Last week the Melbourne Institute released its Household, Income and Labour Dynamics in Australia (HILDA) Survey finding no evidence of a rise in the use of independent workers, prompting commentary that the ‘gig economy is a myth’. One interesting aspect of this finding is the Survey’s ready equation of gig economy workers with the solo self-employed.
The HILDA Survey defines a self-employed person as anyone operating his or her own enterprise or engaging independently in a profession or trade, the question becomes is this an accurate description of gig economy workers?
In the case of Uber, the Fair Work Commission has twice held that Uber drivers are not employees for the purpose of assessing unfair dismissal.[1] However it would be premature to assume these decisions represent a settled position on the status of Uber drivers.
Professor Andrew Stewart has questioned the precedential strength of these decisions owing to the lack of full legal argument presented at trial and a failure to correctly consider the reasoning of the UK ruling which focused on the relationships between Uber and its drivers and importantly the drivers and their passengers.
‘What the British tribunal pointed out is that the drivers had no way of knowing their passengers, knew nothing about them and essentially had no meaningful dealings with them. The passengers were essentially dealing with Uber and they were Uber’s clients.’[2]
The question with regard to gig-based delivery workers is very much a live issue. Facing a TWU backed unfair dismissal claim and with the Fair Work Ombudsman set to commence proceedings for sham contracting, Foodora this week announced a hasty exit from the Australian market. The move suggesting apprehension on the part of Foodora itself as to the validity of its claims that its riders are independent contractors.
Given that the status of workers in the gig economy is far from legally settled and the enormous consequences this holds for those engaged as such, who are not receiving minimum wages, leave entitlements, workers compensation and superannuation benefits, the ready and unquestioning categorisation of these workers as independent contractors is far from prudent.
[1] Kaseris v Rasier Pacific V.O.F [2017] FWC 6610; Pallage v Rasier Pacific Pty Ltd [2018] FWC 2579.
[2] David Marin-Guzman, ‘Uber wins Fair Work Commission case over driver’s employment rights’ The Financial Review (online), 5 January 2018.