The Gig Economy's Impact On Employment Laws In Australia, An Essay.

1. Workers in the so-called ‘gig economy’ such as Uber drivers and Foodora riders should be treated as employees for all purposes. Hint: You should consider the implications for terms and conditions of employment and other items e.g. OHS compliance, social inclusion / workforce participation.

2. The Fair Work Act 2009 (Cth) and anti-discrimination laws do not go far enough in terms of providing for family friendly work arrangements and work/life balance. Hint: You should address relevant NES entitlements and case law touching on matters such as maternity leave, sick leave, workload and hours of work.

3. The High Court got it wrong in CBA v Barker [2014] HCA 32 – the contract of employment must contain an implied term of ‘mutual trust and confidence’, or something similar, to reflect the nature of modern employment relationships. Hint: You should explore other implied terms (or potential implied terms) such as the putative implied term of ‘good faith’.

4. Post-employment restraints should be heavily restricted or prohibited altogether. All they do is stop workers from earning a living and stymie economic activity. Hint: You should have regard to the Court of Appeal’s decision in Just Group v Peck [2016] VSCA 334 (on appeal from [2016] VSC 614) and subsequent decisions as well as the Restraint of Trade Act 1976 (NSW).

5. The anti-bullying provisions in the Fair Work Act 2009 (Cth) strike an appropriate balance between protecting workers from being bullied at work and maintaining employers’ right to take reasonable management action. Hint: You must consider the body of case law that has developed under Part 6-4B and counter-arguments e.g. managerial prerogative, reverse-bullying, vexatious complaints.

6. A self-directed topic relating to workplace relations subject to obtaining prior approval from a member of the teaching team. Note: The chosen topic must be appropriate for a 5500 words essay and must be linked to the topics covered in the unit (see page 7 of the Unit Guide). 

An Overview of the Gig Economy

Digital platform executes its operation in the ‘gig economy’ which is related to the contracts that are individual doesn’t get executed collectively and irregularly both using durations and hours. The arrangement of work is being executed commercially, and those workers working in the gig economy gets engaged in work as independent contractors, and they are not entitled to the standards of minimum labor. The digital platform business generally does not operate in a larger section of the economy but the work facilitated gives its concentration in the sections of the lower skilled labor market in which formal qualification is not stated as a requirement. It is found that there is very limited power of bargaining in the hands of workers in the contract terms and pays rates in this labor market segments. Digital platforms mainly exacerbate such issues and have full control on every worker who makes access to the platforms and also determines payments and rates unilaterally. Before the advent performed regarding modern digital platforms, the debates had been in process regarding the independent contractor’s appropriateness in the working relationship which is the same as employment. It was observed in the traditional binary classification of workers that those workers are either employees or independent employees and were unaware of the issues and complexities which is tackled by the dependent workers being operating in work in the gig economy. It is observed that many of the platforms in digital business make its operations in the legal grey area when the topic comes for the practices of employment. Those workers make the appropriate choosing of the work hours and make a sign up of specific tasks. Thus, it is argued that such workers don’t meet the definitions of the employees. However, such workers possess limited bargaining power and don’t have traditional attributes on various independent contractors. Dependence is seen on the digital platform by workers for the performance and allocation of work. There is the maintenance of control of the digital business on the ways the work is compensated and performed. Workers actions are being monitored and supervised, and the pressure is given to work exclusively on the platforms.

Unions associated with gig economy and labor’s laws are concerned that when the workers are not able to meet the definition of independent contractors will not be reviewed by the employment legislation. Moreover, when the classification is made sustainable, then there will be no protection given under the legislative minimum labor standards. It had been reviewed that those organization who are involved in the workplace along with gig economy has come across with a large number of difficulties while defining the status of employment. The advancement in technology and Smartphone’s proliferation has reshaped the landscape of commerce and has provided consumers with newer ways to get access to the marketplace of retailers. On-demand companies are one part of innovation, and the on-demand commerce is said to be the gig economy which is the market’s collection which matches the providers of services to consumers of gig basis.

This essay will highlight the workers of Uber drivers and Foodora riders who are in the gig economy in Australia. It will also explain the necessity and requirement that needs to be given to the drivers and riders which is achieved by the employees. It will further consider the implication for the terms and conditions of employment and other various other items.

The Status of Gig Economy Workers

The gig economy is the collection of the market which matches the providers to make consumers on a gig which is based on the support of on-demand commerce. The gig workers are found to enter in the formal agreements with the on-demand companies to give services to the clients of the company. The perspective makes a request to the clients for the services through Smartphone application aligns with internet-based technology platforms which will allow the clients to recognize and investigate for the providers and to make the specification of the jobs. The gig workers who get engaged by the on-demand companies make a provision of the requested services and make compensation for jobs.

The models of business mainly vary across companies which have control over tech-platforms along with associated brands. The providers are allowed to set the prices and also select the jobs whereas also preserve control on the decision of assignment and price-setting. Some of them make its operation in the local market while many of the others help in serving a global client base. It had been seen that although driver services such as Uber and food are known in its best manner wherein the gig economy have made its operation in many of the vast sectors which includes business services, medical care and also delivery services.

With many of the exceptions, the providers are viewed as independent contractors by the on-demand companies. Such designation is made explicit as per the formal agreement which had made an establishment of relationship in between providers and company. Also, it has been observed that many of the on-demand companies have given providers the ability to make the selection of the jobs, participation levels setting of the hours and also have control over their works. The gig economy is said to be the expansion of the traditional freelance work. But, the traditional freelance job is distinct from the gig jobs. The established brand and store-front which is built through tech-platform Company reduced the entry costs for the providers.  On the other hand, gig workers are not required to invest in any of the established company; the operating costs might be lower and also make an allowance of the participation of the workers to be transitory in the market of the gig.

Those companies which rule the gig economy try to bring about flexibility to work. However, the company’s work makes an argument that they don’t have protections and also fair pays. Moreover, the roles are not flexible as workers are incentivized as well as pressured to work when there is a need of the company. It is also analyzed that workers in the gig economy need to be treated as employees for all of the purposes.

In the context of Australia, the problem has got polarized. The proponents associated with gig economy have advocated for the flexible and freedom which is linked with independent contract work as well as freelance. The major support comes by the choice in which people choose when and how to execute the work. The work structure is appealing where the customers require a task to be completed where an entrepreneur possess skills to fulfill the task. However, it has been noticed that the rights group of workers generally highlights the negative aspects of the gig economy. There are various benefits associated with the permanent work which includes income security, insurance or accident, paid leave and superannuation. That entrepreneur who possesses un-specialized skills needs to bid down the payment rates to secure the work.

Implications for Terms and Conditions of Employment

It is analyzed that gig workers possess both pros and cons where flexibility, variety, and passion are the major pros of the gig workers. The gig working helps the people to allocate flexible time for their work and also have an option for adaptability. Gigs also give the workers with the provision to try some jobs. It helps the new and experienced workers to explore some careers and varieties. However, it is analyzed that gig work comes up with uncertainty. It is not easy for the gigs workers to achieve stable income and have to struggle for a finding of the newer job. In addition to this, gig workers also don’t have a proper schedule for working, and there are no holidays achieved by them. They also don’t get all the employer-paid benefits like health insurance, bonus as well as retirement plans. Thus, workers associated with gigs economy are not treated as employees for all purposes, but Australian workplace law and Victorian law have made various reforms to protect the gigs employees from discrimination and other exploitations.    

The legislation, common law, and industrial instrument are the major employment law’s sources. The employers in Victoria have achieved a response to assure if the people working along with them are being treated in a fair and respectful manner. It is not done only for the betterment of business, but it is also done as the structure of law. The successful employers make an assurance that if the workplace is away from discrimination, bullying and also sexual harassment. Equal Opportunity Act 2010 along with Federal human rights laws sets out the responsibility.

Australia keeps on attracting skilled professional people so as to enhance the benefit of Australia. After the abolition of the white Australian policy, the migration was made accessible to every race. However, it is found that although, the migration policy was made to abolish discriminate but there was still the availability of discrimination on the basis of race with some specific group members. Moreover, it is also viewed that Australia have toughened the already hard line immigration policy since five years so as to send refugees and migrants to the prison camps on the pacific islands. In addition to that, it is also seen that Australian migration policy has also shown its discrimination and restriction while providing holiday Visa to many of the countries. For instances, the Indian and Chinese people who are residing in Australia and working are not given the work holiday visa. The Chinese citizen along with the Indian citizen is not given all the preferences required by them. In fact, different terms and conditions had been implemented which shows the kind of discrimination done by the country. Furthermore, it is also observed that the Indian and Chinese students are facing very problem so as to get permanent resident due to the change in the laws and regulations. The relationship of Australia with China and India is found to be highly influenced due to political affairs which have its impact on the migration policy.     

Moreover, employers also possess the responsibilities to give fair and safe workplace under the Victoria’s Occupational Health and Safety Act 2004. There are few more federal laws which are associated with workplaces laws which include the Fair work Act 2009, workplace gender equality Act 2012 and also privacy Act 1988. The employers of state public sectors in Victoria are linked by Victorian Informational privacy Act 2000 and Public Administration Act 2004. In addition to it, Australian public services employers are also linked with the federal Public service Act 1999.

The Fair Work Act and Family Friendly Work Arrangements

The national workplace relations system had been generated by the Fair Work Act 2009 and also other laws which had covered some private sector employees and also employers prevailing and working in Australia. The fair work Act 2009 along with other legislation of the workplace has set out key elements. Moreover, the Fair work Act 2009 provides necessary facilities for registration of an association of employees and employers and also associations of enterprises. Registrations have given major responsibility which includes organizational rules, financial management, and governance standards. The legislation has also been set by which registrations of organization could be canceled, the organization could be amalgamated, and the demarcation disputes could be resolved. It is also reviewed that trade unions of Australia have rights to act as representative of bargaining and should have the capability to enforce standards of member’s behalf. In addition to that, FW Act and Work Health and Safety Act 2011 have given a provision to the trade union officials to enter the place of work for the particular purposes. In Australia, two types of discrimination are treated as unlawful discrimination which includes indirect discrimination and direct discrimination. It is observed that being an employee, they are protected from every kind of discrimination in the workplace by the federal laws and Victorian laws. This Victorian law associated with employees’ rights includes every stage of employment which include the offering of the unfair terms and conditions of employment, disclosing a disability in the workplace and being dismissed unfairly. It also makes a negotiation for flexible work arrangements and returns to the workplace after injury.

It has been analyzed that national laws on discriminations which were included in section 351 of the Fair Work Act 2009 were applied to the majority of employees of Victoria. This state also has their equal opportunity laws along with anti-discrimination laws which were applied to the Victorian employees but were not applied to the commonwealth employees. The Equal Opportunity Act 2010 have been made to protect the employees from discrimination which is caused because of age, gender identity, parental status, employment activity, sex, etc. the Victorian Equal Opportunity and human rights commission has also provided the facilities to the employees to file a complaint.

In Australia, no common law right has been executed to privacy. However, usage and disclosure of personal information are being regulated by the privacy act 1988. As per this law, the employers are free to make the collection, usage, and disclosure of the employee’s records and also make outsourcing of the employment-related functions which had a direct relationship with employment. The Privacy Act is mainly related to personal information of employees which states that none of the individuals can achieve personal information of others.

The Victorian government is concerned with the conditions and wages which are being faced by the workers due to the on-demand gig economy. This is the case when the people are allocated as independent contractors. It has been observed that current laws state that people should be classified as employees and should achieve all the facilities associated with it. It had been stated by the Victorian industrial relations minister Natelie Hutchins that gig economy companies such as Uber and Fedora would face penalties if they leave or dismiss the Uber drivers or Foodora Riders without notice or if they will not be able to give contracts or invoice of payment within the time interval of 30 days. This reform is based on the newer amendments done by the Owner Drivers and Forestry Contractors Act 2005. The FWC also heard regarding unfair dismissal test case which has involved the former case of Foodora rider. The government of Australian has made reforms to remove loopholes to prevent workers of the gig economy from accessing the Victorian Civil and Administrative Tribunal.

Implied Terms of Employment Contracts

The present data had been shown by the Australian Bureau of statistics which stated that there were 265,000 independent contractors present in Victoria in August 2017. Approximately 3,213,000 people were being employed in Victoria which means that independent contractors have made about eight percent of the whole sum working population. The whole data of Australian has shown that there are on average 8.2 % of independent contractors on total employed persons. The workers of Australia in the gig economy have faced lower super contributions which posses missing superannuation guarantee, and as a result, there are lower incomes levels present in retirement.  

Uber is known to be the describing the one who drives for the company as the partner-drivers. They are mainly classified as self-employed contractors. In the case of Aslam v Uber BV and other, the tribunal of employment has analyzed that Uber model has made a development where the drivers were distinguished as the self-employed and contractual documentation which is created to support the status of self-employment status, but it doesn’t tally with the real arrangement of working. It has been analyzed that applicants of Uber driver are required to give an online application and go into the process of onboarding which involves approval of documentation which includes MOT, insurance, PHV license, driving license, etc. The drivers then make the supply of own vehicles and is made responsible for maintenance and running costs.

It was seen in the case of Uber that a large number of drivers had brought various claims for the assertion of the status of workers. It had been accepted from Tribunal that they were the workers as per the employment rights Act, the working time regulations and National Minimum Wage Act at the time when were given authority to drive the vehicle, have started the uber app and were ready to pick up the passengers. The tribunal had found that contractual arrangement was seen as a fraud which is found when the invoice is generated for the drivers and referred drivers as customers of Uber to give working business appearance for the drivers. It had been found by the tribunal that the reality regarding Uber was that this company was making a run of a straightforward business of transport and the drivers were recruited for that business.

Moreover, the recent case regarding Uber was the issues which states if Uber drivers are either a formal worker of Uber or are being employed by Uber or are self-employed is being addressed recently in the legal system. The case was addressed on 20 July 2016 in between Yaseen Aslam and James Farrar. This case had made an argument that drivers had made its working for the Uber Company and need to receive all the workers’ rights which includes national minimum wages and holiday pays. It had been observed from the case of the Uber that drivers are treated as self-employed, and thus, none of the facilities related to the workers are given to them. It is also analyzed that no sick leave along with holiday packages has been provided to them. Hence, it can be stated that working in the gig economy which also includes the Uber drivers are not treated as employees of all purposes and because of which, the employees are not satisfied with their work structures.

Post-Employment Restraints

Foodora Riders case

The fair work ombudsman has supposed that the Australian food delivery services Foodora have engaged themselves in the sham contracts since the year 2015 which results in workers underpayment that were classified incorrectly as contractors apart from saying them, employees. It had been reviewed by the court that although this workforce achieves benefits of freedom and work flexibility, it also reduces cost and make unpredictable pay along with limited long terms advantages. It had been revealed from the study done over 200 Gig economy freelancers from the renowned marketplaces such as Uber, Airbnb, and Foodora that approximately 73% of the workers of gig generally leave the marketplace when there is an issue regarding payment. It had been reviewed in the case of Foodora that workers were treated as independent contractors and this gig economy company had avoided paying the cost of employee’s entitlements which includes sick leave, superannuation and also annual leave. The ruling commissions have made Foodora legally responsible for paying of entitlements. The Fair work commissions which are made for a decision regarding the relationship between Foodora and Klooger have contrasted that Uber drivers are not treated as employees but as contractors. The documents which were filed in the federal courts have stated that ombudsman has alleged that delivery service company have treated three of its delivery drivers not as employees but as independent contractors although they were the certified employees of that company. This has resulted that those workers in which one from Sydney and two others from Melbourne were paid with a minimum rate of wages, no public holidays rates, penalty rates, and casual loading. It was also analyzed in the case of Foodora that company didn’t even accuse of the failure to reimburse the superannuation. Ombudsman estimated that the alleged underpayment cost of the three workers was $ 1620 in combination. Thus, the case was filed against Foodora Company for accusing three workers to sign an independent contractor agreement and also give an Australian Business Number (ABN). Lastly, the company had to back pay the three workers along with their superannuation. As per the fair work act, the company had given fine of $54,000 for each of the contravention. Thus, it had been achieved from the case of Australian food delivery service Foodora that workers in the gig economy were not treated as employees and not all of the facilities were provided to them as per the requirements.

The impact of the gig economy on the nature of employment at present is huge. Traditional job means a job, which is full-time and stable, where the employees get a certain amount of security in the job along with health security, pensions after retirement, etc. In the recent time, there is a surge in this gig economy, where the job offered is part-time, or else they are contractual for a certain period. In this economy, the workers do not have any fixed salary. Instead, they are offered salaries based on the amount of work they delivered, and that amount is very low compared to the full-time workers. It means they get none of the facilities or benefits which full-time workers enjoy. To make the life of these gig economy little more secure, some laws are made on labor rights and some terms and conditions are also applied.  

Anti-Bullying Provisions in the Fair Work Act

The Victorian government is starting a new inquiry related to the job safety of the on-demand workforce. There are instances where the on-demand workers are treated poorly, and also being contractual workers, they are underpaid. The investigation will be done on the workforce, who is working with online companies and platforms like Uber, Foodora, etc. The reason behind doing this is protecting the rights of the part-time workers, so that they are also treated equally as other workers, as well as given certain facilities. They will inquire about the allegations, and then it will be determined if all these contractual arrangements are made so that the company can avoid workplace laws and other statutory obligations. They will work on the enforcement of certain facilities like superannuation, health, and safety of the people, compensation for accidents, etc.

OHS or Occupational Health and Safety laws are made to protect the health and the safety of the workers and also other people in the workplace. When a new company starts operating, at first the employers and the management of that company needs to consult with the OHS. OHS will help the management and the employer to manage risks occurring at the workplace.  In the Victorian law system, the OHS laws consist of the following laws- Occupational Health and Safety Act 2004 (Vic), along with the Occupational Health and Safety Regulations 2017 (Vic). This is applied in all Victorian workplaces. Both of these are very much like the national law which is being applied in most of the other jurisdictions of the world such as the National Model Work Health and Safety (WHS) legislation.

According to the OHS Act 2004, there are some duties which are imposed on employers, designers of plants or buildings, importer and suppliers, self-employed persons. These duties include not exposing people to such a situation where they may have to face health and safety related issues. As mentioned in the Act, employers must give employees a reasonably practical working environment, which is safe and does not have any risks regarding health.  The employers along with the self-employed persons should also fulfill the duty of not exposing the non-workers in any safety-related problem. On the other hand, the employees should take care of their own and co-workers health and safety.

The OHS Act 2004 also mentions that, in case there occurs a health or safety risk at the workplace, then the management should be well equipped with the necessary things which help in effectively managing the situation. And if possible, they should try to eliminate the risk from its root.  To deal with these health and safety risks, the management should discuss with its employees about how to identify risk, and how to decide while dealing with them. While consulting, the workers should be allowed to share their views, and those views should be taken into account before making a decision. There must be a Health and Safety Representative (HSR) in each workgroup at the time of occurrence of issues, the HSR will take it to the management and ask for rectification of the issue.  Discrimination should never be encouraged, and in case an employee is found guilty, his work will be ceased after consulting the employer.

Conclusion

The gig economic model is seen influencing the flexible jobs, which are having hiring independent contractors in the place of full-time employees. Gig economy is depending upon the labor markets. Due to this reason, they are seen working with labor rights and laws. On the other hand, it was noticed that in place of regular salaries, the permanent jobs were dealing with gigs when it comes in paying a return. Therefore, it can be said that the gig economy is stressed on the full-time employment of workers in a traditional form. In the areas of the workforce participation, it was noticed that work is usually divided into some tasks. In this process, workers were seen contracting for their particular tasks, despite, moving on with the work. Apart from this, it was also noticed that the work was going on with the help of a single person or individuals.

In the case of the profit companies, it was noticed that the labor transactions were between businesses and workers. The most importantly it was observed that the workers’ rights group was capable of highlighting the negative aspects of the gig economy are related to the employment matters. With the help of these workers’ rights, the employees will be able to gain profit. According to the workers’ rights group, it was observed that the in the laws of workforce participation, some of the benefits are missing such as in the security of income, superannuation paid leave and accident insurance. From the recent study report of the Australian Bureau of Statistics (ABS), it was observed that there were around 265, 000 independent contractors in Victoria during August 2017. After that around 3,213, 000 people were employed in the same period increasing the employment rate to 8 percent of the total working condition. Apart from this, in other data in Australia, it was observed that about 8.2 percent employed people were identical according to the Victorian Figure.

In related to the Uber and Foodora riders, it was noticed that the employees were not treated as employees in many cases. They are considered independent contractors. Their occupation is not a permanent one; rather it is temporary work. In this case, employment work participation is mentioned. According to the regulation act, it was noticed that the Australian Tax Office is of great significance. A meeting was formed in 2017, where the Senate was responsible for stating about the employment laws, among which, one was the Fair Work Act 2009. In this, it was noticed that such laws were conducted keeping in an aim to improve the workforce participation — the laws states about the government’s procurement and practices of employment.

On the other hand, it was also noticed that according to the Victorian law, Independent Contractors Act 2006 would be used for improving the ways of employment. Therefore, with the help of such laws, the gig economy was successful in providing secured to these independent contractors for their betterment. Protection of employees’ rights was also used for rating the level of part-time work and casual work. In a recent survey, it was noticed that the Fair Work Ombudsman inaugurated legal proceedings, which were especially against the food delivery service, Fedora. This, in turn, stated that the company is dealing with sham contracting, which resulted in the underpayment of almost three workers. It can be said that just like this case, the other gig economy businesses can also get hampered. Later it was observed that many of them were stating that gig-economy labor market is not working according to the employment laws.

On the other hand, it can be observed that the main framework of the gig economy is helping to regulate the traditional labor regulation according to the laws of Australia. Majority of the contractors were seen not having any rights in related to their wages. This, in turn, typically includes the paid and sick leave, maximum weekly hours, and unfair dismissal protections. In the 2015 ACT Taxi Innovation Review, it was observed that Uber was avoiding the service providers by mentioning the standard working rights. In another case, it was noticed that according to the Fair Work Commission of Uber, it was noticed that drivers are never the employees. This was caused because of the agreement that was caused between the online platforms and service providers, which was under the common law. In the case of the Uber drivers, it was noticed that the agreement of services was said to be among the leading generation services and they were not the work and wages bargainers. Therefore, it can be said that the earning rate according to gig economy is differentiated as independent contractors other than the employees. Thus, many of the rights were missing in these matters, which were of great importance to them.

Conclusion

From the above discussion, it can be understood that the present time belongs to the generation where everybody wants all the facilities instantly. More importantly, those facilities are available and are only a click away because every day new mobile or computer applications are being made to make the life of the human a little easier. However, if the matter is thought a little deeper, then some internal things can be understood. Most of the applications related to travel; food and shopping websites require delivery within a very short period. The mobile application, Uber ride offers a facility to book a car whenever it is needed. Also, the food app Foodora offers food delivery at home within a very short period.

When it is thought proper, it can be seen, that to fulfill the needs of the customers, the company has to employ a large number of workers. If there is a surge in the number of orders, then the number of employees needed also increase. On the contrary, if the number of orders is less, then the employees need to be much lesser than the previous. It means, by the amount of work, the company has to hire employees who may work as drivers of the cars, or as the food delivery person. This amount of work may vary from time to time. As a result, there are seasons where they need a higher number of employees, like during the festive season. So, the company hires many employees to deal with the needs of the customers. But sadly, after the end of the season, the demand also decreases, and so is the need of the employees. At that particular time, the company starts laying off its employees.

From the incident above, it is clear, that the work of these employees is highly unstable. And also, they have nearly zero job security. The studies done show that the company can get away by doing these because the type of jobs they offer cannot be regarded as real jobs. So, they can avoid punishment by stating that they are doing nothing out of the law. By understanding the changing need of the present, it can be understood that this “gig economy” is here to stay. But as the nature of this economy is very different from the traditional way of economy, so while applying different laws of the workplace, difficulties are faced by the employees. As a result, even if the workers get underpaid, or not compensated after meeting an accident, they lack the opportunity to take the case to court.

To deal with these problems, like all other countries the Australian government had also brought some acts which work on the safety and health risks of the employees of this “gig economy.” According to the act, the employees should get some basic facilities. They must also be treated as workers, and so they can have a worker’s associations which will look after the needs of the workers and also their safety.  These acts not only provide safety to the employees, but also to all the workers and non-workers who may get affected due to work.

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