SafeWork Australia consultation paper on ‘Improving work health and safety for workers using crowd platforms’

SafeWork Australia (SWA) has released a draft consultation paper on ‘Improving work health and safety for workers using crowd platforms’ (Paper).[1] The purpose of the Paper is to assess gaps in the regulation of crowd platform arrangements in the model Work Health and Safety Act 2011 (Cth) (Model WHS Act) due to concerns that it may not adequately regulate the space.

A ‘crowd platform’ is defined as one that ‘matches an end-user with a worker or a pool of workers to enable work to happen’. Under this arrangement, a client makes a request on the platform and individual applicants are provided an opportunity to submit a ‘bid’ to undertake the task, with the client then selecting an applicant themselves. SWA describes this as a ‘horizontal’ management structure, which is not the same as an on-demand platform like Uber or Deliveroo, where work is assigned directly to workers through the platform’s algorithm in a more ‘vertical’ management structure that provides workers with less discretion as to what tasks they undertake.

The concerns stem from the lack of clarity around whether crowd platform workers are considered ‘at work’ in the crowd platform operator’s business and whether or not the client of a crowd platform operator is considered a Person Conducting a Business or Undertaking (PCBU) for the purposes of the Model WHS Act.

Proposed Changes

SWA is proposing a new duty be added to the Model WHS Act to ensure, so far as is reasonably practicable, the health and safety of:

• crowd platform workers (i.e. workers using the platform, whether in their capacity as a worker, an independent contractor or working in another PCBU’s business); and
• others affected by the work facilitated by the crowd platform.

SWA has invited submissions on the proposed new duty, including in relation to the following questions:

1. Do you have any comments on how WHS duties apply to crowd platforms?
2. Are there gaps in protections for workers who use crowd platforms? If so, please explain what they are.
3. Do you have comments on a potential new duty for crowd platform operators? Are there barriers to the introduction of a new duty or issues that would need to be resolved?
4. Do you have comments on the possible impacts of the potential new duty on PCBUs, workers and others? (Please include any data or information available).
5. Are there alternative (legislative or non-legislative) approaches that could be taken to protect the health and safety of crowd platform workers?

Employers should anticipate greater scrutiny of WHS obligations in crowd platform models, and the potential for new compliance requirements. EMA Legal can provide practical guidance on managing risk in platform-based work.
[1] See Improving work health and safety for workers using crowd platforms