Publicly-funded jobs are traditionally secure and well-paid with good conditions, setting a standard for the private sector. However, as the committee's second interim report identified, this legacy has increasingly come under threat.
Public sector jobs have faced unprecedented outsourcing in recent decades and there has been a growing use of consultancy firms, contractors, labour hire and fixed-term roles. Meanwhile the capacity of the permanent public service has been diminished.
Likewise in publicly-funded employment sectors, like aged care and disability care services, there has been a shift towards casual employment and the use of independent contractors through on-demand platforms ('Uberisation'), compounding a pre-existing, widespread, insidious use of low minimum‑hours permanent part-time contracts.
In these sectors, significantly less than 10 per cent of direct care workers hold full‑time permanent jobs, despite the fact that almost half of employees in these sectors regularly work a full‑time load of more than 35 hours a week—often for years with the same employer.
In its second interim report, the committee considered the significant purchasing power of the Commonwealth—as an employer, as the primary funder of the National Disability Insurance Scheme (NDIS) and the aged care sector, and as a major buyer of goods and services across the Australian economy—and made a number of recommendations.
These recommendations were aimed at ensuring the Australian Government would continue to play a role in creating and supporting secure jobs across the nation.
The committee reiterates its support for Recommendations 2 to 38 of the second interim report, relating to aged care, disability care, higher education and public sector workers, the National Broadband Network and Commonwealth procurement.
This chapter is primarily focused on the 'Uberisation' of aged and disability care services and the need for governments to act decisively to negate the potential negative impacts of this trend on job security, and as such, primarily revisits the committee's first interim report.
However, it begins with a brief look at the Finance and Public Administration References Committee's 2021 report into the Australian Public Service (APS).
Rebuilding the APS
The committee notes that the Senate Finance and Public Administration References Committee (F&PA Committee) completed its inquiry into the current capability of the APS shortly after this committee's second interim report was published.
The F&PA Committee's substantial report made 36 recommendations, aimed at:
limiting the use of labour hire and consultants by the APS;
increasing direct, permanent employment and building the skills and capacity of the APS;
improving data collection and use;
better equalising pay rates;
increasing transparency and monitoring, and improving guidelines; and
bolstering the integrity and independence of the APS.
The committee supports the recommendations in the F&PA Committee's report and notes that many of the F&PA Committee's recommendations were in line with those in our second interim report. The committee echoes these words from their executive summary:
The committee believes that the APS must end its overreliance on external workforce and consulting arrangements and find other ways to be flexible within the funding envelope set out in the Budget, while building core skills, knowledge, and APS capability.
Recommendations relating to on-demand platforms in the care sector
In its first interim report, the committee identified that platform companies have been moving into a number of publicly-funded employment sectors—most notably aged and disability care—purporting to provide a service connecting workers directly with consumers, while claiming to have little or no responsibility to the workers engaged through their platforms.
The Australian Services Union (ASU) submitted that platform or gig work is 'more prevalent than previously thought' and is 'growing in the disability sector', with recent years seeing 'a steady increase in [Australian Business Number] ABN registrations'.
The online disability services platform company, Hireup, which employs its workers, said that, while reliable data is difficult to obtain, it has observed that:
At one of the largest contractor platforms, the number of contracted workers more than doubled in one year from August 2019 to August 2020, reaching more than 8,000 contracted workers. The figure is now more than 10,000 workers.
At a smaller platform, the number of contracted workers increased by nearly 50% in 7 months from February 2020, to more than 1,700 workers.
There are now approximately eight contractor platforms operating. In 2014, there was one.
The committee reported that governments have signed small-scale contracts with some of these platform companies, trialling their service offerings alongside more traditional options. One example was the $5.8 million contract awarded to Mable by the Federal Government in 2020 to provide surge workforce capacity during the pandemic.
The committee heard evidence about risks posed by on‑demand platform models in these sectors, including work health safety (WHS) concerns, low rates of pay and substandard conditions for workers. Inquiry participants were also concerned that a growth in these jobs may undermine employment conditions in the industry more broadly, which are already some of the most precarious in the economy.
To address these concerns, the committee made a number of recommendations, which are summarised below:
Recommendation 4 aimed to have Safe Work Australia develop high-level guidelines on the application of the model Work Health and Safety Laws to the on-demand platform sector, specifically to prevent companies engaging in practices that incentivise unsafe behaviours—such as using algorithms that encourage speeding or working excessive hours.
Recommendation 5 was designed to clarify a possible 'grey area' in the law. The committee recommended the Australian Government 'urgently' clarifies which party/parties owe a duty of care as a person conducting a business or undertaking (PCBU) under the Model Work Health and Safety laws when it comes to individual support workers engaged through on-demand platforms like Mable. The committee made its view clear that the law should state that the platforms that engage these workers should be considered the PCBU under the law, and owe the 'duty of care' to the worker, 'regardless of that worker's work status (employee or contractor), or their visa status'.
In Recommendation 12 the committee expressed its view that the Joint Standing Committee on the National Disability Insurance Scheme should 'give specific consideration' to a number of matters relating to platform‑based work in the disability sector as part of that committee's ongoing inquiry into the NDIS Workforce. Those matters included: the prevalence and growth of on-demand employment in the sector; earnings and conditions; training, safety and insurance; and issues relating to WHS law.
Recommendation 13 followed on from 12, stating that, pending the outcome of such an inquiry, the Australian Government should consider 'regulatory options' to ensure that all NDIS workers receive 'fair pay and conditions, including those engaged through on‑demand platforms'.
Finally, Recommendation 14 envisaged the design of a national scheme to connect and extends current state and territory long service leave schemes in order to provide 'portable long service leave, sick leave and other leave entitlements, and portable training entitlements', to all workers delivering services under the NDIS.
Responses and new evidence
After the publication of its first interim report, the committee wrote to all relevant submitters and witnesses and invited them to provide feedback on the conclusions and recommendations from that report.
This section considers these responses along with additional evidence collected over the course of the inquiry.
Work Health and Safety
This section discusses responses and new evidence in relation to Recommendations 4 and 5.
Professor Joellen Riley and Dr Michael Rawlings agreed that Safe Work Australia should develop new guidelines applying WHS standards to on‑demand work, with the guidelines to recognise that, in many on-demand platform sector jobs, the workers are 'rarely … 'persons conducting' their own enterprises for the purposes of WHS legislation'. They also agreed that legislation should clarify that the platform business is the PCBU and owes the duty of care.
The ASU said 'growing evidence' indicates that platform and agency workers are at higher risk of injury 'than other workers undertaking the same task', while current WHS legislation leaves open the possibility that they could be 'denied protection'.
If these workers are to be protected, the ASU suggested the Fair Work Act 2009 should be amended to ensure all workers are covered, regardless of their work status. The union added it believes 'a PCBU owes a duty of care to worker, regardless of that worker's work status'.
However, the ASU was opposed to any workplace health and safety legislation being 'contingent upon' an employer making money from the arrangement, on the basis that 'few employers' in the care sector actually 'make money'.
The ASU was also critical of suggestions that people with disabilities should be considered incapable of having responsibilities as employers, should they choose to engage workers directly; and suggested instead:
… that there should be appropriate access arrangements in place, including the use of 'easy read' and other strategies, to ensure that people with disability, including cognitive disabilities, are able to directly engage support workers if that is their preference. To do otherwise is to specifically demean people with disability and refuse their right to dignity of risk within the NDIS framework.
Hireup, on the other hand, agreed with the committee's assertion that there is a risk that an NDIS participant who hires a worker through certain platforms 'as a contractor may later be deemed as the worker's employer'—and thus considered the PCBU for WHS purposes when they never intended, understood, or, indeed, wanted this to be case. This could, Hireup submitted:
… leave the NDIS participant exposed to potentially substantial claims for underpayment or legal claims for failing to provide lawful working conditions and entitlements to the worker.
Hireup provided examples of terms and conditions used by online platforms that are currently active in the disability sector which attempt to shift all responsibility onto workers and the participants who engage them. A selection of these terms and conditions are reproduced below:
<the platform> makes no representation that the service provider is suitably qualified, skilled and trained.
<the platform> does not guarantee the quality, appropriateness, safety or otherwise of the NDIS services, nor that the NDIS service meet the NDIS Quality and Safeguards Framework. You accept the risks arising out of Your use of the Platform to the maximum extent permitted by law.
Participants are the potential employers of Disability Services Providers (depending on frequency of use) and are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish (such as applicable employment standards legislation (including minimum wage laws), occupational health and safety legislation, and worker's compensation insurance or benefit programs.
Members seeking care or support workers are solely responsible for the selection and recruitment process including compliance with all applicable State, Territory and Federal laws.
The care or support worker is liable for all acts or omissions in the provision of care services.
The committee notes evidence provided in its first interim report suggesting these terms and conditions are unlikely to exclude platforms from an obligation to workers as a PCBU, and that platforms cannot transfer their responsibilities onto another party. However, there has never been a test case, and companies like Mable continue to operate with these kinds of terms and conditions publicly displayed on their websites.
The ASU made three additional recommendations in relation to WHS, which are summarised here:
That the National Disability Insurance Agency (NDIA) should establish a 'floor price' which incorporates 'sufficient funding for all providers … to comply with workplace health and safety standards, including WHS training'.
That WHS Regulators should be funded to ensure 'access to workers and enforcement' of WHS legislation for all workers under the NDIS.
That NDIS Quality and Safeguards Commission, the Fair Work Commission and Fair Work Ombudsman must be 'adequately resourced' to allow them to enforce relevant industrial legislation and instruments, for all workers within the NDIS, including platform workers.
The committee acknowledges and thanks the ASU and Hireup for their feedback in relation to Recommendation 5.
The committee did not intend that Recommendation 5 limit responsibility as a PCBU only to those entities which make money from engaging and deploying workers, though it is conceivable that the recommendation may be read that way.
Nor did the committee intend to disenfranchise people with disabilities who hold a role as direct employers, in circumstances where that relationship exists in a way that is genuinely desired and beneficial for both parties.
The committee acknowledges that there are legitimate circumstances in which an NDIS participant may be a PCBU, but notes that this is not the norm. We also note that these are not the circumstances that were the intended focus of the committee's recommendation.
In the interests of clarity, the committee provides the following revised recommendation to replace Recommendation 5 of the first interim report:
The committee recommends that the Australian Government urgently clarifies, by way of regulation, which persons or entities owe a duty of care as a person conducting a business or undertaking (PCBU) under the Model Work Health and Safety laws in relation to individual support workers engaged through on-demand platforms like Mable. The law should make it clear that:
any platform that engages workers to provide support work under the NDIS, or similar schemes, is a PCBU and owes a duty of care to those workers, regardless of workers' work status (employee or contractor), or their visa status; and
platform companies cannot transfer their obligations as a PCBU onto other parties.
There was strong support from a number of responders for recommendations aimed at reversing the trend towards the 'apparent "Uberisation" of the disability support workforce'.
Maurice Blackburn Lawyers disputed arguments that '"flexibility" is core' to meeting future demand in relation to the disability support workforce:
We are concerned that the appearance of a highly casualised, piecemeal approach to work will deter potential new entrants into the disability sector workforce, particularly with respect to carers.
Hireup said that employment laws have failed to keep up with the 'disruption' of platform work, 'opening the door' to significant risks for workers and people with disability, and 'incentivising a two-tier disability sector':
… one side being providers and employers with strong obligations on the provider, lower risks to support workers and people living with disability and higher operating costs; the other side being contracting platforms with, in our view, fewer obligations on the provider, potentially higher risks to support workers and people living with disability, and lower operating costs.
Hireup argued that failing to address this issue would impact the ability for government to create 'a sustainable NDIS workforce for the future'.
The Federation of Ethnic Communities' Councils of Australia (FECCA) encouraged the committee to consider how Australia's aged care and disability care workforces have become increasingly dependent on migrant labour, and how this has shifted over recent years. Where once these roles were filled by 'recently arrived permanent migrants', they are now generally filled by 'a mix of temporary migrants on partner visas, international students and working holiday makers'.
FECCA pointed to data from the 2016 Census which indicated 'a significant increase' in overseas-born aged and disability carers, while the share of overseas-born workers overall 'increased only slightly'. This is of concern because, at the same time, FECCA observed, the aged and disability care workforce 'has become increasingly casualised', meaning 'migrant workers who are already more exposed to economic security, are more vulnerable to significant pay and job insecurity'.
Further inquiries? Or time to regulate?
When developing recommendations for its first interim report, the committee was mindful of the complexity of NDIS workforce matters. Recommendation 12, which referred the issue of on-demand platform work to the Joint Standing Committee on the National Disability Insurance Scheme, was designed to ensure that the subject received attention within the context of broader NDIS issues, and with the benefit of the committee's expertise.
Hireup expressed strong support for this recommendation, saying it is 'critical' that the platform work in disability sector 'is considered by an appropriate investigative authority in order for sector-specific reform' to be considered:
We submit that platforms offering services related to person-to-person care and support, whether that be aged care or disability support or other forms of care, are clearly not the same as food delivery, or landscaping, for example. … Disability support work is paid by the hour for the support worker's labour—it is not paid for specific individual tasks. Support work is directed by the client, especially under the NDIS principles of choice and control, and it's ideally re‑engaged on an ongoing basis. As personal trust and safety is critical to good support, the best support relationships are ongoing, not one-off. … For this reason, the disability sector is worthy of special consideration when it comes to the growth of the workforce in the context of large-scale contracting and marketplace models through online platforms.
Pending the outcome of any inquiry, the committee recommended that the Australian Government 'considers regulatory options' to ensure support workers engaged under the NDIS 'are provided with fair pay and conditions', including platform workers.
Hireup stated its support for this recommendation, saying disability support work 'fundamentally shows the hallmarks of an employment relationship', and that, in its view:
… disability support workers arguably operate in the NDIS from a position of bargaining weakness (less so where there are workforce shortages, but that will not be the case indefinitely). As workers are generally paid by the hour and directed by their clients, support workers are not likely able to take sufficient entrepreneurial and professional steps to bargain for entitlements or conditions in a market of similar service offerings.
Maurice Blackburn Lawyers proposed that governments should invest in 'a high-quality, better skilled workforce', supported by 'agreed minimum wages, agreed minimum shift length, and agreed minimum employment standards'. Specifically, Maurice Blackburn recommended that:
technology-based NDIS 'matching services' should employ workers, rather than 'merely connect contractors to clients';
firms wishing to register as an NDIA provider should be able to 'provide details of their employment model and processes', or not be able to register; and
'coordinated engagement with unions' should be encouraged, as a key method of ensuring that 'a race to the bottom does not accelerate'.
Hireup questioned whether 'the classification of independent contracting' could be 'reasonably applied' when platform workers are 'almost completely dependent' on these platforms for 'finding, undertaking, and receiving payment for their work'.
The ASU reiterated its position that all workers engaged under the NDIS should be covered by the relevant modern Award, generally the Social, Community, Home Care and Disability Services Industry Award, regardless of their work status, saying: 'This would provide a basic safety net for all workers, including "gig" and "platform" workers in the NDIS'. The ASU suggested this be achieved through an amendment to the NDIS Act.
Hireup cautioned that allowing these practices to continue and expand is creating concerns for the sector more broadly, because:
Even now, many platforms permit workers to offer the same services that employed workers perform, but potentially without access to certain entitlements under the Award set by the Fair Work Commission (for example, the national minimum wage).
In its first interim report the committee identified that the unchecked and largely unregulated 'Uberisation' of the disability care workforce presented a significant threat to the future quality and sustainability of disability sector employment.
The committee agrees with the warning issued by the ASU, that:
Regulators have been slow to recognise the risks posed to the quality of work by the expansion of precarious work and the evasion of traditional labour regulations; they have failed to adapt regulatory models to encompass workers in these growing categories of insecure, nominally 'independent' work.
The committee originally chose to ask the Joint Standing Committee on the National Disability Insurance Scheme to examine this issue, recommending that the committee give 'specific consideration' to a number of matters relating to platform‑based work in the disability sector as part of that committee's inquiry into the NDIS Workforce.
The committee had hoped that the Joint Standing Committee would leverage its expertise and network connections to inquire more deeply into the issue than this committee was able to do in the context of this inquiry.
At the time of writing, the Joint Standing Committee has not yet tabled its final report into the NDIS workforce. However, the NDIS Workforce inquiry is due to conclude. The committee understands that—while it may have given the matter some consideration—the Joint Standing Committee has not had an opportunity to consider the issue of on-demand platform employment in the NDIS in any significant depth.
This is perhaps understandable considering the broad scope of the committee's workforce inquiry, the limited timeframe, and the considerable complexity of some of the other challenges facing the NDIS workforce.
Nevertheless, the committee notes the Joint Standing Committee's comments in the interim report, which acknowledged that:
… promoting the sector as an employer of choice is not sufficient … attracting and retaining a suitably qualified workforce will require measures to ensure that workers have secure jobs with pay and conditions reflecting the value and complexity of their work, relevant and appropriate training, and opportunities for career progression.
This committee is increasingly convinced of the urgent need for regulatory intervention in relation to platform work in the disability and other care sectors.
The Government should not wait for changes to be made to Australia's industrial relations (IR) framework more broadly to clarify that its approach to building Australia's care workforce includes a genuine commitment to supporting secure jobs through properly regulated employment relationships.
As the primary funder of aged and disability care, and the primary source enabling legislation (and the ability to amend such legislation), the Australian Government has an opportunity to put an end to these quasi-employment models, where low-level support roles are rebadged as 'independent contracting opportunities', and both workers and care recipients are put in precarious situations.
All disability service providers should compete on a level playing field, including online platforms that supply workers to clients. The business model that Mable and similar platforms have created sees them treat workers in an employee‑like fashion and take a cut of their earnings, while failing to provide superannuation or penalty rates, encouraging workers to charge less than award wages, and providing insufficient support.
Government funding should not be spent in this way. NDIS funding should be spent as intended—to fund qualified and dedicated workers to provide supports in a way that is safe for both workers and care recipients, and ultimately supports the creation of a larger, more sustainable NDIS workforce.
The committee is supporting the recommendation from the ASU that all workers engaged under the NDIS should be covered by the relevant modern award, generally the Social, Community, Home Care and Disability Services Industry Award, regardless of their work status.
If there are any issues with the award not meeting the needs of people with disability in terms of flexibility or adaptability, then the award could be reviewed. Creating a second, unregulated jobs market for disability support workers that undercuts the already precarious and underpaid award workforce can only lead to a further disintegration of working conditions in the sector.
The committee recommends that the Australian Government amends the National Disability Insurance Scheme Act 2013 to provide that all workers engaged to provide support as part of the National Disability Insurance Scheme must be covered by the Social, Community, Home Care and Disability Services Industry Award, or receive pay and conditions at least equivalent to that Award.
The committee reiterates its view that this issue is of great significance to the future of the NDIS. As such, the committee strongly suggests that, if the Joint Standing Committee on the National Disability Insurance Scheme is re‑appointed in the 47th Parliament of Australia, and the NDIS Act has not been amended as above, the Joint Standing Committee should commence an inquiry into the issue of platform work in disability care sector as a matter of priority.
The Uberisation of care work more broadly
While disability care has been the key industry for the expansion of on‑demand platforms, other parts of the health, aged care and social services sectors have reported an expansion of these models.
Amendments to the NDIS Act would only address the issue in relation to NDIS workers. Thus, a broader approach may be needed to reduce the impacts of this trend on other parts of the health and social services sectors.
As such, the committee is recommending an inquiry into the experience and impacts of on-demand platform employment, increasing casualisation, use of labour hire/agency work, contract labour in aged care, disability care, social services and health care more broadly, to the Senate Standing Committees on Community Affairs.
The committee recommends that the Senate give consideration to the referral of an inquiry to the Community Affairs References Committee, examining:
The extent and impact of on‑demand platform employment, increasing casualisation, use of labour hire/agency work, and contract labour in aged care, disability care, social services and health care more broadly, with specific regard to:
impacts of on-demand platform employment models on care workers' experiences of work and sense of job satisfaction;
pay and conditions for workers engaged through platforms, labour hire and agency roles, and casual staff, compared with permanent staff;
training and career progression for on-demand platform workers and labour hire/agency workers;
impacts of work status and worker experiences on retention and motivation to stay in the sector;
the interactions of gender and migration/visa status with work status in the care sectors;
any evidence regarding the impacts of different employment models on pay rates and conditions across the sectors more broadly; and
If such an inquiry were referred, that the committee or any subcommittee have power to consider and make use of the evidence and records of the former Select Committee on Job Security appointed during the 46th Parliament.
Portable leave schemes
Recommendation 14 in the first interim report proposed a portable leave scheme for all NDIS workers.
Ai Group was opposed to this recommendation, saying that expanding portable leave schemes beyond the small number of industries in which they currently operate would function as 'a tax on employment and destroy jobs':
Portable leave schemes are typically funded by a levy on employers of up to 3% for long service leave alone. A portable leave scheme covering annual leave, sick leave and long service leave would require a very large levy on employers—at least 15% of payroll.
The committee supports and reiterates Recommendation 14 from the first interim report.
Recommendation 15 on government procurement
In its first interim report the committee briefly touched on the issue of government procurement and included a recommendation that the Australian Government should work to 'achieve an intergovernmental agreement' that would ensure that government procurements require all companies engaged by Federal and state and territory governments to provide 'minimum standards of pay, safety and insurance, workers' compensation and basic protections for workers'.
This recommendation was a forerunner to related recommendations in the committee's second interim report, including:
Recommendation 3, which called for a national policy making the promotion of secure employment an 'objective of all public funding for employment, or the provision of goods and services'.
Recommendation 34, which proposed the introduction of a 'social procurement framework' into the Commonwealth Procurement Rules, in order to leverage Commonwealth procurement to 'achieve positive social, economic, and environmental outcomes for the benefit the Australian community'; and
Recommendations 35 and 36, calling for the introduction of a 'supplier code of conduct' and minimum requirements for suppliers around ethics, conflict of interest, labour and human rights and other metrics.
Responses and new evidence
Inquiry participants had different perspectives in relation to this recommendation.
Ai Group argued there is no 'need for such an intergovernmental agreement', because businesses are already 'required to comply with relevant Federal and State laws relating to pay, safety, insurance, etc'.
However, Suicide Prevention Australia argued that procurement represents 'a significant lever through which governments can drive both economic and social impact in the broader community'. Suicide Prevention Australia referred to research from Social Procurement Australasia which estimates that governments across all jurisdictions in Australia spent around $141 billion in 2020, including $41 billion at the Commonwealth level.
Suicide Prevention Australia suggested that the Commonwealth Government should implement 'a social procurement approach' so it can 'leverage this expenditure to support broader social and economic outcomes':
For example, were Governments to restrict this spending to businesses that meet a minimum requirement for job security or employment conditions, this could influence or raise the standard of working conditions.
The Centre for International Corporate Tax Accountability and Research estimated that the amount of tax revenue lost to Australia 'due to tax avoidance by the largest labour hire multinationals' annually is between $82 million and $360 million. A number of these companies, including Hays and Manpower provide employment services for the Commonwealth Government.
The committee supports and reiterates Recommendation 15 from its first interim report and Recommendations 3, 34, 35 and 36 from its second interim report which, if implemented, would help the Commonwealth leverage its considerable spending power to promote the creation of secure, high-quality jobs.
The committee reiterates the need for revised Commonwealth Procurement Rules to stipulate that government spending should be directed to businesses that do not engage in tax avoidance in Australia.