The sharing economy continues to expand; companies such as Uber offer transport services without owning vehicles; Whizz supplies cleaners without employing staff; AirBNB provides accommodation without owning real estate. It's a new economy – but still subject to many old economy rules and regulations.
When Airtasker and Pureprofile released the results of a survey of Australian consumers in September they reported that one in eight Australians had used one of these emerging sharing services, while almost 7 per cent of Australians had participated in the sharing economy by offering their services or property in order to secure income.
In NSW the Roads and Maritime Services recently suspended the registrations of 40 vehicles used to provide transport through the UberX series, and debates continue to rage over the way in which responsibilities and liability are carved up in this new marketplace. One thing is clear however, they cannot be shirked, particularly with regard to occupational health and safety (OH&S).
In the US a class action is underway to determine whether Uber drivers are employees or contractors. The decision will be interesting, but in Australia it will not absolve either Uber or its drivers of their OH&S responsibilities.
In states and territories other than Victoria and Western Australia, the concept of employment has gone out of the door with respect to OH&S and has been replaced by the concept of "a person conducting a business or undertaking". The fact that there may be no traditional employment relationship in these sharing economy businesses is of virtually no consequence. Hub operators such as Uber, Whizz and AirBNB, as well as drivers, cleaners and landlords who use the hub to provide services, will be considered to be "a person conducting a business or undertaking" and OH&S duties and obligations will apply.
Even in Victoria and Western Australia, the existing laws impose duties and obligations that apply to the sharing economy. For example in Victoria, Section 26 of the Occupational Health and Safety Act 2004 (Act) imposes duties upon "persons who manage or control a workplace to any extent" which, in many respects, mirrors the concept of "a person conducting a business or undertaking". Also, in Victoria, again where there is no employment relationship, Section 24 of the Act still applies, and imposes duties upon "self-employed persons" with regard to ensuring health and safety.
There has been an argument that sharing economy businesses are merely establishing a hub for people to use. It does not however absolve them of their obligations. What persists in all jurisdictions is the need to ensure the health and safely of people who may be impacted by what you do.
The key word here is "control".
Say Jack Smith comes up with a great idea to establish an online hub which connects supply and demand. Jane Brown decides that she can use the hub to offer a service and earn some money.
The question is what does Jack Smith control about what Jane Brown does? Both parties share responsibility for the service they are offering, by ensuring that safe systems of work are developed, implemented and followed, that the proper licences and qualifications are held, that any necessary training and supervision is provided and that appropriate maintenance is carried out on any plant or equipment that may be used.
Although the internet means that some of the relationships between the parties in the sharing economy can be at arm's length, there will come a time when the concept and level of control in this environment will be tested in court. The courts will be required to examine the level of control being exercised by the hub operator over the way in which Jane Brown or Jack Smith carry out their work. In many cases, the extent of control may be quite significant.
Clearly the sharing economy has taken hold both in Australia and internationally and is exercising the minds of governments, taxation departments and regulators equally. With regard to the OH&S issues surrounding the sector, there are two routes to greater clarity.
Firstly, the public may approach a safety regulator to investigate and possibly prosecute parties involved in the sharing economy as OH&S legislation is risk-based legislation, not incident-based legislation. That is, the regulator is able to investigate and prosecute individuals or companies based on any uncontrolled risk to health and safety, even without an incident occurring. Secondly, and more likely than the first option, an incident may occur and the safety regulator will be called upon to investigate and possibly bring charges against Jane Brown and/or Jack Smith.
The prudent Jack Smith will in the meantime set up a system to ensure the bona fides, insurances, licences, qualifications and the like of any suppliers of services through the hub.
While the prudent Jane Brown will have all those systems in place, ensure all qualifications and licences are up to date and deliver services well and safely, understanding that they have their own OH&S obligations.
While there are theoretical penalties available of up to $3 million in some jurisdictions, if successfully prosecuted by an OH&S regulator an organisation might more likely expect a fine of $80,000 - $100,000 and a criminal conviction.
In situations involving a fatality or other extremely serious failures to provide a safe working environment, fines could extend to $500,000 and beyond.
Those penalties alone should send a clear warning that the sharing economy does not signal the end of OH&S duties and obligations for any of the parties involved.
Meanwhile, employers also need to update their policies and procedures to deal with the use of the sharing economy by their employees during their normal working day. For example, should employees be permitted to use Uber instead of a traditional taxi or to use AirBNB instead of a traditional hotel? Both may be attractive to employers on the basis they are often cheaper than the traditional options. However, if employers permit their employees to make use of the sharing economy to replace traditional options, the employer must remember that OH&S duties and obligations apply and be satisfied that use of services are as safe as reasonably practicable.