Land­mark state­ment on the rights of gig economy workers

Uber and the Trans­port Work­ers Union (TWU) have signed a joint State­ment of Prin­ci­ples that calls for reform of the rights and con­di­tions of work­ers in the on-demand trans­port indus­try who are not engaged as employees.

The state­ment sig­nals sup­port for the Fed­er­al Gov­ern­ment leg­is­lat­ing for an inde­pen­dent body with the capac­i­ty to: set min­i­mum earnings/benefits and con­di­tions for plat­form work­ers; facil­i­tate a mech­a­nism to resolve dis­putes; ensure the effec­tive rep­re­sen­ta­tion of plat­form work­ers; and ensure that appro­pri­ate enforce­ment mech­a­nisms are in place.

The par­ties also com­mit­ted to hav­ing fur­ther good faith dis­cus­sions with a view to agree­ing on indus­try stan­dards in the food deliv­ery sector.

The state­ment comes in light of the Fed­er­al Gov­ern­ment hav­ing com­mit­ted before the elec­tion to reg­u­late 'employ­ee like' work­ers who do not ben­e­fit from the safe­ty net of the Fair Work Act 2009, pos­si­bly by extend­ing the pow­ers of the Fair Work Com­mis­sion to set min­i­mum terms and con­di­tions and facil­i­tate bargaining.

Gig econ­o­my work­ers are cur­rent­ly slip­ping between the reg­u­la­to­ry cracks. Gen­er­al­ly, there has been a reluc­tance to char­ac­terise them as inde­pen­dent con­trac­tors as they are not run­ning a busi­ness, and numer­ous attempts to have them recog­nised as employ­ees for the pur­pose of access­ing the statu­to­ry enti­tle­ments and the unfair dis­missal régime hav­ing proved large­ly unsuccessful.

Most recent­ly, in the case of Nawaz v Rasi­er Pacif­ic Pty Ltd T/A Uber B.V. [2022] FWC 1189, Com­mis­sion­er Hamp­ton found an Uber dri­ver was not an employ­ee based large­ly on the terms of the Ser­vice Agree­ment with Uber.

Despite accept­ing that were some ele­ments of the rela­tion­ship that could oper­ate unfair­ly, and that may even sug­gest Mr Nawaz was work­ing in Uber's busi­ness, Com­mis­sion­er Hamp­ton applied the recent High Court cas­es of Con­struc­tion, Forestry, Mar­itime, Min­ing and Ener­gy Union & Anor v Per­son­nel Con­tract­ing Pty Ltd [2022] HCA 1 (Per­son­nel Con­tract­ing) and ZG Oper­a­tions & Ors v Jam­sek & Ors [2022] HCA 2 (Jam­sek) which held in deter­min­ing the char­ac­ter of the rela­tion­ship regard is to be had to the par­ties' rights and oblig­a­tions set out in the writ­ten con­tract (pro­vid­ed it is not sham).

In his deci­sion, Com­mis­sion­er Hamp­ton observed at [243] that in many sit­u­a­tions with­in Aus­tralian work­places, imbal­ance in bar­gain­ing pow­er has led to reg­u­la­tion to estab­lish min­i­mum stan­dards and dis­pute res­o­lu­tion rights. The Com­mis­sion­er not­ed that any broad pol­i­cy response remains a mat­ter for the Par­lia­ments of Australia.

A deci­sion by Com­mis­sion­er Cam­bridge from last year in which he found a Deliv­eroo dri­ver was an employ­ee, is the sub­ject of an appeal to a Full Bench of the Fair Work Com­mis­sion (which had been wait­ing for the deci­sions in Per­son­nel Con­tract­ing and Jamsek).

Mean­while, attempts by food deliv­ery ser­vice Menu­log to cre­ate a new mod­ern award for its food deliv­ery rid­ers in the "on demand deliv­ery ser­vices indus­try" is still before the Fair Work Com­mis­sion, with issues regard­ing how the pro­posed award dif­fers from the Road Trans­port and Dis­tri­b­u­tion Award 2020 still being considered.

We will keep you advised of devel­op­ments in this fas­ci­nat­ing and ever-evolv­ing space.

For further information please contact:

Katrina Seck, Senior Associate
Phone: 02 9233 5544
Email: kas@swaab.com.au

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