The workplace label placed upon gig workers was recently considered by a Full Bench of the Fair Work Commission
by Katie Sweatman, Special Counsel, Kingston Reid
Just as contemporary society has come to appreciate that broad labels on people underestimates the complexity, diversity and vibrancy of who we are as a community, it is time to recognise that broad labels in the workplace stymy the diversity and vibrancy of a contemporary workforce.
The labels we give to work and those who perform it have been the subject of much scrutiny, and are soon to be further picked apart. The need to name, understand and regulate these labels, especially using the same language we always have, does not help simplify our workplace system.
The workplace label placed upon gig workers was recently considered by a Full Bench of the Fair Work Commission in an appeal by Uber Eats driver, Amita Gupta, of the decision that she did not have access to its unfair dismissal jurisdiction because she is not an employee.
In turn, there has been enraged discussion about what it means to be a casual employee following the recent Federal Court decision in the matter of WorkPac v Rossato.
What connects gig workers and casual employees? A common objective of flexible work – one operating independently in an on-demand economy, and the other operating in an ad-hoc way but ultimately under the control of an employer. Both are equally valid, and neither needs additional regulation.
In considering Gupta’s appeal to hear her unfair dismissal case, the Full Bench was at one that Gupta was not an employee of Uber Eats. The Full Bench could have, and should have, stopped there. Gupta’s right to access the Commission was entirely unaffected by what Gupta was, if not an employee.
Despite this, the Full Bench was lured into offering its view. Two members viewed Gupta as an independent contractor, and the third viewed her to be self-employed and not owing any services to Uber Eats at all.
This inability to clearly identify and define Gupta’s relationship to Uber Eats using the current workplace lexicon sent workplace practitioners into a tailspin. Now that an application has been made to the Federal Court to review the decision, it will be the Court’s turn to consider, define and label what Gupta was.
Should gig workers be employees? Perhaps casual employees? These are questions that are no doubt front of mind for the Chair of the Inquiry into the Victorian On-Demand Workforce, Natalie James, who is due to make her report to the Victorian Government this month.
In Rossato, the Federal Court considered what it means to be a casual employee. The Federal Court found Rossato was not a casual employee because, put very simply, notwithstanding the absence of a firm commitment about when and for how long he would work, Rossato was ultimately rostered to work seven days on and seven days off, and never missed a shift. Although legal minds will pick at the details, this is an objectively logical outcome to the reasonable person in the street.
In response to the Rossato decision, the Federal Minister for Industrial Relations Christian Porter has spoken of a need to “construct some kind of working definition” of what is a casual employee. Such a definition would, however, merely be a construct, and no definition could sensibly encapsulate the range of workers that could properly be regarded as casual employees.
There is good reason that there is no prescribed definition of “employee” or “casual employee” in the Fair Work Act 2009. As frustrating and seemingly uncertain as this may seem to be to layperson employers, a case by case assessment of whether a worker is an employee, and whether an employee is a casual employee, undertaken with a mind to the genuine and fair-minded intention of the parties, and considering how work is actually performed, is the only way in which to determine whether the label fits without unintended consequences.
In both Gupta and Rossato, much was made of the exquisitely crafted contractual terms, directed more to moulding the arrangement between the parties to a desired legal outcome within a cumbersome and outdated regulatory framework, rather than describing the actual relationship between the parties.
Creating new definitions for old labels will result only in further creative wordsmithing in contracts rather than granting certainty to businesses in how they engage with workers in the real world.
JobMaker is itself as fancy a label as we need for the future of the workforce. Let’s use this process as an opportunity to embrace new workplace identities.
