With the gig economy converging on Australia in recent years, a growing number of Australians are rejecting traditional employment in favour of casual contracts. The booming digital landscape is seeing users offer their skills and services through platforms such as Uber, Deliveroo and AirTasker, however critics are warning the model compromises the protections afforded by conventional work.
The concern follows a recent Australian case which found that an Uber driver was not an employee for the purposes of the Fair Work Act. In Kaseris v Rasier Pacific V.O.F, an Uber driver had his services agreement terminated on the basis that he had failed to maintain an adequate rating. In disputing the claim, Kaseris brought an action before the Australian Fair Work Commission, asserting he had been unfairly dismissed.
However the Commission dismissed his application upon finding he was not an employee. In doing so, the court considered many elements of his relationship with Uber, ultimately deeming him an independent contractor on the basis that he; dictated his own work hours, provided his own car and equipment, paid his own GST and was not permitted to wear a work uniform.
The finding highlights the precarious nature of the gig economy and should serve as a warning to other gig workers. It is a timely reminder that Fair Work protections are offered only to employees, and that all workers who fall outside this definition cannot be guaranteed minimum wages, paid leave or collective bargaining rights.
Moreover, it has prompted calls for reform, with experts submitting “it may be time to consider a new category of ‘worker’ that covers contractors as well as employees.”
Michael Rawling and Sarah Kaine of Sydney’s University of Technology are reported as advocating an approach that mirrors Australia’s health and safety laws, in which the definition of ‘worker’ and ‘workplace’ are more broadly defined. As such, they propose that new legislation be drafted in order to extend fair work rights to workers who merely supply their services but are not considered employees.
Similarly, the Senate Select Committee on the Future of Work and Workers has recommended that the Australian Government amends the definition of ’employee’ to capture gig workers, to ensure they have full protection under the industrial relations system.
Ultimately the rise of digital technology has generated a diverse and rapidly changing economy and it will be interesting to watch as the law evolves in an effort to respond to the challenges it presents.
It is interesting to note that since this decision, the Fairwork Commission has held that a Foodora rider was an employee and thus entitled to damages for unfair dismissal. A summary of that decision can be found here.
