Contingent Workforce Conference 2016 - Sydney - The Law & the On-Demand Economy
1. THE LAW &
THE ON-DEMAND ECONOMY
DAY OF RECKONING
Nick Duggal
Partner
Liz Aitken
Associate
2. “the economic activity created by digital marketplaces
that fulfil consumer demand via immediate access to
and convenient provisioning of goods and services”
4. Airtasker “has used a cloak of innovation and progress to re-
introduce archaic and outdated labour practices”
Unions NSW
“In essence, people formerly known as “employees” have lost
that identity to schemes drafted by lawyers and accountants
involving labour hire agencies, dependent and independent
contracting, franchising, supply chains and digitalised labour.”
Maurice Blackburn
5. • Mass engagement
• Unskilled labour
• Decline in major industry engagement
• Augmentation of labour market
• Lack of regulation
FEATURES OF THE ‘ON-DEMAND’ ECONOMY
7. IMPLICATIONS
• Higher transaction cost and overheads passed to consumer
• Less flexibility for workers / businesses
• Lower earning capacity for workers / businesses
• Poor leverage of excess capacity for workers / businesses
• Less stimulus for consumption
• Poorer consumer experience
8. IMPLICATIONS
• Unfair dismissal and other common
employment claims
• Employment entitlements – minimum
wages, annual leave etc
• Tax exposure – PAYG, GST etc
10. FWO v Quest South Perth Holdings Pty Ltd
[2015] HCA 45
"a person (the employer) that employs, or proposes to employ,
an individual must not represent to the individual that the
contract of employment under which the individual is, or would
be, employed by the employer is a contract for services under
which the individual performs, or would perform, work as an
independent contractor.“
Section 357 Fair Work Act 2009 (Cth)
11. FWO v Quest South Perth Holdings Pty Ltd
[2015] HCA 45
• Attemptto “convert”
employees to contractors
• Defence labour hire
arrangement
• High Court’s position: section
357 extends to triangular
arrangements
12. Roy Morgan Research Centre Pty Ltd v CMR For
State Taxation
FACTS:
Roy Morgan engaged “interviewers” as contractors who:
• could accept interviewing “assignments” for usually two
weekends a month
• would be provided with questionnaires, and be required
to read those questionnaires precisely as formulated
• be paid if completed eight interviews
• be required to have a car and a telephone
A series of decisions in other states with almost identical
facts determined that the interviewers were employees.
13. Roy Morgan Research Centre Pty Ltd v CMR For State Taxation
RULING:
• On the question of control: “If there was scope for
control, it was only in respect of incidental matters.”
• On the contractors running their own business:“there is
little scope for the interviewers to create a business
enterprise of their own, for example, by the
accumulation of goodwill, and that the interviewers are
in fact operating in RMRC’s business operation. I accept
there is weight in that argument, but in my view, that
circumstance is outweighed by factors pointing the other
way.”
• On the persuasive precedents:“I have been very much
assistedby those decisions, and I accord them respect.
But however desirable it might be to have uniform
decisions between the States…..Imust reach my own
decision.”
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