Doing business in the gig economy: A global guide for employers

While less than 1% of the Australian workforce is engaged in the gig economy, it is predicted that this number will grow.

In broad terms, Australian workers fall into two categories: ‘employees’ or ‘independent contractors’. An employee enjoys comprehensive protections, such as a minimum rate of pay, maximum hours of work, leave entitlements and protection on termination of employment. A contractor is not provided with the same entitlements and does not have the right to make the same claims as an employee when the relationship ends.

Australian courts adopt a multi-factorial approach when characterising the relationship of a worker to a business, with no one factor being more determinative than any other factor.  The whole relationship is considered and it is a matter of balance.  The courts have also expressed the view that the key question is whether or not a worker is carrying out a business of their own (in which case they are an independent contractor) or providing their services exclusively to a third party (in which case they are an employee).

To date, Australian courts have held that the better view is that gig workers are independent contractors, rather than employees but acknowledged that there are ambiguities.

The fundamental challenge for Australian courts is that the two current categories of workers do not easily accommodate the particular circumstances of gig workers.

Although currently characterised as independent contractors, it is difficult to say that an individual gig worker is conducting a business in their own right. Gig workers typically rely on a shared platform or App for the allocation of jobs and the facilitation of payment. These platforms provide specific instructions, set limits on the workers’ relationships with customers and restaurants, and effectively rate their performance. Some gig workers are provided with branded uniforms, tools and other equipment.

While Australian legal academics have suggested that some of these features create a problematic dynamic, their arguments have not yet persuaded the courts.

Many jurisdictions across Australia have taken steps to deal with the perceived inadequacy of the traditional definitions of ‘employee’ and ‘independent contractor’, exploring various policy and legislative solutions. There have been several State Government inquiries, reflecting a growing community concern with the lack of legal protections afforded to gig workers.

For instance, the Inquiry into the Victorian On-Demand Workforce has published 20 recommendations aimed at better protecting on-demand (or gig) workers. The Victorian Government is currently considering community feedback on the recommendations before publishing its response. Similarly, New South Wales has established a Select Committee on the impact of technological and other changes on the future of work and workers in New South Wales, with hearings scheduled throughout 2020 and early 2021. The Select Committee’s terms of reference include considering the impact of the gig economy in New South Wales. Queensland also undertook an investigation into a possible extension of workers’ compensation coverage to certain gig economy workers. The matter is still under consideration by the Queensland Government, with a Decision Regulatory Impact Statement expected in response to the current consultation process.

At a Commonwealth level, although the Attorney-General instigated an industrial relations reform working group process earlier this year, attended by employers, unions, industry groups and government, the status of gig workers has not featured in these discussions.

More recently, the likelihood of some legislative reform has increased following public and media scrutiny of the conditions of gig workers, because of several instances in the last 12 months of gig workers being seriously injured or killed while working and their perceived vulnerability more generally during COVID-19.

In Canada’s pre-pandemic context, gig workers made up about 8-10% of the national workforce. Though, given the year’s extraordinary circumstances, it is speculated that this figure has likely increased. In light of COVID-19, some factors now driving the gig economy in Canada include the increased demand for the home delivery of products and goods, a heightened reliance on technology and innovation, and a developing appetite for more flexible and easily accessible paid work. Despite this apparent increase in popularity, the employment status of gig workers in Canada is an issue that remains nebulous and, to a certain extent, controversial.

By way of background, workers in Canada are generally categorized as employees or independent contractors. In general terms, what separates one from the other is the extent of an organization’s control over the worker, coupled with his or her level of their dependency on the organization. Usually, employees are subject to a higher degree of control and demonstrate heightened dependence on the organization, while the opposite is typically the case for independent contractors.

Clues potentially indicating a higher degree of control can include an organization’s ability to discipline, set normal hours of work, manage promotions and salary increases, and approve time off. In terms of measuring an individual’s degree of dependence, factors that can tip the scales in favour of “employee status” can include an individual’s reliance on an organization to provide them with the necessary tools and equipment needed to work, to influence their advancement in the industry, and to receive compensation fundamental to their livelihood. By contrast, an independent contractor is generally a worker who provides services on a limited or temporary basis, on his or her own account.

Finally, the third category of workers relates to the sometimes elusive notion of “dependent contractors.” In general, dependent contractors in Canada lie somewhere between employees and independent contractors. When distinguishing the independent from the dependent contractor, decision-makers have paid special consideration to the level of economic dependence, vulnerability, bargaining power, exclusivity and permanence between the worker and the entity for which the worker is performing services.

When considering how these concepts apply – or don’t – to gig workers specifically, it may come as no surprise that it is not uncommonly argued that these workers should be classified as independent contractors under the law. Though, recently, there appears to be a growing attractiveness in the case law towards finding gig workers to be dependent contractors. This is important because in some provinces, like British Columbia, Alberta, Ontario, Newfoundland and Labrador and for businesses under federal jurisdiction, dependent contractors have the right to unionize under labour laws in the same way employees do. In addition, depending on the contract, dependent contractors may also be owed  certain entitlements upon termination without cause in some jurisdictions, like British Columbia, Alberta, Ontario, Quebec and New Brunswick. When such protections are afforded to gig workers, the resulting consequences for the newly dubbed “employer” can be significant.

The case law in Canada provides no clear consensus on the status of gig workers. Likewise, there is a dearth of guidance from law and policy makers on this topic, and no new or amended legislation is currently expected any time soon. Until that happens, determining the employment status of gig workers will likely continue to be a highly fact-driven and -specific exercise, and, as a result, employers can expect continued litigation in this area.

The substantial contribution of gig workers to the Canadian economy continues to be increasingly noticed, above all in the context of COVID-19. This is perhaps one among other factors fueling recent legal trends whereby the contractual relationship of gig workers has been more and more likened to that of an employee.

While on the legislative front there is little to indicate any major changes in the near future, it bears mentioning that in February 2019, the federal government established the Expert Panel on Modern Federal Labour Standards. Among other issues, this panel was tasked with examining labour standards protections for non-standard workers, including gig workers. In its Report, the panel addresses certain considerations related to the working conditions in which gig workers can sometimes find themselves. The panel also discusses the expressed need for and potential advantages of securing stronger protections and benefits for those working in the gig economy. Whether initiatives such as these eventually materialize into some basis for future government intervention is undoubtedly a question that businesses and employers will closely follow in the coming time.

With many thanks to Emily Deraîche-Grossberg for her help with and contribution to this piece.

In France, the business model of gig economy platforms is based on the assumption that the individual is self-employed.

This distinction between the status of employee and self-employed service provider is fundamental from a legal perspective and often gives rise to disputes. The distinction is important in particular with regard to the strict employment law rules that exist in France, such as working time restrictions and protection on termination, as well as the employer’s liability for social security contributions (employers must make these payments only for employees but not for self-employed workers) and the eventual entitlement to unemployment benefits after termination.

As is the case in several countries, case law has established that in determining the employment status, courts must look at the substance of the relationship rather than any labels that the parties have given to that relationship. A number of factors will be reviewed such as the extent of the integration of the worker within the company’s operations, the equipment provided and the level of control exercised by the company.

This distinction between employee and self-employed has evolved through case law and so, in making a determination, will very much depend on the facts of each case.

There have been numerous cases before the courts over recent years but these have given mixed results both before the courts of first instance and at the court of appeal level.

A law was passed in 2017 granting some minimal rights for the individuals providing services through a digital platform, such as the obligation for the company to pay for work-related accident insurance cover, some sparse obligations to cover the financial cost of professional training and the right to strike and to constitute a trade union.

However the French Parliament decided not to seek to legislate on the status of such individuals, arguing that it was up to the employment courts to apply the case law to determine whether such individuals were employees or not based on the facts of the case.

An attempt was made in 2019, through a new law, to allow platforms to set up their own social policy or charter determining the individuals’ rights and obligations. However, the proposed provision of the law was held invalid by the Constitutional Court on the basis that the courts should have the power to qualify the individual as an employee. Additional regulations have been published since 2020 covering the authorisation of charters by the labour employment administration, the workers representation, welfare, etc. However, such regulations rather focus on corporate social responsibility and do not introduce any new rules on determining the status of the individuals.

Despite the general view that these individuals are generally self-employed, on November 28, 2018, the Supreme Court decided that a rider was an employee with a company using a platform and an application to connect partner restaurants, customers and riders, on the basis that the application used a geo-location system enabling the monitoring in real time of the rider’s position and the recording of the total number of kilometers travelled and that the company had the power to sanction the rider by a system of penalties which could even lead to the exclusion of the rider.

In a further case of March 4, 2020, the Supreme Court decided that a driver had the status of employee, notably because he was not able to develop his own clients and could not freely fix the price of his services.

Last year, several courts of appeal (in particular Paris: April 7, 2021 and Lyon: February 15, 2021) have decided that drivers, in similar circumstances, do not have the status of employees. In particular, the Paris court of appeal rejected the argument that the use of a geolocation system for delivery platform workers indicates the existence of subordination, explaining that such system was a formality inherent to the service requested and it could not be assimilated to a system of hierarchical control.

It should be noted that a trial before the Paris criminal court commenced at the beginning of March involving a platform provider and three of its former corporate officers. According to French authorities more than 2000 individuals who worked for the platform between 2015-2017 should have been considered to be employees based on the circumstances and model for the provision of the service during that period. The court can award a fine of up to EUR45,000 and a jail sentence of up to 3 years for individuals, and a fine of up to EUR225,000 as well as additional penalties including an order for the closure of the business for companies.

A recent law dated February 7, 2022 authorised the Government to enact regulations regarding platform workers. These regulations could cover the right to workers representation and sector-wide agreements (in particular concerning remuneration, professional training, working conditions and risks prevention).

The law also provides that the Government will be authorized to set out the obligations incumbent on platforms with regard to the self-employed workers who use them, in order to strengthen the autonomy of those workers. This could be done by improving the way the individuals are notified about any service required (in particular the destination), and how they can subscribe to theservice, in particular by having a reasonable time period to decide on these proposals, or by guaranteeing them a margin of autonomy to determine the way in which the services are carried out, particularly with regard to the itinerary, and the means used for this purpose. According to the impact assessment of the draft law, the aim of this provision is to "limit the risks of their commercial contract being reclassified as an employment contract".

These regulations will probably be published over the next few months, but we do not anticipate any regulation on the determination of the status of the workers using the platforms.

In Hong Kong there is an increasing trend for employers preferring to fill some or all of their staffing needs by hiring consultants and contractors on a self-employed basis. There are important distinctions between a worker being hired as an employee on the one hand and an independent contractor on the other: An employee is afforded rights and protections under the Employment Ordinance (Chapter 57 of the Laws of Hong Kong) and at common law; whereas independent contractors are expected to look after their own needs in relation to job safety, accident insurance, retirement schemes, leave periods, job security and other benefits normally associated with employment.

However, whether a worker is characterised as an employee or an independent contractor is fact sensitive and ultimately a matter for the courts to determine on a case-by-case basis. The courts will look to the substance of the relationship rather than the label applied to the contract.

Despite the importance of determining a worker’s employment status, unfortunately, the legislation in Hong Kong does not provide a definition of employee or any guidance in making the distinction between a worker engaged under a contract of employment and an independent contractor.

It is therefore necessary to refer to the common law for an understanding of how the distinction is made.

When looking at the legal characterisation of the worker, whether he or she is an employee or an independent contractor, the courts would typically look at the overall situation by considering a non-exhaustive list of factors. These include the degree of control the employer has over the worker, who provides the tools and equipment, whether the worker has freedom to delegate work or hire workers, whether the worker takes on any financial risk and has any prospect of profit and the employment status as expressed in a written contract.

The object of the exercise is to paint a picture from the accumulation of detail, which is not necessarily the same as the sum total of the individual details. In other words, a factor considered important in one case may carry very little weight in another.

When jobs in the gig economy became more common in Italy, gig workers had been initially qualified as “para-subordinate workers”, a special category of self-employed workers whose performance is carried out through a continued and coordinated collaboration with the principal. However, over time, there has been an increasing trend at giving such workers a minimum level of employment protection (i.e. minimum wage; insurance protection etc.).

This gradual trend started from case law, which, after some initial claims, granted gig economy workers with the core employment protection typical of subordinate employees, after holding that their performance – although occasional – is often strictly directed by the employer through a digital platform.

The above trend has been then acknowledged by Italian statutory law, that now considers “para-subordinate workers” (expressly including “riders”), whose performance is in practice organised and directed by the employer as subordinate employees.

Despite the recent legislation, in Italy gig economy workers have not yet been provided with a clear legal classification. Consequently, from a practical standpoint, the assessment of the actual employment status of a gig worker can sometimes be complicated.

Irrespective of the labels used by the parties to define the relationship, the assessment of the individual’s status (i.e. genuine self-employed worker, para-subordinate worker or subordinate employee) is determined by courts on a case-by-case basis.

Therefore, the chances of a self-employed or para-subordinate gig economy worker being re-labelled as a subordinate employee still mostly depends on how the performance is carried out in each  specific case.

Nevertheless, there is a growing trend to encompass gig economy workers within the scope of subordinate employment. In this context, recent case law, having determined that an individual was a subordinate employee, also held that the worker’s disconnection from the digital platform by the employer should be considered equivalent to a verbal dismissal.

The specific features of the gig workers performance (e.g. discontinuous/occasional performance) has left some outstanding issues, such as those relating to the adoption of proper remuneration criteria (e.g. how to remunerate the waiting time between the single tasks carried out by the gig workers?).

It is felt that a key role could be played by consultation with trade unions, through the possible implementation of the “On-Call Job”, a special kind of intermittent employment contract. However,  this has very limited chances of application due to the lack of a specific collective bargaining agreement introducing and regulating it.

It is estimated that there are tens of thousands of gig workers in South Africa, making up at least 1 per cent of the South African workforce, and growing by more than 10 per cent each year. Common platforms link customers with a number of services including: transportation, food delivery, cleaning, repair, creative skills and technology development.

There is presently no legislation framework which regulates the gig economy. Furthermore, gig workers are generally categorised as independent contractors in South Africa and are thus not entitled to the rights and benefits afforded to employees under Labour legislation, including: protections against unfair labour practices and dismissals; recourse to protected industrial action; basic conditions of employment; access to unemployment insurance and occupational injury benefits; and a prescribed minimum wage.

Technology platforms in the gig economy may still incur liability in terms of the Occupational Health and Safety Act which requires businesses in South Africa to take steps to ensure that, as far as is reasonably practicable, any person who may be directly affected by the business’s activities are not thereby exposed to hazards to their health or safety. Gig workers may report their platforms to the Department of Labour should they feel that their safety may be at risk through their business activity. Gig workers themselves also bear the responsibility to guard against unsafe conditions for themselves and anyone affected by their activities.

At this stage, South African courts have not yet been requested to provide guidance as to whether in certain instances gig workers can be categorised as employees and therefore entitled to the associated protection. However, the main employment tribunal in South Africa (the Commission of Conciliation, Mediation and Arbitration or the CCMA) has considered the issue and found favourably for gig workers.

In a relatively recent decision, a Commissioner of the CCMA was required to determine whether drivers engaged by an eHailing service (the “Company”) were employees or independent contractors. The Commissioner referred to Section 213 of the LRA, which defines employees as:

(1) “any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(2) any other person who in any manner assists in carrying on or conducting the business of an employer.”

In conjunction, the Commissioner relied on the statutory Code of Good Practice: Who is an Employee, which introduces a comprehensive test that requires one to consider the real relationship between the parties, despite the form of contract. In this case, the Commissioner held that the drivers are employees under South African law for the following reasons:

1. Firstly, the drivers render their personal services to the Company as they have to drive in their own name and may not out-source their driving to someone else.
2. Secondly, their relationship with the Company is indefinite so long as the driver complies with the specified requirements.
3. Thirdly, despite the flexibility regarding work hours, the drivers are subject to the control of the Company in the sense that they have to comply with the clear performance standards. Furthermore, if the driver does not meet the required standards, he/she is effectively dismissed or “deactivated.”
4. Lastly, the drivers are economically dependent on the Company.

Whilst the CCMA’s decision was ultimately overturned by the Labour Court, this was on account of the incorrect citation of Company instead of the Netherlands-based holding company. It was thus not necessary for the Court to re-examine the question of the employment status of the drivers. However, the CCMA’s reasoning does provide some insight into one interpretation of the complex relationship between gig workers and their platform providers.

Although a level of guidance can be taken from this decision, South African labour tribunals are yet to make definitive findings on how the divide between employees and independent contractors will be applied in the Gig Economy. This will ultimately depend on a number of factors specific to each case.

We expect that in the near future the courts will be asked to consider the question of whether gig workers in certain instances are employees for the purposes of labour legislation and are accordingly entitled to the protection that such status offers. It is probable that the courts will find that most gig workers will not fall within the traditional definition of an employee and will remain outside the ambit of certain labour protection.

However, it remains to be seen as to whether the government will consider legislating unique protections for gig workers. During the COVID-19 pandemic there has been State recognition that many individuals – including gig workers – fall outside the legislative safety nets and that this issue needs to be addressed.

There has been recent impetus on the part of e-hailing drivers to make use of protest action that falls short of strike action. This action has largely been directed at government in support that demand that government takes measures to better regulate the industry.

The percentage of the Dutch working population active in the gig economy ranges - dependent on the definition used –to a range between 0.4% and 10.6%.

In the Netherlands, workers are either employees or self-employed persons. To qualify as an employment agreement under Dutch law, the following three key criteria need to be met: 

1. The employer is entitled to give instructions as to how the work is to be carried out (relationship of authority);
2. The work is to be carried out personally (exclusively) by the worker; and
3. The worker receives remuneration (wages) for his work from the employer.

If these key criteria are met, then, notwithstanding any agreement between parties to the contrary, the agreement is classified as an employment contract (substance over form). Factual elements taken into consideration are, for example, the freedom of the worker regarding the organization of his work, the freedom to substitute, and whether the worker is paid during holiday and illness.

In recent years, discussions have taken place in the Netherlands regarding the future of the employment contract. Concerns have been raised about the steady decline of permanent employment contracts and the increase in other forms of employment relationships such as self employment, gig economy work, freelance work and other forms of flexible working arrangements. This trend is widely seen as an increasingly urgent social problem and an undermining of the Dutch social security system.

In 2018 a government committee was established to investigate the labour market in the Netherlands and advise on regulating the employment relationship. In January 2020, it published its report. One of its recommendations was to create a clear and fair distinction between employees and self-employed persons. This could be achieved by bringing the definition in line with European jurisprudence, which sets out that consideration of the worker’s integration in the organisation and the nature of the work should be key criteria in establishing an employment relationship.

The main difficulty regarding the test for establishing employment status is that the test is a factual one and as such is determined on a case-by-case basis. The result depends on the facts and circumstances of the specific case.

Further, with the rise of digital platforms, the level of control over the worker (authority) and how this can be established is under scrutiny. For example, do algorithms result in such a degree of control that these amount to an employer giving instructions? The control requirement is now interpreted differently, especially in lower tribunals.

However, the central discussions seems to be the social and political issues around platform workers being classified as self-employed workers and so enjoying less protection than standard employees.

Finally, there is also a lack of clarity from a tax perspective. From 1 May 2016, the Deregulation Assessment of Employment Relations Act (DBA Act) applies. The DBA Act provides for the use of model agreements when contracting with self-employed persons. However, soon after the introduction of the DBA Act enforcement was largely frozen, as it did not provide the clarity envisaged.

According to the latest update from the Ministry of Social Affairs, the following steps will be taken in the coming months:

• Legal presumption: The government will consider a presumption of an employment relationship for gig economy workers. The government recognizes that the test for establishing employment status lacks clarity. A legal presumption can be a useful aid to strengthen the legal position of vulnerable workers in certain sectors, professions or positions. The explanatory notes set out how it is possible to refute the legal presumption.
• Web-based module: The web-based module allows contracting parties to determine whether a person should be categorised as self-employed or as an employee according to the criteria applied by the tax authorities. A pilot starts in January 2021 and will last for six months.
• Broad social conversation/investigation: The government considers it important to hold a broad social discussion about the way work is carried out and to what extent certain working methods are desirable. The aim of the conversation is to gain insight into any bottlenecks resulting from the legal framework, and into social views on rules regarding the classification of the employment relationship.

Around five million people in the UK are employed in the gig economy, with the number of such workers having doubled between 2016 and 2019. This figure is expected to have increased since 2020 as unemployment has risen and more people turn to flexible work. While the gig economy provides the individuals with flexibility, it lacks job security and employment protection. Establishing the nature of the employment relationship will determine the employment rights to which an individual is entitled.

In the UK there are three types of employment status for the purposes of determining employment rights: employees, workers and self-employed. Employees have greater employment rights and protections under English law than workers and self-employed contractors.

Case law in England and Wales has set out that in establishing employment status, courts, tribunals and HMRC will look at the substance of the relationship rather any labels that the parties have given to the relationship. The tribunal and court will consider a number of factors in determining employment status, including mutuality of obligation, personal service, and the level of control. Other factors are also considered such as restrictions on the individual working for other organisations; the pay and benefits made to the individual; integration into the company; the equipment provided; and the level of financial risk.

Much of the difficulty is that the tests for establishing employment status do not necessarily sit well with the new work environment. This distinction between worker and self-employed has evolved through case law and so making a determination will very much depend on the facts of each case. This leads to a lack of certainty.

The recent trend in the cases on the gig economy which have been heard by the courts is to find that the individuals are workers rather than self-employed, although it does depend on the facts of each case. A recent decision of the Supreme Court in the UK confirmed that when determining worker status the court will consider the purpose of the legislation (a statutory interpretation) rather than a contractual interpretation. The key tribunal decisions have considered the degree of control that the business has over how the individual carries out the task, and that many of the individuals appear to be integrated into the business wearing a uniform and company branding. A couple of cases have indicated that the individuals are self-employed, looking at the fact that the individual in particular is able to provide a substitute and that the substitution clause is unfettered and genuine.

If individuals are incorrectly considered to be self-employed and are then held to be workers they are then entitled to a number of employment rights, such as right to the national minimum wage, paid holiday and the right to seek trade union recognition. This can be significant risk for employers, where there may be large claims for unpaid statutory holiday.

The issue is further complicated in that tax law in the UK only distinguishes between self-employed and employee. There is no worker category.

In December 2018, the UK Government published its Good Work Plan which set out its vision for the future of the UK labour market. This included a proposal that the Government would introduce legislation “to improve the clarity of the employment status test”. Another proposal was that workers should be able to request a more stable and predictable contract. It was suggested in December 2019 that this would be included in a new Employment Bill, but this has not yet been published.

The EU has published the EU Directive on transparent and predictable working conditions (Directive 2019/1152) and Member States have until August 1, 2022 to transpose the Directive into national law. There is also the proposed EU directive to improve the working conditions in platform work. Following the UK’s exit from the EU, it is not yet clear whether domestic legislation may be amended to incorporate the rights that will be available to EU workers.

Despite passing with nearly 59 percent of the vote, California’s Proposition 22—a 2020 ballot initiative which defined app-based, gig-drivers as independent contractors rather than employees—was declared unconstitutional by a California state court judge on the grounds that it impermissibly interfered with the legislature’s power to implement the state’s workers’ compensation system. Because the workers' compensation system currently covers only employees and not independent contractors, Proposition 22 essentially removed app-based drivers from that system by initiative statute and not a constitutional amendment. Therefore, the legislature was unconstitutionally denied its power to determine which workers are covered by workers' compensation. The law remains in effect pending appeal.

For now, there are still three categories of independent contractors: (1) those covered by Proposition 22; (2) workers who are covered by the roughly 100 exemptions from AB 5 (and not subject to the right of control of the hiring entity); and (3) the remaining workers who qualify as independent contractors under the stringent ABC test and AB 5. Many industries continue to lobby for additional AB 5 exemptions.