Gig economy requires a rethink of equality law

2 minute read

A food delivery gig worker on a bicycle riding in a city street

Gig workers – including people with disabilities and people from ethnic minority groups – are unlikely to complain about discrimination.

As the gig economy grows, it is challenging the role and purpose of equality law. Legal researchers propose ways to reform the law to protect gig workers.


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The rise of the on-demand, or ‘gig’, economy challenges existing workplace laws, according to work by Associate Professor Alysia Blackham from Melbourne Law School at the University of Melbourne.

To find out whether existing equality laws cover the gig economy or if law reform is needed, Associate Professor Blackham studied laws in Australia and the UK.

Equality law generally protects ‘employees’ against discrimination by ‘employers’.

Most companies in the gig economy classify workers as self-employed or independent contractors, not employees. However, Australian equality laws generally define ‘employment’ broadly to include independent contractors, so this does not pose a problem, according to Associate Professor Blackham’s research.

But identifying the employer is a problem for equality law, according to the research. Uncertainty exists over whether, legally, the employer is the company, or the customer who uses the company to request and pay for a service.

In Aslam v Uber (2016), the UK Employment Tribunal found it was impossible for Uber to argue that its drivers are hired by customers rather than by Uber itself. This decision was upheld by the UK Court of Appeal but is being appealed to the UK Supreme Court. But Uber is different to many other companies in the gig economy – the company, rather than the customer, sets the price of transactions – so this ruling may not extend to other workers, says Associate Professor Blackham.

The research also revealed difficulty proving bias or discrimination in the gig economy.

For example, the algorithms that companies often use to assign work and rank performance are not publicly available. This makes it hard to know if the algorithms ­– or their input data – are biased or if they allow bias to flourish. What’s more, gig workers are often members of groups that are less likely to complain about discrimination, including people with health problems or disabilities, people from ethnic minority groups, and women.

Associate Professor Blackham suggests four reforms to equality law to protect gig workers:

  • Extend equality law to specifically include gig workers, where it doesn’t already do so.
  • Regulate work contracts, rather than specific relationships between employers and employees.
  • Remove barriers preventing gig workers from forming unions or engaging in collective bargaining, where possible.
  • Encourage – or legally require – companies to find and remove any discrimination in their data, algorithms and operations.

The research, and the proposed reforms, were included in Associate Professor Blackham’s recommendations to the Victorian Government’s inquiry into the on-demand workforce. The inquiry is scheduled to report its findings to the Government by the end of June 2020.

Next steps

Associate Professor Blackham is currently studying how Australia and the UK enforce age discrimination law, including in the gig economy, as well as examining the barriers to addressing age discrimination at work.

Funding

ARC Discovery Early Career Researcher Award

Addressing Age Discrimination in Employment (DE170100228)

Publication

Blackham A (2018) ‘We are all entrepreneurs now’: Options and new approaches for adapting equality law for the ‘gig economy’. International Journal of Comparative Labour Law and Industrial Relations 34(4): 413–434

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