GIG Economy - new ways of engaging workers

Emerging Trends of the
Gig Economy
Workplace Relations and Employment
Team of the Year
©2017 Australian Business Lawyers & Advisors. All Rights Reserved

Presenters
2©2017 Australian Business Lawyers & Advisors. All Rights Reserved
Michal Roucek
Senior Associate
Luis Izzo
Director

Overview
• What is the gig economy?
• Who is a contractor and who is an employee?
• Getting it wrong is costly!
• Distinction between full time, part time and
casual employees
• Disruptive Businesses
• The 4 major pitfalls associated with different
types of engagements
• The future of regulation regarding independent
contracting/casual employment

What is the gig economy?
Gigs are no longer just
something a musician gets…
Short term, on demand
work normally via a device
such as a smartphone or
tablet.
Sometimes usefully defined
as peer too peer
“freelancing”

Who is a contractor and who is
an employee?
Whether a worker provides his or her services as a
contractor or employee is something courts and
tribunals will determine by looking beyond the words
used in a contract, to examine the true nature of the
working relationship.

Employees Vs. Contractors
The determination regarding whether a worker is an employee or
contractor is conducted by analysing the substance of the relationship
between the parties, as opposed to how the parties themselves describe
the relationship.
• ACE Insurance Limited v Trifunovski [2013] FCAFC 3 at [32]:
“The parties may agree the terms of their contract, but any
statement by them about the character of their relationship, or of
their contract, has consistently been held not to be decisive of the
true legal character of either.”

Employees Vs. Contractors
Indicative of contracting relationship Indicative of employment
Worker performs services through Pty Ltd
company
Worker is engaged directly as a sole
trader
Remunerated for goods/product delivered
or paid based on results
Remunerated by reference to time
worked or on salary
Worker provides own tools/equipment Principal provides tools/equipment
Worker determines when and how work is
performed
Principal determines when and how work
is performed
Worker works with little
direction/supervision
Worker has a direct supervisor
Worker is required to obtain own
insurances
Insurance is provided by the Principal
Worker can delegate work Worker cannot delegate work
Worker offers services to the public at
large
Worker works only for the principal
Worker is not presented to the world at
large as part of the principal’s business
Worker is presented to the world at large
as part of the principal’s business
Worker is not provided with annual
leave/personal leave
Worker is provided with leave
entitlements
GST is paid pursuant to invoices issued by
the worker
PAYG tax is withheld from payments. No
invoices issued by worker

Getting it wrong can be costly
Employers can be exposed to liability for back
pay but also penalties for contraventions of the
Fair Work Act 2009 and superannuation
Legislation.
• minimum wage
• annual leave
• penalties
• loadings
• award-based payments
• payroll tax liabilities for your
business

Full time, part time and casual
employees
• Full timers are ordinarily defined as employees
who work 38 hours per week
• Part timers are permanent employees who are
engaged to perform less than 38 hours per
week. Awards often have requirements relating
to part time employees which can include
clauses relating to:
• minimum engagements
• minimum hours of work
• overtime where additional hours are worked
beyond the ordinary part time hours.

Full time, part time and casual
employees
• If an industrial instrument applies to the
employees, the industrial instrument will define
which employees constitute full time, part time
or casual employees.
• The industrial instrument might be an enterprise
agreement or an award.
1 0©2017 Australian Business Lawyers & Advisors. All Rights Reserved

Casuals
Starting point is the industrial instrument applicable
• Starting point for determining whether an
employee is a casual is analysing whether the
employee falls within the definition of a casual in
any applicable industrial instrument.
• This approach has been pioneered in recent cases:
• Telum Civil (Qld) Pty Ltd v CFMEU [2013] FWCFB
2434
• FWO v Divine Marine Group Pty Ltd [2014] FCA
1365
• Many awards will define a casual as an employee
“engaged and paid as such”.

Casuals
What if there is no industrial instrument applicable?
• Where no industrial instrument exists, the common
law applies.
• Common law definition of a casual employee
differs from awards. Common law analyses
whether the engagement relates to genuinely
“intermittent” or “irregular” work:
• Reed v Blue Line Cruises Ltd (1996) 73 IR 420
• Williams v MacMahon Mining Services Pty Ltd
[2010] FCA 1321

Achieving the appropriate
workforce mix
• Benefits associated with a good ‘workforce mix’
• A best practice workforce mix may be comprised
of:
• Full time workforce
• Part time workforce (particularly important to
consider flexible part-time working hours in a
modern company)
• Casual workforce
• Contractor labour

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Sham Contracting

The 4 major pitfalls associated with
different types of engagements

The emergence of disruptive
businesses

Future IR regulation
Business response to existing challenges
• Remote working
• Increased individual flexibility
• Expanded IFA’s
• Individual statutory contracts
• More certain regulation of independent contracting
to encourage entrepreneurship
• Facilitate part-time work through flexible
conditions

Union response to existing challenges
• Expand minimum safety net of entitlements to all
workers – not just employees
• Creation of a definition of employee/independent
contractor
• Granting the FWC the power to determine/declare
whether workers are employees/independent
contractors

Other union campaigns re future of work
• Creation of ‘portable’ long service leave scheme
creating LSL entitlements for all employees
Possible business response:
• “Flexicurity”

To arrange an appointment to review your flexible
workplace needs, call us on 1300 565 846 or
email:
Luis Izzo,
Director
Luis.izzo@ablawyers.com.au
Michal Roucek
Senior Associate
Michal.roucek@ablawyers.com.au
Need advice?

Thank you!

GIG Economy - new ways of engaging workers

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