I’ve posted below a presentation I gave to the SERI Outreach Conference in May last year. It takes a preliminary look at some aspects of the evolving approach to regulation of the gig economy in Australia – and in particular, how established unions and at least one newer collective worker group are seeking to represent the interests of gig workers.
There have been some significant developments since then, including the following:
- Two unrepresented Uber drivers have brought unfair dismissal claims, in which it was determined that they were independent contractors (not employees), so their claims could not proceed: Kaseris v Rasier Pacific V.O.F.  FWC 6610; Pallage v Rasier Pacific Pty Ltd  FWC 2579
- Foodora departed from Australia in August 2018. It was facing the prospect of an unfair dismissal claim (which is still proceeding against the company’s administrators), and an investigation by the Fair Work Ombudsman, both of which would set important precedents on the employment status of food delivery riders.
- The Victorian State Government recently established an Inquiry into the On-Demand Workforce: https://www.premier.vic.gov.au/new-inquiry-to-investigate-the-gig-economy/
The discussion below highlights examples of efforts to provide collective voice and representation for workers engaged in platform work. I’m collecting evidence of more recent examples so there will be further posts on this topic.
The Future of Work in Australia: Balancing Innovative Service Provision
and the ‘Social Licence to Operate’
Professor Anthony Forsyth, RMIT University Law School, Melbourne
Presentation for the 2017 SERI Outreach (Annual Conference on International Comparisons) – ‘Is my employer an algorithm? Does Uber redefine the employer’s notion? Protections in Gig-Economy and Post-Industrial Corporations’
Scuola Europea di Relazioni Industriali and Economia&Lavoro, Rome, 18-19 May 2017
The gig economy has definitely arrived in Australia. Global players like Uber, Deliveroo and Foodora have established Australian operations in the last few years – while local brands such as Airtasker have also emerged to occupy a significant place in the ‘gig’ market-place.
The evolution of platform-based work presents unique challenges in Australia because of our strong tradition of protecting minimum employment standards. The ‘triple-level’ approach – National Employment Standards for all employees, modern awards applying at sectoral level, and enterprise-specific collective agreements – is distinct. It has the potential, along with protective regulation of workplace health and safety, workers’ compensation and superannuation entitlements, to put a handbrake on the innovation that is occurring in the expanding gig economy.
As in other countries, gig companies have established in Australia on the basis of a contracting model – i.e. an assumption that the people they engage to provide services are independent contractors. However in a country with a long-standing legacy of fair treatment in the workplace (our principal statute is called the ‘Fair Work Act’), there was always going to be a backlash.
The position gig operators have adopted on employment rights raises a number of broader questions. First, as International Trade Union Confederation General Secretary Sharan Burrow recently put it – in the context of the imminent arrival in Australia of Amazon – there is the issue of the ‘social licence to operate’ (she questioned whether Amazon in other countries ‘was doing enough to respect workers’ rights, safety and paying enough tax’).
Secondly, there is what I describe as the ‘regulatory conundrum’ of achieving a balance between social protection and fostering innovation – or as the European Commission has put it, the collaborative economy can ‘make an important contribution to jobs and growth … if encouraged and developed in a responsible manner’.
I will illustrate exactly what ‘responsibilities’ arise in the context of Australian employment law – and how unions are responding to the rapid growth of gig work – before addressing the broader issues highlighted above.
Overview of Australian labour relations and the regulatory framework
First, some brief background, briefly, about the Australian system of labour regulation. For most of the last century, we have had a very strong framework of protection for employees and support for trade unions – when compared with many other countries.
The Fair Work Act 2009 provides 3 inter-connected sources of minimum employment rights:
- National Employment Standards (NES):
- 10 statutory entitlements for all employees – these include various leave entitlements (e.g. 4 weeks’ paid annual leave), the right to advance notice of dismissal, and severance pay
- Modern Awards:
- a legal mechanism for setting wages and employment conditions across entire industries (there are 122 modern awards in operation)
- e.g. in relation to food delivery workers, the relevant modern award (if they are classified as employees) is the Road Transport and Distribution Award 2010
- modern awards set down a further 10 minimum terms and conditions (in addition to the NES), including minimum wages; regulation of hours of work and rostering; additional payments for overtime/weekend work (known as ‘penalty rates’, e.g. 1.5 times the hourly rate of pay – these have been very important traditionally in Australia, but are now under pressure with the shift to a 24/7 economy)
- Enterprise Agreements
- the ability to make an agreement to apply for ‘all or part of a single business’ was introduced in the early 1990s (essentially, to give employers the opportunity to vary industry-level award conditions, and obtain flexibility leading to improved productivity at firm-level)
- given that most gig operators treat their workers as contractors, not employees, this form of regulating wages and employment conditions is not really relevant at this stage (but it could be as unions increasingly seek to represent these workers)
There are two key institutions which have a role in the Fair Work system:
- Fair Work Commission (FWC) – as well as settling a wide range of employment disputes, the FWC sets the national minimum wage to apply from 1 July each year (now A$17.70/hour = €11.98 or A$672.60 for a 38-hour week, standard for full-time employees, = €455.24)
- Fair Work Ombudsman (FWO) – provides advice and information about employment rights and obligations, but more importantly is responsible for enforcing the NES and awards; FWO could therefore investigate and bring enforcement proceedings on behalf of any workers in the gig economy, if it can be established they are employees (with the potential for recovery of up to 6 years’ underpayment and civil penalties)
The upshot of all this is that the stakes are very high for gig companies – their business model would be significantly undermined if workers were categorised as employees. If that were to occur (on the application of the common law test), most likely they would be treated as casual employees who miss out on most of the NES entitlements, e.g. they do not get annual leave. Nevertheless they would be entitled to the minimum wage, a 20-25% casual loading, penalty rates for overtime/weekend work, and union representation in bargaining for an enterprise agreement. Long-term casuals may also be entitled to challenge unfair dismissal.
Snapshot of the gig economy in Australia
It is estimated that around 0.5% of the workforce or just under 80,000 workers are engaged through ‘peer-to-peer’ platforms like Uber, Airtasker and Deliveroo. That is relatively small in overall terms, but there has been very rapid growth in this sector in a fairly short time. Uber driver numbers tripled in 2015 (there are now 18,000 in Melbourne alone), and the number of jobs posted on Freelancer has risen 25-30% each year.
The federal Government welcomes the shift to the ‘sharing economy’ model, e.g. the Employment Minister recently told Uber (after a briefing with the company): ‘Wow, you are the reality of where the future of work is going!’ State governments around Australia deal with regulation of accommodation provision and the taxi industry – mostly, these laws have been adjusted to allow Airbnnb and Uber to operate.
The Productivity Commission has noted that gig or peer-to-peer work is mainly task-based, with consequent potential to change the nature of the employment relationship. Platforms offer considerable benefits to workers, including flexible working hours and the opportunity to supplement income. However, this may come at the cost of employment security, stability of income and health and safety protections. Further, some workers may have to accept engagement as an independent contractor to remain in their chosen industry (e.g. journalists, designers).
The inevitable backlash
For these reasons, not everyone is so excited about the advent of gig working in Australia. We definitely have our share of sceptics and doomsayers, e.g. the Dean of Sydney University Law School (Professor Joellen Riley) expressed concern last year that digital platforms: ‘are just creating a new way for the wealthy people to ring their bell for the workers to come running and do very basic tasks’.
This reflects the concerns of the union movement, which has become active in seeking to organise and represent gig workers. Some Australian unions see the gig economy as a tremendous opportunity to reach a new generation of younger workers, with social media becoming a powerful organising tool. We are also seeing self-organisation among worker groups to improve working conditions, e.g. Uber drivers, along the lines of the recent Foodora protests in Turin.
Examined below are some of the issues that are arising in relation to a selection of gig operators in Australia, and the ways in which unions and more informal worker organisations are responding.
The Transport Workers Union (TWU) is the established union with coverage of Uber and other ride-share drivers. Its starting position was to oppose the emergence of Uber, which it saw as a threat to the safety standards and jobs of drivers in the taxi industry. In 2015, TWU National Secretary Tony Sheldon stated that: ‘Nobody wants to hold back technology’s tide, but we need a serious national discussion about how the dividends of technology are fairly distributed.’ The union has since sought to advocate on behalf of Uber drivers, calling for recognition of their rights to collective bargaining, dispute resolution and protection from unfair dismissal.
Perhaps reflecting the TWU’s minimal success in representing Uber drivers (unsurprisingly, given the union has struggled historically to sign up taxi drivers), a new group called ‘RideShare Drivers United’ (RSDU) has emerged recently. It held a driver’s strike and protest in Melbourne on 11 April this year, in which it claimed 1200-1500 drivers participated. RSDU’s key claims include the following:
- Uber drivers are making as little as A$11.00 per hour after expenses, and before they deduct their own tax and allow for superannuation (this hourly income is substantially less than the minimum wage)
- drivers are therefore working up to 16-hour shifts to make ends meet
- Uber has cut fares by up to 30% in some cities, guaranteeing this will lead to higher incomes for drivers, but the opposite has occurred
- RSDU is seeking an increase in base rates, compensation for fluctuations in petrol pricing, and a 12-hour cap on daily working time.
In response, Uber maintains that the RSDU has not formally made contact with the company to discuss its concerns, and that it holds roundtable meetings with driver partners to obtain feedback and answer questions.
RSDU appears to be operating in Melbourne, Perth, Sydney and the USA. It offers free membership, and aims ‘to help unite [Uber and Lyft] drivers anywhere in the world with fellow drivers right next door, to help change our situation right here right now!’ Through the RSDU driver app, drivers are alerted any time a ‘collaborative action’ is planned for their area or when a ‘vote’ is required for future collaborative events/actions. Although utilising modern communication methods, RSDU’s philosophy bears all the hallmarks of traditional trade unionism:
Download and share the RSDU app among other drivers. Let’s all stand together and ensure that our rights to a fair days [sic] work are not exploited. It is only through large scale collaborative effort that we can send a strong message to the ride share companies. A message they can not [sic] ignore.
Airtasker is similar to platforms like TaskRabbit through which jobs or tasks which consumers want performed are matched with people who are available to do the work (there is also Freelancer for professional services). Airtasker states that it is ‘a trusted community marketplace for people and businesses to outsource tasks, find local services or hire flexible staff in minutes – online or via mobile’.
Through their Airtasker accounts, ‘job-posters’ create tasks by providing details and indicating the rate to be paid (payment is per task, and the advertised rate must include Airtasker’s 15% fee). Workers interested in completing the task can pitch for it at the advertised rate or seek to ‘bid down’ the rate of pay which has been offered.
The peak union body in the state of New South Wales, Unions NSW, has run a quite effective campaign over the last year arguing that Airtasker ‘has used a cloak of innovation and progress to re-introduce archaic and outdated labour practices, circumventing minimum wage rates and removing employee safety nets.’ Unions NSW further contends that:
- Airtasker relies on its User Agreement description of a worker being selected by a job-poster as ‘winning’, to establish a ‘task contract’ which does not involve Airtasker and is an independent contractor relationship between job-poster and worker
- this is despite Airtasker’s Marketplace Rules specifying various forms of control (e.g. deactivation of an account if the rules or agreement are violated)
- by allowing businesses to hire task-based workers through ‘Airtasker Business’, the company is effectively ‘acting as a labour hire agency’ and ‘should be required to comply with the regulations and legislation that govern labour hire firms including the classification of these workers as employees of Airtasker’
- far from being novel or innovative, Airtasker’s business model ‘is no different to a combination of unregulated Taylorism within a Dickensian marketplace where workers compete for bite-sized fragments of labour’.
Airtasker’s CEO Tim Fung recently told a Senate Committee (examining corporate avoidance of the Fair Work Act) that the company has around 1.2 million users and paid A$75 million to workers for performing tasks in 2016, after its 15% commission. He stated that Airtasker does not check whether people bidding to perform work through the platform are independent contractors, or whether they have an Australian Business Number (ABN). Fung argued that the bidding process usually involved workers bidding around 30% higher than the job-poster’s proposed rate, and the agreed price ends up somewhere between the two. In contrast, Unions NSW claims that workers generally ‘bid down’ to secure work from job-posters.
Unions NSW has achieved some success recently in its Airtasker campaign. In what was described as a ‘world first’ for the gig economy, the company has agreed to provide certain minimum conditions for workers performing services through the platform, including:
- recommended payment at above comparative award rates
- development of a dispute resolution process in conjunction with Unions NSW and the FWC
- offering workers an insurance product (similar to workers’ compensation insurance)
- implementing ‘best practice’ health and safety standards for the benefit of workers and job-posters.
Safety issues have been a major focus of union concerns about Airtasker. Prior to the recent agreement it reached with the company, Unions NSW had highlighted the lack of protection provided to workers for personal injury or damage to their property when performing tasks for job-posters through the platform – and the absence of any verification of licences for workers carrying out trades-qualified tasks such as electrical, plumbing and building work.
While Unions NSW expressed the hope that its recent progress with Airtasker would be reflected in arrangements with other gig companies, Sidekicker and Freelancer have already indicated they will not follow this lead. These companies maintain that ‘unlike Airtasker they have stringent policies in place to protect contingent workers’:
- Sidekicker provides services in hospitality, events, promotions, administration and retail. It says that minimum rates are set for workers, who are usually directly employed through an inbuilt tool which does not permit customers to pay below-award rates.
- Similarly, Freelancer claims that it ‘has steps in place to ensure Australians can’t bid less than the minimum wage ($17.70) on the platform. “There’s an error message if you try and do that” …’.
Deliveroo and Foodora
These two food delivery companies have expanded rapidly in Australia. Deliveroo, for example, signed up 1200 restaurants in its first 10 months of operation. It faces fierce competition not only from Foodora, but also UberEATS, JustEat and Delivery Hero. It is in this sector of the gig economy that union activity has, arguably, been the strongest in Australia – especially in Melbourne – alongside a union-client law firm.
The newly-formed Young Workers Centre (YWC) of the Victorian Trades Hall Council has actively sought to engage with, organise and represent food delivery workers through its ‘Rights for Riders’ campaign. YWC argued, in its submission to the Senate Inquiry into corporate evasion, that the gig economy is simply ‘sham contracting rebadged’:
Young people working in the gig economy are largely engaged as independent contractors with their own [ABN]. The gig economy is characterised by temporary short term work, where workers have no guaranteed hours of work or income , and do not benefit from the protection of minimum conditions of employment [under the NES and awards]. … [Many of them, however] are in reality economically dependent on a single client or are dependent contractors in that they have no authority over their own work.
This contracting arrangement deliberately shifts responsibility for working costs (bikes or cars and their maintenance, phone costs and internet data plans) and employer responsibilities (superannuation, tax and insurances) from the employing company to workers.
YWC presented a number of case studies in its submission, including a comparison of weekly income received by food bike couriers under three different Deliveroo contracts, with the applicable rates under the Road Transport and Distribution Award and federal superannuation legislation. This analysis showed a shortfall (described as ‘wages stolen per week’) of between A$72.91-A$158.91 in income and A$32.20 in superannuation.
YWC is working with plaintiff law firm Maurice Blackburn, to collect evidence of mistreatment among food delivery workers with a view to running a test case (on employment status), possibly as a class action. This may include proceedings to establish that workers have been deliberately misclassified as contractors (i.e. ‘sham contracting’ under sections 357-359 of the Fair Work Act).
Deliveroo maintains that its riders can achieve higher pay than the award minimum of almost $23 per hour for a casual (paid at 1.5 times that rate on Saturdays and double time on Sundays). The company has utilised various rider contracts to date in Australia, with payment arrangements including a flat ‘drop rate’ (i.e. fee per delivery) and a combination of base hourly rates plus delivery fees. The company’s Australia Manager Levi Aron says:
We are confident with our model, and the way our model works and working with independent contractors. Unfortunately there was a lot of misinformation last year: our riders get paid per drop, so they are not being paid per hour but by the drop, per delivery. So what we do with our drivers is we work with them to educate them about when those busy times are – we know, obviously, it’s busy on a Thursday night or a Friday night, Saturday night – and which suburbs are busy, where you want to go. We work with our riders to allow them to make as much money as they possibly can while working as a Deliveroo rider.
The regulatory conundrum: innovation -v- the social licence to operate
To sum up, then, the gig economy contracting model is now being subjected to considerable re-assessment in Australia. There was intense interest in the UK Employment Tribunal decision in late 2106 finding Uber drivers were ‘workers’ for purposes of certain employment legislation. An Australian test case is likely before too long. The prospect of reclassification of gig workers as employees through such cases is a more realistic proposition than addressing the issue through legislation, at least while the current (conservative) federal Government remains in office. There is little, if any, discussion in Australia of adopting an intermediate category of ‘gig worker’ (falling between employee and independent contractor). The major development to date has been the vigorous activity of some unions in attempting to gain traction with young gig workers, and (to a lesser extent) spontaneous worker self-organisation. Social media has figured prominently in union organising efforts.
It seems fairly clear from various evidence sources internationally that gig workers are, mostly, not self-employed entrepreneurs but rather low-income workers for whom this way of performing labour is their main source of income – or is being done to supplement income from their main job. Although it has not yet been measured empirically, it seems reasonable to assume that this conclusion would also hold true in Australia. As Unions NSW has put it, the flexibility of the gig economy ‘shouldn’t have to be intrinsically linked with a wage discount or reduction of key workplace standards and safety nets like workplace insurance, superannuation’ and fair dispute resolution processes.
As against this, there is anecdotal evidence that some workers obtain significant benefits from gig engagement, mostly related to flexibility and control over working time. Further, there is no doubt that the exponential growth of the Australian operations of many gig companies reflects shifting consumer preferences – they have found a firm place in the market for a reason. The platforms argue against constraining this unique form of innovation through regulatory intervention which might ‘kill it off’. In considering any regulatory response, it must also be borne in mind that there is no uniform ‘gig sector’. Gig players provide different services, and the relationships they form with workers vary considerably.
However, in addition to the compelling view that innovation should not come off the back of worker exploitation, there is a broader range of issues that need to be considered regarding the sustainability of these new business models. In Australia, these wider social implications include:
- the question of fairness in retirement incomes as a consequence of superannuation obligations not being triggered due to the nature of gig engagements (i.e. a worker engaged through several different platforms may not meet the $450 per month threshold for superannuation payments from any one of them)
- the impact on the national tax base and the federal budget if gig employers are able to bypass employment regulations, leading to informal arrangements under which tax is notionally the worker’s responsibility (but may not end up being remitted at all)
- the irregular nature of task-based work, and the income which arises from it, may compound the already significant hurdles young people face in entering the Australian housing market (or even just affording rental payments).
Overall, it is hard to resist the conclusion that gig engagement in its present form involves a level of transferring of risk from business to the individual, with potentially detrimental – and largely unforeseen – impacts on society. The weighing up of regulatory options to address employment issues must address the question of what conditions should be attached to the social licence to operate for gig companies, in Australia and globally.
 Ben Schneiders and Royce Millar, ‘Unions vow to take on Amazon as its harsh reputation precedes it’, Sydney Morning Herald, 22 April 2017.
 European Commission, A European Agenda for the Collaborative Economy, Brussels, 2 June 2016, 2 (see also 16).
 This test assesses employee or contractor status based on the reality of the relationship between the contracting parties (rather than how they have described the relationship), with regard to factors including the level of control that is exercised over the work being performed; method and frequency of payment; whether tax and superannuation are deducted; whether the worker supplies their own equipment, carries risk or stands to gain profit, can delegate work to others, is engaged in genuine entrepreneurial activity, etc.
 See further Jim Minifie, Peer-to-Peer Pressure: Policy for the sharing economy, Grattan Institute, April 2016.
 ‘Govt makes ‘future of work’ IR battleground for election’, Workforce, 22 April 2016.
 Productivity Commission, Digital disruption: what do governments need to do?, Research Paper, 2016.
 Ibid; see also Minifie, 2016.
 Anna Patty, ‘Fears gig-economy threatens loss of 100 years of workplace rights’, Sydney Morning Herald, 19 May 2016.
 Arianna Tassinari and Vicenzo Maccarone, ‘Striking the Startups’, Jacobin, January 2017.
 TWU, TWU demonstration against Uber over safety and unfair competition, 21 April 2015, at: http://www.twu.com.au/home/media/twu-demonstration-against-uber-over-safety-and-unf/
 Patty, 2016.
 ‘TWU on Uber and Taxi Council: ‘Let’s clean up this disgrace of an industry’’, Workforce Daily, 3 July 2015.
 ‘Uber drivers signal further strikes after Melbourne ‘log-off’’, Workplace Express, 12 April 2017.
 Unions NSW, Innovation or Exploitation? Busting the Airtasker Myth, 2016, 3.
 Ibid, 1.
 Ibid, 3.
 Ibid, 4.
 Ibid, 10.
 Ibid, 11.
 An ABN is an identifying number issued by the Australian Taxation Office when a business is registered with it for tax purposes. Businesses often insist that a worker accept engagement on the basis that they have an ABN, which is erroneously taken (of itself) to establish contractor status.
 ‘Airtasker says its bidders not employees’, Workplace Express, 19 April 2017.
 ‘FWC gets Airtasker disputes bid’, Workplace Express, 1 May 2017; see also David Taylor, ‘Airtasker agrees to minimum working conditions for ‘gig economy’ contractors’, ABC News, 2 May 2017; Anna Patty, ‘Airtasker and unions make landmark agreement to improve pay rates and conditions’, Sydney Morning Herald, 1 May 2017. This followed Airtasker’s agreement, late last year, to increase its minimum rate by 45%: AAP, ‘Airtasker job outsourcing site raises hourly rate after Unions NSW report’, The Guardian, 18 October 2016.
 Unions NSW, 2016, 9; ‘Airtasker says its bidders not employees’, Workplace Express, 19 April 2017.
 ‘Unions pursuing others in gig space after Airtasker deal’, Shortlist, 8 May 2017.
 Michael Bailey, ‘Deliveroo boom faces Fair Work reality check’, Australian Financial Review, 9 August 2016. On the global food delivery market see Carsten Hirschberg et al, The changing market for food delivery, McKinsey & Company, November 2016.
 YWC, Young Workers Centre Submission: Inquiry into Corporate Avoidance of the Fair Work Act, January 2017, 3.
 Ibid, 6 (emphasis added).
 Ibid, 6-7; the analysis is based on the assumption of a 21-year old rider, averaging 5 deliveries per shift, with 3 shifts per week on weeknights and 1 shift on a Saturday night (attracting applicable award penalty rates).
 Bailey, 2016; see also James Norman, ‘App employment not an easy gig’, The Sunday Age, 13 November 2016.
 Bailey, 2016.
 Eli Greenblat, ‘Reinventing Business’, The Australian (Food), March 2017.
 Aslam and Farrar v Uber B.V., Uber London Ltd and Uber Britannia Ltd (Case Nos: 2202550/2015 and Others, 28 October 2016; now the subject of an appeal). See also Dewhurst v Citysprint UK Ltd (Case No: 2202512/2016, 5 January 2017); and Pimlico Plumbers Limited v Mullins Smith  EWCA Civ 51.
 ‘Uber’s UK court setback sure to have Australian sequel: experts’, Workplace Express, 4 November 2017.
 See for example Valerio De Stefano, The rise of the ‘just in time workforce’: On-demand work, crowd work and labour protection in the ‘gig economy’, Conditions of Work and Employment Series No. 71, International Labour Office, Geneva, 2016; Charted Institute of Personnel and Development, To gig or not to gig? Stories from the modern economy, Survey Report, CIPD, March 2017.
 Unions NSW, 2016, 11.
 Janine Berg and Valerio De Stefano, ‘It’s time to regulate the economy’, speri.comment: the political economy blog, 18 April 2017; like the YWC (see above), these authors contend that ‘‘gig economy’ work is simply twenty-first century casual work rebranded’.
 See Alice Uribe, ‘Super must adapt to the rise of the ‘gig economy’’, Australian Financial Review, 1 February 2017, where the Association of Superannuation Funds of Australia argued that superannuation entitlements must become more flexible and available to ‘on demand’ workers with ‘portfolio careers’.