Workplace Express, Friday 10th August 2001
The High Court has ruled that a courier company was vicariously liable for injuries its bicycle courier inflicted on a pedestrian, because the courier was an employee rather than an independent contractor.
In a judgment handed down yesterday, a High Court majority overturned a 1999 ruling by a NSW Court of Appeal majority, which found that Vabu Pty Limited, trading as Crisis Couriers, was not vicariously liable for the injuries caused by one of its bicycle couriers, because the courier was an independent contractor and the principal was not responsible for torts perpetrated by his or her independent contractor.
The majority - Chief Justice Murray Gleeson and Justices Mary Gaudron, Bill Gummow, Michael Kirby and Kenneth Hayne - found that on the basis of the control test and other indicators, the bicycle couriers were clearly employees.
"Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations", the bench said.
The couriers had to arrive at work by 9am or go to the back of the queue for work, they couldn't refuse work, they were required to wear uniforms bearing Vabu's logo, they had no chance to negotiate their remuneration (rates hadn't changed between 1994 and 1998, according to evidence) and had restrictions on when they could take annual leave.
The majority said the requirement for the couriers to supply their own tools and equipment, "favours, if anything", a finding that they were employees. The requirement to provide bicycles wasn't contrary to an employment relationship, particulary given that the capital outlay was small and the bicycle could be used for other purposes - for personal transport and leisure.
Vabu also had substantial scope to exercise control, because it had control over allocation and direction of deliveries. Couriers had to deliver goods in the manner specified by Vabu and the company's business involved the "marshalling and direction of labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu's business".
"It would be unrealistic to describe the couriers other than as employees", the majority concluded.