The widow and children of a food delivery driver who was hit by a bus and killed in Sydney will receive a $830,000 payout, after a landmark court decision found he was an employee.
Xiaojun Chen, 43, died while riding his motorbike for Hungry Panda in the suburb of Zetland in September 2020, leaving behind his wife Lihong Wei, their two children and his 75-year-old father, who all live in China.
The Transport Workers Union (TWU) said the Personal Injury Commission found Mr Chen was entitled to workers' compensation, after Hungry Panda admitted liability for his death.
Ms Wei, who had to farewell her husband via video call from rural China to a Sydney hospital, said her husband worked in Australia to send money home to her family.
"My children miss their daddy every day," she said.
"My daughter has begun struggling with school and my son has lost his father forever at just eight years old. Nothing can ever fix this."
TWU national secretary Michael Kaine welcomed the decision and praised Ms Wei for pursuing compensation.
"After two long years, justice has finally been delivered for Xiaojun's family," he said.
The TWU has been campaigning for food delivery riders to have rights such as minimum wages and workers' compensation benefits, regardless of the 'contractor' label imposed on their jobs.
Jasmina Mackovic from the Slater and Gordon law firm said the decision was "the first of its kind in a workers compensation sense".
"Gig economy workers and their families are usually denied any entitlements because they are considered independent contractors rather than employees, meaning they are unable to access workers' compensation and other benefits such as annul leave and sick leave," she said.
University of Sydney industrial relations expert, Chris F Wright, said it was a significant decision.
"It is a decision that goes against the grain of the past few decades of legal developments in Australia in the area of employment, which have very much gone against workers and in favour of employers," he said.
The Federal Court has previously ruled that a Foodora Australia delivery driver was an employee when he was unfairly sacked.
But in a similar case involving UberEats, the Federal Court found drivers and riders were contractors, because they could choose when and where they worked.
NSW Employment Relations Minister Damien Tudehope said the “old model” of excluding some worker entitlements by putting them on contract may no longer be appropriate.
"I think that we do need to develop a policy in relation to the gig economy," he said.
"The successful outcome of that claim sends a signal that we do need to do a lot more work in respect of how we treat workers engaged in the gig economy."
A NSW upper house inquiry into technology on industry and workers is due to publish a report later this year.
