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.