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A time of reckoning for safety in the gig economy?
07/05/2021
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Uber Eats
Authors
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Charmaine Tsang
Charmaine Tsang is a partner at HFW
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Steve Bowler
Steve Bowler is a senior associate at HFW

 

Gig economy companies have steadfastly maintained that their workers are independent contractors rather than employees. The success of this argument varies from jurisdiction to jurisdiction; although Uber and other platforms persuaded voters with their Proposition 22 in California, courts in the UK, Spain, France, Italy, and the Netherlands have been less than accommodating. Now, the tide may be turning further against platform companies with the main driving force being workplace safety.

On 27 September 2020, in Australia, Uber Eats rider Dede Fredy died after a crash with a car in the Sydney suburb of Marrickville, leaving behind a wife and family in Indonesia. Two days later, Hungry Panda rider Ziaojun Chen died in a crash with a bus in the Sydney suburb of Zetland. He had been supporting his wife, two children, and grandparents in China.

In total, four delivery drivers lost their lives on Sydney roads in just a three-month period, raising serious questions about workplace health and safety obligations of gig economy companies.

In light of the deaths, the New South Wales (NSW) government established an investigative task force to examine whether avoidable safety risks were the cause of any of the deaths. Last month, documents tabled before the NSW parliament revealed that one of the deceased Uber Eats workers was driving an e-bike that “appeared to not be approved” for use in the state, and that another worker died while wearing an “unapproved helmet”.

Further, SafeWork NSW found Uber Eats broke health and safety laws on multiple occasions in 2020, with 74 separate incidents of serious injury. In testimony that NSW Shadow Minister for the Gig Economy Daniel Mookhey described as “deeply worrying”, Uber Eats representatives admitted it was not possible to ensure all its delivery riders were using safe equipment and vehicles permitted for use on Australian roads.

SafeWork NSW has confirmed it has issued improvement notices and identified a series of breaches of workplace health and safety law by Uber Eats and its competitor Hungry Panda, primarily related to the companies’ failure to provide riders with adequate information, instruction, and training to prepare them for the risks associated with their work.

In the face of mounting criticism, Uber Eats has confirmed it has no intention of changing its current business model, despite growing arguments that the rate of compensation paid to drivers – which the company has conceded can work out to be less than the casual minimum wage – incentivises them to compromise on safety.

Government intervention may be required to bring gig economy companies’ responsibilities for worker safety into line with other businesses

In contrast, Morten Belling, the managing director of Menulog, announced at a Senate select committee inquiry last month that his company would be trialling employing its couriers in the Sydney central business district, implementing a minimum rate of pay for all hours worked, and with the employment model planned to cover all of its workforce in the next few years. Mr Belling confirmed one of the main drivers behind the company’s decision is driver safety.

All businesses in Australia have a legal duty of care to ensure the health and safety of their workers, including any contractors they engage. However, as food delivery riders are often left to their own devices, the platform companies engaging them have largely been able to avoid responsibility; instead, companies assert that the very nature of gig work means they are not able to exercise any direct control over how drivers or riders carry out their work.

However, it appears a time of reckoning has come as drivers’ working conditions is under increasing scrutiny. In light of recent evidence provided by Uber Eats, and the concession they can’t ensure drivers’ safety on the roads, the pressure on food delivery companies to be accountable for the safety of its couriers is likely to only increase.

So, does this mean the end of the contractor model in the gig economy? Certainly not yet. But what is becoming clearer is that there is an undeniable link between the food delivery companies’ business model (where drivers and riders are paid per delivery, regardless of their actual hours of work) and the pressure this places on drivers and riders to cut corners (figuratively and perhaps also literally) to maximise their number of deliveries and by extension, their income.

Whether other companies make changes to address these safety issues in the wake of Menulog’s announcement remains to be seen. Government intervention may be required to bring gig economy companies’ responsibilities for worker safety into line with other businesses. In February, Federal Opposition Leader Anthony Albanese proposed legislative changes so the Fair Work Commission has the power to make orders for minimum pay and conditions for “employee-like forms of work”, a move that would capture gig economy workers.

This may be seen by the current government as too radical a step – and Uber Eats and Deliveroo have argued against Menulog’s employment model on the basis that its workers prefer the flexibility and freedom of being a contractor.

So, we may still be some way off from changes that would reduce the risks faced by drivers and riders that have become more prominent in the gig economy. However, there is, hopefully, one positive that may come from the recent tragedies, and the analysis that has followed; that companies like Uber Eats and its competitors are held to a higher account and will ensure all workers, employees, or contractors are safe at work.