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WHS ACT AND GIG ECONOMY - Coggle Diagram

- - - - The second matter requires the worker to have a connection to the PCBU. There are various ways that the connection can be demonstrated, as set out in ss 19(1)(a)–(b) as follows:
        
        Richard Johnstone has undertaken significant analysis of these requirements, including in the context of multilateral business arrangements.55 Johnstone notes that these requirements do not depend on a contractual relationship between the PCBU and the worker, and that it is possible that the breadth of ways in which a person is ‘caused to be engaged’ could include circumstances where a platform provider brings together a worker and the end user.56
        
        Example: Uber
        
        Uber is likely to satisfy the definition of a PCBU.
        
        The key issue is whether, in its ridesharing service, a driver is considered a worker. As noted above, a PCBU owes a primary duty for safety to its workers under s 19(1) to ensure, so far as is reasonably practicable, their health and safety while they are at work in the business or undertaking. In this regard, in respect of its ridesharing service, Uber says it provides technology services to its drivers and customers. If this is accepted, it is possible that Uber drivers would not be workers to whom Uber owes duties for want of meeting the second or third matters outlined above — that is, they are not workers with a sufficient connection to Uber, nor are they ‘at work’ in Uber’s business or undertaking. Rather, Uber is providing the driver with a service.
        
        Given that Uber’s application causes the driver to be matched with the end user, it can be argued that Uber causes the driver to be engaged by the end user, thus satisfying the connection requirement of s 19(1)(a). The question then arises as to whether an Uber driver is ‘at work’ in Uber’s business or undertaking. In the authors’ view, this term should be broadly construed in accordance with previous case law as noted by Johnstone.61 Given that the business of Uber is to charge for a ridesharing service, the conduct of a driver providing driving services to an end user should be seen as work within Uber’s business or undertaking.
        
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        What is importnat to know is abiout these debates are that they are conjecture. They are up to interpretation depending upon they manner in which a person construes the term of the relationship. It HOW THE RELATIONSHIP IS PERCIEVED
- - - - instead of measuring saftey in terms of (a) safe systems of work etc --> it may be useful for a provision to exist which allows for the culture and economic drivers which make risk taking forseeable part of the job as the crunch culture mantality can force people to make silly mistakes or cut corners.
        
        For a platform business to ensure the health and safety of food deliverers, the platform arguably needs to ensure that its algorithms allocating work to food deliverers do not expose food deliverers to risk of injury, and that the context within which food deliverers work, including surveillance of worker performance, low pay, and the use of piece rates, do not engender psychosocial pressures or induce food deliverers to take risks on the road (see further the article by Aude Cefaliello in this special issue).
        
        WHS REGULATION OF PLATFORM WORK
        
        BECAUSE THEY ARE COVERED BY THE BREADTH OF THE ACT: They analyze the contemporary approach of the Australian Work Health and Safety (WHS) Acts, arguing that they are potentially able to protect platform workers because they impose legal duties on all persons who conduct a business or undertaking (including platform businesses), and the duties protect all persons who carry out work. They also enable WHS inspectorates to enforce WHS issues in work for labor platforms and envisage a role for worker health and safety representatives which could help strengthen the potential protections for platform workers ( Johnson)
        
        How does the application of the current WHS represent a positive application?
        
        19(2)
        
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        Limitation: For a platform business to ensure the health and safety of food deliverers, the platform arguably needs to ensure that its algorithms allocating work to food deliverers do not expose food deliverers to risk of injury, and that the context within which food deliverers work, including surveillance of worker performance, low pay, and the use of piece rates, do not engender psychosocial pressures or induce food deliverers to take risks on the road ( Bluff et all)
        
        Instead, we argue that the new issues to be articulated and scrutinised mostly arise from the layering and the cumulation of risks created by new forms of work management through AI and online devices (INRS, 2018). In addition to the issues previously raised in the literature on telework and other forms of remote working (Sardeshmukh et al., 2012; Montreuil and Lippel, 2003; Mann and Holdsworth, 2003), what the gig-economy brings as a new OSH challenge for lone workers with no standard workplace resides in the novelty of the digital tools’ design and data ownership from the platform organising the working activity, which allows for extensive power of control and data gathering on workers’ tasks. Information represents here, once again, the contested terrain in which the regulatory game is played. Under these premises, we argue that an “OSH oriented” use of information is key to the design of a responsive system, with positive actions that could be taken when considering the re-building of an effective preventive and enforceable framework ( Atanio)
        
        Link between crunch culture and WHS incidents: Second, the performance pressures that the platform puts on workers are able to affect workers’ physical and cognitive capabilities: riders revealed feeling incentivised to ride faster, in order to maximise income and rewards. This can generate a psychosocial risk in terms of working time intensity generated by the quantitative and qualitative requirements of the platforms (INRS, 2018). Within the qualitative data collection undertaken, riders testify feeling pressured by the fact that all their working activity is recorded and timed, with the knowledge of being constantly monitored and evaluated in all the tasks (from the time of acceptance of the delivery to the client’s doorstep), with the further impact on the possibility to get more work (hours or deliveries) if times are not satisfactory. On this latter issue, riders also testified that good performances and especially constant work availability (no absences or interruptions due to holidays or sick leaves) were strongly perceived as a parameter to obtain and maintain working hours.
        
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        First, WHS regulators need to take a stronger, and more strategic approach to enforcement (Weil 2010), principally by seeking to understand the factors determining non-compliance, by making greater use of general deterrence, and by focusing inspection and enforcement on the key businesses that control work arrangements and the allocation of work (Nossar 2021; Johnstone 2017; Walters et al. 2021, 132–138). ( Bluff et al)
        
        the law WHS doesnt really take into account the link between remunation and safe working habits. The seperation of pay and safey should be adressed and become one in the same. **Pay and conditions are a matter of saftey (book)
        
        Despite a series of work-related fatalities involving platform workers, the WHS regulators have tended to favor guidance (see below) and, at most, some direction rather than strong enforcement of WHS regulation in this sector, also accepting a strict division between WHS and wider “industrial relations” issues (like remuneration and work schedules). For example, the NSW regulator, SafeWork NSW, has investigated at least one of the incidents that have led to the deaths of five food delivery workers working for the Uber Eats and Hungry Panda platforms, but at the time of writing there has been no indication of whether there will be a prosecution. Also, in exercising the many dispute resolution functions delegated to it under the WHS Act, the NSW regulator generally seeks to conciliate issues rather than make determinations. The food deliverer fatalities prompte (bluff et al)
        
        Example: SafeWork taskforce
        
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    - - Could split effectivness into both conceptual and pratical application ie--> who is covered by the legislation and how enforcement is actually enforced to effectively fufill the aim of prevention.
        
        As we have shown, the Australian WHS Acts contain provisions that, in principle, require platform businesses to take steps to protect platform workers. They enable all types of workers, including food deliverers, to elect HSRs and participate in WHS, and Yet it is unions, particularly the TWU, rather than the WHS regulators, that have put most effort into attempting to apply the provisions of the WHS Acts to platform work. The NSW regulator has conducted some inspections and produced an action plan and some guidance for the food delivery sector.
        
        Act is only as good as its regulator
        
        First, WHS regulators need to take a stronger, and more strategic approach to enforcement (Weil 2010), principally by seeking to understand the factors determining non-compliance, by making greater use of general deterrence, and by focusing inspection and enforcement on the key businesses that control work arrangements and the allocation of work (Nossar 2021; Johnstone 2017; Walters et al. 2021, 132–138).
        
        WHS legislation is not presently sufficient to address on demand transport workers needs because it fails to address the link between the terms and conditions affecting remuneration of work and safety risks, and it is predicated on assumptions about the usual geography of work, being conducted in certain places where managers and workers congregate, and where inspectors can visit. A form of regulation that respects the more chaotic nature of on demand work is necessary. ( UTS TEACHO)
        
        WHS inspectorates to address WHS issues in work for labor platforms.
        
        Legislation vs regulator
  - - - In such a case, the application of this duty to on-demand workers could be particularly unclear. As described below, the Model WHS Act is designed so that multiple parties may have duties for health and safety at the same time; however, this situation presents unique challenges.
        
        In a usual multi-duty holder situation (for example, a labour hire arrangement under which both the host and the labour hire company will have duties) the parties are aware of each other’s obligations. In the present example, platform operators may not be aware that a worker to whom they owe duties is also undertaking work for another simultaneously ( Knowledge) Does that effect anything:
        
        If, in relation to a particular matter, there is more than one duty holder then the duty is imposed on each person, and pursuant to s 16(3), each person must ‘discharge’ their duty to the extent to which they have ‘the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity’. In light of this provision, the question of influence and control is relevant to the discharge of the platform’s duty (as a PCBU), but not to whether the platform owes a duty to the worker in the first instance. This is confirmed as the intention of the provision in the Explanatory Memorandum, which explains that ‘where a duty holder has a very limited capacity, that factor will assist in determining what is “reasonably practicable” for them in complying with their duty of care’.58
        
        DOES THAT EFFECT THE CAPACITY
        
        Place unfair expectations/ obligations on workers?
        
        Could this effect the ability to take reasonably practical steps?
        
        The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68] .
        
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        Could be both an advantage and disadvantage
  - - - STILL DEPENDS ON THE NATURE OF THE BUSINESS MODE---> Some gig models will be easier to engange with than others
      - This limitation is not really unique to GIG WORKERS BUT ALL LAY WORKERS
        
        Question of whether these class of workers warrant protection.
  - - - Examples:
        
        SafeWork NSW issued 28 Warning Notices to food delivery riders, for failure to use or wear adequate personal protective equipment (PPE) and/or riding in an unsafe manner. SafeWork NSW inspectors also issued seven improvement notices to food delivery platforms for failing to provide adequate instructions and information to food delivery workers about the risks associated with riding (SafeWork NSW and Transport for NSW 2021; Taylor 2022).
        
        t appears that SafeWork NSW’s approach is to target its enforcement efforts (principally issuing warnings and improvement notices) to the training and PPE provided by digital platforms, and the equipment and safety practices of food delivery workers (see SafeWork NSW and Transport for NSW 2021, 12, Recommendations 2, 8), rather than examining the systems that the platforms use to engage and control workers and their work schedules
        
        2021 and 2022 action plan
        
        This is evident in the food delivery industry action plan for 2021-2022, supported by Transport for NSW, which commits “partners to make improvements in five
        
        priority areas—safe design of work, safe riders, safe bikes and equipment, safe workplaces and communities, and safe working environment and safe roads” (NSW Government 2021).18) While, in principle, the safe design element could address platforms’ systems and algorithms that create the economic and work pressures and drive risky rider behavior, the action plan suggests actions like app features to prompt food deliverers to complete a checklist of safety precautions (checking tires, brakes and gears, and following road rules) and to confirm they are wearing PPE before they can start delivering with the app.
- - - - While a householder will be a PCBU where there is an employment relationship between that householder and a worker, the EM clarifies that the Model WHS Laws are not intended to apply to a householder in other circumstances such as: individuals who carry out domestic work in and around their own home (eg domestic chores etc); individual householders who engage persons other than employees for home maintenance and repairs in that capacity (eg tradespersons to undertake repairs); and individual householders who organise one-off events such as dinner parties, garage sales, lemonade stalls, etc.https://anzlaw.thomsonreuters.com/Document/Ia8deb4540b4411ea83b0ac48dfa2554a/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0a89d4220000018fec4d9f9078995157%3Fppcid%3Dbe5aeed7dd194e949ddb162db41dbf27%26Nav%3DAUNZ_ANALYTICAL%26fragmentIdentifier%3DIa8deb4540b4411ea83b0ac48dfa2554a%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=b5c69ba3c93b6b76ee940f311d961e6e&list=AUNZ_ANALYTICAL&rank=11&sessionScopeId=6d8e9d26ef73c38795a8a791454d72465a2ebb8c3a9479b4837a14a560ffdc3b&ppcid=be5aeed7dd194e949ddb162db41dbf27&originationContext=Search%20Result&transitionType=SearchItem&contextData=(sc.Search)&comp=wlau
        
        The PCBU must be conducting a business or undertaking. The terms “business” or “undertaking” are not defined in the Act15 but are fleshed out in the Interpretive Guidelines promulgated under the Act. Although the Guidelines do not have statutory status, they indicate the approaches adopted by the regulator in administering the legislation. The Guideline sets out the usual meaning of the terms:16 Businesses: enterprises usually conducted with a view to making a profit and have a degree of organisation, system and continuity Undertakings may have elements of organisation, systems, and possibly continuity, but are usually not profit-making or commercial in nature. The carrying on of a business or undertaking requires: “some form of commercial enterprise, systematically and regularly, with a view to profit” so that a distinction can be drawn between “a person who on spasmodic or isolated occasions may do dressmaking” at their own home and occasionally be paid and a person who does dressmaking as part of a business.17
        
        Where a Poster is an individual consumer or householder, it is very unlikely that they will be considered a PCBU given the definition of PCBU in s 5, although this is not entirely clear.66 Where the Poster is an individual and posting a task of a household or domestic nature, Safe Work Australia’s Interpretive Guideline suggests that in such situations, an engagement of a Tasker to provide one-off household or domestic work (such as putting together furniture or the conduct of home improvements by a tradesperson) is not intended to make the Poster a PCBU.67 (Taliadoros)
        
        This makes the second class of gig work in the form of intermediatrys fundemntal uncertain in the abilility to offer protection to worker in the gig econonomy. This is most aptly typified by the divsive platform airtasker.
        
        The question now is whether a duty exists for an organisation like Airtasker, which facilitates the connection between those seeking work to be performed and those offering their services.
        
        It is not the purpose of this essay to adduce whether these form of employees need or should have this level of portection but the temrs of the the act have holes in it which leave certain groups in a state of limbo due to definitional issues.
        
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- - - - While the law to large extent is effective in its ability to cover a wide range of workers in the gig economy, its ability to pratically prevent harms from befalling these vunerable workers is a matter of pratical regulation. While the WHS act provides the tools, the manner with which the it is regulated its limited to a certain degree. This may also be reflective in the provisions of the act which do not provide for such factors to be taken into account when revieing whether a PCBU has complied with their obligations to keep workers safe.
        
        it is has the basis there
  - - - The bill encourages the productive involvement of workers and employers in ensuring health and safety by the establishment of health and safety committees. The bill also introduces new and innovative approaches to enforcement and tougher penalties to allow government to enforce compliance and punish those who threaten the health and safety of others at work. The concept of enforceable undertakings is one such innovation. Enforceable undertakings offer flexibility to the regulator to deal with breaches of the provisions of the bill without compromising the health and safety of our workplaces. Enforceable undertakings enable a person conducting a business or undertaking who is suspected of a breach to enter into an undertaking with the agreement of the regulator. The undertaking is capable of enforcement in court and a breach of an undertaking attracts severe penalties. ( Second reading speech II)
        
        The bills establish a primary duty to ensure, as far as reasonably practicable, the health and safety of workers. The test of reasonable practicability is important as it places that duty in the context of what a reasonable person could have foreseen as a risk to the health and safety of a worker and it encompasses reasonable action by a person to mitigate that risk. It allows the duty holder to demonstrate that he or she did all that could reasonably have been done to avoid any risk to the health and safety of a worker.
        
        The Government is committed to harmonious workplaces built on good communication and consultation. There is no doubt that when workers and employers cooperate they can achieve safer and more productive workplaces. The bill requires a person conducting a business undertaking to consult with workers as far as is reasonably practicable. Guidance is provided to businesses, workers and employers through a definition of what consultation is, as well as how and when it should be undertaken. The bill provides for a limited right of entry by union officials for the purposes of investigating a suspected contravention, similar to existing provisions in New South Wales and to provisions under the Federal Fair Work Act 2009