with workers/contractors as to their true contractual standing, employers (particularly these engaged within the “gig economic system”) ought to assess the standing of their “gig staff” by a holistic method, by reference to the indicia as mentioned above.

[1]    As said in paragraph 70 of the Gurung judgment, “there is no such thing as a printed judgment for [the Labour Tribunal’s decision regarding the Zeek case], and it seems that essentially the most detailed abstract of that case is in a report issued by the Hong Kong Christian Industrial Committee”.

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