Labour regulation and the great divide: Does the gig economy require a new category of worker?

Abstract

Most forms of labour regulation operate on the assumption that rights and protections should be accorded to employees, but not the self-employed. The need to question that binary divide is heightened by modern forms of business organisation that seek to separate the performance of work necessary to the business from the business itself. We re-examine the case for either universalism or selectivity in the coverage of labour standards by reference to one of these models, involving the engagement of 'gig' workers through digital labour platforms. After reviewing the common law principles used to determine employment status, we consider how platform workers might be categorised under existing laws. We go on to make three arguments as to the coverage of labour standards. The first is that many (though not all) labour protections can and should apply regardless of work status. The second is that in framing rights or processes analogous but not identical to those enjoyed by employees, it may be appropriate to cover all self-employed workers, not just 'dependent contractors'. The extension of collective bargaining rights to non-employees offers an example of that approach. The third is that the practice of sham contracting is best addressed by an expanded definition of employment that presumes workers to be employees unless they can be shown to be running their own business. This is preferable to creating an intermediate category of 'independent worker', which, as we illustrate by reference to overseas examples, risks a loss of rights and protections for workers who should be treated as employees.