Digital platform workers and the conundrum of the definition of an ‘employee’ in the era of the Fourth Industrial Revolution
Author: Ntando Ncamane
Affiliations: Lecturer, Mercantile Law Department, University of the Free State
Source: South African Mercantile Law Journal, Volume 35 Issue 1, 2023, p. 1 – 26
There have been many levels of digital transformation from the First, Second and Third Industrial Revolutions. The most advanced level of technology, known as the Fourth Industrial Revolution (4IR), is currently being encountered. The 4IR introduces technologies such as artificial intelligence, big data, robotics, etc. These 4IR transformational technologies also brought the emergence of the gig economy, which enjoyed enhancement by technologies of the 4IR such as big data, that improved the lives of both digital platform workers and consumers worldwide. The gig economy relies on two key role players, namely the consumer, and the digital platform worker. This is evident as there is outsourcing of work done through Internet-based platforms such as Uber Eats, Mr Delivery, Bolt and Airbnb. The Covid-19 outbreak significantly impacted the growth of the digital economy and increased the number of digital platform workers. However, digital platform workers are not protected by labour and social security laws in South Africa. This is because these workers do not qualify to be regarded as ‘employees’ within the labour law framework. For example, s 213 of the Labour Relations Act of 1995 and s 1 of the Basic Conditions of Employment Act of 1997 provide for a definition of an employee to the exclusion of independent contractors and, unfortunately, digital platform workers are categorised as independent contractors. This article notes that this exclusionary definition does not accord with the intent and purposes of s 23 of the Constitution of the Republic of South Africa, 1996. The article further notes that the limited definition of an employee exposes digital platform workers to challenges such as unfair labour practices and unconducive working conditions, which are also unsafe and unhealthy sometimes. Owing to digital platform workers not being regarded as employees, they also do not enjoy social protection and can therefore not receive social security benefits such as unemployment benefits when they lose their jobs. As it stands, digital platform workers are independent contractors. The introduction of 4IR and the Covid-19 outbreak have made the world dependent on the gig economy and therefore this article argues that this frequent use of the gig economy necessitates the extension of the definition of ‘employee’ to include digital platform workers. This will ensure a definition that encapsulates the changing times in the workplace as a result of technology.