A future Labor government would introduce state laws to regulate the pay and conditions of food delivery riders and other online platform workers.
The Transport Workers Union will put a motion to this weekend's state Labor Party conference in Sydney for Chapter 6 of the NSW Industrial Relations Act to be amended to protect bicycle riders who deliver food and owner drivers who carry bread, milk and cream. The motion has been approved at ALP committee level which means it is likely to be supported.
Chapter 6 gives owner drivers who work as contractors and who are not classified as employees under the Commonwealth Fair Work Act rights to fair pay and conditions. Section 309 excludes protection of contract transport workers who deliver meals or bread, milk and cream. Under the TWU resolution, NSW Labor would simply remove those exclusions so that it would apply to them.
TWU national secretary, Tony Sheldon, said food delivery companies have denied workers rights to minimum rates of pay and protection against unfair dismissal.
"The legislation, contained in Chapter 6 of the Industrial Relations Act, ensures independent contractors have the right to seek minimum rates, conditions and access to the independent Industrial Relation Commission to resolve disputes, such as unfair dismissals," he said. "The TWU motion calls for inclusion in the legislation of owner drivers who carry bread, milk or cream and owner drivers who deliver food to homes or other premises”.
Dr Michael Rawling, who teaches employment law at the University of Technology Sydney, said the proposed amendments to Chapter 6 were straightforward and could be tailored to food delivery riders in NSW.
"It's a substantial positive step that can be simply implemented," he said. "I think it is the right way to go at this point in time."
Labor MP for Campbelltown Greg Warren, a TWU member and former truck driver, has been trying to extend industrial protections to all transport workers and supports the motion.
"It is my will and intent to address this in government," he said. "We need to review Chapter 6 of the Industrial Relations Act to ensure that everyone has protections and that includes bread, milk and cream and drivers."
The union's motion says that some owner drivers, including those who deliver food, bread and milk who would otherwise be covered by the NSW legislation are currently excluded "for historical reasons which no longer have any relevance".
Labor's NSW spokesman for industrial relations, Adam Searle, said: "There is both the space and the necessity for a continued State Labor contribution, not to compete with the Commonwealth but to complement and supplement a federal system."
NSW Labor has already committed to criminalising wage theft if it wins government next year.
"People who work in the gig economy should have minimum pay and safe workplaces, like other workers," Mr Searle said. "We must create a legal framework for the setting and enforcement of minimum pay and conditions for all 'gig’ workers."
Andrew Stewart, Professor of Law at Adelaide University, agreed Chapter 6 could potentially be amended to protect food delivery riders in NSW.
The Commonwealth’s Independent Contractors Act generally stops the States and Territories conferring employment type rights on those who work as contractors. But the federal act specifically excepts Chapter 6 from that prohibition, along with some other laws.
He said the change would only apply to transport workers and would not provide an adequate solution for online platform workers around the country.
"I do think there is a need for a legislative solution," Professor Stewart said. "I've argued for a very long time that the Federal Fair Work Act should have a definition of employment which makes it harder for businesses to evade the operation of employment standards by having a presumption that someone is employed unless it is clear they are providing labour as part of an independent business that they are running."
Anna Patty is Workplace Editor for The Sydney Morning Herald. She is a former Education Editor, State Political Reporter and Health Reporter. Her reports on inequity in schools funding led to the Gonski reforms and won her national awards. Her coverage of health exposed unnecessary patient deaths at Campbelltown Hospital and led to judicial and parliamentary inquiries. At The Times of London, she exposed flaws in international medical trials.