Workers Rights in the ‘Gig Economy’

On September 27th, 2020, Dede Fredy died when he was hit by a car in Marrickville. Mr Fredy, an Indonesian national, was delivering food for Uber Eats to provide for his wife and four-year-old son in Bali.

Two days later, in the Sydney suburb of Zetland, Xiaojun Chen was hit by a bus whilst riding his motorbike for food delivery company Hungry Panda. He left behind his wife, two children and two disabled in-laws for whom he was the primary breadwinner.

So began a horror two-month period where five people died whilst working for food delivery companies. Bijoy Paul, an engineering student from Bangladesh, died delivering McDonalds. Had he been making the burgers, not delivering them, he would have had access to worker’s compensation. As it was, like all the victims, he was entitled to nothing.

Whilst safety at work and compensation for those injured is something most of us take for granted, protections afforded to those working in the ‘gig economy’ aren’t as comprehensive.

Workers Compensation is a vital mechanism which allows workers time to treat and rehabilitate injuries sustained at work and ensures their families aren’t left scrambling to pay the bills. Under current conditions, most workers in the ‘gig economy’, including food delivery riders with companies such as Uber, Deliveroo and DoorDash, are not afforded these protections. This is due to their status as independent contractors, essentially meaning that they are considered to be operating their own business rather than working as an employee for a company.

Some companies do offer group insurance for their riders; however, the pay-outs are significantly less than what is available for employees under NSW Workers Compensation laws.

There is appetite for change on this front. A NSW Senate Inquiry into the gig economy has fielded submissions from the National Insurance Brokers Association (NIBA) and the Transport Workers Union (TWU), with both organisations calling for amendments to how gig workers access personal injury insurance.

The NIBA states that legislation could easily be amended to cover such workers by recognising them as ‘deemed workers’ under the Workers Compensation scheme. Under The Workplace Injury Management and Workers Compensation Act 1998, certain contractors are granted this classification, allowing them access to the same insurance scheme as employees. It is the opinion of the NIBA that this would be the easiest way to provide certainty to both gig workers and platform providers.

Many people who may otherwise be considered outside the traditional employment relationship are deemed workers under NSW Workers Compensation Law. Jockeys, Harness Racing Drivers and Golf Caddies, all of whom are hired casually on a one-off basis by multiple principals, are deemed workers under NSW legislation. In addition, the legal determination of whether a worker is an employee or a contractor can be a complex legal task. That a worker is called a contractor is no more valid than labelling an orange as an apple. Whatever the label-an orange is still an orange.

In two high profile cases, the Fair Work Commission have already found that despite the claimants being labelled as contractors, the conditions of their work meant that they were employees in the eyes of the law.

In Klooger v Foodora Australia Pty Ltd [2018] FWC 6836 and Diego Franco v Deliveroo Australia Pty Ltd [2021] FWC 2818, food delivery riders were found to have been unfairly dismissed on the grounds that they were employees and not contractors and were thus entitled to greater protections. Whilst other cases, such as Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698, have found to the contrary, there is more than enough basis for gig workers to contest their mandatory coercion into the world of independent contracting, should their work conditions suggest otherwise.

Workers injured or killed in these jobs, and their dependants, are often from parts of community who do not find it easy to get legal advice-even though such advice is available for free in most Australian jurisdictions. Asking a boss or an insurance company for advice on your rights is often akin to asking the crocodile if it is safe to swim in the lagoon.

Sustaining an injury at work is a serious, often life-changing event. Any worker who sustains an injury at work, regardless of their status, should seek legal advice to ensure their rights are being upheld to the fullest extent of the law. There is no downside to calling us and having a confidential, free conference to ascertain whether a claim for compensation or damages can be made. You have nothing to lose.

Sexual Harassment at Work: The Game Has Changed

Workplace Harassment

Sexual Harassment at work – The Game has changed

Everyone has the right to feel safe at work. In Australia, there are laws which govern acceptable workplace behaviour and the ways which employers and employees  are expected to act towards each other.

With regards to sexual harassment, the parameters of acceptable behaviour are clearly defined by the Sex Discrimination Act 1984. According to the Act, sexual harassment occurs when:

  1. the per­son makes an unwel­come sex­u­al advance, or an unwel­come request for sex­u­al favours, to the per­son harassed; or
  2. engages in oth­er unwel­come con­duct of a sex­u­al nature in rela­tion to the per­son harassed;

in cir­cum­stances in which a rea­son­able per­son, hav­ing regard to all the cir­cum­stances, would have antic­i­pat­ed the pos­si­bil­i­ty that the per­son harassed would be offend­ed, humil­i­at­ed or intimidated.

Whilst this law has been in place for nearly 40 years, remedies, particularly the quantum of damages, have lagged behind community expectation. A recent case has shown the willingness of the Federal Court to pay higher than usual damages in certain circumstances.

In Hugh­es v Hill [2020] FCAFC 126, general damages of $120 000 and aggravated damages of $50 000 were ordered to be paid to Ms Catherine Hill by her former employer Mr Owen Hughes after he sexually harassed her both inside and outside of the workplace for nearly 12 months.

Mr Hughes, a solicitor, employed Ms Hill as a paralegal in May of 2015, promising to train her as a solicitor. During the tenure of her employment, Mr Hughes also acted for Ms Hill in a family law matter against her former husband, obtaining confidential personal information in the process. He later attempted to use this information against her during the sexual harassment proceedings, a tactic the judge labelled ‘outrageous’.

Two months after her employment began, so did the harassment.

Mr Hughes’ harassment took many forms; incessant emails in which he professed his desire for a relationship with Ms Hill, unwanted advances in which he lay on Ms Hill’s bed uninvited on a business trip (dressed only in his underwear) and even physical incidents in which he prevented her from leaving her own office until she gave him a hug.

Ms Hill made it repeatedly clear to Mr Hughes that she was not interested in any romantic or intimate relationship with him, going so far as to confront him directly with accusations of harassment, at risk to her ongoing employment. Despite this, Mr Hughes was unrelenting, even implying that her employment and continued training would be made easier if Ms Hill were more receptive of his advances.

Ms Hill suffered greatly due to Mr Hughes’ harassment, which significantly exacerbated her pre-existing anxiety disorder and resulted in her resigning from her employment. The Federal Court of Australia found that despite Mr Hughes’ protestations that his intentions were ‘honourable’ not ‘sexual’ and that $170 000 damages were ‘manifestly excessive’, his actions did in fact constitute sexual harassment and that the damages were entirely within the range of available awards.

This case has garnered significant public attention due to Mr Hughes’ ‘despicable’ conduct (including the use of information obtained as Ms Hill’s solicitor against her in court) and his self-comparison to Mr Darcy from Pride and Prejudice. Legally it is signification because it has displayed a willingness on the part of the Federal Court to award substantial damages in cases of sexual harassment where power imbalances, here the imbalance between employer and employee, increase the level of suffering and distress felt by the victim of the harassment.

The payment of $50 000 ‘aggravated damages’, too, is significant as it displays the court’s ability to add aggravated and exemplary damages in cases where the victim’s suffering is uniquely amplified by the actions of the harasser, here the unethical divulsion of Ms Hill’s personal information and the manner in which he conducted his defence.

This case has changed the landscape of sexual harassment cases. With any legal proceedings, there is a cost-benefit analysis which must be considered by the client and the solicitor, weighing up whether the costs of proceeding with the action outweigh the potential compensation for the client. Sexual harassment cases have in the past not been viable when the risks and rewards are weighed up.

This is no longer necessarily true. If you have experienced sexual harassment, inside or outside the workplace, come in for an obligation free chat. There is nothing to lose.

Good News for Workers: Hockbaum & Whitton Decided Favourably

Seriously injured workers throughout NSW have been anxiously awaiting the Court of Appeal Decisions in these 2 matters.  The President of the Workers Compensation Commission reversed the Arbitrator’s decision in both matters effectively disentitling workers to weekly benefits of compensation after 260 weeks of benefits even though they were later found to exceed the 20% Whole Person Impairment threshold which should have meant their benefits continued beyond 260 weeks. This meant many seriously injured workers missed out on long periods of weekly benefits of compensation and were often left on Social Security.

 

Today the NSW Court of Appeal overturned the President’s ruling meaning that such workers were entitled to continue on weekly benefits beyond 260 weeks even if they were assessed years after their benefits were cut off.  Effectively this means that many such workers will be entitled to back pay, some for many years.

The full decision can be accessed here.

A Lawyer to talk to and trust: What I’ve seen from a country law firm

It is a never-ending source of amazement to me as to why country people and those in regional towns and cities engage big city, big advertising law firms to represent them when they have an accident or some other legal problem.

Is it the perception that a firm that advertises on television or has a multi-million dollar sponsorship of some sporting spectacular will somehow do a better job with their claim. Sometimes it is just that the advertisement appears at the same time as the need and client, unaware of the intricacies of the legal practice is captured by the glossy advertisement thinking that all lawyers must be equally able to fulfill their needs.

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Victorian Motor Accident Victims – New TAC protocols for Common Law claims

As of 1 January 2020 the Transport Accident Commission (“TAC”) have introduced new protocols in relation to Common Law claims (also known as Serious Injury claims) which are designed to supplement their prior protocols. These supplementary protocols are designed to help those injured in Victorian Motor Vehicle Accidents obtain compensation in a more timely manner.

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Side-Stepping Thresholds & Defences with Consumer Protection Legislation

Australian consumers are very fortunate – we have a fantastic Consumer Protection regime which is generally well enforced by the ACCC.

What we are beginning to discover however, is that the Consumer Protection legislation, at least at face value, has much wider-ranging application than just giving you protection when you buy some dodgy groceries or a new kettle.

So what kinds of relationships between types of cases and these protections are we beginning to see?

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They Owe Me Money! How Can I Get It Back?

If someone owes you money or has some of your property in their possession, there are a number of steps you can take to recover this – and going to Court sometimes isn’t the best first-up solution.

Firstly, in order to save costs, it may be appropriate to discuss the matter with the other person. Sometimes just talking it out reasonably can help you to reach some satisfactory repayment terms (like making a number of payments in a period, or repaying the debt by a certain date). This however may not always be possible if the relationship has soured or the other person becomes increasingly aggressive about the situation – often, chasing debts can cause a lot of friction in a relationship and friendships can break down if debts are not repaid.

If talking to the person is not possible, you can send a letter of demand, and this should be the first step in any recovery for money or property. A letter of demand should include clear details of how much the person owes or the property needing to be returned, a date/timeframe that the money must be paid or property returned and what action will be taken if that does not occur by the selected date/timeframe.

Following a letter of demand, if the money has not been paid or property not returned, it may be appropriate to take legal action. This will require the completion of a Statement of Claim to be filed with the appropriate Court. Because debts can range in size, you might need to file in a certain Court or Division:

If the Debt or Property is valued at less than $20,000, in the Small Claims Division of the Local Court;

If the Debt or Property is valued between $20,001 and $100,000, in the Local Court;

If the Debt or Property is valued between $100,001 and $750,000, in the District Court;

If the Debt or Property is valued at $750,001 or higher, in the Supreme Court.

This guidance is based on a recovery in a New South Wales Court.

There are risks associated with going to Court such as the payment of fees which may not be recovered if you lose or if the person is not in a position to pay the money. There is little benefit in pursuing a debt against a person who you know will not be in a position to pay – whilst you might be successful, it will be a Pyrrhic victory!

A six-year time limit applies for recovering money or property. There are exceptions to this rule however you should consult a lawyer if you are outside this timeframe.

If the Dispute relates to tenants and landlords, or traders and consumers, then it may be able to be dealt with by specialist tribunals.

Do you have more questions about recovering some debt or property? In our free first consultation we can advise you on:

  1. Whether it is worthwhile to pursue the debt;
  2. Matters to consider when pursuing the debt;
  3. The Costs which can be involved in pursuing a debt;
  4. Options to recover the debt without commencing Court proceedings.

Police Abuse of Power….What Can Be Done?

It may come as a surprise to some people, but except for a few necessary exceptions the police are subject to the same rules and obligations as every other citizen. When they exceed their powers or act outside their authority and other citizens are harmed the courts will provide an avenue for redress and in appropriate cases award compensation or damages.
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Mediation & Conciliation – What’s the big deal?

It could be a battle of wills concerning parenting issues, a dispute with an insurer about payment for treatment in some workers compensation cases, or a negotiation process to resolve a common law claim. Maybe it’s a conflict within the workplace, or two business who are having a fight. Parties can become bogged down with their grievances or disputes and it may benefit to bring in an impartial third party to help them find their way to an agreement.
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Power Restored: WCC Available to Challenge Wage Underpayments for Workers

Since the 1st of July 2019, the Workers Compensation Commission (WCC) has been able to once again allow injured workers to challenge calculations of their Pre-Injury Average Weekly Earnings (PIAWE) – this was the amount of money that the Insurer had calculated an injured worker was entitled to.

In many instances, this amount was incorrect and the injured worker only had the option of challenging the decision in the Supreme Court if they didn’t believe it was correct. In most cases, the costs of that would greatly exceed the amount of money claimed.

Now that power has been restored to the WCC, injured workers can now get funding from WIRO-ILARS to challenge these disputes in the Commission and firms such as Don Cameron & Associates can assist these workers at no cost to the worker.

It is a simple 3 step process to challenge a potential underpayment:

1. If you think you are being underpaid by the Insurer, call us on 1800 627 373.
2. Provide us with information about how much you are being paid by the Insurer, and how much you were being paid before you were injured.
3. We will provide you with free advice on whether the calculation is correct and if it isn’t, we will apply for funding and lodge a dispute challenging the decision of the Insurer.

Like many firms, we have a number of Workers Compensation experts. Unlike many firms, our experts are local people with local knowledge who understand local issues – call us today.