Bruna Quirino Correa feels strangely fortunate to have collided with a car, breaking her arm while delivering for Uber Eats.
“I was lucky to have had a car involved because of the car insurance,” she says.
A fellow Brazilian student broke her leg after skidding on a slippery road in Sydney and falling from her bike. She didn’t have the same insurance protection to help cover her steep bills.
The deaths of five delivery riders nationally in just two months has, for the first time, led to an agreement between food delivery companies, politicians and unions that safety needs to improve.
As the federal government prepares to unveil its industrial relations omnibus legislation next week, ACTU secretary Sally McManus said a key lesson of the coronavirus pandemic was the need to confront the insecurity of casualised and precarious work. “We need to finally confront our biggest weakness – the fact we have far too many insecure, casualised, labour hire, gig jobs that have no security and few rights,” she said.
For Bruna, who arrived in Sydney in February, the pandemic created a huge demand for home delivery and it seemed a decent job option until the accident.
On May 8, the 26-year-old was riding through Chatswood delivering Asian takeaway when she was hit by an opening car door, throwing her off her rented bicycle. She had two surgeries to insert, then remove, a steel plate. Her arm was in plaster for six weeks before the bandages finally came off this week.
The accident meant she could not work until September, but she was one of the lucky ones: the car insurance covered her medical bills and provided her with about $170 in weekly payments to cover lost wages. Uber Eats had signed her up for a Chubb insurance policy that provided her with a lump sum of about $5000 in compensation.
“Sydney is unsafe for cyclists,” she says. “There are not enough cycleways and the city can be confusing.”
SafeWork NSW has so far reported 65 dangerous safety incidents involving food delivery riders since January this year. They include injuries and deaths.
But who will take responsibility for providing a solution in what is a notoriously unregulated industry? As independent contract workers, food delivery riders have no employment rights under the Commonwealth Fair Work Act to legal minimum rates of pay, sick leave, superannuation or unfair dismissal protection. The federal government shows no sign of wanting to regulate the gig economy. Its industrial relations changes next week are not expected to include any proposals to change the work rights of gig workers.
In response to the recent spate of deaths, it says it will make rider safety a priority agenda item for the next meeting of national work health and safety ministers.
The NSW government has launched a SafeWork investigation into the deaths to inform a taskforce that will consider “potential avenues for regulatory reform to improve safety”.
NSW Labor, the Greens and peak body Unions NSW have all urged the state government to expand the coverage of the workers’ compensation scheme to cover food delivery riders and to boost the enforcement of occupational health and safety rules. Unions NSW general secretary Mark Morey, who has worked with Airtasker to introduce minimum pay rates for workers, says “all work, regardless of the employment definition, should attract a minimum wage, leave loadings, superannuation and injury insurance”.
Tim Fung, Airtasker co-founder and chief executive officer, says it promotes public liability insurance for job taskers and optional accident protection insurance.
“When we spoke with Unions NSW, we realised our interests were aligned,” he says. “We want people to get paid fair wages. We want people to be able to work in a safe and trusted environment and we want people to have real opportunity to progress their careers.”
Federal Labor has floated the idea of extending the Fair Work Commission’s powers to regulate the gig economy and deal with vulnerable workers in “employee-like” circumstances.
“The claim that a visa worker whose only asset is a second-hand bike is somehow an empowered independent contractor is ridiculous and dangerous,” Labor’s industrial relations spokesman Tony Burke says.
A spokeswoman for Uber Eats declined to comment on individual cases, but said it covered road and bike safety in online education modules and an annual cycling safety test. She says the company was always looking for ways to improve safety.
“We will continue to advocate for minimum insurance standards across platforms to ensure all those earning through independent work have access to insurance regardless of which app they are using,” she added.
Employment law experts and unions have long argued that food delivery riders are not truly independent contractors and should be deemed as employees because of the control technology companies exercise over their pay rates and conditions.
Law professor Joellen Riley Munton from the University of Technology Sydney and Transport Workers’ Union national secretary Michael Kaine support a pragmatic approach to providing gig workers with some rights, if they do not qualify for full employment rights.
In late 2018, the TWU won an unfair dismissal case in the Fair Work Commission on behalf of Foodora delivery rider Josh Kluger by proving he was an employee and not an independent contractor. But that decision only applies to him. Other workers would need to make an argument on a case-by-case basis.
While gig platforms including Uber have proven that they might lose occasional battles in courts and tribunals over the legal status of drivers and delivery riders, they are still winning the war against being bound by legal definitions.
Last month, California voters supported Uber, Lyft and delivery service Doordash by rejecting a 2018 State Supreme Court ruling, enshrined in a 2019 state law, that said workers who were controlled by the companies and did not operate their own business were deemed employees.
The companies reportedly spent more than $200 million (A$270 million) on a campaign to convince Californians to approve a ballot measure known as Proposition 22 which exempted gig workers from state laws. This meant the gig economy companies could continue to treat their workers as independent contractors.
Kaine says that decision demonstrates how hard gig companies are prepared to fight against any attempt to squeeze them into the legal definition of an employee.
“If you just deem everyone to be employees, you get the type of nuclear response we had from California. That is not in anyone’s interest,” he says.
Kaine favours extending protections provided to independent owner-drivers to bicycle delivery workers. NSW, Victoria and Western Australia have laws that allow them to regulate the working conditions of transport workers.
Professor Riley Munton says Chapter 6 of the NSW Industrial Relations Act could be extended to food delivery cyclists among other transport workers. Chapter 6 provides owner drivers’ rights to collectively bargain over minimum rates of pay and basic working conditions. Improved pay and conditions would help reduce the imperative to rush jobs to improve poor earnings and avoid being blocked from job apps.
Workers’ compensation legislation could also be amended to deem delivery cyclists to be “workers”, and the platform companies to be their employers. Because safety training for the cyclists “will never be enough while their work is poorly paid and precarious”.
Law firm Slater and Gordon has lodged a workers’ compensation claim on behalf of Lihong Wei whose husband, Xiaojun Chen, was killed in September while working for food delivery company Hungry Panda in Sydney.
Practice group leader Jasmina Mackovic says it was not clear whether government insurer EML would recognise Chen as a “worker”, entitling his wife to claim death benefits. “At the moment, it is a grey area,” she says.
Australian lawyer Sheryn Omeri, who practises as a barrister in Britain, said legislation was needed to hold food delivery operators responsible for the safety of their riders.
Omeri successfully argued in the Employment Appeal Tribunal and the Court of Appeal that London Uber drivers are “workers”. In the UK, a “worker” has basic employment rights including to the legal minimum wage and holiday pay, but not to the full range of protections, such as against unfair dismissal. The Supreme Court recently heard a final appeal but is yet to hand down a decision.
In March, France’s highest court for civil matters, the Court of Cassation, determined that Uber drivers are employees rather than independent contractors.
“In France, as in Australia, the intermediate category of “worker” which was created in England to extend some employment protections to those who have some independence but are essentially dependent on the supply of work by another, does not exist. The choice for the French court was accordingly, a stark one,” Omeri says.
University of Adelaide professor of law Andrew Stewart says there is a strong argument that food delivery riders should be treated as employees “and if not, at least be given rights as employees for many purposes, particularly to workers’ compensation”. He described the California decision on Proposition 22 as an “outlier”, saying Australians had a stronger affinity with labour rights and the concept of a ‘fair go’ at work than Americans.
Labor Senator and former TWU national secretary Tony Sheldon says that extending employee definitions “is not without merit, but it’s last century”, and the issue of rights for contract workers needs to be dealt with more urgently.
Most gig workers including freelancers on Airtasker who serve clients around the world are among gig workers who could not reasonably argue they should be treated as employees. But Professor Stewart says they should still be able to argue for some protections as workers. He warned that an emerging, and potentially bigger concern, was the rapid growth of online job platforms in the community service sector.
The federal government, through the Department of Health and the National Disability Insurance Scheme, has promoted online platforms including Mable which faced criticism in the aged care royal commission for not providing enough adequately trained workers to facilities including Newmarch House in Sydney at the height of the pandemic.
Mable chief executive officer and co-founder Peter Scutt says it connects independent contract workers with people seeking support services, but does not set prices, schedules or conditions. He says his platform provides online safety training and arranges insurance cover on behalf of workers who pay the premiums. The platform checks references and qualifications and vets police and working with children checks. Scutt says complaints from Anglicare related to early “teething problems”.
“We take our responsibilities really seriously, we are very thorough in our vetting,” Scutt says.
“Once people are approved on the platform the people that are looking to engage the services contact the workers and choose who is right for them.
“The parties when they come to Mable engage directly and agree all aspects of their service arrangement with each other.”
Australian Services Union NSW/ACT branch secretary Natalie Lang says thousands of registered disability service providers that employed skilled and experienced workers were overlooked at the height of the coronavirus pandemic when the federal government promoted 15 gig platform providers including Mable.
“The implication of that is to drive down working conditions in an essential service industry which is a really big problem for the quality of service,” she said.
Brett Holmes, the general secretary of the NSW Nurses and Midwives Association, says the online job-matching platforms did preliminary checks on the qualifications of people using their platform.
“They take no responsibility for their vetting of staff and there are no employment responsibilities undertaken by these platforms,” he says. “A preliminary scan confirming their registration and whether they have a police record is about as far as these organisations go in determining the suitability of the nurse for the client and there is no responsibility around work health and safety.
“All those responsibilities are transferred to the contracting nurse.”
Andrew Richardson is the chief executive officer of Aruma, one of Australia’s largest registered disability service providers. He says that while the NDIS was a great social reform and some gig platforms had a good business model, he was concerned that the federal government and the National Disability Insurance Agency was trying to drive down labour costs by “applying low-cost business models in inappropriate settings, at the expense of service quality and employee and client wellbeing”.
“It’s false economy to say cheapest is always best,” he says. “The federal government needs to set a playing field that works and they aren’t doing a very good job of that. We won’t have a workforce if it’s all piece rate.”
A well-trained workforce was needed to safely support people with disabilities and “ultimately you need a workforce willing to work, be trained and make disability support their career”.
Minister for Aged Care and Senior Australians, Richard Colbeck says he considered a range of options and determined the Mable platform “offered a scalable, national platform to provide initial workforce surge to Commonwealth funded aged care providers, particularly during the height of the second wave of COVID-19 infections across Victoria”.
“The department is continuing to refine and explore additional workforce supports to complement existing arrangements,” he says. “The Commonwealth contractual arrangement with Mable ceased on 30 September 2020.”
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