1. 1
Regulating the gig economy: A view from the Bench
(Address by Jennifer Acton, Senior Deputy President, Fair Work Commission to the
Australian Labour Law Association National Conference, 5 November 2016)
Michael
I want to speak to you about Michael. Michael is his real name. Michael is a truck driver
who is regarded as an independent contractor. He owns a 2005 Freightliner prime mover
and a 1999 tri-axle tautliner trailer, both of which he uses in his work. He transports
general freight, and he gets his jobs from a loading agent who he pays $50 per load.
When he transports freight from Melbourne to Brisbane he is paid around $3300.
However, the rate he is offered to transport freight from Brisbane to Melbourne varies from
$1200 to $1800. Indeed, he may have to wait, unpaid, for a couple of days in Brisbane
before he is able to get a return load at $1800.
The difference in forward and return rates is caused by an imbalance in freight movements
to and from Brisbane, with more freight being transported to Brisbane than from it. As a
result, the supply of contractor truck drivers to transport freight from Brisbane exceeds the
demand for them.
The trip from Brisbane to Melbourne, which is about 1700 kilometres, takes Michael two
days of driving. The fuel alone for that trip costs Michael around $1000. After paying the
loading agent his $50, that leaves Michael with, at most, $750 for his labour and the
capital equipment he provides for the return trip as well as his other costs, such as
maintenance, insurance and administration.
If Michael was an employed driver he would be paid at least $750 for the trip from
Brisbane to Melbourne under the relevant modern award,1
without any unpaid waiting time
and without having to supply any prime mover and trailer himself. I set aside the issue of
whether Michael is rightly classified as an independent contractor rather than an
employee.
The labour regulation of Michael is relevant to workers in the “gig economy” because, like
the road transport industry, the “gig economy” has many workers who are regarded as
independent contractors.2
By the “gig economy” I refer essentially to “crowdwork” and “work-on-demand via app”, as
described in the International Labour Office publication of the paper by Valerio De Stefano
from Bocconi University.3
“Crowdwork” being “work that is executed through online platforms that put in contact an
indefinite number of organisations, businesses and individuals through the internet,
1
Road Transport (Long Distance Operations) Award 2010, PR583069.
2
Valerio De Stefano, The rise of the “just-in-time workforce”: On-demand work, crowdwork, and
labor protection in the “gig-economy”, 2016 Conditions of Work and Employment Series No. 71,
ILO, Geneva; and Miriam A. Cherry, Beyond Misclassification: The Digital Transformation of Work,
37 COMP. LAB. L. & POL’Y J (2016).
3
De Stefano, supra note 2.

2. 2
potentially allowing connecting clients and workers on a global basis.”4
It involves tasks
such as coding the thousands of items for sale on a website, tagging photos or creating a
logo or website. “Crowdwork” platforms include “Amazon Mechanical Turk” or “Click-
Worker”.
“Work-on-demand via app” involves more traditional work, such as transport and cleaning,
which is offered and assigned through mobile apps.5
“Work-on-demand via app” platforms
include “Uber” and “Handy”.
However, it should be recognised that “crowdwork” and “work-on-demand via app” are not
monolithic or homogenous concepts in themselves.6
In speaking about the labour regulation of the “gig economy” I take no stance about
whether it should be so regulated or about the form of any such regulation. At this stage,
that is a matter for others to deal with. My aim is to shed some contextual light on the
current labour regulation of the “gig economy” and to highlight some recent labour
regulation experiences which may be relevant to future deliberations about its labour
regulation.
I turn then to the labour regulation of workers regarded as independent contractors, such
as Michael, compared to that of employees.
Australian labour regulation of independent contractors
The labour regulation of independent contractors has recently been considered by
Australia’s Productivity Commission. This consideration has looked beyond the other
regulation of independent contractors, such as that under harsh or unfair contracts law and
workplace health and safety law.
The Productivity Commission recognises there are a range of entitlements that labour
regulation in Australia affords to employees but does not generally afford to independent
contractors, including independent contractors such as Michael and those engaged in the
“gig economy”.
The table below from the Productivity Commission shows that, in general, independent
contractors are not entitled to significant benefits that are provided for employees, such as
minimum wages, maximum working hours, other award conditions, leave and dismissal
protection:7
4
De Stefano, supra note 2.
5
De Stefano, supra note 2.
6
De Stefano, supra note 2.
7
Some independent contractors may be entitled to some of these types of entitlements through
State law. For example, the Transport Industry-General Carriers Interim Contract Determination
(Publication No. C8541) of the Industrial Relations Commission of New South Wales provides
minimum rates of remuneration and unpaid annual leave for some contractor drivers in the road
transport industry.

3. 3
The nature and extent of labour regulation of independent contractors has economic and
social consequences.
In the case of the road transport industry, it has been suggested that the unequal labour
regulation of employee drivers and contractor drivers is a powerful means by which their
employers or hirers and participants in the supply chain can control workplace bargaining
and exert service and wage-price discipline on employee and contractor drivers.8
For Michael, the consequences extend beyond the rates he is paid to matters such as lost
productivity from his unpaid waiting time and risks to his road safety.
Truck driver remuneration and road safety
In regard to this last matter of his road safety, the fact is that the road transport industry in
which Michael works is one of the most dangerous industries in Australia. In the 12 months
to the end of June 2016, 190 people died from 164 crashes involving articulated or heavy
8
See, for example, Kerry Donohue and Alan Williams, Strategic management in the Australian
road freight transport industry, Australasian Transport Research Forum, 15th, 1990, Sydney, New
South Wales, Australia, Volume 15, Issue Part 2, 1990, 555-66.

4. 4
vehicle trucks.9
Further, some 1600 people are hospitalised from crashes involving heavy
vehicles each year.10
Safe Work Australia reports that the worker fatality rate in the road
transport industry is over ten times that for all industries.11
The total cost of heavy vehicle
related accidents in Australia is estimated at approximately $3.2 billion per annum.
There is extensive research linking truck driver remuneration and road safety, including the
National Transport Commission’s (NTC) 2008 inquiry entitled “Safe payments: Addressing
the Underlying Causes of Unsafe Practices in the Road Transport Industry”.12
That inquiry
found sufficient evidence pointing to a link between how, and how much, truck drivers are
paid and a variety of on-road behaviours which contribute to truck crashes.
The link is shown in the diagram below:
9
Bureau of Infrastructure, Transport and Regional Economics (BITRE), Fatal Heavy Vehicle
Crashes-Quarterly Bulletins, August 2016.
10
BITRE, Road Trauma Involving Heavy Vehicles-Annual Summaries, July 2016.
11
Safe Work Australia, Work-related traumatic injury fatalities, Australia 2014, October 2015.
12
ISBN 1 921168 98 6.

5. 5
According to the NTC inquiry, economic pressures on a truck driver, such as low rates of
pay and incentive based rates,13
cause on road behaviour by the driver, such as driving
while fatigued or under the influence of drugs so as to keep driving, which in turn leads to
poor safety outcomes, such as vehicle crashes.
Road Safety Remuneration Act 2012 (Cth)
There have been attempts to improve the labour regulation of independent contractors in
the road transport industry, and deal with the link between truck driver remuneration and
road safety, including through the enactment of the Road Safety Remuneration Act 2012
(Cth) (RSR Act) by the majority of the Australian Parliament. The object of the RSR Act
being to promote safety and fairness in the road transport industry.14
The RSR Act established the Road Safety Remuneration Tribunal (RSRT), comprised of
some members of the Fair Work Commission and some part time members with
knowledge or experience in transport and logistics, driving or work health and safety in the
road transport industry, or business, industry or commerce.15
The RSRT presented a significant opportunity for independent contractors and other small
businesses in the road transport industry. The RSRT was charged with making road safety
remuneration orders (RSROs); approving road transport collective agreements; dealing
with certain disputes relating to road transport drivers, their employers or hirers and
participants in the supply chain in relation to them; and conducting research into
remuneration-related matters that may affect safety in the road transport industry.16
With respect to RSROs, the RSRT was empowered to make any provision in a RSRO that
it considered appropriate in relation to remuneration and related conditions for road
transport drivers to whom the RSRO applied.17
Without limiting this, the RSRT could make
provision in a RSRO in relation to:
• minimum remuneration and conditions for employee and/or contractor drivers,
• conditions for loading and unloading vehicles, waiting times, working hours, load limits,
payment methods and payment periods, and
• ways of reducing or removing remuneration-related incentives, pressures and practices
contributing to unsafe work practices.18
The RSRT could impose the requirements in a RSRO on the employers or hirers of road
transport drivers to whom the RSRO applied and on a participant in the supply chain in
relation to such drivers.19
The RSR Act also provided for the Fair Work Ombudsman to:
13
“Incentive based rates” include paying only per kilometre rates or a fixed amount per trip.
14
Road Safety Remuneration Act 2012 (Cth), s. 3.
15
Road Safety Remuneration Act 2012 (Cth), ss. 79, 97 and 98.
16
Road Safety Remuneration Act 2012 (Cth), s. 80.
17
Road Safety Remuneration Act 2012 (Cth), s. 27(1).
18
Road Safety Remuneration Act 2012 (Cth), s. 27(2).
19
Road Safety Remuneration Act 2012 (Cth), s. 27(3).

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• monitor compliance with the RSR Act and any enforceable instruments made by the
RSRT, including RSROs, and to do this by, amongst other things, providing education,
assistance and advice to those in the road transport industry,
• inquire into, and investigate, any act or practice that may be contrary to the RSR Act and
any enforceable instrument,
• commence enforcement proceedings in a court, and as appropriate represent road
transport drivers in court proceedings, and
• refer matters to relevant authorities.20
In addition, the RSR Act provided for courts to deal with breaches of the provisions of the
RSR Act.21
Road Safety Remuneration Orders
The RSRT was established on 1 July 2012. Over the course of the next three and a half
years it made two RSROs, and conducted a number of other inquiries with a view to
making other RSROs.
The first RSRO, the Road Transport and Distribution and Long Distance Operations Road
Safety Remuneration Order 2014 (the 2014 RSRO),22
took effect on 1 May 2014.
The 2014 RSRO applied to employee and contractor road transport drivers employed or
engaged in supermarket distribution work or long distance operations, their employers or
hirers, and participants in the supply chain in relation to them.
The second RSRO, the Contractor Driver Minimum Payments Road Safety Remuneration
Order 2016 (the 2016 Payments RSRO),23
took effect on 4 April 2016.
The 2016 Payments RSRO applied to the same contractor drivers as the 2014 RSRO,
excepting contractor drivers engaged in the cash-in-transit industry, the waste
management industry, wharf and port container work or the oil, fuel and gas sectors.
These contractor drivers were excluded because they were the subject of other inquiries
being conducted by the RSRT.
The RSROs made by the RSRT:
set out minimum hourly and kilometre rates for contractor drivers,
permitted the hirer of a contractor driver to pay by other methods provided the total
payments made over four consecutive weeks from the hirer to the driver were no
less than the driver was entitled to under the RSROs,
required that the minimum rates be paid for all time necessarily spent by a
contractor driver in providing a road transport service, including for loading and
20
Road Safety Remuneration Act 2012 (Cth), s. 73.
21
Road Safety Remuneration Act 2012 (Cth), Part 5.
22
[2014] RSRTFB 7.
23
[2015] RSRTFB 15.

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unloading time and for queuing or waiting time whilst the driver is in control of the
vehicle,
required certain parties to contracts for the carriage of goods to conduct an annual
sample audit of a hirer’s compliance with the minimum rates in a RSRO, to advise
the hirer of any non-compliance and, subsequently, to advise the Fair Work
Ombudsman of any non-compliance not rectified by the hirer,
required payment to a contractor driver by a hirer within 30 days of receipt of a
valid taxation invoice from the driver,
provided a contractor driver with up to four weeks unpaid leave per annum,
required an employer or hirer to provide a driver with a written contract of
employment or engagement,
required a written safe driving plan for a driver undertaking long distance
operations in a vehicle of more the 4.5 tonnes gross vehicle mass,
provided for work health and safety training and a written drug and alcohol policy
for a driver,
provided protection for a driver from adverse conduct by participants in the supply
chain in relation to the driver associated with their rights under the RSR Act or a
RSRO,
required that the terms of supply chain contracts not prevent or impede compliance
with a RSRO, and
required a hirer to advise a contractor driver about the RSROs.
The two RSROs are said to have applied to some than 39,000 contractor drivers,24
with
the cost of the minimum rates in the 2016 Payments RSRO being $40 million per annum,25
or less than an additional $20.00 of income per week for each contractor driver.
A cost/benefit analysis of the two RSROs conducted by PricewaterhouseCoopers, an
independent professional services firm, considered there would be a 28% reduction in the
number of heavy vehicle crashes from the 2014 RSRO and the 2016 Payments RSRO.26
As PricewaterhouseCoopers put it: “The operation of these (RSROs) will have the largest
impact upon hire and reward, and ancillary operators, who will in turn pass some of these
costs onto consignors and consignees that demand road freight services and consumers.
Drivers are likely to benefit the most due to increased remuneration and fewer road
accidents, followed by government and members of society who face costs following road
crashes, and will therefore benefit from an improvement in safety.”27
24
PricewaterhouseCoopers, Review of the Road Safety Remuneration System Final Report,
January 2016, http://www.employment.gov.au
25
PricewaterhouseCoopers, supra note 24.
26
PricewaterhouseCoopers, supra note 24 at pp. 30-31 and 86.
27
PricewaterhouseCoopers, supra note 24 at p. 44.

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The making of the two RSROs was preceded by inspections of workplaces by the RSRT,
extensive research, opportunities for affected persons to put written and oral submissions
to the RSRT, conciliation conferences, the taking of evidence, the publication by the RSRT
of draft RSROs for comment, and hearings with evidence.
The RSRT proceedings were well publicised in road transport industry publications and
contributed to by industrial organisations representing drivers, employers and hirers, as
well as by some individual drivers and other individuals in the supply chain.
A time line of the RSRT’s consultations with affected parties prior to the making of the
2016 Payments RSRO is set out below:
Starting in December 2012, the RSRT published research on the then current payments to
road transport drivers. This research was augmented and updated over the next three
years. Subsequently, the RSRT received applications from the Transport Workers Union of
Australia and others seeking minimum payments and other conditions for the drivers.
The RSRT then commenced worksite inspections, sought and received written
submissions from interested persons on the applications and conducted conciliation

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proceedings and hearings on the matters. In July 2013, a draft RSRO containing a
payments clause and other provisions was published by the RSRT.
From August to October 2013, interested persons made written and oral submissions and
gave evidence to the RSRT on the draft RSRO. In December 2013, the 2014 RSRO was
made without a payments clause. No payments clause was included in the 2014 RSRO as
the RSRT considered it needed further material on the matter having regard to the
diversity of views on the clause in the draft RSRO.28
In February 2014, the RSRT asked interested persons to propose RSROs on payments for
drivers. The TWU and others did so and between April and December 2014 the RSRT
conducted conciliation on the party proposed Payments RSROs. Those conciliation
proceedings were open to all and attended by many.
In April 2015, the RSRT published research by KPMG, an independent professional
services firm, containing a cost model and associated minimum payments for contractor
drivers engaged in distribution and long distance operations. Between May and August
2015, the RSRT received written submissions from interested persons on the matter of
payments for the drivers.
Later in August 2015, the RSRT published a draft Payments RSRO setting out specific
hourly and kilometre rates for the same contractor drivers covered by the 2014 RSRO.
Throughout September to November 2015 written submissions and hearings with
evidence on the draft Payments RSRO were made to the RSRT.
In December 2015, the RSRT published the 2016 Payments RSRO, with minimum hourly
and kilometre rates for the contractor drivers, excepting the drivers covered by the other
inquiries being conducted by the RSRT. The rates were substantially less than those in the
draft Payments RSRO, and less than those set out in much of the published research and
evidence.
Abolition of the RSRT and RSROs
The 2016 Payments RSRO commenced operation on 4 April 2016. However, it operated
for just over two weeks.
In March 2016 around 40 applications were received by the RSRT from some industrial
organisations, road transport companies and individuals to delay the implementation date
of the 2016 Payments RSRO indefinitely or for between three and twelve months.
The RSRT heard and determined these applications promptly given the imminent
operation of the 2016 Payments RSRO. Nearly 900 mostly identical or remarkably similar
written submissions on the variation applications were made to the RSRT.
The RSRT required some of those who made written submissions raising additional issues
to give evidence elaborating on the content of their submissions.
The reasons advanced for delaying the commencement date of the 2016 Payments RSRO
were largely that:
28
Annual Work Program, [2013] RSRTFB 7 at [192] to [217].

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• there was a low level of awareness and understanding about it, as well as uncertainty
and confusion about its operation,
• its implementation involved major change to the way the road transport industry
remunerates contractor drivers, and
• hirers would no longer engage contractor drivers because of it.
The RSRT decided not to delay the implementation of the 2016 Payments RSRO. In so
deciding the RSRT noted that:
• there had been more than three years of consultations on it,
• the 2016 Payments RSRO reflected terms in the RSR Act, it was evident many did
understand the 2016 Payments RSRO and to the extent there was any uncertainty and
confusion, such uncertainty and confusion had been manufactured by others,
• the 2016 Payments RSRO was intended to affect needed change in the road transport
industry, and
• the material presented to the RSRT on hirers not engaging contractor drivers was
mostly equivocal or unsound.
The RSRT concluded that the matters it was required to have regard to in deciding
whether to vary the 2016 Payments RSRO did not favour varying it and the 2016
Payments RSRO remained consistent with the object of the RSR Act.29
Applications were then made to the Full Court of the Federal Court of Australia by some
organisations representing employers and hirers of road transport drivers and by two
major employers and hirers. The applications sought to stay both the RSRT’s decision not
to vary, and the operation of, the 2016 Payments RSRO. The applications were dismissed
by the court.30
Subsequently, and in the lead up to the July 2016 Federal election, there was
considerable media speculation about hirers refusing to engage contractor drivers and
some parties staged some rallies and protest convoys of trucks. The notion of no
contractor driver getting work as a result of the 2016 Payments RSRO has been described
as a “scare campaign” organised by hirers and participants in the supply chain and “a
fantasy given the scale of the industry and the freight-moving needs of the country”. A
“fantasy” because “there were not thousands of company trucks sitting idle to pick up the
slack.”31
The Federal government announced it would seek immediately to have legislation passed
delaying the implementation of the 2016 Payments RSRO and after the Federal election
seek to abolish the RSRT. Then it announced it would pursue immediately legislation
29
Australian Long Distance Owners & Drivers Association Inc., [2016] RSRTFB 6.
30
National Road Transport Association Ltd v Road Safety Remuneration Tribunal, [2016] FCAFC
56 and National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2),
[2016] FCAFC 58.
31
Tim Lyons, The Labour Movement: My Part in its Downfall, Meanjin Quarterly, Vol. 75, Issue 3,
p. 93.

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repealing the RSR Act. On 18 April 2016, whilst the RSRT was considering another
application to vary the 2016 payments RSRO,32
the majority of the Australian Parliament
voted to repeal the RSR Act and with it abolish the RSRT and its RSROs.
Disappointingly, in the period preceding the repeal of the RSR Act and thereafter, some
thought it necessary to cast aspersions on the integrity of members of the RSRT and its
processes. They did so notwithstanding the facts and despite the Full Federal Court
having given short shrift to similar aspersions.33
Future labour regulation of the “gig economy”
Tim Lyons, a former Assistant Secretary of the Australian Council of Trade Unions, has
said that with the repeal of the RSR Act went the “chances of the RSRT being a ‘proof of
concept’ for other industries in which contractors are severely exploited”.34
We know the appetite amongst legislators, participants and the general public for labour
regulation of the “gig economy” is mixed. The experience of the RSRT suggests it is also
likely to be skittish.
The RSRT has been replaced with:
• press releases on the plight of small businesses,
• promises to fund roadside safety measures, and
• suggestions that -
• the development of a code of conduct for the road freight industry be investigated,
• there be targeted information materials on unfair contracts law,
• there be an inquiry into ways to reduce payment terms for contractor drivers,
• consideration to be given to funding national advertisements to educate road users
about driving near trucks, and
• consideration to be given to establishing an apprenticeship/traineeship scheme to
get more young people into the trucking industry.
At this stage, any concrete changes to the labour regulation of contractor truck drivers
seem elusive. Fundamental reform, such as developing the labour regulation of workers as
a whole, rather than developing it for employees and independent contractors separately,
or replacing employment law with work law,35
is probably a mirage for those seeking it.
32
Transport Workers’ Union of Australia, [2016] RSRTFB 7.
33
National Road Transport Association Ltd v Road Safety Remuneration Tribunal, [2016] FCAFC
56.
34
Lyons, supra note 31.
35
See, for example, Josh Bornstein, The great Uber fairness fallacy: as a driver, how do you bar-
gain with an app?, https://www.theguardian.com/technology/2015/aug/24/uber-fairness-independ-
ent-contractors-emplyees-rights and Aslam and Others v Uber B.V. and Others, Employment Tri-
bunals, Case Nos: 2202551/2015 and Others.

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However, for Michael perhaps it won’t matter. It is reported that “Uber” plans to shake up
the road freight industry with self-driving technology and has commenced talks with
contractor truck drivers as well as large haulage companies, “starting a turf war with the
freight brokers who now control the system.”36
A similar fate may await many workers in
the “gig economy”.
36
Self-drive trucks on Uber radar, The Australian, 3 October 2016, p.19.