In a Full Bench of the Fair Work Commission, the Vice and Deputy Presidents applied recent decisions of the High Court to determine that a Deliveroo delivery worker, Mr Franco, was not an employee and was an independent contractor.  The matter in question is Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156.

The full bench, when applying the rationale in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2, found that on a strict interpretation of the terms of the agreement to carry out work, Mr Franco was a contractor and not an employee.

The full bench did say that had they applied the multifactorial test which applied before Jamsek, it would have concluded that Mr Franco was an employee.

In light of the recent extended lockdown in Sydney, and the new short lockdown in Melbourne, the question again arises in relation to whether an employer can require its workers to be vaccinated against the COVID‑19 virus.

There are a myriad of discretionary issues for an employer to step through in determining whether it can direct its workers to be vaccinated; as well as what steps an employer can take if the worker refuses to follow such a direction.