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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Rights & Entitlements for Terminated Employees

If you’ve been terminated from your employment, its important to know your rights and entitlements.

Termination

If you’re losing your job, it’s a requirement that you be given notice of your termination. There is no particular form in which notice of termination must be given however its recommended that it be provided directly to you and in writing.  In addition to this you must be given ‘reasonable notice’ as to when your employment will end. This length of time may be stipulated in your contract or prescribed by legislation or an award.

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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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I’ve been in a Motor Vehicle Accident… Do I need a Lawyer?

The simple answer is YES!

But first lets backtrack a little and catch up with some of the recent changes in the law regarding personal injuries as a result of motor vehicle accident in NSW.

From 1 December 2017 a new scheme commenced as a result of reform to the Motor Accident Compensation Act (1999). The principle change was that some benefits were available to all people injured in a motor vehicle accident regardless of fault (for a limited period).

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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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Family Law Series: Enforcement of Court Orders

For Family Law, the type of orders you have in place will determine what options you have in relation to enforcement.

Contravention Applications apply to parenting orders and can be made when one party alleges that the other has failed to comply with the orders. This is most frequent when one party does not allow the other to spend time with the child.

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Family Law Series: Parenting Orders

Parenting orders are a set of orders finalised by the court which detail the parenting arrangements for a child or children. They can be made either by consent or after a court hearing/trial.

The arrangements that parenting orders deal with include where the child is to live, the time the child will spend with each parent or other people (grandparents etc.), the responsibility of the parents and any other important aspect of their welfare, care and development.

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