Collectivising the Gig Economy in Australia

Abstract

18 | International Union Rights | 27/3 FOCUS | IMPACTS OF COVID-19 ON WORK AND THE CHALLENGE FOR UNION RIGHTS Collectivising the Gig Economy in Australia In July 2020, the Report of the Inquiry into the Victorian On-Demand Workforce was released1. This was the first full-scale government inquiry into platform work in Australia, possibly even globally. Inquiry Chair, Natalie James, tackled head-on the problem at the core of the gig economy: work status, and therefore access to protective employment regulation, is generally controlled by the platforms. The Inquiry found that platforms exercise significant levels of discretion and control over how gig work is organised, with no independent oversight. This presents challenges to Australia’s system of labour regulation, and uncertainty about which laws apply to gig workers. Arguably one of the most striking features of the Report is its public calling-out of what we know platforms like Uber, Uber Eats, Deliveroo and Foodora have been doing around the world for years: While there are a small number of notable exceptions, the arrangements established by the platforms with the workers are usually consciously framed to avoid an employment relationship arising between the worker and the platform. The Report also exploded the myth, propagated by the platforms, that gig workers are (universally) flexibility-seeking entrepreneurs who do not wish to be stifled by conventional employment arrangements: While certain platforms may characterise their workers as ‘entrepreneurs’, some platform workers do not fit the typical epitome of self-determined, selfemployed small businesses or ‘non-employee’ workers. Further, some platforms are highly controlling in how they organise elements of the work including, in some cases, setting prices for end users. A significant consequence of these arrangements, the Inquiry found, is that many gig workers are paid less than the Australian minimum wage (once the various costs and payment structures applicable to non-employee platform workers are calculated). Further, many platforms design contracts and control systems which are imposed on workers on a ‘take it or leave it’ basis, including work allocation through algorithms. This level of control, the Inquiry concluded, does not sit comfortably with the platforms’ entrepreneurship narrative. Noting that a person’s work status is ‘pivotal’, the Report went on to observe that the determination of that status ‘is rarely the subject of formal or regulatory scrutiny at the outset’ of a platform work relationship. The question of the worker’s true legal status is only tested if they challenge the presumption that they are not an employee and fall outside applicable employment law rules. However the putative contractor status of gig workers has been successfully contested in only one Australian case to date2. The Inquiry found, further, that: Platforms are unapologetic that they have chosen to operate outside the employment regulatory framework. … Platforms claim to be inhibited from extending more beneficial arrangements to workers by the risk that the relationship might then be characterised as employment, making their model untenable. The arrangements they have put in place are designed to mitigate this ‘reclassification risk’. The Inquiry made a series of recommendations for reform of Victorian and federal law to provide more choice, fairness and certainty for gig workers – in other words, to counter the platforms’ deliberate structuring of contractual and work arrangements in their favour. One critical recommendation was to ‘codify work status’ through a new statutory definition in the Fair Work Act, rather than relying on the present imprecise common law tests. This would involve placing the concept of entrepreneurship at the core of the employee/independent contractor distinction3. It would ensure that only genuinely self-employed, autonomous business people operate under commercial arrangements – and workers who operate as part of another’s business or enterprise are covered by protective labour regulation. Union representation and collective bargaining for gig workers The Victorian Inquiry noted that there are significant legal barriers to platform workers seeking to improve their pay and conditions by organising collectively. Their assigned contractor status excludes them from access to collective bargaining under the Fair Work Act, which is only available to employees. At the same time, as self-employed small business operators (unless they prove to the contrary in the courts), they are precluded from...