13 January 2021 posted by Recovery Partners

Contractors and compliance: How to protect your business and workers in the gig economy

The recent deaths of four food delivery riders in Sydney over a period of just three months has shone a light on a complex area of safety management, work health and safety (WHS) for contractors, and industrial relations laws in Australia. The four riders were killed in fatal falls and collisions with vehicles on Sydney roads in the course of their work for food delivery companies including UberEATS and Hungry Panda.

Following these fatalities, the NSW Government announced the establishment of an investigative taskforce, led by SafeWork NSW and Transport NSW, to examine whether avoidable safety risks were the cause of any or all of these deaths. The taskforce will assess the working conditions the riders were operating in and determine what safety and compliance measures should be taken to help prevent further accidents or fatalities in this industry.

As the gig economy grows, so to does discussion about the working conditions and rights of contract workers. Accordingly,  it’s important for any business that engages contractors to be aware of their existing obligations to these workers, says Recovery Partners Director, Simon Lloyd.

‘One of the reasons this area of worker safety and industrial relations law is so complex is because the gig economy challenges the idea of what exactly constitutes a worker,’ says Lloyd. ‘The Work Health and Safety Act of 2011 defines a worker as anyone who carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, contractor or subcontractor, outworker, volunteer and numerous others. But it’s not always completely clear who is legally or ethically responsible for the safety of that person in particular circumstances.’

As food delivery riders are not technically ‘employed’ by the companies they work for, they are not usually entitled to workers’ compensation, a minimum wage or other protections afforded by the industrial relations laws and WHS regulations that apply to employees, but industry groups are agitating for sector reform, particularly in the wake of the recent fatalities.

The Work Health and Safety Act of 2011 does stipulate that workers (as per the definition above) are allowed to set up work groups and elect WHS representatives to advocate and enforce safety standards to better protect them, and this was the basis of a challenge directed to food delivery company Deliveroo by some of its riders.

While this is a changing landscape, the fact remains that workers in the gig economy are making up an increasing proportion of the workforce in Australia, so these challenges and investigations will have widespread ramifications.

So, what should businesses with contractors be doing right now?

If you are the owner or operator of a business that engages contract workers, it is important to make sure your formal policies and procedures are up to scratch, Lloyd says. ‘Businesses need to be very clear about how they will manage employees, contractors and subcontractors, both to maintain compliance and protect workers. It is best to have contractor management policies that detail rights and obligations and help both parties understand the terms of the contractor’s engagement. Procedures such as inductions, pre-employment assessments, safe systems of work and Safe Work Procedures (SWPs) for known issues that contractors may encounter all help to mitigate risks. For delivery drivers or riders, these may include procedures that offer a framework for managing road safety, weather conditions, language barriers, physical assault while working, intimidation and verbal abuse.’

A recent publication from the NSW Government Centre for Work Health and Safety, the Work health and safety of food delivery workers in the gig economy report, examined the ways in which these workers are at risk of illness or injury while working. The report identified characteristics of this population that impacted their health and safety at work, such as the context of their work choices, the environment they work in and their behaviour while working.

‘This sort of information is vital for employers to understand to effectively address the compliance gaps in their operations and the risks and hazards their workers face in the course of their duties,’ the Director explains. For example, the report found that food delivery workers as a group were typically male, under 30 years old, and in Australia on student visas. They chose food delivery work for its flexibility and because it allowed them to supplement existing income streams.

A range of risk exacerbation behaviours were identified in the report, including using mobile phones while riding or driving, working while fatigued, wearing dark clothes at night and speeding or rushing (to maximise earning potential). Existing risk mitigation behaviours included choosing to ride cautiously, wearing reflective or bright clothing in poor weather conditions and wearing protective equipment like helmets.

‘When we have this nuanced understanding of the contractor’s work, we can tailor policies and procedures to address risks more effectively,’ says Lloyd. ‘Contractor management is one of the most poorly managed risks we see across a variety of industries. Employers are often unclear about their obligations, and they may also be missing critical information.’

‘At Recovery Partners, we have worked with businesses in a wide variety of industries that have needed help with contractor management, from national construction companies to local tree-lopping services. We have helped them to break down the administrative tasks required of them, the nature of the work, the behaviour of workers, the work environments and the risks and hazards within all of these. This detail then informs their contractor management policies and procedures to make them effective and robust. Gig economy workers and exactly where they sit under WHS law is yet to be tested in court, but a recent case will test where they sit under Workers Compensation laws.  One thing is clear regarding any form of outsourced or contracted worker, having no policies or procedures or evidence of training of these leaves a legal exposure under WHS law.’

 

Are you a business owner, operator or representative who works with contractors? If you want to proactively manage these engagements to protect both the workers and your business, get in touch.

 

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Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at www.workcover.nsw.au