Ka on lam v Doordash Technologies Australia Pty Ltd
[2023] FWC 1683
•12 JULY 2023
| [2023] FWC 1683 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ka on lam
v
Doordash Technologies Australia Pty Ltd
(C2022/6516)
| COMMISSIONER P RYAN | SYDNEY, 12 JULY 2023 |
Application to deal with contraventions involving dismissal – Whether applicant employee or independent contractor – Where applicant performed work as a delivery driver pursuant to a written agreement – Where agreement did not require deliveries to be made, did not control the manner in which deliveries were made, or prohibit provision of services to competitors – Where agreement permitted delegation to employees or subcontractors – Applicant independent contractor – application dismissed.
Introduction
This decision concerns an application by Ms Ka On Lam (Lam/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, Ms Lam states that she was employed by Doordash Technologies Australia Pty Ltd (Doordash/Respondent) from on or around 1 December 2021 until 1 September 2022. The Application was made on 23 September 2022.[1]
In its Form F8A Response, the Respondent objected to the Application on the ground that Ms Lam was not an employee and therefore was not “dismissed”. The Respondent stated that Ms Lam was engaged as an independent contractor to perform services pursuant to an independent contractor agreement.
The requirement for a “dismissal” (within the meaning of s.12 and s.386 of the FW Act) is a jurisdictional prerequisite to the making of a valid application pursuant to s.365. Where the respondent to a s.365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission exercising the powers conferred by s.368.[2]
Accordingly, I issued directions for the parties to file materials in support of, or in opposition to, the Respondent’s jurisdictional objection that Ms Lam was not dismissed as she was not an employee of Doordash.
The Respondent filed written submissions as well as a witness statement of Mr Syed Wahid, the Respondent’s Senior Manager, Strategy and Operations (Exhibit R1).
The Applicant filed written submissions, as well as a witness statement (Exhibit A1) and a “Tender Bundle” of Documents (Exhibit A2).
The matter was heard on 25 January 2023. The Applicant represented herself, assisted by a Cantonese interpreter. The Respondent was granted permission to be represented by a lawyer as I was satisfied as to the matters set out in s.596(2)(a) and (b) of the FW Act.[3] The Respondent was represented by Mr W Spargo.
After receiving the evidence and the Respondent’s closing submissions in chief, directions were issued for the Applicant to provide her closing submissions, and the Respondent to provide any submissions in reply, in writing.
For the reasons that follow, I have determined that Ms Lam has not satisfied the jurisidictional prerequisite, as she was not an employee of Doordash at the time her engagement with Doordash was terminated.
Applicable Legal Principles
The applicable legal principles to determine whether a person is an employee or an independent contractor were considered by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[4] (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[5](Jamsek).
In JMC Pty Limited v Commissioner of Taxation[6], Wigney J summarised the fundamental principles established by Personnel Contracting and Jamsek as follows:
17. First, where the rights and duties of the parties are comprehensively committed to a written contract, the legal rights and obligations established by the contract are decisive of the character of the relationship provided that the validity of the contract has not been challenged as a sham, or that the terms of the contract have not been varied, waived or are subject to an estoppel: Personnel Contracting at [43], [44], [47], [59] (Kiefel CJ, Keane and Edelman JJ), [172] (Gordon J, Steward J relevantly agreeing at [203]). The task is to construe and characterise the contract made between the parties at the time it was entered into: Personnel Contracting at [174] (Gordon J).
18. Second, in order to ascertain the relevant legal rights and obligations, the contract of employment must be construed in accordance with the established principles of contractual interpretation: Personnel Contracting at [60] (Kiefel CJ, Keane and Edelman JJ), [124] (Gageler and Gleeson JJ), [173] (Gordon J). In that respect, regard may be had to the circumstances surrounding the making of the contract, as well as to events and circumstances external to the contract which are objective, known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract: Personnel Contracting at [174]-[175] (Gordon J); Jamsek at [61] (Kiefel CJ, Keane and Edelman JJ), referring to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352. The nature of the specific job that the putative employee applied for and the nature and extent of any tools or equipment they have to supply for that job may also be relevant: Personnel Contracting at [175] (Gordon J). It is, however, generally not legitimate to use in aid of the construction of a contract anything which the parties said or did after it was made: Personnel Contracting at [176] (Gordon J).
19. Third, and flowing from the first two principles, the characterisation of the relationship between the parties is not affected by circumstances, facts or occurrences arising between the parties that have no bearing on their legal rights: Personnel Contracting at [44] (Kiefel CJ, Keane and Edelman JJ), [173]-[178] (Gordon J); Jamsek at [109] (Gordon and Steward JJ). A “wide-ranging review of the entire history of the parties’ dealings” is neither necessary nor appropriate: Personnel Contracting at [59] (Kiefel CJ, Keane and Edelman JJ); see also [185]-[189] (Gordon J). For a “matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties”: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ) (emphasis added).
20. It follows that the fact that the parties’ subsequent conduct may not have precisely aligned with their contractual rights and obligations, or the fact that a particular contractual right may have never been exercised or utilised, will generally be irrelevant when it comes to characterising the relationship. That is so unless the manner in which the parties conducted themselves after entering into the contract was such as to establish that the contract was a sham, or that the contract had been varied, or that certain rights under the contract were subject to an estoppel.
21. Fourth, the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control: Personnel Contracting at [113] (Gageler and Gleeson JJ); [174] (Gordon J), referring to Brodribb at 24 (Mason J); see also 36-37 (Wilson and Dawson JJ).
22. In Brodribb, Wilson and Dawson JJ said (at 36-37) that the indicia which suggested an employment relationship included “the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like”, whereas those that suggested a contract for services included “work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax”. Their Honours were, however, careful to note (at 37) that “any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant”. It should also be emphasised that the list of possible indicia must now be approached on the basis that the focus is on the parties’ contractual rights and obligations relevant to those matters, at least where the contract is wholly in writing, not on the way in which the work was actually carried out.
23. Fifth, the characterisation of the relationship as one of service or employment involving an employer and employee, as opposed to a relationship involving an independent contractor providing services to a principal, often hinges on two considerations. The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work: Personnel Contracting at [73]-[74] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); see also Brodribb at 24 (Mason J) and 36-37 (Wilson and Dawson JJ). The second is the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer – the so-called “own business/employer’s business” dichotomy: Personnel Contracting at [36]-[39] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); cf [180]-[183] (Gordon J). Neither of those considerations are determinative and both involve questions of degree.
24. As for the element of control, “the existence of a right of control by a putative employer over the activities of a putative employee serves to sensitise one to the subservient and dependent nature of the work of an employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services”: Personnel Contracting at [73] (Kiefel CJ, Keane and Edelman JJ).
25. As for the “own business/employer’s business” dichotomy, it also “usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise”: Personnel Contracting at [39] (Kiefel CJ, Keane and Edelman JJ); cf [180]-[182] (Gordon J). Another way of framing the question, which focusses more directly on the terms of the contract, is whether the person “is contracted to work in the business or enterprise of the purported employer”: Personnel Contracting at [183] (Gordon J) (emphasis in original). One consequence of answering that question in the negative may be that the person is not an employee.
26. Sixth, a “label” which the parties may have chosen to describe their relationship is not determinative of the nature of the relationship and will rarely assist the court in characterising the relationship by reference to the contractual rights and duties of the parties: Personnel Contracting at [63]-[66] (Kiefel CJ, Keane and Edelman JJ); [127] (Gageler and Gleeson JJ); [184] (Gordon J). The parties’ “legitimate freedom to agree upon the rights and duties which constitute their relationship” does not “extend to attaching a ‘label’ to describe their relationship which is inconsistent with the rights and duties otherwise set forth” – to permit otherwise would elevate the freedom to “a power to alter the operation of statute law to suit ... the interests of the party with the greater bargaining power”: Personnel Contracting at [58] (Kiefel CJ, Keane and Edelman JJ).
27. The characterisation of a relationship as being either one of employer and employee, or one involving the engagement of an independent contractor, is ultimately an evaluative judgment that takes into account the totality of the parties’ contractual rights and obligations. The exercise may not necessarily be straightforward because, in some cases at least, the parties’ contractual rights and obligations may point in different directions. The evaluative exercise also should not be approached on the basis that there is some checklist against which ticks and crosses may be placed so as to produce the right answer. Some degree of uncertainty is unavoidable, particularly in the case of many modern-day work or service contracts.
In Chambers and O’Brien v Broadway Homes Pty Ltd[7] (Broadway Homes), a Full Bench of the Commission provided the following summary of the key propositions in Personnel Contracting:
(1) When characterising a relationship regulated by a wholly written, comprehensive contract which is not a sham or otherwise ineffective, the question is to be determined solely by reference to the rights and obligations under that contract. It is not permissible to examine or review the performance of the contract or the course of dealings between the parties (Personnel Contracting at [40]-[62], [172]-[178] and [203]).
(2) The subsequent conduct of the parties may be considered to ascertain the existence of variation of contractual terms (Personnel Contracting at [42], [45], [177]-[178], [188]-[190] and [203]).
(3) The multifactorial approach only has relevance in respect of the required assessment of the terms of the contract (Personnel Contracting at [33]-[34], [47], [61], [174], [186-[189] and [203]).
(4) It is necessary to focus on those aspects of the contractual relationship which bear more directly upon whether the worker’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. The question is: whether, by the terms of the contract, the worker is contracted to work in the business or enterprise of the purported employer (Personnel Contracting at [39], [180]-[186] and [203]).
(5) Existence of a contractual right to control the activities of the worker (including how, where and when the work is done) is a major signifier of an employment relationship (Personnel Contracting at [73]-[74], [113]-[114] and [121]).
(6) The label or characterisation placed on the relationship by the contract is not relevant even as a “tie breaker”, or at least it is not determinative (Personnel Contracting at [58], [63]-[66] and [79], [127], [184] and [203]).[8]
The summary in Broadway Homes was adopted by a Full Bench of the Commission Deliveroo Australia Pty Ltd v Diego Franco[9] (Deliveroo). To that summary, the Full Bench in Deliveroo added the following further proposition to the above summary:
…that a contractual freedom on the part of the party performing the relevant work to accept or reject any offer of work and to work for others is not necessarily a contraindication of employment and may rather be consistent with casual employment.[10]
Relevant Background and Applicable Contract
Doordash is a technology company that operates an online marketplace facilitating the purchase and delivery of food and goods between merchants and customers (Doordash Platform). Doordash engages “Dashers” to perform the delivery of items ordered through the Doordash Platform.[11]
In broad terms, the Doordash Platform facilitates a delivery as follows:
· A customer, using an electronic device, places an order for food or other goods that are advertised by merchants;
· Upon being notified of the order, a merchant can either accept or reject the order;
· If the order is accepted by the merchant, the Doordash Platform uses an algorithm to determine which Dasher is best placed to complete the delivery of the order and notifies that Dasher of the opportunity to complete the delivery, which the Dasher can accept or reject. If that Dasher does not accept the delivery opportunity within a set period, the Doordash Platform assigns the delivery opportunity to the next best placed Dasher;
· If the delivery opportunity is accepted, the Dasher will collect the order from the merchant and deliver it in accordance with customer’s instructions.[12]
When a person wishes to become a Dasher, they access the Doordash Platform and:
· create an account with Doordash using their name, address, telephone number, email address and a password;
· supply an Australian Business Number;
· supply relevant details in order for Doordash to obtain/conduct a National Police Check and a Right to Work Check; and
· review and confirm whether they accept the terms set out in Doordash’s Independent Contractor Agreement – Australia.[13]
Upon creation of an account, a Dasher is assigned a unique identification number within Doordash’s management system.[14]
It is clear on the evidence of both parties that the Applicant established a Dasher account and accepted the terms of Doordash’s Independent Contractor Agreement – Australia (2021 Agreement) on 1 December 2021.[15] A copy of the 2021 Agreement is attached to the statement of Mr Wahid.[16]
Despite her evidence that she accepted the terms of the 2021 Agreement, in her closing written submissions, the Applicant submitted that as she is from a non-English speaking background, she did not “fully” understand the 2021 Agreement because she did not read the entire document and relied on Google Translate to assist her.[17] I do not accept that affects the Applicant’s acceptance of the 2021 Agreement for the following reasons. First, it is contrary to her evidence that she commenced performing work on 1 December 2021 as a Dasher in accordance with the terms of the 2021 Agreement, and contrary to her evidence of her understanding of those terms at that time.[18] Second, it is well established that a person who signs a contractual document conveys a representation to a reasonable reader of that document that the person has read and approved its terms or is willing to take the chance of being bound by its contents.[19] Third, even if the Applicant’s difficulty with the English language was accepted as a special disability, there is no evidence that Doordash knew of the disability or took advantage of it.[20] Accordingly, as at 1 December 2021, the 2021 Agreement applied to the parties.
Following the establishment of her account, the Applicant commenced accepting delivery opportunities as a Dasher using a motor vehicle to perform deliveries.[21]
The Applicant stated that she was provided with a Doordash branded thermal bag/insulated box for the purpose of completing delivery opportunities.[22] Mr Wahid agreed that a Doordash branded bag was provided to some Dashers and merchants, he stated that ultimately the equipment used by a Dasher is a matter for them to determine.[23]
In July 2022, Doordash distributed a replacement independent contractor agreement for Dashers (2022 Agreement).[24] A copy of the 2022 Agreement was attached to the statement of Mr Wahid.[25]
Where Doordash proposes a variation or replacement agreement for a Dasher, the proposed terms are provided to the Dasher/s through the Doordash Platform. In his evidence before the Commission, Mr Wahid stated that to confirm acceptance, a Dasher must click or tick a box on the Doordash Platform recording their acceptance[26] and that the Doordash Platform will not allow a Dasher to accept any further delivery opportunities until they have confirmed their acceptance of the new terms.[27]
The business records of Doordash reveal that the Applicant, by reference to her Dasher ID Number, accepted the terms of the 2022 Agreement via the Doordash Platform on 29 July 2022.[28]
In her (pre and post hearing) written submissions, the Applicant disputes that she accepted the terms of the 2022 Agreement and states that she was not aware of any replacement agreement (or variation).[29] However, during the course of the hearing the Applicant gave conflicting evidence. The Applicant initially stated that she did not understand that by ticking the box she had agreed to the 2022 Agreement,[30] before stating that she could not recall whether she had ticked the box confirming acceptance of the 2022 Agreement at all.[31]
Having regard to the evidence before me, I do not accept the Applicant’s submissions that she was not aware of, and therefore did not agree to, the 2022 Agreement for the following reasons. First, the Applicant’s evidence that she did not understand that by ticking the box she had agreed to those terms or could not recall whether she had in fact ticked the box demonstrates that she was aware of, and had access to, the 2022 Agreement. Second, her evidence that she did not understand that ticking the box means acceptance of the document is inconsistent with her evidence in relation to her acceptance of the 2021 Agreement, which was actioned by her in the same manner through the Doordash Platform. Third, the business records are clear and identify that the Applicant agreed to the 2022 Agreement on 29 July 2022. Fourth, as noted above, it is well established that a person who signs a contract is bound by its contents, whether or not the person has read or understood its terms.[32] Fifth, the Applicant continued to access the Doordash Platform and accept delivery opportunities after 29 July 2022,[33] which the Doordash Platform would not allow unless the 2022 Agreement was accepted.
Accordingly, I find the Applicant accepted the terms of the 2022 Agreement, the effect of which was to wholly replace and supersede the 2021 Agreement.[34] It follows that the 2022 Agreement applied to the parties from 29 July 2022 until 1 September 2022, when Doordash deactivated the Applicant’s Dasher Account,[35] subject to it not being varied by subsequent conduct, a sham, or otherwise ineffective.
Summary of the Respondent’s Submissions
The Respondent referred to Personnel Contracting and submitted that while the multifactorial approach still applies by reference to the totality of the relationship to determine if someone is a contractor or an employee, that assessment must now be made based on the terms of the written contract alone where there is a comprehensive contract between the parties, and that it is impermissible to look at how the contract has been performed in reality.
The Respondent submitted that Personnel Contracting has been applied in a number of cases before the Commission, the most relevant of which is the decision of a Full Bench of the Commission in Deliveroo.
The Respondent submitted that in Deliveroo, the Full Bench stated that there were four matters in the agreement in that case which weighed decisively in favour of the conclusion that the applicant was in an independent contracting relationship: control, equipment, delegation, and payment.
The Respondent submitted that in relation to control, the circumstances of this matter are nearly identical to those in Deliveroo in that under the terms of the 2022 Agreement:
· The Applicant is free to select the times she is available to receive Delivery Opportunities and has the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed (Introductory Text);
· The Applicant is solely responsible for determining how to operate its business, whether to accept any delivery opportunity and how to perform the Contracted Services (Clause 1, Part II);
· The Applicant agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner and that the Applicant is solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection (Clause 3, Part II);
· The Applicant is not obligated to perform any particular number or volume of Contracted Services (Clause 1, Part 1)
· The Respondent cannot control the manner or means by which the Applicant performs delivery services including that it does not require any specific type or quality of transportation, does not impose any supervisor or direct report, does not require signage or other designation, does not have any control over the Applicant’s personal appearance and does not undertake performance evaluations (Clause 5, Part III).
The Respondent submitted that the observation of the Full Bench in Deliveroo, that the principal had less control than the principal in Jamsek is apposite in this case.
In relation to equipment, the Respondent referred to Part VIII of the 2022 Agreement and submitted that while there was no requirement to provide any particular quality of transportation, the opportunity or potential for the Applicant to provide a significant asset is a factor that weighs in favour of the Applicant being an independent contractor and not an employee.
In relation to delegation, the Respondent referred to Part IX of the 2022 Agreement and submitted that there is a right to delegate to employees and/or sub-contractors. The Respondent submitted that the absence of a contractual requirement for the Contracted Services to be personally performed is a powerful indicator in favour of the Applicant being an independent contractor and not an employee, particularly where the power is unlimited. In support of this submission, the Respondent cited the decision in Australian Mutual Provident Society v Chaplin[36].
In relation to payment, the Respondent submitted that the Applicant was paid by results and not for time worked which is typical of a principal and contractor relationship. The Respondent accepted that unlike Deliveroo the Applicant was not required to make an administrative services payment but referred to clause 6 of Part III which contemplates that a Dasher may have to pay a merchant upfront for a delivery order. The Respondent submitted that in applying the multifactorial approach this is another small factor which flows in the direction of the Applicant being an independent contractor but accepted that it is not decisive on its own.
The Respondent stated that clause 4 of Part II of the 2022 Agreement permits the Applicant to work for other business (including competitors) at any time, including simultaneously when working as a Dasher. The Respondent submitted this provision, as well as the Applicant being free to select the times she is available to receive Delivery Opportunities, are inconsistent with employment, even casual employment, and point towards the Applicant being an independent contractor and not an employee.
The Respondent accepted that only limited weight can be placed on matters that are consequential of the parties’ characterisation of their relationship such as insurance and taxation.
The Respondent cited the decision in Sarah Mandelson v Invidia Foods, Angelo Sperlinga, Richard Simiane[37] and submitted that while labels are not determinative, they should not be disregarded and are part of the overall assessment.
In relation to the Applicant’s use of a Doordash food thermal bag, the Respondent referred to Part VIII of the 2022 Agreement and submitted that it is subsequent conduct and regard cannot be had to it.
The Respondent submitted that all the rights and obligations of the parties as determined by the 2022 Agreement weigh in favour of the Applicant being an independent contractor and not an employee.
Summary of the Applicant’s Submissions
The Applicant submitted that the determination of whether a worker is an employee or an independent contractor is based on the facts of the specific work arrangement and not simply the label that the parties give to the relationship.
The Applicant submitted that the key factors that determine the status of a worker include the level of control the employer has over the worker, the level of skill required, and other factors.
The Applicant submitted that an employer typically has control in terms of directing the Applicant on what do to, when to do it and how to do it. Conversely, an independent contractor generally has more control over their work and how they complete it. The Applicant submitted that the Respondent exercised control through the use of the Doordash Platform.
The Applicant referred to five issues that she submits are relevant to the determination of the Respondent’s jurisdictional objection.
First, whether the Applicant was an employee or an independent contractor involves a determination of whether the Applicant served other businesses or whether she performed her own work as part of an independent trade or business. Second, there was an obligation upon her to complete work in order to maintain an acceptable rating on the Doordash Platform. Third, the Respondent had considerable capacity to give directions to Dashers. Fourth, in relation to delegation, the Applicant submitted that she was an employee. Fifth, that the true and proper characterisation of the relationship was not reflected by the terminology in the contract document.
The Applicant submitted that her arrangement with Respondent was a sham and contrary to the provisions of Division 6 of Part 3-1 of the FW Act as the Respondent misrepresented the true nature of the relationship.
The Applicant submitted that the effect of her not agreeing to the 2022 Agreement was that the 2021 Agreement ceased and expired and therefore she was an employee in the period from July 2022 until 1 September 2022.
Finally, I observe that a large part of the Applicant’s submissions focused on matters which were not relevant to the determination of the jurisdictional objection, including the merits of the Application and a contention that the Respondent breached its obligations to the Applicant pursuant to the Work, Health and Safety Act 2011 (NSW) following her reporting an incident of alleged harassment by customer.
Summary of the Respondent’s Submissions in Reply
The Respondent reiterated its submissions that the 2022 Agreement applied as at 1 September 2022. However, in the alternative, the Respondent submitted that if it is found that the Applicant did not accept the terms of the 2022 Agreement, then the terms of the 2021 Agreement applied.
The Respondent submitted that its submissions regarding the nature of the relationship created by the 2022 Agreement apply equally to the 2021 Agreement.
The Respondent submitted that there is no basis to conclude that the 2021 Agreement ceased and expired as a consequence of the Applicant’s contention that she did not accept the 2022 Agreement.
The Respondent submitted that the Applicant’s contention that either agreement was a sham contract is not supported by any evidence and that the sham arrangements in Division 6 of Part 3-1 of the FW Act are not relevant to the jurisdictional issue before the Commission.
The 2022 Agreement
The 2022 Agreement is set out in full and attached as Attachment A to this decision. Without detracting from the full terms of the 2022 Agreement the following provisions are relevant to the characterisation of the relationship between the parties.
In the introductory text, the 2022 Agreement states:
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the delivery service is contemplated by this Agreement, and DoorDash Technologies Australia Pty Ltd (“DOORDASH”, “COMPANY” or “we”, “us” or “our”). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do perform any Contracted Services.
…
CONTRACTOR is an independent provider of delivery services, authorised to conduct the delivery services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates.
…
CONTRACTOR understands (i) they are free to select the times it wishes to be available on the platform to receive delivery opportunities; (ii) they are free to negotiate their compensation and are free to accept or reject the opportunities transmitted through the DOORDASH platform by consumers and can make such decisions to maximize its opportunity to profit; and (iii) it has the sole right to control the manner in which deliveries are performed in the means by which those deliveries are completed.
Part I. Purpose of the Agreement, states:
·Clause 1:
…Nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
·Clause 2:
CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered through the DOORDASH platform.
In Part II. Contractor’s Operations, the following provisions are relevant:
· Clause 1:
…As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate its business, whether to accept any Delivery Opportunity and how to perform the Contracted Services.
· Clause 3:
CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. DOORDASH shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
· Clause 4:
…The parties recognise that they are or may be engaged in similar arrangements with other businesses to supply the same or similar services and nothing in this Agreement shall prevent CONTRACTOR or DOORDASH business with others. DOORDASH does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at anytime, even if such business directly competes with DOORDASH, and even during the time CONTRACTOR is logged into the DOORDASH platform subject to these services for other businesses not otherwise breaching this Agreement. CONTRACTOR’s right to compete with DOORDASH, or perform services for businesses that compete with DOORDASH, will survive even after termination of this Agreement.
· Clause 5:
CONTRACTOR is not required to (and does not) purchase, lease, or rent any products, equipment or services from DOORDASH as a condition of doing business with DOORDASH or entering into this Agreement.
In Part III. Contract Services, the following provisions are relevant:
· Clause 1:
…CONTRACTOR agrees by logging into the DOORDASH platform as a Dasher, CONTRACTOR is making themselves available to receive Delivery Opportunities, which CONTRACTOR may accept or reject.
· Clause 2:
…CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR’s reasonable discretion and business judgement, it is appropriate to do so.
· Clause 3:
CONTRACTOR acknowledges that DOORDASH has discretion as to which, if any, Delivery Opportunity to present to CONTRACTOR, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
· Clause 5:
…However, under no circumstances shall DOORDASH be authorised to control the manner or means by which CONTRACTOR performs delivery services. This includes, but is not limited to, the following:
a. DOORDASH does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
b. CONTRACTOR does not have a supervisor or any individual at DOORDASH to whom they report.
c. CONTRACTOR is not required to use any signage or other designation of DOORDASH on his or her vehicle or person at any point in their use of the platform to perform the Contracted Services.
d. DOORDASH has no control over CONTRACTOR’s personal appearance.
e. CONTRACTOR does not receive regular performance evaluations by DOORDASH.
Part V. Relationship of Parties provides as follows:
1. The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee between DOORDASH and CONTRACTOR nor between DOORDASH and any of CONTRACTOR’s Personnel. The parties are not employees, agents, joint ventures, or partners of each other for any purpose. Neither party shall have the right to bind the other party by contract or otherwise except as specifically provided in this Agreement.
2. DOORDASH shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in DOORDASH have been inserted solely for the safety of consumers and other CONTRACTORS using the DOORDASH platform or to achieve compliance with all applicable laws.
Clause 1 of Part VIII. Equipment and Expenses, provides as follows:
CONTRACTOR represents that it has or can lawfully acquire all equipment, including vehicles and food thermal bags (“Equipment”) necessary for performing contracted services, and CONTRACTOR is solely responsible for ensuring that any vehicle used conforms to all vehicle laws pertaining to registration, safety, equipment, inspection, and operational capability.
In Part IX. Personnel, the following provisions are relevant:
· Clause 1:
…CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services.
· Clause 4:
CONTRACTOR and its Personnel shall not be required to wear a uniform or other clothing of any type bearing DOORDASH’s name or logo.
Consideration
As set out above, I have found that the Applicant accepted the 2022 Agreement and that it applied at the time of her termination. Notwithstanding the Applicant’s contentions regarding her (lack of) acceptance which I have dealt with above, the Applicant did not contend that her arrangement with the Respondent was not, upon commencement in December 2021 or at any time thereafter, including following her acceptance of the 2022 Agreement, regulated otherwise than by a wholly written comprehensive contract. Indeed, the Applicant referred the 2021 Agreement as “a standard formal agreement that was used to record the fundamental terms of the engagement.”[38]
While the Applicant did not contend that either the 2021 Agreement or 2022 Agreement were varied as a result of any subsequent conduct of the parties, the Applicant stated that she was provided with a Doordash branded thermal bag for the purpose of completing delivery opportunities. It is not clear when the thermal bag was provided to the Applicant, but it appears it was provided around the time she commenced performing work for the Respondent and prior to 29 July 2022.[39]
Irrespective of when the thermal bag may have been provided, I do not consider the provision of it is subsequent conduct evidencing a variation of either the 2021 Agreement or the 2022 Agreement. There was no evidence that the thermal bag must be used, or that the Applicant would not be offered Delivery Opportunities in the absence of using the branded thermal bag. The provision of the thermal bag is a matter that goes to the performance of the contract and cannot be taken into consideration.[40]
The 2022 Agreement is comprehensive and complete.[41] In the absence of any subsequent conduct giving rise to a variation, I am satisfied, and so find, that the 2022 Agreement represents a wholly written comprehensive contract regulating the arrangement between the parties. I am also satisfied that the 2022 Agreement was not a sham or otherwise ineffective. While the Applicant contends her arrangement with the Respondent was a sham and referred to the provisions set out in Division 6 of Part 3-1 of the FW Act, those provisions do not provide guidance about the approach to be adopted to determining whether an arrangement is a sham.[42] Rather, the approach to “sham” arrangements was summarised by the Full Bench in Deliveroo as follows:
In Equuscorp Pty Ltd v Glengallan Investments, the High Court said that “sham” refers to “steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences”. The important point is that the requisite intention must be that of both parties to the ostensible contract, usually if not always with the objective of deceiving a third party.[43]
The Applicant did not lead any evidence in support of her submission that the 2022 Agreement was a sham contract. In the absence of any evidence that both parties intended to enter into a sham contract, this submission cannot be accepted.[44]
Accordingly, I find that at the time of the Applicant’s termination, the relationship between the parties was regulated by the 2022 Agreement – a wholly written comprehensive contract which is not a sham, was not varied, and is not otherwise ineffective.
Therefore, and consistent with Personnel Contracting, the analysis of the question of whether Ms Lam was an employee of Doordash at the time of her termination must proceed by reference to the terms of the 2022 Agreement.
What are the rights and obligations under the 2022 Agreement?
Having regard to the key propositions in Personnel Contracting set out above, I now turn to a consideration of those contractual provisions that are relevant to determining the nature of the relationship between the parties.[45]
Control: whether the putative employer has the right to control how, where and when the putative employee performs the work
Despite registering as a Dasher, the Applicant is not required to perform any Contract Services (Introductory Text). If the Applicant does perform Contracted Services, the Applicant has the right to select the times and the geographic location where she would operate and the right to select the mode or quality of transportation to be used to perform the Contracted Services (Introductory Text; Clause 5(a), Part III). The Applicant is not under any obligation to accept a delivery opportunity (Clause 2, Part I), nor is the Applicant required to complete a particular volume of deliveries or guaranteed to receive a particular volume of delivery opportunities (Clause 1, Part I).
If the Applicant accepts a delivery opportunity, then the Applicant is required to complete the delivery unless the Applicant cancels the delivery opportunity, which can only occur if it is appropriate to do so (Clause 2, Part I; Clause 2, Part III). In completing a delivery, the Applicant has the right to determine the method of pick-up and delivery, as well as the route selection, subject only to the delivery being undertaken in a timely, efficient, safe and lawful manner (Clauses 1 and 3, Part II). In this respect, the 2022 Agreement states that Doordash does not have a contractual right to, and shall not, control the manner, method or means that the Applicant uses to perform a delivery (Clause 3, Part II; Clause 2, Part V). The Applicant also had the right to perform delivery services to other businesses (including competitors) during the same period in which the Applicant is available on the Doordash Platform (Clause 4, Part II.).
I do not accept the Applicant’s submission that there was an obligation upon her to complete a particular volume of work in order to maintain an acceptable rating on the Doordash Platform.[46] The completion rate only applies where the Applicant accepts a delivery opportunity and measures whether it is completed.[47] The customer rating allows customers to rate Dashers based on matters such as timeliness and professionalism.[48] As the Full Bench observed in Deliveroo:
such requirements constitute the standards to be met in the performance of services under the 2019 Agreement rather than any power conferred on Deliveroo to control the way in which services are to be performed. Performance standards of this nature are entirely consistent with an independent contracting arrangement.[49]
The terms of the 2022 Agreement indicate a lack of control by Doordash over whether the Applicant actually performs any work, and if so, the manner of performance of deliveries which the Applicant agrees to undertake. This aspect weighs strongly in favour of the conclusion that the Applicant was an independent contractor.
Own business/putative employer’s business
This aspect focuses attention on the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer and whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise.[50]
In Personnel Contracting Gordon J, with whom Steward J agreed, stated:
[183] The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer. That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct. A consequence of a negative answer to that alternative question may be that the person is not an employee.[51]
(emphasis in original)
The terms of the 2022 Agreement provide the Applicant with the right to enter into the contract as an individual or a corporate entity (Introductory Text), the right to delegate the performance of some or all of the Contracted Services to employees or sub-contractors (Clause 1, Part IX), the right to perform delivery services to other businesses (including competitors), and the right to do so during the same period in which the Applicant is available on the Doordash Platform (Clause 4, Part II.). Furthermore, the terms of the 2022 Agreement do not require the Applicant to wear a uniform or other clothing bearing Doordash’s name or logo (Clause 4, Part IX), nor do they require the Applicant to use any signage or other designation of Doordash on her vehicle or person (Clause 5(c), Part III).
While the method of communicating availability on the Doordash Platform and receiving and accepting a delivery opportunity may point towards the work of the putative employee being performed as an employee of the putative employer’s business, this needs to be viewed against those terms of the 2022 Agreement permitting the Applicant to perform delivery services for other businesses (including competitors) concurrently or otherwise, and perform those services personally or through employees and sub-contractors.
In Personnel Contracting Steward J stated:
…care should be taken before concluding that even very unskilled or simple activities are not capable of constituting a business. A business can arise from limited activities which are passive in nature and can exist in the absence of any entrepreneurial skill.[52]
Having regard to the terms of the 2022 Agreement, I do not consider the work performed by the Applicant was so subordinate to Doordash’s business that it can be seen to have been performed as an employee of Doordash. Accordingly, the better question posed by Justice Gordon in Personnel Contracting must be answered in the negative.
Equipment
The terms of the 2022 Agreement provide that while Doordash does not require any specific type or quality of transportation, the Applicant is responsible for all costs and expenses relating to the performance of the Contracted Services and the equipment used. The 2022 Agreement defines “equipment” to include vehicles and food thermal bags. (Clause 5(a), Part III; Part VIII.). The 2022 Agreement also required the Applicant to have access to a computer with particular software and internet capabilities (Clause 3, Part XX.).
The 2022 Agreement clearly contemplates that the Applicant may provide a substantial item of mechanical equipment and will be responsible for all costs and expenses relating to the provision and use of that equipment.
In Jamsek, Gageler and Gleeson JJ, stated:
Where work contracted for, actually performed by an individual, and paid for, involves use of a substantial item of mechanical equipment for which the provider of the work is wholly responsible, the personal is overshadowed by the mechanical. That was recognised by this Court in Humberstone v Northern Timber Mills and again in Wright v Attorney-General for the State of Tasmania. Those cases were cited as authorities for that proposition in Neale v Atlas Products (Vic) Pty Ltd; they support what has become the “conventional view” that “owners of expensive equipment, such as [a truck], are independent contractors”.[53]
Accordingly, this factor points towards a conclusion that the Applicant was an independent contractor.
Delegation
The terms of the 2022 Agreement do not require personal service. The Applicant has the right to engage employees and/or sub-contractors to perform some or all of the Contracted Services (Clause 1, Part IX.). The Applicant does not require the approval of the Respondent to do so but must ensure through written agreement that each person engaged by the Applicant agrees to the terms of the 2022 Agreement and give notification of that to the Respondent (Clause 5, Part IX.).
This factor weighs strongly in favour of the conclusion that the Applicant was an independent contractor.
Payment
The 2022 Agreement provides for the Applicant to be paid by result on the basis of a payment for each accurate Contracted Service completed, rather than for time worked (Part VI.). The agreement also contemplates that the parties can negotiate a different rate of pay and that Doordash may offer additional payments (or increased rates) at specified times and/or in specified locations.
As observed in Deliveroo and Nawaz v Uber, while payment by results is generally consistent with an independent contractor arrangement, it is not necessarily inconsistent with employment.[54]
I consider this factor points more towards the Applicant being an independent contractor than an employee. However, I accept the Respondent’s submission that it is not determinative on its own.
Taxation and Insurance
In many cases involving the issue of whether a person is an employee or independent contractor, the terms of the contract dealing with taxation and insurance are merely reflective of the label given to the arrangement by the parties, rather than the substance of the arrangement.[55]
Unsurprisingly, the terms of the 2022 Agreement which deal with the taxation and insurance arrangements are consistent with a principal and independent contractor relationship (Parts IX. and X.). While these matters are relevant to the totality of the relationship between the parties, I do not place significant weight on them.
Holidays and entitlements
The terms of the 2022 Agreement clearly state in bold that the Applicant is not entitled to wages annual leave, personal leave, long service leave, superannuation, or any other employment related entitlements, which is not consistent with employment (Clause 2, Part IX.).
As with the issues of taxation and insurance, I consider these matters to be relevant, but not determinative.
Labels
The 2022 Agreement clearly labelled the parties as principal and independent contractor and stated that the parties intend for the agreement to create the relationship of principal and independent contractor and not that of employer and employee (Clause 1 of Part V.).
I accept the Respondent’s submission that that while labels are not determinative, they should not be disregarded and are part of the overall assessment of the relationship.[56]
Uniform and livery
The terms of the 2022 Agreement do not require the Applicant to wear a uniform or other clothing bearing Doordash’s name or logo (Clause 4, Part IX), nor do they require the Applicant to use any signage or other designation of Doordash on her person or any vehicle (Clause 5(c), Part III). I consider this a neutral factor.
Profession, trade or distinct calling
I accept that the work involved in performing the Contracted Services is not unskilled. However, it is not a profession, trade or distinct calling. This factor points towards an employment relationship.
Evaluative Judgment
Having regard to the totality of the relevant contractual rights and obligations in the 2022 Agreement, my evaluative judgment is that the Applicant was engaged by Doordash as an independent contractor.
The factors pointing towards a conclusion that the Applicant was an independent contractor significantly outweigh those pointing towards employment, particularly the issues of control, delegation and equipment. In this respect, I concur with the submissions of the Respondent that these factors are very similar, if not identical, to those matters in Deliveroo which the Full Bench considered weighed decisively in favour of an independent contracting relationship.
Furthermore, and as stated above, the work performed by the Applicant under the terms of the 2022 Agreement was not so subordinate to Doordash’s business that it can be seen to have been performed as an employee of Doordash.
Alternative finding - 2021 Agreement
In the event my finding that the Applicant’s acceptance of the 2022 Agreement is wrong, I find that the terms of the 2021 Agreement applied as at the time of the Applicant’s termination and that it is a wholly written comprehensive contract regulating the arrangement between the parties, that is not a sham, was not varied, and is not otherwise ineffective.[57] Furthermore, I reject the Applicant’s submission that the 2021 Agreement ceased or expired automatically as a consequence of her not accepting the 2022 Agreement cannot be accepted.
Having regard to the totality of the relevant contractual rights and obligations in the 2021 Agreement, my evaluative judgment is that the Applicant was engaged by Doordash as an independent contractor. In coming to this conclusion, I observe that the provisions of the 2021 Agreement relevant to the issues of control, own business/putative employer’s business, equipment and delegation, are identical to the corresponding provisions in the 2022 Agreement.
Conclusion
For the reasons set out above, Ms Lam has not satisfied the jurisdictional prerequisite, as she was not an employee of Doordash at the time her engagement with Doordash was terminated.
Accordingly, the Application must be dismissed. An Order[58] to that effect will be issued with this Decision.
COMMISSIONER
Appearances:
Ms K Lam, Applicant.
Mr W Spargo, solicitor for the Respondent.
Final Written Submissions:
Applicant: 17 February.
Respondent: 24 February.
Hearing details:
2023.
Sydney:
25 January.
ATTACHMENT A
(Original numbering and emphasis).
INDEPENDENT CONTRACTOR AGREEMENT – AUSTRALIA
DOORDASH DASHERS
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the delivery service is contemplated by this Agreement, and DoorDash Technologies Australia Pty Ltd (“DOORDASH”, “COMPANY” or “we”, “us” or “our”). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XII, AS IT REQUIRES THE PARTIES (UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF AGREEING TO THESE TERMS, AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU HAVE ACKNOWLEDGED THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XII, AND HAVE TAKEN THE TIME AND SORT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY ACCESSING THE DOOR DASH PLATFORM AS A-A, YOU AGREE TO BE BOUND BY (1) THIS AGREEMENT, (2) DOORDASH E-SIGN CONSENT AGREEMENT, (3) DOORDASH DASHER PRIVACY POLICY (https:(/help.doordash.com/dashers/s/privacy-policy-au?language=en AU), AND (4) DOORDASH CONSUMER TERMS OF SERVICE
(https:(/help.doordash.com/consumers/s/terms-and-conditions-au? language=en AU).
THE PARTIES
DOORDASH is a company that provides an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers (“DOORDASH platform” or “platform”). DOORDASH’s software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, DOORDASH software notifies contractors that a Delivery Opportunity is available and the DOORDASH software facilitates completion of the delivery. DOORDASH is not a restaurant, food delivery service, or food preparation business.
CONTRACTOR is an independent provider of delivery services, authorised to conduct the delivery services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates.
CONTRACTOR possesses all the equipment and personnel necessary to perform the delivery services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through DOORDASH’s platform.
CONTRACTOR understands and expressly agrees that it is not (nor any of the Contractor’s Personnel are, as defined below) an employee of DOORDASH or any restaurant, other business or consumer and that it is providing delivery services on its behalf and its business, not on behalf of DOORDASH.
CONTRACTOR understands (i) they are free to select the times it wishes to be available on the platform to receive delivery opportunities; (ii) they are free to negotiate their compensation and are free to accept or reject the opportunities transmitted through the DOORDASH platform by consumers and can make such decisions to maximize its opportunity to profit; and (iii) it has the sole right to control the manner in which deliveries are performed in the means by which those deliveries are completed.
In consideration of the above, as well as the mutual promises described herein, DOORDASH and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
This Agreement governs the relationship between DOORDASH and CONTRACTOR, and establishes the parties’ respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right an obligation to perform the “Contracted Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shell guarantee CONTRACTOR any particular volume of business for any particular time period.
CONTRACTOR Shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered through the DOORDASH platform. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications in the terms laid out in this Agreement.
II. CONTRACTOR’S OPERATIONS
CONRACTOR represents that it operates an independently established enterprise that provides delivery services, and that it satisfies all legal requirements necessary to perform the service contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate its business, whether to accept any Delivery Opportunity and how to perform the Contracted Services.
CONTRACTOR agrees to provide DOORDASH with information regarding the provision of the Contracted Services or information required under this Agreement that is true and accurate, and to promptly inform DOORDASH should any information require updating. CONTRACTOR must inform DOORDASH as soon as reasonably practicable if CONTRACTOR is (a) charged or convicted with a criminal offence or (b) there is a change to the CONTRACTORS eligibility to work in Australia or in any visa conditions or requirements.
CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. DOORDASH shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
As an independent business enterprise, CONTRACTOR retains the right to perform the services (whether delivery services or other services) for other businesses, and CONTRACTOR advertisers and holds themselves out to the general public as a separately establish business. The parties recognise that they are or may be engaged in similar arrangements with other businesses to supply the same or similar services and nothing in this Agreement shall prevent CONTRACTOR or DOORDASH business with others. DOORDASH does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at anytime, even if such business directly competes with DOORDASH, and even during the time CONTRACTOR is logged into the DOORDASH platform subject to these services for other businesses not otherwise breaching this Agreement. CONTRACTOR’s right to compete with DOORDASH, or perform services for businesses that compete with DOORDASH, will survive even after termination of this Agreement.
CONTRACTOR is not required to (and does not) purchase, lease, or rent any products, equipment or services from DOORDASH as a condition of doing business with DOORDASH or entering into this Agreement.
CONTRACTOR agrees to immediately notify DOORDASH in writing at if CONTRACTOR’s right to control the manner or method they use to perform the services differs from the terms contemplated in this Section.
When signing up to be a user of the DOORDASH platform, CONTRACTOR’s information will be used to create an account. CONTRACTOR may not sign up to be a Dasher more than once by creating multiple accounts.
CONTRACTOR acknowledges that when engaging with the DOORDASH platform on a mobile service, data usage and rates may apply. All costs associated with engaging on the DOORDASH platform are at the CONTRACTOR’s own cost.
By using the DOORDASH platform, CONTRACTOR also agrees to be bound by the DOORDASH Customer Terms of Service ( and that any breach of the DOORDASH Customer Terms of Service will be considered a breach of this Agreement. However, to the extent and express term of this Agreement is inconsistent with the DOORDASH Customer Terms of Service ( the terms of this Agreement shall prevail over the DOORDASH Customer Terms of Service ( to the extent of any inconsistency.
10. To prevent unauthorized access to CONTRACTOR’s account and to prevent unauthorized use of the DOORDASH platform, CONTRACTOR agrees to protect and keep confidential their email, phone number, password, or other means of accessing their account via the DOORDASH platform. CONTRACTOR Acknowledges that unauthorized use of the CONTRACTOR’s account, email, phone number and password could lead to financial loss and access to CONTRACTOR’s sensitive personal an account information. If CONTRACTOR discloses their account information, user ID, and/or password to any personal entity, CONTRACTOR assumes all risks and losses associated with such disclosure to the extent permissible under applicable laws. If CONTRACTOR believe someone may attempt to use or has accessed CONTRACTOR’s account without CONTRACTOR’s permission, or any other unauthorized use or security breach has occured, CONTRACTOR agrees to immediately notify us at
III. CONTRACTED SERVICES
From time to time, the DOORDASH platform will notify CONTRACTOR of the opportunity to complete deliveries from restaurants or other businesses to consumers in accordance with orders placed by consumers through the DOORDASH platform (each of these is referred to as a “Delivery Opportunity”). CONTRACTOR agrees by logging into the DOORDASH platform as a Dasher, CONTRACTOR is making themselves available to receive Delivery Opportunities, which CONTRACTOR may accept or reject. For each Delivery Opportunity accepted by CONTRACTOR (“Contracted Service”), CONTRACTOR agrees to retrieve the orders from restaurants or other businesses, ensure the order was accurately filled, and deliver the order to consumers in a safe and timely fashion without taking any action that would change the quality or presentation of the items being delivered and while adhering to reasonable expectations on food safety, quality and health standards as required by the restaurants or other businesses and/or applicable law. A Delivery Opportunity is considered complete when the order has been delivered to the ordering party, or, and only when applicable, placed in a designated area as selected by the consumer, in addition to any other task required for completion of the delivery. CONTRACTOR Agrees to timely marker delivery as completed through the DOORDASH platform upon delivery of the order to the ordering party.
CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, not DOORDASH, and represent the end result decide, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR’s reasonable discretion and business judgement, it is appropriate to do so. Notwithstanding the foregoing, CONTRACTOR agrees to maintain both a customer rating and a completion rate found here as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and DOORDASH shall have the right to terminate this Agreement and/or deactivate CONTRACTOR’s account.
CONTRACTOR acknowledges that DOORDASH has discretion as to which, if any, Delivery Opportunity to present to CONTRACTOR, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
CONTRACTOR warrants that CONTRACTOR is engaged in the CONTRACTOR’s own business, separate and apart from DOORDASH’s business, which is to provide an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
CONTRACTOR authorizes DOORDASH, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall DOORDASH be authorised to control the manner or means by which CONTRACTOR performs delivery services. This includes, but is not limited to, the following:
a. DOORDASH does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
b. CONTRACTOR does not have a supervisor or any individual at DOORDASH to whom they report.
c. CONTRACTOR is not required to use any signage or other designation of DOORDASH on his or her vehicle or person at any point in their use of the platform to perform the Contracted Services.
d. DOORDASH has no control over CONTRACTOR’s personal appearance.
e. CONTRACTOR does not receive regular performance evaluations by DOORDASH.
CONTRACTOR may use whatever payment method it chooses to purchase items to be delivered to consumers, including, but not limited to CONTRACTOR’s personal credit or debit card, cash or a prepaid card. CONTRACTOR may use, for CONTRACTOR’s convenience, the prepaid card solely for purchasing items to be delivered to consumers. If CONTRACTOR chooses to use his/her personal credit or debit card or cash, CONTRACTOR shall invoice DOORDASH on a weekly basis and DOORDASH agrees to pay all invoices within 10 days of receipt.
In the event CONTRACTOR fails to fully perform any Contracted Service (a “Service Failure”) due to CONTRACTOR’s action or omission, CONTRACTOR shall forfeit all or part of the agreed upon fee for that service. If CONTRACTOR disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the “Payment Disputes” provision below.
IV. CONTENT
Parts of the DOORDASH platform enable CONTRACTOR to provide feedback, text, photos, audio, video, information, and other content (collectively, “Content”). The CONTRACTOR assigns to DOORDASH all rights, title, interest, and all intellectual property, in any Content or other things created or developed by the CONTRACTOR or any subcontractor in the course of providing the Contracted Service, effective immediately on the creation or development of any such intellectual property and the CONTRACTOR grants DOORDASH a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, sub-licensable and transferable license to copy, modify, prepare derivative works of, distribute, publish and otherwise exploit, that Content, without limitation. The CONTRACTOR agrees to execute all documents and to do all acts and things DOORDASH may reasonably request to give full effect to its rights under this clause.
To the extent permitted by law, CONTRACTOR waives its Moral Rights (as defined in the Copyright Act 1968 (Cth)) with respect to any Content CONTRACTOR creates or contributes and CONTRACTOR unconditionally and irrevocably consents to DOORDASH (and all persons authorised by DOORDASH) (a) exercising any of the rights of an owner of copyright in the content without attribution to CONTRACTOR as the author or by attributing ownership to another person and (b) two using, reproducing, dealing with, modifying, doing, or omitting to do, anything which would have fringe or breach CONTRACTORs Moral Rights in the Content. CONTRACTOR irrevocably waves and agrees not to enforce any Moral Rights they may have in the Content. Where DOORDASH pays for the creation of Content or facilitates its creation, DOORDASH may own that Content, in which case supplemental terms or disclosures will say that.
If Content includes personal information, DOORDASH’s Privacy Policy describes how DOORDASH users that personal information and the CONTRACTOR agrees to DOORDASH using the Content, including any personal sensitive information, for other purposes to the fullest extent permissible under applicable laws.
CONTRACTOR is solely responsible for all Content that CONTRACTOR provides and warrants that CONTRACTOR either own it or is authorized to grant DOORDASH the rights described in these Terms. CONTRACTOR is responsible and liable if any of CONTRACTOR’s Content violates or infringes the intellectual property or privacy rights of any third party. Content that is, among other things, discriminatory, obscene, harassing, deceptive, violent, or illegal is prohibited, and Content must comply with all applicable DOORDASH policies, including but not limited to the DOORDASH Content Policy.
CONTRACTOR agrees that DOORDASH may make available services or automated tools to translate Content and that CONTRACTOR’s Content maybe translating using such services or tools.
V. RELATIONSHIP OF PARTIES
The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee between DOORDASH and CONTRACTOR nor between DOORDASH and any of CONTRACTOR’s Personnel. The parties are not employees, agents, joint ventures, or partners of each other for any purpose. Neither party shall have the right to bind the other party by contract or otherwise except as specifically provided in this Agreement.
DOORDASH shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in DOORDASH have been inserted solely for the safety of consumers and other CONTRACTORS using the DOORDASH platform or to achieve compliance with all applicable laws.
VI. PAYMENT FOR SERVICES
Unless a different rate of pay is negotiated or CONTRACTOR is notified otherwise by DOORDASH in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model, which you can view here ( DOORDASH reserves the right to adjust or withhold all or a portion of payment owed to CONTRACTOR if DOORDASH reasonably believes that CONTRACTOR has defrauded or abused, or attempted to defraud or abuse, the DOORDASH platform. From time to time, DOORDASH may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and CONTRACTOR is free to accept or reject any such opportunities to be paid at different rates.
DOORDASH’s online credit card software may permit consumers to add a gratuity to be paid to CONTRACTOR, and consumers can also pay a gratuity to CONTRACTOR in cash. CONTRACTOR shout retain 100% of any gratuity paid by the consumer, whether by cash or credit card. DOORDASH acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR. For purchases that involve consumer payment via the DOORDASH platform, DOORDASH will process payments made by consumers and transmit applicable payment for the Contracted Services to CONTRACTOR. Payments for all Contracted Services completed in a given week will be transferred via direct deposit on no less than a weekly basis unless DOORDASH notifies CONTRACTOR otherwise in writing or CONTRACTOR opts to receive payments sooner via Fast Pay.
CONTRACTOR is responsible for verifying the accuracy of their bank account and/or debit card information to receive timely payments. DOORDASH is not responsible for lost or late payments due to CONTRACTOR enters incorrect routing and/or account information.
From time to time, DOORDASH may offer various Dasher promotions or referral programs. CONTRACTOR agrees that it will not manipulate or abuse the referral programs or Dasher promotions by, among other things: (a) tampering with the location feature on its mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple Dasher or consumer accounts. CONTRACTOR understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of its account.
VII. PAYMENT DISPUTES
CONTRACTOR’s Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in DOORDASH’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, restaurant or other business, CONTRACTOR, and any other party with information relevant to the dispute. DOORDASH shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR’s action/omission. CONTRACTOR shall have the right to challenge DOORDASH’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify DOORDASH in writing at of the challenge and provide DOORDASH the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of his/her challenge.
DOORDASH’s Failure: In the event DOORDASH fails to remit payment in a timely or accurate manner, except as provided in Section VI(5), CONTRACTOR shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should CONTRACTOR prevail, show be entitled to recover reasonable costs incurred in pursuing proper payment, provided, however, CONTRACTOR shall first inform DOORDASH in writing at of the failure and provide a reasonable opportunity to cure it.
VIII. EQUIPMENT AND EXPENSES
CONTRACTOR represents that it has or can lawfully acquire all equipment, including vehicles and food thermal bags (“Equipment”) necessary for performing contracted services, and CONTRACTOR is solely responsible for ensuring that any vehicle used conforms to all vehicle laws pertaining to registration, safety, equipment, inspection, and operational capability.
CONTRACTOR agrees that he/she is responsible for all costs and expenses arising from CONTRACTOR’s performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR’s Personnel (defined below) and Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to its Equipment.
IX. PERSONNEL
In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the DOORDASH platform, pass a background cheque administered by a third-party vendor, subject to CONTRACTOR’s lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services. To the extent CONTRACTOR furnishes its own employees or subcontractors (collectively “Personnel”), CONTRACTOR shall be solely responsible for the direction and control of the Personnel CONTRACTOR users to perform all Contracted Services.
CONTRACTOR Assumes full and sole responsibility for the payment of all amounts due to its Personnel for work performed in relation to this Agreement, including wages, benefits and expenses, if any, superannuation and for all required Taxes (as defined below) as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. DOORDASH is not an employer or joint employer of CONTRACTOR’s Personnel, and shall have no responsibility for any wages, benefits, expenses, superannuation or other payments due CONTRACTOR’s Personnel, nor for any Taxes, superannuation or workers compensation insurance relating to CONTRACTOR or its Personnel. Neither CONTRACTOR nor its Personnel shall receive any wages, including annual leave, personal leave, long service leave, superannuation, or any other employment related entitlement from DOORDASH, Nor shall they participate in or receive any other benefits, if any, available to DOORDASH’s employees.
Unless mandated by law, DOORDASH shall have no authority to withhold any Taxes on behalf of CONTRACTOR or its Personnel.
CONTRACTOR and its Personnel Shall not be required to wear a uniform or other clothing of any type bearing DOORDASH’s name or logo.
If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR’s Personnel must satisfy and comply with all terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to DOORDASH at least 7 days in advance of such Personnel performing the Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR’s compliance with the terms of this Agreement.
In this Agreement, “Taxes” means any tax, levy, charge, franchise, impost, duty, fee, right, deduction, or withholding, which is assessed, levied, imposed or collected by any government agency or department and includes capital gains tax, fringe benefits tax, income tax, value added tax, goods and services tax, sales or use tax, training guarantee levy, profits tax, undistributed profits tax, payroll or employment tax, group tax, PAYG or PAYG withholding tax, exercise, municipal rates, and any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of the above.
X. INSURANCE
CONTRACTOR agrees, as a condition of doing business with DOORDASH, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of types required by law to provide the Contracted Services and cover CONTRACTOR during performance of the Contracted Services, at his/her own expense. CONTRACTOR acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this Agreement and shall result in the termination of the agreement and the loss of CONTRACTOR’s right to receive Delivery Opportunities.
NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to DOORDASH, upon request current certificates of insurance as proof of coverage. CONTRACTOR agrees to provide updated certificates each time CONTRACTOR purchases, renews, or alters CONTRACTOR’s insurance coverage. CONTRACTOR agrees to give DOORDASH at least thirty (30) days’ prior written notice cancellation of any insurance policy required by this Agreement.
WORKERS’ COMPENSATION / OCCUPATIONAL ACCIDENT INSURANCE: CONTRACTOR agrees that CONTRACTOR will maintain sufficient insurance to cover any risks or claims arising out of or related to CONTRACTOR’s relationship with DoorDash, including workers’ compensation insurance where required by law. CONTRACTOR will not be eligible for workers’ compensation benefits through DOORDASH, and instead, will be responsible for providing workers’ compensation insurance or occupational accident insurance for CONTRACTOR and its Personnel, if required by law.
XI. INDEMNITY
DOORDASH agrees to indemnify, protect and hold harmless CONTRACTOR from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from DOORDASH’s actions arranging and offering the Contracted Services to CONTRACTOR.
CONTRACTOR agrees to indemnify, protect and hold harmless DOORDASH, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liability and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of CONTRACTOR and/or its Personnel arising from the performance of delivery services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or its Personnel), as well as any liability arising from CONTRACTOR’s failure to comply with the terms of this Agreement. CONTRACTOR’s obligations hereunder shall include the cost of defense, including attorneys’ fees, as well as the payment of any final judgment rendered against settlement agreed upon by DOORDASH or its parent, subsidiary and/or affiliated companies.
CONTRACTOR agrees to indemnify, protect and hold harmless DORDASH, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all liabilities and responsibilities for all Taxes, including, but not limited to all workers compensation premiums, and any contributions imposed or required under applicable laws, with respect to CONTRACTOR and CONTRACTOR’s Personnel.
CONTRACTOR shall be responsible for, indemnify and hold harmless DOORDASH, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from all costs of CONTRACTOR’s business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, Taxes, and assessments of any and all regulatory agencies, boards or municipalities.
XII. DISPUTE RESOLUTION AND MUTUAL ARBITRATION PROVISION
If any claims, disputes or controversies arise between CONTRACTOR and DOORDASH (or any of its related to entities) out of, in relation to or in connection (directly or indirectly) with this Agreement (“Claims”), CONTRACTOR and DOORDASH agree that they must first seek in good faith to use reasonable endeavors resolve the Claim amicably.
CONTRACTOR and DOORDASH mutually agree that, subject to subsection (1) above, any Claim shall be referred to arbitration in accordance with this section XII. For the avoidance of doubt, this arbitration clause shall apply to any and all Claims arising out of or relating to this Agreement, CONTRACTOR’s classification as an independent contractor, CONTRACTOR’s provision of Contracted Services to consumers, the payments received by CONTRACTOR for providing services to consumers, the termination of this Agreement, and all other aspects of CONTRACTOR’s relationship with DOORDASH, past, present or future, whether arising under federal, state or local statutory and/or common law. The parties expressly agree that this Agreement constitutes an arbitration agreement for the purposes of, and shall be governed by, the Commercial Arbitration Act 2010 (NSW) or the equivalent Commercial Arbitration Act in the state or territory in which CONTRACTOR performs the majority of the services covered by this Agreement and/or the International Arbitration Act 1974 (Cth) as applicable. Any disputes in this regard shall be resolved exclusively by an arbitrator. In the event, but only in the event, the arbitrator determines that such legislation and/or any equivalent legislation does not apply, the state or territory law governing arbitration agreements in the state or territory in which the CONTRACTOR operate shall apply.
If either CONTRACTOR or DOORDASH wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the Claim, and (3) a description of the remedy sought. Any demand for arbitration by CONTRACTOR must be delivered to with an electronic copy sent to [email protected] (mailto:[email protected]).
Arbitration Class Action Waiver. CONTRACTOR and DOORDASH mutually agree that by entering into this agreement to arbitrate, both waive their right to have any Claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective all representative action, or to award relief to anyone but the individual in arbitration (“Arbitration Class Action Waiver”). Notwithstanding any other clause contained in this Agreement, or the ADC Rules, as defined below, any Claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. All other disputes with respect to whether this Dispute Resolution and Mutual Arbitration Provision is unenforceable, unconscionable, applicable, valid, void or voidable shall be determined exclusively by an arbitrator, and not by any court.
CONTRACTOR agrees and acknowledges that entering into this arbitration agreement does not change CONTRACTOR’s status as an independent contractor in fact and in law, that CONTRACTOR is not an employee of DOORDASH or its customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
Any arbitration shall be governed by the Australian Disputes Centre Rules for Domestic Arbitration (“ADC Rules”), accept as follows:
a.The arbitration shall be heard by one arbitrator selected by DOORDASGH, or otherwise in accordance with the ADC Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute.
b.If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 80 kilometers of CONTRACTOR’s residents as of the effective date of this Agreement.
c.Unless applicable law provides otherwise, in the event that DOORDASH and CONTRACTOR have agreed to this Mutual Arbitration Provision, DOORDASH and CONTRACTOR shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings. DOORDASH shall pay any costs uniquely associated with arbitration, such as payment of the costs of ADC and the Arbitrator, as well as room rental. CONTRACTOR acknowledges that it is caused no financial detriment as a result of the proceedings being conducted by arbitration as opposed to litigation.
d.To the extent permissible by law, the Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
e.Except as provided in the Arbitration Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state/territory or federal substantive law, or both, as is applicable.
f.The Arbitrator may he motions to dismiss and/or motions for summary judgement and will apply the standards of the Federal Court Rules in governing such motions.
g.The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law.
h.The Arbitrator may issue orders to protect the confidentiality or proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any non-party from any part of the hearing.
Either CONTRACTOR or DOORDASH May apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
Nothing in this Mutual Arbitration Provision prevents you from making a report to or filing a claim or charge with the Fair Work Ombudsman or any regulator in respect of work health and safety. Nothing in this Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent government administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. DOORDASH will not take adverse action against CONTRACTOR for filing a claim with an administrative agency or for exercising workplace rights as prohibited under section 340 of the Fair Work Act 2009 (Cth).
The ADC Rules may be found at ( or by searching for “ADC Arbitration Rules” using a service such as ( or ( or by asking DOORDASH’s General Counsel to provide a copy.
CONTRACTOR’s Right to Opt Out of Arbitration Provision. Arbitration is not a mandatory condition of CONTRACTOR’s contractual relationship with DOORDASH, and therefore CONTRACTOR may submit a statement notifying DOORDASH that CONTRACTOR wishes to opt out and not be subject to this MUTUAL ARBITRATION PROVISION. In order to opt out, CONTRACTOR must notify DOORDASH in writing of CONTRACTOR’s intention to opt out by a letter to “Attention DoorDash Arbitration Opt Out” to DoorDash Technologies Australia Pty Ltd, 401 Collins Street, Melbourne, VIC 3000. Any attempt to opt out by email will be ineffective. The letter must state CONTRACTOR’s intention to opt out. In order to be effective, CONTRACTOR’s opt out letter must be postmarked within 30 days of the effective date of this Agreement. The letter must be signed by CONTRACTOR himself/herself, and not by any agent or representative of CONTRACTOR. The letter may opt out, at most, only one CONTRACTOR, and let us that purport to opt out multiple CONTRACTORS will not be effective as to any. No CONTRACTOR (or his or her agent or representative) may effectuate an opt out on behalf of other CONTRACTORS. If CONTRACTOR opts out as provided in this paragraph, CONTRACTOR will not be subject to any adverse action from DOORDASH as a consequence of that decision and he/she may pursue available legal remedies without regard to this Mutual Arbitration Provision. If CONTRATOR Does not opt out within 30 days of the effective date of this Agreement, CONTRACTOR and DOORDASH shall be deemed to have agreed to this Mutual Arbitration Provision. CONTRACTOR has the right to consult with counsel of CONTRACTOR’s choice concerning this Mutual Arbitration Provision (or any other provision of this Agreement).
CONTRACTOR and DOORDASH Acknowledge that nothing in this section causes any prejudice to their rights and obligations under this Agreement or otherwise. CONTRACTOR and DOORDASH have each consider this arbitration provision carefully an agreed, including through CONTRACTOR’s decision not to opt out of this provision, that its provisions I desirable and reasonably necessary in order to protect their individual interests, as well as the relationship between the parties.
This section XII is the full and complete agreement relating to the formal resolution of disputes covered by this Dispute Resolution and Mutual Arbitration Provision. In the event any portion of this section is deemed unenforceable, the remainder of this section will be enforceable. Any award issued by the Arbitrator is final and binding on the parties and may be entered in any court of competent jurisdiction.
XIII. LITIGATION CLASS ACTION WAIVER
To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section XII, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because CONTRACTOR opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and CONTRACTOR agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, or in any proceeding in which CONTRACTOR acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR Further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this agreement shall remain in full force and effect.
XIV. PROPRIETARY RIGHTS AND LICENSES
Book copyright, database rights, trademarks (whether registered or unregistered), design rights (whether registered or unregistered), patent applications, patents, and other intellectual property rights of any nature in the DOORDASH platform together with the underlying software code and any and all rights in, or derived from the DOORDASH platform are proprietary and owned either directly by DOORDASH or by DOORDASH’s licensors and protected by applicable intellectual property and other laws. CONTRACTOR agrees that they will not use such proprietary information, materials, or intellectual property rights in any way whatsoever except for by use of the DOORDASH platform to perform the Contracted Services in compliance with the terms of this Agreement. No portion of the DOORDASH platform may be reproduced in any form or by any means, except as expressly permitted in the terms of this Agreement. CONTRACTOR agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the DOORDASH platform or any intellectual property rights there in in any manner, and CONTRACTOR shall not exploit the DOORDASH platform or any intellectual property rights there in in any unauthorized way whatsoever.
DOORDASH Hereby grants CONTRACTOR a non-exclusive, non-transferable, non-sublicensable, revocable license to use the DOORDASH platform solely for their lawful use to perform the Contracted Services in accordance with these terms of this Agreement. DOORDASH retains all rights, title, and interest in and to the DOORDASH platform and its other intellectual property rights therein. Any such license shall terminate upon termination of this Agreement.
CONTRACTOR acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by CONTRACTOR to DOORDASH regarding the DOORDASH platform are provided freely and shall become the sole property of DOORDASH. DOORDASH shall own the exclusive rights of such Submissions, including all intellectual property rights therein, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to CONTRACTOR.
XV. LEGAL PROCESSES AFFECTING DASHER ACCOUNTS
If any claim, proceeding, action, complaint or other legal process (“Leal Process”) is brought against CONTRACTOR’S Dasher account, DOORDASH will not contest on CONTRACTOR’S behalf any such Legal Process and may take action to comply with such Legal Process as DOORDASH determines to be appropriate in the circumstances without liability to CONTRACTOR. CONTRACTOR agrees that DOORDASH may honor Legal Process that he served personally, by mail, email or facsimile transmission at any DOORDASH facility or at the office of any agent authorized by appointment all bylaw to receive service on behalf of DOORDASH, even if such service is insufficient under law.
If Legal Process is brought against CONTRACTOR’S Dasher account, DOORDASH may prohibit CONTRACTOR from utilizing payment options other than weekly direct deposits (i.e., prohibiting use of “Fast Pay,” “DasherDirect” or Other payment alternatives that DOORDASH may offer to CONTRACTOR). CONTRACTOR shall be liable to DOORDASH for any amounts received by CONTRACTOR through payment options other than weekly direct deposit that otherwise would have been withheld pursuant to such Legal Process, and DOORDASH may recoup or offset such amounts from any obligation owed by DOORDASH to CONTRACTOR.
CONTRACTOR acknowledges that Legal Process against CONTRACTOR’S Dasher account may result in Delays in payments to CONTRACTOR. DOORDASH shall not be liable to CONTRACTOR on account of any losses resulting from such delay.
XVI. TERMINATION OF AGREEMENT
CONTRACTOR may terminate this Agreement upon seven (7) days written notice. DOORDASH may terminate this Agreement and deactivate CONTRACTOR’S Dasher account only for the reasons set forth in the DOORDASH Deactivation Policy ( all for a material breach of this Agreement. Notwithstanding the foregoing, DOORDASH reserves the right to temporarily remove access to the DOORDASH platform for the purposes of timely investigation where fraud or abuse is suspected, including circumvention of compliance with Legal Process, or when deemed necessary to protect the safety and security of DoorDash users.
Notwithstanding any other provision in this Agreement, DoorDash reserves the right to modify the Deactivation Policy if, in DoorDash’s reasonable discretion, it is necessary to do so for the safe and/or effective operation of the DoorDash platform. DOORDASH shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the DOORDASH platform following DOORDASH’s e-mail notice of such modifications. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
CONTRACTOR’s and DOORDASH’s obligations and rights arising under the Mutual Arbitration Provision of this Agreement shall survive termination of this Agreement. Notwithstanding any other provision in this Agreement, the Deactivation Policy is subject to change; such changes shall be effective and binding on the parties upon DOORDASH’S provision of notice to CONTRACTOR via e-mail.
XVII. MODIFICATION
DOORDASH my modify this Agreement at anytime. When DOORDASH makes material changes to this Agreement, it will post the revised Agreement on the DOORDASH Platform and update the “Last Updated” date at the top of the Agreement. DOORDASH will also provide CONTRACTOR with notice of any material changes before the date the revised Agreement becomes effective. If CONTRACTOR disagrees with the revised Agreement, CONTRACTOR may terminate the Agreement immediately as provided herein. If CONTRACTOR does not terminate the Agreement before the date the revised Agreement becomes effective, CONTRACTOR’s continued access to or use of the DOORDASH platform will constitute acceptance of the revised Agreement. DOORDASH may modify information on any website hyperlinked from this Agreement from time to time, and such modifications shall be effective upon posting. Continued use of the DOORDASH platform after any such changes shall constitute CONTRACTOR’s consent to such changes.
XVIII. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties or unless DOORDASH modifies the Agreement pursuant to Section XVII. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with DOORDASH and consider whether to continue its contractual relationship with DOORDASH. This Agreement supersedes any prior contract between the parties. To the extent DOORDASH’s consumer facing Terms and Conditions Agreement (or updated consumer facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement prevails. However, the decision to opt-out of the Mutual Arbitration Provision in this Agreement does not affect the enforceability of any arbitration agreement in the consumer facing Terms and Conditions Agreement to which Contractor maybe bound (and vice versa). This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided however, that DOORDASH may assign its rights and obligations under this Agreement to an affiliate of DOORDASH or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to DOORDASH shall be deemed to include such successor(s).
The failure of DOORDASH or CONTRACTOR in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
XIX. THIRD PARTY SERVICES
From time to time, DOORDASH may enable CONTRACTOR to receive services from other third parties while using the DOORDASH platform. CONTRACTOR understands that these services are subject to the terms and conditions of each third-party provider. CONRACTOR agrees that DOORDASH is not responsible and may not be held liable for these services or the actions or omissions of any third-party provider.
Google Maps: As a CONTRACTOR, while using the DOORDASH platform CONTRACTOR may be able to use Google Maps in-app navigation services while performing Contracted Services. If CONTRACTOR does so CONTRACTOR agree that Google may collect CONTRACTOR’s location data when the DOORDASH platform is running in order to provide and improve Google’s services, that such data may also be shared with DOORDASH in order to improve its operations, and that Google’s terms and privacy policy will apply to this usage. CONTRACTOR you can also use any other navigation app outside the DOORDASH platform or none at all.
XX. E-SIGN CONSENT
This provision applies to all agreements, policies, terms, notices, authorizations, receipts, confirmations, statements, account histories, disclosures and any other communication (each, a “Disclosure”) that DOORDASH are required by law to provide to a CONTRACTOR in connection with any products, services, transactions, or agreements DOORDASH offer or enter into with a CONTRACTOR now or in the future (collectively, the “Services”).
CONTRACTOR agrees:
a.DOORDASH may provide any or all Disclosures to CONTRACTOR electronically in any manner, including, but not limited to, via DOORDASH’s website, any DOORDASH app, a hyperlink provided on the DOORDASH website or app, a push notification, an email to the email address CONTRACTOR provides to us, or a text message to the mobile telephone number CONTRACTOR you provided to us.
b.DOORDASH may, but is not required to, notify CONTRACTOR via email, text message or push notification when a Disclosure is available. The Disclosures will be provided to CONTRACTOR in a format that can either be retained, printed or downloaded for CONTRACTORs records.
c.The CONTRACTOR electronic signature has the same effect as if signed in ink.
d.Disclosures DOORDASH provide the CONTRACTOR electronically will have the same meaning and effect as if provided in paper form, regardless of whether CONTRACTOR views those Disclosures.
e.DOORDASH reserves the right to decide whether to provide a Disclosure electronically and whether to request CONTRACTORS electronic signature for any Disclosure.
f.CONTRACTOR verifies that CONTRACTOR can print or save a copy of it for CONTRACTOR records.
CONTRACTOR acknowledges and agrees that, in order to view and/or retain copies of the Disclosures, CONTRACTOR will need the following hardware and software:
a.A personal computer or other access device (such as a mobile phone) that is capable of accessing the internet (e.g., a modem and available phone line, a cable Internet connexion or some other means of access to the Internet and an active account with an Internet service provider);
b.Internet web browser which is capable of supporting 128-bit SSL encrypted communications, which requires a minimum web browser version of either Microsoft Internet Explorer version 9, Mozilla Firefox 21, Google Chrome 27+, or Safari on Mac OS X 10.8 and CONTRACTOR system must have 128-bit SSL encryption software’
c.A current version of a PDF reader; and
d.An active email address.
e.DOORDASH may, but is not required to, notify CONTRACTOR via email, text message or push notification when a Disclosure is available. The Disclosures will be provided to CONTRACTOR in a format that can either be retained, printed or downloaded for CONTRACTORs records.
DOORDASH will notify CONTRACTOR if DOORDASH’s hardware or software requirements change and whether any change creates a material risk the CONTRACTOR would not be able to access or retain electronic Disclosures. By continuing to use the Services after receiving any notice of a hardware or software requirements change CONTRACTOR is reaffirming consent to electronic Disclosures.
CONTRACTOR may revoke consent to the use of electronic Disclosures by emailing DOORDASH at [email protected] (mailto:[email protected]). The legal effectiveness, validity and/or enforceability of electronic Disclosures DOORDASH send prior to CONTRACTOR revoking consent is effective and will not be affected by CONTRACTOR revocation. If the CONTRACTOR revokes consent, Or otherwise does not provide consent, DOORDASH may close or limit access to the DOORDASH account and any or all Services.
CONTRACTOR agrees that DOORDASH may modify or change the methods of issuing Disclosures as described in this provision, and that DOORDASH may send CONTRACTOR Disclosures in paper form in its discretion. CONTRACTOR can obtain a paper copy of an electronic Disclosure at no charge if CONTRACTOR request one within a reasonable time after DOORDASH first provided the electronic Disclosure to CONTRACTOR. To request a paper copy of a Disclosure, contact Customer Support at 1800 958 316.
CONTRACTOR must provide DOORDASH With a true and accurate primary email address, phone number, and other contact information. CONTRACTOR agrees that it is CONTRACTOR responsibility to notify DOORDASH of any changes to the primary email address, phone number, or any other contact information so that DOORDASH can communicate with CONTRACTOR electronically. CONTRACTOR can update the contact information by contacting Customer Support at 1800 958 316.
By accepting this Agreement, CONTRACTOR consents to the terms of this provision and confirms the CONTRACTOR meet the system requirements and has demonstrated an ability to receive, retain, and view electronic Disclosures.
XXI. MISCELLANEOUS
CAPTIONS SECTION HEADINGS: Captions and section headings appearing in this Agreement awful convenience only and is not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
SEVERABILITY CLAUSE: Except as specifically provided in Section XII, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
GOVERNING LAW: Except for the Mutual Arbitration Provision in Section XII above, this Agreement shall be governed by the laws of the state or territory in which CONTRACTOR performs the majority of the services covered by this Agreement.
NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify DOORDASH in writing at of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, all of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in Sections II (Contractor’s Operations) and III (Contractor’s Services), or if the relationship of the parties differs from the terms contemplated in Section IV (Relationship of Parties).
PRIVACY POLICY: CONTRACTOR represents and warrants that it has reviewed and understands DOORDASH’S Dasher Privacy Statement, which can be found here ( By using the Dasher Services, you consent to all actions taken by DOORDASH with respect to your information in accordance with the Dasher Privacy Statement.
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[1] As 22 September 2022 was a public holiday, the 21 day time period is extended by one day. See s.36(2) of the Acts Interpretation Act 1901 and s.40A of FW Act.
[2] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67], [74]-[75].
[3] Transcript at PN39-PN53.
[4] [2022] HCA 1.
[5] [2022] HCA 2.
[6] [2022] FCA 750.
[7] [2022] FWCFB 129
[8] Ibid at [74].
[9] [2022] FWCFB 156 at [34].
[10] Deliveroo at [35] applying Personnel Contracting at [84] (per Kiefel CJ, Keane and Edelman JJ) and [196] (per Gordon J).
[11] Exhibit R1 at [5].
[12] Ibid at [6].
[13] Ibid at [7].
[14] See Exhibit R1, Annexures SW2 and SW4; Transcript at PN147-PN148.
[15] Exhibit R1 at [8], Annexure SW1 and SW2; Exhibit A1 at [15]-[16]; Exhibit A2 at p.2 (Hearing book at p.146).
[16] Exhibit R1, Annexure SW1.
[17] Applicant’s Closing Submissions at [9]-[14].
[18] Exhibit A1 at [15]-[18].
[19] Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 at [44] (per Gordon J) citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [40]-[50] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
[20] Thorne v Kennedy [2017] HCA 49 at [38] (per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ); Zhou v Kousal [2012] VSC 187 at [64] (per Vickery J).
[21] Exhibit A1 at [15]-[16].
[22] Exhibit A1 at [17]; Exhibit A2 at p.17 (Hearing Book p.161).
[23] Transcript at PN186-PN192.
[24] Exhibit R1 at [8], Annexure SW3.
[25] Exhibit R1, Annexure SW3.
[26] Transcript at PN143 to PN145.
[27] Transcript at PN149.
[28] Exhibit R1, Annexures SW2 and SW4.
[29] Applicant’s Outline of Submissions at [15] (Hearing Book p123); Applicant’s Closing Submissions at [10], [38].
[30] Transcript at PN239.
[31] Transcript PN240-PN244.
[32] Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 at [44].
[33] Exhibit R1 at [19]; Applicant’s Outline of Submissions at [10] (Hearing Book at p.122).
[34] 2022 Agreement at clause 1 of Part XVIII; Personnel Contacting at [178] (per Gordon J).
[35] Exhibit R1 at [19], Annexures SW6 and SW8; Applicant’s Outline of Submissions at [10] (Hearing Book at p.122).
[36] [1978] 52 ALJR 407; 18 ALR 385.
[37] [2023] FWC 50 at [65]-[67].
[38] Exhibit A1 at [15].
[39] Exhibit A1 at [17].
[40] Personnel Contracting at [61] (per Kiefel CJ, Keane and Edelman JJ).
[41] See Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 at [44] (per Gordon J) citing Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133 at 143-144; Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507 at 517. See also Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 at 401 [90(1)-(2)].
[42] Asim Nawaz v Raiser Pacific Pty Ltd T/A Uber B. V.[2022] FWC 1189 (Nawaz v Uber) at [181]-[182].
[43] Deliveroo at [55].
[44] Ibid.
[45] See Personnel Contracting at [73]-[74] (Kiefel CJ, Keane and Edelman JJ); [113] (per Gageler and Gleeson JJ); [174] (per Gordon J), referring to Brodribb at 24 (Mason J); see also 36-37 (Wilson and Dawson JJ).
[46] See Clause 2, Part III. of the 2022 Agreement.
[47] Exhibit R1, Annexure SW5.
[48] Ibid.
[49] Deliveroo at [47].
[50] Personnel Contracting at [36]-[39] (per Kiefel CJ, Keane and Edelman JJ); [113] (per Gageler and Gleeson JJ); cf [180]-[183] (per Gordon J).
[51] Personnel Contracting at [183] (per Gordon J); [203] (per Steward J).
[52] Personnel Contracting at [204] (per Steward J).
[53] Jamsek at [88] (per Gageler and Gleeson JJ).
[54] Deliveroo at [50]; Nawaz v Uber at [231].
[55] ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 at [37] (per Buchanan J, whom Lander and Robertson JJ agreed).
[56] Personnel Contracting at [66] (per Kiefel CJ, Keane and Edelman JJ); [184] (per Gordon J);
[57] See Exhibit R1, Annexure SW1.
[58] PR764147
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