Australia: Inquiry into the Victorian On-Demand Workforce - Report

Last week, the Inquiry into the Victorian On-Demand Workforce released its report into the ‘on-demand’ workforce in the Victorian labour market (the Report). This inquiry was commissioned by the Victorian Government in 2018 following widespread concern over the wages and conditions offered to workers in the gig economy. Overall, the Report finds that that many workers have uncertain work status, which can have significant consequences regarding superannuation, workers’ compensation and other matters. Further, advice about work status is often limited and fragmented. As such, the Report made a host of findings and recommendations which seek to resolve these problems.

1. Findings

The Report identified a number main areas of concern requiring revision of the current system, including the inherent uncertainty of the work status test, the limited nature of advice and support about work status, inaccessible resolution pathways to determine work status and inadequate protections for non-employee ‘small business’ platform workers.

The Report outlines six key desired outcomes, to respond to these issues, namely to:

• Clarify and codify work status to reduce doubt about work status and, therefore, the application of entitlements, protections and obligations for workers and business, and align legislative definitions across the statute books;
• Streamline advice and support for workers whose work status is borderline;
• Provide fast-track resolution of work status so workers and business do not operate with prolonged doubt about the rules;
• Provide for fair conduct for platform workers who are not employees through establishing Fair Conduct and Accountability Standards that are principles based and developed through a consultative process with relevant stakeholders;
• Improve remedies for non-employee workers to address deficiencies and anomalies in the existing approach; and
• Enhance enforcement to ensure compliance, including where sham contracting has occurred.

2. Recommendations

The Report made 20 recommendations including proposing revised tests, remedies and standards with the aim of improving certainty, choice and the conduct of platform workers. The Report also recommends better and more aligned advice and support, and fast resolution of borderline work status.

Specific recommendations made by the Report to achieve the desired outcomes include:

• amending the Fair Work Act 2009 (Cth) to clarify and codify the status of workers in the legislation and align definitions across the statute books;
• align ‘work status’ across ‘work laws’ (e.g. contracts of employment, superannuation and WH&S legislation);
• have a clear primary source of advice and support to workers to help them understand and use dispute resolution or other informal options to resolve their work status incorporating a Streamlined Support Agency that would be responsible for and sufficiently resourced to provide effective support to self-employed platform workers;
• create a fit-for-purpose body to provide a mechanism for accessible and fast resolution of work status complaints and disputes;
• encourage platform businesses with significant non-employee, on-demand workforces to seek a work status determination;
• amend the competition laws to remove barriers to collective bargaining for non-employee platform workers and ensure workers may access appropriate representation in dealing with platforms about their work arrangements;
• enable the Fair Work Commission to work with relevant stakeholders, including platforms and representatives of workers and industry, about the application of modern awards to platform workers, with a view to ensuring fit-for-purpose, fair arrangements that are compatible with work enabled by technology;
• clarify, enhance and streamline existing unfair contracts remedies;
• strengthen provisions to counter sham contracting; and
• proactively intervene to resolve cases of ‘borderline’ work status (including by initiating test cases).

3. Next Steps

The Victorian Government will now consider the report and recommendations, and will open a consultation period with workers and businesses before a response to the recommendations is finalised. We will continue to update you as the Government’s response develops.

This article was written by Greta Morand, Solicitor and Jessica Nashed, Vacation Clerk.

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