We love our Uber Eats, Deliveroo, or whoever is delivering something tasty when we're too lazy to cook (in other words, always). And if there was ever a time to be appreciative of the lonely bike rider who, by chances, is a student, foreign national, or falls into the class of "vulnerable worker", it's during this pandemic. They remain out in the community when we're constantly reminded how unsafe it is simply so our indulgence of having pre-prepared meals arrive at our doorstep at the click of a button goes undisturbed.
So, when we say there is no place for the gig economy, it's not a rejection of a type of business we love. It's that currently, there is no place for it in our legal system. Never has this been more apparent than in the recent decision by the Full Bench of the Fair Work Commission, which held that an Uber Eats driver was a contractor, not an employee.
This is not a new debate, but the recent decision is the most authoritative we have to date. The outcome is not surprising or disappointing, as some suggest. Instead it highlights that the law has not caught up, by any stretch, to modern working arrangements.
In its finding, the FWC effectively said the Uber Eats driver was not a real contractor (she wasn't conducting her own business, not even close) but she wasn't an employee either. In particular, unlike employees, she could pick her own hours or whether she worked at all, she could work for Uber Eats competitors (virtually simultaneously), and she wasn't a representative of Uber Eats (no uniform, branding, etc.).
We understand the FWC's reasoning. Australia's complex workplace system doesn't fit with the flexibility and freedom that comes with the gig economy. As a result, it's clear that the endless fight between gig companies and workers (or unions) that try to force the gig worker into either the "employment" or "contractor" basket is a complete waste of time. Gig workers are something else. It's about time that the law catches up and recognises this.
Once this is accepted, we can start having actual productive conversations around what rights, obligations, and protections need to be in place for gig workers. And in circumstances in which these workers, who already have little to no negotiation power, operate on busy roads, rain and shine, and deal with unruly customers, are now out there during a global pandemic, this is an important conversation to have.
We do not disclaim anything about this article. We're quite proud of it really.
