Food courier

The Gig Economy – Friend or Foe?

Victoria Quayle ||

Technology has enabled people to become more creative in both how and when they work.

Due to the increasing attractiveness of being able to work your own way, in your own time and with a personalised level of spontaneity, a new class of worker known colloquially as either platform, or gig-economy workers, has come into existence – and as it stands, the law is yet to catch up conceptually.

Within the context of traditional worker categories, it is uncertain whether either employment or independent contracting rules should apply to this new type of worker, or whether an entirely new category (or group of categories) should be introduced.

Unfortunately, the position is currently unsettled both here in Australia and internationally.

In the UK case of Uber B.V v Aslam & Ors [2018] EWCA Civ 2748, the court held that two Uber drivers were defined as ‘workers’ under British legislation, and were thus entitled to minimum rates of pay, as well as other employment conditions such as paid leave.

The rationale behind this decision was that the workers had been providing transportation services on behalf of Uber, as it expected its drivers to accept all trips when the mobile application was turned on.
Accordingly, given the level of control that Uber exerted over its drivers, it was impossible for them to be operating a business at their own accord.

In the Australian case of Kaseris v Rasier Pacific VOF [2017] FWC 6610, the Fair Work Commission found that Mr Kaseris had failed to establish that he was an employee of Uber due to the fact that there had been no “wages-work bargain which is essential to an employment relationship”.

Deputy President Gostencnik stated:

“Perhaps the law of employment will evolve to catch pace with the evolving nature of the digital economy.  Perhaps the legislature will develop laws to refine traditional notions of employment or broaden protection to participants in the digital economy.  But until then, the traditional available tests of employment will continue to be applied.”

The Uber position in this particular case should be contrasted with the case of a food delivery rider, Klooger v Foodora Australia Pty Ltd [2018] FWC 6836, where the Fair Work Commission found that Klooger was actually an employee, and was thus entitled to make an unfair dismissal claim.  This worker was subsequently awarded over $15,000 in compensation.  Applying the multifactorial test, all indicia pointed to an employment relationship, as opposed to one of an independent contractor.

What these cases tell us is that the Uber model is unlikely to be considered one of ’employment’, whereas the Deliveroo and Foodora models probably are.  As such, it seems valid to say that this is an issue calling out for legislative attention, rather than court or Commission decisions which can deal only with individual cases, rather than broader conceptual issues.

With the Federal election just weeks away, it is unlikely that Australia will get a settled position on the characterisation of platform, or gig-economy workers in the near future.  At present neither the Labor or Liberal parties have any solid stance on this topic, although Labor is more likely to want to deal with this issue with a view to extending the safety net available to employees to gig-economy workers.  With this said, actually going through with this will be difficult and fraught with the risk of unintended consequences.

Watch this space!

If you have a query relating to any of the information in this piece, or you would like to speak with a lawyer in Coleman Greig’s Employment Law team with regard to your own matter – please don’t hesitate to get in touch today.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

Employers should exercise caution when dismissing during probationary period

Can you dismiss an employee during the probationary period? Yes, but a recent case is a lesson in caution. The recent Federal Court decision of ‘Dabboussy v Australian Federation of Islamic Councils’ is a warning to employers to consider the importance of timing if dismissing an employee during probation.

The business impacts from the Government’s new cyber security laws

Cybercrime ‘is a multibillion-dollar industry that threatens the wellbeing and security of every Australian’. In an effort to combat the impact on businesses and individuals, the Australian Government has introduced cyber security legislative reforms into the Parliament.

A guide to intrafamily adoption

Adoption is the process where a parent’s legal rights for their child are transferred to another person. The formal adoption of a stepchild or close relative is known as intrafamily adoption.

Passenger movement and visa data-matching by the ATO

Heading overseas for work or a holiday? Taxation issues, including tax residency, should be on front of mind when departing from or arriving to Australia. Why? Because the Australian Taxation Office (ATO) can follow your footprints and, if you’re not careful, spring unexpected taxes on you.

Is it really necessary for my executor to have so many powers?

People often question why the executor of their estate needs to have so many powers. Simply put – if your executor isn’t given any additional powers by your Will, then they are limited to what is set out in the Trustee Act. One area that this can lead to issues in, is the family home – particularly if beneficiaries aren’t in agreement.

Essential terms of a commercial lease

A commercial lease is a contract that details the rights and obligations of a tenant and landlord. So, what are the necessary terms of a commercial lease?

Responding to data breaches

In the final part of our four-part series on your business’ responsibilities related to cyber attacks and data breaches, Special Counsel John Bennett how businesses should respond to data breaches, including application and requirements of the Notifiable Data Breaches Scheme.

Security of personal information

Part 3 of a four-part series on your business’ responsibilities related to cyber attacks and data breaches where Special Counsel, John Bennett provides an overview of some court decisions and proceedings where ‘security’ of personal information has come into issue.

Parental alienation in Family Law

The concept, Parental Alienation Syndrome, was initially brought about by American psychiatrist Richard Gardner in 1985. The term parental alienation is used to describe a situation where one parent is involved in psychologically manipulating their child to turn against the other parent.

Are you liable for labour hire workers if they are injured?

Many employers (host employers) engage employees of labour hire companies, particularly in the building and construction, hospitality and manufacturing industries. However, what happens when one of these employees gets injured at the host employer’s work site? Who is liable for the injuries?

© 2024 Coleman Greig Lawyers  |  Sitemap  |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230