Gig workers status challenged by pandemic

By Leon Gettler >>

COVID-19 has created a major challenge for the gig economy, the growing number of workers abandoning traditional ‘nine-to-five’ employment in favour of working independently on a task-by-task basis for various employers.

It is also challenging the legal profession, raising a number of questions.

Gig economy workers are paid for when they work. COVID-19 has in some cases decreased the amount of work and in other cases increased it.

Leading Australian barrister Ian Neil SC said there are questions about where gig economy workers fall under the Federal Government’s various stimulus and support packages. 

“Those questions have not been adequately addressed, or at least fully addressed by the government in the announcements it’s made about those packages,” Mr Neil told Talking Business.

“The focus will be on determining where the gig economy workers fall for the purposes of the stimulus and support packages,” he said.

“To my mind, very many gig economy workers will come under at least some of the income support measures that the government has introduced. I think that will be sorted out administratively rather than legally.

“The trigger for many of the government’s income support measures depends on the amount by which a particular worker’s income has been reduced. Some gig economy workers will have increased their income, others will have decreased their income. There will be others in the margin between.”

NOBODY EMPLOYS GIG WORKERS

The point is that no company actually ‘employs’ gig workers. Legally, gig workers are not employees.

Some platforms like Uber came out with measures to support drivers who had lost the opportunity to work. This was instead of a measure like sick leave. Gig economy workers don’t have sick leave because they are not employees.

Mr Neil said the growth of the gig economy would put pressure on the legal system.

“But that’s the kind of pressure the law is used to dealing with, our law is very well adapted to dealing with new circumstances. Our is not a codified system so it is adaptable,’’ he said.

“How it will adapt? That’s another question.”

Mr Neil said there are now cases before the Fair Work Commission looking at whether some gig economy workers are employees. He said there are many features in their relationship with the people who acquire their services, as well as with the platforms, that point against them being employees.

“The law, in this and every other area, is going to be wrestling with the consequences of the COVID-19 emergency for a very long time, not just in relation to the gig economy but in relation to many aspects of commercial life and many aspects of employment as well,” Mr Neil said.

“Just think of the entitlement of employers to stand employees down without pay. That’s a whole species of question that the gig economy doesn’t have to wrestle with.”

TIME WILL TELL

Mr Neil said it would take the law several years to work through these questions.

“Work, as a type of economic social behaviour, is the subject of so much of our law and that law will have to wrestle with what’s happening now, unprecedented events really, for a very long time,” Mr Neil  said.

On the other hand, he said the economy is more adaptable to change than employment relationships.

“The latter are heavily regulated in our society, the former are much more dictated by the individual circumstances of the people who are working in the gig economy.”

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Hear the complete interview and catch up with other topical business news on Leon Gettler’s Talking Business podcast, released every Friday at www.acast.com/talkingbusiness.