Report of the Inquiry into the Victorian On-Demand Workforce Genuine choice • Certainty • Fair conduct Authorised and published by the Victorian Government, 1 Treasury Place, Melbourne. © The State of Victoria, June, 2020 Industrial Relations Victoria Department of Premier and Cabinet 1 Spring Street, Melbourne, VIC 3000 Disclaimer The report was prepared for the Minister for Industrial Relations in accordance with the Inquiry’s Terms of Reference dated 31 October 2018. It has been prepared solely for the Minister’s use and benefit. The Chairperson, the State of Victoria and the authors of the report make no representation or warranty concerning the appropriateness of the report for anyone other than the Minister and take no responsibility for any third-party reliance on it. This report is based partly on information provided by third parties who have made submissions to and participated in discussions hosted by the Inquiry. While the Chairperson, the State of Victoria and the authors of the report have where possible sought to verify this information, including where noted in the report, they make no representation or warranty either express or implied as to the accuracy, completeness, reasonableness or reliability of information provided by third parties and accept no liability for use or publication of this information. The Chairperson, the State of Victoria and the authors of the report do not guarantee that this report is without flaw of any kind and disclaim all liability of any kind, including without limitation for any error, loss, damage or other consequence which may arise from any use of or reliance on any information in the report. This disclaimer applies to the maximum extent permitted by law and to any claim, action or liability including, without limitation, in tort, negligence or statute. Acknowledgement of Country The Chair of the Inquiry into the Victorian On-Demand Workforce and the Victorian Government proudly acknowledge Victoria’s Aboriginal peoples as the traditional custodians of the lands on which we live and work. We pay our respects to them and their Elders past, present and future, and honour their unique relationship to Country. We hope that our work contributes towards a positive future for the Aboriginal community. Accessibility This document is available as a PDF and in an accessible format on the Engage Victoria website (engage.vic.gov.au/inquiry-on-demand-workforce). If you have any accessibility issues with this document, please email Industrial Relations Victoria at [email protected] or call the Victorian Government Contact Centre on 1300 366 356 (the National Relay Service is available as a phone solution for people who are deaf or have a hearing or speech impairment, please visit www.communications.gov.au/accesshub). ISBN 978-1-925789-53-9 Cover stock images sourced from pexels.com and freepick.com. Letter to the Minister Tim Pallas MP Minister for Industrial Relations 1 Treasury Place East Melbourne VIC 3002 Dear Minister Pursuant to the Inquiry Terms of Reference I now provide my report for the Inquiry into the Victorian On-Demand Workforce. The Report sets out information gathered, commissioned research and submissions presented to the Inquiry, and my conclusions and recommendations to address the issues set out in the Terms of Reference. I understand that the Government has discretion to table this report in Parliament. In this regard, I note that the parliamentary protections for any publication of the Report and its contents are enlivened by tabling of the Report in Parliament. Thank you for giving me the opportunity to conduct this important Inquiry. Yours sincerely Natalie James Inquiry Chairperson 12 June 2020 Department of Premier and Cabinet 1 Treasury Place, Melbourne 3000 i THE REPORT OF THE INQUIRY INTO THE VICTORIAN ON-DEMAND WORKFORCE Contents Letter to the Minister i List of figures and tables vi Glossary vii Chairperson’s foreword 1 Introduction 4 Chapter 1 | Establishing the Inquiry 5 1.1 Background to the Inquiry 5 1.2 Terms of Reference 6 1.3 The Inquiry’s approach and engagement with the community 6 1.3.1 Website and media 7 1.3.2 Written consultations 7 1.3.3 Individual and group consultations 7 1.3.4 Engaging with government 7 Chapter 2 | Why have an Inquiry into ‘on-demand’ work? 8 2.1 ‘On-demand’ work is not new 8 2.2 Platform ‘on-demand’ work – what’s different? 10 2.3 Key concepts and issues 11 2.3.1 Defining platform work 11 2.3.2 Platform work – highly contested points of view 11 2.3.3 Work status and entitlements for platform workers 12 2.3.4 Data about platform work 13 2.3.5 How is platform work accessed and arranged? 14 2.3.6 Setting of prices and payment for platform work 15 2.3.7 Platforms’ models – structure and type of ‘gig’ 15 2.3.8 Work arrangements 16 2.3.9 Secondary income 16 2.3.10 Platforms are evolving 16 Chapter 3 | The labour market – conditions and on-demand comparisons 17 3.1 Ongoing, ‘regularised’ work arrangements 17 3.1.1 Full-time employees 18 3.1.2 Part-time employees 18 3.2 Legal structures that support work ‘on-demand’ 20 3.2.1 Fixed and maximum-term employees 20 3.2.2 Casual employees 20 3.2.3 Labour hire 21 3.2.4 Outsourced workers 22 3.2.5 ‘Non-employee’ workers 22 3.2.6 Bailment 23 ii CONTENTS Chapter 4 | Platform workers – how many, where, when, who and why they choose this work 24 4.1 How many people are doing platform work? 24 4.1.1 What does the labour market data tell us? 24 4.1.2 Limits on the existing data – main and secondary jobs 26 4.1.3 Secondary jobs data 27 4.1.4 Other data – ABNs have increased significantly 28 4.1.5 On-demand research 29 4.1.6 National Survey – prevalence of platform work 31 4.2 Where is platform work happening? 32 4.2.1 Industry/sector data 34 4.3 Patterns of work of platform workers 37 4.3.1 Hours worked 37 4.3.2 Frequency of engagement 40 4.4 Who is doing platform work? 40 4.4.1 Potentially vulnerable workers 42 4.4.2 Younger workers 43 4.4.3 Migrant workers 44 4.4.4 Women platform workers 45 4.5 Why are people working in this sector? 47 4.5.1 Earning ‘extra’ 48 4.5.2 Flexibility and autonomy 49 4.5.3 ‘It’s what is being offered in their sector’ 50 4.5.4 Access to the labour market 50 4.5.5 Leverage and precariousness in the labour market 52 Chapter 5 | Conduct of platforms income, choice and leverage 54 5.1 Income earned via platform work 54 5.1.1 The bottom line – is the income fair? 56 5.1.2 The bottom line – it’s not always what it should be: the impact of non-compliance 61 5.1.3 What impacts how much platform workers can earn? 62 5.2 Platform discretion/leverage 65 5.2.1 Establishing and working under platforms’ arrangements – take it or leave it? 66 5.2.2 Prices, work allocation and priority 67 5.2.3 Platform enhancements 69 5.3 Consultation and dispute resolution 71 5.3.1 Platform approaches 72 5.3.2 Dispute resolution clauses and policies 72 5.3.3 Suspensions and terminations from the platform 75 iii THE REPORT OF THE INQUIRY INTO THE VICTORIAN ON-DEMAND WORKFORCE 5.4 Employment-based platforms 77 5.5 Industry in focus – Hospitality 78 5.5.1 The sector 78 5.5.2 The emergence of hospitality platforms 80 5.5.3 Food ordering and delivery 80 5.5.4 Models 80 5.5.5 Workers 81 5.5.6 Food outlets 82 5.5.7 Competitors 84 5.5.8 The role of regulators 85 5.5.9 Impacts 85 5.5.10 In-house hospitality workforce 86 5.6 Industry in focus – Personal care services 87 5.6.1 The sector 87 5.6.2 The emergence of care services platforms 88 5.6.3 Care platforms 88 5.6.4 Workers 89 5.6.5 Health and safety 90 5.6.6 Competition and impact 91 5.6.7 The role of regulators 92 5.7 Industry in focus – Rideshare 93 5.7.1 The sector 93 5.7.2 The emergence of rideshare platforms 94 5.7.3 Rideshare services 94 5.7.4 Models 94 5.7.5 Workers 95 5.7.6 Health and safety 96 5.7.7 Competition and impact 97 5.7.8 The role of regulators 98 Chapter 6 | Platforms – how work laws apply 100 6.1 Introduction 100 6.2 Terms of Reference 1 – Legal or work status of platform workers 100 6.2.1 Work status and minimum standards 100 6.2.2 ‘Evolving’ work status 101 6.2.3 The origins of labour regulation and ‘work status’ 102 6.2.4 The ‘wages–work bargain’ 102 6.2.5 ‘Choosing’ work status in the modern labour market 103 6.2.6 What are the factors to determine the work status test? 105 6.2.7 How does the work status test apply to platform arrangements? 107 6.2.8 A myriad of arrangements, services and parties 108 6.2.9 Control and flexibility in platform work 109 6.2.10 Self-employed entrepreneurs? 112 6.2.11 Work status and ‘entrepreneurship’ – contemporary consideration by FWC Full Bench 113 iv CONTENTS 6.3 Terms of Reference 2 – Application of work laws 114 6.3.1 Health, safety and accident compensation laws and platform work 115 6.3.2 Application of health and safety laws to platform workers 116 6.3.3 Practical concerns about health and safety for platform workers 117 6.3.4 ‘On the road’ – safety for rideshare and food delivery 117 6.3.5 Submissions for potential reform of health and safety for platform work 120 6.3.6 Platforms and insurance 120 6.3.7 WorkCover and platform workers 121 6.3.8 Platforms’ approach to insurance 123 6.3.9 Transport accident compensation – a suitable safety net? 125 6.3.10 Taxation 126 6.3.11 Superannuation 132 6.4 Terms of Reference 3 – Are platforms using contracting arrangements to avoid the application of work laws? 138 6.4.1 Platforms’ intentions 138 6.4.2 Self-determined work 139 6.4.3 Payment by outcome vs by the hour 140 6.4.4 Minimum shift requirements 140 6.4.5 Working for multiple businesses