Challenging discrimination in the gig economy

Most of us are now familiar with the gig economy. We’ve put a job on Airtasker, ridden in an Uber or had food brought to us by Deliveroo.

But once we’ve arrived home safely or enjoyed our home-delivered meal, how many of us stop to consider the wages and conditions experienced by people working in on-demand and gig work?

At the moment, the Victorian government is conducting an inquiry into the Victorian On-Demand Workforce focusing on the way workplace laws apply to gig economy workers and the way those laws are enforced. Until now, there’s been limited discussion of the way equality law might apply to the gig economy and this is a major oversight.

The power of the platform

Discrimination is potentially rife in the gig economy - just as artificial intelligence discriminates, so can gig economy platforms.

For many people, work through online platforms represents their primary source of income. This means that many on-demand workers are financially dependent on these platforms - giving the platforms themselves significant power and control over individual wellbeing.

Platforms exercise this power in a variety of ways. In particular, they are able to accept or bar particular workers (akin to hiring or firing for traditional employees); and allocate work based on ratings (similar to allocating work to casual workers or independent contractors).

So, on-demand platforms themselves can have substantial control over the access and exercise of individual working arrangements, and control workers via their processes of ratings, review, feedback and removal.

There is also a lack of transparency around the algorithms on-demand platforms use to assess and rank workers, and how work is allocated on platforms. Discrimination may well be built into these algorithms and systems, including through biased reviews left by service users. But, given this lack of transparency, it’s impossible to assess whether this is the case.

The focus on ‘relationships’ and ‘trust’ in peer-to-peer, on-demand platforms may also play a part in discrimination online. To facilitate these trust-based relationships, platforms encourage users to post a substantial amount of personal information online, including a photograph.

This may encourage and facilitate discrimination, and replicate discrimination found in the general labour market (like the gender pay gap).

Equality law and the on-demand economy

In work generally, we are protected from discrimination by equality law; the adverse action provisions of the Federal Fair Work Act 2009 (Commonwealth), federal anti-discrimination law, and the Victorian Equal Opportunity Act 2010 (Victoria).

According to my research, these statutes probably also protect gig economy workers.

At the state level in Victoria, it is explicit that independent contractors are covered by the various provisions relating to ‘employment’ in discrimination law.

The problem, though, lies in identifying who is the ‘duty holder’ for the purposes of equality law – that is, who must not discriminate?

In Australian equality statutes, it appears that the ‘duty holder’ is the principal engaging the independent contractor under a contract for services. However, many on-demand platforms would not see themselves as contracting with gig workers: the contract is arguably between the service user (the Uber passenger) and those performing work (the Uber driver).

In practice, though, it would be difficult, if not impossible, for a driver to pursue a discrimination claim against an individual Uber user.

In the Aslam v Uber case in the United Kingdom, the UK Employment Tribunal held it was impossible for Uber to argue that drivers were engaged by passengers rather than Uber itself, making Uber the only practicable duty holder for the purposes of equality law.

This decision has been upheld by the Employment Appeal Tribunal, and the Court of Appeal. However, other platforms are not so clear cut, particularly if terms are not dictated to those performing work, and there is more scope for negotiation between the parties. This may make it difficult to pursue discrimination claims against other on-demand platforms themselves.

Worker-friendly, on-demand platforms

So, we need to focus on how discrimination is occurring, rather than who is discriminating. This requires a focus on institutional and platform structures that could lead to discrimination.

Even though on-demand workers are granted legal protection from discrimination in Australia, they are unlikely to have the capacity or willingness to enforce their legal rights.

I’ve put forward four recommendations to make equality law more relevant and effective for our on-demand economy.

Firstly, we need to empower courts or the Victorian Civil and Administrative Tribunal to intervene in ‘work relationships’ (defined broadly) and amend contracts. This would include on the basis of fair dealing (including the provision of clear information, equality or discrimination); income security; collective negotiation; and accessible dispute resolution.

Secondly, we should extend non-discrimination duties to anyone with the power to discriminate. This would protect equality as an independent human right. It would help to resolve issues of identifying the ‘duty holder’ for the purposes of equality law, as duties would be held by all who have the power to impact upon another’s capacity or ability to work, including on-demand platforms.

We should also promote collectivised approaches to individual protection for on-demand workers. This could take the form of on-demand ‘unions’, the integration of on-demand workers into existing unions, or moving towards ‘platform co-operatism’, by establishing more worker-friendly, on-demand platforms that are not-for-profit and owned by members.

The presence of unions can help to promote employers’ compliance with anti-discrimination law and strengthen individual protection from discrimination.

Finally, imposing positive duties on on-demand platforms could address discrimination or equality issues, including through the analysis and publication of data.

Platforms are already collecting substantial quantities of data, which could be used to monitor, assess, and address discriminatory practices. However, platforms are unlikely to use their data in this way without legal intervention, particularly where their legal obligations under equality law are unclear.

A positive duty could include obligations on platforms to collect, analyse and publicise data on the protected characteristics of those using the platform; remove photos or personal descriptions about workers, unless there are objectively justified reasons to retain them; have policies demonstrating what they are doing to address and eliminate discrimination; adopt greater transparency in their ratings, algorithms, and deactivation processes; improve the reliability of feedback gained from users, and initiate a right of reply for those undertaking work on the platform; and eliminate discrimination and achieve equality in the platform’s operations.

Without effective reform, discrimination in the gig economy will continue. It’s time to change the game and tackle inequality in our on-demand world.

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