Can and how should the gig worker loophole be closed?

Abstract

AbstractThis article considers, summarises, and analyses the merits of various arguments regarding options for regulating (or not regulating) ‘gig work’, concluding with observations about currently proposed legislation. There is a strong argument for regulating gig work. Many workers are vulnerable, and many of the arguments against any form or regulation – in terms of innovation, productivity, employment, or the inevitability of this trend – lack merit. Current definitions of employment, indeed current labour law, are not adequate and many, but not all, gig workers are like employees in terms of the control exercised over them. However, treating gig workers as employees would encounter several problems. The outcomes would be uncertain. Not all would be covered. Many gig workers would be opposed (despite wanting protection). The gig firms could render such legislation ineffective, or alternatively succeed in mobilising opposition, almost ensuring such legislation would be revoked at the next change of government. Regulating gig work as a form of contracting is a viable alternative. It has the potential to attract support from gig workers themselves, undermining opposition by the gig firms, and attract support from some parts of capital. The New South Wales experience shows us that regulation of gig work as contracting is feasible and politically sustainable. Despite limitations, the ‘Closing the Loopholes’ Bill provides a sustainable model for regulating and protecting many ‘gig economy’ workers. It is time to envisage labour law as something that extends not just to employees but to many contractors as well.