Authors:  Amy Zhang, Amelia Dowey, Liz Baradan and James El-Jalkh

29 June 2021

In November 2020, the New South Wales Government announced the establishment of a Joint Taskforce to explore the recent deaths of food delivery riders in the state and to identify safety improvements for the industry. Five food delivery riders died on Australian roads in three months during 2020, and there were more than 70 “serious notifiable injuries” to Uber Eats riders recorded during that year. The Final Report of the Joint Taskforce into Food Delivery Rider Safety outlines ten recommendations to promote compliance within the sector and reduce the incidence of death and serious injuries to food delivery riders. On 5 June 2021, the NSW Minister for Better Regulation, Kevin Anderson, announced that the Government had accepted all ten recommendations and would introduce new laws to improve safety outcomes in the food delivery industry, set to be the toughest safety laws in the country.

Summary of Recommendations

SafeWork NSW, the state’s work safety authority, will have new data collection and analysis roles. The regulator will issue quarterly data analysis of notifiable safety incidents to inform risk control strategies and highlight areas requiring further improvement. To bolster compliance, the regulator will have the power to issue warnings and/or improvement notices to industry participants, and will publish a work health and safety (“WHS”) guide and educational information to promote greater safety awareness.

Transport for NSW, the state transport agency, will provide guidance material in relation to the requirements for improving the visibility of delivery bags which will be communicated to industry participants. This guidance will relate to the colour and reflectiveness of delivery bags.

The requirements to improve rider visibility include the following:

• Delivery bags to be potentially made entirely of retro-reflective material.
• Delivery bags to be fluorescent in colour, e.g. yellow, orange or light green.
• Reflective strips to be fixed to all visible parts of the bag, including the front, the whole width to the rear and sides of the bag, as well as on the straps facing the front if not made entirely from retro-reflective material.
• Delivery bags to have bands made from compliant reflective materials and/or to meet the national high visibility standards for safety garments and materials.

Transport for NSW will also provide information to food delivery platforms in relation to the roadworthiness of vehicles, including e-bikes, scooters and motorcycles used by drivers and riders to prevent the use of non-compliant vehicles. The implementation of this recommendation will ensure that vehicles that are used for deliveries are fit for purpose and are regularly maintained.

Reform

Compliance work by SafeWork NSW found that almost 90% of drivers were not wearing safe, hi-visibility clothing and that 40% were observed riding in an unsafe manner. Other safety concerns were highlighted, including helmet compliance, using a device when riding, the roadworthiness of vehicles and use of non-compliant e-bikes. Of the five Australian deaths, one rider was killed when they were hit by a vehicle they had failed to give way to. SafeWork NSW documents stated that the rider had not been provided adequate training on the risks relating to operating a motorcycle for commercial purposes. Two other UberEats riders were killed on electric bikes.

Building on these findings, as well as the recommendations of the Joint Taskforce, the NSW Government has stated it will introduce changes to the Work Health and Safety Regulation 2017 (NSW).

The new measures will require that food delivery platforms, such as Uber Eats and Deliveroo, provide personal protective equipment (PPE) and compulsory induction training to drivers that they engage. Further, NSW Police will assign riders with identification numbers and conduct “enforcement activities” which will target workers for not complying with road rules. Riders will be required to have their unique identifying number on them at all times in an easily accessible and identifiable manner. Failure to comply with the new regulations will be penalised by fines to be set during a consultation period starting in September 2021.

Food delivery platforms in April 2021 committed to 50 actions to improve the health and safety of their riders after the establishment of an ‘Industry Action Plan’ in collaboration with the NSW Government. However, many were already undertaking a range of activities to improve rider safety, although the commitments varied between companies. The legislative changes are therefore in addition to the Industry Action Plan and are aimed at setting industry-wide minimum standards for food delivery riders.

Whilst the changes have been lauded by the NSW Government as the “toughest safety requirements for food delivery platforms and riders anywhere in Australia”, they have not escaped criticism. Michael Kaine, the national secretary of the Transport Workers’ Union, has stated that the Government ignored the impact of time pressures, wages and working conditions on rider safety, including the fact that riders can be terminated by platforms for failing to meet unrealistic deadlines for deliveries. These deadlines, combined with the fact that riders are typically paid a flat rate per delivery, which means many may earn less than the minimum wage of $20.33 per hour, puts pressure on and incentivises drivers to rush deliveries, although these aspects of the industry were not addressed by the Joint Taskforce.

The Government will commence consultation on the new regulations in September and expects to finalise the changes by 1 November 2021.

Key Action Points for Human Resources and In-house Counsel 

• NSW will now have the toughest safety laws applying to food delivery platforms of any Australian state. Food delivery platforms including Uber Eats, Deliveroo and Menulog will need to be aware of their obligations under the new regulations. It is expected that by late 2021, it will be mandatory for platforms to:
  • provide riders with personal protective equipment, including high-visibility clothing and delivery bags in compliance with the requirements to be set by Transport for NSW. Workers will however continue to use their own helmets; and
  • ensure all riders complete compulsory induction training.
• Riders must ensure that they comply with road rules at all times and ensure that their mode of transport meets government standards. Riders will also be required to have their unique identifying number on them at all times in an easily accessible and identifiable manner to present to police upon request.
• Failure to comply with the new regulations will be met with fines, which will be set after consultation in September 2021.

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