The sharing economy continues to expand; companies such as Uber offer transport services without owning vehicles and Airbnb provides accommodation without owning real estate. It's a new economy—but still subject to many old economy rules and regulations.
It is clear that work health and safety (WHS) obligations continue to apply to those who participate in the sharing economy, including those who set up sharing "hubs", such as Uber and Airbnb, and those who provide services through those hubs. Likewise, employers who allow their workers to use services through the sharing economy will also be subject to the same WHS obligations that normally apply when their workers are at work in their business or undertaking.
With WHS obligations applying in what is, at least for now, a largely unregulated marketplace, hub operators, providers of services and employers alike must exercise extreme caution and apply a traditional WHS risk management approach to ensure they are providing a workplace that is, as far as reasonably practicable, safe and without risks.
The sharing economy's expansion: Governments and regulators struggle to keep up
A recent survey of Australian consumers reported that one in eight Australians have used a sharing service, while almost 7% of Australians have offered their services or property through the sharing economy. It is estimated UberX alone has been used in excess of 5 million times since its introduction in Australia in April 2014.
Indeed, there are compelling reasons for increasingly using the sharing economy. For example, a recent Choice study found that UberX was around nine times out of ten cheaper than a taxi, with taxis generally 40% more expensive than UberX. Given this impressive cost saving, many employers are considering whether to allow their workers to use UberX instead of conventional taxis as a way of reducing their worker transport costs.
As the sharing economy expands, governments and regulators are trying their best to keep up. On 30 October 2015, the ACT became the first to legalise the use of UberX. It seems inevitable that other Australian states and territories will eventually follow, but for now UberX remains illegal everywhere other than the nation's capital.
Of note, in NSW, the Roads and Maritime Services recently suspended the registration of 40 vehicles used to provide transport through UberX, while in Victoria the Taxi Services Commission issued fines totalling approximately $600,000 to individuals providing UberX services.
Applying work health and safety duties to the sharing economy
Debates continue to rage over the way responsibilities and liability are carved up in this new marketplace, particularly given its unregulated and illegal nature. One thing is clear, responsibility and liability cannot be shirked, particularly when it comes to WHS.
In the unfortunate event of an incident occurring where the services were provided through the sharing economy, WHS regulators won't be deterred from conducting a comprehensive investigation of all parties involved, including the operator, the provider of services and any employer of a worker who may be using these services while at work.
Hub operators and providers of services
In states and territories other than Victoria and Western Australia, the harmonised safety legislation has replaced the concept of "employment" with "a person conducting a business or undertaking" (PCBU). The fact that there may be no traditional employment relationship in these sharing economy businesses doesn't present a barrier to liability or prosecution. Hub operators, drivers and landlords who use the hub to provide services, will be considered a PCBU and WHS duties and obligations will likely apply.
Even in Victoria and Western Australia, the existing laws impose duties and obligations that apply to the sharing economy. For example, in Victoria the Occupational Health and Safety Act 2004 imposes duties upon "persons who manage or control a workplace to any extent" which, in many respects, mirrors the concept of a PCBU. The Act also imposes duties upon "self-employed persons", clearly capturing those providing services through the sharing economy.
An area that has attracted little attention during the sharing economy's rapid growth, is whether it is appropriate for employers (or PCBUs in harmonised jurisdictions) to allow their workers to use the sharing economy from a WHS perspective. For example, should workers be permitted to use UberX instead of a traditional taxi to travel to a work meeting or to use Airbnb instead of a traditional hotel during a work trip? Both may be attractive to employers because they are cheaper than traditional options. However, in the largely unregulated sharing economy, how can an employer be certain it has systems of work in place to ensure the safety of its workers while they are using these services?
WHS legislation requires an employer to have systems of work in place that are, as far as reasonably practicable, safe and without risks to health. For example, this would involve:
- Verifying that any vehicles or accommodation facilities used by workers while undertaking work for the employer are safe. For UberX, this would include being satisfied that the vehicle being used to provide services has been appropriately maintained and is roadworthy. In terms of Airbnb, it would include ensuring the physical building is safe from hazards such as asbestos or that the landlord has a fire evacuation and emergency plan in place.
- Verifying the drivers are appropriately licensed and qualified to carry out the work, and have been provided necessary information, instruction and training to perform their work in a safe way.
In the traditional marketplace, an employer can generally be satisfied of the above by requiring their workers to use licensed and regulated providers such as taxis and hotels. However, in the unregulated sharing economy, serious doubt remains as to whether this can be achieved.
Clearly the sharing economy has taken hold both in Australia and internationally and is prompting action from governments, taxation departments and regulators equally. There are two routes to greater clarity of the WHS issues involved in the sector.
Firstly, the public may approach a safety regulator to investigate and possibly prosecute parties involved in the sharing economy, as WHS legislation is risk-based legislation not incident-based legislation. That is, the regulator is able to investigate and prosecute individuals or companies based on any uncontrolled risk to health and safety, even without an incident occurring. Secondly, and more likely, an incident may occur and the safety regulator will be called upon to investigate and possibly bring charges against the hub operator, the provider of services or, if relevant, the employer of a worker using the services while at work.
The prudent hub operator will in the meantime set up a system to ensure the bona fides of insurances, licences, qualifications and the like throughout the hub. While the prudent provider of services will have all those systems in place, ensure all qualifications and licences are up-to-date and deliver services well and safely, understanding that they have their own WHS obligations.
In the meantime, if employers permit their workers to use the sharing economy to replace traditional options, they must remember that WHS duties and obligations apply and they must be satisfied that use of these services is as safe as reasonably practicable. Regardless of the choice made, employers will need to update their policies and procedures to deal with the use of the sharing economy by their workers during their normal working day. As long as UberX and Airbnb remain largely unregulated, there is serious doubt whether it is appropriate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
to allow workers to use such services.