The traditional labels of employer and employee have, in recent years, broadened globally to accommodate novel labour delivery mechanisms. Leading the way are the ‘gig’ or ‘platform’ economy and ‘on-demand’ workforce. The gig economy is not a term of art, and according to De Stefano, broadly consists of two aspects: ‘crowdwork’ and ‘work on demand via apps’. Crowdwork usually involves micro-tasks of varying degrees of complexity, from the menial (such as tagging photos on social media platforms) to the specialised (such as graphic design or programming tasks). Work on demand via apps involves traditional working activities such as transportation, cleaning, or food delivery sourced through mobile application platforms, with the quintessential example being the ride-sharing app, Uber. Crowdwork can be sourced via multiple online platforms advertising to a large, undefined group of people, usually as an ‘open call’. Conversely, work on demand via apps involves an intermediary responsible for selecting its workforce and distributing work. Such firms usually also set minimum quality standards of service, and are responsible for the overall management and conditions of their workforce.
It is now easier than ever to pair a worker with a task at the lowest possible expense in the shortest period of time. The cost and time savings enjoyed by the consumer are often unfortunately at the expense of the gig economy workforce itself. Unsurprisingly, the International Labour Organisation (ILO) has expressed its concerns regarding this shift. On average, a substantial proportion of people undertaking crowdwork earn below their local minimum wage. Other protections are foregone, with most workers in the gig economy classified as independent contractors and not as employees. This removes further protections, as De Stefano states:
This allows shedding not only potential vicarious liabilities and insurance obligations towards customers but also a vast series of duties connected to employment laws and labour protections, including – depending on the relevant jurisdiction – compliance with minimum wage laws, social security contribution, anti-discrimination regulation, sick pay and holidays.
Efforts to keep up with the steady advance of the gig economy are mostly stagnant. Laws of developed jurisdictions have attempted to categorise workers in these circumstances based on conventional labour law concepts with varying degrees of success. For example, in relation to Uber, an Employment Tribunal in the United Kingdom was prepared to find that its drivers were, in fact, employees as defined in domestic legislation. In Australia, the Australian Taxation Office determined that drivers using ride-sourcing applications (such as Uber in that case) must be registered for Goods and Services Tax. This determination was ultimately upheld by the Federal Court of Australia in 2017. And in the United States, a Florida-based administrative appeals tribunal held that an Uber driver is an employee for the purpose of qualification for unemployment benefits (De Stefano, p 6 fn 3).
There are undoubtedly benefits to the gig economy beyond the consumer. For example, a Global Development Institute working paper identified that people in developing countries are able to take advantage of employment opportunities through the gig economy that are unavailable to them locally (see also, ILO at p 88). Moreover, surveys suggest that workers in developing nations are happy with online-based work, viewing the positives as outweighing the negatives. Significantly though, concerns of worker exploitation are widespread. According to Graham and Shaw (2017): ‘we see innovative ways in which [exploitation] is being put into practice with the aid of digital technologies: through bypassing legal regulations that afford worker rights to breaks, minimum wages, or proper disciplinary protocol…’ A further significant risk is the emergence of child labour through the gig economy, where ‘[c]hildren with access to the internet may be lured to execute working activities online that are remunerated with money or also credits to be spent for online games or on platforms’ (De Stefano, at p 10).
Some of these concerns have motivated the ILO’s Network on Future of Work. With further research and understanding, it may be hoped that the regulation of the gig economy can proceed in such a fashion to maximise its convenience and efficiency, yet avoid worker exploitation from its proliferation into the future.
Stephen Ranieri is an Assistant Editor of the ILA Reporter.