Employment law not equipped to deal with the gig economy
New Zealand needs to improve its legal approach to the ‘gig economy’ to prevent people missing out on basic protections, a Victoria University employment law expert says.
Professor Gordon Anderson’s Transforming Workplace Relations in New Zealand 1976-2016, edited with Professor Alan Geare (University of Otago), Dr Erling Rasmussen (AUT) and Professor Margaret Wilson (University of Waikato), was published this month by Victoria University Press.
The book explores the evolution of New Zealand’s employment landscape since 1976, and speculates on the future of workplace relations.
“We haven’t yet learned to deal with the gig economy legally, or indeed practically. Companies like Uber, or Amazon’s Mechanical Turk. Where the employment status is less than clear, and where the work is often short-term, or one-off, you start to have a group of people who miss out,” Professor Anderson says.
“They’re not protected by the minimum wage, they miss out on holidays, and they’re probably never going to qualify for parental leave. The minimum protections usually revolve around being an employee rather than a contractor, and at least some of it revolves around continuity of employment.
“If people are operating outside that paradigm, they’re in a degree of difficulty, and no one has quite worked out what to do about it yet. You can’t use a mid-20th century legal structure to deal with a whole new mode of employment. I suspect over the next few years, dealing with all that is going to be the main problem.”
With an increase in people working from home, the extent to which it’s appropriate for an employer to monitor those working for them also needs attention. “Often when you’re working from home you’re on a computer. There are all sorts of technological systems – screenshots every few minutes, monitoring background noise – that can start to get extremely intrusive. With cameras, microphones, keyboards, stroke monitoring, location devices on phones… it’s scary how invasive some of this technology is getting.
“Plus, there’s the broader question about monitoring people’s lives outside of work – monitoring Facebook, monitoring Twitter. It’s an area that needs sorting out in a legal sense, but also in a moral and practical sense as well.”
Despite these growing issues, Professor Anderson says that the 17 years since the Employment Relations Act 2000 (ERA) has been a relatively stable period for workplace relations in New Zealand. That stability offers perspective, making it a good time to look back to the turbulent era that began in the mid-70s. “The book starts in 1976 – just when you were starting to get large numbers of strikes, economic crises, petrol shocks, Britain joining the EU, everyone trying to work out where the New Zealand economy was going… It covers that whole period of the breakdown of the arbitration system [where unions and employers tended to negotiate employment conditions], to the Employment Contacts Act 1991, to the ERA in 2000. While things have changed a bit since 2000, it’s been stable in comparison to the previous 20 years.”
The changes over the past 40 years, however, have been significant. “What used to be industrial relations is now employment relations. Industrial relations representatives have given way to human resources representatives, which is a significant change in the way employment is managed. Unions have become fairly peripheral, especially in the private sector. Workers tend to be on their own.”
“The industries with the most militant unions have largely disappeared. The big freezing works are gone, the wharfs, transport… Transport, which used to be a bit of a leader in terms of industrial conflict, is now mainly made up of independent contractors. Unions like the Boilermakers disappeared rapidly in the 90s.”
There’s also been a big shift in terms of gender. “It’s gone from being male-dominated to involving a very significant number of women. Your average union member now is a woman in the public service, as opposed to a man in a manual occupation as it would have been in the mid-70s.”
These days, union membership is more a middle-class characteristic than a working-class one. “The big unions are the Public Service Association, the various education unions, the nurses’ union… Unions don’t tend to represent relatively unskilled people, the way they used to. Enormous chunks of the workforce now don’t have any union representation at all.”
The period the book covers also saw the wider transformation of New Zealand’s economy, from protectionist to open. “The fact that there is international competition has totally reshaped the type of industry you can have in New Zealand. Whole industries disappeared in the 80s and 90s – car assembly, most manufacturing, clothing industries. We’ve seen massive growth in precarious employment – part time, casual, relatively high job insecurity – from the 90s onwards.”
When asked what mistakes were made, Professor Anderson says that the biggest was the failure to have a longer transition period between the late 80s and the early 90s. “Reform was necessary, but it was a mistake to just suddenly get rid of all the basic protections. We had a system where workers had a reasonable voice in workplace terms and conditions, and how they were managed, and that vanished in about a year. There was a sudden commodification of labour – a return to a 19th century worldview in some ways.
“There was very much the notion that you were contracted to work, the contract was the only thing that mattered, and you weren’t entitled to have a say in anything that went on, including your own job, and indeed health and safety. In my view, we haven’t come back from that as much as we should, though there has been some realignment. The ERA did bring in the obligation of good faith, which is important, but it never increased collective bargaining. I think you’d need a substantial amount of legal change for that to happen – to reinforce the right to collective bargaining, and prevent anti-union activity.
“People need to have some sort of input into the terms and conditions they work under. You either need unions to do that, or some other mechanism – workplace committees, for example. We also need to recognise and protect the right to a private life, a family life. Some aspects of this are very weak in New Zealand. In the end, it’s about strengthening the notion of employees actually being people as well.”