Is it perhaps time that we extended employment rights to “work” and “worker”, and to do away with the independent contractor status.
As the Uber drivers case wends its way through our Courts for final determination (we are expecting a decision from the Court of Appeal this month) is it not time to acknowledge that the legal concepts of “work” in the modern era are well outdated and not fit for purpose.
Binary definitions of employee and contractors are arguably missing the mark and creating legal anomalies and fictions.
It’s time for a rethink; to look well beyond traditional definitions within our approach. Is it perhaps time that we extended employment rights to “work” and “worker”, and to do away with the independent contractor status?
The reality with rapid technological advancements, shifting demographics, new roles and evolving work patterns, is that they have rendered the traditional definition of work obsolete and this needs to be absorbed within our approach. Gone is the concept that work is necessarily aligned with monetary benefits; it may, for example, be for social or community good.
What is needed is not more litigation in the existing legal framework, but fresh perspectives on what constitutes work.
The need to redefine work in the modern context is becoming apparent due to recent developments, including:
Gig work has blurred the lines between work and leisure requiring a broader definition of work.
The pandemic accelerated remote and flexible work.
New geographical boundaries mean global law applications and jurisdictions.
Work happens not just in one office or in one country; it now straddles different work zones, countries and legal jurisdictions.
Hybrid work models blend office based and remote working mean any definition of work needs to recognize fluidity of working arrangements and that productivity doesn’t mean being confined to a desk 9-5.
With Millennials and Gen Z in the mix this has arguably driven the pursuit for more purposeful work which reflects fulfillment personal growth and value-based work.
More and more people are juggling multiple roles. The old concept of working in one job for one employer for a work lifetime has gone.
Work isn’t often a single job; it’s more likely to be a portfolio spread across a range of skills experience and aligned with passions and interest. Work may be co-joint not just performed by one person but shared.
Work now transcends borders. International law is now more than ever an influencing factor which our courts ought to recognize. We are no longer a legal island.
AI will further disrupt the definition of work and what is paid for. Some jobs as we know them will disappear and new ones will be created. Some jobs will not be tied to a direct monetary benefit but may be aligned with social and community good.
Automation has redefined tasks within occupations. Impacts will vary from industry sector to sector.
Technology will disproportionately impact greater on our lower sector people. Such inequality requires attention before it impacts.
Whilst history shows that change is beneficial to productivity, employment and quality of life, generally these benefits need to be without fallout and equitable.
Work is not labour and toil. The employment relationship is no longer master/servant.
Any new definition will need to:
Be cognizant of virtual capabilities, methods of communication technology and work life integration. Workers may have more control over the method and times of work.
Take into account the impact of automation and AI on the changing nature of work tasks and the movement away from manual to more creative, cognitive thinking, problem solving and relationship building (social).
Include learning to reflect the modern world of adaptation reskilling and relevancy.
Holistic. Mental health matters and work-life-balance is a limiting concept in the modern era. The duty of care in a health setting is far more reaching than office boundaries.
Acknowledge that the old concept of work is redundant and that trying to fit modern work practices around it is like fitting the wrong size foot in the shoe; it will not work.
Currently the ACT party is looking at emphasizing individual choice and reducing government intervention however, will the reduction of regulation, contractor independence and adjustments to worker protections (as suggested) create a fairer playing field for all? Or will it close the ‘rights-gate’ the Employment Court referred to, thus creating further anomalies and inequities? We shall see.
The debate is well needed, and we welcome the Court of Appeals decision in the Uber case in furtherance of the need for reform debate.
