Spare a thought for the gig worker this holiday season. They are the connective tissue that held us together during a very difficult two years, delivering us food and goodies while in lockdown and getting us safely from point A to point B when public transport became too scary. Yet, despite our increased reliance on the industry, the status of the gig worker remains in limbo.
The gig economy has been around for over 10 years and by now, most are aware of the issue. Gig workers are engaged as independent contractors. However, many believe the substance of gig work is better characterised as employment, arguing workers are entitled to leave benefits, insurance coverage, and unfair dismissal protection. Over the past 10 years, battle lines have been drawn between businesses and workers (or the unions), leading to varying and inconsistent results.
The dispute between the two sides is not as simple as some of the headlines may suggest.
Gig operators are not necessarily looking to duck employment obligations or exploit workers. Equally, not all gig workers want to accept the full consequences of being deemed employees. This is because the gig economy doesn’t fit into Australia’s complex IR system. Rules around minimum shift periods, the absence of piece rates, and prescribed ordinary hours (to name a few) don’t permit the freedom and flexibility that is inherent with the gig economy.
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In the past two years, the employment model advocates have made real headway. The Fair Work Commission recently found Deliveroo riders to be employees, UberEats reportedly settled a dispute with a driver for $400,000 in fear of the potential outcome, and Menulog has been testing an employment model.
However, with two critical High Court decisions regarding the distinction between contractors and employees due to be delivered in the first part of next year, many are anticipating the pendulum swinging back in the other direction, where we give much greater weight to how the contract describes the engagement.
This back and forth fails to resolve the root of the problem. Forcing the gig economy into either the “employment” or “contractor” basket doesn’t help. It will either strip freedom and flexibilities that gig workers enjoy, or important rights and protections they deserve.
It should not take over 10 years to understand that the gig economy represents a (not so) new way of working that deserves its own characterisation, treatment, and protections. This is not a task for the courts or tribunals. It’s about time our policy makers caught up.