Beware hazards in the drive to regulate gig work

With the industry and union acting in unison and signing joint statements calling for government action the writing is on the wall.

Regulation of the gig economy broadly is seen as needed and a foregone conclusion.

For the gig economy, the gig is up. When employers get together with unions to sign joint statements asking the government to regulate their industry and doing so already happens to be government policy, we can predict future events.

Earlier this year, an announcement in Britain revealed a plan for regulation of the gig economy in Australia, although execution of the strategy hinged on the election of a Labor government here.

In February, the International Transport Workers Federation and Uber signed and released a worldwide memorandum of understanding to “begin social dialogue on the continued support of decent work for drivers and couriers globally”.      The parties agreed to host “regular roundtable discussions between company management and ITF affiliates” (the Transport Workers Union of Australia is an affiliate) to “collaborate on measures to benefit drivers and couriers”. Topics of discussion were identified: “union representation; freedom of association and bargaining; working conditions; health and safety; social protections; and dispute resolution”.    

In Australia, preparations for change were already in place. Labor’s policy on the gig economy was clear. Labor had said it would extend the powers of the Fair Work Commission to include “employee-like” forms of work, allowing it to better protect people in new forms of work from exploitation and dangerous working conditions. The FWC would be empowered to “intervene and inquire” into all forms of work, and determine what rights and obligations might apply, and make orders for minimum standards for new forms of work, such as gig work.

Then, in May, before the election, DoorDash and the TWU released a joint Statement of Principles to Ensure Safety and Fairness for Workers in the On-Demand Economy. It said the parties agreed that “enforceable industry-wide standards, set by a government-established independent body, are needed across the on-demand transport industry in order to support its sustainability, promote fair competition among industry participants, protect flexible work arrangements and to ensure fairness, dignity and safety for workers”.

Six core principles were listed. Workers in the on-demand economy should not be prohibited from accessing appropriate work rights and entitlements, and should have transparency in relation to how work was monitored, controlled and remunerated. On-demand platforms must respect and facilitate the rights of drivers to join a registered industrial organisation, and have access to dispute resolution processes in a “government-established independent body”.

This week, Uber and the TWU released a joint Statement of Principles and Future Commitments for Workers in the On-Demand Economy. The document says the parties “support efforts to improve the quality, safety and security of platform work” and that “Uber and the TWU believe reform is needed to set rights and conditions for on-demand delivery and rideshare platform workers in the transport industry who are not engaged as employees”. It says “the TWU and Uber support regulatory certainty for platforms and the provision of minimum benefits and standards for platform workers”, then lists the “principles for regulation”.

First, “the TWU and Uber support the federal government legislating for an independent body, or a stream of an independent body, specific to platform work and comprised of industry experts”. This body (read FWC) should have the capacity to “set minimum and transparent enforceable earnings”, facilitate a dispute mechanism, “ensure the rights of platform workers to join and be represented by the relevant Registered Organisation are respected”.

The TWU and Uber have agreed to have further discussions aimed at reaching a set of industry standards for the food delivery sector and for other areas of Uber’s work, including rideshare and the delivery of goods.

TWU national secretary Michael Kaine said agreement with Uber “sends a strong signal” to the Albanese government “that it must act to deliver gig companies regulatory certainty and extend appropriate safeguards to workers across the gig economy”. Uber general manager Dom Taylor said Uber wanted to “see a level playing field for the industry”.

In talking to employer groups this week, there was no appetite for opposition to these developments. Regulation of the gig economy broadly is seen as needed and a foregone conclusion. It gives the new government something to do that doesn’t affect most of industry, although consumer prices may be affected. And when unions and employers join forces we know what happens to competition.

It is also envisaged that the Road Safety Remuneration Tribunal, abolished by the Turnbull government, will be resurrected under the auspices of the FWC.

Self-Employed Australia exec­utive director Ken Phillips has some concerns about the push to make independent contractors more like employees. While “protections for self-employed people are vital”, many are available through commercial regulation” and not employment laws.

For example, collective bargaining and unfair contract protections are available through the Australian Competition & Consumer Commission, and minimum remuneration is dealt with under the Independent Contractors Act. Phillips says current “pay on time laws” need to be extended. But crucially, “to drag self-employed people into employment regulations denies and distorts those commercial rights and protections”.

It is an important point, but with the industry and union acting in unison and signing joint statements calling for government action the writing is on the wall.