Under current NSW laws, all those gig workers who drive for Uber, deliver for UberEATS or do any number of tasks, are independent contractors rather than employees.
Employee rights are guaranteed and enforceable under the law and various wage agreements. An independent contractor’s rights, on the other hand, are determined under the terms of the contract between the worker and the ultimate contractor (in this example, Uber) that pays for the services. In theory, these rights are enforceable under contract law.
However, in reality, these rights are hard to enforce. The driver or tasker has no real power to negotiate the details of a contract, little money to sue and may be unfamiliar with the language and legal system. In a dispute with UberEATS (over tip allocation, for example), the delivery guy is likely out of luck. It may be $4 this time – not worth fighting over. But more realistically, it is $4 multiplied over all the UberEATS deliveries, multiplied over all the delivery workers.
If you are a gig worker, what can you do to enforce your rights?
If you work on any other sort of contract, what do the issues of gig worker mean to you? If you are a wage worker, do you feel the chilly winds of contract work at your back?
Wages vs. Contracting
The issue that makes work in the shared economy attractive for many – retirees, students and busy mums, for example – is flexible scheduling. You can work, or take the day off or work more, depending on what else is happening in your life. It is the same issue that is largely dispositive of whether a worker is legally considered a wage earner entitled to many statutory protections or a contractor with only contract rights. These may not include minimum wage, workplace safety protections or insurance in the event of injury.
There are other jurisdictions, like California, that have grappled with the implications of this distinction have crafted other multi-factor tests. But in Australia, the issue still seems to be relatively simple.
At a minimum, independent contractors should make sure that they understand the terms of their agreements and the limits of their entitlements. Only then is it really possible to make an informed decision about whether this work arrangement is suitable for your situation.
The proliferation of gig work has also sparked no small amount of political discussion about whether legislative change is necessary to protect otherwise vulnerable workers and to balance the needs of employers who may feel the need for an on-demand workforce.
Implications for other workers
It is not simply the Uber driver, though, who feels the effects of the growth of the shared economy. Some argue that the growth of a workforce that is not protected by wage, hour and other labor laws, weakens the bargaining position of those who have, for years, argued for the expansion of those rights.
On an individual level, the growth of the gig economy may also open the door to other forms of prohibited discrimination. Imagine the plight of the older worker who is pushed out of a job by subtle forms of age discrimination, but then offered the opportunity to perform the same tasks on a contract basis. The same could happen on the other end of the experience scale, where a newer worker is hired on a “provisional” or “trial” basis as a contractor, but somehow never brought on as a permanent wage earner.
Other legal protections may come into play, but the changing nature of work, including the growth of a subclass of inexpensive, unprotected workers may have implications for those who work in more traditional situations.
Do you have questions about your employment rights, whether you work in the gig economy or otherwise? The attorneys at Owen Hodge Lawyers are here to answer your questions. Please call us at 1800 770 780 to schedule a consultation.