Some Australian states have indicated they are looking at options for reforming regulation relating to on‑demand platform work. However, state governments, including the Victorian government, have acknowledged the Commonwealth's jurisdiction in a number of key areas, and have recommended a national approach, led by the Commonwealth.
The Victorian government observed that the Commonwealth 'controls many of the levers to change laws that are relevant to on-demand work'. Relevant Commonwealth legislation includes:
the Fair Work Act 2009 (Fair Work Act);
the Independent Contractors Act 2006 (Independent Contractors Act);
the Competition and Consumer Act 2010 , Schedule 3 (Australian Consumer Laws);
the Income Tax Assessment Act 1997; and
the Superannuation Guarantee (Administration) Act 1992.
States maintain primary responsibility for occupational health and safety, workers' compensation and other 'State-specific regulatory functions, such as child employment and long service leave'. However, a nationally-coordinated approach to regulation in these areas is also warranted, and changes could be coordinated through the National Cabinet.
Participants in the inquiry proposed a number of options regulating on‑demand platform work. The debate among inquiry participants centred around the question of whether platform workers should simply be reclassified as employees and brought under the umbrella of existing industrial relations (IR) protections. Or if the problem lies with regulators 'trying to shoehorn new forms of work into regulations that were designed for old forms of work'.
This chapter considers what changes may be required to Australia's legal and regulatory frameworks to better accommodate on-demand platform work for the future. Proposals from inquiry participants are discussed in detail, including:
maintaining the status quo;
expanding the definition of 'employment' and employees' in the Fair Work Act;
reclassifying platform workers as employees;
'third way' proposals, including:
a portable benefits fund scheme; or
a legislated 'third category' of worker.
extending rights and minimum standards to contractors, and providing an oversight body; and
options for sector-specific regulation in the rideshare and disability care sectors.
The chapter presents the committee's views and a proposed pathway for reform, then ends by briefly considering the issue of government procurement and platform work—a subject the committee intends to explore more fully later on in its inquiry.
Options considered by the committee
Maintain the status quo
Some inquiry participants argued that the current regulatory arrangements are fit for purpose and should not be changed.
Ai Group argued that the existing framework 'should not be disturbed', because:
The vast majority of employment and contracting relationships rely on Australia’s current workplace relations framework, including the flexibility afforded by the common law tests in determining whether a worker is an employee or an independent contractor. Overly prescriptive laws would stifle innovation to the detriment of businesses, workers and the whole community.
Ai Group further argued that regulatory reforms that restricted self‑employment 'would destroy jobs', as self-employment 'is a popular "aspirational" career choice among many Australians, rather than an insecure or sub-optimal form of work'.
While claiming that platform work accounts for a tiny percentage of the Australian workforce (0.5 per cent of adult Australians (2015 data from a Grattan Institute paper)), Ai Group contended that platform businesses provide huge economic benefits to Australian industry:
In respect of direct economic benefit, a recent AlphaBeta report identified that food delivery apps from restaurants bring $2.6 billion of trade to the Australian restaurant industry, of which 70% is incremental.
Ai Group highlighted its role in developing the Independent Contractors Act and said that it 'strongly supports the retention of the common law approach to defining an independent contractor':
The common law is best placed to deal with the distinction between an employee and an independent contractor due to the adaptability of the common law tests, and their ability to deal with a multitude of work and business arrangements.
Ai Group, along with the National Retail Association, also claimed that 'current sham contracting provisions in the [Fair Work] Act are fair and balanced in protecting employees'.
While Ai Group and some other industry bodies argued that the current protections for independent contractors are sufficient, evidence from contractors and their representatives suggested this is not the case.
For instance, the Rideshare Drivers Association of Australia submitted that the Independent Contractors Act 'does not accommodate for the actual "Gig Economy Worker"'.
The Australian Retailers Association (ARA) contended that it is not 'the role of Government to deliver the functions of an experienced insurance company'. During the pandemic 'the gig economy offered a skills transferable solution to many who were left without jobs', allowing them to 'pivot through engaging in a flexible, on-demand work solution'.
The ARA argued that regulating the gig economy, such as through extending the powers of the Fair Work Commission, 'would have unintended consequences on the retail sector, the opportunity for on-demand work and the broader economy'. The ARA said this would 'deter organisations from offering the same level of flexibility and would no longer afford on-demand workers the same level of autonomy'.
Codify 'employment' and employees' in the Fair Work Act
A number of submitters recommended codifying employment and employees in the Fair Work Act so that courts and tribunals no longer had to rely exclusively on the common law definition.
The Queensland Government recommended that the Australian Government reform the Fair Work Act to 'more adequately accommodate emerging forms of non-traditional employment', by 'broadening the definition of worker and providing broader access to the benefits of collective bargaining, minimum standards of pay and conditions, and access to the Fair Work Commission'.
The ARC Gig Cities Research Team submitted that regulation founded on establishing that workers are employees according to the common law test 'will not successfully address precarious work' because this regulation 'can, relatively easily, be avoided'. They suggested that a 'more broad-based test to confer an entitlement to labour rights is necessary if we are serious about mitigating the effects of precarious work'.
Maurice Blackburn Lawyers submitted that 'the definition of employee needs to be extended by legislation to be broader than the present definition at common law' and suggested that Australia can look to 'international experience' to 'help inform this process'.
The Australian Small Business and Family Enterprise Ombudsman supported this approach, saying:
Giving legal clarity to the status of those who engage in work through the on-demand economy as either employees or independent contractors is of critical importance in discussions of the ondemand economy. When clarity exists, all parties can understand and work through their rights and responsibilities.
The Victorian inquiry ultimately recommended the Fair Work Act be amended to codify work status 'on the face of relevant legislation', rather than relying on common law understandings, including by adopting an 'entrepreneurial worker' category. It also recommended governments encourage platform businesses with significant non-employee, on-demand workforces to seek a work status determination, and suggested those who would not do so voluntarily, be required to; and that regulators proactively intervene to resolve cases of 'borderline' work status.
In its response, the Victorian government said it will 'advocate for reforms to the national workplace system, including by encouraging the Commonwealth to amend the Fair Work Act and the Independent Contractors Act to clarify and codify work status. The Victorian Government noted that a possible starting point would be to clarify the work status test, which could potentially be achieved by adopting the 'entrepreneurial worker approach'.
This would require 'reviewing and aligning' state laws relating to entitlements, obligations and protections based on work status (such as payroll tax, workplace health and safety and insurance for work injuries) 'to ensure that on-demand workers are consistently and appropriately covered and protected by these laws'.
Make platform workers 'employees'
A number of inquiry participants argued that low-leveraged platform workers, such as food delivery couriers and disability support workers, should be reclassified as employees, and covered by award wages.
For instance, the Centre for Future Work at the Australia Institute submitted:
As the definition of ‘employee’ is expanded and clarified, employees, regardless of their employment status (but as distinct from genuine contractors with their own businesses), should be given access to annual leave and sick leave as standard entitlements. As part of this, governments must enable platform (or ‘gig’) workers to access the same rights, entitlements and income and safety protections as permanent, conventionally employed workers – in other words, clarifying that workers in productive activities which are managed and effectively controlled by a lead business are, in effect, employees of that business.
Most platform providers who use an independent contractor model defended the use of that employment relationship, saying they were keen to work with government to provide better conditions for workers, but did not want to lose the flexibility offered by the current arrangements.
These platforms argued that the arrangements they have with their workers are not like an employment relationship, because workers have complete freedom and flexibility. The committee heard contradictory evidence from workers in relation to these claims.
Platform delivery worker, Mr Ashley Moorland said:
… the contract changes are very much unilateral. The company will advise you of an upcoming contract change, but you have no opportunity or recourse to discuss the terms of what that might be. If you don't agree to it then you simply can't work on the platform.
Similarly, delivery driver Mr Estaban Salazar said:
They say that we are subcontractors, but we need to follow all their guidelines in the work. We need to go to the places that they want us to go, at the time that we want us to go, with the food that they give us. All the guidelines are based on their standards, and we are paid by the companies and we are still not called employees. I don't understand why.
The Centre for Future Work analysed Uber's Accenture report, which presents detailed findings from a survey of Uber Eats 'delivery partners', and concluded that the 'flexibility' reportedly valued by workers is a kind of 'consolation prize':
Uber Eats relies on a desperate, marginalised workforce that has little access to alternative employment opportunities. That desperation fundamentally shapes these workers' attitude toward the purported 'flexibility' which these jobs provide.
Managing Director of Menulog, Mr Morten Belling, stated that he intended to move Menulog in Australia towards an employment model:
We [Menulog] have a different management structure today than we had back in 2018. We have a different strategic vision. We have different philosophies and different values. On the back of that, we have decided to work in the direction of an employment model. This is something we have done in Europe for many, many years already, so we have taken a lot of learnings from Europe for our strategy in Australia.
Menulog's parent company, Just Eat Takeaway.com (JET) 'operates either an employment or worker model for couriers' in European markets, where food delivery couriers are either 'employees' (such as in the Netherlands, Germany, Poland, Belgium, France, Italy, Portugal, Israel, Switzerland, Austria, Bulgaria, and Roumania), or 'workers', such as in the United Kingdom:
Regardless of whether they are employed directly or via a third party organisation, all couriers through this model receive a contract, with an appropriate hourly salary, employment insurance, social security (in line with the local legislation) and free to use equipment.
Although signalling his firm's intent to become an employer in Australia, and announcing plans to undertake a trial within Sydney's central business district in 2021, Mr Belling submitted that the domestic industrial awards system provides insufficient flexibility, and is one of the main obstacles the sector faces in moving towards employing its workforce. He argued that, given delivery demand can be difficult to predict, the certain 'shift engagement commitments' required under the existing award are problematic.
Notwithstanding these obstacles, Mr Belling stated that it was a 'moral' issue, and articulated the importance of transitioning to an employment model for the benefit of Menulog's workers. Specifically he stated that:
… [Menulog] want to go for what we believe is the highest moral standard, which is employment. That is going to give not only fair pay but also the entitlements and the security that the workers out there deserve.
We hope that in a few years' time all of the workers that are working on the Menulog platform will be employed.
Mr Belling said Menulog would work with industry stakeholders, the FWC and the Transport Workers Union (TWU) with the aim of developing an industry award more applicable to the platform food delivery sector. A new award should be more flexible, and may not include requirements for set numbers of hours per week or minimum shift lengths, which are currently set at two to four hours, depending on the award.
In the meantime, Menulog is working towards 'hiring couriers as part-time employees to start, under the Miscellaneous Award' for the purposes of the Sydney trial.
In contrast to Menulog, Mr Denman from Uber Eats argued that classifying drivers and delivery partners as employees would reduce opportunities in the employment marketplace. Mr Denman cited a move to reclassify Uber Eats delivery partners as employees in Geneva, saying this led to:
… an over 70 per cent reduction in the number of delivery partners who could access that earnings opportunity. We saw the quality of the service and the cost to the end consumer go up as well.
Uber argued that its workers want to be independent contractors, but evidence from workers was contradictory to this position. Mr Salazar said he wanted firstly for workers:
… to be to categorise[d] … as something better than subcontracting which would give us more rights, at least the basic ones, so that, if we get injured on the roads, we can go to the doctor and have our expenses covered. Also, if we wait in the street for seven hours, we will get reasonable pay and not just the deliveries we do in a day.
Mr McManus said Deliveroo's riders want to remain as independent contractors, because they value the flexibility it provides them, especially the ability to work for multiple platforms. Ola said it would not support any policy decision that took away the flexibility offered by the current contractual arrangement it has with its drivers.
A number of platforms argued that if their workers were classified as employees they would no longer be able to work for multiple platforms. Ms Tan added that the ability for drivers to multiapp helps smaller players in the industry.
The committee heard contrary evidence on whether platforms genuinely support multiapping, with some workers saying they have been directly told not to do it, and reporting that many use multiple mobile phones to avoid platform providers knowing that they are multiapping.
Hireup disputed the idea that workers must be independent contractors to access work through multiple apps, saying that Hireup workers are employees, engaged under an Award, and these workers are free to sign up to other platforms and access work through those platforms.
The FWC confirmed that employees would not be limited to one app. In its decision on Deliveroo rider, Mr Diego Franco, the FWC said:
Although the traditional arrangements for the performance of work would not have envisaged simultaneous employment for two or more employers, and in many instances the physical performance of work would continue to prevent simultaneous employment occurring, traditional notions regarding the exclusivity necessary for the establishment of an employment relationship require reconsideration. The expressed permission provided by Deliveroo for riders to work for its competitors and to engage in the multi-apping as Mr Franco did, is a factor which points against the existence of an employment relationship. However, in the context of the modern, rapidly changing workplace, it could not represent a factor that should be construed as preventing the existence of an employment relationship.
Professor Joellen Riley Munton, from the University of Technology Sydney agreed with this view point, providing the example of retail workers who now currently work for two or more retailers, but still enjoy minimum standards and rates of pay.
Asked to comment on multiapping, Mr Belling said that Menulog would prefer workers to be 'working exclusively for Menulog' when signed on (once they are employees). Mr Belling said he believed people were only multiapping because they were not making enough money otherwise, and that paying an hourly rate would 'eliminate the need for couriers to be multiapping to the extent you see today'. Mr Steven Teoh, Director of Delivery at Menulog, added that in Europe, where couriers are engaged on hourly rates, they do not engage in mutiapping.
Workers who spoke to the committee supported this assertion, saying:
If we are making enough from one platform, what's the need for us to go anywhere else? The thing is that, by working at one, we cannot make enough weekly earnings. That's why we divide our things, collectively working, with everyone doing alcohol delivery and food delivery and flower delivery. Combined as a whole, we make enough money out of it.
Mr Manzoor also noted that multiapping tended to leave workers vulnerable, as it meant that individual platforms could argue that their specific platform did not owe any protections to the worker:
Recently, Deliveroo did their scheme where they were giving riders some supplement [due to COVID-19]; they did a whole promotional campaign. Because of that aspect, I applied for relief somewhere, and they said, 'You don't qualify because you are not a regular worker.' Because of my need to fulfil and because they can't provide enough work, I'm going somewhere else, and because of that I am dividing everything up, so sadly, I'm not a full-time worker anywhere anymore, and that goes further against me.
'Third way' proposals
Various proposals exist relating to a 'third way', or third category of worker. Some involve legislating to create a new category within Australian IR legislation, and others suggest retaining the independent contractor classification, but providing portable benefits for platform workers. The latter type is generally favoured by gig platforms.
Portable benefits fund
Uber and other gig economy companies have been advocating for governments who want to regulate to adopt a 'third way' approach to regulation, rather than trying to have contractors reclassified as employees. CEO of Uber Technologies Inc., Uber Australia's parent company, Mr Dara Khosrowshahi, wrote an opinion piece for the New York Times, in August 2020, in which he said:
Our current employment system is outdated and unfair. It forces every worker to choose between being an employee with more benefits but less flexibility, or an independent contractor with more flexibility but almost no safety net. … There has to be a 'third way' for gig workers, but we need to get specific, because we need more than new ideas—we need new laws. Our current system is binary, meaning that each time a company provides additional benefits to independent workers, the less independent they become. That creates more uncertainty and risk for the company, which is a main reason why we need new laws and can't act entirely on our own.
Mr Khosrowshahi's proposition would see companies put money into a fund from which workers would take 'cash that they can use for the benefits they want, like health insurance or paid time off'. A worker's entitlements in the fund could be transferable between gig companies:
Had this been the law in all 50 states, Uber would have contributed $655 million to benefits funds last year alone. Taking one example, we estimate that a driver in Colorado averaging over 35 hours per week would have accrued approximately $1350 in benefits funds in 2019. That's enough to cover two weeks of paid time off, or the median annual premium payment for subsidized health insurance available through an existing Uber partnership.
Mr Dominic Taylor, General Manager of Uber Australia, was asked if Uber Australia supported this proposition for Australia. Mr Taylor replied that Uber is keen to 'work with government' but doesn't believe flexibility should be traded off for worker protection:
We want to enhance the protections in the gig economy. That's why we're very clear that we are keen to sit down. The portable benefits that have been suggested are one option. There are many options on the table, and we're really excited to work with the committee and, most importantly, to listen to drivers to understand what the right benefits are here in Australia to improve the quality of work in the gig economy whilst retaining that flexibility.
Mr Taylor said Uber supported the idea of a portable benefits scheme, as long as the benefits were 'proportional to the work being done' and allowed workers to 'retain flexibility'.
As previously discussed, a number of platforms provide selected 'employee‑like' benefits to their contractors. However, as these are provided voluntarily by platforms, they can be withdrawn at any time, as seen when Ola stopped providing accident coverage for drivers in June 2020 for financial reasons.
Asked if Ola would support a legislated benefits fund for drivers in the gig economy, which would provide portable sick leave benefits, compensation, and insurances, Ms Tan replied:
We haven't considered any of that at this stage for Australia. We made a conscious decision when coming into this country to take a lower commission from our drivers. That enabled the take-home pay of our drivers to be more. That provided more income to the drivers in terms of making sure that they could fund their own entitlements.
Mr Belling said that while Menulog conducts a trial with a view to engaging workers as employees, it will also work with its current pool of contractors to provide better conditions and entitlements; 'to see how we can bridge the gap between the contractor model and the employee model'.
Legislated third category of worker
Others have suggested the 'third way' approach should be like that adopted in Spain and Canada, where the category of 'dependent contractor' provides some labour law protections, but less than those enjoyed by 'employees':
Under this concept, when workers earn a certain portion of their income from a single company—75% in Spain and as high as 80% in Canada—and meet certain other criteria, they are provided intermediate protections and benefits such as notice of termination, collective bargaining and minimum rest periods that stop short of what employees are entitled to. Companies aren't required to pay benefits for someone who works only sporadically to supplement other income.
Mr James Farrar, from the UK-based App Drivers and Couriers Union, argued that 'a "third way" already exists in the UK', but Uber have fought against it in courts. Mr Farrer described Uber's promotion of a 'third way' in the United States as 'disingenuous', when it has spent five years and millions of dollars fighting to avoid having its drivers classified as 'workers' in the UK—a third category between 'independent contractor', and 'employee', which provides some labour protections, but not others.
Deliveroo was in favour of a third category, 'a third way, employee-like'. Mr McManus said that Deliveroo is promoting the idea of a 'Future Work Act', which would establish:
… a new form of classification, a reform of the industrial relations laws—what might be called a [future] work act, but that's just an umbrella term—that would allow us to maintain the flexibility, the ability for riders to work for multiple platforms, which is what they want, but that would also allow us, which would not be straightforward, to think about benefits such as sick leave, annual leave et cetera.
Asked if she supported the idea of a 'third category' of employment, Ms Tan said that Ola would 'welcome any policy positions that would result in a better outcome for our drivers and at the same time maintain a level playing field for the industry'. However, Ms Tan emphasised Ola's view that drivers want flexibility and value the ability to work across multiple platforms simultaneously.
Asked if the TWU believed a 'new category of worker' was required in Australian industrial relations law, National Secretary, Mr Michael Kaine said:
We are against a new category. We think that establishing a new category by reference to what's occurred overseas simply provides a roadmap for avoidance. … We say that there needs to be a more flexible system, a system that is attuned to the flexibility that the system requires—that is, delivery on demand and rideshare on demand—but is attuned to the level of dependency that still exists in that relationship.
Professor Riley Munton noted that some opponents argue any 'third way' proposal would fail to provide sufficient protections for workers. However, Professor Riley said it is important that all workers have legally protected fundamental rights and safeguards, including minimum safety standards and that they are 'paid properly for their work'.
The TWU cautioned against the introduction of a separate third category of worker, saying it would 'invite corporations to devise new arrangements and platforms of work that fall outside that classification', and could also 'result in employees who are currently correctly classified' being 'reclassified into an inferior class of workers'. Instead, the TWU proposed establishing a tribunal 'to determine forms of work based on varying degrees of dependency'.
Extending rights and minimum standards to contractors
The TWU argued that 'workers in "employment-like" contracting relationships' should not 'denied access to any rights and entitlements'. This is not only unfair, but leads to outcomes such the current 'concerning trends among dependent workers in the transport sector'.
The TWU explained that it has worked with government industry since its establishment to design 'innovative, effective and flexible regulatory frameworks for workers in dependent contracting arrangements' and recommended that this approach be applied in the platform sector:
This approach, which centres around the extension of minimum rights, entitlements and protections to workers across the spectrum of work, currently exists for parts of the transport industry in NSW (through Chapter 6 of the Industrial Relations Act 1996 (NSW)) and has enjoyed bipartisan support for decades.
The Institute of Employment Rights suggested extending employment rights to all workers, saying that Australia's current work health and safety laws 'provide a good example and demonstrate an effort to extend protection beyond the confines of the employment relationship'.
One model, recommended by the TWU, is the establishment of a national tribunal to assess and oversee non-standard employment relationships, such as those employed by Uber and other platform providers. Mr Kaine said a tribunal would assess 'the level of dependency between workers and those who engage them'. It would then assign the 'rights and protections that are appropriate for the Australian context'. Mr Kaine said this model is currently working in New South Wales in 'the stable owner driver market'.
According to the TWU, Chapter 6 of the NSW Industrial Relations Act 'moves beyond the failed binary employment divide to extend rights and entitlements to Owner Drivers'. It does this using Contract Determinations, which are like industry awards, and Contract Agreements, which are like collective agreements. Chapter 6 also provides dispute resolution, 'including the ability to challenge the unfair termination of a contract', and the right to be represented, along with an enforcement regime through the NSW Industrial Relations Commission:
Often the simple knowledge that an independent body has the power to arbitrate a dispute, make a contract determination or remedy an unfair dismissal prevents disputes from occurring in the first place.
The TWU noted that this model has some failings—from lack of enforcement mechanism, to definitional issues—but that these could avoided in new models.
Mr Kaine said a national tribunal could 'get to the heart of the causes that lead to the safety consequences' by looking at the pressures faced by riders and drivers in the food delivery and rideshare sectors. The tribunal would assess the appropriate classification, 'rights, protections and obligations' to be applied to the relationship, based on the level of dependency.
Portable entitlements for contractors
Another option floated was extending portable entitlements schemes to contractors. The McKell Institute Victoria argued for:
… the expansion of portable entitlement schemes via industries and leave types, administered in a way similar to our successful superannuation system and existing approved workers entitlement funds. … Portable entitlements follow the employee, ensuring an ongoing safety net for more workers. This benefit could also be extended via a portable entitlements scheme to contractors who currently don't have access to the rights of employees, including paid leave.
The model proposed by the McKell Institute Victoria would be regulated and require employers to pay 'an amount (or credit) into a central fund … equivalent to designated leave accumulated by workers over the period', generally 'on a pro‑rata basis, at regular intervals'. Workers would then be able to 'draw down' on their account balances to take leave, as well as being entitled to appropriate severance benefits.
Greater role for the Fair Work Commission
Some participants suggested that this kind of 'tribunal role' could be fulfilled by the FWC. Professor Riley Munton said the FWC's role should be extended to allow it to adjudicate in matters relating to 'all kinds of work', not just formal 'employee' relationships. Professor Riley Munton said on-demand platforms are increasingly making it 'very difficult' to determine who fits into the traditional employee model, and suggested:
… rather than continue to agonise over who fits within that test and who doesn't and leave those who don't in an unregulated wilderness, we ought to look at work that's performed and we ought to provide oversight of work and oversight of workplace disputes by an appropriate body. We have that body already in the Fair Work Commission, and I would like to see the Fair Work Commission's brief extended to include all kinds of work.
The current role of the FWC includes 'setting modern award wages and conditions, including those for part-time and casual employees'. Employees, employers and registered organisations, including unions, 'can apply to the FWC to vary terms of a modern award'. However, the FWC is currently unable to make orders in relation to arrangements that are not employment relationships.
The Australian Small Business and Family Enterprise Ombudsman (Ombudsman) submitted that, as well as issues to do with a lack of clarity around legal status, there is 'a need for more effective internal dispute resolution processes within the on‑demand economy'. The Ombudsman reported that its assistance team 'regularly deals with disputes between platforms and their small business 'partners'', with the most common disputes relating to 'a small business partner being issued with a temporary or permanent ban from the platform for a breach of guidelines or conditions'. These issues are compounded by, a 'lack of transparency around reasons for a ban', and 'a lack of right to appeal or effective dispute resolution services'. The Ombudsman recommended:
These employees and/or small businesses would benefit greatly from more structured and accessible dispute resolution service and avenues of communication with the relevant platforms to quickly resolve their issues. This would allow them to get back to work quicker, or entirely avoid unnecessary interruptions to work.
Professor Paula McDonald, from the Queensland University of Technology Business School, said that 'decades of research' demonstrates that single workers acting alone are rarely able to secure good outcomes, and are often left without adequate protections:
There are still occupational groups that enjoy protections from having a high degree of collective representation, and there are other cohorts and occupations that do not enjoy such benefits. If we think about young people, for example, in tourism, hospitality, retail et cetera, there are really low rates of unionisation and hence problematic opportunities for them to exercise [their] voice in a way that doesn't personally disadvantage them in the workplace or such that no punitive consequences come as a response.
Several submissions suggested multi-company, sector, or industry–wide collective bargaining arrangements with a robust mediator (such as the FWC) as one way to better conditions for workers, while ensuring a level playing field for platform providers.
Professor Riley Munton said the Australian IR system has a successful history 'of conciliation and arbitration of industrial disputes going back 100 years', and that Australia is 'expert at setting up a tripartite tribunals … to find appropriate solutions to the particular patterns of work that are done'. A 'fresh division' of the FWC could oversight work that is mediated through on‑demand platforms, including work that 'does not fall within the employment category but nevertheless is work that needs that level of oversight'.
Professor McDonald was 'not sure that it would be feasible to put all of these responsibilities in the Fair Work Commission':
I mean, there are layers of government and institutions which sit alongside but not directly in relation to the labour market. I don't think there's a one-size-fits-all or a one-stop shop to address these multiple and competing challenges that are causing greater precarity and insecurity in work. We need all of the players to come together and work together towards innovative solutions.
Sector specific regulation for rideshare
Witnesses raised options for adopting sector-specific regulation in the rideshare sector, which has traditionally been associated with independent contractor models.
The TWU said the majority of workers in the platform sector are 'being forced to risk their lives or livelihoods to get by', and are engaged 'in some of the most exploitative arrangements today'. However, this situation can be addressed through innovative regulatory agreements.
While drivers in the rideshare sector may be ambivalent about whether or not they would want to be employees or independent contractors, with the TWU survey finding just under half wanted to be employees, the majority wanted better conditions. According to the TWU's survey, 72.3 per cent of drivers surveyed wanted penalty rates for nights, weekends and public holidays; 64 per cent wanted 'access to a minimum wage'; 64 per cent wanted workers compensation insurance; and 80 per cent of drivers believed they 'should be able to form a union to collectively represent their interests'.
Mr Kaine explained that, while many taxi drivers are independent contractors, they have traditionally had some protections. Mr Kaine said that a key feature of the taxi market has always been that it is a 'limited market', with 'a limited number of licences available', which provides an opportunity for workers 'to maximise earnings'. Mr Kaine said that Uber and the other apps operate differently, with an 'actual intention … to flood as many people onto the app as possible so that there's always someone doing the work at the lowest possible price'.
Mr Kaine said that New York has restricted the number of drivers that are allowed to register with Uber, and combined this with 'a minimum payments system', which has 'gone a reasonable way to making some positive reform in that market'.
The committee heard evidence about the New York model from Dr Michael Reich, Chair of the Centre on Wage and Employment Dynamics at the University of California, Berkeley, and Mr Rodney Stiles, former assistant commissioner at the New York City Taxi and Limousine Commission (TLC).
Dr Reich explained that he and another academic were hired by the New York TLC to conduct research using data from rideshare companies, and create 'a pay standard that not only set a certain level of pay but also created an incentive for the companies to not put so many drivers on the road and to better utilise the drivers'. The policy was put into effect in February 2019, and its outcomes recently reviewed.
The policy involved setting a minimum pay rate 'per mile', which was designed to cover their driving expenses, and 'a certain amount per minute', designed to 'earn them a minimum wage above those expenses that they have to pay out of pocket'. At the same time, a cap was introduced on the number of vehicles allowed in the market, because, Mr Stiles said; 'if the companies aren't required to make minimum payments, they are incentivised to oversupply the market'.
Mr Stiles said that during the first year that the policy was in place, 'driver pay increased by hundreds of millions of dollars', and, while passenger fares increased, this was 'not out of line with national trends'. Mr Stiles added that; 'passenger wait times actually decreased, which goes against what they had predicted. Passenger service was actually better despite the driver pay increase'.
Dr Reich confirmed that his research demonstrated a modest fare increase between 5 and 10 per cent after the introduction of the pay standard, but said this was in line with increases seen in other cities which had not introduced regulation over the same period.
Drivers in the TWU's driver survey commented on the issue of drivers flooding the market, with one driver saying; 'Uber should not be allowed to keep registering drivers when the drivers they already have can't make a living'.
Asked if Uber would support a minimum pay standard in Australia, Mr Taylor said that Uber may support a standard that applied to 'engaged time'—the time between accepting and completing a trip—but would not support 'putting minimum rates in place that includes wait time', because that would require Uber to roster drivers on 'fixed shifts in fixed places'.
Deliveroo was not in favour of regulated minimum rates. Mr McManus said this is not what drivers want, as 'drivers see regulated rates as maximum rates'. However, unlike Uber, Deliveroo reported that it already limits the number of riders it onboards 'based on customer demand', as a way of protecting earnings for riders.
One argument advanced against a minimum pay standard is that it would prevent drivers from multiapping. Mr Stiles explained that New York TLC model was designed to allow for multiapping:
We wanted to make sure that our policy could address that, and we knew that one of the criticisms, if we targeted it to logged-on hours, is that drivers would be double-paid for time they were logged into, say, both Uber and Lyft. So what we did is we looked at the log-on time and we counted the amount of time where drivers were logged into both Uber and Lyft and basically deduplicated that. If you had spent an hour logged into Uber while logged into Lyft and you counted it separately, it'd be two hours, but we made sure it was just one hour and then looked at overall utilisation, so that ratio of trip time to log-on time, after we had done that. We calculate the per-trip rate per company, reflecting the dual-apping that happened, so they get the benefit of the increased utilisation of drivers when you look at them holistically, including the time they spent on other apps. So that was a key part of how we actually defined the policy.
Uber advocated for retaining the independent contractor model in rideshare, but introducing minimum standards for safety. This would be done through regulation, developed in consultation with industry.
The TWU said that, if 'done right', the flexible work arrangements offered by contractor models in the rideshare sector 'can present many benefits to Australian workers and the broader economy':
TWU represents 20,000 owner drivers today, many of who enjoy flexible arrangements along with sustainable and safe standards of work which are set through collective agreements or through state-based industrial instruments designed to confer minimum rights, entitlements and protections.
The on-demand platform sector
Information technology platforms provide many benefits for businesses and consumers, and have the potential to facilitate positive working relationships. However, many of the potential benefits of these emerging forms of work are being offset by negative impacts caused by unsafe practices and exploitative arrangements.
The image of the independent, entrepreneurial sole trader using the platforms to his or her advantage, enjoying the opportunities, freedom and flexibility they provide, must be seen against the real-life experience of the sector for many of its participants. In reality, the gig economy is made-up of thousands of low paid workers, many from vulnerable backgrounds, juggling gigs through multiple apps to scrape together a meagre living.
What is most concerning is that these workers do not have the rights, benefits and protections afforded to other workers in Australia. This is not just unfair to those individuals, it has broader social and economic implications, that impact all Australians.
Australia is a country with a proud history of providing fair and reasonable rights and conditions at work. Governments, industry, workers and their representatives have worked together to ensure minimum standards of safety, fair pay, and reasonable conditions for workers, and to promote the creation of secure jobs.
This is not simply the right and fair thing to do, it is good for the economy and good for society as a whole. As noted by the Centre for Future Work, government policy should be designed 'to support a sustained recovery in quality, reliable jobs: an economy and society which Australians can rely on to build stable lives'.
Australia's industrial relations (IR) regime, captured in the Fair Work Act 2009 and our system of industrial awards, may not be perfect, but it provides a safety net, lays out expectations and offers dignity to all employees in Australia. However, it only applies to 'employees'. Australia's other main category of workers—independent contractors—do not enjoy its protections.
The on-demand platform sector—known as the 'gig economy'—has laid bare a legal and moral 'grey area' that already existed in Australia's binary IR system. Workers in the sector are difficult to classify, as evidenced by the number and variety of cases that have come before the Fair Work Commission, Fair Work Ombudsman and Australian courts, and their outcomes—some of which have seemed contradictory.
Moreover, the sector is characterised by questionable practices and arrangements. Evidence to this inquiry, and a number of previous inquiries, shows unacceptable outcomes for platform workers and their families in terms of safety, security, fair treatment and reasonable remuneration.
The need to regulate
Platform companies have drafted increasingly complex legal and contractual agreements, jumped through legal and regulatory hoops, and invested heavily in defending cases and paying settlements. They have done this to maintain the position that their workers are independent contractors, despite significant evidence demonstrating a high level of dependence and control in many parts of the sector.
Governments cannot continue to rely on courts and tribunals to resolve the current issues in on-demand platform work. Neither is it acceptable to leave states and territories to 'go it alone', putting together a patchwork of regulation that adds further complexity around the nation.
Those who argue against national regulation generally say it will stifle the sector, on the one hand, and that the gig economy is insignificant, on the other.
The committee is not convinced by either argument. Gig work is not simply an insignificant part of the economy, characterised by people earning a few dollars in their spare time. Reliable evidence shows that a significant number of people rely on this income, and this cohort is expanding.
While reliable data is difficult to obtain, it is clear that the sector is growing. Platforms that facilitate on-demand work are now delivering everything from alcohol to flowers, and are moving into new sectors, such as parcel delivery. There are suggestions that large multinationals will seek to expand the model into freight and trucking very soon.
The potential for this model to become more widespread in the disability and care sectors is also of concern to the committee. This is especially significant due to the size of the workforce, the fact that it is already low paid and female‑dominated, the complexity and risks associated with care work, and the importance of this workforce to Australian society and the economy.
The Commonwealth must move to regulate in order to protect secure, high quality jobs for the future.
Problems with the current regime
The current binary divide in Australia's regulatory system means that workers who are not classified as employees essentially 'fall off a cliff', into an unregulated wilderness where they can be exposed to exploitative contract conditions and work practices, and have little recourse or right of appeal.
Australia's small business and contractor regulations provide little-to-no protections for these workers; they are inaccessible, inappropriate and not fit‑for-purpose. The idea that a delivery driver, working 15 hours per week on the Uber Eats platform, and 10 hours per week for Deliveroo, is going to have the resources to lodge a case against unfair contract provisions under the Independent Contractors Act 2006 is inconceivable.
The Independent Contractors Act is not designed to protect contractors, but to prevent state governments acting unilaterally to extend rights and protections to independent contractors.
Like the Independent Contractors Act, current small business remedies provide insufficient and inappropriate support for platform workers. These remedies require platform workers to individually fight for better contract conditions, and impose no penalties on platforms for including unfair conditions in their contracts. What's more, evidence clearly shows that gig workers are not accessing these remedies.
The committee does not support legislation designed to prevent workers who are contractors from being granted fair rights and protections. However, the committee does support a coordinated national approach to regulation in the on-demand platform sectors.
Platform workers need accessible avenues for dispute resolution, a place where they can have their arrangements and work status (where applicable) reviewed, and avenues to collectively negotiate for better pay and conditions.
A pathway to reform
The committee believes all workers in Australia have a fundamental right to enjoy safe and fair working conditions and to be fairly remunerated for their labour. In addition, superannuation and workers' compensation must be extended to workers in gig economy.
It should not matter what manner of company engages a worker, or if the workers is classified as an employee, or independent contractor, all workers should have access to minimum standards of safety, fair pay and conditions. This includes workers' compensation and minimum rates.
There are a variety of work arrangements in the Australian economy—a spectrum with varying degrees of dependency. The committee suggests that the level of 'dependency' provides a useful metric for understanding working arrangements, and determining the rights and obligations applicable to the relationship.
Noting that this is the committee's interim report, and more evidence will emerge during the course of the inquiry, the committee makes a number of preliminary recommendations for reform.
These recommendations propose that the Commonwealth Government move to:
provide greater clarity to courts and tribunals in determining work status;
create a pathway to collect critical information from platform companies about their arrangements;
establish an arbiter to adjudicate in disputes around work status and make work status determinations;
expand the remit of the Fair Work Commission so that it may resolve disputes and make orders for minimum standards and conditions in relation to all forms of work; and
establish an accessible low-cost national tribunal to oversee non-standard employment relationships involving low-leveraged independent contractors.
The committee will continue to speak with stakeholders around Australia as the inquiry progresses may add to or refine these recommendations in its final report.
The committee recommends that the Australian Government expands the definitions of 'employment' and 'employee' in the Fair Work Act 2009 to capture new and evolving forms of work. In addition to an expanded definition of 'employment' and 'employee' under the Fair Work Act, there should be a mechanism by which the Fair Work Commission can extend coverage of those rights when necessary to workers falling outside the expanded definition of employment, including low-leveraged and highly dependent workers so they can be provided with standards and protections under the Act.
The Committee recommends that the Australian Government investigates options for a Federal regulator to be empowered to request data from platforms that employ and contract workers, including:
other conditions governing that work; and
other relevant information needed to appropriately monitor safety, competition and labour rights.
The committee recommends that the Australian Government gives the Fair Work Commission (FWC) broad powers to resolve disputes and make orders for minimum standards and conditions in relation to all forms of work. The expanded remit of the FWC would include:
adjudicating in cases where there is a dispute in relation to the appropriate status of workers;
setting binding minimum standards and conditions in relation to non‑standard forms of work, regardless of employment status; and
the capacity to resolve disputes (including where necessary through binding decisions) in a low-cost and effective manner.
The FWC should be empowered to make determinations and orders for groups and categories of workers, not just individuals.
The committee recommends that the Australian Government empowers the Fair Work Commission (FWC) to provide pathways to permanency via arbitrations for casual conversion. Any disputes with regards to work status, contractual arrangements, or casual conversion should be able to be arbitrated via a low‑cost, accessible process, whether via the FWC or another body, to ensure workers are able to practically enforce their rights, and both workers and employers can have matters adjudicated quickly.
The committee recommends that the Australian Government provide greater protections for independent contractors who are sole traders by establishing an accessible low-cost national tribunal to advise on, oversee, and make rulings relating to employment relationships involving low‑leveraged independent contractors, such as those in the rideshare and other platform sectors.
Sector specific regulation for NDIS-funded workers
In relation to the NDIS, witnesses acknowledged that there is a place for genuine independent contractors in the disability care sector. Examples provided included specialists, like a physiotherapist running their own business and providing specialised care under the NDIS.
However, Hireup's Chief Executive Officer, Mr Jordan O'Reilly said that he believes 'disability support workers typically are working as employees', as opposed to running their own businesses. The problem arises because there is a lack of clarity around who is genuinely in business for themselves, and who is essentially working as an employee without benefits and protections:
… we need a clear definition of whether support workers are genuinely running their own small businesses the majority of the time or whether they're working as employees. There should be simple mechanisms to determine whether people are employees or not.
A 2019 Department of Social Services' report on growing the NDIS market supports Mr O'Reilly's belief, saying approximately 71 per cent of 'newly created jobs [in the sector] are expected to be [low-skilled] support worker roles'.
Mr O'Reilly cautioned that if the government does not move to regulate in this area, 'that's where the future will go—more and more independent contractors working in the disability sector', and the loss of stable, permanent jobs.
Participants were asked whether the disability and aged care sector is appropriate for a gig worker model. Professor McDonald said she believes it not:
No, I don't think it is. I think there are a range of really fundamental problems there. There's the issue of time and pay, which I just talked about. There's the issue of a lack of regulation around worker health and safety. … That's, of course, around psychological safety as well as physical safety. So it's cowboy territory in my mind. We're talking about the care of the most vulnerable people in our society, and that demands a framework of protections for both workers and the people who are being cared for.
Ms Natalie Lang, Secretary of the Australian Services Union (ASU) suggested that the 'solution' in relation to regulating platform work in the disability care sector is 'quite simple'—the government should 'regulate the market to require that money is spent accordingly':
It really is quite fraudulent to take funds from the Australian taxpayer for the provision of services at a particular level with an expectation of how the work is performed, the skills and attributes of those workers and the pay and conditions of those workers and then not pass it on accordingly to the workforce.
Ms Lang said this could be achieved by regulating to provide that all workers engaged to provide support services using NDIS funding are covered by the Social, Community, Home Care and Disability Services Industry Award.
Many NDIS workers are engaged in insecure work, across multiple sites and employers. Ms Lang suggested that the NDIS should be viewed as 'an entire scheme' and presents an opportunity for the government to 'pilot what portable entitlements, such as portable long service leave, could look like at a national level'. Noting that portable long service leave entitlements schemes are in place in smaller jurisdictions, such as in the Australian Capital Territory, Queensland and Victoria, Ms Lang said these schemes have 'proven to be very successful in attracting and retaining those workers'.
Witnesses contended that regulating to ensure fair pay and conditions for platform workers engaged under the NDIS would have broader social and economic benefits, as well as benefits for workers. Mr O'Reilly said the success of Hireup's employment model demonstrates that the idea that the workforce has to be engaged as independent contractors 'to access the benefits of technology and the flexibility that comes with platforms', is 'rubbish'. Many workers engaged on Hireup also work for traditional employers, and Hireup is currently 'developing a permanent employment model'.
The NDIS is funded by taxpayers. With over $16 billion spent in 2019–20, the disability care sector is a major investment in Australia's economy, and a significant employer, with the workforce predicted to grow to 190 000 by 2024.
The Productivity Commission has estimated that the disability care workforce 'will need to approximately double from the 2014–15 level to meet the demand created by the NDIS', meaning 'one in five jobs created in Australia over the transition period will need to be disability care jobs'.
The majority of these jobs are technically low-skilled (notwithstanding the complexity and capabilities required for the work), relatively low-paid, repetitive, and paid by the hour. They fall under a complex regulatory regime of quality standards and protections for vulnerable clients and the workers themselves.
The committee contends that this work is more suited to an employment model than an independent contractor model. We also note the immense challenges in building the workforce and securing the number of workers required to fill these roles, but submit that reducing the quality and security of jobs in the sector is not a sustainable solution.
The committee is not opposed to the idea that platforms may be used to connect workers to clients, and sees the merit in this model for providing greater choice and flexibility, if the model is applied in right way.
Certainly there are genuine independent contractors and small businesses delivering services under the NDIS, but these tend to be specialised, high-skill, high-value services. The committee sees value in an online marketplace to facilitate these arrangements, and to bring new workers into the workforce.
However, the majority of workers registered on platforms such as Mable are sole traders and the main services booked through the platforms are basic support services. Yes, the end user—NDIS participant—pays a bit less per hour, and thus may be able to afford more hours of care, but at what cost?
Platforms are increasingly engaging support workers as individual contractors, charging unregulated rates, and failing to provide basic protections and reasonable conditions for these workers; there is considerable confusion around who is ultimately responsible for occupational health and safety (as discussed in the previous chapter); and workers engaged in this way may have no superannuation or access to workers' compensation if injured and unable to work.
Considering the massive public investment in the NDIS, and the predicted growth in the disability care workforce over the next few years, it is in the interests of all Australians to ensure that these jobs are protected for the future.
The committee notes that the Joint Standing Committee on the National Disability Insurance Scheme (NDIS committee) is currently conducting an inquiry into the NDIS Workforce, and that Term of Reference c) requires the committee to consider:
[T]he role of Commonwealth Government policy in influencing the remuneration, conditions, working environment (including Workplace Health and Safety), career mobility and training needs of the NDIS workforce.
The NDIS committee has published an interim report, which touches on what it calls the '"Uberisation" of the disability workforce'. However, the report does not consider this issue in detail and makes no relevant recommendations. The NDIS committee is continuing its inquiry throughout 2021 and plans to present a final report at some time during the year.
Given that there may be specific disability-related concerns impacting the nature of platform-raised work in the disability sector, this committee considers that the Joint Standing Committee on the NDIS would be well‑placed to consider these matters in greater detail in their existing inquiry into the NDIS Workforce.
The committee is recommending the NDIS committee look into this issue as a matter of priority, so that it may make recommendations designed to better protect these critical jobs, while taking into account the full complexity of the regulatory regime, and balancing the competing priorities of the NDIS.
The committee notes that the NDIS committee has previously recommended, in its September 2018 report, Market readiness for provision of services under the NDIS, that 'the NDIS Quality and Safeguards Commission review options on how to ensure disability workers under the NDIS can access funded training, including considering the introduction of a portable training entitlement system'.
A model for implementing this portable training entitlement system in the NDIS has previously been developed by the Australia Institute's Centre for Future Work, and is captured in the Australian Services Union's submission to this inquiry.
The committee recommends that the Joint Standing Committee on the National Disability Insurance Scheme give specific consideration to the following matters related to platform-based work in the disability sector as part of its current inquiry into the NDIS Workforce and its ongoing examination of the operation and performance of the NDIS:
the prevalence of platform-based work in the sector, and the growing and evolving nature of this business model;
the prevalence of independent contracting through platforms;
the characteristics of independent contractors providing support work through platforms like Mable;
the extent to which workers rely on this income, or have other sources of income;
the typical earnings, insurance coverage, superannuation and access to leave and other entitlements available to these workers;
the adequacy of training and support provided to workers;
issues associated with safety, risk, and liability under Work Health and Safety laws; and
issues relating to the potential for NDIS recipients to be classified as persons conducting a business or undertaking (PCBUs) under existing Work Health and Safety laws.
Taking into account the findings of any relevant inquiries, the committee recommends that the Australian Government considers regulatory options that would ensure support workers engaged to provide services funded through the National Disability Insurance Scheme are provided with fair pay and conditions, including those engaged through on‑demand platforms.
The committee recommends that the Australian Government considers working with states and territories to design a national scheme that connects and extends the current state and territory schemes to provide portable long service leave, sick leave and other leave entitlements, and portable training entitlements, to all workers delivering services under the National Disability Insurance Scheme.
Government procurement and platform work
The committee heard evidence that the federal and some state governments are increasingly including platform companies in their procurements. The most obvious example is in relation to NDIS providers, already discussed. However, another example is a recent pilot in New South Wales where the Opal public transport card will now be able to be used to pay for Ubers.
Mr Taylor explained that the pilot includes only 10 000 Opal digital cards at this stage; that the Opal card will be accepted to pay for rides on the platform, similar to a credit card; and that the state government did not set any standards for driver payment, or any other standards.
Mr Taylor was asked if, in its agreement with Uber, the state government required Uber to meet any minimum standards of pay, provide workers compensation or insurance for drivers, provide protection against unfair dismissal, or ensure the right for drivers to negotiate fair pay. Mr Taylor confirmed that it did not, saying 'there is no difference with respect to rides that happen in relation to the Opal card', and Uber's regular service.
Ola was approached by the state government regarding providing its services in a similar way, after the agreement with Uber was announced. Ola confirmed that, in initial discussions, the state government has discussed providing any specific conditions for its drivers, outside of Ola's standard conditions.
The Health Services Union (HSU) submitted that, the Commonwealth Government contracted Mable in April 2020 'to provide surge workforce to the aged care sector for a four-week period' during COVID-19 outbreaks in aged care. The HSU submitted that the contract with Mable 'was worth nearly $5.8 million and was awarded in a limited tender process'.
While the HSU reported that take up of the service was 'low' due to Mable not having many workers registered in regional areas, the HSU maintained:
The decision by the Federal Government to contract and promote at this time Mable directly contradicts their own public health advice to limit movements and interaction with more people than necessary. It demonstrates the lack of understanding and absence of appetite to provide a workforce that is stable, sufficient in size and adequately supported through decent wages and conditions.
The Centre for Future Work submitted:
Governments are especially large and influential economic actors and should preferentially procure from Australian firms that demonstrate adherence to norms of secure employment, including permanency and adequate working hours to support a living wage. Governments should make a clear policy statement that they commit to use their economic resources and spending power to reinforce rising wages and stronger labour standards across Australia’s economy.
The committee is concerned that governments at the Federal and state and territory levels have entered into contractual agreements with platform operators, using tax payer money, despite the significant unresolved issues raised in this report.
Alongside concerns about unfair remuneration rates, unsafe work practices, and a lack of protection for workers, there is also the risk that NDIS care recipients could be considered liable if platform workers are injured in their homes under current legislation.
It is concerning to the committee that the Commonwealth Government would invest in such an untested and risky model, especially during the height of the COVID-19 pandemic.
As part of its inquiry the committee has written to Commonwealth departments and agencies seeking to better understand their use of contractors, labour hire and other non-standard forms of work.
Government procurement has the capacity to impact the standard and quality of jobs in the economy now, and set the standards and expectations for jobs in other sectors.
Governments must be model employers, and must require companies with which they partner to comply with the law and provide secure, high quality employment.
The committee will have more to say as the inquiry progresses in relation to the key role governments play as both employers and investors in the Australian economy.
The committee recommends that the Australian Government works through the Council on Federal Financial Relations to achieve an intergovernmental agreement that government procurements must require companies engaged by the Federal and state and territory governments to provide minimum standards of pay, safety and insurance, workers' compensation and basic protections for workers.
Senator Tony Sheldon
Labor Senator for New South Wales