Fair Work Australia, the Australian Employment Regulator, has completed its two-year investigation into Uber Australia. The Fair Work Ombudsman, Sandra Parker, determined that drivers for Uber Australia were not subject to any formal or operational obligation to perform work. Therefore, in Fair Work Australia’s opinion, the commercial relationship between the company and the drivers does not amount to an employment relationship.
In short, Fair Work thinks that Uber drivers are independent contractors and not employees.
We believe that this classical definition fails to account for the nuanced way in which workers engage themselves in the modern economy. There is a move away from standard employment relationships to a transactional model of worker engagement. In the gig economy, an individual worker is engaged by a company (commonly via an app) to undertake single or standalone tasks (the gig) for set fees. The terms of engagement for that job is exclusively set by the company. Workers then rely exclusively on that one company for their livelihood.
The negative for workers is that under this system the risk is moved away from organisations and on to the individual. As a modern workers in non-traditional employment being classified as an independent contractor means that they have none of the protections offered by so-called minimum entitlements under the Employment Relations Act.
Currently, the gig economy is allowing large corporates to exploit loopholes in our employment law. Corporations are being allowed to use their considerable power to dictate terms to individual workers. Without the protection of the law or the power to negotiate on an individual basis, workers have no ability to determine or enforce the terms of their employment. This has the result of creating unfair bargains, poor outcomes for workers and a triumph of profits over individual rights.
The employment law paradigm needs to be reviewed. A wholesale change needs to occur. There appears to be no legislative prerogative to implement these changes. Therefore it is beholden on the employment court, unions, and employment lawyers to hold these employers to account for their exploitation of workers’ rights and choosing profits over people.