Regulating the Fairness of Work Contracts in the Gig Economy

Abstract

The growth of the ‘gig economy’ has prompted debate about the regulation of arrangements to obtain work and income through digital labour platforms. For platform workers who are classified as freelancers or independent contractors, rather than as employees, one possibility is to invoke general laws on the fairness of contractual terms to challenge the inclusion of harsh or one-sided provisions in the contracts of adhesion typically drafted and imposed by digital platforms. To test the potential application of one such regime, in pt 2-3 of the Australian Consumer Law ( ‘ACL’), we systematically analyse the terms and conditions used by various platforms intermediating work performed in Australia, within and across different industry sectors. Our analysis uncovers many examples of terms that are designated in s 25 of the ACL as potentially unfair or that have been identified as potentially problematic by the Australian Competition and Consumer Commission (‘ACCC’). We also examine the practical difficulties confronting a worker seeking to challenge the fairness of their contract terms, against the background of recent reforms to enhance the efficacy of this regime.