The main challenge for labour law in a digital economy is keeping pace with continuing disruption to the manner in which workers are engaged, and managing the challenges presented by an effectively border-free labour market.
Many digital platforms exploit existing regulatory weaknesses to engage low skilled and low paid ‘self-employed’ workers at rates below regulatory minimum standards set for employees.
The regulation of self-employed workers is designed for those genuinely in business for themselves, not for those labouring in the businesses of others, but the legal definitions we use have not kept pace with technological changes.
This enables low skilled ‘gig’ workers to be disguised as ‘self-employed’ and left without those regulatory protections specifically targeted at them.
Industrial action, or the realistic threat of industrial action, is a crucial tool in the arsenal of working people to seek to better their working conditions. However, access to lawful industrial action is heavily regulated, and in Australia is restricted to employees in a single enterprise during bargaining for a proposed agreement.
The inability of working people to use industrial action to support their rights in self-employment, and for all workers to strike in solidarity across enterprises, limits the utility of strikes for all workers, and those engaged in remote and gig work.
This is further complicated where gig work can be done across borders, given that the use of industrial action as a toll of international solidarity is generally prohibited by domestic laws.
Professor Shae McCrystal's research was supported by the Australian Government through the Australian Research Council's Discovery Projects funding scheme (project DP140100902).
Read more about Professor Shae McCrystal’s latest book Strike Ballots, Democracy, and Law (Oxford University Press, 2020).
Find out more about our research in labour, employment and anti-discrimination law.