Who’s gonna drive you home? Ridesharing and procedural fairness at work

Fairness is a term ingrained in the Australian workplace relations system.

At the core of our federal industrial relations framework is the Fair Work Act 2009 (Cth), the umpire of our industrial relations disputes is the Fair Work Commission and we employ a minimum safety net of employment conditions for the purpose of ensuring fairness to workers. In fact, there are no fewer than seven references to fairness (in one form or another) in the stated objects of the Fair Work Act.

We also have anti-discrimination laws nationwide that protect people from discrimination in the workplace and we have legislation such as the Independent Contractors Act 2006 (Cth) aimed at protecting independent contractors from unfair contracts.

So, it’s no surprise then that when new businesses enter the Australian market and engage with workers, they are expected to ‘play by the rules’ of fairness that underpin the Australia workplace relations system. Now with “disruption” being a catchcry, new technologies and new ways of working are challenging traditional concepts of job and/or work and therefore the traditional concepts of employment fairness.

Uber and its drivers

Take, for example, Uber. Late last month, Uber Australia and New Zealand introduced a new Driver Deactivation Policy. The policy outlines the types of behaviours or situations that can result in temporary or permanent deactivation of a driver’s account. The effect of deactivation is that the driver can no longer pick up passengers or earn an income from the Uber service. Deactivation is a scary prospect for drivers who rely on the service for their income and sudden deactivation could be disastrous.

Introduction of the Driver Deactivation Policy came on the back of outcry from drivers about the possibility of Uber terminating their driver account without reasons explaining Uber’s decision. In a post on Uber’s website on 29 June 2016, Mike Abbott, Uber’s General Manager Operations Australia and New Zealand said, “it’s clear from feedback we’ve received that we don’t always do a good job working with our driver partners to explain our processes.”

In Perth, a driver is suing Uber for terminating his account without giving him notice or reasons as to why he is account was terminated until Uber had made its decision. If this was an employer/employee relationship this scenario would be considered a failure to afford the driver procedural fairness.

The employment status of Uber drivers is an ongoing debate and as it currently stands, Uber’s relationship with drivers is contractual and not employment. The Services Contract that all drivers must agree to before they can use the app to secure work says that Uber retains the right to deactivate or otherwise restrict drivers from accessing the Uber driver app for any reason at its sole discretion.

The Australian arm of Uber has tried to explain its position a little better and has suggested that it will give drivers some opportunity to respond to complaints in future. Its Driver Deactivation Policy also states: “There will always be unforseen events that may lead to deactivation, so this policy cannot capture every possible scenario.” The policy goes on to say that in certain circumstances, a driver’s account may be deactivated if several unconfirmed complaints are received, implying deactivation could occur even if the complaints are unsubstantiated.

It is not only Uber that is taking action on this issue. Ridesharing drivers are starting to get organised and have formed the Ride Share Drivers’ Association of Australia, the mission of which includes negotiation and collaboration with ridesharing technology providers. In short, the association seems to be taking on the role traditionally played by unions in representing drivers in discussions with companies like Uber.

Governments are also concerned about drivers in the ridesharing industry. Following the passing of legislation to legalise ridesharing in New South Wales, the NSW Legislative Assembly Committee on Transport and Infrastructure has commenced an inquiry into workplace arrangements for the point to point transport industry, including ridesharing services. The inquiry will look into worker remuneration and conditions, and the uneven application of workplace agreements across the point to point transport sector.

The Productivity Commission has also commented on the emergence of the ‘gig economy,’ which includes the likes of Uber, in its recent research paper called Digital disruption: What do governments need to do? It floats the idea that a government funded universal basic income for workers could help assist the ‘gig economy’ by ensuring that workers have at least some guaranteed income to fall back on should their ‘gig’ fall through or their work prove inconsistent.

We will watch with anticipation as disruptive new working arrangements continue to challenge traditional concepts of employment and contractual fairness in Australia.

Athena Koelmeyer is the managing director of Workplace Law and a leading lawyer in the area of workplace relations. At Workplace Law, Athena provides strategic advice, representation and training to employers on all aspects of workplace relations.