Like many people, I welcomed Uber with open arms as an alternative to taxis. I love opening an app on my phone and having delicious restaurant food delivered to my door, like magic, 20 minutes later, or the possibility that I might find someone online who can come and put up those bookshelves that I have been looking at for months. These benefits of the gig economy are pretty clear to the modern consumer.
But what about workers in the gig economy? What are their protections and how do they fit within Australia’s anti-bullying legislation?
The gig economy, which is defined as on demand freelance work, often done from a digital platform base, is approaching the pace of more traditional employment growth and the number of workers working in the gig economy is rising. Organisations such as Uber, UberEats, Care.com, Sidekicker, and Airtasker have become household names and form part of everyday life for many busy Australians.
Workplace regulation is struggling to keep up with this growth. The Parliamentary Select Committee on the Future of Work and Workers issued its report last week on 19 September 2018. The report, subtitled ‘Hope is not a strategy – our shared responsibility for the future of work and workers’ highlighted the precarious nature of gig based work and acknowledged that current legislative system is not designed for this type of work. Recommendation 10 of the report states:
The Committee Recommends that the Australian Government make legislative amendments to broaden the definition of employee to capture gig workers and ensure that they have full access to protection under Australia’s industrial relations system.
Attempts to argue that gig employees are ‘sham contractors’ under current legislation have so far proved unsuccessful. In July, the Fair Work Ombudsman brought a case before the Federal Court against Foodora, operator of Deliveroo, to determine whether those working for the food delivery service were in fact employees rather than contractors. The case was dropped earlier this month after the company went into administration and ceased operations in Australia.
Gig economy workers are more likely than not to be young and therefore more vulnerable to the precarious nature of work. They have very little supervision or institutional support and by their nature they are transient and replaceable. Added to that, workers who work within digital platforms that encourage users to give a ‘star’ rating for performance (and in some cases will block workers from the platform if their star rating dips below a certain rating) need to stay on the good side of clients giving the stars.
So what happens if a worker in the gig economy is bullied by a user of the service that they provide?
Priya has been a driver for one of the app based driving services DriveAround, for about 18 months. One day she is bullied by a customer, Ryan, on a ride to his home. Ryan yells loudly at Priya, making abusive comments about her driving and aggressively questions the route that she takes to his chosen address (the route is provided by DriveAround).
The following day Ryan leaves a scathing expletive filled 1 star review on the DriveAround app, saying that ‘Priya can’t f$%^%&g drive’ and that she was trying to ‘rip him off’ and he ‘wishes he could give negative stars’. Priya feels sick with anxiety and is unable to drive for two weeks and falls behind on her rent and electricity bill.
DriveAround has internal processes that enable Priya to make a complaint about Ryan’s treatment of her and he may be blocked from using the service in the future. In this instance, Ryan is not blocked in this case as he is a longstanding customer with a 5 star rating.
Priya may be contacted by DriveAround about her complaint, but like all of the platform’s operations the contact is digital, scripted and there isn’t any level of ongoing care. As an independent contractor, Priya is not entitled to sick leave.
If Ryan were not removed from the platform, Priya may make an application to the Fair Work Commission for a stop bullying order under its Anti-Bullying Legislation. In order to do so Priya would need to show
that Ryan had repeatedly behaved unreasonably towards her when she was a worker at work, AND the behaviour creates an (ongoing) risk to health and safety.
The question of whether Priya is a worker would need to be determined by the FWC as a threshold question. The decision in Mr Michail Kaseris v Rasier Pacific V.O.F  FWC 6610 is authority that drivers for digital based platform Uber are not employees but are independent contractors. Independent contractors are covered by the workplace bullying laws.
Priya should be able to show that Ryan’s behaviour is repeated and unreasonable and that it created a risk to her health and safety.
She would also need to show that there is an ongoing risk that she will continue to be bullied at work. This may be impossible for her because she will have the option of refusing Ryan’s requests to DriveAround for future services.
Even if Priya is able to establish these factors, the FWC has no ability to order any monetary compensation to Priya to make up for the two weeks of lost pay. It is arguable, but not certain, that the FWC has the power to compel DriveAround to apply its internal processes and remove Ryan as a customer from their platform.
Priya would need to take more time off driving to make her case in the FWC. Representing herself at conciliation is stressful and difficult and results in further anxiety and more time off work.
The Court of Public Opinion
Dealing with bullying complaints takes on an extra layer of difficulty when the worker is part of the gig economy and is particularly vulnerable. As evidenced by Priya’s case study, current legislative protections are not able to deal with the realities of modern gig economy workers.
Ironically, a partial solution may be in the digital platforms that are causing traditional regulators so much difficulty. In an age of social media shaming or acclaiming deciding the reputations of organisations, it may well be that social media apps play an important de facto role in keeping organisations accountable.
That is, where the regulatory gap means that possibly FWA or Workplace Health and Safety legislation is
impractical to apply, the “court of popular opinion”, literally, may help to focus organisations’ attention on being compliant with their values and community standards.
About Jodie Fox
Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.
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