FCW Lawyers

Daily Brief 24 April 2020 | COVID-19 and the emergence of the Gig-Economy


COVID-19 and the emergence of the Gig-Economy – Square Peg in an anachronistic, old Round Hole

When our Federal Attorney General talks of IR reform we are all left wondering. What will be done to make workplaces more flexible to meet increasingly (non-COVID-19 times) volatile economic times. Then, out of the blue comes a majority Full Bench of the Fair Work Commission case of Gupta v Uber. This case endorses a Third Way, neither employee or employee of a contractor who undertakes work for an agent? This is baffling for tax purposes because the tax legislation doesn’t comprehend a person who is not self-employed or employed.

What did the majority find in Gupta v Uber?

The Majority found an Uber-eats deliverer was not self-employed and not employed by Uber, but still applied the employee/contractor analysis to say she bore the critical hallmarks of a contractor. But a contractor who was not self-employed? This hurts your head if you stay in the mindset that there are only contractors who are self-employed. What if you discard that received wisdom? What if this is the new Gig worker blossoming from the FWC? A new paradigm?

Is the finding a problem?

Yes! Who pays the workers’ compensation premium? Who pays the Superannuation and tax? And on what basis is Ms Gupta taxed, if at all? What legislative protection does Ms Gupta have?

Perhaps this is the time for the legislation to catch up with the reality of the gig economy and not use old doctrines of employee/contractor to analyse new emerging methods of engagements that don’t fit. This is truly a case of a square peg in a round hole. Mr Porter – take your lead.

Have a question or need advice?

Our team are available to clarify any questions to have and provide the right advice for your business and workforce. Please contact Andrew Douglas at [email protected] or on 0488 151 503.

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