This is a story about vicious cycles. In the late 1990s, the CBDs of Australian cities were full of vicious cycles, propelled by vicious (or, at least, more than a little assertive) bicycle couriers. Then, for a while, the vicious cycles seemed to disappear (perhaps because the rise of email made it easy to send documents electronically, but perhaps also because of a High Court decision in 2001 which made courier companies liable for injuries suffered by pedestrians struck by couriers).
Now, however, it seems the vicious cycles are back. This time, it is not documents that they are carrying, but food, and they wear the livery of companies like Deliveroo or Foodera. Like their predecessors, many of them display no care at all for their own safety, and even less care for the safety of pedestrians who have the misfortune to find themselves on a footpath between a rider and a hungry patron.
Like the courier companies of old, the food delivery companies proclaim their riders to be independent contractors, part of the “gig economy”. The riders, say the companies, are free to work as much or as little as they like and are, in effect, running their own businesses. However, in at least two important ways, the legal regime affecting unsafe workers on bicycles has changed since the late 1990s.
The Fist change comes from High Court case mentioned earlier. That case found that a cycle courier who had struck a pedestrian was not an independent contractor, but an employee. This meant that the courier company which engaged the cycle courier was vicariously liable for the damage which the pedestrian had suffered. If a company is liable for damage caused by the unsafe work practices of its employees, the company should have an economic imperative to reduce unsafe work practices (even if only to the extent that this will reduce the company’s insurance premiums).
However, civil liability is only one part of the work safety picture. The second change comes from the work health and safety laws in the harmonised safety jurisdictions. These laws creat obligations on the part of PCBUs (“persons conducting businesses or undertakings” – that is, not just employers) to ensure that the safety of members of the public is not put at risk by the “workers” (that is, not just employees) engaged in those businesses or undertakings.
What this means is that even if the foot-soldiers in the gig economy are independent contractors, the delivery companies which enable their “gigs” have safety obligations both to the riders, and other people whose health and safety could be put at risk by the delivery work.
Most importantly, the directors and officers of PCBUs can be personally liable if they fail to exercise due diligence to ensure that work safety obligations are being complied with. That doesn’t mean that each rider has to have a company director tagging along behind them, but it does mean that the directors need to ensure that there is a plan in place for work health and safety compliance.
With the harmonised safety legislation having come into operation at the start of 2012, the regulatory position is very different to the position which applied in the late 1990s (or in 2001). If your organisation uses contractors (whether in the gig economy, or otherwise) to perform work, it is vital to ensure that:
- The people with ultimate control of the work understand that there are contractors in the workforce;
- The contractors understand that both they, and the organisation which engages them, have safety obligations in relation to the performance of work; and
- There are procedures in place to ensure that all parties with safety duties can consult, co-operate and co-ordinate activities in relation to safety matters.
Much of the commentary about the employment risks of the gig economy focuses on the risk of underpayment and sham contracting, and these are real issues. However, the work safety issues are equally important (and indeed, the way they arise in the gig economy highlights the importance of contractor management whenever contractors are used). Failure to manage the risks may mean that even if you can dodge a footpath worth of vicious cycles, you may have more difficulty dodging a safety prosecution or, worse, a workplace injury or death.
For more on our work health and safety law capabilities, contact Angus Macinnis