[By Salleh Buang]
WHEN Prime Minister Tun Dr Mahathir Mohamad announced last year that the government intended to draft a new law on the gig economy to protect gig workers (called “giggers”) from exploitation by “platform companies”, many of my friends believed it would not be available anytime soon.
For Khairul, a senior draughtsman in an architect’s firm in Petaling Jaya and formerly a parttime Grab driver (on weekends), regulations recently introduced by the Transport Ministry had made his part-time work unattractive.
He told me last week that he was deterred rather than encouraged to remain active in the gig economy.
He said the new E-hailing Regulations (which came into effect on Oct 12, 2019) were aimed at putting him (a freelance gigger) on the same level as full-time commercial taxi drivers. It is like putting a square peg in a round hole.
But the gig economy law mentioned by the prime minister has a wider objective — i.e. to safeguard the interest of the gig workers. The gig companies have consistently maintained that they merely facilitate “independent contractors” (the drivers) to get in touch directly (via their platforms) with consumers and end users.
In common law, an “employee” is an individual who is hired by an employer to perform services, and the latter has the right to exercise control over the means by which the former renders his services. Thus, if a business owner can control not only “what” work will be done, but also “how” the work is performed, then the person carrying out the task can be regarded as a common law employee.
If the business owner can only control “what” is to be done, but not “how” it is done by another person, then the latter is an independent contractor. In many jurisdictions, digital platform providers, such as Uber, Deliveroo and Foodora have described their workforce as “partners” or even “micro-entrepreneurs”.
They are providers of technology, not of services. In Britain, the Employment Appeals Tribunal disagreed, ruling that Uber is indeed a provider of transport services, and enters into dependent work arrangements with transport workers.
A local daily reported on Jan 4 that a woman had reported Grab to the Industrial Relations Departmentfor unfair removal from the latter’s platform. She alleged she was blocked from driving on the platform operated by MyTeksi Sdn Bhd over a dispute with a passenger at the Senai Airport in Johor in November 2019. The report was lodged under Section 20 (1) of the Industrial Relations Act 1967 (unfair dismissal or dismissal without cause).
A company spokesman said that drivers could be “permanently suspended” over a variety of complaints, with decisions based on many factors. He emphasised that the company has a zero-tolerance policy for infringements and insists that its drivers are “driver-partners”, i.e. self-employed contractors withoutthe usual legal protections accorded to employees.
According to Malaysian Employers Federation executive director Datuk Shamsuddin Bardan, independent contractors and self-employed persons do not have financial safety nets, such as the Employees Provident Fund or Socso. They also do not have “a legal right to form labour unions and negotiate contracts”.
Shamsuddin recommended that a body be set up to act as “a mediator” between the workers, the platform companies and the government, to ensure a win-win situation for all.
According to the European Commission, many national authorities have come up with a patchwork of different regulatory actions, some supportive, some restraining the gig economy, resulting in legal uncertainty for all.
In its recent 48-page report titled “Gig economy employment status” covering 10 European Union countries, the Commission made several proposals to ensure minimum social protection for all workers, regardless of their status in the member states.
It stated the proof that existing legislation cannot meet all the needs of the gig economy is the “overflow in case law worldwide, reclassifying the working relationship between the worker and the company”.
In some countries, the report continued, a “third category” of workers has come into existence, an intermediate status, neither employee nor self-employed. This third category is now called “dependent contractors”.
The Commission concluded that it is vital to develop a legal framework that’s able “to capture the opportunities that the gig economy has to offer”.
I agree absolutely. The question is, how soon can Malaysia come up with such a law?