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.  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  HCA 1 (Personnel Contracting) and ZG Operations & Ors v Jamsek & Ors  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  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.