On-demand working and the changing workplace - Employee Rights/ Labour Relations

Even before COVID-19, the work environment in Australia and elsewhere was in a state of transformation. This was driven by profound social, economic, demographic and technological changes, and posed major challenges for the traditional ways in which work is regulated, and for the institutions associated with such regulation – including legislators, courts, regulators, trade unions, employer associations and industrial tribunals.

Pre-pandemic, traditional, labour-intensive industries and occupations were either shrinking or offered many fewer job opportunities than in the past. Workers could expect to change employer and, indeed career, on an increasing number of occasions over the course of their working lives.

Working patterns were undergoing fundamental change. Traditional nine-to-five work arrangements were, in what appeared to be, terminal decline. More and more women were entering the workforce, and more and more people were working from home for all or part of the time.

Significant numbers of workers were engaged on a casual or part-time basis – sometimes by choice, but often because continuing and/or full-time work was not available. Many individuals, from force of circumstance or choice, were in business on their own account.

Post-pandemic, the need for, and pace of, change is likely to be even greater than before.

It could not be said that any of the key stakeholders in Australia (or elsewhere) have so far coped particularly well with the challenges with which they are confronted. Indeed, in some instances they have barely recognised that the challenges exist.

Amongst the areas of greatest difficulty in this turbulent environment is the categorisation of work relationships. In particular, all participants in the labour process have persisted in attempting to accommodate to the new reality the traditional dichotomy between 'employees', who sell their labour to 'employers' by means of 'contracts of employment', and 'independent contractors' who sell their services to 'principals' on the basis of 'contracts for services'.

The distinction between the two types of arrangements has obscure historical origins and has never been clear or satisfactory. Under pressure from the kinds of changes noted earlier, it has simply proved incapable of delivering clear, efficient and equitable outcomes for either the purchasers or sellers of labour or services. Nowhere were these failings more starkly apparent than in the context of the 'on-demand' or 'gig' economy.

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