Blurring The Boundaries Between Employees And Contractors

September 21st, 2020 - Barbara Buckett

This recent article by Stuff highlighted Airtasker the Uber of  business and home tasking, as another business falls outside our employment laws.

The  latest initiative Australian multi – national Airtasker exemplifies the imperative changes to our employment law.

The current legislative employment framework  is outdated. It fails to appreciate the proliferation of “gig” economy organisations fueled now by Covid-19.  

Such business models do not fit easily with the change in the way work and businesses operate.

Organisations such as uber and now Airtasker blur the boundaries between employees and contractors.

Without legislative protection the new “gig’ business model allows for potential exploitation and creates a  new class of vulnerable workers. These workers ( those who do the work) have no rights to minimum wage ( payments) no sick leave and they cannot bring a claim for personal grievance

With the growth in “gig” economy the current legislative framework excludes all relationships other than pure employment ones. 

 Current legal tests for determining the true nature of a relationship contractor or employment are artificial and rely upon a fictional assessment of the facts to squeeze the realty.  Law that cannot be respected is bad law.

Hybrid gig arrangements ought to have legal recognition for what they are. Workers engaged in the gig economy ought to have the same rights and  protections as those employed.

In 2018 the labour government promised protection. Currently there is a bill before the house ( third reading ) for minimum wage protection. For dependent contractors  Why has this dragged on and why so limited.

The current framework excludes all relationships that are  predicated on the old  Victorian master /servant type arrangements that grew out of the arbitration and conciliation act of 1894.

 Control  and rigidity is a for example a  key determinant of what is an employee.  Such traditional concepts are denying the modern reality of  flexible working arrangements and business initiatives.

Time for a change. Time to level the playing fields and recognise the digital revolution and definition of “work” and the fact that there is now a new class of workers evolving that are neither employees or independent contractors but a hybrid of the two who need to have protection and rights..

Uber is currently before the employment court for a determination of the status of its drivers, employers, or independent contractors.  That decision whichever way it goes will depend on a distorted interpretation of the facts to fit the law according to the court.

The Uber case cannot remedy the anomaly but give either joy or grief to one of the parties. Time for a reality check and a law change to avoid power imbalance and exploitation.         

If you feel your rights are being impinged, get in touch with Buckett Law today. 

Note: BuckettLaw takes no responsibility for the consequences of any actions taken on the basis of our articles. Any views expressed or comments made in an article are the writers option only. The content in our articles does not constitute legal advice. If you need legal or expert advice you should obtain specific advice about your case or matter from a professional. For legal advice based on your individual situation please contact us to speak with one of our expert lawyers.

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Barbara Buckett

Barbara Buckett is a highly experienced senior employment lawyer with over 35 years of practice in New Zealand. She provides expert advice on all areas of employment law and has a proven track record of delivering excellent results for clients. Barbara has extensive experience in resolving workplace issues and is an experienced litigator. In her free time, she enjoys reading, traveling, working out, and fine wine and dining with friends.

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