The term “Gig Economy” loosely refers to that part of the workforce which is engaged on the basis of temporary or other flexible arrangements that are typically arranged through the intervention of independent recruitment contractors. It involves the exchange of short-term work for money – commonly on a payment-by-activity basis – between individuals or companies through digital intermediary platforms.
The absence of a level playing field and enforcement among recruiters as well as the presence of certain legislative loopholes, have led to serious concerns about the protection of workers.
The ongoing debate on the regulation of platform work and the protection of platform workers has culminated in the publication of the Digital Platform Delivery Wages Council Wage Regulation Order, 2022, effective as from 21st January 2023.
What is this Order all about? These FAQs seek to answer a few of the more obvious questions that are being asked about the new employment regulatory framework that is being introduced by virtue of this Order:
What does the Order aim to do?
The scope of this Order is to ensure that persons who are engaged to provide paid services consisting of the delivery of any consumer product, are able to gain access to employment and social protection rights.
The Order seeks to achieve this aim by ensuring the correct determination of the employment status of such persons, by promoting transparency, fairness and accountability in algorithmic management in respect of such workers, and by enhancing transparency, traceability and awareness of developments in relation to such activity.
Who falls within the scope of this Order?
This Order essentially applies to workers who are engaged either by work agencies (i.e. agencies that place or assign such workers with digital labour platforms) or directly by digital labour platforms (i.e. electronic platforms that provide services enabling product deliveries to consumers), in order for such workers to provide product delivery services, including but not limited to food couriers and taxi journeys, through the use of vehicle transportation.
The form or contractual designation of a worker’s arrangement is irrelevant for the purposes of the Order. As such, the Order prioritises substance over form when considering its applicability to contractual arrangements or relationships.
Are delivery personnel considered to be employed or outsourced sub-contractors?
The Order creates a legal presumption of an employment relationship. When considering the employment status of a platform worker, it will be presumed that there is an employment relationship between the platform worker as an employee, and the work agency or the digital labour platform as the employer (depending on whether the worker is engaged directly with a work agency or directly with a digital platform).
The implications of this legal presumption are significant, insofar as it will be presumed that the provisions of the Employment and Industrial Relations Act and the regulations and orders that are issued under its authority, would also apply to the relationship between the platform worker and the work agency or digital platform (as the case may be).
If the work agency or digital platform claim that a contractual relationship with a platform worker is not an employment relationship, the work agency or digital platform have the burden of proving such allegation on the basis that the agency or platform does not directly or indirectly control the performance of work by the platform worker. The Order sets out a number of criteria as a legal basis for determining the level of control exercised by a work agency or digital platform over a platform worker.
Any claims relating to the determination of the status of a platform worker in light of the said legal presumption, must be made to the Director General responsible for Employment and Industrial Relations, who is responsible to investigate such claims and enforce the said legal presumption.
When does this Order come in force?
This Order shall come into force within three months of its publication in the Government Gazette. The Order was so published on 21st October, 2022, meaning that it will become effective on 21st January, 2023.
Gain comprehensive insights and a better understanding on the specific conditions regulating wages, vacation leave and fees for entering into an agreement with an agency, in a recently published article published on Broadwing Recruitment, written by Dr Mariella Baldacchino.