Journal of Work Health and Safety Regulation

Journal of Work Healthand Safety Regulation

ISSN 2758 -4755

Vol.1
No.1

January 2023

CONTENTS
Greetings from the Editor-in-Chief (Law) of the Journal of Work Health and Safety
Regulation …………………………………………………………………………………………………… Richard JOHNSTONE
Greetings from the Editor-in-Chief (Health) of the Journal of Work Health and Safety
Regulation ……………………………………………………………………………………………………………… Fujio KAYAMA
Journal Guide

Editors’ Introduction
A Special Focus on Work Health and Safety Law and Policy and Work for Digital
Labor Platforms …………………… Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

Vol.1

Original Articles
Ambiguities and Absences: Occupational Health and Safety Regulationof Platform-Mediated Work in Ontario, Canada……………………………………………… Eric TUCKER

No.1

Legal Protections of the Health and Safety for Gig Workers: The Present Status and Future
Prospects in Japan …………… Takenori MISHIBA, Kotaro KURASHIGE and Shoko NAKAZAWA
Regulating Health and Safety in Work for Digital Labor Platforms in Australia: The
Example of Food Deliverers…… Elizabeth BLUFF, Richard JOHNSTONE and Michael QUINLAN

An Occupational Health and Safety Perspective on EU Initiatives to Regulate Platform
Work: Patching up Gaps or Structural Game Changers?……………………… Aude CEFALIELLO
Reconsidering Working Time Regulation for the Protection of Platform Workers’
Health and Safety……………………………………………………………………………………………… Cristina INVERSI
Legislation Note
Work Health and Safety Law Reform in Australia—The Recent Industrial Manslaughter Provisions……………………………… Richard JOHNSTONE
January 2023

As a reference １：Journal of Occupational Health Law (Japanese journal) Volume 1, No. 2 Contents
As a reference ２：Journal of Occupational Health Law (Japanese journal) Volume 1, No. 1 Contents

The Japan Association of Occupational Health Law

〔Editorial Board〕
Editors-in-Chief
Richard Johnstone, Law (Honorary Professorial Fellow, Melbourne Law School, The University of Melbourne,
Australia)
Fujio Kayama, Health (Professor Emeritus, Jichi Medical University, Japan)
Deputy Editor-in-Chief
Tōru Yoshikawa, Health (Acting Director, Research Center for Overwork-Related Disorders, National Institute ofOccupational Safety and Health, Japan)
EditorDiana Kloss MBE, Law (Professor, London South Bank University, UK)
Administrator
Takenori Mishiba, Law (Professor, Faculty of Law at Kindai University, Japan)
Advisor
Masaya Takahashi, Health (Director, Research Center for Overwork-Related Disorders, National Institute ofOccupational Safety and Health, Japan)〔Editorial Committee〕
Chairperson
Akizumi Tsutsumi (Professor, Department of Public Health, Kitasato University School of Medicine)
Deputy Chairperson
Takenori Mishiba (Professor, Kindai University Faculty of Law)
ChiefsNoritada Katō (Occupational (health) physician, Fuji Electric Co., Ltd.), Naoyuki Saionji (Attorney at law,
Denmachō Law Office), Takehiko Yamada (Council member, Occupational Health Promotion Foundation)
Members
Toshiya Irokawa (Professor, Occupational Health, Tohoku University School of Medicine),
Masaki Imura (Professor, Okinawa International University College of Law), Teruhisa Uwatoko (Hospital
associate professor, Psychiatry, Kyoto University Hospital), Hisashi Eguchi (Professor, Department of Mental
Health, Institute of Industrial Ecological Sciences, University of Occupational and Environmental Health, Japan),Tōru Yoshikawa (Acting Director, Research Center for Overwork-Related Disorders, National Institute ofOccupational Safety and Health, Japan), Yūko Odagiri (Lecturer, Preventive Medicine and Public Health, Tokyo
Medical University), Tatsuya Sasaki (Full-time lecturer, Nagoya Gakuin University Faculty of Law), Takayuki
Hara (Lecturer, Meiji University School of Law), Kōsuke Mafune (Lecturer, Department of Mental Health, Instituteof Industrial Ecological Sciences, University of Occupational and Environmental Health, Japan), Hajime Yoshida(Director, Tenma Law Office; former visiting professor, Kyoto University), Makoto Okawara (Assistant professor,
Department of Environmental Epidemiology Institute of Industrial Ecological Sciences, University of Occupational
and Environmental Health, Japan), Keiichi Matsuzaki (Assistant professor, Public Health unit, Kitasato University
School of Medicine)This special issue was co-edited by Dr. Elizabeth Bluff and Emeritus Professor Michael Quinlan with the Editor-inChief (Law), Professor Richard Johnstone.
Journal of Work Health and Safety Regulation is published biannually by the Japan Association of Occupational   Health Law (Office: Shin-Kagurazaka Building 2F, 43 Tansucho, Shinjuku-ku, Tokyo 162-0833, Japan,   TEL: +81-3-5946-8844 FAX: +81-3-5229-6889 E-mail: jaohl@supportoffice.jp https://jaohl.jp/)
The editors wish to thank Ms. Momoe Kanada who kindly checkd the entire manuscript.
Printed by: Yamashiro Printing Co., Ltd., 588 Hokyoin Higashimachi, Teranouchi-dori Ogawa-nishi-iru, Kamigyo   ku, Kyoto 602-0062, Japan, TEL: +81-75-441-8177 FAX: +81-75-441-8179

Journal of Work Health and Safety Regulation
CONTENTS

Greetings from the Editor-in-Chief (Law) of the Journal of Work Health and Safety
Regulation  ...................................................................... Richard JOHNSTONE   1
Greetings from the Editor-in-Chief (Health) of the Journal of Work Health and Safety
Regulation ................................................................................. Fujio KAYAMA   3
Journal Guide / 5

Editors’ Introduction
A Special Focus on Work Health and Safety Law and Policy and Workfor Digital Labor Platforms...... Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN  17

Original Articles

Ambiguities and Absences: Occupational Health and Safety Regulation of
Platform-Mediated Work in Ontario, Canada ....................... Eric TUCKER  30
Legal Protections of the Health and Safety for Gig Workers:
The Present Status and Future Prospects in Japan
 .... Takenori MISHIBA, Kotaro KURASHIGE and Shoko NAKAZAWA  54



Regulating Health and Safety in Work for Digital Labor Platforms in Australia:
The Example of Food Deliverers...... Elizabeth BLUFF, Richard JOHNSTONE and Michael QUINLAN  92



An Occupational Health and Safety Perspective on EU Initiatives to Regulate
Platform Work: Patching up Gaps or Structural Game Changers?
...... Aude CEFALIELLO 117
Reconsidering Working Time Regulation for the Protection of Platform Workers’
Health and Safety ............................................................ Cristina INVERSI 138

Legislation Note

Work Health and Safety Law Reform in Australia—The Recent Industrial
Manslaughter Provisions ......................................... Richard JOHNSTONE155

As a reference : Journal of Occupational Health Law (Japanese journal) Volume 1, No. 2 Contents / 164
As a reference : Journal of Occupational Health Law (Japanese journal) Volume 1, No. 1 Contents / 170

J Work Health Saf Regul 2023; 1; 1–2

Greetings from EIC (Law)

Greetings from the Editor-in-Chief (Law) of the Journalof Work Health and Safety Regulation
I am honoured and grateful that the Japan Association of Occupational Health Law has appointed me
to be the inaugural Editor-in-Chief (Law) of its new Journal of Work Health and Safety Regulation.
During my nearly 40 years as a labour lawyer, the world of work has changed significantly, andwith those changes have come new and emerging hazards threatening everyone involved in, andaffected by, work. The name of journal reflects its focus on understanding how law and other modesof regulation do, and can best, address the wide array of hazards facing everyone who carries out
work, or who is otherwise affected by work. The Journal’s aim is to advance academic research andto inform policy debate and decision-making in all aspects of work health and safety regulation,
including prevention, compensation and rehabilitation/return to work.
   The Journal is interested in submissions that include analysis of work health and safety
regulatory developments in a single country, particularly those that have transnational implicationsor that relate to potential international trends; doctrinal (legal analytical) comparisons addressing
common work health and safety issues across two or more countries; empirical analyses; casestudies; analysis of practical, theoretical, methodological and historical issues in comparative ortransnational work health and safety regulation; and discussion of economic, social, or cultural
aspects of work health and safety regulation and/or the ‘transferability’ of legal rules or policy
approaches.
   Multidisciplinary and interdisciplinary perspectives on work health and safety regulation –including from law, occupational health, medicine, sociology, regulatory studies, industrial relations,
psychology, social policy, criminology, socio-legal studies and history – are welcome.
   This first issue of the journal includes articles dedicated to one of the most pressing challenges
in work health and safety regulatory policy: how to regulate to ensure the health and safety ofworkers undertaking work allocated through digital platforms across a range of industrial settings.
I thank the guest editors of the special issue, my colleagues Dr Elizabeth Bluff and Emeritus
Professor Michael Quinlan, for their careful and insightful editorial and scholarly contributions.
I also thank each of the authors who has contributed to this special issue for their excellent papers
and for their willingness to support this new journal.
   The second issue of the Journal (to be published in the first half of 2023) will be a general issue,
and the third issue (to be published in the second half of 2023) will be a special issue on work healthand safety regulation and psychosocial hazards. Submissions to either or both of these issues arevery welcome!
   We hope that everyone with an interest in health and safety at work will support and publicise
this new journal. We look forward to receiving submissions on work health and safety regulatory
issues in the form of articles, notes on major reports, legislation notes, case notes and book reviews.

2Richard JOHNSTONE

Editor-in-Chief (Law)

Richard JOHNSTONE, B Bus Sci (Hons) (Cape Town), LLB (Hons), PhD(Melbourne).
Honorary Professorial Fellow, Centre for Employment and Labour Relations Law, Melbourne Law
School, The University of Melbourne, Australia

J Work Health Saf Regul 2023; 1; 3

Greetings from EIC (Health)

Greetings from the Editor-in-Chief (Health) of the Journalof Work Health and Safety Regulation
I am delighted to have the opportunity to express my appreciation to the Japan Association of
Occupational Health Law for having appointed me as their Editor-in-Chief (Health) of its journal,
with its primary focus on occupational medicine.
   Over the 40 years of my professional life, I have been engaged in research in the fields ofenvironmental toxicology and occupational medicine. The environment surrounding industrial areasin Japan was once heavily polluted in the 1950s but has since been remediated and considerably
improved thanks to the judicial enforcement of the environmental protection laws and regulations
during 1960-1980. Through this experience, we became deeply aware of the importance of
establishing preventive measures at the forefront, as being the most effective method forenvironmental protection.
   Currently, various occupational health problems, such as mental disorders and occupational
cancers have surfaced among workers in various work environments. Finding a solution to thesesensitive and complex issues takes collaborative effort among various disciplines including medical
professionals, labor and social security specialists, human resource personnel, attorneys, and jurists.
   I would like to encourage authors from various fields to report their experiences and findings ofreal-world disputed issues to which regulatory problems were identified and judicial judgments were
given. In doing so, we will be able to share and compile this knowledge of former case law which
address occupational health, as well as related occupational regulatory issues.
   This new journal is designed to be a platform that facilitates multidisciplinary studies focusing
on occupational health and knowledge exchange among those professionals in this field. I lookforward to the vision of this journal offering new opportunities for researchers and professionals
engaged or interested in occupational health law to network and initiate collaborative interactions.

Editor-in-Chief (Health)Fujio KAYAMA, M.D., Ph.D.
Professor Emeritus, Jichi Medical University, Japan

J Work Health Saf Regul 2023; 1: 5‒16

December 1, 2022 updated

Journal Guide
The Journal of Work Health and Safety Regulation (JWHSR) invites submissions
in all fields related to the Work Health and Safety Regulation.
Please read the following guidelines and information before proceeding to the submission.

1. JOURNAL POLICY
1.1. Aims and Scope
The Journal of Work Health and Safety Regulation (JWHSR) is a peer-reviewed multidisciplinary
journal of international scope in work health and safety regulation. It is published biannually inEnglish and administered by the Japan Association of Occupational Health Law.
Before submitting your manuscript, please ensure you have read the aims and scope of the journal.
The aim of the journal is to advance academic research and to inform policy debate and decisionmaking in all aspects of work health and safety regulation, including prevention, compensation, andrehabilitation/return to work.
   The Journal is interested in submissions that include analysis of legislative, administrative,
or judicial developments in a single country that have transnational implications or that relate topotential international trends; doctrinal (legal analytical) comparisons addressing common work
health and safety issues across two or more countries; empirical analyses; case studies; analysis oftheoretical, methodological, or historical issues in work health and safety regulation; scholarshipon mixed systems of law or of supranational legal regulation; and discussion of economic, social,or cultural aspects of work health and safety regulation and/or the ‘transferability’ of legal rules orpolicy approaches.
   Multidisciplinary and interdisciplinary perspectives on work health and safety regulation –including from occupational health, medicine, sociology, regulatory studies, industrial relations,
psychology, social policy, criminology, socio-legal studies, and history – are welcome.
   The journal is also interested in submissions that analyze important court decisions (casenotes), reports on work health and safety regulation issues (reports) and developments in work
health and safety legislation (legislation notes), as well as reviews of books on work health andsafety regulation (book reviews). The journal will also publish occasional editorials (including guest
editorials) reporting on developments in work health and safety regulation from around the world.

6

1.2. Area of specialty
1) Basic framework of activities
The greatest characteristic of this association is the orientation towards problem-solving andprevention. Conventionally, laws have been oriented towards resolving disputes that have alreadyoccurred. By having its foundation basedon the knowledge that is cultivated insuch a manner, the Japan Associationof Occupational Health Law (JAOHL)
combines knowledge from various related
fields and seeks to resolve and prevent legal
issues concerning work health and safety.
We welcome everything from the latest
academic research to practical debatesconcerning the challenges in the field. In
our educational activities, we emphasize thepractical legal education of occupational
health professionals, such as industrial
Fig. 1. Basic framework of JAOHL activities
physicians (Fig. 1).
2) Area of specialty aimed toward “field-based problem-solving”
Our area of specialty is aimed toward field-based problem-solving, which can be organized asshown in Fig. 2. While the horizontal axis represents time, the vertical axis represents perspective,
creating the following four quadrants.
(1) Macro-level × prevention
How should legal systems be created toprevent work health and safety problems
from occurring?
cf. proposals for work health and safety
legislation, etc.
   For example, how should the work
health and safety of freelancers andteleworkers be regulated, and how should
the handling of chemicals with unknown
toxicity be regulated.

Fig. 2. Organization of field-based problem-solving(2) Macro-level × ex post facto resolution
How should the legal systems and laws at the national level be created to resolve the work healthand safety problem?
cf. how should the industrial accident compensation systems work, how should the industrial

Journal Guide7

accident compensation be wound up, etc.
   For example, how should the findings of industrial accidents be made for chemical
hypersensitivity or hepatitis when the effects of overconsumption of alcohol during work aresuspected, and how should the decision to discontinue industrial accident compensation be madein the case of mental disorders, which can last over long terms.
(3) Micro-level × prevention
How should the company rules and systems be created to prevent work health and safety problems
from occurring?
cf. the state of company rules and systems that are useful for prevention, etc.
   For example, if there are useful examples of decreases in the number of unwell people ortrouble through the preparation of new health management regulations, there must be an analysisof their factors and whether they can be expanded.
(4) Micro-level × ex post facto resolution
In order to resolve the work health and safety problems after the fact, how should individual
methods and laws be created when the parties go to court?
cf. know-how about out-of-court dispute resolution, theories of appropriate compensation, etc.
   For example, if there are strategies that have contributed towards the prevention of disputes
at an early stage, when employees suffer unclear health disorders outside work, there must be an
analysis of their factors and whether they can be expanded.
The issues that this Association will tackle for the time being(1) Legal system that encourages collaborative work health and safety by various stakeholders(2) Diverse and dense work destinations, possible health problems and legal regulations(3) Measures to ensure health and safety in response to the increase in double-employed and selfemployed(4) Future chemical substance management and the law(5) Criteria for certifying workers’ injuries and healing of brain/heart diseases and mental disorders
based on the evolution of diagnostics and pathology(6) Scope of application of industrial accident compensation for health disorders other than brain
heart disease and mental illness(7) How to properly handle health information(8) Appropriate return to work determination(9) A ppropriate way of dealing with employees who have problems with personality anddevelopment (including reasonable consideration) in the workplace(10)Effective countermeasures against harassment
It applies an editorial policy that:– is committed to a rigorous analysis;

8– fosters diversity and equality of opportunity by strongly encouraging submissions in English or
Japanese by authors of all generations and from all world regions;– w elcomes manuscripts related to the world of work health and safety regulation from all
disciplines and encourages the submission of those with an inter-disciplinary approach;– welcomes both theoretical and empirically-based studies, as well as comparative and international
studies, and country-level studies that explore concepts, trends, and institutions that are of interest
to an international audience;– p romotes a style of writing that is accessible to both academics, policy-makers, and amultidisciplinary readership.
2. SUBMISSION
2.1. Submission
Submissions to the JWHSR should be sent to:
JWHSR Editorial OfficeE-mail: jwhsr-edit@bunken.co.jp
2.2. Languages
Articles must be submitted in English. Authors are invited to write in a style that is accessible toacademics, policy-makers, and a multidisciplinary audience.
2.3. Manuscript TypeThe journal publishes Articles, Legislation Notes (notes on new legislation in one or more countries),
Reports (notes on significant reports on work health and safety law and policy issues), Case Notes,
Book Reviews, and Editorials. Articles, Legislation Notes, notes on Reports, and Case Notes will bepeer reviewed.
2.4. Submission declaration statement
All submissions should be accompanied by a statement indicating that they are not underconsideration elsewhere or have not already been published, and that they will not be submitted for
publication elsewhere without the agreement of the Administrator.
2.5. Conflict of interest statement
Authors must provide a conflict of interest statement on the title page.Authors should disclose any
potential sources of conflict of interest. Any interest or relationship, financial or otherwise that might
be perceived as influencing an author’s objectivity is considered a potential source of conflict ofinterest.
   If there is a conflict of interest to be declared, it should be stated as in  ・(1) Author X has received financial support from Y Corporation.
  ・(2) Author X is an employee of Y Corporation.

Journal Guide9   If the authors have no conflicts of interest to declare, they must state “The authors have noconflicts of interest to declare.” on the title page at submission.
   It is the responsibility of the corresponding author to review this policy with all co-authors.
Submitting authors should ensure they liaise with all co-authors to confirm agreement with the final
statement. Authors must complete the disclosure form and submit it with the manuscript.
2.6. Funding
Authors should list all funding sources in the acknowledgments section. Authors are responsible forthe accuracy of their funder designation.
2.7. Research Ethics statement
Authors of manuscripts describing research involving the participation of humans must confirm thatthe work was carried out in accordance with the principles embodied in the Declaration of Helsinki,
its revisions, and any guidelines approved by the authors’ institutions. Informed consent obtained
from research subjects and approval of an Ethics Review Committee must be clearly indicated on thetitle page. The author must submit the Ethical Consideration Confirmation Form with the manuscriptto the editorial office. In the case that an ethical review is not required, the Ethical Consideration
Confirmation Form must still be submitted.
2.8. Rights and permissions
Authors must observe the usual rules and practices regarding the reproduction of copyrighted
material in their articles. If a manuscript includes previously published material, the authors mustobtain permission from the copyright owners and the publisher of the original work to reproduce it.
The authors must cite the original work in their manuscript.
2.9. Pre-print policy
This journal will consider for review articles previously available as preprints on noncommercial
servers. Authors may also post the submitted version of a manuscript on noncommercial servers at
any time. Authors must notify JWHSR of any preprint related to their manuscript upon submission.
Authors are recommended to post a link to the JWHSR article on the preprint server after the
manuscript is accepted.
2.10. CopyrightAuthors transfer the copyright to the publisher as part of a journal publishing agreement. The
manuscript accepted to be published will be published in a periodical journal and will be freely
accessible on J-Stage. Upon acceptance for publication, authors will be required to sign a CopyrightTransfer Agreement Form (CTA).
2.11. Fees and Charge
There are no submission fees or article processing charges.

10

3. PREPARING THE SUBMISSION
3.1. Formatting
Main text should be submitted as Word documents in “Times New Roman”, font size 12, doublespaced.
   Each new paragraph should be indented except for the first paragraph under a heading. The
tables must submit as a separate Excel or MS Word File containing text data, not as images. Submit
figures, photographs, graphs, or diagrams in MS Word, PowerPoint, JPEG, or TIFF. Figures should
be of high enough resolution for direct reproduction for printing, and the resolution of the figure
should be at least 300 dpi.
3.2. Arrangement and length of manuscript
Articles should be between approximately 3,000 and 10,000 words long, with an abstract of no morethan 250 words. References, tables, and figures are excluded from the number of words.
   The manuscript should be submitted in separate files for the following parts: (1) title page; (2)main text; (3) tables, figures, appendices, and supporting information. Legislation Notes, Reports,
Case Notes and Book Reviews should be between approximately 1,500 and 7,000 words long.
Title pageThe title page should contain:
A title containing no abbreviations;i.
ii. The full names of the author(s), specifying the name of the corresponding author, i.e. theperson who will have the primary responsibility for communicating with the journal during themanuscript submission, peer review, and publication process.
iii. The institutional affiliation(s) where the work was conducted and e-mail address(es) of theauthor(s).
iv. Acknowledgments. Besides indicating any contributions from persons who do not meet thecriteria for authorship, any financial support should be mentioned.
v. Submission declaration statement, see section 2.4. above.
vi. Funding, see section 2.6. above.
vii. Conflict of interest statement, see section 2.5. above.
viii. Information on rights and permissions obtained to reproduce material from other sources, seesection 2.8. above.
Main text
As articles are peer-reviewed, the main text should not include any information that might identify
the authors.
The main text should be presented in the following order:
Classification (Articles, Legislation Notes, Reports, Book Reviews, Editorials);i.
ii. Title;

Journal Guide

11

iii. Abstract: describing the aims, methods, scope of analysis, results, and conclusions;
iv. Keywords (between 4 and 8);
v. Running title (60 characters or less);vi. Main text (may be omitted depending on the type of manuscript);vii. List of references.
viii. Legends
Tables, figures, appendices, and supporting information   Tables and figures should be included in the text and also supplied in a separate file. For
submission, they should be supplied as separate files but referred to in the text. If data, scripts orother artifacts used to generate the analyses presented in the manuscript are available via a publicly
available data repository, authors should include a reference to the location of the material within
their manuscript.

4. HOUSE STYLE
4.1. References
JWHSR is a multidisciplinary journal, and authors can choose from the following two citationstyles, which are familiar to the author’s academic field. Authors are responsible for verifying
all citations and quotations in the text, and the list of references before the submission of themanuscript. Incorrect surnames, journal/book titles, publication year, and pagination may decrease
discoverability.
References in the law field
References follow the Chicago Manual of Style “author–date” system in the law field. All references
should be listed in Reference list entries (in alphabetical order) and In-text citations. For more
information on this citation style, please refer to the Chicago Manual of Style.
Reference examples follow:– Journal article
Reference list entries
Malik, Radosław, Anna Visvizi and Małgorzata Skrzek-Lubasińska. 2021. “The Gig Economy:
Current Issues, the Debate, and the New Avenues of Research.” Sustainability 13, no. 9: 5023–5043.
In-text citations...... and journalists (Malik, Visvizi, and Skrzek-Lubasińska 2021).
– BookReference list entries
Franklin, Paula, Pierre Bérastégui, Aude Cefaliello, Tony Musu, and Marian Schaapman. 2021.
“Occupational Health and Safety Inequalities in the EU.” In Benchmarking Working Europe 2021:
Unequal Europe, edited by Nicola Countouris, Romuald Jagodzinski, and Sotiria Theodoropoulou,

12

133–155. Brussels: European Trade Union Institute.
In-text citations...... to inequal protection of workers (Franklin et al. 2021, 143).
– Internet Document
Reference list entries
UFCW Canada (United Food and Commercial Workers Canada). 2022. “Benefits.” Accessed
September 24, 2022. https://uber.ufcw.ca/en/driver-resources/benefits.
In-text citations...... of platform work (UFCW Canada 2022).
References in the health field
References follow the AMA Manual of Style for authors in the health field. All references should
be consecutively numbered in order of appearance and listed as completely as possible. All intext citations should be given in consecutive order using Arabic superscript numerals. For more
information on this citation style, please refer to the AMA Manual of Style.
Reference examples follow:– Journal article
Hosohata K, Mise N, Kayama F, Iwanaga K. Augmentation of cadmium-induced oxidative
cytotoxicity by pioglitazone in renal tubular epithelial cells. Toxicol Ind Health. 2019; 35: 530–536.
– BookMishiba T. Workplace Mental Health Law-Comparative Perspectives, London, Routledge, Taylor
and Francis, 2021.
– Internet Document
Guidelines for Determining Probability of Causation Under the Energy Employees Occupational
Illness Compensation Program Act of 2000.
https://www.ecfr.gov/current/title-42/chapter-I/subchapter-G/part-81 Published May 2002. [Accessed
March 19, 2022]
4.2. Legends
The list of legends for figures, illustrations, appendices, and supporting information should beafter the References section in the text document. Each legend should have a brief description andsufficient information for interpretation of the corresponding figure or other material.
4.3. Tables and figures
Tables and figures should be numbered consecutively, in order of appearance in the text. Authors
should indicate a source under figures and tables, in particular indicating the source of any data used
for calculations, regardless of whether this has already been explained in the text.

Journal Guide

13

4.4. Lay-out and general style points– Headings and subheadings
Titles, headings, and sub-headings should be numbered (following the format Ñ, 1.A, 1.A.(i),) toindicate the level of importance.
– Abbreviations, acronyms, and contractions
In general, terms and names should not be abbreviated unless they are used repeatedly (morethan three times) and the abbreviation is helpful to the reader. Where abbreviations are used, each
one should be expanded on its first use, followed by the abbreviation or acronym in parentheses.
Thereafter, the abbreviation or acronym should be used rather than the full term.
– Latin phrases and foreign expressions
Where these are used, they should be italicized unless so common that they have become wholly
absorbed into the everyday language (e.g. bona fide). Examples of the normal rule: res ipsa loquitur
amicus curiae.
– Capitalization
In articles, only the first letter of the title, subtitle, and headings should be capitalized, as well as anyother words that would ordinarily be capitalized. Following colons and en dashes, the first letter ofsubtitles is also capitalized. E.g.: Welfare and labor market regimes: A review of earlier work   In source citations, however, regardless of the capitalization of the original, English language
titles of works are capitalized except for articles, conjunctions, and prepositions (“regarding”,“concerning” and “respecting” are treated as prepositions), unless they are the first or last wordof a title. Initial capitals should be used for the short titles of legislative texts and international
instruments.
– Page references
Page references should be set out in full, e.g. pp. 123–124 (not 123–4). It is preferable to cite a
precise range of pages rather than using expressions such as “p. 218 ff.”
5. EDITORIAL POLICIES AND ETHICAL CONSIDERATIONS
5.1. Peer-review and acceptance
All manuscripts undergo screening by the JWHSR Editor-in-Chief, Managing Editor, and the
Editorial Board based on the JWHSR’s editorial policy. Those manuscripts which pass this screeningstage are submitted to a double-blind peer-review process and, if accepted, to editing and translation.
5.2. Publication ethics
Authors should observe high standards with regard to publication ethics as outlined by theCommittee on Publication Ethics (COPE). Any cases of ethical misconduct will be dealt with inaccordance with the COPE guidelines (https://publicationethics.org/).

14

6. EDITORIAL BOARD AND COMMITTEE OF THE JOURNAL[Editorial Board]
Editors-in-Chief
Richard Johnstone, Law(Honorary Professorial Fellow, Melbourne Law School, The University of Melbourne, Australia)
Fujio Kayama, Health(Professor Emeritus, Jichi Medical University, Japan)
Deputy Editor-in-Chief
Tōru Yoshikawa, Health (Acting Director, Research Center for Overwork-Related Disorders,National Institute of Occupational Safety and Health, Japan)
EditorDiana Kloss MBE, Law (Professor, London South Bank University, UK)
Administrator
Takenori Mishiba, Law (Professor, Faculty of Law at Kindai University, Japan)
Advisor
Masaya Takahashi, Health (Director, Research Center for Overwork-Related Disorders, National
Institute of Occupational Safety and Health)[Editorial Committee]
Chairperson
Akizumi Tsutsumi (Professor, Department of Public Health, Kitasato University School of Medicine)
Deputy Chairperson
Takenori Mishiba (Professor, Kindai University Faculty of Law)
ChiefsNoritada Katō (Occupational (health) physician, Fuji Electric Co., Ltd.)
Naoyuki Saionji (Attorney at law, Denmachō Law Office)Takehiko Yamada (Council member, Occupational Health Promotion Foundation)
Members
Toshiya Irokawa (Professor, Occupational Health, Tohoku University School of Medicine)
Masaki Imura (Professor, Okinawa International University College of Law)
Teruhisa Uwatoko (Hospital associate professor, Psychiatry, Kyoto University Hospital)
Hisashi Eguchi (Professor, Department of Mental Health, Institute of Industrial Ecological Sciences,
University of Occupational and Environmental Health, Japan)
Tōru Yoshikawa (Acting Director, Research Center for Overwork-Related Disorders, National
Institute of Occupational Safety and Health)
Yūko Odagiri (Lecturer, Preventive Medicine and Public Health, Tokyo Medical University)
Tatsuya Sasaki (Full-time lecturer, Nagoya Gakuin University Faculty of Law)
Takayuki Hara (Lecturer, Meiji University School of Law)
Kōsuke Mafune (Lecturer, Department of Mental Health, Institute of Industrial Ecological Sciences,Journal Guide

15

University of Occupational and Environmental Health, Japan)
Hajime Yoshida (Director, Tenma Law Office; former visiting professor, Kyoto University)
Makoto Okawara (Assistant professor, Department of Environmental Epidemiology Institute ofIndustrial Ecological Sciences, University of Occupational and Environmental Health, Japan)
Keiichi Matsuzaki (Assistant professor, Public Health unit, Kitasato University School of Medicine)
Advisor
Masaya Takahashi (Director, Research Center for Overwork-Related Disorders, National Institute ofOccupational Safety and Health)7. OFFICEERS OF THE JAPANESE ASSOCIATION OF OCCUPATIONAL HELATH LAW[Senior counselors]
Yoshiharu Aizawa (Emeritus professor, Kitasato University)
Kōichirō Yamaguchi (Emeritus professor, Sophia University; former chairperson, Central Labour
Relations Committee)
Yasuo Suwa (Emeritus professor, Hosei University; former chairperson, Labour Policy Council,
Central Labour Relations Committee)[Advisor]
Shigeya Nakajima (Former professor, Sophia University ; former member, Labour Insurance Appeal
Committee)[Representative director]
Kōichi Kamata (Emeritus professor, Toyo University; former chairperson, Labour Policy Council)[Vice-representative directors]
Takashi Kawamura (Emeritus professor, Kyoto University)
Takenori Mishiba (Professor, Kindai University Faculty of Law)
[Directors]
Kōichi Kamata (Emeritus professor, Toyo University; former chairperson, Labour Policy Council)
Takenori Mishiba (Professor, Kindai University Faculty of Law)
Yoko Izumi(Professor, Tohoku Medical Megabank Organization)
Hajime Yoshida (Attorney at law and director, Tenma Law Office; former visiting professor, Kyoto
University)
Fujio Kayama (Emeritus professor, Jichi Medical University)
Takashi Kawamura (Emeritus professor, Kyoto University)
Nobuo Kuroki (Emeritus professor, Toho University; representative director, Japanese Society for
Occupational Mental Health)Hajime Kurosawa (Professor, Occupational Health, Tohoku University School of Medicine)
Katsutoshi Tanaka (Professor, Occupational Mental Health, Kitasato University Graduate School of
Medical Science)
Kōji Mori (Professor, Institute of Industrial Ecological Sciences, University of Occupational and16

Environmental Health, Japan)
Akizumi Tsutsumi (Professor, Department of Public Health, Kitasato University School of Medicine)
Akio Kōyama (Vice-chairperson, Japanese Association of Neuro-Psychiatric Clinics; director,
Yūrakuchō Sakura Clinic)
Minoru Arai (Director, Mental Clinic, Tokyo Rinkai Hospital; visiting associate professor,
Psychiatry, Juntendo University)
Kenichi Kojima (Attorney at law, Torikai Law Office)Masahito Ishikura (Labor and social security attorney; Vice-chairperson, National Association ofSocial Insurance Associations)
Miyuki Yanai (Canon Inc.)J Work Health Saf Regul 2023; 1; 17‒29

Editors’ Introduction

A Special Focus on Work Health and Safety Law and Policy
and Work for Digital Labor Platforms
Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

1. INTRODUCTION
This inaugural issue of the English versionof the Journal of Work Health and Safety
Regulation focuses on one of the most pressing
challenges in work health and safety (WHS)
regulatory policy: how to regulate to ensure
the health and safety of workers undertaking
work allocated through digital platforms acrossa range of industrial settings. In addressing
this challenge, this special issue recognizes
that platform mediated gig work (hereafter“platform work”) is one type of “gig work”
within the broader range of precarious work,
which is strongly linked with exploitative
practices and poor health and safety
outcomes (as elaborated later in this Editors’
Introduction).
2. THE THREE KEY THEMES EXPLOREDIN THIS SPECIAL ISSUE
The five papers in this special issue explore
three key themes in the regulation of WHS in
platform work.
   One theme is, what are the work hazards
arising from platform work? As authors inthis special issue note, platform workers are
exposed to layers of risks: traditional risks andrisks due to the use of artificial intelligenceat the workplace. One key question is: How
are risks found in traditional work settings
exacerbated by the platform environment? For
example, what impact has work had on thelength of time that platform workers spend atwork? And, are there particular kinds of risks
that arise from the use of algorithms to allocate
and to monitor work?
   Another broad theme is the challenges
posed by platform work to effective WHS
regulation, and the related question of whether
existing WHS regulatory systems, most ofwhich have been built upon the “employment
paradigm,” are “fit for purpose” to regulate thehealth and safety risks arising from platformwork. For example, are WHS regulatory
regimes able to effectively regulate hazards
that are exacerbated by the nature of platform
work? How are attempts to regulate “workingtime” affected by the way in which platformwork is organized? Digital platforms present
themselves as technology companies, and oneof the reasons for the development of platformwork has been to avoid protective labor laws
and to return to a market-centered approach tolabor regulation. Thus, it is not surprising thatin most countries, WHS regulation, traditionallyfocused on employers having health andsafety duties to employees, is having difficulty
protecting the health and safety of platformworkers. Within this theme there are questions
about how courts determine whether platformworkers are “employees” covered by labor
regulation, or self-employed, “independent
contractors” or persons running their own
business. For example, in 2020, the Spanish
Supreme Court ruled that platform delivery
workers are employees and not self-employed18

Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

workers, on the basis that they performtheir jobs strictly subject to the platform’s
instructions and lack the essential infrastructure
to perform their duties—the computer program
developed by the platform, not their vehicle ormobile phone (Rodríguez 2022). In addition,delivery workers do not enjoy real autonomy indetermining work schedules and are subject tothe management power of platform businesses.
Subsequently, the Spanish Congress approved
the riders’ law (Ley rider), which presumes
an employment contract between the delivery
worker and the platform, because the worker
is subject to decisions stemming from theplatform’s algorithm. One possible solution
concerns efforts to have platform workers
classified as, or deemed to be, “employees,”in order to extend the application of labor
standards to these workers.
   A third theme involves the normative
question of how platform work should be
regulated in order to ensure that platformworkers are not exposed to risks to theirhealth and safety. Can the health and safety ofplatform workers be effectively protected bya patchwork of labor laws that together covermost kinds of platform work? Would platformworkers be adequately protected by WHS
legislation if all platform workers were deemed
to be “employees”? Are there examples of
WHS regulatory regimes that ensure that
digital platforms owe duties to ensure thehealth and safety of all kinds of platformworkers? Can WHS laws facilitating worker
representation, consultation, and participationin WHS accommodate all kinds of platformworkers? And, can WHS regulation ensure
the health and safety of platform workers if it
doesn’t address issues to do with the paymentof workers and the scheduling of their work (seefurther discussion of these issues later in thisEditors’ Introduction)? Finally, how can WHS
inspectorates effectively inspect and enforce
compliance by digital platforms with their
obligations under WHS legislation?
   Each of the papers in this special issue
aims to address at least one of these questions.
3. WHAT IS PLATFORM WORK?
The triangulated work arrangement in which
digital platform businesses utilize online
platforms, websites, or mobile apps to put
workers in touch with clients or end users ofservices, is a significant and growing trend in
the labor market in many countries. A survey
conducted in 14 member states of the European
Union (EU) in 2021 found that 4.3 percent of
the working age population had done platformwork in the past year and 1.1 percent could beclassified as “main platform workers”; that is,
working 20 hours or more per week or earning
more than 50 percent of their income throughplatforms (Piasna, Zwysen, and Drahokoupil
2022, 14). The amount of platform work ishigher in some countries: for example, 6.5
percent of the working age population in
Ireland (Piasna, Zwysen, and Drahokoupil
2022, 17) and 7.1 percent in Australia(McDonald et al. 2019, 3).
   Digital labor platforms differ considerably
in their operating models but, in broad terms,
there are two main types. “Crowdwork”
platforms act as an intermediary or matching
service to provide technology services thatenable workers, who are running their own
businesses, to locate and receive payment
from clients. Such platforms tend to exert
only incidental control over how the work is
defined or performed, similar to a newspaper
or website publishing job advertisements, andEditors’ Introduction: Work Health and Safety Regulation and Digital Labor Platforms

in certain circumstances the end user may
employ the worker (De Stefano 2016, 473 –
474; Stewart and McCrystal 2019, 9–11). In
contrast, “work on demand” platforms operate
as vertically-integrated firms, offering theirclients a service, supplying the labor to achieve
that, and stipulating and enforcing standardsof performance (De Stefano 2016, 473–474;
Stewart and McCrystal 2019, 9 – 11). The
workers provide the labor through which theplatform conducts its business. In their articles
in this issue, Eric Tucker and Aude Cefaliello,using the location of labor provision as a
key criterion, also distinguish between work
performed in the physical world and location
based (“ground work” or “location-based
platform work”) and work performed online(“cloud work” or “online work”).
   As all platform work arrangements
are triangulated, there is ambiguity about
responsibility for WHS among the platformbusinesses that organize work as intermediaries,
aggregators, or mediators; the clients or endusers of services; and the platform workers.
Although digital labor platforms match workers
with demand for services, provide systems
enabling the conduct of work in exchange forpayment, and set rules governing or rating
behavior of participants (as workers or clients),
the relationship between platform businesses
and workers is not a conventional bilateral
employer-employee relationship (Choudary
2018, 25, 32 – 33; Stewart and McCrystal
2019, 10). As several articles in this issue
show, contracts that workers sign with labor
platforms typically cast them as self-employedpersons or independent contractors, although
the arrangement is more one of subordinate,
dependent contracting due to the structural
power imbalances perpetuated by platforms,

19

and the management, monitoring, andsurveillance of worker performance enabled
by digitalization and artificial intelligence.
These central features of platform work, alongwith job insecurity, irregular and sometimes
extended working hours, unpredictable income,and lack of workplace support are significant
contributors to psychosocial and physical risks,
illness, and injuries (Bérastégui 2021, 26, 45,
85–93; Lenaerts et al. 2021; Moore 2019, 2, 6;
Stacey et al. 2018, 6–7), and platform workers
have also been especially vulnerable during the
COVID-19 pandemic (Matilla-Santander et al.
2021).
   Platform work is part of the wider
rubric of precarious work including casual,
temporary, labor hire and agency work, selfemployment, and dependent subcontracting.
Although the term “gig work” is commonly
applied to platform work, many precarious
work arrangements co-existing with andpre-dating the digital economy could
be construed as gigs, such as short-term
freelance work done by many musicians,
other performers, and journalists (Malik,
Visvizi, and Skrzek-Lubasińska 2021). In thecurrent era, precarious work is pervasive anda 2016 McKinsey report estimated that 20 30 percent of the working-age US populationand perhaps 162 million individuals in the
EU are engaged in some form of independent
work characterized by autonomy, task/piece
payment, specific assignment, and a shortterm relationship between workers and clients(Manyika et al. 2016, viii, 1). If anything, thegrowth of precarious work accelerated during
the COVID-19 pandemic, with the flood of
new entrants into the food delivery sector tomeet the increase in demand for home delivery
of food, pharmaceuticals, and other products

20

Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

during the pandemic, and the lack of moresecure work options for those workers (MatillaSantander et al. 2021; Piasna, Zwysen, andDrahokoupil 2022, 5, 20; Rawling and Riley
Munton 2021, 7–8).
4. PLATFORM WORK IN HISTORICAL
AND COMPARATIVE CONTEXTIn order to understand platform work and thehealth and safety problems it poses, and toassess regulatory remedies and sanctions, it isimportant to place it in a wider historical andcomparative context. In this regard, precarious
work is a term used widely since the earlynineteenth century, and such work has been along-term feature of capitalism (Quinlan 2012).
It declined in extent, but never disappeared, inthe three decades after World War II in old richcountries. From this period, notions of standard
full-time employment developed, althoughless so for women. The post-war decline inprecarious work was due to a combination offactors including Keynesian economic policies
and the greater influences of organized labor,both industrially and politically (Quinlan2012). From the mid-1970s there was arenewed phase of growth in precarious work
globally, accompanying changes to businesspractices and neoliberal policies. In many
respects there was little to differentiate the“new” phase of precarious work from earlier
periods. For example, on-call employment
and dependent subcontracting were centuries
old work arrangements. Further, the growthof precarious work also seems to have been
associated with parallel increases in theinformal sector or black economy in rich andespecially poor countries, like those in Africa,
South America, and Eastern Europe. Triangular
work arrangements involving middle-men andlabor contractors also date back to at least theearly nineteenth century but have become far
more extensive, organized, and global overthe past 20 years (for examples in clothing
manufacturing, seafaring, and dock work, see
Gregson and Quinlan 2020; Quinlan 2013a,
2013b).
   As is the case today, in the nineteenth
and early twentieth centuries some domains ofprecarious work (like clothing manufacturing
and dock work) were dominated by foreign orimmigrant labor. A significant difference now is
the far greater reliance on temporary immigrantor foreign workers facilitated by cheaper andfast travel and a raft of temporary visas, themovement of undocumented immigrations andrefugees, and specialist migration agencies (Tohand Quinlan 2009). Digitalization, including
smartphones and computers, has enabled
tweaking of some pre-existing precarious work
arrangements (like long haul truck-driving
and parcel delivery services) while opening
up new precarious work arrangements suchas food delivery. In essence, digitalization
provides new avenues of communication,
worker surveillance, and discipline, thereby
counteracting one of the technical drivers
for the shift away from subcontracting in thenineteenth century 1)—the Taylorist/Fordist
control and discipline advantages of waged
labor in factories, offices, and other large
workplaces including large fast-food operations
such as McDonalds (Mayhew and Quinlan
2002).

1) Digital platforms and artificial intelligence together with a permissive regulatory environment enable corporations
to amass large amounts of personal data on their employees/workers, clients/customers and others with wider social
implications still unfolding. See, for example, Waldman (2021).

Editors’ Introduction: Work Health and Safety Regulation and Digital Labor Platforms   Platform work is effectively websiteor app-enabled subcontracting and this work
arrangement—subcontracting of tasks via athird-party provider—is centuries old, notnew. What is new is the capacity of digitaltechnology to extend this type of work to awider array of arenas. As with conventional
agency labor (or labor leasing) firms, thewebsite- or app-providers have a vested
interest in growing these arrangements because
they are profitable. This profitability is in nosmall part the result of bypassing or weakening
the effectiveness of regulatory controls (likelicensing of taxi services) and reducing
conditions and protections relating to wages
and hours, workers’ compensation and thelike, which were historically built on the legal
concept of employee rather than the broader
concept of worker (De Stefano 2016; James
2020, chap. 5).
   The institutional protections that might
be afforded by collective negotiation andindustrial relations processes have also been
weakened by two significant factors. The
first is a long-term decline in union density
in almost all countries, itself in no smallpart due to the rise of precarious work. The
second is the difficulty for unions to recruit
workers given the fluid, irregular, and low
pay for much precarious work, even where
unions are not formally precluded fromrecruiting certain workers—as they are when
workers are deemed self-employed rather
than employees or, as in some jurisdictions,prevented from associating (Hartmann-Cortés
2021). There is also a dichotomy between thedesire of some workers for flexibility, and adesire for collective protection to offset theirsubordination by platform businesses. Recent
research identifying this dichotomy mirrors

21

studies of subcontracted workers in industries
like construction going back many decades(Wood and Lehdonvirta 2021). As noted in
the article by Bluff, Johnstone, and Quinlan
in this special issue, the age-profile andtemporary visa and/or foreign status of many
platform workers, especially in areas like fooddelivery, exacerbates unionization and worker
representation challenges.
   The point that much platform work is
structured to bypass regulation, and weaken
conditions and protections, is relevant to our
final contextual observation. Since the 1980s,
a growing and now extensive body of research
has linked the expansion of precarious work
arrangements and neoliberal changes toregulatory regimes, to the weakening of labor
standards in many countries. This has resulted
in lower wages, wage theft, unpaid training andinternships, and other exploitative practices.
Most pertinent to this special issue, there is
now extensive global evidence that precarious
work and job insecurity from repeated wavesof downsizing are associated with significantly
worse health and safety outcomes, as measured
by work-related injuries and fatalities(including disasters), physical and mental
health indices, and lower compliance withregulatory requirements (for reviews of thisevidence, see Quinlan 2015; Quinlan, Mayhew,
and Bohle 2001). Research into causal
pathways have repeatedly identified three
aspects of work organization that are connected
to poorer OHS outcomes. These are: low andirregular income returns, financial vulnerability
and incentive pay regimes (economic andreward pressures); less training and induction,
fragmented management regimes and limited
u n i o n p r e s e n c e ( d i s o rg a n i z a t i o n ) ; a n dlegislative gaps, under-resourced inspectorates

22

Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

and poor enforcement (regulatory failure) (see,for example, Underhill and Quinlan 2011;
Strauss-Raats 2021). With regard to economic
and reward pressures, it is important to notein passing that a considerable number of
precarious workers are paid on a task or piecebasis and there is an extensive body of researchlinking this to poor OHS outcomes (see, forexample, Johansson, Rask, and Stenberg 2010;
Mooren, Williamson, and Grzebieta 2015;
Premji, Lippel, and Messing 2008).
   In the nineteenth and early twentiethcenturies, evidence of the link between
poor OHS outcomes and precarious work,
together with associated campaigning byorganized labor, anti-sweating leagues,
first-wave feminists and others, drove theintroduction of regulation that sought tobetter protect workers (Gregson and Quinlan2020). Moreover, one specific driver ofreform was the recognition that precarious
work arrangements facilitated the spread ofcommunicable disease, a connection identified
in the 1870s. In the present day, the COVID-19
pandemic has highlighted again the greater
vulnerability of societies that were heavily
dependent on precarious work and elaborate
supply chains, as well as exposing many low
paid, precarious workers to additional risks
because their jobs were deemed essential
even during lockdowns (Quinlan 2021).
This led to specific regulatory interventions
such as severely limiting subcontracting andthe use of agency workers in meatworks inGermany in response to evidence linking thesearrangements to spreading the disease. More
broadly, changes to work associated withthe pandemic strengthened a push to better
regulate digital forms of work (like telework)
as well as precarious work, the latter mirroring

anti-sweating debates over a century earlier(Sanz de Miguel, Caprile, and Arasanz 2021;
Lenaerts et al. 2021).
   Understanding this wider historical andcomparative context is essential to progressing
current debates about regulating health andsafety in work for digital labor platforms.
It illuminates the significant challenges andapproaches to regulating platform work
explored in the five papers in this special issue.
5. INTRODUCING THE PAPERS
IN THIS SPECIAL ISSUE
As the previous section has explained, athreshold issue in many labor law systems
is whether workers are to be categorized as“employees,” and covered by the labor law
system, or as independent contractors, to be
regulated by the general commercial law.
   Across the globe, countries have been
struggling to address health and safety
challenges posed by platform work within thecontext of their national or provincial/statelabor law systems. This special issue reports on
three examples.
   Eric Tucker provides a preliminary
assessment of the problems platform work
presents for the WHS regulatory regime in
Ontario, Canada. After a brief discussion of thestructure and typologies of platform work, thearticle reviews the limited available data on theincidence of platform work in Canada and thesparse literature on the WHS challenges related
to, and arising from, platform work. Tucker
notes that work performed in the platform
environment is not usually different from work
carried out in more traditional settings, but thatthe platform environment often exacerbates
those risks, for example by increasing stressand providing incentives for long hours and theEditors’ Introduction: Work Health and Safety Regulation and Digital Labor Platforms

intensification of work. He also reminds us thatmuch platform work is lower skilled and highly
controlled, which is of great significance fordebates about regulatory protection. He makes
the important point that, to properly understandthe hazards arising from platform work,
researchers need to disaggregate the WHS
hazard created or exacerbated by platformwork from hazards generally associated withthe type of tasks performed. Amongst theadditional risks arising from platform work
are “epistemic risks” resulting from the lack oftransparency in algorithmic controls, leaving
workers uncertain about the rules governing
their work, and thus increasing their anxiety
and undermining “their sense of agency.”
Tucker also observes that the legal environment
exacerbates WHS hazards experienced by
platform workers to the extent that it disrupts
and leads to uncertainty about the protection
afforded by WHS regulation. Focusing on theapplication of Ontario’s WHS law to platform
work, he highlights many “ambiguities” inlegal concepts and their application to platform
work, such as the meaning of a “workplace,”and “absences” which are gaps in regulations,such as inadequate provisions for mobile workor for psychosocial hazards. Tucker illustrates
the concerns by drawing on two scenarios: theplatform business as rentier that merely sells
a technology—an intermediation service—
to enable independent contractor platformworkers to connect with platform clients whoseek their services; and the platform owner or
operator as an employer who hires workers. He
shows that in the platform business as rentier
scenario, apart from platform work performed
on a client’s or employer’s premises, platformworkers have an obligation to ensure theirown health and safety and might have the law

23

enforced against them if they fail to do so,and even then, the WHS regulations generally
don’t address the kinds of work that they
perform. While treating the platform businessas employer would reduce ambiguities inapplication of WHS law, much more is neededto address the gaps in regulating the WHS risks
faced by platform workers. Tucker canvasses
possible reforms, including legislation
introduced in Ontario at the time of writing
to provide platform workers with some basic
rights, but concludes that more fundamental
reforms are needed to address the ambiguities
and absences.
   Takenori Mishiba, Kotaro Kurashige andShoko Nakazawa analyze the way in which
Japanese law has sought to regulate the healthand safety of platform workers. Japanese laborlaws are generally “soft laws,” and the legal
system surrounding platform work is diverse,
flexible, and ultimately complex, and, in theview of the authors, deficient. They showthat in the Japanese system a patchwork oflaws, each with its own rationale, seeks toregulate the issues and supervise the behaviors
of business operators, mediated by factors,
such as the confidence in business operators
by the workers and consumers, the public
reputation of the organization, the conscienceof the business operator, tax exemptions on
profit distribution, and the market, which arevery specific to Japan. They conclude thatthe combined scope and interaction of the
major individual labor laws do not adequately
address the health and safety issues arisingfrom platform work, even though there is
scope for flexible interpretation of the coverageof these laws. For example, the Industrial
Safety and Health Act includes provisions
imposing liability on organizations creating

24

Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

health and safety risks for workers, but theseprovisions do not protect all kinds of platformwork. The Home Work Act imposes various
health and safety duties on work providers toprotect household-based handcraft industry
workers, but it is old-fashioned and not
applicable to modern gig workers who often
process data and build systems. The principleof risk creator management liability in the
Civil Safety Consideration Obligations also
applies to platform work, as long as there is a
special social relationship, such as a commandand order relationship, between the platformbusiness and the platform workers. Separately,in economic law, the Small and Medium-Sized
Enterprise Cooperative Act offers the legal
basis for sole proprietors to engage in businessin a cooperative manner based on the spirit ofmutual support, and a legal basis for negotiation
with client companies, but it is hardly utilized.
Mishiba, Kurashige and Nakazawa showthat while direct regulation is sparse, when
faced with a serious circumvention of thelaw, the courts will grasp the intent of theexisting laws and aim to provide relief byflexible interpretation, such as imposing theobligation to ensure health and safety. These
judicial initiatives might motivate legislativeintervention. They suggest that fundamental
measures to be imposed on platform businesses
in future lawmaking will be risk assessment
and the provision of assessment results tothe platform workers, as well as good-faith
response to collective bargaining. They alsosuggest that there should be national surveysof the general risks associated with platform
work, and measures to provide health andsafety information to platform businesses andplatform workers. Also, they suggest that there
is a need for a scheme where if a cooperativethat is protected by the Small and MediumSized Enterprises Cooperative Act appoints anindustrial physician to interview a member (gigworker), the consignor/business operator canmake efforts to improve the working conditions
if such a physician deems it necessary.
   Elizabeth Bluff, Richard Johnstone andMichael Quinlan examine how the healthand safety of platform workers is protected
through legal regulation in Australia. They
analyze the contemporary approach of theAustralian Work Health and Safety (WHS)
Acts, arguing that they are potentially able toprotect platform workers because they impose
legal duties on all persons who conduct abusiness or undertaking (including platformbusinesses), and the duties protect all persons
who carry out work. They also enable WHS
inspectorates to enforce WHS issues in work
for labor platforms and envisage a role forworker health and safety representatives which
could help strengthen the potential protections
for platform workers. However, using thecase of food delivery work, Bluff, Johnstone
and Quinlan demonstrate critical deficiencies
in the application of Australian WHS laws—
protracted negotiations to elect worker healthand safety representatives, and weak regulator
enforcement and guidance focusing on safe
worker practices and equipment, rather thanplatform businesses’ systems and algorithms
that drive risky behavior in response to timeand economic pressures. They argue that
there is a strong case to be made for optimal
application and strategic enforcement of WHS
regulation in relation to digital labor platforms,
making greater use of general deterrence
and focusing inspection and enforcement on
the platform businesses that control work
arrangements and the allocation of work. They

Editors’ Introduction: Work Health and Safety Regulation and Digital Labor Platforms

further argue that effective regulation of healthand safety in platform work will also require a
broader refashioning of labor regulation, which
would entail the closer integration of WHS
laws with those for workers’ compensationand industrial relations matters (including
minimum wages, maximum hours, and worker
representation), to ensure attention to thefundamental drivers of risk in platform work (aswith supply chain regulation and “safe rates”
regimes). They conclude with recent Australiandevelopments aimed at enhancing platformworkers’ rights and entitlements (including
health and safety), and variously addressing
transparency in relation to how platform work
is monitored, controlled, and remunerated,
platform workers’ opportunity to contributeto a collective voice, and access to dispute
resolution before an independent governmentbody.
   Other initiatives to address health andsafety challenges posed by platform work arecross-national in their scope. This special issue
reports on two such examples.
   Aude Cefaliello examines recent EU
initiatives to regulate platform work: a draft
Directive on improving working conditions in
platform work and an Artificial Intelligence
Act. She argues that rather than being new,platform work extends pre-existing trends:
greater control and surveillance, greater job
precarity, and greater worker isolation andworkplace fragmentation. What is distinctive
about platform work, she argues, is its uniqueusage of algorithmic management software
to constantly monitor, organize and evaluate
workers. This has a major impact on boththe physical and mental health of workers.
Cefaliello shows that the risks that platformworkers are exposed to are layered: there25

are traditional risks and the risks due to theuse of artificial intelligence at work. Even if
these risks are preventable, she argues thatthe widespread misclassification of platformworkers as independent contractors meansthat workers assume the legal responsibility
to prevent the risks even though they do nothave the organizational means and power todo so. She also argues that even if platformworkers were protected by WHS legislation,
the difficulties they face in electing healthand safety representatives, and the problems
that government inspectors face in locatingthem because of the disparate and temporary
locations at which they work, mean that it
would be difficult for their protections to
be enforced. Cefaliello notes that researchsuggests that about half of EU platformworkers are employees (either in open-ended or
fixed-term contracts) in their “offline” jobs. She
shows that the level of protection that platformworkers performing two jobs receive depends
on whether they are classified as “employees”
in one or both jobs and whether the work
they do in these jobs is the same (in whichcase in their platform work they will benefit
from their WHS knowledge as a non-platform
employee) or completely different. Cefaliellothen carefully examines whether the recent EU
draft Directive to improve working conditionsof platform work adequately address a minima
the challenges raised by the various formsof platform work, or if it includes provisions
which will effectively empower and protect
platform workers. The key features of the draft
Directive are that: (i) it proposes a presumptionthat platform workers are “employees” if two
indicators of employment status are satisfied;(ii) it requires platforms to assess the healthand safety risks in algorithmic management

26

Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

systems and introduce preventive measures toaddress identified risks; and (iii) its approach
to transparency, remedies, and enforcement.
The draft Directive does not, however,address the inadequate protection of workers
against psychosocial risks in the existing EU
Directives, and there are also concerns thatthe prevention measures it requires might belimited to controlling the performance of work,
rather than reforming the algorithm. Cefalielloexplains that the draft Directive on platformwork intends to complement the Artificial
Intelligence Act provisions. This Act is productsafety legislation which bans AI systems
creating unacceptable risks and introduces aprocess of risk assessment and the introductionof safeguards before AI systems are placed on
the market, put into service, and used.
   As we noted earlier in this Editors’
Introduction, a major challenge for labor
regulators is to address the complex issues
relating to working time in the platform
economy. Cristina Inversi considers theregulation of working time as an essential
element of protecting platform workers’ healthand safety, examining developments in the EU
and in the UK. She establishes the inadequacyof standard setting on this issue, especiallyfor work organized through algorithmic
management, and characterized by precarity,schedule unpredictability, “time famine” and“time squeeze,” coupled with surveillance andperformance monitoring. She also illustrates
health, safety, and work life balance concerns
inherent in platform work, drawing on her
qualitative research with food delivery workers.
Inversi then critically analyzes current andproposed legal frameworks in the EU and UK
for protecting platform workers’ health, safety,
and working time. She argues (as have othersin this special issue) that the application of
WHS regulation to platform work is less clear
or precluded completely, but she cites specificlegal judgements counterbalancing legislative
inaction (a UK case protecting platformworkers during the COVID-19 pandemic andan Italian case condemning severe exploitationin platform food delivery services). She
concludes that the EU Commission’s proposed
directive to extend protections to some
platform workers is a positive development,
but it is a missed opportunity to universalize
health and safety protections to all platformworkers.
6. CONCLUSION
We have argued in this Editors’ Introduction
that, to a significant extent, the work
arrangements arising in platform work arefundamentally not much different from thosefound in work arrangements in the nineteenth
and early twentieth centuries, many of whichhave been revived in the past 30 years or so.
In particular, much platform work essentiallyamounts to app-enabled subcontracting andthereby includes exploitive mechanisms
associated with these arrangements. The key
difference is the work allocation, monitoring,
control, and surveillance enabled by digitallabor platforms and algorithms embedded inthem, thereby facilitating a historical shift inwork. In the late nineteenth and early twentiethcentury subcontracting arrangements becameless favored because Taylorist and Fordist ideasof closely supervised employees were moresuited to the mass-production technologies thenbeing developed, rather than more fragmented
and less easily supervised work arrangements
like subcontracting. Egregious exploitation
associated with subcontracting also made it a

Editors’ Introduction: Work Health and Safety Regulation and Digital Labor Platforms

target of union, community campaigns, andregulation. What digital labor platforms haveenabled is the capacity to subcontract workin a highly controlled and monitored way,
both overcoming some of the “limitations”
of subcontracting, and also evading a web ofprotective regulation built on the employeremployee relationship. The result has been
the re-emergence of what in the nineteenth
century has been labelled “sweated labor,”that is, people employed at very low or highly
irregular rates of remuneration for long hours.
   Some of the authors in this special issue
have argued that many of the hazards that arisein platform work are hazards that are found in
the traditional forms of that work, though inmany instances the hazards are exacerbated by
platform arrangements. We have also argued
that other factors exacerbate traditional hazards
that also arise from platform work, not least
the precariousness of platform work, and thepre-existing vulnerabilities of the workers
who find themselves engaging in it. The
articles in this special issue provide examples
of how existing WHS regulatory systems are
struggling to accommodate themselves to thework arrangements and dynamics of platform
work; and examples of new approaches toregulation that have the potential to protect
workers. They all suggest, however, that issues
that still have to be addressed are payment
and scheduling systems that pressure workers
into working too quickly or taking short cuts,
and which ultimately exacerbate the healthand safety risks that they face at work. They
also suggest that WHS regulators will need toprovide more suitable and detailed guidance
to digital labor platforms, and to workers,
to enable them to address the full array of
hazards found in platform work, as well27

as the factors that underpin these hazards.
Regulators will also need to develop new
inspection and enforcement strategies to ensurethat platforms rethink the way in which they
organize platform work to better ensure that it
is safe and without risk to the health of those
who carry out the work. Further, as several
contributors observe, as with precarious work
more generally, effective protection of platformworkers’ health, safety, and well-being cannot
be achieved through expanding the coverageof conventional WHS legislation. Rather,
these workers require access to workers’
compensation, rights to unionize and bargain
collectively, and minimum labor standards.
Very low pay can of itself be incompatible
with healthy and safe work, especially whenassociated with incentive-based payment
regimes that encourage long hours, rushing,and other forms of risk-taking. In this regard,
it is worth noting the centrality of supply chain
regulation and the “safe rates” concept ofsetting effective minimum wage rates to protect
platform workers and others doing precarious
work that has recently secured recognition
within the International Labour Organization(ILO). The ILO has also made WHS a corelabor standard. These moves reflect a wider
recognition of the need to refashion regulation
to more accurately address the “new” world ofwork.
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McDonald, Paula, Penny Williams, Andrew Stewart,
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Moore, Phoebe. 2019. OSH and the Future of Work:
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Mooren, Lori, Ann Williamson, and Raphael Grzebieta.
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Piasna, Agnieszka, Wouter Zwysen, and Jan Drahokoupil.
2022. “The Platform Economy in Europe: Resultsfrom the Second ETUI Internet and Platform
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Premji, Stephanie, Katherine Lippel, and Karen Messing.
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Quinlan, Michael. 2021. “Editorial: COVID-19,
Health and Vulnerable Societies.” Annals of Work
Exposure and Health 65, no. 3: 239－243. https://doi.org/10.1093/annweh/wxaa127.
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Rawling, Michael and Joellen Riley Munton. 2021.
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mwab016.

Original Article

J Work Health Saf Regul 2023; 1; 30‒53

Ambiguities and Absences:
Occupational Health and Safety Regulationof Platform-Mediated Work in Ontario, Canada
Eric TUCKER*
Abstract: Platform-mediated work, whether location-based, as in the case of Uber, or cloudbased, as in the case of Amazon Mechanical Turk, poses severe challenges to effective
occupational health and safety (OHS) regulation. While the work performed in the platform
environment is not usually very different from work performed in more traditional employment
settings, the platform environment often exacerbates those risks by, for example, increasingstress and incentivizing long hours and work intensification. Regulating these hazards is
impeded by ambiguities surrounding the legal relationship between platform operators andplatform workers that make it uncertain whether the OHS regime even applies. As well theregime itself was not designed to address the conditions of platform work or many of the risks
and exacerbating factors it produces. Drawing on existing studies, this article explores the
structure of platform-mediated work, examines its incidence in Ontario, Canada, summarizes
its associated OHS risks, and provides a detailed analysis of the obstacles to effective
regulation under Ontario’s OHS regime.
Key words: O ccupational Health and Safety, Regulation, Canada, Ontario, Gig Work,
Platform-mediated Work, Cloud Work, Uber

1. INTRODUCTION
Platform-mediated work (PMW), meaning
work that is provided through or mediatedby online platforms, creates challenges
for protective labor and employment laws
built on the foundation of a contract of
employment. Platform owners constructthemselves as technology companies whichsell or rent a product or service to other riskbearing entrepreneurs who operate their own
businesses from their own locations. According
to this construction, platform owners do nothire platform workers either as employees
or even as independent contractors, and thus

these workers’ economic well-being or healthand safety. Responsibility for these matters
is shifted entirely onto the shoulders of those
performing the work.
   While avoiding protective labor andemployment laws is not the only reason
why businesses adopt the platform model,
undoubtedly it is one of its attractions. Indeed,put in historical context, the rise of PMW canbe understood in part as an effort to return to amarket-centered approach to labor regulationthat began to be overladen with protective
laws over two centuries ago in response to
the horrific conditions and worker discontent

are relieved of any responsibility that thelaw imposes on employers to have regard for

it produced. The early English factory acts
required factory owners to take some measures* Emeritus Professor, Osgoode Hall Law School, York University, Canada. Email: etucker@yorku.ca.

OHS and Platform Work in Ontario

to protect the health and safety of women andchildren otherwise subject to the tender merciesof the labor market. The subject of this article
might be summarized as the extent to which
platform owners in Ontario have succeededin avoiding responsibility for the health andsafety of platform workers, leaving them tothose tender mercies.
   While platform owners present themselves
as technology companies whose relations withplatform workers are outside the ambit ofprotective labor and employment law, including
occupational health and safety, their assertions
about the legal character of this relationshipare being challenged. However, as long as thelegal status of platform workers is unresolved,
the resulting ambiguity itself undermines theefficacy of the law (Johnstone and Quinlan2006). But that is not all. Even if platformworkers are successful in claiming coverageby occupational health and safety (OHS) acts,
there remain many ambiguities and absencesin the law that would undermine its efficacy inthe platform environment. These ambiguities
and absences will be discussed in moredetail in the body of the article, but by way
of example much of Ontario’s Occupational
Health and Safety Act (OHSA) 1) is written
on the assumption that workers perform theirwork on premises under their employers’ directcontrol. What is the meaning of a “workplace”
in the context of the platform environmentand how does its interpretation affect the legal
obligations of platform owners even if they arecovered by the act?
   In addition to ambiguities in the law,
there are also absences. For example, OHS

31

law in Ontario often poorly regulates thekinds of work most commonly performedin the platform environment even when it
is performed outside that environment. For
example, the OHSA does not have regulations
designed to protect mobile workers, like taxi
drivers and food delivery workers, and does
little to address psychosocial hazards, whether
the work is platform mediated or not (Lippel
and Walters 2019; Popple et al. 2021). Put
simply, the combination of ambiguities andabsences creates formidable challenges tomaking OHS regulation effective for PMW.
Moreover, there is a paucity of research on
OHS in the context of PMW, which adds to thedifficulty of devising strategies to identify andaddress regulatory gaps (European Agency for
Safety & Health at Work [EASHW] 2021).
   This article makes a modest contribution
to filling this gap by providing a preliminary
assessment of the problems PMW presents for
the OHS regime in Ontario, Canada.2) It begins
with a brief discussion of the structure andtypologies of PMW, followed by a review ofthe limited data available on the incidence of
PMW in Canada and of the sparse literature on
the OHS challenges related to and arising from
PMW. The main part of the article provides an
exploratory legal analysis of the applicationof Ontario’s OHS law in the platform context
under two scenarios: 1) the platform owner/
operator as rentier (Christophers 2020) who
merely provides an intermediation service
used by buyers and sellers of labor service and2) the platform owner/operator as employer
who hires workers. As I argue, while treating
platform owners/operators as employers for the1) Occupational Health and Safety Act, R.S.O 1990, c. O.1.
2) Under the Canadian constitution, OHS regulation is primarily a matter of provincial and territorial jurisdiction.
Ontario is Canada’s most populous province and its OHS laws are generally representative of those in Canada.

32

Eric TUCKER

purposes of OHS regulation would improve
its efficacy by reducing some ambiguities,
much more would need to be done to address
remaining ambiguities and absences. In
the final part, I consider possible reforms,
including legislation enacted in Ontario at thetime of writing (but not declared in force) to
provide digital platform workers with somebasic rights, but argue that more fundamental
reforms are needed.
2. PLATFORM-MEDIATED WORK:STRUCTURE AND TYPOLOGY
On its surface, PMW is constructed as if theplatform owner provides an intermediation
service that enables the platform worker
to connect with platform clients seeking topurchase their services. Understood in this way,
the platform owner merely rents an asset to theplatform worker, who then enters into contracts
for service with clients. While there are avariety of structures (Howcroft and BergvallKåreborn 2019; Tucker 2020), the Uber model,
illustrated in Figure 1 is arguably the mostcommon.
Money
less
Rent
($X-R)

Platform Worker(Uber Driver)

Platform
Owner(Uber)
Service

Money
($X)

Client(Uber Passenger)

Figure 1 Formal Structure of Platform-MediatedWork   I f w e a c c e p t t h e p l a t f o r m ’s l e g a lconstruction of the relations between theparties, the worker is not the platform owner’s
employee, nor has the platform ownercontracted for the service of the worker. Rather,

it is the client who has contracted for the labor
service (and typically pays the worker throughthe platform). Of course, this characterization
is often sharply contested by platform workers,
unions, and worker advocacy groups who claimthat the platform owner is the legal employerof the worker. For now, however, we can putthat issue aside and turn to typologies of PMW.
   There are many varieties of PMW thatcan be mapped along the dimensions of theformat or location of labor provision, skill
level, and level of control, among others.
The location of labor provision differentiates
between work that is location based, or what I
previously labelled “groundwork,” and workthat is performed online, which I previously
labelled “cloud work” but which is now morecommonly called “online work” (Tucker2020). Skill level and control are fairly selfexplanatory, and while we do not haveempirical data on the most common types of
PMW, it is generally accepted that a significant
proportion of PMW is lower skilled and highly
controlled, 3) which of course is extremely
important for the purposes of protective laborand employment law generally and for OHS
regulation in particular. Elsewhere I haveemphasized the importance of location of labor
provision in thinking about worker resistancebut as we shall see it is also important in thecontext of OHS regulation (Tucker 2020; Woodand Lehdonvirta 2021).
3. THE INCIDENCE OF PMW IN
CANADA
There is remarkably little research on theincidence of PMW in Canada. Indeed, it is fairto conclude that there are no studies designed

3) Research on the distribution of PMW by skill level is surprisingly thin. For work that provides some evidence, see
Pesole et al. (2018, 36–44) and De Groen et al. (2018).

33

OHS and Platform Work in Ontario

to specifically capture the extent or intensityof Canadian workers in PMW. What wehave instead are a few studies that look more
broadly at gig work or the “sharing” economy,
or more narrowly at online work.
  Gig work is defined as short-term work
for multiple entities. As such, it includes PMW
but also a much broader range of informal andtemporary work arrangements. A recent study
found that the share of gig workers in Canadarose from 5.5 percent in 2005 to 8.2 percent in2016 (Jeon, Liu, and Ostovsky 2022). However,the share of gig work that is platform mediatedis unknown, although the authors suggest thatthe growth of gig work after 2012/2013 may berelated to the proliferation of online platforms.
Another study of participation in “informal”
work, broadly defined to include everythingfrom babysitting to selling goods online to
PMW, found that 30 percent of respondents
to a 2018 survey had engaged in one or more
forms of it, but again there was no separate
measurement of PMW (Kostyshyna and Luu2019). Finally, a 2016 study of the so-called“sharing economy” found that 9 percent ofrespondents in the Greater Toronto Area hadparticipated in it. However, the survey did not
differentiate between providing labor service andhome sharing online (Block and Hennessy 2017).
   While the above studies are overly broadfor our purposes, in the sense that they include
both platform-mediated sales of labor andnon-labor assets, there is one study that is
too narrow. The Online Labour Observatory4)
publishes the Online Labour Index 2020
(Stephany et al. 2020) that measures online
gig work only. Using a measure of projects
and tasks posted by employers on five major

English-language platforms starting in May
2016, it shows that Canadian employers
increased their use of online labor by 11.1
percent as of February 21, 2022. However, theindex does not show the country in which theonline work was performed, and it does not
capture platform mediated location-based or
groundwork.
   In sum, not only do we lack data on
the percentage of the Canadian workforce
participating in PMW, but we also know little
about the intensity of their work, meaning theextent to which workers are performing PMW
as their main job or as a supplement to otherincome earning activities; nor do we have dataon the distribution of PMW between online
and location-based work generally or on thekinds of work performed in each category.
The lack of data makes it very difficult toassess the impact of the presumed growth of
PMW on the health and safety of Canadianworkers generally or whether this growth of
PMW is occurring in sectors historically morehazardous, such as transportation. In the nextpart, we turn to the existing literature on the
OHS hazards of PMW before returning to thequestion of the problems this structure creates
for the effective regulation of occupational
hazards under Ontario OHS law.
4. THE OHS HAZARDS OF PMW
Given the variety of work performed throughplatforms and the absence of data about thekinds of platform work being performed
by Canadian workers, it is difficult to know
where to focus, especially when work thatis performed through platforms is or was
historically done through other contract4) Online Labour Observatory: http://onlinelabourobservatory.org/.

34

arrangements, such as employment or“independent” contracting. Transportation
services such as Uber are a prime example.5) As
such, it is fair to say that the work performed
through platforms is similar to work performedin employment or in contracting arrangements
outside of platforms and shares many of thesame OHS risks (Samant 2019). We therefore
need to disaggregate the OHS hazards createdor exacerbated by the platform-mediatedcontext from the hazards generally associatedwith the type of work being performed.6) Thisis a challenging task, especially given thelimited research on safety and health in PMW
in general (EASHW 2021, 1).
   One feature of PMW that exacerbates
OHS hazards is that it is less well-regulated
than work performed in the context of
employment or even, arguably, through direct
independent contracting. We will returnto this issue in the next part of this article.
Here the focus is on features of the platform
environment that exacerbate the physical andpsychosocial hazards that exist for workers
performing equivalent tasks in employment
or outside the platform environment. It is also
important to remember that the line between
physical and psychosocial hazards often
cannot be sharply drawn because the mostcommon exacerbating factors identified in theliterature relate to work intensification andsocial isolation, which have both physical andpsychosocial dimensions (Bérastégui 2021;
Bérastégui and Garben 2021).
   Tr a n s p o r t a t i o n a n d d e l i v e r y w o r k
are perhaps the two most studied formsof platform-mediated groundwork, both

Eric TUCKER

characterized by high levels of algorithmic
control and isolation (De Stefano 2019). Whilethese are not unique to PMW, the totality ofcontrol and isolation, in conjunction with thepervasiveness of customer ratings, exacerbate
the incentives to violate traffic laws, usephones while driving or riding, or otherwise
behave in ways that increase the risk of injury(Bluff, Johnstone, and Quinlan this special
issue; Christie and Ward 2018; Governmentof New South Wales 2020; Lachapelle et al.
2021; MacEachen et al. 2019). In addition toincreasing work intensity, workers also have an
incentive to make themselves available when
demand is high, which may result in long hours
stretched over the course of a day resulting
in fatigue, which has negative physical andpsychosocial consequences (Bartel et al. 2019;
Christie and Ward 2019; EASHW 2022a).
An additional feature of platform-mediateddelivery work is that algorithmic controls lacktransparency, leaving workers uncertain about
the rules governing their work, which itself
produces anxiety and undermines their sense ofagency. Gregory (2021) has characterized theseas “epistemic risks” that should be recognized
for their negative impact on worker’s healthand safety.
   Studies of the OHS hazards of platformmediated groundwork outside the delivery
context are rare, but a study of platform
mediated-handiwork performed in people’s
homes reaches similar conclusions about
the ways in which the platform environment
aggravates hazards experienced in a nonplatform environment (EASHW 2022b).
   Online platform-mediated work can5) For a discussion of the history of the evolving structure of taxi work in Toronto, see Tucker (2018).
6) For an overview of these hazards, see EASHW (2021, ch. 3.1). For Canadian studies, see Bartel et al. (2019) and
Reid-Musson et al. (2020).

OHS and Platform Work in Ontario

be varied but a significant component of it
consists of low-skill microtasks or crowdwork
performed by a globalized workforce (Berget al. 2018). This work largely involves deskbased tasks using a computer and presents
hazards similar to those experienced by workers
performing similar tasks outside the platform
context. These include poor ergonomic
arrangements that can lead to musculoskeletal
disorders, visual strain, and adverse healthconsequences associated with sedentary
work, including cardiovascular disease anddiabetes.7) However, the platform environment
exacerbates these risks and introduces newone. As in groundwork, algorithmic controls,
including platform-based rating and ranking
systems, as well as an oversupply of globalizedlabor, create a highly stressful environment
resulting from work intensification, long,irregular, and unsocial hours, a lack of job andincome security, epistemic risks arising fromthe black box of algorithmic controls, and therisk of non-payment if the client rejects thework. Additionally, the work is commonly
performed in workers’ homes, without
ergonomic workspaces and with equipment,
and where there is likely to be significant worklife conflict, particularly for women who aredisproportionately responsible for caregiving.
To cope, women online workers often work
during the night, putting them at greaterrisk for physical and psychosocial injuries.
Moreover, the work is performed in isolation,
limiting access to co-worker and social support(EASHW 2022c; Gray and Suri 2019, 67–93;
Moore 2018; Wood et al. 2019).

35

5. REGULATORY CHALLENGES
The very brief discussion above highlights
some of the principal ways the platform context
exacerbates the physical and psychosocial
hazards of work that are also present outsideof it. The legal environment is another way
in which the platform context exacerbates
the OHS hazards experienced by platformworkers by disrupting or making uncertain theoperation of OHS regulation. In addition, we
also consider ways in which the OHS regime,
even if it applies, inadequately regulates thekinds of work most commonly performed in aplatform environment.
   I n t h i n k i n g a b o u t t h e r e g u l a t o r ychallenges, it is helpful to consider two
scenarios. The first is the platform-as-rentier
based on the legal structure of PMW asserted
by the platform owner described earlier inpart 2, according to which the platform isa technology purchased by independent
contractors as a tool for their business. The
second is the platform as employer of theworkers who secure work through it. Thisapproach is necessary because the status ofplatform workers in Ontario for the purposes of
OHS regulation is unresolved.
A. The Platform Owner as Rentier
Most Canadian protective labor andemployment law is built on the platform of
the contract of employment. That is, the law
imposes duties on employers that are owed
exclusively to employees. Workers who are
not in an employment relation are outside theprotective ambit of the law.8) Ontario’s OHSA
is different in two significant ways. First, duties7) For a pioneering study of these hazards, see Stellman and Henifin (1984).
8) For example, see the Employment Standards Act (ESA), S.O. 2000, c. 41. It should be noted that this Act, like many
protective employment laws, imposes personal liability on the directors of the corporate employer in certain situations.

36

are owed to workers, not just employees andsecond, the Act applies to multiple duty holders
who are responsible in different ways for theprotection of workers. The implications ofthese differences are fleshed out below.
   Under the OHSA a worker is defined
as a person “who performs work or supplies
services for monetary compensation” (section
1(1)). This section makes it clear that the Act
applies both to employees and to independent
contractors. 9) As a result, the coverage of
the OHSA is broader than other protective
employment laws and so the significanceof being classified as an employee is much
reduced. Correspondingly, an employer isdefined as a person “who employs one or moreworkers or contracts for the services of one
or more workers and includes a contractor or
subcontractor who performs work or supplies
services and a contractor or subcontractor
who undertakes with an owner, constructor, or
contractor or subcontractor to perform work or
supply services” (section 1(1)). Leaving aside
the nuances of this definition for the moment,
it is clear that a person who hires employees
or who hires persons to perform services formonetary compensation is an employer for the
purposes of the OHSA.
   Second, unlike most Canadian protective
employment law, which only imposes legal
obligations on employers, the OHSA imposes
legal duties to protect the health and safetyof workers on a number of actors, including
employers (sections 25 & 26), supervisors(section 27), owners (section 29), constructors(section 23), licensees (section 24), andEric TUCKER

suppliers (section 31). The OHSA also
imposes duties on workers (section 28) andsome sections apply to self-employed persons(section 4).
   I f w e a c c e p t p l a t f o r m o w n e r s ’characterization of the platform’s legalarchitecture, the platform owner is not an“employer” of platform workers as the workers
are neither the platform’s employees, nor
are they hired to perform services for theplatform. Rather, the platform owner is arentier who sells an intermediation service fora fee. Platform owners are unlikely to haveobligations as “owners” under the OHSA since
an owner is defined as a person who owns,
leases, occupies, etc. lands or premises to be
used as a workplace and a “workplace” isdefined as “land, premises, location or thing at,upon, in or near which a worker works” (section
1(1)). Thus, while platform owners may havephysical premises where employees directly
hired by them perform work, platform workers
do not work at a workplace owned by platform.
They may never step foot onto or work nearlands or premises owned by the platform
owner in order to perform work. Moreover,it seems quite unlikely that an app would beconsidered a “location” or “thing” on which aworker works. It is also unlikely that platform
owners have duties as “suppliers.” First, it
would be difficult to characterize the platform
owner as a supplier, which is defined in the
OHSA as a person who “supplies any machine,
device, tool or equipment … for use in or
about a workplace” (section 31(1)). But even
if it could be argued that a platform is a device

Platform owners, like Uber, have fought extended battles to resist the classification of platform workers as employees.
The extent of Uber’s global efforts was recently revealed in a leaked trove of confidential documents (Davies et al.
2022).
9) R. v Wyssen, 1992 CanLII 7598 (ONCA).

37

OHS and Platform Work in Ontario

used in a workplace, the supplier’s obligations
are to ensure that the tool, equipment, etc. isin good condition and complies with the Act
and regulations (section 31(1)(a)(b)). The
likelihood of successfully arguing that theplatform itself is not in good condition and fails
to comply with the OHSA and its regulations
seems remote.
   What, then, about the clients? Do they
have duties under OHSA to the platformworkers who, under the platform-as-rentier
scenario, they hire to provide services? The
answer to that question is, “it depends.” If
the services are to be provided at the client’s
premises, then the client who hires a platformworker could owe duties under the OHSA
both as an “owner” of a premises used as aworkplace and as an “employer” of a platformworker. First, considering the client as owner,
there is an important exception in the case of
homeowners. Section 3 of the Act provides that
the Act does not apply to work performed by“a servant” of the owner in or about a private
residence or the lands used in connection withthat residence. There is no definition of theterm “servant” in the Act, but servant is usuallyconsidered by courts to mean employee. 10)
That being the case, it is arguable that thework-in-the-home exception only applies to
employees, not to workers under a contract forservices, but there is no case law so holding andthe Ontario OHSA Policy Manual (Governmentof Ontario 2021) does not draw that distinction.
However, if work is being performed at theclient’s business premises, then the client
clearly has duties as the employer of a worker(sections 25 & 26), including a general duty
to take every precaution reasonable in thecircumstances for the protection of the worker.
The client would also have duties as an owner(section 29), which require the owner to ensurethat the workplace complies with applicableregulations and that prescribed facilities areprovided and maintained (section 29). As
well, if the workplace is a construction site,then the client would have the obligations ofa constructor (section 23), which include aduty to comply with the OHSA and applicable
construction regulations, to ensure that every
worker performing work on the projectcomplies with the Act and regulations, and toprotect the health and safety of workers on the
project.
   On the other hand, a person who hires adriver to take them from point A to point B or
to deliver food to their home would certainly
not fit within the category of an owner under
the OHSA, since the work is not being
performed on their premises. Could they be an
employer and, if so, what obligations would
they have? There is no case law that clarifies
this question. It is exceedingly unlikely that theplatform worker is an employee of the clientin this scenario. The most common test for
determining employee status in Canada is themulti-factor test established by the Supreme
Court of Canada in Sagaz Industries:11)
The central question is whether the person
who has been engaged to perform the services
is performing them as a person in business on
his own account. In making this determination,
the level of control the employer has over theworker’s activities will always be a factor.
However, other factors to consider include
whether the worker provides his or her own
equipment, whether the worker hires his or her10) Kearney v Oakes, (1890) 18 SCR 148, 173.
11) 6 71122 Ontario Ltd. v Sagaz Industries Canada Inc. [2001] 2 S.C.R. 983, paras. 47–48.

38

Eric TUCKER

own helpers, the degree of financial risk takenby the worker, the degree of responsibility
for investment and management held by theworker, and the worker’s opportunity forprofit in the performance of his or her tasks.
It bears repeating that the above factors
constitute a non-exhaustive list, and there isno set formula as to their application. The
relative weight of each will depend on theparticular facts and circumstances of the case.

Under this test, a person who drives a taxi
does not become the passenger’s employee forthe duration of the trip, nor does the persondelivering food become the employee of theclient who ordered the food during the time ofdelivery. The platform context does not change
this arrangement.
   However, it is quite possible that the client
could be the employer of the driver or delivery
worker qua independent contractor, but it isdoubtful this would result in any meaningful
OHS duties. What duties could arise from sucha transient relationship? None of the prescribed
duties in sections 25 and 26 of the OHSA are
likely to impose a significant obligation on theclient. For example, the general duty of theemployer to take every precaution reasonable
in the circumstances likely imposes no duties
because there are unlikely to be any reasonableprecautions that the passenger or personordering food should take in the circumstances,other than perhaps not to physically interferewith the driver or to pressure them to drive
unsafely. The client does not provide any
equipment and is not responsible for providing
information, instruction, or supervision toa worker to protect the worker’s health andsafety.
  Finally, if we turn to online services,
it is even clearer that the online worker is
not the employee of the client requesting
services. However, the client could potentially
be found to be the employer of the online
platform worker qua independent contractor,
but no OHSA duties may flow from thischaracterization. There are three reasons forthis. First, there is the question of the locationof the platform worker and the client. If
the client is located inside Ontario, but theworker outside, and the worker has no otherconnection to the province, then it is unlikely
the OHSA applies to that relationship. 12)
Alternatively, if the worker is located in theprovince but the client is located outside, even
if in theory Ontario law applied, there is nopractical way it can be enforced. Second, mostonline PMW is performed in the worker’s
home where the Act does not apply. Finally,
even assuming provincial law applied andcould be enforced, few legislated employer
duties would be applicable. The client provides
no equipment or materials, and no protective
devices are required for online work. Whatremains is the duty to take all precautions
reasonable in the circumstances for the healthand safety of the worker, but, as we shall see
below, OHS regulation in Ontario, and mostof Canada, imposes few if any specific duties
on employers to protect workers against thehazards associated with online work.
   Finally, there is almost no possibility thatthe client or requester of an online worker

12) The OHSA does not refer to the location where work is performed, but it can be safely assumed that it only applies
to work performed in the province or which is a continuation of that work outside the province. This is made explicitin the recently enacted Digital Platform Workers’ Right Act, 2022, S.O. 2022, c. 7, as it is in the Workplace Safety
and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 13(3).

OHS and Platform Work in Ontario

would be found to be an “owner” under the
OHSA, since the work is not being performedon the client’s premises.
   Another way that the OHSA can apply toplatform workers, again accepting the platform
owner-as-rentier scenario, is through section
4, which provides that specified sections of
the Act “apply with necessary modifications
to a self-employed person.” In other words,
self-employed persons are obliged to comply
with provisions of the Act that apply to them,but no meaningful obligations arise in theplatform environment. A platform worker, forexample, must comply with section 25(1),which requires the worker to use prescribedequipment, materials, and protective devices
and maintain them in good condition andto use them as prescribed. Other applicableprovisions relate to matters such as the use andhandling of hazardous materials, notification
obligations, and being subject to inspection andenforcement actions.
   Basically, then, apart from that slice of
platform work that is performed on a client’s or
employer’s premises, platform workers have aduty to look after their own health and safety
and are subject to inspection and enforcement
actions if they fail to do so in accordance withthe applicable sections of the OHSA and its
regulations (unless they are working fromhome where the Act does not apply). Apartfrom the obvious point that an OHS regulatory
regime should not be built on the foundationof making workers chiefly responsible
for their own safety without meaningful
OHS obligations on other duty holders,
the responsibilization approach is unlikely
to provide much protection: prescriptive

39

regulations for the most part do not address thekinds of work performed by platform workers
and there is little risk that platform workers
will be inspected. The exception is where
platform work is performed on a client’s or
employer’s premises, where there is a risk ofinspection and enforcement action being taken.
For example, a platform worker working on aclient’s construction site without a hard hat orsafety shoes might be subject to a small on-thespot fine, as would the immediate supervisor
for failing to ensure that workers were wearing
prescribed protective equipment (section 27(1))(Gray 2009).
B. The Platform Owner as Employer
The above discussion assumed the validity ofplatform owners’ claim that they are rentiers,
not employers, but whether they are employers
is a question of law or mixed law and fact
and the legal structure of PMW has been thesubject of multiple challenges. This is not theplace to review this litigation (De Stefano et al.
2021) but numerous courts and tribunals havefound that platform owners are the employersof platform workers, whether categorized asworkers, employees, dependent contractors,
or even contractors. For example, in Ontario,
Foodora delivery workers were held to be
dependent contractors for the purposes of theprovince’s collective bargaining statute and,
therefore, were employees entitled to bargain
collectively under the Act.13) Here we want toexamine the implications of treating platform
owners as employers of platform workers
for the purposes of OHS regulation, whether
they be employees, dependent contractors, or
independent contractors.

13) Canadian Union of Postal Workers v Foodora Inc. d.b.a. Foodora, 2020 CanLII 16750 (ON LRB), https://canlii.ca/
t/j5nj1, retrieved on March 18, 2022.

40(i) The External Responsibility System (ERS)
First, with regard to the so-called external
responsibility system that imposes andenforces duties on employers to protect thehealth and safety of their workers, platform
owners as employers would owe a general
duty to take every precaution reasonable in thecircumstances for the protection of the worker(section 25(2)(h)). However, it is unclear
what that duty might entail. In the context
of groundwork, such as ridesharing or fooddelivery, traditional dispatchers have escaped
scrutiny from OHS regulators, despite the factthat they have sometimes been found to be thedrivers’ employers for some purposes (ReidMusson et al. 2020; Tucker 2018). In part,
this is because there are no OHS regulations
specific to these industries that specify theemployers’ obligations, despite the fact that in2010 an expert report prepared for the Ontario
Ministry of Labour identified taxi driving as themost dangerous job in Canada and called upon
the Ministry to explore options for improved
OHS protection (Dean et al. 2010, 50). Rather,taxi regulations, including requirements
for driver training and vehicle safety, areprimarily established by municipal bylaws,
which platform owners, acting as regulatory
entrepreneurs, have weakened in recent years(Coiquaud and Morissette 2020; Reid-Musson
et al. 2020). As well, because groundworkers
provide their own equipment, platform owners
are relieved of any duty to provide or maintainequipment in a safe condition. At best,
platform owners may have a duty to require
their workers to use and maintain roadworthy
vehicles and other equipment, an obligationthat platform owners may already meet.
   There is also the question of whether
platforms, as employers, have obligations that

Eric TUCKER

are “workplace” based. As discussed above,
OHSA defines a workplace as a physicallocation or thing upon, in, or near which aworker works. Platform workers arguably neverwork on or near their employers’ workplace,unless a digital platform is a “thing.” If it isfound that platform operators do not have
workplaces, their obligations under the OHSA
would be severely limited, for both the ERS(discussed here) and the internal responsibility
system (IRS) (discussed below).
   With regard to the ERS, several of theobligations in section 25 impose workplacerelated duties, such as the duty to post in
the workplace a copy of the OHSA and any
explanatory materials prepared by the ministry(section 25(2)(i)). As well, while the Act
requires employers to prepare and review
at least annually a written OHS policy anddevelop a plan to implement it, the section
does not apply to a workplace at which five or
fewer workers are regularly employed (sections
25(2)(j) & 25(4)). If platform employers do
not have a workplace, are they exempt fromthe obligation to prepare a written OHS policyor to post it “at a conspicuous location in theworkplace” (section 25(2)(k))?
   The issue of workplace-relatedness also
arises in relation to the more recently imposed
duties regarding violence and harassment(OHSA, Part III.O.1), hazards that are welldocumented in taxi and delivery work (Burgel,
Gillen, and White 2014; Ma et al. 2022;
Moore 2018). The law requires employers to
prepare policies with respect to workplace
violence and workplace harassment and topost those policies at a conspicuous place inthe workplace (OHSA, section 32.0.1(1)). As
well, the mandatory content of these policies isframed in relation to workplace violence andOHS and Platform Work in Ontario

harassment, as is the duty to assess the risk ofworkplace violence (OHSA, sections 32.0.2,
32.03 & 32.0.6).
   Of course, not all employer duties areframed in relation to workplaces. The general
duty to take every precaution reasonable
in the circumstances, for example, applies
to all work performed for the employer,
not just work performed in the employer’s
workplace. However, the fact that the work is
not performed in the employer’s workplace
may limit the scope of what is held to bereasonable in the circumstances. That said, if
the workplace-based duties do not apply, it
might be possible to argue that at least some ofthese obligations arise under the general duty
clause.
   The general duty clause might also require
platform owners as employers to monitor the
performance of platform workers to ensure they
are performing it safely, which may include
monitoring workers’ driving, requiring themto take necessary breaks, and limiting theirtime on the app, although these are not matters
OHS regulators generally address. However,
if employers were required to manage thesematters as OHS concerns, algorithmic controls
would provide the necessary technology,
potentially increasing the already high level ofsurveillance and control platforms currently
exercise (Aloisi and De Stefano 2022; Woodand Monahan 2019).
   This leads to the question of whether OHS
regulation could require platforms to address
the epistemic risks created by the platform
environment. In general, OHS regulation

41

in Ontario does not deal with psychosocial
hazards. First, apart from harassment,
Ontario does not impose any specific duties
on employers to protect workers frompsychosocial risks. Of course, the general duty
clause should apply to psychosocial hazards,
but in Ontario this has not translated into any
attempt to regulate them. No Ontario employer
has ever been prosecuted for failing to takereasonable measures to protect the psychosocial
health of a worker. 14) OHS regulation has
also largely ignored the adverse health effects
of work intensification outside the platform
environment, whether through assembly line
speed-ups or managerial supervision. Indeed,even when it comes to harassment, the Act is
careful to exclude “a reasonable action taken
by an employer or supervisor relating to the
management and direction of workers of theworkplace” (section 1(4)) from the definition,
making it very unclear where to draw the line
between what is a “reasonable action” aimed
at work intensification or discipline. Moreover,
the OHSA merely provides that the employer
must have a harassment policy but does not
impose a duty to provide a harassment-freeworkplace (Sobat 2022).
   Long hours are also related to poor OHS
outcomes, a fact that was recognized andcentral to the first factory acts, especially as
they related to women and children (Fudge
and Tucker 2020; Tucker 1990). Morerecently, these issues have migrated fromOHS regulation to employment standards
laws, which only apply to employees, not
all workers, so that platform workers would14) The situation in Quebec is different and specifically requires employers to “take the necessary measures to protect
the health and ensure the safety and physical and mental well-being of his worker”: Act respecting occupational
health and safety, CQLR c S-2.1, s. 51. For a critical discussion of the situation in Quebec prior to the more recent
amendments to the law, see Lippel, Vezina, and Cox (2011).

42

have to overcome their (mis)classification as
self-employed in order to secure the benefitof hours of work laws. As discussed earlier,platform operators have invested heavily
in resisting these claims, often assertingthat employee status would interfere withthe freedom of workers to select their own
hours. However, claims about scope of choice
exercised by online workers have been heavily
criticized and as discussed below the struggle
for employment status in Ontario is ongoing, so
it is possible that some platform workers may
qualify for employment standards protections(Athreya 2021; Katsabian and Davidov 2022;
Stanford 2022).
   The OHS regulation of online platformwork is also problematic. In addition to thedifficulties noted above, the likelihood of
platform owner being found to be the online
platform worker’s employer is lower than in
the case of groundworkers (Howcroft andBergvall-Kårebron 2019). As well, there is aquestion of whether the OHSA applies wheneither the worker or the platform owner islocated outside the province. Finally, assuming
Ontario law applies, there is the question ofwhat duties would be imposed on platform
owners in this context.
   A helpful analogy might be telework,
which involves employees working remotely.
While teleworkers often reported benefittingfrom this arrangement, they also reported
OHS concerns about work-station design, longhours, and isolation. A study by Montreuil andLippel (2003) found that while most Canadian
OHS legislation theoretically applied toteleworkers, it was doubtful that it effectively
addressed their OHS concerns both because
15) Act respecting …, sd. 5.1, 179.1.

Eric TUCKER

of legal ambiguities regarding employer
obligations to teleworkers and because of theabsence of inspections and enforcement. In
2021, Quebec amended its health and safety
legislation to better cover teleworkers byproviding that the Act applies, “[s]ubject toany incompatible provision, in particular withrespect to the workplace.” With regard to
enforcement, the amendment barred inspectors
from entering teleworkers’ homes without
their consent unless they obtained a court
order, which is available if there are reasonablegrounds to believe that the worker or anotherperson at the home is exposed to a danger
threatening life, health, safety, or physical ormental well-being.15) Oddly, the Act does notdefine telework and so it remains to be seen
whether it applies to PMW. If it does, the scopeof workplace-based obligations will need to
be determined. For example, do employers
have any OHS obligations in relation to thedesign of home workspaces and workerowned equipment? In Ontario, the OHSA does
not apply to work performed by the owner or
occupant in or about their private residence,
effectively excluding online work performed athome from its ambit (OHSA, section 3(1)), so
the question does not even arise.
   There is also the issue of long andunsocial hours of work, which as mentioned,
have fallen outside of OHS regulation and are
now addressed by employment standards law.
Ontario recently enacted “right to disconnect”
legislation that requires employers with
25 or more employees to prepare a written
policy with respect to disconnecting fromwork. However, the law fails to stipulate any
mandatory elements that must be contained

OHS and Platform Work in Ontario

in such a policy. Moreover, because theright is located in the ESA, it only applies
to employees, and so can only benefit online
workers who can establish that they are
employees.16)   Finally, there is the issue of enforcement.
This is not the place to engage in an extended
discussion of the efficacy of OHS enforcementin Ontario, but research has shown that while
Ontario prosecutes employers more frequently
than other Canadian jurisdictions, it still relies
primarily on the IRS to secure compliance,
resulting in significant enforcement gaps,
particularly for non-unionized and precarious
workers (Tucker 2013). More recently, theOntario Auditor General expressed concernthat the Ministry of Labour, Training andSkills Development, which is responsible for
enforcing the OHSA, only has about onequarter of all Ontario employers registered inits system and does not effectively target highhazard workplaces or workplaces in which
vulnerable workers are employed (Auditor
General of Ontario 2019, ch. 3.07). We turnto the IRS in the platform context below, butthere is little doubt that enforcement challenges
would abound in the platform environment
where workers often do not have a fixed
workplace and, if working from home, are notcovered by the OHSA, even if the worker was
prepared to allow the inspector to enter thehome (OHSA, section 54(2)).
(ii) The Internal Responsibility System (IRS)
So far, we have considered the substantive
duties of an employer, but there is also
the question of whether employer status
would require platform employers to create16) ESA, s. 21.1.

43

occupational health and safety management
systems that comply with OHSA requirements.
Presumably, the answer to that question mustbe yes, but that leaves open the question ofwhat the law would require in the platform
environment. There are two elements tothe mandated IRS. One is the management
responsibilities of employers and the otheris the rights of workers to participate in theemployer’s management system. This article
cannot provide a complete review of all therequired elements of management systems in
Ontario, but it will highlight a few that seemto have the greatest potential and likelihood of
being found to apply.
   Perhaps the most important mandated
elements are the employer’s duty to provide
information, instruction, and supervision toprotect the health and safety of workers, toappoint competent supervisors, and to acquainta worker or supervisor with any hazard in
the work (OHSA, section 25(2)(a)(c)(d)). In
the platform environment, the imposition ofthese duties could be significant insofar as it
would require platform employers to more
actively manage the OHS hazards associatedwith platform work. For groundworkers, thismight involve a duty to provide warnings
about the use of cell phones while driving or
biking as well as reminders to obey traffic rules
or to comply with applicable OHS laws suchas wearing prescribed protective equipment.
For online platform workers, it might require
training in regard to ergonomic hazards.
However, these management duties are unlikely
to require better management of psychosocialand epistemic risks as long as they are notrecognized as occupational hazards.

44   While the imposition of a duty to
manage occupational hazards in the platform
environment can have a positive effect, there isalso a risk that platform employers will respondby imposing more intense surveillance and byadopting punitive behavior-based management
systems that ignore the systemic pressures
workers face that often promote unsafe
actions.17) For example, platform employers canuse GPS to monitor the speed of drivers andsuspend them from the app for driving above
the speed limit while ignoring the features ofalgorithmic management that promote unsafe
behaviors. In general, it is easier to impose
management duties than to ensure that they are
exercised fairly and in ways that best address
the root causes of workplace hazards.
   Ontario workers enjoy three major rights
in the employer’s IRS: the right to know, theright to participate, and the right to refuse
unsafe work. The right to know closelyintersects with the employer’s duty to provide
information and instruction but gives workers
more agency by allowing worker healthand safety representatives (HSRs) to obtain
information from the employer regarding
conditions that they identify as potentiallyhazardous. As well, HSRs are required toperiodically inspect the physical condition of
the workplace so that they have the opportunity
to identify hazards (OHSA, sections 8 & 9).
However, because this dimension of the rightto know is assigned to HSRs, its existence iscontingent on the requirement to have themin the first place, which leads us to the secondright, the right to participate.
   The right to participate has a number

Eric TUCKER

of dimensions but it is most strongly
institutionalized through the obligation toappoint individual HSRs in smaller workplaces
or to establish a joint health and safetycommittee (JHSC) in larger (20+ employees)
ones. HSRs and worker representatives
on JHSCs (who we will also call HSRs)
collectively represent workers and are
involved in the identification of hazardous
work condition, making recommendations fortheir improvement, securing information, andrepresenting workers’ OHS concerns generally(sections 8 & 9).
   The first hurdle to securing this formof collective representation is to determine
whether the OHSA requires an HSR or a JHSC
in the platform environment. Section 9 of the
OHSA provides that a JHSC is required “at aworkplace at which twenty or more workers
are regularly employed” (section 9(2)(a)).
In Ontario (Ministry of Labour) v United
Independent Operators Ltd. (UIOL), theOntario Court of Appeal considered whether
independent contractors should be counted
when determining whether there were 20 ormore workers regularly employed. The court
rejected an earlier decision of the Labour
Relations Board and held that on a purposiveinterpretation independent operators should becounted as workers “regularly employed.”18)
Therefore, even if platform workers were
found to be independent contractors employedby platform owners rather than employees, thiswould not exclude them from the possibilityof claiming a right to have a JHSC. However,they would still have to establish that they
were “regularly” employed “at a workplace.”17) The literature on behavior-based systems is vast. For a somewhat dated, but insightful assessments of the limits ofthis approach and the broader context of employee responsibilization strategies, see Hopkins (2006) and Gray (2009).
18) Ontario (Ministry of Labour) v United Independent Operators Ltd. 2011 ONCA 33.

OHS and Platform Work in Ontario

In the UIOL case, the employer conceded thatits office was a workplace, but disputed that it
was a place the drivers regularly attended. In
a previous case, involving delivery workers,
a tribunal held that dispersed workers should
be counted as being regularly employed at theworkplace, but that was in the context where
the drivers had a home base to which they
regularly returned.19)   In the context of PMW, it may be difficult
to establish that there is a “workplace,”
defined in the Act as “any land, premises,
location or thing at, upon, in or near aworker works” (section 1(1)), which seems
to presuppose a physical space. It is possiblethat the ambiguity surrounding the meaningof a workplace in the platform environment
could be resolved in favor of finding that theplatform is a workplace, but that is uncertain
given the definition that seems grounded in anunderstanding of a workplace as a physical,
not a virtual space. The linking of collective
representation to the existence of a physicalworkplace at which a specified number ofworkers are employed thus may deprive
platform workers of this right.20)   Even assuming platform workers enjoyeda right to collective representation, there is
the question of how or whether HSRs could
conduct workplace inspections. The issueof the scope of the duty to inspect arose in a
recent Supreme Court of Canada judgment

45

addressing the question of whether it applied
to remote locations not under the control of theemployer. In Canada Post Corp. v Canadian
Union of Postal Workers, the majority of thecourt upheld a determination that workplaceinspections only had to be conducted over work
areas that the employer controls. Therefore,
postal worker HSRs did not have the authority
to inspect delivery routes to identify hazardous
conditions.21) While the case was interpreting
federal OHS regulation, it is quite possible thata similar interpretation would be applied to the
OHSA.
   There is clearly a lot of ambiguity about
whether collective worker representation isrequired in the platform environment, whether
for ground or online work, and if required
whether HSRs are empowered to fulfill oneof their key responsibilities. However, even
if these ambiguities were resolved favorably
to require collective worker participation,
there would still be the obstacle of making
these arrangements effective in the platform
environment. Again, this is not the place
to delve deeply into the literature on theeffectiveness of collective representation,
but Walters (2021) recently summarized thefactors associated with its efficacy: strong
legislative steering for worker representation;
employer commitment to participatory
approaches to OHS management; supportive
worker and union organization inside and19) Brewers Retail (Re), [1995] O.O.H.S.A.D. No 20 (QL).
20) If the platform is held to be a workplace, there still may be problems determining whether the number of workers
regularly present exceeds the threshold, particularly in the online environment where some workers may not
be in Ontario. I have not found case law on whether workers outside of Ontario are counted for the purposes ofdetermining whether the threshold has been met, but it is notable that recently the Ontario government advised thatwhen determining whether an employer meets the twenty-five-employee threshold for being required to post a rightto disconnect policy only employees in Ontario were to be counted. See: https://www.ontario.ca/document/yourguide-employment-standards-act-0/written-policy-disconnecting-from-work#section-1.
21) 2019 SCC 67 (CanLII).

46

Eric TUCKER

outside establishments; and well-trained andwell-informed worker representatives using
autonomous worker-centered approaches
to OHS. In an environment in which thepreconditions for effective worker participation
are generally eroding (Walters 2021, 129–138), the obstacles to establishing effective
collective worker representation in the platform
environment are formidable, but perhaps
not insurmountable as demonstrated by the2022 agreement between the United Foodand Commercial Workers (UFCW) and Uberto provide some representational services to
Uber drivers that includes periodic meetings
between UFCW and Uber to discuss driverconcerns and to discuss health, safety, andother issues related to the quality of platformwork (UFCW Canada 2022). The agreement,
however, is quite controversial given its limits
and potential to impede efforts by other unions
to secure collective bargaining rights for Uber
drivers and other platform workers (Doorey
2022a; Mojtehedzadeh 2022). In any event, itremains to be seen whether this form of nonstatutory collective representation on OHS
matters yields positive improvements.
   The right to refuse unsafe work is the third
worker right in the IRS. Under the OHSA,
workers have a right to refuse work when they
have reason to believe:(a) any equipment, machine, device or thing
the worker is to use or operate is likely
to endanger himself, herself or anotherworker;(b) the physical condition of the workplace or
the part thereof in which he or she works
or is to work is likely to endanger himself
or herself;(b.1) workplace violence is likely to endanger
himself or herself; or(c) a ny equipment, machine, device orthing he or she is to use or operate or thephysical condition of the workplace or thepart thereof in which he or she works or
is to work is in contravention of this Act
or the regulations and such contravention
is likely to endanger himself, herself or
another worker (OHSA, section 43(3)).

Workers who exercise their right to refuse areprotected against employer reprisals (section50).
   Again, assuming that platform owners
are employers of platform workers, would aright to refuse unsafe work be meaningful inthis environment? First, we have the problem
that the right to refuse is typically exercised byworkers concerned about hazards arising from
employer-provided equipment on employer
premises. This is not the situation in which
platform workers find themselves and so mostof the enumerated circumstances in the Act
for when workers can refuse do not apply. The
only one that clearly does is paragraph b.1
regarding violence. This circumstance is facedby many location-based platform workers suchas drivers and delivery workers and it does
occur within a physical workplace, albeit one
outside of the platform employer’s immediate
control. Nevertheless, such a work refusal
should trigger an employer investigation in thepresence of an HSR or another worker and,if after the inspection the worker continues
to have reasonable grounds to believe therisk of workplace violence continues, then an
inspector would be called to investigate therefusal and if they uphold it, they may issue anorder to address the hazard.
   Having said all this, given the structuresof platform work and the sources of the risk of

OHS and Platform Work in Ontario

violence (presumably from clients or from thetimes and places of rides and deliveries), it isunclear that many platform workers would be
willing to invoke their statutory right to refuse
and trigger its process for dispute resolution.
We know that even in the best of circumstances
workers are extremely reluctant to exercise theright to refuse, notwithstanding that the OHSA
protects them against retaliation for exercising
their rights under the Act (Foster, Barnetson,
and Matsunaga-Turnbull 2018; Lewchuk2013). However, the extension of a protected
statutory right to refuse unsafe work mightprovide some encouragement to platformworkers to informally exercise their right torefuse by not accepting jobs offered on the app
and potentially challenging adverse actions
taken by the platform, such as suspensions
from the app.
   In sum, even if we deem platform owners
and operators to be employers and thereby
remove or reduce legal status ambiguities in
PMW, existing OHS regulation is not welldesigned for the platform environment. There
are many ambiguities related to matters such as
the meaning of a workplace, absences such as
the lack of regulation of psychosocial hazards
and epistemic risks, enforcement challenges
when workers are widely dispersed, and thegeneral problem of making rights real forvulnerable workers.
6. WHAT IS TO BE DONE?
A recent survey by the EASHW of measures toaddress OHS concerns in platform work foundthat the issue has been largely overlooked bypolicy makers and by platform owners and47

that “few regulations, policies, strategies,
programmes, initiatives and actions are
directly related to OSH” in the platform work
environment (EASHW 2022d, 4).
   On the other hand, there have been
more indirect measures that could lead tosome amelioration. One of the more common
proposals is to overcome the legal ambiguity
regarding the relationship between platform
owners and platform workers by either
declaring platform workers to be employeesor adopting a test that would make it easierfor them to secure this status. However,in the Ontario context, it is important toremember that an employment relationshipis not necessary for the OHSA to apply. It issufficient to show that the platform operator
hires workers, who may either be employees
or contractors. So, the more salient ambiguityin Ontario is with respect to whether platform
owners hire workers at all or, as they claim, aremerely rentiers selling intermediation services
that permit clients and entrepreneurs to findand contract with each other.
   There is no case law in Ontario on thestatus of platform workers for the purposes of
the OHSA, but there is case law that platform
owners hire workers for the purposes of
Ontario’s Labour Relations Act (LRA).22) As
discussed earlier, the Labour Relations Board
found that Foodora delivery workers weredependent contractors and thus Foodora’s
employees for the purposes of collective
bargaining. More recently, an Employment
Standards Officer held that Uber Eats delivery
workers are employees for the purposes of
employment standards legislation. 23) While22) Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.
23) Uber Portier B.V., Claim ID# 0014666-CL000, Order ID# 0014666-COOO2 (February 22, 2022). For a summary ofthe decision, see Doorey (2022b).

48

these decisions are helpful, they are factspecific and leave other platform workers,
especially those outside the food delivery
sector, without clarity as to their status forthe purposes of these laws, let alone the
OHSA. Thus, legislation clarifying the legal
status of platform owners as employers of“workers” for the purposes of OHSA would
remove any ambiguity about whether the
Act applies. The government could go evenfurther and deem platform workers to be the“employees” of platform owners in order togive them protection under Ontario’s collective
bargaining and minimum standards laws that
require employment status.
   Currently, the Government of Ontario isseemingly unwilling to enact such sweeping
legislation. Earlier this year, it enacted theDigital Platform Workers’ Rights Act, 2022
(DPWRA), which defines worker as “anindividual who performs digital platformwork.”24) However, the Act does not define thelegal relation between platform operators andplatform workers for the purposes of this Act
or for other statutes, although it does specify
that the DPWRA applies regardless of whether
the platform worker is an employee or not(section 2). As a result, legal ambiguity about
whether platform operators are employers ofdigital platform workers, either as employees
or independent contractors, remains.
   A second indirect measure to improvehealth and safety outside the OHSA is toaddress some of the underlying conditions ofplatform work that contribute to the creation

Eric TUCKER

of hazardous conditions. Here, the DPWRA
is much more successful. It provides covered
digital workers with a right to information,
including how pay for digital work is
calculated, factors used in allocating work
assignments, and the operation of performance
rating systems. It also guarantees a minimum
wage for work assignments performed (notincluding time seeking work on the app), aright to retain tips, a right not to be denied
access to the platform in the absence of
written reasons and, for longer denial ofaccess, notice, and a right to dispute resolution
in Ontario, among others (sections 7–14).
These provisions go some way to address the
epistemic risks arising from the uncertainty
that often surrounds the algorithm’s operations
and that have been identified as an OHS hazard(EASHW 2022d; Gregory 2021).
   A third indirect means of improving
OHS outcomes is to provide platformworkers with meaningful access to collective
bargaining or representation. If platformworkers remain outside the OHSA, they lose
access to collective representation in the
IRS, which currently is the only area of law
where collective representation is mandated.
Conceivably, the DPWRA might be amended
to provide that all digital workers or, better yet,all platform workers, are entitled to collective
representation with regard to OHS matters andprovide platform workers with an opportunity
to select their representatives. An even stronger
measure would be to give platform workers
meaningful access to collective bargaining,24) Digital Platform Workers’ Rights Act, 2022, S.O. 2022, c. 7, Sched. 1, s. 1(1). At the time of writing, the Act was not
yet in force. The Act does not apply to all digital platform work, but only to ride share, delivery, and courier services
performed in the province of Ontario (s. 1(1)). Ontario is not unique in limiting the regulation of digital platformwork to transportation and delivery. The Spanish Rider Law (Royal Decree Law 9/2021 of May 11, 2021, ratified by
Law 12/21 of September 28, 2021) is similarly limited.

49

OHS and Platform Work in Ontario

whether through the LRA or an alternative
arrangement. With respect to the former,
while some platform workers have unionizedunder the LRA, they had to be recognized as
dependent contractors in order to do so, but
it will be a fact driven exercise in each caseand many may not qualify under the existinglaw. Hence the need to amend the Act to bringthem in. But, the LRA’s enterprise bargaining
model has become less effective in providing
private sector workers with meaningful accessto collective bargaining and is even less wellsuited to the challenging conditions that faceplatform workers (Doherty and Valentina 2020;
Gebert 2021; Johnston and Land-Kazlauskas
2018). Hence a sectoral bargaining model is
especially apposite for this group of workers.
   T h e o t h e r w a y t o g a i n c o l l e c t i v e
representation (or bargaining) is throughvoluntary recognition. As noted earlier,
Uber and the UFCW in Canada reached anagreement early in 2022 that gives the UFCW
limited representation rights, including
consultations with Uber over OHS issues,
but it remains to be seen how well this model
will work in practice. Uber has also enteredinto a more extensive agreement in Australia(Goods, Veen, and Barratt 2022). While,these non-state actions could potentially
produce some amelioration, experience withvoluntary recognition for collective bargaining
purposes suggests that it is unlikely to become
widespread.
   These indirect measures may be helpful,but ultimately legislative changes are neededthat directly address OHS in the platform
environment. As the recent EASHW policy
brief (2022d) indicated, we are just beginningto come to grips with the issue and much work
remains to be done. However, it seems clearthat priority must be given to rethinking how
we regulate OHS risks in the kinds of workcommonly performed through platforms,
including taxi services, food delivery, andoffice ergonomics. Imposing a general dutyon platform workers to take every precaution
reasonable in the circumstances for theprotection of platform workers is a starting
point but given the paucity of measures taken
to date by platform operators (EASHW 2022d,
11–12), there is also a need to identify thehazards faced by platform workers and require
platform employers to address them or facepenalties if they fail to do so.
   In conclusion, while most platform work
is not dissimilar from work performed in otherenvironments, the conditions under which itis performed introduce new epistemic risks
and exacerbate existing ones while creating
ambiguities about the application of health andsafety regulation and revealing absences thatleave certain risks poorly regulated. There aresome incipient developments that are beginningto address these deficiencies, but many hurdles
remain.
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ACKNOWLEDGMENTS
P r o f e s s o r Tu c k e r w o u l d l i k e t o t h a n kProfessors Richard Johnstone and Valerio de
Stefano for their comments on an early draft
and the anonymous reviewers for their many
helpful suggestions.
CONFLICT OF INTEREST STATEMENT
The author has no conflict of interest to declare.

J Work Health Saf Regul 2023; 1; 54‒91

Original Article

Legal Protection of the Health and Safety for Gig Workers:
The Present Status and Future Prospects in Japan
Takenori MISHIBA*, Kotaro KURASHIGE† and Shoko NAKAZAWA‡
Abstract: Labor laws in Japan are generally soft laws, and the Japanese legal system has notrecognized platform mediated gig work sufficiently; however, different laws with different
principles exist in order to combat labor issues and regulate behaviors of business owners withthe help of group dynamics (such as worker and customer trust in business owners). One reason
to value an agreement with management in setting work rules is to ensure that management
strictly follows these rules once they have been established. In terms of versatility and flexibility,
labor laws in Japan may, to some extent, serve as a useful reference in a global context.
   In Japan, the scope of significant labor protection laws for individuals (Labor Standards
Act, Industrial Safety and Health Act, Labor Contracts Act, and Industrial Accident
Compensation Insurance Act) is not broad enough to appropriately cover all kinds of platform
mediated gig work. The laws permit several interpretations, but they have limited flexibility.
Laws that govern labor-management relations, including the Labor Union Act, may apply to
gig work. In cases where they do, employers cannot refuse to bargain collectively with therepresentatives of the workers, which would allow the representatives to discuss safety andhealth matters with the employer. The Industrial Safety and Health Act includes provisions
reflecting the principle that a person who generates risk is responsible for risk management.
The scope of the Act has been gradually extended through legal interpretation and amendments.
Still, it may not apply to all kinds of gig jobs. The Home Work Act for homeworkers or homehandicraft workers requires both clients and contractors to implement diverse health and safetycontrols. Although the Act has been applied to limited types of work, given its similarity interms of formative background to laws (including the prohibition of evasion of responsibility
by employers), some amendments could make the Act applicable to gig work. The civil
responsibility of employers to provide a safe workplace may bolster the principle that a person
generating risk is responsible for risk management, and this part of the law has the highest
potential to be applied to gig work. This would require, however, a relationship between theplatform and the gig worker such that the platform can establish, control, and manage work
conditions or command authority over the worker, which would allow the risks of work-related
accidents (damages) to be easier to predict and control. Regarding economic laws, the Smalland Medium-Sized Enterprise Cooperatives Act provides a legal basis for the solidarity of sole
proprietors and for negotiations with their clients. Still, it has been utilized very rarely to date.
* Faculty of Law, Kindai University, Higashi-Osaka, Japan. E-mail: t-mishiba@jus.kindai.ac.jp.
† Kurashige-Konoe-Morita Law Firm, Tokyo, Japan.
‡ Department of Preventive Medicine, Tokai University School of Medicine, Isehara, Japan.
Note: Mishiba and Kurashige contributed equally to this work. As for considerations from a legal perspective, Kurashige
prepared a draft, and Mishiba reconstructed and finalized it. The article therefore reflects the views of both authors.
Mishiba also constructed a theory about the characteristics of Japanese laws and regulations and about ensuring thehealth and safety of the gig economy. Nakazawa conducted a data investigation about gig workers as well as literature
review regarding occupational health. Mishiba reviewed the JILPT’s 2019 study and ILO/WHO technical brief.

55

Legal OHS Protections in Japan   As described above, there are almost no direct restrictions on health and safety in the gig
economy or its users; if serious cases of law evasion occur, however, courts will, based on theintent of applicable laws, attempt to offer remedies for workers with flexible judicial discretion
with regard to the employer’s duty of care, and this initial step may lead to the formulationof concrete laws in the future. In the future, essential duties to be imposed on platforms after
new legislation is formulated are risk investigation, provision of investigation results to gig
workers, and sincere response to collective bargaining, while measures to be taken by theGovernment include investigations of general risks associated with gig work and of ideal
countermeasures and the provision of relevant information. In addition, a scheme is necessary
to make it possible that in cases where cooperatives that are protected under the Small andMedium-Sized Enterprise Cooperatives Act assign industrial physicians to conduct interviews
with cooperative members, when the physicians deem it necessary to do so, cooperatives
can approach clients, etc. (including platforms) to improve the working conditions of themembers in question. Furthermore, as experts in occupational health or other fields havepointed out a number of gig work-related risks, their findings need to be utilized in formulating
new legislation, flexibly applying the employers’ duty of care, and conducting mandatorynegotiations between platforms and gig workers.
Key words: Gig worker, Platform, Industrial Safety and Health Act, Employers’ duty of care,
Risk assessment, Risk-creator’s liability, Small and Medium-Sized Enterprise
Cooperatives Act, Home Work Act

1. INTRODUCTION
This article indicates the possibility andlimitations of the application of labor andeconomic laws of Japan, which are mainly
soft laws and unique in the global context,
to the gig economy. It also examines legal
initiatives to overcome these limitations basedon suggestions from occupational healthstudies. First, we describe the features of thelegal system of labor-related laws in Japan incomparison to international standards.
A. Features of the Legal System of LaborRelated Laws in Japan
People in Western culture often find it
challenging to comprehend many features ofthe legal system of Japanese labor laws. The

advantages of the Japanese legal system lie
in its versatility and flexibility in approachingissues, while its disadvantages lie in its
ambiguity and slow response. In general, thedifference between labor and management is arelative concept, and the attributes of “labor”
and “management” have almost no relation
to social and economic class differences. If
an employee is regular and a candidate for an
executive position, the person is likely to bepromoted to manager. Labor and management
often attach importance to their connection(sense of belonging) with the organization orcommunity they belong to (such as a businessand department). Even some non-regular
employees1) also value their connection withthe organization they belong to. Employers,

1) This could be interpreted almost the same as contingent workers. In Japan, they usually work under a fixed term
contract or with a condition that a dispatching company and a client company that receives the dispatching service

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

therefore, tend to consider a trust-based
relationship with their employees and parties
concerned (such as clients) important.
Employers often voluntarily consider theinterest of employees without engaging in thelabor-management dialogue. Although laws
strictly regulate the dismissal of employees,
the rules of employment that set out primary
working conditions of employees are at times
decided at the sole discretion of employers
without an agreement between labor andmanagement, and these conditions are bindingfor employees. Until recently, there was almost
no limit on long working hours as long as
employers carried out specific procedures. If an
employee becomes ill due to his or her job, theemployer assumes only the responsibility tomake compensation for such illness.
   Laws are, at best, inducements to sensible
action by employers, and the behavior of
employers is influenced by diverse factors,
including trust from employees, public
reputation, the manager’s conscience, tax
exemption for profit sharing, and the market.
If requirements by laws and other factors
are inconsistent with each other, laws areoften disregarded or evaded. The courts andadministrative bodies apply laws considering
the context of each case, social background,and other conditions comprehensively. In
responding to a new arising issue, a single law
is rarely enacted within a short period withmandatory provisions that are specific, clear,and dogmatic. Multiple laws with different

intentions and courses of the enactment process
have direct and indirect influences on behaviors
of employers.2) Issues are to be addressed withmild restrictions (including those that might
not be applied directly), and if cases of law
evasion occur, courts will, based on the intent
of the applicable regulations, attempt to offer
remedies for workers with flexible judicial
discretion. This initial step may lead to theformulation of concrete laws in the future. Itis, of course, possible that even if there is no
judicial precedent, social movements may
result in the enactment of a law.
   In the case of standard terms of a contract,for example, by which consumers in a weaker
position in dealings enter a contract semicompulsorily under unfavorable conditions,
the Japanese authorities have not adopted
a way to establish an independent adhesive
contract regulation law to directly render anyof these contracts illegal and invalid. The
courts have attempted to offer remedies for
consumers in accordance with the generalprovisions of the Civil Code and separate
laws and regulations by industry (which
regulate behavior in business by granting theauthority of supervising business operators toan administrative body). In reality, however,the behaviors of business operators depend on
the supervision and direction authorized by theadministrative bodies, voluntary regulations byindustrial organizations, customer reputation,and other factors that correlate with each other.
For this reason, companies focus on brandare different, which often causes unstable employment. Non-regular employees in Japan frequently suffer lower
wages and other inferior working conditions compared with regular workers.
2) This article will refer to laws about compensation and rehabilitation as long as they relate to prevention. This isbecause the laws are a part of prevention in a broad sense and, in fact, have a strong impact on prevention measuresby employers in Japan.

Legal OHS Protections in Japan

image strategies. An Act to directly regulate
consumer contracts was enacted in the Diet
only recently (in 2000), and its content isvague and its illegality criteria are unclear.
Therefore, consumers not suffering from great
injustice have not been helped by this act.
Conversely, in the event of great injustice,affected people have been helped by means oflegal interpretation, even without direct conflictof laws. The above mechanism of behavior
control is not much different from that in thelabor law field.
   The industrial safety and health laws
and regulations in Japan attempt to improve
working hours, placement, and other general
working conditions, considering past suicides
and deaths due to overwork. In other words,
the scope of regulations has extended tosocial protection, from technical protection
for workers such as machinists and builders.
These laws also aim to improve business
communication with a view to reducing stress.
Recently, they have actively supported theemployment of patients with cancer or severe
illness. They are trying to provide a sense ofsafety and security comprehensively. Hence,legal fields to be applied in cooperation witheach other to realize the health and safety of
employees are widening (for example, theLabor Standards Act, economic laws, company
management laws, the Social Welfare Act,and the Medical Care Act). The advantages
mentioned above of the legal system ofJapanese labor-related laws (i.e., versatility
and flexibility) may be effective in addressingthese complex, different, and multi-layered
problems.

57  The Industrial Safety and Health Act has
made a model specific to Japan, while the lawsof the UK have influenced it in terms of its
establishment and amendments. The incidenceof work-related accidents in Japan has been andstill is very low compared to other countries.3)
However, like other countries, Japan has
not yet succeeded in controlling excessive
occupational stress (Mishiba 2022, 69–75).
B. Purpose and Structure of this Article
Based on these features of the Japanese legal
system, in the following sections, this article
aims to describe the current status and issues
regarding legal measures for the health andsafety of workers in the gig economy in Japan,
recommend the development of a collective
bargaining framework between risk generators
and workers as well as the utilization ofindustry health professionals through thelegal system, and present reference material
applicable to the world at large.
   Section 3, Gig Workers and Issues about
Their Health and Safety in Japan, argues thatJapan is also wrestling with the challenge ofwhat measures are to be taken to ensure thehealth and safety of gig workers while thestatus of gig workers as “employees” hasnot been clearly defined because there areincompatible theories. First and foremost, weshould make an effort to flexibly interpret thestatus of gig workers as employees and protect
them under existing labor laws; concerning
he a lth a nd sa f e ty, without r e ga r d to a
discussion on the workers’ status as employees,
both legal interpretation and the legislative
process should be based on the principle that3) Japan Industrial Safety and Health Association, various data listed on “Safety and Health Statistics (by nation).”https://www.jisha.or.jp/international/field/disaster.html, last visited March 12, 2022.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

a person generating risk is responsible for risk
management (risk generators include those
who have risk information and/or the authority
to control and manage risk), and; since there
are various risks depending on the type ofindustry and employment, we should enhance
the bargaining power of gig workers with risk
generators such as clients and platforms.
   Section 4, The Current Circumstances ofGig Workers, clarifies that, according to theresults of a social survey about freelancers,
including gig workers, such workers feel
motivated at work but are not satisfied with
their pay, and potential risks might vary as gig
workers are distributed among various types ofindustry and job.
   Section 5, The Possibility and Limitationsof Application of the Status as Employees/
Workers, indicates the definition of employee
under the pertinent labor laws in Japan, namely,
the Labor Standards Act, Labor Contracts
Act, and Labor Union Act. The applicabilityof the definition of the employee/worker isbroader under the Labor Union Act. If a person
falls under the definition of “proprietorship toa significant degree” (for example, a person
to whom business profit is attributable), thecategory of the “employee/worker” is unlikely
to be recognized. Even though a person does
not fall under the definition of “employee/
worker,” he or she should be protected if theircontracts with the clients include accessoriness,adhesiveness, or economic dependency(vertical relationship because one person’s
livelihood depends on the other). In gig
jobs, however, there are a number of issues,
including that it is unclear who should betreated as the employer (or equivalent).
   Section 6, The Possibility and Limitationsof Expanding the Scope of the Industrial

Safety and Health Act, include the following:
the Industrial Safety and Health Act of Japanhas provisions to embody the principle that aperson generating risk is responsible for risk
management, but its scope of application andrestrictions are limited; however, a recent
judgment from the Supreme Court of Japan
stated that, because the Industrial Safety and
Health Act aims to improve the workplaceenvironment, the subjects of requirements
about the provision of information on chemical
substance risks include non-workers, and fromthis standpoint, may include gig workers.
   Section 7, The Possibility and Limitationof Application of the Civil Law Conceptsof Employers’ Duty of Care, presents thefollowing: the civil responsibility of employers
to provide a safe and healthful workplace isapplicable in a relatively wide range. In bothacademic papers and judicial precedents inJapan, this responsibility is commonly called
the “duty of ‘safety’ consideration,” but thisterm also covers health issues such as thehandling of toxic substances. Whether the dutyof safety consideration covers well-being issues
such as measures against fatigue and stresshas been a controversial topic in academia, but
judicial precedents have included them in thepast. In this article, the term “duty of ‘safety’consideration” is deemed to cover employees’safety, health and well-being, and is called“duty of care” hereinafter. Platforms may havethis responsibility to their gig workers; inthis case, however, the gig workers should beworking under the direction and order of theplatforms, or the platforms should govern andmanage gig workers’ working conditions.
   Section 8, A Labor-Related Law: The
Home Work Act, includes the following:
the Home Work Ac t in Ja pa n ha s b e e n

Legal OHS Protections in Japanestablished against a backdrop of the evasionof labor regulations by business owners byconsigning tasks to industrial home workers
and the exposure of home workers to toxic
chemicals; this act requires both clients andindustrial home workers to take specific risk
prevention measures; and, although this act is
not applicable to the emerging gig economy,
it would be worth revising the act to make itapplicable.
   Under these circumstances, it is difficult
to protect the health and safety of gig workers
only with the current labor laws and laborrelated regulations in Japan (even though thecivil responsibility for the employer’s duty ofcare is applicable in a relatively wide range).
We should, therefore, explore the possibilities
of applying economic laws.
   Section 9, Economic Laws and the
Health and Safety of Platform Mediated Gig
Work, presents the following: as economic
laws in Japan, there are laws to ensure
the payment of subcontracting fees fromprincipal contractors (the Act against Delayin Payment of Subcontract Proceeds, etc. to
Subcontractors) and to regulate the exclusionof, or control on, new entrants and cartel
formation (the Act on Prohibition of Private
Monopolization and Maintenance of Fair
Trade) but they do not secure transactions(such as obligatory conclusion of a contract);
there is also a law for small- and medium-sizedbusinesses, which are economically weak, toorganize trade associations or guilds, enhancebargaining power with clients, and promotemutual assistance (the Small and MediumSized Enterprise Cooperatives Act); this act has
the potential to cover gig workers and would
make it easier for them to solve the various
health and safety issues they are facing through59

negotiation with clients; however, it is difficult
to force clients to enter into negotiations.
   S e c t i o n 1 0 , S u g g e s t i o n s f r o m
Occupational Health, presents the results of areview of articles from the area of occupational
health concerning risks inherent to gig workand control measures, as information to beconsidered for theories of legal interpretationsuch as for the duty of care and bargaining
between relevant parties, as well as legislative
processes in the future. The results indicate a)hazards inherent to the work, such as traffic
accidents (occupational vulnerabilities), b)
poor protection (precarity), and c) hazards
arising from the use of platforms, such as
loneliness (platform-based vulnerabilities). In
addition, the increase in the risk of infection
from COVID-19 is associated with algorithmic
management.
   Section 11, Conclusion: The Necessary
Legal Response, includes the following: healthand safety are essentially managed by theassessment of different risk factors at work, andrisk generators should be legally responsiblefor implementing the duty of care regardlessof the labor-management relationship;
nevertheless, there are cultural differences
around the world, and in Japan, it is not always
desirable to force the above policy in all cases;
the risk factors in the gig economy are diverseand should be addressed according to the levelof risk through collective bargaining between
the parties concerned; in addition, a scheme
should be planned to allow gig workers toreceive occupational health services including
occupational medicine, and; concerning generalrisks inherent to the work, the government
should conduct an investigation and publish theresults.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

2. RELATED STIPULATIONS UNDERSTATUTORY LABOR LAWS
The following are key provisions of statutory
labor laws in Japan related to health and safety
in the gig economy:
A. Provisions Applicable in Case the Person
Falls under the Definition of Being an“Employee”
The Labor Standards Act (Act No. 49 of
1947): This law aims to specify the minimum
standards for working conditions to becomplied with by employers with regard totheir employees and to ensure inspection andguidance by labor standard inspection bodies,criminal penalties for flagrant violations,and governance on labor contracts (causing
contracts under statutory standards to become
void and providing direct discipline). It sets out
the limitation on working hours, a guaranteeof the minimum wage, and the obligation tocreate rules of employment, etc.
In this Act, the term “employee” is defined as “aperson who is employed at a business or officeand to whom wages are paid, regardless of theoccupation” (Article 9). The term “employer”
is defined as “a person acting on behalf of theperson in control of the business in mattersconcerning the employees of the business”(Article 10). The term “wage” is defined as“anything that the employer pays to the worker
as remuneration for labor” (Article 11).
  The Labor Contracts Act (Act No. 128
of 2007): This law stipulates the criticalpoints for interpreting rules of employment
to be created by employers or labor contracts
presented by judicial precedents. Most of its
provisions have been deemed enforceable.
Not all indications from precedents, however,are expressly stipulated. Later, innovative

concepts exceeding precedent indications wereincorporated in a revised edition of this act.
It prescribes that the appropriate content of
the rules of employment constitutes a labor
contract. A repeatedly renewed fixed-term labor
contract should be changed into a contract
without a fixed term, in addition to balanced
and equal treatment between fixed-term andnon-fixed-term contract workers.
   In Article 2, Paragraph 1, the term
“employee” is defined in the same way as in
the Labor Standards Act. In Paragraph 2, theterm “employer” is defined in the same way asin Labor Standards Act.
  The Industrial Safety and Health Act (ActNo. 57 of 1972): This law separates fourteen
provisions concerning health and safety fromthose initially prescribed in Chapter 5 of theLabor Standards Act and improves its contents.
To ensure health and safety (effectiveness),
this act provides regulations concerning the
speedy development of elaborate standards
for hazard prevention, the establishment of asafety and health management system, various
administrative actions by administrative
officers with expertise, and the education
and utilization of health and safety experts.
Thoroughness, flexibility, and a high degreeof specialization are features of this act.
Many provisions target a person other thanthe employer. This act aims to “facilitate thecreation of comfortable work environments”
and ensure employees’ health and safety.
   Article 2: In Item 1, the term “industrial
injury” is defined as “an employee being
injured, contracting a disease, or dying due toa construction, equipment, raw material, gas,
vapor, dust, or the like that is connected withthe employee’s employment, or as a result ofan employee’s work activities or other duties.”

Legal OHS Protections in JapanIn Item 2, the term “employee” is defined as“an employee” as prescribed in Article 9 of theLabor Standards Act for the most part, and in
Item 3, the term “employer” is defined as “aperson that is engaged in an undertaking, andthat employs an employee(s).” 4)  The Labor Union Act (Act No. 174 of
1949) includes provisions about the formationof a labor union by workers, standards toprotect justifiable acts by workers, includingcollective bargaining and strikes through alabor union, and administrative remedies.
   Article 1: Paragraph 1 describes the
purpose of this act: to elevate the status ofworkers; to defend the exercise of collective
action by workers; and to promote the practiceof collective bargaining and procedures toconclude collective agreements between
employers and workers. Paragraph 2 specifies
immunity from criminal liability to labor
unions for performing justifiable acts (Article 8
includes the exemption from civil liability forworkers’ justifiable strikes).
   Article 3 provides that in this Act, the term
“worker” is defined as “a person who lives on
their wages, salary, or other equivalent income,regardless of the kind of occupation.”
B. Provisions for Imposing General
Obligations Concerning the Health and
Safety of Employers and for Setting
Relevant Ministerial Ordinances
The Industrial Safety and Health Act   Articles 20 through to 25-2 impose generalobligations on business operators to take61

the necessary measures to prevent industrial
injuries or diseases caused by various hazards,
including: machinery, inflammable and otherdangerous substances; work methods involvedin excavation and cargo handling; places
with a potential for landslides; raw materials,
exhaust fumes, waste fluids, and other harmful
materials, and; the work environment in an
office, including the ventilation, temperature,
floor, and stairs.
   Article 26 requires workers to respond(cooperate and collaborate) to the measurestaken by business operators under theprovisions of Articles 20 through 25-2.
   Under Article 27, the measures required
to be taken by business operators pursuant
to the provisions of Articles 20 through 25-2
are prescribed by the Order of the Ministry of
Health, Labour and Welfare.
C. Provisions Related to Worker’s
Compensation
The Labor Standards Act requires employers
to pay at their expense compensation for theirworkers who sustain an injury or suffer illness
in the course of employment. In addition, theIndustrial Accident Compensation Insurance
Act (Act No. 50 of 1947) specifies that anindustrial accident compensation insurance
administered by the government takes over
employers’ responsibilities for worker ’scompensation and provides more support(pension and other measures to support theworker’s livelihood) and medical rehabilitation
for affected workers. There are seven types of4) In Japan, therefore, the employer defined under the Industrial Safety and Health Act is different from that under the
Labor Standards Act and refers to an employer of employees and a legal entity or sole proprietor to whom businessprofit is attributable.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

insurance proceeds under this act, including
medical treatment compensation benefits.
D. Provisions Related to the Civil Law
Concepts of Employer’s Duty of Care
The Labor Contracts Act   Article 5: This article prescribes that “theemployer is to give the necessary consideration
to enable his/her employees to work while
ensuring their life and safety.”   This act only specifies the obligationsof employers to their employees and does
not cover the entire framework of the dutyof care that has been formed judicially. An
administrative interpretation (Notice No. 0810
Article 2 of the Labour Standards Bureau of
the Ministry of Health, Labour and Welfare,August 10, 2012) clarifies that the concept of“life and safety” includes “mental and physicalhealth.”   In the first place, the Labor Contracts Act
was established by stipulating the essence ofsignificant precedents from the Supreme Court
decisions, mainly concerning labor disputes ascivil affairs. Article 5 of this act also reflects
the above context.

3. GIG WORKERS AND ISSUES ABOUTTHEIR HEALTH AND SAFETY IN
JAPANTechnological development is driving the
global expansion of new forms of work, such as
gig jobs, where gig workers work using Uber 5)and other digital platforms. Japan is also seeing
an upward trend in the number of gig workers.6)
Since they can be classified as “employees” ina sense, how to secure their health and safety
is a problem. Prevention and compensation
measures are required for, for example, traffic
accidents during delivery, fatigue due to long
working hours or poor mental health caused bywork, and labor accidents such as occupational
diseases (in this article, “labor accident” means
any occupational accident resulting in injury,
illness, death, and health impairment), andcommuting accidents.
   Of course, there are various gig jobs, andsome gig workers have been determined as“employees.” 7) For these workers, existinglabor laws and regulations may provide
adequate protection. In addition, even if a
gig worker is a party to a contract/service
agreement under the Civil Code in Japan,
the worker is protected by provisions of theIndustrial Safety and Health Act (mainly aboutmachinery and equipment safety, provision of5) Because Japan has regulations on general passenger vehicle transportation businesses under the Road Transportation
Act, Uber (Uber Technologies, Inc.; a technology company in the US) is not well known in Japan and Uber Eats (anonline food ordering and delivery service) is more popular as a platform for gig workers.
6) In this article, following Murata’s view (Murata 2020), the term “gig economy” is defined as a way of working
where workers undertake a one-time job mediated by the Internet without an employment relationship and “gigworker” is defined as a person who works in the gig economy.
7) The “employee” in this context is a comprehensive, superordinate concept that indicates a person protected undermain labor laws. A definition of the employee in each law differs by the purpose of each law. Refer to Section 5 and
7 for details. The classification of the “employee” under the Labor Standards Act in Japan is determined primarily
by the presence or absence of command and control as well as wages (consideration of labor), which is similar to theconcept of “salarié” under French labor codes. The concept of a “worker” under the Labor Union Act in Japan is aperson who works dependently to earn a living (like a person in the working class in Europe), which is similar to thatof a “worker” under the Trade Union Act 2016 of the UK in that it covers self-employed workers.

Legal OHS Protections in Japan

information on hazardous chemical substances,and the improving the work environment). In
some cases, the civil law duty of care arises by
consulting the Supreme Court judgments as
described later.
   In Japan, however, there are few studies
available concerning how to protect gig
workers and what protection is required for thehealth and safety of gig workers. Furthermore,
the government has not clearly articulated
its policy on whether gig workers should betreated as “employees” or “independent selfemployed workers (hereinafter referred to as“self-employed workers”).8)   A paper titled “Essay on Safety and
Health Law Policy for Side Job Workers andFreelancers” (Mishiba 2020, 7) is one of few
studies on this subject. In this paper, Mishiba
proposed the principle of the risk generator
being responsible for risk management, that
is, a concept that a person who generates risk
or can control and manage risk based on riskrelated information he/she has obtained is
responsible for risk management.9) Mishiba
then indicated that the scope of health andsafety laws should be extended to coverworkers with employment-like working

63styles10) among freelancers, gig workers, andthe like and that it is necessary to strengthensolidarity and enhance the bargaining powerof these employee-like workers to the samelevel as workers in a labor union as muchas possible. Based on this theory in general,
our article aims to clarify what protection isrequired for gig workers in Japan and how
to enhance their bargaining power in reality,
in order to present reference material for theworld.
   Regarding health management for
teleworking employees (the opposite concept
to self-employed teleworkers), Ishizaki (2021)
pointed out that, even for off-site employees,
employers should establish a health and safety
management system, provide health andsafety education (Article 59 of the Industrial
Safety and Health Act), develop a healthconsultation system (Article 13-3 of the same),and implement occupational hygiene measures(working environment control, administrative
control, and health control) necessary against
foreseeable health hazards causing such as
mental instability.11) This opinion is applicableto gig jobs if gig workers do their jobs using
computers and other digital devices at any8) In California in the US, for example, the judge ruled that a California law backed by Uber and other gig economy
companies, which ensures gig workers are considered independent contractors while granting them limited benefits,
is unconstitutional under California’s Constitution (https://www.nytimes.com/2021/08/20/technology/prop-22california-ruling.html, last accessed February 16, 2022).
9) As mentioned above, the laws of the UK have had a significant impact on the legal system in Japan. The Health and
Safety at Work etc. Act 1974 (HSWA) of the UK requires every employer to conduct his/her undertaking in such a
way as to ensure that “persons not in his/her employment” are not thereby exposed to risks to their health or safety(s.3(1)). “Persons not in his/her employment” include self-employed persons and visitors (Selwyn and Moore 2015,
117–118). The act also requires every self-employed person to act in such a way as to ensure that he/she and otherpersons who may be affected thereby are not thereby exposed to risks to their health or safety (s.3(2)).
10) In Japan, those who have not concluded a formal employment contract (but have concluded a contract or service
agreement) and been working under the conditions similar to those for employed workers are called employment-likeworkers or dependent self-employed workers. If illegality is suspected, such a contract may be called a fraudulent
contract.
11) Mishiba (2020) agrees with Ishizaki (2021) and examines relevant conditions, methods, and contents more closely.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

place outside facilities operated by clients.
   In general, ways of protection for
dependent self-employed workers are as
follows: (i) expanding the concept of a worker;(ii) defining the third category (a conceptof “semi-worker” or “quasi-worker”) in
addition to the concepts of a worker and selfemployed workers and partially expanding
protection under labor laws to those under
this category; and (iii) not adopting both (i)and (ii) but granting special protection byenacting independent legislation. Concerning
occupational health and safety, anotherapproach, similar to (ii) and (iii), requires aperson conducting a business or undertaking
to take measures to protect people engaged by
and working for the person while defining themas a worker.12)   I n t h e c a s e o f ( i ) , i n s t e a d o f t h econventional concepts and criteriaof “employees” such as employment
subordination or personal subordination(i.e., the state of being under the control
of another), economic, and organizational
concepts of subordination can be actively
considered by establishing uniform criteria
across various labor laws and regulations13)
or by relatively applying relevant individual
laws and regulations14) to recognize people as“employees.”   In the case of (ii), self-employed workers
such as gig workers are not uniformly
recognized as “employees,” but for parts
where protections are needed as employees,
partial protections should be provided (i.e.,
partial application of the “employee” status
should be given).15) A similar stance is seen in,for example, a judgment by the UK Supreme
Court (Uber BV and others v Aslam andothers [2021] UKSC 5), which ruled Uber12) In Australia, s.19 of the harmonized Work Health and Safety Acts target a person who conducts a business orundertaking (PCBU), not an employer, and requires them to ensure, so far as is reasonably practicable, the health andsafety of workers engaged, or caused to be engaged by the person. The scope of these Acts has been set very broadly
to cover all kinds of work arrangements and in order to avoid frequent revisions considering the speedy changes ofmodern business models. In these statutes, PCBUs include franchisers, principal contractors, and upstream vendors
in the supply chain. A subcontracted self-employed person could be a PCBU and worker. The term “worker” broadly
includes a person who carries out work in any capacity for a PCBU, such as a contractor and an employee of acontractor. A worker is not required to be a person who carries out work for a specific PCBU; it is enough to be a
person who carries out work for an unspecified PCBU(s). Those who work in a downstream supply chain, therefore,
fall under workers (see Bluff et al’s article in this issue; also see Johnstone (2019) and Johnstone and Tooma (2022,
ch 2). It is difficult to determine whether such a definition is applicable for a case where, for example, the digitalplatform only plays an intermediary role between an end user and a worker, like crowd work. According to Prof.
Johnstone (2019), each case will depend on the exact nature of the relationship between the intermediary and theworker.
13) An example is described by Hashimoto (2021), who argues that, in Japan, judicial precedents so far (especially thoserelating to definition of “employee” under the Labor Standards Act and the Labor Contracts Act) are too focusedon the concept of personal subordination to accept the broader concept of being the “employee.” The author thenargued that we should consider actively the concept of economic subordination by comparing with German laws andEU rules, and when a worker does not voluntarily bear any management risk and is under “de facto constraints,” adefinition of the “employee” should be applied consistently across different labor laws and regulations. This theory
may aim to avoid the generation of a gray zone, which causes a gradual weakening of the protection for workers.
Kawaguchi (2012) is on the same side. In a part, however, this perspective lacks the protection for those who are not(deemed to be) workers.
14) See, for example, Kezuka (2017).
15) See, for example, Kamata (2019); and its English version, Kamata (2020).

Legal OHS Protections in Japanrideshare drivers must be treated as workers16)
because of the Uber’s level of control overworking conditions. 17) A white paper, Work
4.0, published by the Federal Ministry ofLabour and Social Affairs in Germany 18)
also takes the similar position. This white
paper denied the status of “employee” for gig
workers but concluded that “one-size-fits-all
solutions will not meet the needs of all selfemployed individuals. Legislators should
therefore determine the appropriate level ofprotection which different types of worker’s
need, and include them in labour- and socialpolicy legislation accordingly.” In addition,
this white paper suggested the enactment of the
Crowdworking Act (Crowdwork-Gesetz) andthe application of conventional provisions of
the Home Work Act.19)   In the case of (iii), the legal status of
employment-like workers and gig workers
is put aside, and efforts are made to provide
necessary protections by expanding the scopeof existing laws and establishing new ones.20)

65

Work 4.0 in Germany is close to this positionin terms of the legislative approach. France
has taken this position as it has establisheda special law for crowd workers who meet
specified requirements to make platforms sharethe costs for worker’s compensation insurance,
job training, and business career certification(Suzuki 2017; Kasagi 2019).
   As a way of protection for dependent
self-employed persons such as gig workers,
this article first attempts to flexibly apply theconcept of being an “employee” (without
expanding it; without changing the concept
itself) and adopt (iii) to deal with the portion
not covered by such flexible interpretation.
Specifically, it is necessary to set out theconcept of the “worker” separately fromthe “employee” that is currently covered by
the labor laws and “self-employed,” by the
economic law, to support the activities andprotection of the workers, and to strengthen
their solidarity. 21) Their health and safety
should be ensured under this process. We will16) In the UK, in addition to two categories of employment, employee and self-employed, there is an intermediate third
category of a “worker.” It is a term used in the Employment Rights Act 1996 and the Equality Act 2010, and does
not necessarily mean a party concerned to a labor contract. Prof. Diana Kloss MBE, one of the country’s leading
authorities on occupational health, stated as follows (via an email to Mishiba):  “The UK common law has maintained the master/servant viewpoint for several hundred years, but for protecting a“worker,” we are under pressure to get rid of the viewpoint. Now, the courts are required to contemplate the reality ofthe situation and not what the employment contract says.”  “But interestingly, the Supreme Court takes a different approach to vicarious liability. According to a judgment
delivered immediately before this judgment, the Supreme Court ruled that employers could be liable for wrongfulacts committed only by their employees but not by independent self-employed workers (Barclays Bank v Various
Claimants [2020] UKSC 13).”17) A judgment rendered by the Court of Appeal, the original decision of the case (Uber BV and others v Aslam andothers [2019] IRLR 257) stated that the mechanism of the algorithmic management by Uber was coercive (if drivers
maintain a low acceptance rate, the system offers less opportunities to them).
18) Federal Ministry of Labour and Social Affairs, White Paper Work 4.0, March 2017. https://www.bmas.de/EN/
Services/Publications/a883-white-paper.html.
19) See Kamata et al. (2021, 23-52) and Yamamoto (2021, 72–93).
20) For example, Toki (2020, 372–373).
21) Ouchi (2021, 11) argues that the sole application of the economic law will not provide an adequate protection, andthat the problem is how to include workers who are in the intermediate state not covered by the labor laws into theprotection framework.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

discuss the details of purposes and methods inthe following.
   Moreover, based on the idea of Prof.
Hamamura, who recommends the expansion of
the definition of the “worker” under the Labor
Union Act and the utilization of the Small andMedium-Sized Enterprise Cooperatives Act
for people working in the platform economy(Hamamura 2018), we also examine whether
the Small and Medium-Sized Enterprise
Cooperatives Act is applicable to protect gig
workers.
4. THE CURRENT CIRCUMSTANCESOF GIG WORKERS
There are various types of gig workers,
including crowd workers on crowd sourcing
platforms and ridesharing drivers, but they
have points in common. As shown in Figure
1 below, digital platforms on the Internet

provide job opportunities for workers; thus,
a tripartite structure exists. A recent example
is Uber Eats, which is well known in Japan,
which has a system where workers register on
the platform and deliver food from restaurants
to destinations during whatever time slot they
prefer.
   Although there are no official statistics
that would make it possible to know theexact number of gig workers, in researchon freelancers (independent self-employedworkers) conducted by the Japan Institute forLabour Policy and Training (JILPT 2019), theinvestigation results about crowd workers are
informative. This is because most gig workers
are those who work via digital platforms
without entering a labor contract, and most
crowd workers22) are more or less gig workers.
According to JILPT (2019), crowd workers
represented 12.9% (1,068 people) of the total

Platform (PF)Order & Accept

Offer & Accept

a case each timea job each time

(Gig worker [individual])(Orderer/Client/Consumer)
No direct contract

Figure 1 Basic Structure of the Gig Economy22) People who receive work orders via crowd sourcing platforms that outsource tasks online to an unspecified numberof people (JILPT 2019). Some of them are considered to be gig workers.

Legal OHS Protections in Japan

samples (8,256 freelancers).23) The research
provided the following breakdowns by industry
type in descending order: clerical support(54.9%), professional and technical (20.3%),
field construction work (8.9%), IT (6.8%),
design/video production (6.0%), and life
service and barber/beautician (3.1%).
   This research shows a tendency that
crowd workers (i) are young, female, university
graduates, and/or married, (ii) have multiple
freelance jobs, (iii) provide labor to multiple
clients, (iv) have difficulty receiving orders
due to the substitutability of their work, (v) are
under the directions of their clients concerning
contents of and ways to perform tasks without
specified work place and time, and (vi) receive
low wages (less than 500,000 yen annually
in many cases). The cases of ending therelationship before the contract termination
were unexpectedly few (10-15%). It also showsthat an agent usually determines the working
condition under a contract with a client andresponds to any problems. Moreover, crowd
workers demand to ensure the properness of
their working conditions and develop conditions
to avoid problems with their clients (caused by
payment delays, pay reduction at clients’ own
discretion, etc.) more keenly than freelancers.
   Of all 8,256 freelancers, this researchshows a comparatively higher satisfaction with
their working time, sense of accomplishment,
and motivation. Many of them, however, arenot satisfied with their income.
   These data do not directly show the stateof health and safety of freelancers and gig

67

workers but are worth referring to because,
as mentioned before, the Industrial Safety
and Health Act in Japan covers stresses(psychosocial risks) related to general working
conditions such as workers’ placement andworking hours. The result suggests thatworkers overwork themselves to make a living
and cannot avoid risks of falling or traffic
accidents. However, it also shows that there
should not be comprehensive restrictions on
their jobs.
5. THE POSSIBILITY AND
LIMITATIONS OF APPLICATION
OF THE STATUS AS EMPLOYEES/WORKERSIn some cases, even gig workers might berecognized as “employees or workers” underJapanese labor laws. Suppose the statusof being an “employee” under the Labor
Standards Act and the Labor Contracts Act isrecognized—in this case, gig workers will beprotected as general employees under theselaws and the Industrial Safety and Health Act.
In addition, if the status of being a “worker”
under the Labor Union Act is recognized,
they can join an organized group with specificbargaining powers to conduct collective
bargaining concerning safety and health issues,
which could lead to the establishment of thesafety and health measures appropriate for theoccupational type and other conditions. In thiscontext, we will first examine to what extent
the concept of “employee/worker” can becontrolled (i.e., interpreted flexibly).

23) This research defines freelancers as “people running a business without employees and physical stores, whose
occupation is not agriculture or fishery” and estimates there are about 3.67 million people who perform freelance
work, either as their principal or side source of income. Freelancers and gig workers have a point in common; they
are usually not treated as employees and work as an individual.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

A. The Status of an “Employee” under
the Labor Standards Act and the Labor
Contracts Act
Based on judicial precedents 24) and thegovernment’s views, 25) the concept of an“employee” is the same under the Industrial
Accident Compensation Insurance Act andthe Labor Standards Act. The concept of an“employee” under the Industrial Safety and
Health Act and that under the Labor Standards
Act is also the same. Moreover, the conceptof an “employee” under the Labor Standards
Act and that under the Labor Contracts Act(Article 2) is almost the same. Essential
elements commonly seen in the “employee”
concept under these laws are (i) employment
subordination (the state of being under thecommand and control of an employer) and(ii) the receipt of reward as remuneration forlabor.26) Element (i) is satisfied when a person
is under the direction of an employer and works
for the employer in a broad sense even without
performing tasks following the employer’s
direction to the letter, and (ii) is satisfied when
the reward is paid as remuneration not forthe completion of a task but for the provisionof labor. As specific decision factors, thecourts have comprehensively considered thefollowing (they are not requirements and it is
not always necessary to meet all of them): (i)the presence or absence of freedom to accept or

reject a work order, task direction, etc., (ii) the
presence or absence of command and control
on the content of and how to perform a task,(iii) the presence or absence of a designationor control of the workplace and working hours,(iv) the presence or absence of alternative labor
sources, (v) the presence or absence of a reward
as remuneration for labor, (vi) the presenceor absence of proprietorship (ownership or
the share of responsibility for machinery andequipment, and the amount of remuneration),(vii) the degree of exclusivity, and (vii)
responsibility for taxes and public dues (withor without a deduction for withholding tax
and social insurance premiums). There arevarious forms of gig work, but a common form
is that in which a worker receives an orderfrom a client via a platform and completes theorder. In many cases, the order has a service
agreement or contract, the worker maintains acertain independence, and remuneration is paid
not for labor but for a product. Hence, it would
be difficult to recognize the “employee” statusunder the Labor Standards Act as this requires
employment subordination as a precondition.
   Appropriate worker ’s compensation
is a part of occupational health and safety
in a broad sense and is highly called for byworkers working in a situation similar to thatof employed workers. As mentioned earlier, theconcept of an “employee” under the Industrial24) Chief of Fujisawa Labor Standards Office Case (Supreme Court of Japan First Petty Bench decision, June 28, 2007),Labor Case, No. 940, 11; Chief of Yokohama Minami Labor Standards Case (Asahi Paper Industry) (Supreme Court
of Japan First Petty Bench decision, January 18, 1996), Labor Case, No. 714, 14; Asahi Shimbun Case (International
Editorial Department journalist) (Tokyo High Court decision, September 11, 2007), Labor Case, No. 951, 31; Japan
Broadcasting Corporation Case (Osaka High Court decision, September 11, 2015), Labor and Economic Case
Newsletter, No. 2264, 2; Chief of Shinjuku Labor Standards Office Case (movie shooting engineer) (Tokyo High
Court decision, July11, 2002), Labor Case, No. 832, 13; etc.
25) See Labor Management Relations Law Study Group (2011).
26) See Labor Standards Law Study Group (1985).

Legal OHS Protections in Japan

Accident Compensation Insurance Act is thesame as that under the Labor Standards Act.
The former has, however, established a uniquescheme to allow self-employed carpenters(independent craftsmen who undertake
construction jobs) to obtain coverage. The
subjects of this special insurance coveragescheme were limited to the automobile driving
service industry, construction industry, fishery,
forestry, and the like. Following a revision in
September 2021, the scheme started to coverthose who perform delivery services using abicycle, such as Uber Eats. However, manyindustries where gig workers and freelancers
exist have not been covered yet. The worker’s
compensation insurance under this uniquescheme is deemed to cover cases almost thesame27) as those under the insurance for generalemployees, such as commuting accidents
occurring on the way to or from the workplace.
Still, the availability of protection could be
different in some cases. For cases such as anaccident occurring when a worker takes his or
her child between home and nursery schoolor back pain caused by work at home, thecompensation insurance might not apply togeneral employees,28) but we should consider
the possibility of offering compensation to gig
workers. For other cases, such as long working
hours and mental health conditions, generalemployees would be covered, but there should
be higher requirements to give compensation69

to gig workers according to the level of their
independence during work.
B. The Status of a “Worker” under the Labor
Union Act
According to judicial precedents in Japan,
the status of being a “worker” defined under
the Labor Union Act is often considered aconcept covering a more comprehensive rangeof people than the definition of “employee”
under the Labor Standards Act and the Labor
Contracts Act. Therefore, even though theconditions for the latter are not met, those forthe former may be met in some cases. When
only the worker criteria under the Labor Union
Act is deemed to be applicable to an individual,
he or she would not be protected directly by
the Labor Standards Act and the Industrial
Safety and Health Act but would become able
to join a labor union or form a new one, andthereby become able to negotiate with theemployer through collective bargaining (which
the employer must participate in), regarding
specific health and safety conditions.29) Thisis effective in developing health and safetymeasures by job type.
   In Japan, the “worker” defined under
the Labor Union Act has been interpreted
to “include those who should be defended
by organizing a labor union and practicing
collective bargaining.” 30)   In addition, relevant precedents31) have27) Ministry of Health, Labour and Welfare: https://www.mhlw.go.jp/new-info/kobetu/roudou/gyousei/rousai/dl/0403245-08.pdf, accessed February 9, 2020.
28) Because the former case is not considered as having occurred during commuting, and the latter is not a task
performed in the workplace.
29) In Japan, unreasonable refusal by an employer to engage in collective bargaining with a labor union would be
deemed to be an unfair labor practice, and a labor relations commission would give a relief order or a court wouldorder payment of damages, which is practically compulsory.
30) Labor Management Relations Law Study Group (2011).
31) CBC Orchestra Labor Union Case (Supreme Court of Japan First Petty Bench decision, May 6, 1976), Supreme

70

Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

decided that, in determining whether a person
falls under the definition of a “worker” under
the Labor Union Act, basic decision factors are
as follows (they are not requirements, and it is
not always necessary to meet all of them): (i)inclusion in a business organization, (ii) onesided/adhesion contract provisions, and (iii)
receipt of reward as remuneration for labor;
the following are considered as supplementary
positive decision factors (the presence of thesefactors may lead to recognition of the person
as a “worker”): (iv) a relationship in which aperson must accept a work order and (v) labor
provision under control and supervision ina broad sense as well as a certain restriction
by place or time; the following are negativedecision factors (the presence of these factors
may lead to less recognition): (vi) the presenceof significant proprietorship. In this context,
the “worker” under the Labor Union Act isdeemed applicable not only to employees witha labor contract but to some independent selfemployed workers and artists (maintenanceservice contractors of electrical equipment
manufacturers,32) opera singers,33) etc.). Gig
workers, therefore, could be protected by the
Labor Union Act as “workers” under this act if

the above positive factors are met.
   There is a limitation, however, incontrolling (i.e., interpreting flexibly) theconcept of a “worker” under the Labor Union
Act. A representative case is the order of
the Central Labour Relations Commission34)(CLRC Order March 15, 2019, Labor andEconomic Case Newsletter, No. 2377, p.3)
issued on March 15, 2019, regarding afranchise contract for a convenience store (asmall supermarket35) that sells mainly groceries
with consumer-friendly characteristics suchas multi-store operation and 24/7/365 opening
hours). One of the common factors, in thiscase, is that both a franchisee and a gig worker
are formally proprietors but they are boundunder contract and working conditions that are
specified solely by the other party. In this case,the owner of the convenience store, one partyof the franchise contract, was argued against by
the other party, a franchiser of the convenience
store (hereinafter referred to as “franchiseheadquarters”), regarding whether the owner
is a “worker” or not. The order denied suchstatus and concluded as follows. There are“de facto constraints” and “one-sided contract
provisions” in the relationship of the owners

Court Reports, Vol. 30, No. 4, 437; New National Theatre Tokyo Incident Case (Supreme Court of Japan Third
Petty Bench decision, April 12, 2011), Supreme Court Case, Vol. 65, No. 3, 943; INAX Maintenance Case (Supreme
Court of Japan Third Petty Bench decision, April 12, 2011), Supreme Court Case, No. 236, 327; Victor Service &Engineering Incident Case (Supreme Court of Japan Third Petty Bench decision, February 21, 2012), Supreme Court
Case, Vol. 66, No. 3, 955; etc.
32) The aforementioned INAX Maintenance Case Supreme Court decision.
33) The aforementioned New National Theatre Tokyo Incident Case Supreme Court decision.
34) An independent administrative agency (quasi-judicial body) established to deliver settlements of collective labormanagement disputes under the Labor Union Act. The agency promotes more technical and flexible settlements
than the courts. It also treats individual labor-management disputes. It has the formal powers of conciliation,
mediation, and arbitration. Its arbitration decisions are binding on the parties concerned. The first instance is to be
determined by a prefectural labor relations commission, but if a party has an objection, it can appeal the decision to
the Central Labour Relations Commission. If a party has an objection to the decision of the Central Labour Relations
Commission, it can apply to the court for cancellation of the decision.
35) There are nearly 60,000 stores in Japan as of December 2021 (Japan Franchise Association website: https://www.jfafc.or.jp/particle/320.html, accessed February 20, 2022.

Legal OHS Protections in Japanof each convenience store with the franchiseheadquarters, such as the requirement of 24hour operation, no closing day, and paymentof a specified loyalty; however, these binding
conditions are rooted in the nature of the
franchise contract. On the other hand, because
the convenience store owner is an employer
and a person who conducts a business orundertaking, the significant proprietorship is
recognized. Therefore, the “worker” statusunder the Labor Union Act does not apply.
   The Central Labour Relations Commission
indicates the necessity of the development of ascheme to ensure social protection and disputesettlements because “concerning the issues
arising from [...] a disparity of bargaining
power between a person and a business, even
if the person does not have a legal right tobargain collectively under the Labor Union
Act, the development of an appropriate
problem-solution mechanism, efforts of bothparties toward it, and especially the company’s

71

consideration are desirable.”   Given the broadness and flexibility of theconcept of a “worker” under the Labor Union
Act on the one hand, and conditions such as
constraints on and economic dependency(a vertical relationship due to livelihood
dependency) of gig workers caused byaccessoriness and adhesiveness of contracts,
the labor relations commission or courts mightrecognize that they fall under the category of a“worker” under the Labor Union Act.36) There
should be a certain level of protection forthem, such as ensuring the right of solidarityand bargaining.37) When the status of “worker”
is recognized for gig workers, however, acomplex problem about who should be deemed
the “employer” may arise.
   It is, therefore, necessary to examine how
to protect gig workers who cannot be coveredby controlling (interpreting flexibly) theconcept of a “worker” under the Labor Union
Act and other labor laws.

36) There is a case that an organization called Uber Eats Union formed by 30 Uber Eats delivery staff applied the Tokyo
Metropolitan Government Labor Relations Commission to examine a platform, the Uber Eats Japan Co., Ltd., andgive a relief order to begin collective bargaining concerning a way to determine pay, compensation for injuries due
to work, and other matters. On November 25, 2022, the Commission ordered the platform to engage in collective
bargaining. The platform argued against the validity of the organization as a labor union but the Commission decided
the delivery staff are workers under the Labor Union Act based on a general judgment as follows (Bengo4.com
News, November 25, 2022, https://www.bengo4.com/c_5/n_15309/ ):  (i) Although the delivery staff worked without the restriction of place or time and have freedom to accept or reject awork order, their behaviors were controlled in reality by algorithmic management, performance evaluation, and otherschemes so that they cannot refuse the requests from clients easily.
  (ii) Significant proprietorship is not recognized for the delivery staff, and they were included in the businessorganization as the essential labor force of the platform by offering incentives to secure delivery staff working
exclusively the company. The delivery wage is in fact a consideration for performed work.
  (iii) The Uber Eats determines at its sole discretion the terms and conditions of an adhesion contract with its delivery
staff.
37) Based on the guarantee of basic labor rights, Mishiba (2020, 7–8) stated as follows: “the development of a system
to promote the solidarity should be considered” also for employment-like workers. The author continues, “it would
be necessary to at least establish support measures such as imposing restrictions on contracts that interfere withcollective bargaining or class action taken by employment-like workers, and requiring the orderer (and the like) tointermediate between an employment-like worker to other employment-like workers who work for the same orderer(and the like) to allow them to communicate each other, if so requested by the worker.”

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

6. THE POSSIBILITY AND LIMITATION
OF EXPANDING THE SCOPE OF THE
INDUSTRIAL SAFETY AND HEALTH
ACTIn principle, the Industrial Safety and Health
Act in Japan specifies provisions that require
the business operator (a person who employs aworker or workers and to whom business profit
is attributable, including a sole proprietor or
legal entity ) to protect his or her employees
from various occupational health and safety
risks related to industrial activities, including
physical risks caused by machinery operation,
dangerous substances, construction work, etc.,
as well as psychosocial risks such as fatigue
and stress. This law also has many provisions
that require those other than business operators
to protect people other than those employedby them. For example, a person who places
an order (original orderer) contracting out ajob categorized as the construction industry,
etc. and also carries out some portion of thejob him- or herself (called “principal business
operator”) is required to engage in the overall
control and management of the safety ofworkers including subcontractors, lowertier subcontractors, etc. working at the same
construction site (including risk information
sharing and safety patrol) (Article 30). Article
31 of this law specifies that orderers contractingout a job categorized as construction etc. whocarry out a part of the job themselves andmeet specified requirements must take similar
necessary measures to prevent industrial

injuries for subcontractors and the like as theywould do for workers they employ, when they
make the workers use structures and otherdangerous materials (including scaffolding,formwork supports, and alternating-current arc
welders) for which the orderers have the risk
information and management right. Article 30
has provisions about site management, andArticle 31, material management. In addition,
there are provisions to require manufacturers
and importers of specified dangerous andhazardous chemical substances to provide
potential users of them risk information about
these substances by labeling or other means(e.g., Article 57). The Worker Dispatch Act(the Act on Securing the Proper Operation ofWorker Dispatching Businesses and Protecting
Dispatched Workers) imposes obligations toimpose more strict health and safety regulations
on the person acting as the undertaking
business operator who directly commandand control workers than on the dispatchingbusiness operator (Article 45).38)   These r egulations assume that, toeffectively ensure health and safety, it is
not sufficient to make business operators
protect the workers they employ. Hence,these regulations require those who havethe right to manage information about andcontrol the sites and materials with potential
hazards and risks to provide such informationand perform necessary protection measures(Toki 2020, 368).39) It may be said that theseprovisions reflect the principles such as38) For the features of the Industrial Safety and Health Act in Japan, refer to Mishiba et al. (2022, 1-180).
39) Toki (2020) says that the targets of these provisions are given a duty to observe the labor regulations (in this case, theIndustrial Safety and Health Act) because they are exercising the authority of the employer under a labor contract.
That is certainly true for some undertaking business operators, but principal business operators, for example, areprohibited to directly give instructions to assigned workers such as subcontractors (which would be deemed as anLegal OHS Protections in Japan

Equivalenzprinzip (the idea that a person who
benefits from an activity must be responsible
for the prevention of and compensation for
any accident caused by such activity) andforeseeability and controllability (the ideathat a person who can foresee and control an
accident must be responsible for the preventionof and compensation for such an accident).
Essentially, however, these provisions are
based on the nature of occupational health andsafety which primarily pursues the preventionof industrial accidents. Because many of theseregulations target constructors, shipbuilders,chemical substance manufacturers, etc., it isdifficult to generally apply them to industries
that commonly provide gig jobs.40) In addition,
the Industrial Safety and Health Act in Japanand relevant ministerial ordinances do notalways clarify the subjects of the protection(according to Article 1 and Paragraph 1 of
Article 3 of this act, it aims to the protection of
employees in general, but there are not many
individual provisions that designate employees
as the subject to be protected). In this context,
the protection subjects may be interpreted
naturally as employees or interpreted to include
a wider range of people.
   Recently, a precedent was decided thatinterpreted the scope of the protection under73

some provisions of the Industrial Safety and
Health Act to be broader. That was a case of
construction asbestos lawsuit (Kanagawa firstparty) (Supreme Court of Japan First Petty
Bench decision, May 17, 2021; Supreme Court
Reports, Vol. 75, No. 5, 1359). Employees of
construction companies and self-employedcarpenters who had been suffering fromasbestos lung, lung cancer, or other diseases
caused by exposure to asbestos claimed
compensation for damages against both
the Japanese Government and construction
materials manufacturers. The reasons were that
nonuse of restriction power by the Japanese
Government regarding the direction andsupervision for the use of protective equipment,labeling and posting as to the danger ofasbestos, and other measures was illegal
under the State Redress Act, and the failure of
duty of care by construction companies suchas the failure of warning about risks of the
products was an unlawful act. Japan banned
the manufacturing of asbestos in September
2006 under the Order for Enforcement ofIndustrial Safety and Health Act,41) but somepeople engaged in construction work who had
performed building construction or demolition
up to then (both employees and non-employees
such as self-employed carpenters) had

evasion of the law because they should be treated as workers under a dispatch arrangement. Refer, for example, to“Standards regarding the Division between Businesses Performed by Worker Dispatching Businesses and Businesses
Performed under Contract” (Notification of the Ministry of Labor No. 37 of 1986)). Historically, the Industrial
Safety and Health Act was derived from the Labor Standards Act to play a technical and flexible role to pursue theprevention of industrial accidents. It is, therefore, not appropriate to identify who is responsible for hazard prevention
measures because of the similarity to employers in their status.
40) The workers’ home falls under neither the category of “workplace” that is mostly covered by the Industrial Safety
and Health Act, nor the “office” that is subject to the relevant Office Hygiene Standards Regulations (Ordinance ofthe Ministry of Labor No. 43 of 1972).
41) The Supreme Court confirmed the details that the Government had required business operators to “prepare (notconfirm the use of equipment)” the protective equipment and raised the level of controls to be taken depending on
the assessed level of asbestos hazards by providing notification and other means (not legally binding).

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

developed mesothelioma, lung cancer, or otherasbestos-related diseases. Victims filed a classaction against the government and construction
materials manufacturers to eight district courts
across the country. The case mentioned above
is one of these lawsuits.
   A point of issue, in this case, was whether
the Industrial Safety and Health Act thataims to secure the health and safety of the“employee” in principle also covers selfemployed carpenters under a contract/service
agreement or not, and in the event of failureof restrictions (including establishment orrevision of legally binding rules or issuance of
notifications not legally binding) for protecting
them, whether nonuse of restriction power by
the Japanese Government could be illegal ornot.
   At that time, Article 57 of the Industrial
Safety and Health Act required a person who
puts specified chemical substances into a
container, or packages or transfers them toothers, to inform the parties concerned ofrelated risks or other information by putting alabel identifying this information on a container.
In addition, Article 38-3 of the Ordinanceon Prevention of Hazards Due to Specified
Chemical Substances required business
operators to indicate hazards and precautions
for handling carcinogenic substances and otherspecified substances in the workplaces wherethese substances are handled. The Ordinanceon Industrial Safety and Health at that time
had required business operators to prepare
respiratory protective equipment but had not
required them to ensure that people engaging
in work use the equipment.
   The point of contention, in this case, waswhether the Government had committed anillegal act under the State Redress Act by failingto specify restrictions with the issuance of
notifications (not legally binding) and to makeadequate rules (legally binding). Concerning
the latter issue, the question was whether selfemployed carpenters were included in thesubjects of protection under these rules.
   The Supreme Court decided that the
government is liable under the State Redress
Act for not providing sufficient information
or guidance regarding asbestos risks and theimportance of wearing protective equipment bymeans of labeling, posting, or notification, andfor not making it mandatory for those engaging
in work to use protective equipment. In short,the Supreme Court affirmed the Government’s
compensation responsibility under the State
Redress Act for self-employed carpenters,
based on the following grounds. The Court
said:   1) The main purpose of the Industrial
Safety and Health Act is to protect employees
but this act also specifies provisions toensure the improvement of the workplaceenvironment. In addition, because Article 57of this act focuses on material hazards, thesubjects of the protection under this article
include non-employees who access theworkplace.
   2) The labeling requirement provided forby the Ordinance on Prevention of Hazards
Due to Specified Chemical Substances also
aims to protect people engaging in work
including non-employees at the workplace
where dangerous substances are handled.
   Based on this ruling, it is considered thatthe regulations regarding communication aboutrisks of dangerous and hazardous substances
and the improvement of the workplaceenvironment under the Industrial Safety and
Health Act are applicable to gig workers as

Legal OHS Protections in Japan

long as they work at construction/work sitesthat are managed and administered by business
operators.42) There is a limitation, however, inthe flexible interpretation by the courts. In fact,
the current Industrial Safety and Health Act
has contributed to the realization of only a partof the principle that a person generating risk
is responsible for risk management, and may
not protect all gig workers in different types ofindustries and jobs.
7. THE POSSIBILITY AND LIMITATIONOF APPLICATION OF THE CIVILLAW CONCEPTS OF EMPLOYERS’
DUTY OF CARE 43)
Even if the status of being an “employee/
worker” as defined under the Labor Standards
Act and the Labor Union Act is denied, theprotection under the civil law (usually, damage
compensation but could exceptionally include
prevention, i.e., refusal of work or demandfor performance) could be applied for healthand safety. According to precedents in Japan,
the orderers’ duty of care toward people who
receive work orders may arise under a complete

75

contract/service agreement. The duty of care isa civil law obligation generally incidental to acontract established by precedent. Regarding
precedent indications, Mishiba (2014) 44)
paraphrased the duty of care as a duty of (i)a “person who potentially has a practicalinfluence (in particular, potential control andmanagement)” on (ii) the “health and safety ofa subject,” that assumes the presence of (iii)“the possibility of avoiding a consequence”(iv) based on the “foreseeability” of accidents
and diseases, of (v) “implementing proceduresor giving his/her best attention to avoid such a
consequence.” Article 5 of the Labor Contracts
Act enacted in 2007 clarified the duty of carein a labor-management relationship, but it
goes even further than this. Even if there is nobreach of a statutory duty, a violation of thisduty of care might arise. Depending on thecontext of a case, a violation of guidelines notlegally binding may constitute a violation of
the duty of care.45) Its broad scope and contents
are close to those of the UK’s HSWA (Healthand Safety at Work etc. Act 1974) as wellas the Management of Health and Safety at42) Following this judgment, Article 22 of this Act and eleven relevant ordinances have already been revised andamended (e.g., to require constructors to develop the measures in stages to be taken for protecting self-employedcarpenters and others who are not in their employment but engage in work or access their construction sites, even
without the state of being under the command and control of the constructors). For details, refer to “Concerning
the Enforcement of the Ministerial Order Partially Amending the Ordinance on Industrial Safety and Health, etc.”
Labour Standards Notice No. 0415 Article 1, dated April 15, 2022. In addition, the Committee to Review the Healthand Safety Measures for Sole Proprietors and Other Individual Business Operators has held meetings since May
2022. Its agenda includes the necessity of more strict regulations for protecting self-employed carpenters and others,
how to regulate digital platforms, and rules necessary for assuring the health of sole proprietors. The author (Mishiba)
is a member of the Committee and reported on the UK and Australian legal systems.
43) As mentioned in Section 1, in Japan, this concept is commonly called the “duty of ‘safety’ consideration,” but it also
covers mental and physical health issues.
44) For details, see Mishiba (2014); Mishiba (2017).
45) The Ministry of Health, Labour and Welfare of Japan issued a notice under the joint signatures of relevant
administrative bodies to raise awareness about road safety among food delivery service platforms and delivery staff(Safety Division Chief, Ministry of Health, Labour and Welfare “Prevention of a traffic accident in food delivery
using the bicycle and motorized bicycle.” Issued October 26, 2020. Safety Division Notice 1026. No.2, Attachment).
It is not legally binding but might be used as a reference by the judiciary to examine the detail of a duty of care.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

Work Regulations 1999, general duty clauses
specified by laws related to the industrial
safety and health including in those European
countries, and Canada’s Part II, Canada Labour
Code of 1985.
   A leading case of the Supreme Court
concerning the duty of care is the Japan
Ground Self-Defense Force Hachinohe
Vehicle Maintenance Factory Case (Supreme
Court of Japan Third Petty Bench decision,
February 25, 1975, Supreme Court Reports,
Vol. 29, No.2, p.143). In this case, a SelfDefense Force official was run over and killed
by a large vehicle driven by a peer, and the
bereaved family sued the Government forcompensation. The Supreme Court ruledthat “between the parties who are involvedin a social contact with each other following
certain legal relations, the duty of care should
be commonly recognized as an obligation one
party owes to the other, or the parties owe toeach other in good faith, that is ancillary tosuch legal relations.” That means even if there
is no employment relationship, the parties withsome social contact between them may bebound to the duty of care under the principle ofgood faith. Following this judgment, decisions
were made that a principal contractor owed the
duty of care to its subcontractors without anemployment relationship (a representative caseis Mitsubishi Heavy Industries Kobe Shipyard
Case (Hearing Impairment); Supreme Court
of Japan First Petty Bench decision, April 11,
1991, Supreme Court Reports, No.162, 295).
   Therefore, when an incident occurs,
caused by work materials (such as raw

materials, means to work, etc.) supplied by aplatform business to its gig workers, or whenan orderer’s dangerous instructions (such as
requesting transportation of excessively heavy
goods or speeding up delivery) result in a
traffic accident, the platform may be liable
to damages due to its failure of performing
its duty of care, given that the party enters
into a special social contact relationshipwith the other. This, however, does not apply
unconditionally. To impose the duty of care on
those other than the employer, there must be “aspecial social contact relationship.” Moreover,civil liability for damages requires the failure
to perform the duty of care, that is, a reason
adequate to make the party liable (fault) andnegligence. This would require, therefore, a
relationship between the platform and the gig
worker such that the platform can establish,
control, and manage work conditions with highaccident rates or command authority over theworker, which would allow the risks of workrelated accidents (damages) to be easier topredict and control. In addition, even if the
failure to perform the duty was recognized,
claims for prevention, such as demanding
performance of the duty, are not accepted inmost cases.46)
8. A LABOR-RELATED LAW: THE
HOME WORK ACT (ACT NO. 60 O/F
1970)47)
This law aims to protect industrial home
wor ke r s ( non- e mploye e s) who usu a lly
engage in material processing. In Japan,
the Factory Act, which came into force in46) For example, Takashimaya Kosakusho Co., Ltd. Case, Osaka District Court, November 28, 1990. Labor Economy
Court Precedent Preliminary Report. No.1413, p.3.
47) In this section, the authors referred to Hashimoto (2009), Hamaguchi (2020), and Kitaoka (2022).

Legal OHS Protections in Japan

1956 and aimed to protect people working
at factories (especially minors and women),
was a predecessor of the Labor Standards
Act (Act No. 49 of 1947). A system was later
developed where independent self-employedworkers, according to a legal framework,
perform cottage labor (homework) for factoryowners to avoid the application of this law
and compensation for workers’ injuries or
diseases. This system has remained to date.
In around 1958, deadly accidents occurred
where homeworkers who had glued the solesof wedge mules, which were in fashion at thattime, in a closed space died due to the exposure
to benzene contained in rubber adhesive.
   Based on these circumstances, the HomeWork Act likens the relationship between
homeworkers and businesses who outsource
jobs to that between labor and management.
In other words, although homeworkers were
excluded from the subjects of the Factory Act,the necessity of social protection for them
was recognized from economic, health, andsafety aspects and the Home Work Act wasestablished.
   A c c o r d i n g l y , t h i s l a w a i m s t oextensively improve the working conditionsof homeworkers by, for example, requiring
persons who outsource work to prepare aslip that clarifies details of outsourced tasks,
deadline/delivery date, wages, payment due
date, and other conditions so that clientsthemselves and third parties (supervisory
authority, etc.) can check the appropriatenessof these conditions. Worthy of special noteis Article 4, which is only an efforts clausebut aims to dissuade the clients from asking
homeworkers to work long hours.
   The circumstances of its enactment are
similar to those surrounding the gig economy

77

in a sense (business operators try to evade
their responsibility as an employer), and some
protection measures prescribed by this law
may be effective also in ensuring the health andsafety of gig workers. In specific, the viewpointof “extensively improving working conditions”
will support psychological and physical healthmeasures, which are regarded as of major
importance by recent occupational health andsafety laws.
   For general health and safety issues,
Paragraph 1 of Article 17 of this Act requires
businesses who outsource jobs to take hazard
prevention measures when they provide or
supply machines and tools, raw materials, andother materials to homeworkers. Paragraph
2 of the same article specifies the obligationsof homeworkers to “take” measures toprevent hazards due to machines tools
and raw materials, as well as gas, steam,and dust. Paragraph 3 of the same article
specifies the obligations of a homeworker’s
relatives residing together who are used by
the homeworker as “assistants” to “perform”
hazard prevention measures under Paragraph
2. Paragraph 2 is considered to impose on
homeworkers obligations to protect the healthand safety not just of themselves but also of
their “assistants.”   This law assumes workers work from
home, and in the course of its enactment, thenecessity of privacy protection was called for.
The law thus focused mainly on supporting
homework(ers) and adopted an approach tominimize restrictions. These circumstances maylead to a difference from the Industrial Safety
and Health Act. For example, the Industrial
Safety and Health Act has provisions the HomeWork Act does not have, that require a person
obliged to take measures (such as a business

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

operator) to make the subjects of protection(such as employees) adhere to “Dos” (such as
having the worker wear personal protective
equipment under Paragraph 1 of Article 327 of
the Ordinance on Industrial Safety and Health)and “Don’ts” (such as prohibiting workers
from entering the dangerous area under Article
245 of the same Ordinance).48)   Major executive authorities of the HomeWork Act are Chiefs of the Labour Standards
Inspection Office and Labour Standards
Inspectors (Article 29) and in the event of noncompliance with Paragraph 1 or 2 of Article 17
concerning general health and safety matters,
they can order the non-compliant person(orderer or homeworker) to stop issuing or
accepting contract and/or using machines, tools,
raw materials, etc. (Article 18). In violation of
Article 17 concerning general health and safety
matters or Article 18 concerning administrative
dispositions, a penal provision (fine) will apply(Article 35).
  The Home Work Act with these provisions
may not suit modern gig workers who usuallyengage in data processing, system construction,or similar tasks. However, there is an opinion
that legal measures should be taken inreference to the Home Work Act.49) In particular,
it is worth learning the approach of this law tomake a person, who outsources work, control
risks generated by the person him/herself andto require both the client and contractor to takenecessary health and safety measures. Revising
this law for gig jobs may be possible.
   It is, therefore, difficult to protect thehealth and safety of modern gig workers onlywith the current version of labor and laborrelated laws and regulations.
   The following sections will consider
the feasibility of ensuring health and safety
protection under economic laws. The JapaneseIndustrial Safety and Health Act actively
addresses workers’ psychosocial stress suchas by developing a new stress test system50)(Article 66-10). In this regard, workers’
working and economic conditions could be
general issues at least in the context of theIndustrial Safety and Health Act.
9. ECONOMIC LAWS AND THE HEALTHAND SAFETY OF PLATFORM
MEDIATED GIG WORK
A. Act against Delay in Payment
of Subcontract Proceeds, etc. to
Subcontractors (Act No. 120 of 1956)
This law targets people (parent enterprises)
who are, for a particular transaction, a party
involved in the transaction themselves(contracting for work from a client) and entrusta subcontractor to all or a part of their duties. It
aims to prevent parent enterprises from abusing
a dominant bargaining position as an orderer
to the subcontractor (sole proprietor or legal
entity whose capital is less than that of theparent enterprise). Transactions to be regulated
under this law are: the manufacture, repair,
processing, etc., of goods and consignment ofthese processes (Paragraphs 1 and 2 of Article2); consignment where the parent enterprise
engaging in the creation, provision, or use48) Kitaoka (2022).
49) Emeritus Prof. Sugeno proposes the introduction of a scheme which ensures the minimum wage under the HomeWork Act also for freelance workers (Keidanren 2019).
50) See Mishiba (2021).

Legal OHS Protections in Japanof the information-based product including
software, video content, and different designs
entrusts the subcontractor all or part of theirduties (Paragraph 3 of the same); service
contract where the parent enterprise entrusts
the subcontractor all or part of the provision ofa service the parent enterprise is engaging in(Paragraph 4 of the same). Under its provisions,these parent enterprises are obligated to deliver
documents containing the details of workof the agreement (Article 3) and to fix thedue date of payment of the proceeds of thesubcontracted work (Paragraph 2 of Article2) and are prohibited from refusing to receive
the work from a subcontractor or return the
goods once received without adequate reasons(Items (i) and (iv) of Paragraph 1 of Article4), delay the payment or reduce the amountof the proceeds of the subcontracted work
(Items (ii) and (iii) of Paragraph 1 of Article 4),
and retaliate against a subcontractor because
the subcontractor informed the Fair Trade
Commission or other administrative organs of
any of these acts (Item (vii) of Paragraph 1 of
Article 4). The law has provisions applicable incase of a violation of the above provisions, suchas recommendation or collection of reports by
the relevant authority and sanctions in caseof failure to meet these requirements. The
penal provisions, however, have not applied ingeneral (Kanai, Kawahama, and Sensui 2018,363), and successive illegal acts have takenplace; thus, the Fair Trade Commission started
to publish a list of companies the Commission
gave notification of a need for improvement.51)   Gig workers could be protected under this79

law as long as they are engaged in businessspecified in the law but the scope is limited.
In addition, the law does not have a provision
concerning general health and safety protection,such as a requirement for occupational risk
assessment on parent enterprises. As a natural
result, the law does not work for securing atransaction itself between a parent enterprise
and a subcontractor.
B. Act on Prohibition of Private
Monopolization and Maintenance of Fair
Trade (Act No. 54 of 1947)
In principle, this law intends to regulate any act
that practically contributes or may contributeto impeding or restraining fair competition,
falling under any of the following: (i) privatemonopolization, (ii) unreasonable restraintof trade, and (iii) unfair trade practices. The
purpose of this law is such as to promote faircompetition and the wholesome developmentof business activities and secure the interestsof general consumers. Case (i) means an act
such that an existing enterprise, in conspiracy
with other enterprises, “excludes” new or otherenterprises by, for example, impeding theirentry into the market, or “controls” them andhinders their autonomous decision-making
process by placing them under its umbrella(Paragraph 5 of Article 2). Case (ii) means an
act such that existing enterprises form a cartel
or use other means to fix the transaction price(for example, bid-rigging). Case (iii) means an
act such that an existing enterprise refuses orcauses another enterprise to refuse to supply
to a certain enterprise with goods, or unjustly51) Japan Fair Trade Commission website: https://www.jftc.go.jp/shitauke/shitaukekankoku/index.html, accessed
February 11, 2022.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

fix responsibility for or inflicts a loss on acertain enterprise by making use of its superiorbargaining position over the counterpartsuch as a continuous business relationship(Paragraph 9 of Article 2). The ways to secure
the implementation of regulations (i) and (ii)include an order by the Fair Trade Commission
to cease and desist a relevant act of violation(the Cease and Desist Order; Article 7), and to
pay to the national treasury a surcharge of anamount as an administrative penalty (Paragraph
2 of Article 7-2), and a criminal penalty (Item(i) of Paragraph 1 of Article 89). The ways tosecure the implementation of the regulation (iii)
include the Cease and Desist Order (Article 7).
   The Fair Trade Commission has also
published “The Policy on the Franchise System
under the Antimonopoly Act (June 23, 2011)” 52)
and has conducted research on the current
situation of the convenience store industry
in an attempt to protect franchisees (member
stores) that had not been covered under the
Labor Contracts Act.
   Hence, this act may apply to selfemployed gig workers. If applied, however, it
would directly modify the principle of a freeeconomy; thus, this law tends to be interpreted
and applied very carefully.53) The scope of theprovisions governing the abuse of a superiorbargaining position, whose applicability
is most frequently examined, is limited. In

reality, these provisions have been applied in acontrolled manner and so it cannot be said thatthey are flexibly and individually applicable tosettle various disputes. Moreover, the generalobligations of business operators to ensure
health and safety are not governed by this act.
C. Act on Improving Transparency and
Fairness of Digital Platforms (Act No. 38
of 2020)In the economic and industrial field, the Act
on Improving Transparency and Fairness ofDigital Platforms (TFDPA) was established(promulgated on June 3, 2020) and enforced
in 2021. This law well represents the soft-law
nature of Japanese laws.
   The Act targets the digital platform
providers and aims to control (not forbid)certain of their behaviors such as, by using
their superior bargaining position, imposing
unfair transaction conditions to a counterparty
to transactions, and unilaterally changing anagreement once concluded. On the other hand,
the law specifies that the involvement of thestate must be kept to the minimum necessary(Article 3). This law adopts a mechanism(called “co-regulation”) whereby the law
forms a broad framework of regulations
and encourages designated digital platform
providers to voluntarily take measures to ensuretransparency and fairness in transactions.

52) The Commission says as follows: “Under the franchise system, the member is integrated into the system of thehead office, including the system of comprehensive guidance. It is especially important, therefore, that a party
contemplating becoming a member makes the proper judgment before deciding to participate. It is desirable that thehead office discloses sufficient information to a party contemplating becoming a member when the member is invited
to participate in the franchise. In addition, the business transactions between the head office and the member after the
franchise agreement has been signed should not cause a disadvantage to the member unilaterally nor should it place
unjust restrictions on the member.”53) Japan Fair Trade Commission website: https://www.jftc.go.jp/dk/guideline/unyoukijun/gyouseishidou.html, accessed
February 11, 2022.

Legal OHS Protections in Japan

Specifically, among digital platform providers
with a specific business category and scale,this law targets only those designated by
the administrative body (designated digitalplatform providers). Its basic regulation policy
is to require those subject to the law to submit
annual self-evaluation reports about measurestaken, following which the administrative
authority will review the business status of theplatforms based on their submitted reports andpublish the results. Basic measures required
to be taken by the designated digital platform
providers include the disclosure of transaction
conditions and the establishment of systems
and procedures necessary to ensure fairtransactions and handle complaints.
   In April 2021, five companies including
Amazon Japan G.K., Rakuten Group, Inc., andYahoo Japan Corporation became designateddigital platform providers.
   Although this Act may not be commonly
thought of as a law to protect gig workers,
it is significant that some restrictions havenow been placed on digital platforms. Future
amendments could contribute to the broader
protection of gig workers using digitalplatforms.

81

D. Small and Medium-Sized Enterprise
Cooperatives Act (Act No. 181 of 1947) 54)
The purpose of this act is to provide for theorganizations (each small- and medium-sizedenterprise cooperative and the federation ofsmall- and medium-sized business associations)necessary for persons engaged in a small- andmedium-sized commercial business, industrial
business, mining business, transport business,
service business or any other business andother workers (both of these types of member
are cooperative members), and to achieve an
improvement in their economic status. Smalland medium-sized enterprise cooperatives(hereinafter referred to as the “cooperatives”)
are categorized into five groups based on themember’s business types and other factors(Article 3),55) but must be a juridical person(Article 4), and the member is able to join orwithdraw from the cooperative voluntarily(Article 5). The member has equal voting rights
and the cooperative has the purpose of serving
its members through its activities (Article 5).
A cooperative consisting of members whoseamount of capital and number of employees
do not exceed the specified values will be
exempted from the application of the Act on
Prohibition of Private Monopolization and
Maintenance of Fair Trade (Article 7). The54) In 2020, a legislation introduced by a Diet member, the Worker Cooperatives Act (Act No. 78 of 2020), wasestablished. It aims to protect workers who are actively engaged in public services (such as visiting care, after-school
childcare, self-reliance support for unemployed youth) as laborers. The act will be enforced on October 1, 2022,
except for some provisions. This is a part of the process to create a legal system for the consumers’ co-operative thatwas originally founded by Robert Owen in the UK and has been developed uniquely in Japan. This act takes over the
Small and Medium-Sized Enterprise Cooperatives Act in many parts, but its most characteristic point is that the act
defines the cooperative member is an individual and aims to protect the member as laborer in light of the relationshipwith the worker cooperative (i.e., acknowledging the legal status of the individual as a person who is a member ofmanagement and a laborer at the same time). Although this act does not have enough compelling force, it might beuseful for some types of gig jobs in the future.
55) A worker’s collective is one of the groups where a worker or other member starts and runs business by providing
one’s own capital and also provides labor.

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Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

main activities conducted by the cooperative
include joint activities related to the businessof members, loaning of business funds, andthe conclusion of collective agreements withclients to improve the economic status ofmembers (Paragraph 1 of Article 9-2, emphasis
added).
   Worthy of special note is that, under thisAct, counterparties on transactions with thecooperative and member have an obligation
to negotiate in good faith for the conclusionof collective agreements by the cooperatives.
Paragraph 12 of Article 9-2 specifies that anenterprise (excluding small-scale enterprises)that has a business relationship with acooperative or a member is to start negotiations
with sincerity when the representative personof the cooperative or the member states anintention to start negotiations to conclude acollective agreement on the trade terms andconditions. This act has no sanctions in thisregard, but a collective agreement is valid
directly for members. In the case that theconditions of an agreement are inconsistent
with the terms of the collective agreement, only
these inconsistent terms would be correctedpursuant to the collective agreement. When theparties concerned do not reach an agreement
through the negotiations for concluding acollective agreement or the interpretation andapplication of the collective agreement, eitherof them may file a request for mediation orconciliation with an administrative authority(who is usually a competent authority
governing the cooperative operation; if there isno competent authority, then it is the Small andMedium Enterprise Agency) (Article 9-2-2).
   Importantly, the Federation of Small
Business Associations (FSBA), which governs
each cooperative, may make proposals on theparticulars concerning small- and mediumsized enterprises directly to the Diet, a councilof a local government, or an administrative
authority (Articles 74 and 75). The provisions
aim to secure the political influence of smalland medium-sized business associations
through the FSBAs.
   As shown above, this act intends to enable
small and medium-sized business operators,
who are generally economically weak, toorganize trade associations or guilds, enhancebargaining power against clients and economic
power, and promote mutual assistance (notethat Paragraph 3, Article 5 of this act requires
political neutrality). The small- and mediumsized enterprise cooperative under this law isboth a profit-making corporation and nonprofit
corporation, and thus is theoretically regarded
as an intermediate corporation (NFSBA 2016,10). Examples of cooperatives under thislaw include the Federation of Akabou Light
Vehicle Transportation Cooperatives, which
is organized by sole proprietors engaging in
the transportation business under the samebrand, and the Soka Senbei Cooperative
which is organized by local manufacturersof rice crackers. This law has been appliedin few cases (there have been no cases inwhich a party filed a request for mediation in
negotiations with its client) and has not been
focused on in the labor field in Japan, but it
may be useful for gig workers. If gig workers
set up a cooperative, they would be able toconduct collective bargaining under legal
protection for improving working conditions
and occupational health and safety based on
the characteristics of each occupational type.
   This Act, however, has the following
problems for practical use.
   First, the law is not compulsory asLegal OHS Protections in Japan

compared with the provisions of the Labor
Union Act in terms of restricting unfair labor
practices (for example, employers cannot
refuse to bargain collectively and must not treat
any cooperative member in a disadvantageousmanner). The administrative body does nothave the authority to give a relief order tocorrect an illegal condition. Therefore, even for
an important problem such as health and safety,
there are no countermeasures available whena platform or an orderer refuses to engage incollective bargaining with the cooperative.
   Second, there are no guarantees for gig
workers such as the right to strike or take partin other collective activities, and they have no
exemption from civil liability or indemnityfrom prosecution for reasonable cooperative
operations, which are guaranteed for labor
unions by the Constitution or the Labor Union
Act (Paragraph 2 of Article 1 and Article 8),
respectively. If a cooperative makes a protest
or takes disputing action, it would have civil
liabilities including that the cooperative would
become liable to compensate damages toan orderer or the platform would be able toterminate a contract because of the breachof the contract. Moreover, the cooperative
would be subject to criminal punishment
depending on the method/mode of its acts,
such as forcible/fraudulent obstruction ofbusiness (Articles 233 and 234) or breaking
into a residence (Article 130). Therefore, if thecooperative holds collective bargaining withthe platform or orderer and the parties are at83

an impasse, the cooperative does not have any
effective solutions.
   Third, if the platform's office or theaddress of a company that operates the platform
is located abroad, the practical problem ofwhere they will engage in bargaining may arise(but this problem may arise in labor unions aswell).
   We should address a number of challenges
to using the Small and Medium-Sized
Enterprise Cooperatives Act for gig workers
to realize that important working conditions
such as health and safety are correctly ensured;
however, since there are various gig jobs suchas transportation and software development,
the industry type, job type, region, and otherfactors should be considered in collective
bargaining to ensure feasible health and safety.
The government should commit to providing
information and collecting data about the bestpractice and notices by publishing guidelines,56)
and establishing the minimum requirements, if
necessary.
   Moreover, considering the income
insecurity and the current expanding scope of
health and safety regulations, it is desirable
that the government includes the following
matters in the subjects of collective bargaining
between a gig workers’ cooperative and aclient: clarifying contract terms, determining
proper remuneration and securing payment,
providing social security (for illness, aging,
unemployment, etc.), supporting careerdevelopment, guaranteeing pay during leave56) The Ministry of Health, Labour and Welfare has already issued the Guidelines for the Appropriate Introduction and
Implementation of Off-Site Work Using Information and Communications Technology on February 22, 2018, andthe Occupational Health Guideline for VDT Work (Labour Standards Notification No.0405001) on April 5, 2002.
The National Institute of Occupational Safety and Health, a comprehensive research institute for occupational safety
and health in Japan, has also conducted research on occupational risk during teleworking, etc. However, the purposeof both of them is to provide the protection only for employees.

84

Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

for childbirth, childcare, and nursing care,preventing harassment, covering liability fordamage caused to a third party and securing
dispute resolution measures (when a platform
is based overseas).57, 58)
10. SUGGESTIONS FROMOCCUPATIONAL HEALTHThis section presents the findings from a
review of occupational health literature
concerning risks inherent to gig work andcontrol measures, as reference materials to beconsidered for theories of legal interpretation
and bargaining between relevant parties about
the duty of care, as well as for future legislative
processes.
   In Japan, no research has been conductedon the health management and occupational
health and safety of gig workers. In othercountries, a few studies have been publishedon gig workers’ health and safety. A study in
the U.S. warned that the health and safety riskhas been increasing because many gig workers
use their own cars for work or work at home,which invalidates the existing protection
against the known occupational risk factors(Tran and Sokas 2017). In addition, Bajwa etal. (2018) gave the following three categories
in examining the factors influencing thehealth of gig workers: a) hazards inherent to
the work (occupational vulnerabilities), b)
poor protection (precarity), and c) hazards

arising from the use of platforms (platformbased vulnerabilities). Factors for categorya) include the increase in the risk of traffic
accidents for drivers and musculoskeletal
injury due to prolonged typing and otherrepetitive movements. Factors for categoryb) include the necessity to prepare tools andequipment through one’s own efforts as well as
the limited opportunity for training and careerdevelopment. The above two categories areapplicable also for other jobs, but categoryc) is unique to gig work. In using a platform,
for example, the feeling of loneliness among
workers who have no personal relationship in
the platform, discriminatory treatment due touncontrollable factors, and stress due to theincome decrease have been observed.
   A German researcher’s study of crowd
workers in Germany (using the Somatic
Symptom Scale-8; SSS-8) showed a significant
increase in the number of physical conditions
among crowd workers compared to general
workers (Schlicher et al. 2021). A study in
the US examined the piecework system (theamount of pay is directly linked with thevolume of products produced or services
delivered by workers) of the gig economy
and indicated that such a system is a risk
factor for health (Davis and Hoyt 2020).
This study analyzed the results of a cohort
study (questionnaire survey of gig workers
and comparison of outcomes) conducted57) See JILPT (2011).
58) Note that JTUC Research Institute for Advancement of Living Standards (2018) examines the framework to protect“workers (not employees),” stating, “because in many cases, the conventional theory of including workers in abusiness organization is not applicable for people, especially crowd workers, if there is inequality of bargaining
power in a relationship with the other party, a status of being a ‘worker’ under the Labor Union Act should bebroadly applied for them” and “even if they are considered as self-employed workers, it should be accepted toconclude a collective agreement with similar effect as in a labor agreement and require the other party to docollective bargaining by applying the Small and Medium-Sized Enterprise Cooperatives Act.” Hamamura (2018, 12)
holds a similar view.

Legal OHS Protections in Japanby the Bureau of Labor Statistics (BLS).
The questionnaire survey asked a question
about the presence or absence of “healthobstacles” (whether there is any healthproblem that may restrict the daily life orwork life regardless of whether it is caused bywork) and self-evaluation data was collected.
It was a subjective scale, but annual andcumulative odds ratios of health obstacles weresignificantly higher among piece workers than
wage and salary workers (95% CI: annual 1.75
(1.16, 2.62); cumulative 1.42 (1.03, 1.96)).
   A paper indicated various influences of
the COVID-19 pandemic on gig workers.
Research conducted in Seattle in the US
revealed that only 31% of app-based drivers
were given appropriate masks and disinfectantsfrom their companies (Beckman et al. 2021).
A result of research analyzing the responses
of an interview survey on gig workers during
the COVID-19 pandemic showed that some
gig workers accepted diverse dangerous jobs
that entailed direct contact with other people,
mainly caused by the mechanism of thealgorithmic management (if workers maintaina high customer satisfaction rate, the system
offers more opportunities to them) (Cameron,Thomason, and Conzon 2021). The researchalso revealed that some of the gig workers
figured out a way to mitigate physical risks,
while some of them could not accept the risks
and temporarily stopped doing gig work.
   Gig work is similar to teleworking inthat computers and other digital devices areused and tasks are performed outside thesites of clients and platforms. Concerning
the risks inherent in teleworking and therecommended controls, a joint technical brief
was published recently by the WHO andILO (2021). This article seemed to grasp the85

immediate expansion of teleworking during
the COVID-19 pandemic and adopted theapproach of firstly securing teleworkers’ healthand safety, but did not mention a controversial
issue, the teleworkers’ status of being a“worker/employee.” This technical brief took
into account an employment relationship inprinciple and used the term “employer” but
did not use the term “employee” and rather
used “worker.” Generally, this technical brief
listed the advantages of teleworking (based oninvestigation results including job opportunities
for individuals with chronic conditions,
reduction of blood pressure, mitigation of therisks of developing depression, and increaseof physical activities) and aimed to promote a
proper teleworking arrangement. Assuming thedifficulty of the health and safety managementthat could be taken in practice in the offices,
the article also listed the following inherent
occupational risks: (i) physical conditions due
to prolonged computer use (musculoskeletal
injury, eye strain), (ii) social isolation, (iii)cyberbullying and harassment, (iv) disorderof the daily rhythm, (v) too much or too little
work, and (vi) increase of mental stress due
to interruptions caused by family members,
especially children.
   Concerning the controlling measures,
these papers, based on the difficulty ofsupervision and management by employers,
highlight the importance of cooperation among
workers and labor-management consultations(especially, consultations in the safety andhealth committee and with a representativein charge of safety and health). They also
place importance on the following factors:
periodic social communication (such as online
meetings, etc.), flexible working schedule(such as introduction of flexitime, etc.),

86

Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

avoidance of contact from employers duringdays off, clarification of work performanceand the priority order of tasks, proper labor
management using rules on work hours anddisciplines (e.g., no drinking, no smoking,etc.), workplace risk assessment using online
checklists, online education based on risk
assessment results, response to overworked
workers, positive feedback, promotion of
exercises, and support by occupational healthservices. In addition, they recommend that
employers provide workers with supplies
necessary for work, including computer
hardware and software, office furniture, andinsurance including worker’s compensation
insurance and home contents insurance. They
require that the government authorities monitor
and analyze matters about occupational
diseases and/or disorders. These statements
are also suggestive for the gig economy.
However, periodic social communication,
proper labor management using work rules,
online education, promotion of exercises, andother matters are founded on the employment
relationship. It is, therefore, difficult to require
those other than employers to realize these
conditions.
11. CONCLUSION: THE NECESSARYLEGAL RESPONSE
This section concludes the article by drawing
out its key points.
   First of all, concerning the status of
gig workers as “employees,” expanding thescope of the category of being “employees”

is difficult. We should apply labor-related
laws properly to protect people falling under
this category by flexibly interpreting theselaws. Especially for important law-protectedinterests such as health and safety, efforts
should be made to achieve protection underlaws including the Industrial Safety and Health
Act, the Labor Standards Act, and the Labor
Union Act by flexibly interpreting the existing
criteria. However, there are limitations to thisapproach. People who do not fall under thiscategory but need to be protected in a similarmanner to employees should be protected byapplying, for example, the Small and MediumSized Enterprise Cooperatives Act (See Section
9(D) above, i.e., a law for small- and mediumsized businesses to strengthen the solidarity,
enhance bargaining power, and promote mutual
assistance and political influence) and byrevising the same act, the Home Work Act (See
Section 8, i.e., a law to ensure the health andsafety of industrial home workers who work athome under contracts from clients).
   In principle, health and safety are to be
managed by the assessment of different risks
inherent (incidental) to work (risk management
for health and safety within the scope of
one’s work). Therefore, (i) labor-management
consultations, (ii) the utilization of industry
health professionals,59) and (iii) investigationof common risks inherent to work (by industry
and job), creation of guidelines, and othermeasures by the Government would be
effective.
  Since the Industrial Safety and Health59) The Ministry of Health, Labour and Welfare of Japan has established prefectural occupational health and safety
support centers to offer free consultation services for workers and employers about occupational health. Mishiba(2020, 13) recommend the utilization of these centers partly because the Japanese Government is committed topromoting freelance work.

Legal OHS Protections in JapanAct focuses on the prevention of industrial
accidents rather than a legal systematizationor consistency, it imposes obligations on not
only employers who directly employ workers
but other certain, various individuals. This law
values a normative way of thinking about who
should be liable for health and safety while
adopting a practical way of thinking about who
can fulfill health and safety obligations moreeasily and effectively.
   The UK’s HSWA, which has often beenreferred to by the Japanese Safety and Health
Act, identifies targets (subjects who are bearersof obligations) in a broader manner including
employers and risk generators (persons who
have risk-related information and can control
risk, such as those who control and manage
work conditions), focusing comprehensively
on health, safety, and welfare. The HSWA
has general regulations with sanctions that
require the targets to take reasonable andfeasible measures to protect not only theiremployees but other persons who may beaffected thereby (S.2 through S.7). In addition,a significant fine is specified for a breach ofthis law and is implemented accordingly. As
mentioned in footnote 12, in Australia, S.19 of
the harmonized Work Health and Safety Acts
targets all persons who conduct a business orundertaking (PCBU), including an employer,
and requires them to ensure, so far as isreasonably practicable, the health and safety ofworkers engaged, or caused to be engaged by
the person. The policy of these laws is similar
to the concept that a person who generates risk
or can control and manage risk must ensure thehealth and safety of the workers exposed to therisk.
   Although the Industrial Safety and
Health Act in Japan does not have radical

87

provisions as the UK and Australian laws
do, the concept of civil responsibility for theemployer’s duty of care formed by judicial
precedents in Japan plays a similar role as
the provisions of these laws. In other words,
this concept of the duty may contribute to
the protection of self-employed workers
and other non-employees by imposing
obligations on those who are not employers
for risks specified and not specified by laws.
The original scope of this duty, however, is
not as broad as that of the Australian Work
Health and Safety Acts. In addition, the courts
tend to consider the background of eachcase (individual circumstances and social
background) comprehensibly to determine a
specific obligation and the presence or absenceof the violation; therefore, even the text of
the Industrial Safety and Health Act does notalways directly represent the practical duty ofcare. Since this is a civil liability, an affected
person needs to actively claim and verify aviolation by a person obliged to take measures
to the court, which indicates the passive natureof the act (adversary system and dispositive
principle). Even if the claim is accepted, aremedy will be only the payment of damages.
It is difficult to use this concept of duty toenable the demand for the performance of the
duty and other preventive approaches.
   The point in question is whether Uber andother platforms are risk generators because of
their algorithmic management. It is reasonable
that orderers and clients decide whether they
conclude a new contract/service agreementwith the other party according to the work
performance of the other party. However, if
algorithmic management is a strong factor
causing a large number of ride-share drivers’
traffic accidents or health damage under the88

Takenori MISHIBA , Kotaro KURASHIGE and Shoko NAKAZAWA

conditions that there is a contractor’s economic
dependency and a one-sided contract, thelegislation discussed herein will be required.
Mishiba considers that there could be a legal
interpretation theory with a social policy
approach to regard an individual as an“employee,” even to a limited extent, until
proper legislation is established. The co-author
Kurashige has a different view on this point.
Kitaoka (2022) emphasizes the need to control
risks, especially for young and/or unskilledworkers.
   In an attempt to control (interpret flexibly)
the concept of being an “employee” for gig
workers, flexibly apply existing laws andregulations (the Industrial Safety and Health
Act and the Labor Union Act, and those listed
herein) to those not falling under the categoryof “employees,” and protect gig workers
with new legislation, the basic grounds are
the economic dependency and accessorinessof contracts (a contractor must accept terms
specified by a client or operation manager
to conclude a contract). In addition, when
considering the broader health and safetyconcept including mental health, the facts thatclients and operation managers generate risk
(liability for risk), control and manage gig
workers’ working conditions, and have a closesocial contact relationship with a contractor
may be additional grounds. In some cases,
there may arise the obligation to protect
contractors under civil and penal laws basedon these backgrounds.60) Since these factors areoften observed among platforms, they are to
be those obliged to ensure health and safety inmost cases.
   Duties to be imposed on platforms arerisk assessment, provision of assessment
results to gig workers, and a sincere response
to collective bargaining, while measures to betaken by the government include investigationsof general risks associated with gig work andof ideal countermeasures and the provision of
relevant information. In Japan, the government
has taken initiative to promote freelance work;
therefore, providing a sense of security isnecessary by preparing a proper social safety
net as a public policy, regardless of whether
freelance workers fall under the category of“employees” or not. At present, financing
systems (such as those offered by the Japan
Finance Corporation), health check-up systems(for example, a community health system
run by municipal governments, services ofhealth insurance societies by industry, andspecific lifestyle health check-ups and healthguidance61)) are available for those who are60) In Japan, Article 218 of the Penal Code specifies that when a person who is responsible for the care of a personof old age, a child, a person with a disability or illness, abandons or fails to provide the necessary care to them,
the person is punished. The protection responsibility hereunder may be deemed to arise due to the presence of anantecedent action as well as an applicable law and contract (Tokyo High Court decision, May 11, 1970, Hanrei Times
Co.,Ltd., No.252, 231). In a civil context, delivery obligation and at least between a creditor and a debtor, it is said
that both parties are liable to protect the other party as duty of care (Schutzpflicht) not to cause death or bodily injury
or infringement of property of the other party, in addition to contractual basic performance and concomitant duties(Okuda 1992, 18).
61) A scheme where, in accordance with the Act on Assurance of Medical Care for Elderly People, each medical insurer
executes specific lifestyle health check-ups to find diabetes and other lifestyle-related illnesses for the insured aged
40 or over by measuring chest circumference, BMI, blood pressure, neutral fats, high-density lipoprotein (HDL)
cholesterol, and other indicators, and gives specific health guidance for those with metabolic syndrome.

89

Legal OHS Protections in Japannot employees. Startup support facilities called“Incubation Centers” have also been foundedthat are run by public organizations providing
entrepreneurs with a workspace and accessto expert advisors.62) However, according to
JILPT (2019), there is an increasing needamong freelancers for unemployment insurance
and worker’s compensation insurance. At least,
it is necessary to expand the scope of coverageof worker’s compensation insurance including
compensation for commuting injuries (thespecial insurance coverage scheme). Demands
for occupational health services such as healthcare consultation seem not to be developing.
That is partly because such consultation
does not always result in a solution. Hence,the promotion of collective bargaining isrequired using such as the Small and MediumSized Enterprise Cooperatives Act. 63) For
example, it is necessary to establish a scheme
as follows: if cooperatives that are protectedunder this law assign industrial physicians to
conduct interviews with cooperative members(gig workers) when the physicians deem itnecessary to do so, cooperatives can approach
platforms or clients to improve the working
conditions of the members in question.
   Furthermore, in the modern laborrelated law context, the structure of conflict
between labor and management has beentransformed into a conflict between artificial
intelligence (AI) and human intelligence, or
between legal restrictions and human society
and interdisciplinarity of academic fields. The
problem is how to provide values differentiatingfrom what AI provides and how to harmonize
legal restrictions with human society anduse them effectively. More specifically, we
should find a way to realize dialogue andcooperation between the parties concernedfor problem solving, by using applicable laws
and regulations. This challenge is highlighted
in the gig economy. The gig economy has
certainly created new styles of work. None of
the Japanese laws have addressed issues in the
gig economy sufficiently; however, different
laws with different principles exist in order
to combat labor issues and monitor behaviors
of business owners with the help of groupdynamics (such as worker and customer trustin business owners). As a result of monitoring,if the legislative body decides there is a lack ofsupport, a more advanced statutory approach
will be developed. In terms of versatility andflexibility, labor laws in Japan may, to someextent, serve as a useful reference in a global
context.
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ACKNOWLEDGMENTS
We are deeply indebted to Prof. Richard
Johnstone whose advice significantly
contributed to improving this article. We arealso thankful to Prof. Koichi Kamata for his
valuable suggestions.
CONFLICT OF INTEREST STATEMENT
No conflict of interest to disclose.

Original Article

J Work Health Saf Regul 2023; 1; 92‒116

Regulating Health and Safety in Workfor Digital Labor Platforms in Australia:
The Example of Food Deliverers
Elizabeth BLUFF*, Richard JOHNSTONE† and Michael QUINLAN‡
Abstract: This article aims to examine how the health and safety of platform workers can beprotected through legal regulation, in the context of the significant regulatory challenges posedby critical connections between subcontracting, low pay, unregulated hours, and work healthand safety (WHS). The article applies a legal analysis of the contemporary Australian approach
to WHS regulation to platform work, and examines regulatory initiatives to protect the WHS
of food deliverers. It finds critical deficiencies in the application of WHS laws to this sector,
and identifies the need for a broader refashioning of labor regulation to such highly articulated
and geographically diffuse work arrangements.
Key words: Regulation, Safety, Labor platforms, Australia, Food delivery

1. INTRODUCTION
In Australia, as in other countries, engaging
workers through digital labor platforms isa significant and growing trend in the labormarket. At least 100 platforms operate indiverse industry sectors spanning food,transportation, professional, writing andtranslation, clerical, data entry, creative andmultimedia services, as well as work insoftware development, sales and marketing,caring, skilled trades, odd jobs andmaintenance (James 2020, 32–34). Around
7.1 percent of respondents (aged 18 to 74) to anational, representative survey had participatedin platform mediated work in the 12 months
prior to the survey, and 13.1 percent had done
platform work at some time (McDonald etal. 2019, 3). Individuals often work acrossplatforms and combine platform work in a
“portfolio” of subcontracting or wage andsalary jobs, with the income earned fromplatform work largely supplementing theirother earnings (James 2020, 26–27).
   The key problem addressed in this article
is how to regulate health and safety in thetriangulated work arrangements of platformwork. There is considerable ambiguity about
how responsibility for work health and safety(WHS) is, and should be, allocated among
the platform businesses that organize work
as intermediaries, aggregators, or mediators;
the clients or end-users of services; and theplatform workers. As is noted in the Editors’
Introduction to this special issue, digital labor
platforms differ in their operating models—from “crowdwork” platforms that exert only

* School of Regulation and Global Governance, Australian National University, Email: liz.bluff@anu.edu.au.
† School of Law, Queensland University of Technology; Honorary Professorial Fellow, The Melbourne Law School, The
University of Melbourne.
‡ School of Organization and Management, University of New South Wales.

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

incidental control over how work is performed,
to “work on demand” platforms that offer theirclients a service, supply the labor for that, andstipulate and enforce standards of performance.
Yet, in all such arrangements the contracts thatworkers sign with labor platforms typically
cast them as self-employed contractors andnot waged employees (Choudary 2018,25, 32–33; De Stefano 2016, 473–474;
Stewart and McCrystal 2019, 9–11). Until
2022, determining the nature of a particulararrangement in Australia required considerationof the multiple indicia (Stewart and McCrystal
2019, 6–8), as well as the practical realitiesof the relationship between the platform inquestion, those working through that platform,
and the customers or clients obtaining services
through the platform (James 2020, 105–
110). Recently, however, the High Court ofAustralia1) has taken a narrower approach. It
has reaffirmed the importance of the terms of awritten contract when ascertaining a worker’s
status, and so it is less likely that an Australian
court will invoke the practical reality of theworking relationship to find that platformworkers are “employees.”   Of all platform work, food delivery
is amongst the most closely managed andmonitored by the particular mediating
platforms, but ambiguity about responsibility
for WH S matters still favors platformbusinesses to the detriment of delivery workers.
This is especially the case because many ofthese platform workers have few alternatives
to earn (sufficient) income, the work they dothrough platforms is irregular and insecure,and they are more likely to be young, migrants
or students on temporary visas, and to speak a93

language other than English at home (Convery
et al. 2020; McDonald et al. 2019, 3). These
workers are vulnerable to exploitation becauseof their desperation for work, unfamiliarity
with local institutions (including unions),
language difficulties, reliance on informal
networks within particular communities,
insecure visa status, and the inability of someto access basic protections and supports likefunded health care (Bogle 2020; and see
Marson, Ferris, and Dirisu 2022).
   Moreover, vulnerable platform workers
encounter an array of hazards in the course of
their work, including musculoskeletal hazards,
infectious agents (including COVID-19)
and psychosocial hazards relating to job
insecurity, unpredictable income, irregularand sometimes extended working hours, lackof workplace support, and the monitoring andsurveillance of worker performance enabled
by digitalization and artificial intelligence(AI) (Bérastégui 2021, 85–93; Lenaerts etal. 2021; Moore 2019, 2, 6; Stacey et al.
2018, 6–7). For the food delivery workers
in focus in this article, a particular hazard
is the potential for road and traffic related
accidents, exacerbated by the pressure to rush
to reach customers as food deliverers face thepersistent threat of termination if they takelonger than the platform expects (Convery et
al. 2020; Rawling and Riley Munton 2021,
7). For those riding bicycles or scooters,
further hazards are vehicle instability fromtransporting food bags or boxes, and weather
conditions including heat, cold, wind, andrain that can also contribute to road accidents,and slips and falls when on foot. Interactions
with food providers, customers and members

1) Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting [2022] HCA 1; and ZG
Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

94

Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

of the public are potential sources of stress,
verbal abuse, physical assault, intimidation,and robbery (Convery et al. 2020). During the
COVID-19 pandemic, many food deliverers
have not had enough face masks, disposable
gloves, and hand sanitizer, and even where
platform businesses have initiated contactlessdelivery practices, customer cooperation can belacking (Rawling and Riley Munton 2021, 80).
Any approach to regulating WHS in platformwork needs to embrace the range of physicaland psychosocial hazards in work for particular
platforms and their manifestation in public andprivate spaces, and portfolios of jobs, which
are managed and controlled by different entities(Port 2021).
   Furthermore, our analysis of regulating
health and safety in work for digital labor
platforms in Australia places current debatesin the wider historical and comparative context(see the Editors’ Introduction to this special
issue), as this is essential to understanding
the WHS problems arising in platform workand the challenges for regulating WHS insuch work arrangements. In particular, thepersistence of certain longstanding andprofitable features of capitalism, and theirrenewal through digitalization, point to thefutility of regulatory approaches grounded in
the employer/employee relationship, or eventhose deeming specific types of workers tobe employees. Here we are referring to thepersistence of precarious work over timeand, in particular, on-call employment anddependent subcontracting, and triangular work
arrangements involving middle-men and labor
contractors (Quinlan 2012, 2013a, 2013b; andsee Gregson and Quinlan 2020). In addition,
the long-term practice of engaging immigrantor foreign workers in precarious work roles(Toh and Quinlan 2009) reinforces the needfor consideration of worker vulnerability
as a contributor to adverse WHS outcomes,
through lower capacity and support to enable
these workers to raise WHS concerns andhaving them addressed. Also pertinent toour discussion is the general weakening ofcollective negotiation and industrial relations
processes resulting from the progressive
decline in union density and unions’ difficulty
recruiting workers in irregular, insecure, andlow paid work. Further, the economic pressures(including incentive pay regimes), minimal
training, fragmented management regimes,
limited union presence, and weaknesses
in legislative coverage, inspection andenforcement that characterize platform work,
can be expected to be linked with poor WHS
outcomes, as the extensive global evidence
suggests for precarious work generally(Quinlan 2015; Quinlan, Mayhew, and Bohle
2001; Underhill and Quinlan 2011).
   Therefore, in addressing the key question
considered in this article—how can the healthand safety of platform workers be protected
through legal regulation?—it is essential
to take into account the complexity of theplatform business, client/end user and worker
relationships, the precarity and vulnerability
to exploitation of platform workers, and thewider historical and comparative context tothese issues. These are significant regulatory
challenges and essential considerations, over
and above the practical concerns about how tocontrol the hazards arising in particular work.
   One approach to legal regulation exploredin Australia is the use of consumer protection
law, which the ILO (2021, 208) suggests could
be applied to contracts imposed by platformbusinesses on individual workers. However,Regulating Health and Safety in Work for Digital Labor Platforms in Australia

legal provisions potentially relevant to dealing
with worker exploitation—those relating totermination, access to data, business conduct,
dispute resolution, and collective bargaining bysmall businesses—will not necessarily assist
platform workers and their representatives
to challenge substandard working conditions
or remuneration (Hardy and McCrystal
2022; Stewart and Stanford 2017). Nor are
consumer protection agencies an obvious “goto” for platform workers seeking redress for
unfair or unsafe working conditions (James
2020, 171). Alternative approaches, as foundin parts of Europe, are based on deeming
platform workers to be employees rather
than self-employed individuals, in order toextend the application of labor standards toplatform workers (De Stefano and Aloisi 2021;
Rodriguez 2022). 2) However, this approach
may be short lived or have limited application,
as platform businesses make changes to theiroperating models in order to nullify the legal
basis for such deeming (Aranguiz 2021) (seealso other articles in this issue).
   We argue, therefore, that there is more
promise in legal regulation specificallydesigned to address the wide array of work
arrangements and relationships, including
triangulated work arrangements. An approachthat has begun to address this complex
regulatory problem is the existing WHS
regulatory framework in Australia, and we
examine the key provisions of the state,
territory, and federal Work Health and Safety
Acts (WHS Acts) in the next part of the article.
Part 3 then uses the case of food delivery
work to illustrate the application of worker
representation provisions in the WHS Acts,95

and critiques some guidance developed forthis sector. The final part draws the analysis
together and makes a number of observations
and suggestions about future directions in labor
regulation to protect platform workers.
2. THE CONTEMPORARY AUSTRALIANAPPROACH TO WHS REGULATION
A. The Rationale for the Harmonized Work
Health and Safety Acts in Australia
For constitutional reasons, in Australia WHS
is largely regulated by the six states and thetwo territories, and the federal government’s
jurisdiction is confined to regulating federal
government departments and statutory
authorities, as well as very large companies
that self-insure under the federal workers’
compensation system. The first WHS laws
were based on the United Kingdom (UK)
Factories Acts, and the later 1970s reforms
were also strongly influenced by the UK
Health and Safety at Work etc. Act 1974 (UK)(see Gunningham 1984, chap. 4). From 2008,
Australian WHS laws were again reformed—
for two principal purposes (Johnstone, Bluff,
and Clayton 2012, 81–89, 107–130). The firstwas to harmonize the nine relevant statutes
at the time, and the second was to develop
legislation that addressed “the changing natureof work and employment arrangements”(Australian Government 2008, iii). A National
Occupational Health and Safety Review Panel(Review Panel), appointed by the then federal
Labor government, produced two reports which
included recommendations for provisions of
a Model Work Health and Safety Act (Model
Act) to be adopted by the states, territories, andfederal government.

2) For some Australian proposals see The Senate (2022, chap. 8).

96

Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN   The Model Act was subsequently draftedand enacted by the federal, New South Wales(NSW), Queensland, Australian Capital
Territory, and Northern Territory governments
in 2011; the governments of South Australia
and Tasmania in 2012; and later by thegovernment of Western Australia in 2020. Only
the Victorian government has not adopted theModel Act. For ease of reference, we will referto the statutes that have adopted the Model Act
as the Work Health and Safety Acts, abbreviatedto WHS Acts.
B. The Key Provisions in the WHS Acts
The WHS Acts set out regulatory standards
requiring key parties to ensure the healthand safety of all kinds of workers and others
affected by work, and enabling worker
representation, consultation, and other kindsof worker participation in WHS. None of theseprovisions assume a fixed workplace. Rather,
they aim to ensure that all persons carrying
out work in any kind of work arrangement
are protected from WHS hazards, and can be
represented and participate in WHS. Even
though these provisions were designed before
the widespread use of digital labor platforms,
they are easily adaptable to such work
arrangements, as the following explains.

to “employees” but to all “workers” whocarry out work in any capacity for a PCBU,
and to “others.” The Review Panel wasconcerned to develop new legislation with a“wide coverage,” “without requiring frequent
amendments,” and that protected workers inall kinds of work arrangements arising fromnew and changing business models, and fromall existing and emerging hazards (AustralianGovernment 2008, iii). It concluded that to
impose the primary duty of care upon an
employer and upon a self-employed person
was “too limited, as it maintains the link tothe employment relationship as a determinantof the duty of care” and “the changing natureof work arrangements and relationships
make this link no longer sufficient to protect
all persons engaged in work activities”(Australian Government 2008, [6.32]). It also
recommended that the primary duty of careshould not be limited to the workplace, but“should apply to any work activity and work
consequences, wherever they may occur,
resulting from the conduct of the business orundertaking” (Australian Government 2008,
Recommendations 17 and 3(a)–(b)).
   The PCBU’s duty in the WHS Acts is set
out in section 19(1), which requires a PCBU
to:(i) The duty of a person who conducts abusiness or undertaking
The centerpiece of the WHS Acts is the primary
duty of care in section 19 which places theduty on a “person who conducts a businessor undertaking” (PCBU), rather than on “anemployer” (see Johnstone 2019, 44–51). As
explained below, the duty is not only owed

ensure, so far as is reasonably practicable,3)
the health and safety of:(a) workers engaged, or caused to be engaged
by the person; and(b) workers whose activities in carrying out
work are influenced or directed by the
person,while the workers are at work in the businessor undertaking.

3) “Reasonably practicable” is defined in s 18 of the WHS Acts (see also s 17). See also Baiada Poultry Pty Ltd v The
Queen (2012) 246 CLR 92 at [15].

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

Any person who carries on any business orundertaking is a PCBU, whether they do so on
their own or with others, and whether or not
the work is carried out for profit or gain (WHS
Acts s 5). The phrase “business or undertaking”
is “intended to be read broadly” (Safe Work
Australia 2010, para 24; 2021a, 1) and it isclearly envisaged that all businesses, whether
franchisors, principal, or head contractors,
retailers at the top of a supply chain, labor hireagencies and client firms, head contractors,
subcontractors, and all kinds of digital labor
platforms are PCBUs (Australian Government
2008, 50–51; Safe Work Australia 2010,
para 23; 2021a, 2. See also Johnstone andTooma 2022, 49–53). A natural person can beboth a PCBU and a “worker”: for example,
a self-employed subcontractor engaged by acontractor is a “worker,” and if they run theirown business, they are also a PCBU (WHS Acts
sections 7(3), 19(5)).
   The section 19(1) duty is owed to“workers,” who are defined as persons whocarry out work “in any capacity” for a PCBU
(WHS Acts s 7(1)) and include contractors,
employees of contractors, labor hire employees,
outworkers, and volunteers. Note that thisdefinition only requires the worker to work
for a PCBU—it does not require the worker
to work for the PCBU who owes the section
19(1) duty. Clearly workers at the bottom of
supply chains are carrying out work for one ormore of the businesses in the supply chain anda labor hire worker is carrying out work for theclient firm (Australian Government 2008, [6.9]
Table 4). Persons provided with work througha digital labor platform can be carrying out
work for their own business or undertaking,97

and for the end user. It is also likely they arecarrying out work for the platform businesswhere the platform is a vertically integrated (ordisintegrated) firm, like the “work on demand”
food delivery platforms. The issue is more
complex if the platform plays an intermediaryrole, as with “crowdwork” platforms thatbring together end-users and persons selling
their labor through their own businesses.
Each case will depend on the exact nature ofarrangements and the relationship between theintermediary and the worker (see Johnstone
2019, 46–47).
   Also important is that the section 19(1)duty is owed to workers who are “engaged,”“caused to be engaged,” “influenced,” or“directed” by the PCBU “while they are atwork in the business or undertaking.” Nothing
in section 19(1) suggests that there must bea direct contractual relationship between the
PCBU and the worker. The term “engaged”
has been broadly interpreted to include not
only contractors engaged by the PCBU, butalso subcontractors, sub-subcontractors, andso on further down the contractual chain.4) The
expression “caused to be engaged” most likely
covers situations where the PCBU “‘causes’
workers to be engaged as part of the PCBU’s
undertaking, even where the PCBU is not acontractual party to any of the arrangements”(Johnstone and Tooma 2022, 56), so that adigital labor platform bringing together buyers
and sellers of labor would satisfy this elementof “caused to be engaged.” “Influenced” and“directed” have their everyday meaning, and sofood delivers would be influenced or directedby their work on demand platforms (Oxford
Dictionaries 2007, 1379, 692; Safe Work

4) See R v ACR Roofing (2004) 11 VR 187; (2004) 142 IR 157; [2004] VSCA 215 at [54] per Nettle J; Moore v Fielders
Steel Roofing Pty Ltd [2005] SAIRC 75.

98

Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

Australia 2010, paras [74]–[75]; AustralianGovernment 2008, [6.69]).
   As the Review Panel pointed out, the“only limiter in the duty should be that labour
is provided for the purposes of, or in the courseof, the conduct of a business or undertaking”(Australian Government 2008, [6.69]). Section
19(1) expresses the limiter as requiring the
PCBU to ensure the health and safety ofworkers “while the workers are at work inthe business or undertaking.” The Australianand UK courts have usually taken a broadinterpretation of “conduct of the undertaking”(see the cases discussed in Johnstone 2019,48).5) The extent of the business or undertaking
is a question of fact to be determined on acase-by-case basis. In most cases, the answer
will be obvious, but it might require carefulanalysis of complex business structures(Johnstone 2019, 48). The issue of whether
the PCBU has “control” over the work is nota relevant factor.6) More than one person may
be conducting a business or undertaking in any
one situation (Johnstone 2019, 48).7) The words“business” and “undertaking” are also to begiven a broad meaning:deliberately to ensure that the [duty] iseffective to impose the duty it states. … A
business or enterprise … may be seen to be
conducting its operation, performing workor providing services at one or more places,
permanent or temporary and whether or notpossessing a defined physical boundary. The
circumstances may be as infinite as they may

be variable.8)

The courts have found that “ancillary
activities” are also part of the conduct of theundertaking (Johnstone 2019, 49). These
include obtaining supplies, making deliveries,
cleaning, maintenance, repairs, and the like.
  The WHS Acts make it clear that duties—
including the section 19 duty—cannot bedelegated (section 14), that one person can
owe a number of duties (section 15), that morethan one person can hold a duty, and that each
person must comply with the duty even though
it might also be owed by others (section 16).
These principles mean that a platform businesscannot shift liability, responsibility, or risk onto
smaller businesses or workers.
   If, for some reason, the person carryingout the work does not fall within section
19(1)—for example if a platform worker is not“at work in” the labor platform’s business orundertaking—they are owed the section 19(2)duty, which provides that a PCBU:
must ensure, so far as is reasonably practicable,that the health and safety of other persons is
not put at risk from work carried out as part ofthe conduct of the business or undertaking.

For example, a worker allocated work throughthe digital labor platform is still owed thesection 19(2) duty even though they may not
be “at work in” the platform’s business.
   The Australian courts will require PCBUs

5) R v Associated Octel Co Ltd [1996] 4 All ER 846; Whittaker v Delmina Pty Ltd (1998) 87 IR 268 at [47]; [1998] VSC
175; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; R v Mara [1987] 1 WLR 87.
6) R v Associated Octel Co Ltd [1996] 4 All ER 846; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [169]–[179].
7) WorkCover Authority of New South Wales v Techniskil-Namutoni Pty Ltd [1995] NSWIRComm 282; [1995] NSWIRC
127 (July 10, 1995); Mara, above n 14.
8) Whittaker v Delmina, above n 14, at [47]. See also WorkCover Authority of New South Wales v Chubb Security
Australia Pty Ltd [2005] NSWIRComm 263.

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

to take a structured, systematic approach to
WHS (Johnstone 2019, 50). PCBUs must
actively assess and take account of all risks
that might foreseeably arise; create systems todeal with these risks and, to the extent possible,
eliminate them; instruct and train workers toapply these systems and supervise; and assessfrom time to time whether those systems areworking. For a platform business to ensure
the health and safety of food deliverers, theplatform arguably needs to ensure that its
algorithms allocating work to food deliverers
do not expose food deliverers to risk of
injury, and that the context within which fooddeliverers work, including surveillance ofworker performance, low pay, and the useof piece rates, do not engender psychosocialpressures or induce food deliverers to take risks
on the road (see further the article by Aude
Cefaliello in this special issue).
   This systematic approach includes
significant responsibilities in triangular work
arrangements. For example, a labor hire agency
has been required:to take positive steps to ensure that thepremises to which its employees are sent
to work do not present risks to health andsafety. This obligation would, in appropriate
circumstances, require it to ensure that its
employees are not instructed to, and do not,carry out work in a manner which is unsafe… The labour hirer has a positive obligation… to directly supervise and monitor the workof the employee to ensure a safe working
environment.9)

99

A labor hire company always has one measureof control—“simply a refusal to supply its
employees to [the host] until appropriate andsufficient measures to ensure safety were
implemented.” 10) The section 19 duties of aplatform business acting as an intermediary
to arrange, rather than facilitate, a work
relationship between a worker and end user
may be, in some circumstances, analogous to
the duties of a labor hire agency.
(ii) The duty on officers
Section 27(1) of the WHS Acts imposes a dutyon each “officer”11) of each PCBU to “exercise
due diligence to ensure that” the PCBU
“complies with” a duty or obligation that the
PCBU owes under the Act. It is a positive andproactive duty in that an officer can breach
their section 27 duty, even in circumstanceswhere the PBCU has not breached or beenfound guilty of an offense under the Act(section 27(4)). Note that the standard is“due diligence,” a standard “well known by”
officers, who have due diligence obligations
under Australian corporations law (AustralianGovernment 2008, [8.29]). Section 27 simply
applies this standard to WHS matters.
Section 27(5) defines “due diligence” toinclude taking “reasonable steps” to:(a) “acquire and keep up-to-date knowledge ofwork health and safety matters”, including
knowledge of WHS legal obligations andof human, technical, organizational andenvironmental factors that determine thehealth and safety of the system as a whole.

9) Drake Personnel Ltd v WorkCover Authority of New South Wales (1999) 90 IR 432; [1999] NSWIRComm 342 at
456.
10) WorkCover Authority of New South Wales v Labour Co-operative Ltd (No 1) (2001) 108 IR 283; [2001]
NSWIRComm 223 at [53].
11) Defined in s 4 of the WHS Acts, referring to Corporations Act 2001 (Cth) s 9.

100

Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN(b) “gain an understanding of the nature ofthe” PCBU’s operations “and generally ofthe hazards and risks associated with those
operations.”(c) ensure that the PCBU “has available foruse, and uses, appropriate resources andprocesses to eliminate or minimize risks towork health and safety from work carriedout as part of the conduct of the businessor undertaking.”(d) e nsure that the PCBU “has appropriate
processes for receiving and considering
information regarding incidents, hazards
and risks and responding in a timely way
to that information.”(e) e n s u r e t h a t t h e P C B U “ h a s , a n d
implements, processes for complying withany duty or obligation under the Act.”(f) “ verify the provision and use of theresources and processes” referred toabove, including by commissioning andmonitoring WHS audits, officers exercisinga reasonable degree of supervision andcontrol over the company executive
officers’ management of WHS. Officers
should not just rely on assurances fromothers (see further Johnstone and Tooma
2022, chap. 3).

Exercising due diligence is therefore a farreaching duty. In the context of platform
work, it requires each company secretary,
director, and senior manager of a digital labor
platform to have extensive knowledge of thearrangements, and the WHS risks faced by all
persons who carry out work in any capacity
for the platform, and to take steps to ensurecompliance by the platform business. This will
include taking steps to ensure that the platform
has sufficient resources to institutionalize
systematic WHS management in order toensure the health and safety of workers
engaged by the platform.

(iii) The consultation duties
Another very important duty with a major
impact on WHS management in platformwork arrangements is the section 46 duty. Thisaddresses the problem of hazards arising fromfractured, complex, and disorganized work
processes—and ensures the involvement of all
PCBUs and officers in WHS. It provides that:If more than one person has a duty in relation
to the same matter under this Act, each personwith the duty must, so far as is reasonably
practicable, consult, co-operate and coordinate activities with all other persons who
have a duty in relation to the same matter.

The evidentiary Code of Practice: Work Healthand Safety Consultation, Cooperation and
Coordination (Safe Work Australia 2018)
makes it clear that PCBUs in complex businessstructures must find out who else is carrying
out work and must work together with other
PCBUs (in food delivery, the restaurants,
and food outlets that provide the food) in acooperative and coordinated way to eliminate
or minimize risks so far as is reasonably
practicable.
   Another key provision, section 47,
provides that a PCBU must, so far as isreasonably practicable, consult with workers(and their health and safety representatives(HSRs)) who carry out work for the businessor undertaking and who are, or are likely to be,directly affected by a WHS matter. Therefore,
each platform business must consult all
workers carrying out work for the platform,
to the extent that consultation can be suitably
accomplished in the circumstances, and must
consult, cooperate, and coordinate (section 46)
with other PCBUs in doing so.

Regulating Health and Safety in Work for Digital Labor Platforms in Australia(iv) Worker representation and further
participation
The WHS Acts make further provision, inPart 5, for workers to organize themselves in“work groups,” including across multilateralbusiness arrangements. Any worker who
carries out work for a business or undertaking
may ask the PCBU to facilitate the process ofnegotiating work groups and the conduct ofelections, in each work group, of one or more
HSRs to represent workers who carry out workfor the business or undertaking (WHS Acts
Part 5, Div. 3). All workers who would liketo, can negotiate with one or more PCBU toestablish work groups (sub-div 3). The WHS
Acts are clear that workers in the work group
may determine how the election of a HSR for
the work group is to be conducted, and that
the PCBU only has a facilitative role, which
includes providing resources, facilities, andassistance, in the election process (section
61). The PCBU must allow elected HSRs tospend as much time as is reasonably necessary
to exercise their powers and perform theirfunctions under the Act, with the pay thatthey would otherwise be entitled to, and must
provide any resources, facilities, and assistancethat are reasonably necessary to enable theelections to be conducted (section 70). Apartfrom requiring the PCBU to begin negotiations
over work groups within two weeks of being
requested to do so (section 52(2)), defininga “failure of negotiations” for a work groupas including a failure to reach agreement“after a reasonable time” (section 54(3)(b)),
and a provision stating that a PCBU must notunreasonably delay the election of a HSR(Work Health and Safety Regulation 2017
(NSW) regulation 19) the WHS Acts do notinclude any mandatory time requirements for101

the completion of the processes for negotiating
work groups or electing of HSRs.
   An elected HSR has extensive powers,
including to inspect workplaces, investigate
worker complaints, be present at interviews
between workers and PCBUs or inspectors,
receive information about WHS, be consulted
on WHS issues, confer with a PCBU over
WHS issues, and monitor PCBU compliancewith the WHS Acts. Each HSR can participate
in processes to resolve WHS issues (sections
80–82) and has the power to direct that workcease if it causes a serious, imminent, andimmediate risk to workers (section 85). The
HSR also has the power to issue a provisional
improvement notice (PIN) if the representative
has the reasonable belief that a PCBU or otherduty holder is not complying with provisionsof the WHS Act (Part 5, Div 7) including theofficer’s due diligence duty under section 27.
   It is important to note that each “worker”
also has an individual right, under section
84, to refuse work that causes a serious,
imminent, and immediate risk to the worker.
Further, all workers can be members of, andrepresented by, health and safety committees(sections 68(2)(e), 75–79). Part 6 of the WHS
Acts enacts important provisions protecting
workers and HSRs from being discriminatedagainst for exercising their rights, powers, orfunctions under the Act, or from being coerced
to exercise or not exercise their powers andfunctions. Finally, Part 7 of the WHS Acts
includes union entry provisions enabling
WHS permit holders to investigate suspected
contraventions of the Acts.
   These representation and participation
provisions are not, however, without somepotential shortcomings. It will sometimes
be difficult for such vulnerable workers as

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Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

platform workers to trigger and benefit fromthe consultation provisions. Also, some PCBUs
will have to devote significant resources
to worker consultation, representation, andparticipation.
C. Compliance Monitoring and Enforcement
The WHS inspectorates, as external state
regulators, have broad powers to monitor andenforce the provisions of the WHS Acts (Parts
9–13; and see Bluff and Johnstone 2017).
These include issuing statutory notices, which
are improvement notices (sections 191–193),
prohibition notices (sections 195–197), and,apart from in Western Australia, infringement
notices (on-the-spot fines) for some
contraventions. The WHS inspectorates canrequire PCBUs to produce documents (sections
155 and 171). The inspectorates can also
accept enforceable undertakings (EUs) offered
by a person who is alleged to have breached an
obligation in the WHS Acts and can generally
require the EU to include improvements to
WHS at the offender’s workplace, in theindustry, or in the general community.
   Finally, the inspectorates can initiate acriminal prosecution for an offense against the
WHS Act, with potential maximum fines as highas A$3 million (for corporations “reckless as to
the risk of death or serious injury or illness”),12)
A$1.5 million (for corporations where there is arisk of death or serious injury or illness),13) andin some jurisdictions, A$10 million or more
for industrial manslaughter (see the Legislation
Note in this issue). The Acts also contemplatea range of orders for non-pecuniary sanctions,

including adverse publicity orders, restoration
orders, WHS project orders, court-ordered
WHS undertakings, injunctions, and training
orders (WHS Acts Part 13, Div 2).
   As this part of the article has shown,
the Australian WHS Acts contain provisions
that, in principle, require platform businesses
to take steps to address WHS matters in
relation to workers and others. They enable
WHS inspectorates to address WHS issues
in work for labor platforms. The WHS Acts
also envisage a role for worker advocates tohelp strengthen the potential protections forplatform workers, as we illustrate next.
3. HOW WHS REGULATION HAS BEEN
APPLIED TO FOOD DELIVERY WORK
A. The Election of Health and Safety
Representatives for Deliveroo Workers
The potential to elect HSRs to represent on
demand platform workers, and some of thechallenges in doing so, have been demonstrated
recently for food delivery work in the Sydney
metropolitan area.14) The process began when
the NSW Branch of the Transport Workers
Union (TWU) held preliminary consultations
with about ten food delivery workers about apractical approach to establishing work groups.
The TWU also contacted a network of fooddelivery riders to seek expressions of interestin engaging in the process. Subsequently,
on November 1, 2019, six food deliverers,
represented by the TWU, requested Deliveroo
to negotiate with them to determine workgroups (NSW WHS Act sections 50 and 51).
From the outset, Deliveroo made it clear that12) WHS Acts s 31 (category 1 offenses). Individuals, including officers, committing category 1 offenses may face up to
five years’ imprisonment.
13) WHS Acts s 32 (category 2 offenses).
14) We thank Jack Boutros at the Transport Workers Union who was a key informant for this case study of HSRs forfood delivery workers.

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

it would only agree to work groups that did
not disrupt its business model, which is built
on a skeletal human managerial infrastructurewith an automated arms-length approach to
managing a large workforce. The TWU favored
work groups localized around key shopping
districts in which there are large numbers offood delivery workers, in order to ensure that
HSRs elected from those work groups could
easily communicate with work group members.
   During the long negotiations the TWU
rejected the first two work group structures
proposed by Deliveroo in December 2019 andJanuary 2020. On December 12, the riders
proposed work groups based on Deliveroo’s
zones. Deliveroo rejected this and proposed
one work group for all workers in the state.
When this was rejected, on January 24,
Deliveroo proposed four work groups basedon four regions in Sydney. Each area spanned
between three to five Sydney suburbs, resulting
in very large work groups that would makecommunications between HSRs and workgroup members very difficult. In the face of
this “failure in negotiations,” in late February2020 the TWU requested the WHS regulator,
SafeWork NSW, to appoint an inspector todetermine the work groups under section 54of the WHS Act. The inspector considered andmodified the work group structure proposed by
the TWU, and on May 13, 2020, determinedthat there be five work groups, each comprisedof two, three, or four zones, and with two
HSRs in each work group. Deliveroo was notsatisfied with the inspector’s decision and, on
May 27, 2020, applied for an internal review

103of the decision by SafeWork NSW (WHS
Act section 224). On June 18, the internal
reviewer set aside the inspector’s decision on
the technical ground that there had not beena “failure of negotiations,” and decided that
Deliveroo should take all reasonable steps tocommence negotiations with the TWU and thesix food delivery workers.
   The union and workers then sought anexternal review of the internal reviewer’s
decision (WHS Act section 229). To preventthe negotiations “dragging on,” on October
12, 2020 (nearly eleven and a half months
after negotiations for the work groups were
initiated), the Industrial Relations Commissionof NSW decided to vary the internal reviewer’s
decision, on the grounds that the work groupstructure proposed by the TWU, and largely
implemented by the inspector’s decision, did
not achieve the objects of the WHS Act insections 3(1)(a) and (b), because some of theworkers in the Sydney region would not becovered by a work group. The Commission
favored the work group structure proposed by
Deliveroo and determined that work groups
in Sydney were to be formed according to
the four regions (central, north, south andwest), with each region containing “selected
zones/clusters” (Marcello Batista & Ors and
SafeWork NSW ). 15) Food deliverers in eachregion were to be allocated to work groups
according to the three types of vehicle theyused (bicycles, scooters or motorcycles, andcars). Because of the low number of bicycles
in each of the north, south, and west regions,those regions were each determined to have a15) Marcello Batista and others and SafeWork NSW, ex tempore and unreported, Industrial Relations Commission of
New South Wales, Murphy C, October 12, 2020, Commissioner Murphy, 8. For another case where the Industrial
Relations Commission decided to implement the PCBU’s proposed work group structure, see Mark Rolph v
SafeWork NSW and Anor [2019] NSWIRComm 1043.

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Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

work group for two-wheel vehicles (bicycles
and scooters) and a separate group for cars
(Marcello Batista & Ors and SafeWork NSW,
8–10). The central region, which had a low
number of cars and many bicycles, was to havea motorized work group (cars and scooters)
and a second work group for bicycles only.
The Commission thus proposed eight workgroups for the four zones, together with “anappropriate number” of HSRs for these workgroups. The central region was to have eight
HSRs; the north region three HSRs; the south
region two HSRs; and the west region two
HSRs—up to 15 HSRs in total.
   On November 10, 2020, the TWU applied
for leave to appeal the decision before a FullBench of the Industrial Relations Commissionof New South Wales. Another 20 months
passed before the Full Bench, 16) on July 6,
2022, quashed the orders of Murphy C andremitted the matter to a single commissioner
to determine the external review. The FullBench held that Murphy C incorrectly included
Deliveroo “riders” because this involved
making “a determination which had the effectof creating work groups in respect of workers
who were not involved or represented in thenegotiations” between the TWU and Deliveroo,“and whose views about the relevant matterswere not known.” ([58]) It also held that
Murphy C had not adequately considered thematters that needed to be taken into account indetermining work groups set out in regulations
16 and 17 of the Work Health and Safety
Regulation 2017 (NSW) (see [63]–[68]).
   At the time of writing, the matter had not
yet been determined. Thus, well over two anda half years after the process to initiate workgroups had begun, the issue still had not been
fully resolved. This delay is partially due to thefailure of the WHS Acts to impose timelines
on the process, and partially to the ability oflarge PCBUs to raise technical issues to delay
the process.17) As the Australian Senate SelectCommittee on Insecure Work commented,“Deliveroo took exception” to the applicationof the WHS Acts to “its business model, in
attempts first to deny and then water down
its obligations to worker safety” (The Senate
2021, 125).
   Rather than wait for the decision of theFull Bench, the TWU decided to work with thestructure set out in the single Commissioner’s
decision of October 12, 2020, and to start
the process again if, and when, the FullBench found in its favor on the appeal. The
TWU provided explanations to food delivery
worker members of the process for electing
HSRs under the WHS Acts, and exploredpossible voting mechanisms for conducting
elections. Given the nature of food delivery
work and the structure of the work groups,
it became clear that the only viable option
was online voting. But even this was difficult
to implement, because it required a list of
Deliveroo workers that the TWU could contact
about the election process, which could only
be provided by Deliveroo. After protracted
negotiations, Deliveroo agreed to send, to all
Sydney-based food delivery workers, the TWU
communications about the election process
and inviting them to nominate and vote forcandidates for the HSR positions. However,this was not before Deliveroo tried to get
all workers to sign a series of undertakingsthat they would not use any information they16) Transport Workers Union of Australia, New South Wales v SafeWork New South Wales [2022] NSWIRComm 1050.
17) See, for example, Transport Worker’ Union of NSW and Ors v SafeWork NSW and Anor [2021] NSWIRComm 1018.

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

obtained for any other purposes. The result wasthat, as one TWU officer wryly commented,
Deliveroo “effectively controlled the process toelect the HSRs” for the eight work groups, andparticipation in the process was very poor—
in work groups with thousands of members,
only about half a dozen voted. Nevertheless, inthe second half of December 2020, Deliveroo
workers elected HSRs for each of the workgroups covering the four Sydney metropolitan
regions (Marin-Guzman 2021). The Federal
Secretary of the TWU was quoted as sayingthat HSRs were “commonplace at mostworkplaces” but a “milestone for the gig
economy in Australia” (Marin-Guzman 2021).
Some of the HSRs subsequently resigned, andDeliveroo quickly organized elections for theirreplacements without consulting the TWU.
   Once elected, the HSRs are able toexercise all of the powers vested in themunder the WHS Acts. There have been ongoingnegotiations as to how HSRs are to be paidby Deliveroo for their work as HSRs. There issome agreement that an average hourly rate ofpay should be calculated, but there is not yet
agreement as to the number of hours of HSR
work that will be paid for, including whether
there should be a cap on the number of hours.
The HSRs have experienced other challenges
in exercising their functions and powers. As
noted earlier, the large size of work groups
established by the Commission’s decision in
October 2020 (each work group covering aquarter of the size of the Sydney metropolitanarea, in some instances 40 suburbs) has
prevented face-to-face discussions between
HSRs and the members of their work groups,
thereby rendering effective consultation
untenable. Also, HSRs have regularly beenchallenged by Deliveroo when they seek to105

exercise their powers. For example, the TWU
initiated a process of coordinated workplaceinspections with HSRs, including a health andsafety survey, aimed at identifying the localizedhazards and risks faced by food delivery
workers. The HSRs and the TWU were halfway through the process of working out
preventive measures to address the identified
hazards when Deliveroo challenged the HSRs’
right to further inspect workplaces, citing theneed to give further notice of inspections,and arguing that they were not necessary.
This is contrary to section 68(2)(a)(i) of the
WHS Acts which empowers HSRs to inspect
any part of the workplace “at any time after
giving reasonable notice” to the PCBU, butdoes not require evidence that inspections are“necessary.”   Further, HSRs requested Deliveroo toestablish a health and safety committee, andthere were negotiations over the constitutionof the committee, which were drawn out by
Deliveroo insisting, for example, that thecommittee would not be able to discuss any
issues involving the terms on which fooddeliverers were engaged. Consequently, theefforts of HSRs have been largely confinedto enforcing basic rights and obligations,detracting from their ability to consult workers
and to manage risks. The time and energy of
HSRs has been drawn into near constant battles
with Deliveroo, and many have resigned
or disengaged. Most notably, HSRs havenot been able to address the unsustainable
contracting pressures that workers face,especially inadequate and inconsistent pay,long, unpaid periods of time waiting for orders,
tight delivery timeframes, and hazards arisingfrom algorithmic control. Deliveroo refuses to
accept that these issues are negotiable health

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Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

and safety issues.
   One lesson from the process described inthis part of the article is that work groups could
not be negotiated, and HSRs elected, without
the strong guidance and support of a committed
union. Large and well-resourced PCBUs, suchas Deliveroo, are able to drag out negotiations
and strongly contest legal issues. They arelikely to do so on a regular basis, because they
have a lot to lose if there are interpretationsof the statutory provisions that have adverse
consequences for their business model. In
these circumstances, HSRs face significant
challenges because their efforts to perform theirfunctions are regularly challenged, and they
are likely to spend much of their time arguing
about their functions, rather than engaging inpreventive work.
B. Modest Interventions by WHS Agencies
Despite a series of work-related fatalities
involving platform workers, the WHS
regulators have tended to favor guidance (seebelow) and, at most, some direction rather thanstrong enforcement of WHS regulation in this
sector, also accepting a strict division between
WHS and wider “industrial relations” issues(like remuneration and work schedules). For
example, the NSW regulator, SafeWork NSW,
has investigated at least one of the incidents
that have led to the deaths of five food delivery
workers working for the Uber Eats and Hungry
Panda platforms, but at the time of writing
there has been no indication of whether there
will be a prosecution. Also, in exercising themany dispute resolution functions delegatedto it under the WHS Act, the NSW regulator
generally seeks to conciliate issues rather thanmake determinations.
   The food deliverer fatalities prompted

the NSW Ministers for Better Regulation andInnovation and for Transport and Roads toestablish, in November 2020, a Joint Taskforce
to explore the circumstances leading to thefatalities “and identify safety improvements
for the industry” (SafeWork NSW andTransport for NSW 2021, 4). As part of thedevelopment of an “intelligence profile,”
the Taskforce identified locations with highnumbers of bicycle and motorcycle crashes.
SafeWork NSW inspectors were then involved
in “compliance deployments” in these areas,
during which they “conducted 214 observationsof food delivery riders and 101 interactions
with individual food delivery riders” (SafeWork
NSW and Transport for NSW 2021, 10).
SafeWork NSW issued 28 Warning Notices
to food delivery riders, for failure to use orwear adequate personal protective equipment(PPE) and/or riding in an unsafe manner.
SafeWork NSW inspectors also issued seven
improvement notices to food delivery platforms
for failing to provide adequate instructions andinformation to food delivery workers about therisks associated with riding (SafeWork NSW
and Transport for NSW 2021; Taylor 2022).
   I t a p p e a r s t h a t S a f e Wo r k N S W ’s
approach is to target its enforcement efforts(principally issuing warnings and improvement
notices) to the training and PPE provided
by digital platforms, and the equipment andsafety practices of food delivery workers(see SafeWork NSW and Transport for NSW
2021, 12, Recommendations 2, 8), rather than
examining the systems that the platforms use
to engage and control workers and their work
schedules. This is evident in the food delivery
industry action plan for 2021-2022, supportedby Transport for NSW, which commits“partners to make improvements in fiveRegulating Health and Safety in Work for Digital Labor Platforms in Australia

priority areas—safe design of work, safe riders,safe bikes and equipment, safe workplaces andcommunities, and safe working environmentand safe roads” (NSW Government 2021).18)
While, in principle, the safe design element
could address platforms’ systems andalgorithms that create the economic and workpressures and drive risky rider behavior, theaction plan suggests actions like app features toprompt food deliverers to complete a checklistof safety precautions (checking tires, brakes
and gears, and following road rules) and to
confirm they are wearing PPE before they canstart delivering with the app.
   The “safe practices and equipment”
emphasis is also reflected in the NSW
government’s amendment, in April 2022, of
the Work Health and Safety Regulation 2017
(NSW) to require food delivery platforms toprovide PPE (high visibility vests and bags,
and shirts/jackets appropriate for night and day)and induction training19) to riders in NSW. The
regulation makes it an offense for platforms to
fail to comply with these requirements, and forfood delivery riders to fail to wear or use their
PPE or make their training verification records
available for inspection when requested by a
WHS inspector or a police officer. Again, these
proposals are aimed at changing the behavior
of food deliverers rather than addressing
underlying pressures causing workers to adopt
unsafe practices. Further, the NSW Police will
also focus on worker behavior in conducting“ongoing enforcement activities targeting
food delivery riders to ensure compliance with107

the NSW Road Rules” (SafeWork NSW andTransport for NSW 2021, Recommendation
7). Subsequently, there has been a significant
increase in police blitzes targeting fooddelivery workers. The police have fined
workers for riding on footpaths and using
illegal types of e-bikes. This has placed greaterpressure on food delivery workers, and in many
instances has undermined safety.
C. The NSW Food Delivery Guide and the
Safe Work Australia Facts Sheets
The Food Delivery Guide (SafeWork NSW2021) was developed by SafeWork NSW
in response to the deaths of the five fooddeliverers discussed above and an associatedcampaign by Unions NSW and the TWU,
as well as academic and widespread publicconcern at the absence of regulatory
protection for these workers (Patty 2020).
Notwithstanding a period of consultation andpublic submissions on a draft guide, whichdrew criticism and attention to the weakness of
this proposed measure, the NSW government
remained committed to a guide rather thanan evidentiary code of practice or mandatory
regulation (other than the PPE and training
provisions outlined above). The guide provides
advice about protecting food deliverers riding
bicycles and motorcycles but, in an industry
marked by volatility and intense competition
amongst service providers, and where theworkforce is acutely vulnerable (see part 2 ofthis article), incentives for platform businesses
and workers to follow such a guide, and comply18) T he food delivery industry action plan, which commenced on April 1, 2021, has been developed throughcollaboration between government, food delivery platforms, food outlets, unions, and advocacy groups, including in
the Taskforce’s processes, and by bringing together data, research, advice, and actions, to support a coordinated andsafer food delivery industry. The partners committed to 50 actions to improve the health and safety of their riders.
19) The regulation took effect on July 1, 2022. The training is to cover hazard and fatigue management; general roadsafety; selection, use, and maintenance of PPE; and the WHS duties that apply to riders and platforms.

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Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

with WHS legal duties, are very low. The
persuasive capacity of guides must, therefore,
be questioned. At best a guide provides
evidence of a reasonably practicable standardof care, which could support WHS regulator
inspections, improvement, and prohibition
notices, and prosecutions under the WHS
Act. However, there is little evidence of suchenforcement to date and prosecutions, if they
were ever to occur, would be most likely “after
the event” following a serious incident. (For areview of different regulatory mechanisms in
the light of changing work arrangements, see
Walters et al. 2021, 132–138; Johnstone et al.
2012.)   The NSW guide purports to identify andallocate the responsibilities of food deliverers,
platform businesses, the food outlets and,very briefly, of officers. It specifies, in generalterms, the duties of food delivery platforms
as PCBUs under sections 19(1) and (2) of
the NSW WHS Act, but provides minimal
indication of what this means (in terms ofactions and expectations) in relation to specifichazards identified elsewhere in the guide.
Among the hazards listed are hours of workand unsafe systems of work. The guide advises
food delivery platforms to design controls into
their apps to prevent riders working excessive
hours, remind riders to take sufficient breaks,
and ensure that their apps are based on averagerider speeds and predicted traffic conditions.
It also advises platforms to ensure that thesystems of work (including apps, products,
and logistics processes) are designed with thesafety of riders and others in mind and do not
encourage unsafe rider behavior. However,
the guide fails to recognize the fundamental
imbalances of power and resources between
platform businesses and food deliverers, which

militate against genuine systemic changes andprotection of food deliverers. Instead, the guide
has a “safe worker behavior” orientation.
   A section of the guide headed “Duties andRights of Workers” includes clauses on theneed to take reasonable care, and to comply
with reasonable instructions from a PCBU. The
only right specified is the entitlement to cease
work when exposed to imminent risk, but thereal issue is the capacity of such vulnerable andinsecure workers to exercise this right. There
are also a number of conspicuous omissions
from the array of hazards addressed by theguide (for an overview of key hazards, seesection 1). The Ministerial introduction to theguide notes that COVID-19 has contributed
to the growth of food delivery work but there
is no reference to communicable disease or
infection in the guide. The only advice aboutwearing a mask is for protection against
environmental smoke or traffic fumes. Also,
there is no clarification on the respective
responsibilities of platform businesses and fooddeliverers in ensuring access to, and use of,safety measures such as PPE, and the quality ofdelivery bikes and motorcycles, among otherkey measures.
   Perhaps the most fundamental limitationof the guide is its failure to deal with the key
drivers of WHS problems confronting fooddeliverers, namely the economic pressures andlow financial returns that encourage overwork,stress, and hazardous behavior. This limitation
was identified in submissions responding to adraft guide, but no subsequent changes weremade to the guide. In particular, the TWU
submissions pointed to extensive researchhighlighting the link between inadequate
remuneration and poor WHS outcomes fortransport workers and others. Low and irregular

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

pay has been associated with poor WHS ina number of industries marked by extensive
precarious work arrangements including
long-haul trucking, home-based clothing
manufacture, and horticulture/harvesting. In
the trucking sector, a specialist tribunal wasestablished to set minimum rates for all drivers(see Rawling, Johnstone, and Nossar 2017)and in agriculture, in November 2021, theAustralian Fair Work Commission responded
to the hyper-exploitation of harvest workers bysetting a new legal minimum for piece workers
of A$25.41 per hours irrespective of output20)(employers were paying workers using outputbased rates that could amount to as little as A$3
per hour).
   T h e N S W g u i d e e m p h a s i z e s t h eimportance of consultation, including thelegislative provisions for HSRs, but does
not indicate how this is to operate in such achallenging industry with significant power
imbalances. In particular, the guide provides
minimal advice as to how work groups are to
be negotiated and HSRs elected. For example,
at page 7, the guide states that, if a request is
made by a worker, the PCBU must “negotiatewith workers to establish work groups,” butprovides no more detail about how negotiations
should be carried out, or the criteria for
determining work groups. It then states that
the PCBU must “facilitate the election of”
HSRs “for those work groups” but doesn’t
make it clear that the workers decide how theelection is to be conducted and whether they,or someone they choose, will conduct theelection.
   Finally, new approaches are needed tomonitor the application of measures in the109

guide, and to achieve broader compliancewith the WHS Acts. “Virtual inspections”
in which inspectors discuss and view WHS
conditions in workplaces through the digitalinterface, and anonymous reporting throughthe SafeWork NSW “Speak up Save Lives”
app are potentially useful initiatives, but it islikely that tailor made strategies are needed formonitoring and enforcing compliance in thework of this mobile, remote, and vulnerable
workforce.
   Four months after the NSW Guide wasreleased, Safe Work Australia produced three“fact sheets” titled “Managing Risks in the
Food Delivery Industry,” which focus on work
undertaken by delivery riders on bicycles
and scooters, and are aimed at food delivery
platforms, food outlets, and workers (SafeWork Australia 2021b, 2021c, 2021d). A fact
sheet provides information about managing
particular risks, but is even less authoritative
than a “guide.” By and large the information
provided by the three fact sheets is similar to
the material in the NSW guide (but even lessspecific), and the focus is also on safe riding
practices and compliance with the road rules.
The discussion of the processes for negotiating
work groups and electing HSRs is very brief,
and in the fact sheets for platforms and forworkers (Safe Work Australia 2021b, 6;2021d, 4) there is only very brief mention of“the economic pressures that may encourage
workers to take unnecessary risks” and“unrealistic delivery times leading to unsafe
riding.” There is no reference at all to thepressures in delivery workers resulting frominadequate remuneration.

20) Fair Work Commission, Summary of Decision 3 November 2021 Application to vary the Horticulture Award 2021
AM2020/104 [2021] FWCFB 5554.

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Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

4. CONCLUSION
The tentative steps to regulate work for digitallabor platforms, or at least some aspects of it
in NSW, are indicative of wider international
trends—for example, in December 2021 theEuropean Commission released a Proposal
fo r a D i r e c t ive on improving w orking
conditions in platform work (see further
the articles by Aude Cefaliello and Cristina
Inversi in this special issue). Around theworld, the platform industry has vigorously
resisted moves to regulate platform work.
This is especially so for attempts to deem
platform workers as employees, one instanceof which was their overturning of the AB5Bill in California through a direct ballot
initiative, Proposition 22 (Cherry 2021). In
one sense, the belated and limited responseto the health and safety of platform workers
in Australia simply continues a longer term
lag in addressing the WHS risks exacerbatedby the renewed growth of precarious work
arrangements since the 1970s—a trend at least
partly explained by the ongoing dominanceof neoliberal ideology. As discussed in the
Editors’ Introduction to this special issue, there
is a need to see the health effects of platformwork within the wider context of precarious
work with its well-documented adverse healtheffects (see also Tran and Sokas 2017). The
COVID-19 pandemic accentuated the threatsthat precarious work poses to worker andcommunity health because many workers
deemed “essential” in transport (including
food delivery), logistics, and the like held
these types of jobs (Quinlan, 2021). Yet evena global pandemic highlighting the manifest
human and social costs of neoliberalism has
failed, as yet, to secure a fundamental shift ingovernment policy and the development of

new regulatory measures to protect precarious
workers. Indeed, if anything, the pandemic
served to reinforce the acceleration in work
arrangements associated with digital labor
platforms.
   As we have shown, the Australian WHS
Acts contain provisions that, in principle,
require platform businesses to take steps toprotect platform workers. They enable alltypes of workers, including food deliverers,
to elect HSRs and participate in WHS, and
WHS inspectorates to address WHS issues
in work for labor platforms. Yet it is unions,particularly the TWU, rather than the WHS
regulators, that have put most effort into
attempting to apply the provisions of the WHS
Acts to platform work. The NSW regulator has
conducted some inspections and produced an
action plan and some guidance for the fooddelivery sector. These initiatives, however, arelimited in the risks they address, and emphasize
worker safety practices, training, and PPE as
the measures to protect workers, rather thanaddressing platforms’ systems and algorithms
that create the economic pressures, overwork
and stress that drive risky behavior. As with anumber of other types of work, irregular andtask- or piecework-based payment lies at thecore of at least some of the hazardous practices
in work for labor platforms.
   There is a strong case to be made for
optimal application and enforcement of the
WHS Acts in relation to digital labor platforms.
By protecting all persons who carry out
work for businesses, the broad definition of“worker” in these statutes goes a long way
to overcoming the problems for platformworkers arising from labor law’s twentiethcentury focus on protecting “employees” but
not independent contractors (see further theRegulating Health and Safety in Work for Digital Labor Platforms in Australia

articles by Aude Cefaliello and Eric Tucker inthis special issue). Two further issues need tobe addressed to ensure that platform workers
are fully protected. First, WHS regulators needto take a stronger, and more strategic approachto enforcement (Weil 2010), principally by
seeking to understand the factors determining
non-compliance, by making greater use ofgeneral deterrence, and by focusing inspectionand enforcement on the key businesses that
control work arrangements and the allocationof work (Nossar 2021; Johnstone 2017; Walters
et al. 2021, 132–138).
   S e c o n d , t h e h i s t o r i c a l l y s e p a r a t edevelopment in Australia of laws for WHS,
workers’ compensation, and industrial relations(including minimum wages, maximum hours,
and worker representation), constrains or atleast discourages attention to the fundamental
drivers of risk in platform work. At the very
least, effective regulation of platform work (andother types of precarious work) requires closer
integration of these realms. There are examples
of closer integration that set important
precedents, including the textile clothing andfootwear supply chain regulation in Australia(Marshall 2010) and the safe rates regimes
applying to some truck drivers in South Korea(KSRRG 2021) and formerly in place inAustralia.21) The digital platforms that mediate
platform work strongly resist any suggestionthat labor regulation of platform mediatedwork should address the way in which workers
are remunerated, and that off-road parties are
responsible for the pressures inducing delivery

111

workers to take risks on the road.22) To datethe NSW government and SafeWork NSW
have acceded to this pressure. As discussed
above, the NSW guide makes no mention of
remuneration issues and focuses instead on
the more obvious on-road hazards, and theApril 2022 amendment to that state’s WHS
regulations concerns high-visibility protective
equipment and induction training, again
focusing on the behavior of food deliverers
rather than addressing underlying systemicpressures.
  Nonetheless, there are some positive
recent remuneration and safety developments
both at a general level and in relation to fooddelivery workers. At the general level theAustralian Labor federal government electedin May 2022 has committed to reinstituting asafe rates regime for all parties in the supply
chain. Further, the safe rates concept is gaining
traction elsewhere. In June 2022, following
a major strike affecting export supply chains,the South Korean transport union reachedagreement with the incoming conservative
government and industry to extend the termof the safe rates legislation and to consider
incorporating additional categories of truck
drivers (KPTU 2022). The International
Labour Organization (ILO 2022) has formallyrecognized the safe rates concept and has also
recently added occupational health and safety
to its fundamental principles and rights atwork.
   There are also promising developments
more specific to food delivery workers. The

21) In May 2022, a new Australian Labor Party federal government was elected. Its platform includes reintroducing a“strongly enforced national safe rates scheme for all parties in the supply chain.”22) Cf the Australian Heavy Vehicle National Law, which acknowledges that truck drivers’ on-road behavior will be
influenced by the behavior and demands of off-road parties and set out “a chain of responsibility” for all parties
involved in road transport work (including persons scheduling transport work and firms packing, loading andreceiving goods), even if they had no direct role as a driver or transport operator.

112

Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLAN

first digital platform initiative to improve
remuneration for delivery work, the “Proposed
On Demand Delivery Services Award covering
Menulog employees” (Fair Work Commission2021), has been resisted by some unions
because it is based on an “employment”
model, and will further entrench inequalities
between workers who are “employees” and“independent contractors,” rather than ensuring
decent wages for all food delivery workers,
regardless of whether they are employees or
independent contractors. Then the TWU, in
May 2022, reached an important agreementwith the global food delivery PCBU DoorDash
on future industry wide regulation of platform
mediated gig work (TWU 2022). The parties
agreed to a statement of principles that create
a flexible framework that allows workers their
independence and extends to them “appropriate
rights and entitlements”; provides them“with transparency in relation to how work
is monitored, controlled and remunerated”;
ensures that they have “the opportunity
to contribute to a collective voice”; andprovides access to dispute resolution before an
independent government body. It is proposedthat this will be followed by a more detailed
memorandum of understanding that will
operationalize the principles as a framework
for regulation and reaching agreement aboutindustry-wide standards. The parties also
agreed that they will jointly lobby governments
to adopt the standards.23)   Eleven days after this agreement wasannounced, the Australian Labor Party won thefederal election and came into government witha platform that includes “a better deal for gig
workers.” It includes a promise to extend thepowers of the Fair Work Commission to makeminimum standards for “employee-like” formsof work “to better protect people in new formsof work, including gig work, from exploitationand dangerous working conditions.” In afurther development late in June 2022, theTWU and Uber signed an agreement that bothwould support federal government legislation
for an independent tribunal responsible forcreating industry wide standards, including
setting “minimum and transparent enforceable
earnings and benefits/conditions for platformworkers based on the principle of cost
recovery, taking into account the nature of thework” (Workplace Express 2022). A few days
later, the federal Minister for Employment andWorkplace Relations announced that the newfederal Labor government will legislate to give
the Fair Work Commission new powers to set
minimum standards for gig workers.
   Finally, it is critical to recognize that what
has been examined here is but a fragment of thevast and expanding array of highly articulated
business arrangements refashioning work(see for example Amazon-type operations).
Such arrangements fracture, segment, andisolate work and groups of workers in waysthat render institutional arrangements likeunionized collective bargaining or minimumlabor standards enforcement problematic, evenwhen the latter are not bypassed altogether aswith much platform work. Ultimately, these areproblems that can only be addressed by laborlaws that overcome the bifurcation between
WHS and industrial relations issues andaddress the working conditions of all kinds ofworkers. This challenge extends well beyond
platform work and requires a fundamental23) For the full agreement, see https://www.workplaceexpress.com.au/files/2022/10DoorDashprinciples.pdf

Regulating Health and Safety in Work for Digital Labor Platforms in Australia

refashioning of the social protection regulatoryarchitecture erected in the late nineteenth
century and early twentieth century.
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116

Elizabeth BLUFF , Richard JOHNSTONE and Michael QUINLANACKNOWLEDGMENTS
The authors would like to thank Jack Boutros
at the Transport Workers Union (national
office) who was a key informant for the casestudy of health and safety representatives forfood delivery workers in part 3 of this article.
CONFLICT OF INTEREST STATEMENT
No conflict of interest to disclose.

J Work Health Saf Regul 2023; 1; 117‒137

Original Article

An Occupational Health and Safety Perspective
on EU Initiatives to Regulate Platform Work:
Patching up Gaps or Structural Game Changers?
Aude CEFALIELLO*
Abstract: Rather than being new, platform work extends pre-existing trends: greater
control and surveillance, greater job precarity, and greater worker isolation and workplacefragmentation. Nevertheless, platform work distinguishes itself by its unique usage ofalgorithmic management software to constantly monitor, organize, and evaluate workers.
These two features of platform work adversely affect both workers’ physical and mental
health. Platform workers are exposed to layers of risks: traditional risks and risks due to theusage of artificial intelligence (AI) at the workplace. Even if these risks are preventable, thewidespread misclassification of platform workers as independent contractors shifts the legal
and financial responsibilities to prevent the risks onto these workers, even if they do not havethe organizational means and powers to do so. After providing a mapping of the risks that
platform workers are exposed to, and the challenges they are facing in practice due to theirfragmented employment setting (often combining offline work with platform work), this article
examines the recent European Union (EU) initiatives affecting platform work—the Directive
to improve working conditions of platform work, and the Artificial Intelligence Act (AI Act).
Thus, using a socio-legal methodology, the article aims to contribute to on-going debates on
the platform economy and AI by providing a critical analysis of whether these two recent EU
initiatives to regulate platform work address a minima the challenges previously raised by theincreased use of digital platforms, and, in particular, whether they contain provisions that will
effectively empower and protect platform workers. The article argues that the proposal for a
Directive on Platform Work represents a potential step forward by recognizing the impact of AI
management on workers’ health and safety, including by addressing psychosocial risks. This
Directive, however, has its weaknesses and does not address all relevant issues—for example,
it doesn’t distinguish between psychosocial risks factors, work-related stress, and how toaddress them, and, in practice, there is a risk that only a limited number of workers will be able
to benefit from these provisions. Meanwhile, the AI Act imposes additional requirements on
the user of the AI (the labor platforms) but does not provide additional rights for the end-users(the workers). Further, because the AI Act is a form of product safety regulation (horizontal
regulation), it does not take into consideration the specificities of the employment dynamic (e.g.,
the imbalance of power, subordination, etc). The article concludes that these two EU initiatives
show awareness on current issues arising from platform work but fail to address them in an
effective way.
Key words: Gig economy, Platform work, Artificial Intelligence, Occupational Health and
Safety, European Union* Researcher in the Health, Safety and Working Conditions Unit, European Trade Union Institute, Email: acefaliello@etui.org.

118

Aude CEFALIELLO

1. INTRODUCTION
We must make the most of the job-creating
potential of digital platforms. But we should
also make sure that they are quality jobs,
that don’t promote precariousness, so people
working through them have security and canplan for their future.1)

Wi t h t h i s s t a t e m e n t , t h e E u r o p e a nCommissioner for Jobs and Social Rights,
Nicolas Schmit, verbalized the balancing
exercise that regulating platform work in theEuropean Union (EU) demands. On one hand,the European Commission wants to foster
the digital transition and the role of digitalplatforms in it. On the other hand, the jobs
provided by labor platforms should not impose
unfair costs on workers, including on theirhealth and safety. The European Commission
reports that 28 million people perform work
via a platform in the EU; 2) while a recent
European survey estimated that 4.3 percent of
the working population has performed platformwork over the past 12 months (Piasna, Zwysen,
and Drahokoupil 2022, 15). Even if the scopeof platform work in the EU is debatable,
the labor law literature has examined theplatform economy for almost a decade now,
and, in particular, the challenges (in new andold ways) that it poses to the core values ofworkers’ protection (Dukes 2020; De Stefano2016). Thus, what labor platforms currently are
does not matter as much as what they could be.
As Lobel (2017, 52) suggests, a lot of existingjobs will potentially be “uberized”:
Gig workers are drivers, delivery-people,

personal assistants, handymen, cleaners,
cooks, dog-sitters, and babysitters but
increasingly are also more specialized
professionals, including nurses, doctors,
teachers, programmers, journalists, marketing
specialists and, well yes, lawyers too. … The
technology is here: as long as you have thetime, skill, knowledge, and empty couch, andunoccupied vehicle, or an idle lawnmower,
you can swiftly become a corporation. The
platform economy channels anything, andeverything sitting idle into the market andmonetizes it (emphasis added).

Rather than being new, platform work extends
pre-existing trends: greater control andsurveillance, greater job precarity, and greater
worker isolation and workplace fragmentation(Bérastégui and Garben 2021, 97). Other
scholars have identified broader challenges
for labor law emerging from debates aroundplatform work, such as: (i) the adequacy ofthe methods and criteria to define workers’
status, (ii) the limited scope of labor regulation,and (iii) whether labor and social security
paradigms need adjustment to address changes
in the labor market (Aloisi 2022, 5).
   Initially, public and academic debates
mainly focused on the employment status ofplatform workers and on determining if, andunder which conditions, people performing
work for a platform should be classified asworkers benefitting, at least in theory, from alllabor law protections. All over the world, andparticularly in Europe, platform workers haveinitiated litigation to obtain recognition of their“worker status” (De Stefano et al. 2021). The
consequences of not having employee status
include poor workers’ health and safety and1) https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6605 (Accessed August 17, 2022).
2) Twenty-eight million represent 14.6 percent of the European working population in 2020 (19.5 million), data available
at: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Employment_-_annual_statistics (July 15, 2022).

European Union Platform Work Initiatives

higher risks of injury and death due to a lack ofprotective equipment.3) Thus, the recognitionof workers’ status is the pre-requisite to
examining whether existing labor legislation,
including occupational health and safety(hereafter OHS) legislation, could effectively
protect platform workers (Cefaliello 2022, 13–14). Still, in some respects, platform work isdifferent from previous forms of employment.
The two main distinctive characteristics are
the use of artificial intelligence (AI) to manage
workers who previously would have been outof the direct sight of managers, and the ability
and flexibility of platform workers to login and log-off remotely (Ivanova et al. 2018).
More than ever, the way work is organized
by a digital platform aims at maximizing thenumber of tasks completed on time and withgood quality (Bérastégui 2021).
   Concerns have already been raised about
the potential inadequacy of OHS regulation
to protect platform work (Garben 2019, 101;
Eurofound 2020, 54). In 2020, the European
Commission launched an initiative to address
the challenges to labor protection posed by
platform work, and after consultation with
the European social partners, published thedraft of a Directive on improving working
conditions in platform work (COM/2021/762,
hereafter the Directive on Platform Work). Thisinitiative is part of a bigger political programon digitalization, including parallel discussions
on an Artificial Intelligence Act (hereafter
AI Act), covering, from a product safety
perspective, questions of AI software intended
to be used in the context of employment.
Unlike the Platform Work Directive, which119

could be described as “reactive,” the AI Act
aims to be “proactive” and regulates the useof AI in anticipation of its increased use in
the coming years. The EU aims to be the firstto actively regulate AI. In the labor law field,
the use of AI at work has been discussed
by the European social partners during thefinalization of the European frameworkagreement on digitalization (2020). The AI
Act is one of the first attempts in the world
to enact horizontal regulation of AI; most of
the previous efforts to regulate platform work
occurred at the national level (De Stefano etal., 2021: 18–29). The proposal for a platformwork Directive is a promising instrument for
improving platform working conditions bysimultaneously addressing employment status
misclassification, algorithmic management,
and the enforcement of existing rules (KellyLyth and Adams-Prassl, 2021). Consequently,
the analysis in this article of these two
European initiatives might contribute to futureinternational comparative studies or policy
initiatives.
   After providing a mapping of the risks
that platform workers are exposed to, andthe challenges they are facing in practicedue to their fragmented employment setting(often combining offline work with platformwork), this article examines the two recent
EU initiatives seeking to regulate aspectsof platform work. Thus, using a socio-legal
methodology, the article aims to contribute tothe on-going debates on platform economy and
AI by providing a critical analysis of whether
these two recent EU initiatives to regulate
platform work address a minima the challenges3) COM/2021/762 final. European Commission. Proposal for a Directive of the European Parliament and of theCouncil on Improving Working Conditions in Platform Work. https://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=COM:2021:762:FIN, 14.

120

previously raised by the increased use ofdigital platforms, and, in particular, whether
they contain provisions that will effectively
empower and protect platform workers.
The paper is structured as follows. Drawing
on a review of recent academic and grey
literature, section two provides a summary ofoccupational hazards that platform workers are
exposed to. Having clarified the background,
section three proceeds to analyze the latest
EU regulatory proposals in the form of the
Platform Work Directive, and the AI Act, andto assess the extent to which they adequately
address these concerns.4) Section four provides
concluding remarks, and argues that even if
these initiatives seem promising, there arereasons to believe that they will not contributemuch more than marginal improvements to theprotection of platform workers in practice.
2. WORKING CONDITIONS IN
THE PLATFORM ECONOMY
CHALLENGING OHS ON ALL
FRONTS
A. New Technologies Exacerbating Old
Hazards
The COVID-19 pandemic brought considerable
public attention on the working conditions, andthe threats to health and safety, of the platformworkers performing food delivery services
and passenger transport services (Andersson
and Novitz 2022, 11). The deterioration of
platform workers’ working conditions included
increased health and safety risks to on-location
platform workers, particularly in the transport,

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delivery, household maintenance, and caresectors.5) Even before the pandemic, the daily
working conditions of on-location platformworkers, such as riders, have been dangerous,
and included the risks of being attacked or
involved in incidents causing injury or death(Gregory and Maldonado 2020). Various otherstudies have reported numerous physical andpsychological hazards faced by transport
platform workers (Tran and Sokas 2017, 64;
Malenfer, Defrance, and Hery 2018, 16–17).
Even though digital labor platforms are
reluctant to report injuries of platform workers,a 2019 survey reported that around 42 percent
of people working through delivery platforms
have been involved in a collision (Christie andWard 2019).
   However, these figures most likely
understate the incidence of injuries and deathbecause statistics on incidents, injuries, andoccupational diseases related to platform work
are not systematically collected or available(Lenaerts et al. 2021, 1). Transport platformworkers have been the focus of media andresearch; however, an European Trade Union
Institute (ETUI) survey on platform workshows that work involving the transport ofpeople is the least frequently reported typeof specific platform work (Piasna, Zwysen,
and Drahokoupil 2022, 17). This survey shed
new light on the extent of platform work in
Europe. It reported that activities covered by
platform work include: remote click work
(e.g., data entry or sorting, transcriptions, paid
online surveys), remote professional work, 6)4) For a more general assessment of legislative developments related to the platform economy in Europe, see Aloisi(2022).
5) COM/2021/762 final. European Commission. Proposal for a Directive of the European Parliament and of theCouncil on Improving Working Conditions in Platform Work. https://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=COM:2021:762:FIN, 65. Also, for the healthcare sector in particular, see Franklin (2020).
6) Which include writing and translation, graphic design and multimedia, software and web development, other remote

European Union Platform Work Initiatives

on-location work,7) and transport and delivery
work. The most frequent type of platform work
is remote click work. Lenaerts et al. (2021, 14)have recently identified the lack of attention
to other types of platform work than transport
work as a gap in the OHS literature.
   Based on the existing literature, it ispossible to conclude that platform workers
face a combination of “traditional risks” (i.e.,risks that existed before the organization of
the work via a platform) and risks speciallyrelated to platform work (e.g., algorithmic
management) (Garben 2017, 24). Platformwork raises concerns about the way work
is performed and, especially, the increasinguse of algorithmic management (either
partly or fully) in the way in which work isorganized. One distinguishable feature ofplatform work is its use of an algorithmic
management process to allocate tasks,
organize, and evaluate work based on metrics
and ratings collected via workers’ monitoring(De Stefano et al. 2021, 33). The degree ofcontrol performed by the algorithm mightvary, but there is a direct relation between
the degree of algorithmic control and therise of occupational risks (Bérastégui 2021,
87). Algorithmic management can assessinter-worker competition and provide rating
mechanisms, encourage a rapid pace of workwithout breaks, which may induce pressurethat leads to accidents. The risk factors that are
most exacerbated by automated management
processes are psychosocial risks, with around50 percent of platform workers suffering fromclinical levels of social anxiety, compared to
7-8 percent found in the general population(Bérastégui 2021, 16).
professionals, and sales and marketing support.
7) Includes handywork, babysitting, and tutoring.

121   Even if algorithmic management as ameans to allocate, monitor, or evaluate workis the most distinguished feature of platformwork compared to traditional forms of work
(Lenaerts et al. 2021, 6), its impact is not
limited to the platform economy. Algorithmic
management is already being used in many
conventional employment settings such as
warehouses, factories, or marketing firms todirect, to discipline, or to evaluate workers(Wood 2021, 6–7). A study has identified thefollowing occupational risk factors originatingfrom algorithmic work management: constantmonitoring, work intensification, lack ofautonomy, bias and discrimination caused by
the algorithm, and complexity and lack oftransparency (Todolí-Signes 2021, 436–441).
   Thus, one consequence of platform workis that risks are layered, and workers are
exposed to both physical and psychologicalrisks (Lenaerts et al. 2021, 15–16; Huws
2015). Depending on the tasks performed, adistinction should be made between locationbased platform work and online platform work(with an additional distinction between micro
and macro-tasks) (Bérastégui and Garben
2021, 96). Risks involved in both micro- andmacro-tasks in online platform work include
the risks traditionally observed in computerbased work (Lenaerts et al. 2021, 13) andin precarious forms of employment, as wellas the risks related to the use of algorithmic
management. For on-location platform work,
there is an accumulation of the traditional risks(e.g., exposure to chemicals or other dangerous
substances when cleaning) (Lenaerts et al.
2021, 13) and risks of inter-personal violenceand harassment, in addition to the pressure to122complete work within tight deadlines leading
to breaches of OHS rules, including failures
to take breaks (Huws 2015). Considering that
platform work is one form of atypical work,some conclusions have been drawn fromresearch on similar groups, based on the key
characteristics of people performing platform
work—for example, being young or working
alone are recognized to be risk factors (Garben
2017, 3). Overall, the predominating risk isoften determined by the work environment(Huws 2015).
B. Legal Loopholes in the OHS Frameworkfor Platform Workers
As we can see, the organizational choices madeby the platforms impact on both the mental
and psychological health of the workers. Is thispreventable? Absolutely. Previous research
has stressed that platforms could use theirconstant monitoring to improve workers’ safety(Malenfer, Defrance, and Hery 2018, 14–15),
and other research has shown that algorithmic
management software could be developed withthe aim to protect workers’ health rather thanjust economic maximization (Lee et al. 2021).
From a technical point of view, means exist
to prevent both the physical and psychosocial
risks. The remaining question is: who is legally
responsible to prevent them?
   Previous studies have highlighted that themisclassification of platform workers as “selfemployed persons” is a factor that dilutes OHS
responsibilities (Aloisi and De Stefano 2022,
37; Garben 2017, 4). As previously noted,
because platform workers are repeatedly andwrongly classified as self-employed, they
are legally and financially responsible for

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the prevention of all risks linked with theiractivity without having the organizational
means to do so. Indeed, as self-employedworkers, platform workers bear business risks
associated with self-employed status while
having little control over the business strategy
or how to perform their work (Georgiou
2022, 122). Consequently, platforms benefit
from the employers’ prerogatives withoutcarrying the employers’ obligations (Prassl
and Risak 2015, 636). Platform workers havea narrow understanding of how the platform
controls their work, yet they are legally andfinancially responsible without having thefreedom or means to protect themselves.
The situation of the delivery riders or drivers
during the pandemic is a good example. Selfemployed on-location platform workers
were expected to prevent the risks of being
affected by COVID-19, for example bypurchasing their own Personal Protective
Equipment. Meanwhile, because of algorithmic
management and the sanctions imposed uponthem when they refused “proposed” rides,
drivers could not freely refuse a client (which atruly self-employed worker can do) even if they
thought the ride would put them at risk. And
because they were not considered as “workers”
under Article 3(a) of the Directive 89/391/
EEC,8) they could not benefit from the right towithdraw from a situation of immediate danger(Article 8(5) Directive 89/391/EEC).
   Up to now, the only possible avenue tofight misclassifications has been either to rely
on labor inspectorates, or for the worker togo before the courts. Even though litigation
has been relatively successful to fight themisclassification of platform workers (De8) Council Directive 89/391/EEC of June 12, 1989, on the introduction of measures to encourage improvements in thesafety and health of workers at work. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31989L0391.

European Union Platform Work Initiatives

Stefano et al. 2021), this individual approachhas not led to an improvement in the healthand safety of platform workers’ working
conditions. In most cases, after the judgment,
the default setting remains that platformworkers are regarded by the platform as selfemployed and responsible for their OHS
prevention, even if in fact, the platform should
be responsible for it. Even if platform workers,
individually, are recognized by the courts tobe workers, this will not have an impact on
the way work is organized by the platform.
By the time the judgment is applicable, theterms and conditions of the platform would
have changed and made the ruling irrelevantto the “current” organization. The only way
to ensure that OHS legal frameworks apply
to workers in the platform economy could behaving a presumption that platform workers
are employees—workers presumed to be
employees would fall within the scope of the
Framework Directive (89/391/EEC).
  In the EU, the Directive 89/391/EEC isthe cornerstone of the OHS legal framework.
It provides employers with the obligation
to prevent risks related to all aspects ofwork (Article 5); and they should therefore
protect workers’ physical and mental health.
The employers should follow the generalprinciples of prevention: after conducting arisk assessment, the employers must consult
the workers or their representatives to adopt
collective (or individual) measures to either
eliminate or reduce the risks. The financial
burden of the prevention cannot be borne byworkers (Article 6(5) Directive 89/391/EEC).
The Directive has vested workers with somerights, including the right to withdraw from123

work if there is any serious and immediate
danger (Article 8(4) Directive 89/391/EEC).
Workers and their representatives have also
the right to appeal to national authorities
responsible for OHS if they consider thatthe measures adopted at work do not protect
them adequately (Article 11(6) Directive
89/391/EEC). The Directive does not only
set down rules but the organization ofwork to be centered around prevention andthe participation of the workers and theirrepresentatives (James and Walters 2002).
To benefit from this protective framework,
platform workers need to be “workers” under
Article 3(a) (Cefaliello 2021a). To guarantee thepurpose of OHS framework, we need a broad
approach to the categorization of “workers,” asillustrated in the recent judicial review decisionin the United Kingdom (Hobby 2021).
   Indeed, in the England and Wales High
Court decision in R (on the application of
the IWGB) v SSWP and Others, one key
discussion revolved around the personal scopeof Directive 89/391/EEC and the meaningof worker (Article 3(a)). The Trade Union(IWGB) argued for a broad understandingof the definition of “worker” by claimingthat a purposive approach must be applied tothe interpretation of the OHS Directives. In
the High Court ruling, Judge Chamberlain J
supported this approach by referring to Article
31 of the Charter as an interpretive aid todetermine the purpose of the Directive, and tosupport an interpretation as broad as possibleof the definition of “worker” used in the
Framework Directive. This ruling confirms thatOHS protective framework applies not only
to employees but also to (limb(b)) workers.9)9) In the United Kingdom, limb(b) workers are defined in s 230(3) of Employment Rights Act 1996. The employer
exercises a different degree of control over a limb(b) worker and an employee. According to the Health Safety

124

Another way to “trigger” the application of
the Directive 89/391/EEC for the benefit ofplatform workers would be to focus on thelevel of control exercised by the platform.
Indeed, Article 3(a) defines as an employer
with OHS responsibility the entity who has themeans and the control of the undertaking. One
can argue that regardless of the workers’ status
for other labor rights, the platform should
be responsible for OHS prevention because
it is the only entity with the means, control,
and powers to collectively organize work andeffectively to prevent risks at work.
   However, even if the presumption of
employment proposed by the European
Commission applies, there would be strong
challenges to the effective application of
OHS protection in the platform economy.
Indeed, even if the draft Directive to regulate
working conditions in the platform economy
is adopted, it would provide platforms withlegal obligations to prevent the risks, but it
will not automatically lead to strong workers’organization with empowered health and safety
representatives. Indeed, the Directive 89/391/
EEC provides that the employer shall consult
the workers or their representatives. Yet, therules and processes for the appointment ofhealth and safety representatives vary fromone country to another (Walters and Nichols2007). Moreover, depending on the sector
and the country, the platform economy isextremely difficult to organize, in particular by“traditional unions” (Bertolini and Dukes 2021,
674). Without the collective organization of

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workers, the platform will most likely organize
OHS prevention in a unilateral way without
meaningful consultation of the workers (Jamesand Walters 2002).
   The second challenge would be regarding
the enforcement of OHS prevention in theplatform economy and the fact that theenforcement will depend on the intervention of
the Labor Inspectorates. The way the platform
economy is organized raises the broader
question of the control and enforcement of
the law when workplaces are fragmented.
Indeed, the absence of fixed working places
and working time is one of the challenges
to the application and enforcement of OHS
standards to platform work (Garben 2017, 4).
For both online and offline platform work, thetasks are temporary and can happen anywhere,
at any time. Platform work is not performed at
a “workplace” in the traditional sense—work
can be carried out in public places (e.g., on
the road), in private workplaces which do notbelong to the platform (e.g., cleaning), or in
private, domestic places (either belonging to
the client or a worker). Overall, platform workoften involves remote or solitary work, which
limits the possibilities that labor inspectorates
might intervene and makes the enforcementof established OHS standards more complex(Eurofound 2020, 10). The enforcement
challenges are similar for workers teleworking
from their homes (and more generally, forremote work), and for mobile workers andtemporary workers. Not only are workplaces
more fragmented, but inspectors need to takeExecutive (HSE), “Limb (b) describes workers who generally have a more casual employment relationship and work
under a contract for service,” whereas for employee “if there is a contract between a worker and a business, and thebusiness exercises significant control over that worker, there may be an employment relationship between the worker
and the business during actual working hours, even if there is no contract outside actual working hours.” (https://www.
hse.gov.uk/vulnerable-workers/gig-agency-temporary-workers/employer/definitions.htm#:~:text=Limb%20(b)%20
workers,under%20a%20contract%20for%20service, accessed August 22, 2022).

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European Union Platform Work Initiatives

a broader approach to inspection; they should
examine not only the physical risks but also
the risks emerging from the work organization,
which requires more time.
C. The Reality of Working Conditions in the
Platform Economy: A Difficult Mix andMatch of Occupational Hazards
In practice, benefiting from the Directive
89/391/EEC might not be enough to protect
platform workers. As previously mentioned,
the 2022 ETUI survey reports that often
platform work is combined with the platformworker’s other occupation (i.e., offline job)
(Piasna, Zwysen, and Drahokoupil 2022, 36).
Indeed, half of the people doing platform work
are employees (either in open-ended or fixedterm contracts) in their offline jobs (Piasna,
Zwysen, and Drahokoupil 2022, 37). However,for people doing platform work as their main
occupation, this percentage falls to around40 percent and almost 25 percent are selfemployed without employees in their offline
jobs. Another key finding is that “internet
and platform work is clearly an addition tooffline work and does not appear to substitutefor it” (emphasis added) (Piasna, Zwysen,
and Drahokoupil 2022, 47). The following
discussion will build upon the findings of the
ETUI survey and try to draw some conclusions
on the legal challenges they represent for theeffective application of OHS regulation.
   Different scenarios involving workers
who do both offline and platform work are
examined, combining different aspects outlinedin Table 1 and Table 2. For each situation, we
will hypothesize how the Directive 89/391/
EEC would apply within these fragmented
employment settings. The tables are constructed
as follows: a first distinction is made between
situations where people performing work via
platform fall within the scope of “worker”(as defined by Directive 89/391/EEC) or selfemployed (Table 1). The assumption is that“offline work” is the main source of income
and/or the worker’s main occupation, and“platform work” is an additional job (Table 2).
Then, to be consistent with existing literatureon platform work and the OHS risks outlined
previously, the nature of the tasks is divided

Table 1 Worker’s status depending on employment settings.10)

Offline Work

Platform Work

Worker’s status

WorkerWorkerA. Fully worker

Worker

Self-employed

B. Mostly worker

Self-employed

Worker

C. Mostly self-employed

Self-employed

Self-employed

D. Fully self-employed

Table 2 Nature of occupational tasks depending on employment settings.

Offline Work

Platform Work

Nature of the tasks

OnlineOnline1. Fully Online tasks

OnlineOn-location

2. Majority of Online tasks

On-location

Online3. Majority of on-location tasks

On-location

On-location

4. Fully on-location tasks10) “Worker” refers to the definition provided in Article 3(a) Directive 89/391/EEC.

126

between “online” and “on-location” (Table 2).
When people performing work via platforms
qualify as “workers,” both for their offline
and platform work (Table 1, status A), they
will always benefit from the protective scopeof the Directive 89/391/EEC. The main OHS
challenge would be a “traditional case” ofmultiple employers (Nygren et al. 2017). In
principle, both the offline employer and theplatform should assess the risks and thentake preventive actions to either eliminate or
mitigate the risks with collective and individual
measures. In practice, there is a concern that if
the platform is the “minority employer,” it will
be more incentivized to prevent risks leading
to injuries at work rather than occupational
diseases. Considering that people working
for platforms only do so for a short period oftime (Piasna, Zwysen, and Drahokoupil 2022,20), platform work might focus on health andsafety situations that would instantly engage
their liability (i.e., an incident leading to injury
at work) and will not prevent risks which
will materialize in years (e.g., exposure to
psychosocial or musculoskeletal disorders).
   Regarding the nature of the risks, there are
two distinct situations. If the nature of the work
performed offline and for the labor platform isthe same, then the preventive measures fromthe offline employment might benefit workers
in their platform work: for example, if theoffline work requires to work on a computer
and the platform work is online. Nevertheless,even in this scenario, the worker will be
exposed to similar risks for a longer periodof time. In the example of computer work, it
would be the exposure to a display, causing
visual fatigue, and musculoskeletal disorders,amongst others. However, if the nature of therisks is different (Table 2, cases 2 and 3) thenAude CEFALIELLO

it is a “mix and match” of risks, and most
likely only the risks of the offline work will
be fully prevented (depending on the natureof the contract of the offline work). It should
be noted that previous research has pointed
out that platform work involves extra workwhen compared to similar jobs outside of theplatform economy (Lenaerts et al. 2021, 15–16). For example, people doing platform workthat entails performing physical on-location
tasks might still be required to use a computeror technological devices to interact with thelabor platform.
   There is a similar analysis when people
working via a platform can be considered
as “workers” in the course of their main
employment (Table 1, status B). Here, only
offline employers will have obligations under
the OHS legislation and will have to prevent all
risks related to work. As self-employed persons
engaging in the platform work, workers will
fall outside of the OHS legal framework andwill be financially and legally responsible forthe risks arising from their platform activity(even though, this is contestable, as explainedlater in this paper). Here, if there are similar
occupational exposures and/or occupational
hazards, the prevention measures for the offline
employment relationship might benefit workers
during their self-employed platform work.
However, if the exposure is different (e.g.,working on a computer as part of the offline
occupation and delivering goods as platform
work—case 2, Table 2) then workers will haveto prevent their own risks.
   When people performing work throughplatforms are mostly or completely in asituation of being self-employed (status C and
D, Table 1), the legal and financial burden of
OHS prevention will fall on them. Once again,

European Union Platform Work Initiatives

the only exception would be in the case where
they are considered as workers by the labor
platform, but then the prevention might belimited to work injuries. Here, depending onwhether the occupational hazards are of similar
nature or not, workers might have to assess andprevent injury and ill-health in two different
work situations (a combination of status D andcase 3 or 4, Table 2).
  Thus, it means that the “safest” situation
for workers is when they are employees in boththeir online and offline work (status A, Table
1) and face similar risks in both occupations(either case 1 or 4—only if the on-location
work is the same). Workers with status B (Table
1) and in case 1 or 4 (Table 2) will be “relatively
safe,” because they could benefit indirectlyfrom the preventive measures of their main
employment and use it in the context of theirplatform work. Workers with status C and D(Table 1) are in the most dangerous situation
because most of the prevention burden will
be on them. One could argue that if, in theiroffline work, workers are self-employed, theymight be familiar and aware of the OHS legal
framework and requirements. Thus, the casesthat would be more problematic is status C(Table 1) and case 2 (Table 2), where workers
would have to prevent the on-location risks“on the side,” with a risk of not being familiar
with, or aware of, their obligations. Theseobservations underline that falling within thescope of Article 3 of the Directive 89/391/
EEC might not resolve everything for platformworkers. It would give them rights, in theory,
but considering that in many cases platformwork is an additional job, some concerns
might be raised on how the risks are going to
be assessed, in particular for online platformworkers.

127   To conclude, workers involved in theplatform economy (either for on-location or
online work) are exposed to psychological andphysical risks. Some risks are well-known andare related to the nature of the tasks, but theorganization of the work via a platform withalgorithmic management adds a new layer ofrisks and exacerbates psychosocial risks. Theserisks can be prevented. Legally, the preventionof these risks is either the responsibility of theplatform worker or the platform. As soon as the
person performing work for the platform falls
within Article 3 of the Directive 89/391/EEC,
the platform is recognized as employer for
OHS purposes and should assess and preventthe risks after consultation with the workers
or their representatives. However, in practice,people use platform work as an additionalsource of income and (usually) accumulate
jobs and employers. Therefore, even if theplatform is considered to be an employer,
there is a risk that it will only prevent risks
potentially leading to workplace incidents andnot occupational diseases.
3. THE ANALYSIS OF THE LATESTEU INITIATIVES IMPACTING
PLATFORM WORK
Aware of the challenges and the legal
uncertainty that the platform economy
represents for the working conditions of
the people involved, in December 2021, theEuropean Commission published a draft of a
Directive on working conditions for platformwork. Another parallel initiative with thepotential to improve the health and safetyof platform workers is the draft of the EU
Regulation on Artificial Intelligence publishedin April 2021 (i.e., AI Act). The next section
will examine to what extent these initiatives

128

address the challenges raised by the platform
economy and complement the existing EU
OHS framework.
A. Directive to Improve Working Conditionsof Platform Workers: Good Intentions
Falling Short
After a year of consultation with the Europeansocial partners, the European Commission
published in December 2021 a draft of a
Directive on working conditions platformworkers. 11) The key points of the proposal
are: (i) the way it addresses the issue of theemployment status of platform workers byproposing that there be a presumption of
employment (including a reversal of the burdenof proof), (ii) its approach to algorithmic
management, and (iii) its approach totransparency, remedies, and enforcement.
   T h e r e b u t t a b l e p r e s u m p t i o n o f
employment has been one of the main demandsof the Trade Unions and has been supportedby the European Parliament.12) It addresses the
problem of misclassification of the employment
status when digital labor platforms exert acertain level of control over the performance ofwork.13) The draft Directive provides, in Article
5, a list of indicators of employment status,and specifies that the presumption shouldbe triggered if two of those indicators areapplicable.14) The presumption of employability
should be enforced by relevant administrative
authorities (e.g., the Labor Inspectorates) and

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judges (Recital 24). The Directive aims to
reduce litigation about workers’ status and toincrease legal certainty (Recital 24), even if
some criticisms have been raised regarding the
expected effects of this presumption (Aloisi
and Georgiou 2022). Even if the phrasingof the presumption needs to be improved toguarantee that as many platform workers as
possible will benefit from the workers status(ETUC 2022), this Directive could address
the problem of misclassification and avoid
situations where workers would have the legal
and financial responsibility to prevent OHS
risks without having the organizational means
to do it. Indeed, all the people performing
work for a platform who will benefit from thepresumption of employability will also benefit
from the OHS protective framework (andfall within the scope of Article 3(b) Directive
89/391/EEC).15)   In addition, Article 7(2) of the draft
Directive on Platform Work addresses
specifically OHS considerations, as follows:
Without prejudice to Council Directive
89/391/EEC and related directives in the fieldof safety and health at work, digital labour
platforms shall:(a) e v a l u a t e t h e r i s k s o f a u t o m a t e dmonitoring and decision-making
systems to the safety and health ofplatform workers, in particular as regards
possible risks of work-related accidents,
psychosocial and ergonomic risks;11) COM/2021/762 final. European Commission. Proposal for a Directive of the European Parliament and of theCouncil on Improving Working Conditions in Platform Work. https://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=COM:2021:762:FIN.
12) European Parliament resolution of September 16, 2021 on fair working conditions, rights and social protection for
platform workers—new forms of employment linked to digital development (2019/2186(INI)). https://www.europarl.
europa.eu/doceo/document/TA-9-2021-0385_EN.pdf.
13) COM/2021/762 final, 9–10.
14) Ibid, 16.
15) Ibid, 2.

European Union Platform Work Initiatives(b) a ssess whether the safeguards of thosesystems are appropriate for therisks identified in view of the specificcharacteristics of the work environment;(c) i ntroduce appropriate preventive andprotective measures. They shall not use
automated monitoring and decisionmaking systems in any manner that puts
undue pressure on platform workers orotherwise puts at risk the physical andmental health of platform workers.
(emphasis added)

This provision not only makes it clear that
all the provisions of the Directive 89/391/
EEC would apply (including the consultation,
information, and training of the workers), butalso provides new obligations for the platform(as employer) regarding some distinctive
aspects of health and safety. If this provision
remains and is adopted in the final version,
it will be the first European legislation
to recognize the impact of algorithmic
management (automated monitoring anddecision-making systems) on workers’
health and safety and provides an obligationon the platform to evaluate these risks andadopt preventive measures in addition tosafeguards to the systems. 16) It will also be
the first directive mentioning work-related
psychosocial risks and pressure at work (which
is a psychosocial risk factor) and explicitly
stating that both physical and mental healthof platform workers should be protected. Bycompleting the existing EU OHS provisions(Directive 89/391/EEC) with additional
requirements addressing the specific features ofplatform work, this provision has the potential,
if applied by the platforms, to provide adequate16) Ibid, 29, Recital 38.

129

prevention to all the risks that platform workers
are exposed to. Even if the platforms do notrespect it, this provision provides a promisinglegal ground for litigation.
   It is also worth stressing that Article
9(1) of the proposed Directive on Platform
Work should ensure that information isprovided to platform workers and theirrepresentatives, and that platform workers andtheir representatives are consulted, by digitallabor platforms, on decisions likely to lead tothe introduction of or substantial changes in
the use of automated monitoring and decisionmaking systems. This provision echoes the
Directive 89/391/EEC with Article 6(3)(c)ensuring that platforms must consult with theworkers or their representatives on decisions
to plan and introduce new technologies withthe consequences for workers’ health andsafety. Any substantial change to AI could
also be understood as a measure which may
substantially affect safety and health of theworkers (Article 11(2)(a)) and thus be an issue
on which workers, or their representatives,
should be consulted. Even if Article 9 of the
proposed directive does not refer to Directive
89/391/EEC, the Framework Directive
has been mentioned repeatedly and thephrasing should confirm that workers or theirrepresentatives should be consulted when
the platform plans to introduce or modify thealgorithmic management software.
   However, even if some aspects of the
proposed directive are encouraging, there arestill some strong limitations and obstacles thatshould be addressed.
   The first factor which might limit thepositive impact of the proposed Article

130

7(2) is that the provisions only mention
psychosocial risks but neither define what
they are nor provide additional obligations.
As emphasized in the previous section,
platform work increases exposure of workers
to psychosocial risks, in particular fromthe constant surveillance and monitoring.
Currently, there is no specific directive on
work-related psychosocial risks in the EU andonly the general principles for prevention of
the Directive 89/391/EEC apply, alongside
two European autonomous frameworkagreements on work-related stress (2004)
and workplace bullying (2007) (Cefaliello2021b, 2). It means that the implementationof this provisions would rely on the nationalrules on psychosocial risks. Yet, a mapping of
national legislation, collective agreements, andjurisprudence in 26 European Member Statesshows that there is a fragmented approach towork-related psychosocial risks which leads
to inequal protection of workers (Franklin etal. 2021, 143). This inequality is confirmedby the ESENER-3 survey, which reports ahuge discrepancy between the percentages ofcompanies in Europe reporting assessing OHS
risks, and the companies reporting having
procedures in place to address psychosocial
risks factors, stress and workplace bullying or
harassment (EU-OSHA 2019). One hypothesis
might be that this inequal protection amongst
sectors and countries will be replicated in theplatform economy despite the adoption of thisprovision, unless it is complemented by anothergeneral European Directive on psychosocial
risks.
   The second element which might limit
the positive impact of the proposal is that the17) Ibid, 17.

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provisions on health and safety at work are
specific to workers and do not apply to selfemployed. 17) Moreover, Recital 28 provides
that a person can be self-employed “eventhough the digital labor platform controls
the performance of work on a given aspect.”
This means that these self-employed persons
would still be monitored and controlled by
the platform and will remain in the position
where they have the legal and financial OHS
obligations without the organizational freedom
to protect themselves. This exception might
weaken considerably the positive effect of thepresumption of employment and would leave
the platform in a situation where they would
benefit from the employers’ prerogatives
without the responsibilities. This approach
follows the anti-domination principle currently
used to distinguish employee and selfemployed (Garben 2017, 20; Rogers 2016,483). However, an alternative approach ispossible. The functional approach shifts thefocus from the worker to the employer (Prassl
and Risak 2015, 632). As a consequence ofreceiving labor and its fruits, the platform maybe the appropriate party to ensure compliancewith OHS Standards (Garben 2017, 21). This
would have the benefit to provide better OHS
protection to all people providing work to theplatform and being impacted by the conduct of
the undertaking.
   The third limitation is the narrow
understanding of “measures controlling theperformance of work.” Indeed, according
to Recital 25: “Measures or rules which arerequired by law or which are necessary tosafeguard the health and safety of therecipients of the service should not beEuropean Union Platform Work Initiatives

understood as controlling the performanceof work” (emphasis added). 18) The problem
is that sometimes measures that are initially
implemented to protect the customers are alsomechanisms that control the performance ofwork (Cefaliello and Kullmann 2022, 546).
In the United States, there have been alreadyexamples of AI being used to predict thelikelihood of the driver being involved in
an incident or a conflict. This measure aims
at guaranteeing the safety of the customers
and leads to drivers being controlled andtemporarily suspended if the driver isconsidered by the AI system to be dangerous,
which is a form of sanction (Lin 2021). Alreadyin some countries, employers are legallyauthorized to monitor workers’ behaviors toensure compliance with OHS requirements, andto manage risks (Aloisi and De Stefano 2022,
58). I would argue that regardless of the reason
for the implementation of AI, its impact onworkers’ health and safety should be evaluatedand harms from the AI system prevented.
   A f o u r t h l i m i t a t i o n r e l a t e s t o t h eenforcement of the presumption of
employability, and of the requirements
for OHS prevention. In its proposal, theCommission underlined the crucial role of“robust monitoring and inspection” in ensuring
compliance and enforcement. Some authors
advocate for “platforms (to) be compelled tosupply any such inspectorate with appropriate
and sufficient information to inform policy
development around social protection andrights for gig workers” (Forde et al. 2022). This
would mean that national authorities would nothave to actively collect information but would
receive it automatically. Placing the “burden”18) Ibid, Recital 25.
19) Ibid, 4.

131

of communicating the relevant information on
the platforms (which are the entities already inpossession of such information) would also be
a way to address the difficulties faced by labor
inspectorates previously outlined in this paper.
   To conclude, the Platform Work Directive
addresses some of the key challenges
that platform workers have to face, suchas misclassification, risk of algorithmic
management, and work-related psychosocial
risks (amongst other risks). However, some
limitations (whether in the scope or in thedefinition in the draft Directive) might leadto a restrictive impact of these provisionsin practice, leaving some platform workers
unprotected even if they are under the controlof the platform. Also, this Directive covers
only platform workers and does not address
the problem of algorithmic management (andassociated risks) for other workers who mightface similar pressure.
B. The AI Act: A Missing Opportunity toStart Addressing Risks that AI Represents
at Work
Some provisions of the Directive on Platform
Wo r k r e s o n a t e w i t h a n o t h e r E u r o p e a n
initiative under review: the regulation on
artificial intelligence in the AI Act. Indeed, theproposed Directive on Platform Work aims at
ensuring human monitoring of the impact ofautomated systems on working conditions witha view to safeguarding basic workers’ rights
and health and safety at work.19) Article 6(1)(b) (and Recital 32) imposes an obligationof transparency for platforms in relation to:“automated monitoring and decision-making
systems that are used to monitor, supervise,

132

or evaluate the work performance throughelectronic means; and automated decisionmaking systems which are used to take orsupport decisions that significantly affectworking conditions, … their occupationalsafety and health.”   According to the Commission, further
clarity and understanding of “the algorithmic
practices used to influence the behavior of
people working through platforms (e.g., nudges
such as bonuses for faster food delivery during
peak demand periods) would allow to prevent
health and safety risks, including stress andpsychosocial risks which are widespread inplatform work”.20)   The Commission recognizes that the
Directive on Platform Work intends tocomplement the AI Act provisions. The AI Act
is product safety legislation aiming to introduce
safeguards before AI systems are placed on
the market, put into service, and used. The
European Commission stressed that the rules
for AI should be human-centric and guaranteethat this technology is used in a way that issafe and respectful of fundamental rights.21)
Thus, the AI Act adopts a risk-based approachand differentiates between AI creating (i) an
unacceptable risk, (ii) a high risk, and (iii) low
or minimal risk. AI creating unacceptable risks
is prohibited. However, AI systems creating ahigh risk to health and safety or fundamental
rights to natural persons (including workers)
are permitted on the European market if they
comply with a list of requirements (Title
III). Algorithmic management systems are
considered as high-risk AI systems. Annex

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III, 4 to the AI Act specifies that high risk AI
systems include:(b) A I intended to be used for making
decisions on promotion and terminationof work-related contractual relationships,
for task allocation and for monitoring andevaluating performance and behavior of
persons in such relationships.

Before being placed on the market, and inorder to be considered safe, the provider ofhigh-risk AI should conduct a risk assessment,
including of the risks that may emerge when
the high-risk AI system is used in accordancewith its intended purpose and under conditionsof reasonably foreseeable misuse (Article 9(b)).
Amongst other obligations, providers of the AI
should design and develop these systems in a
way that guarantees sufficient transparency toenable users to interpret the system’s output
and use it appropriately (Article 13). Similarly,
these AI should include human-machineinterface tools allowing a natural person (e.g.,a worker) to oversee AI functioning (Article
14). Human oversight should aim at preventing
and minimizing risks to health and safety.
Additionally, the users of such an AI system
also have obligations (Article 29) such as tomonitor the functioning of the AI and reportany serious incident or malfunctioning, to keep
the log generated by the high-risk AI, and touse the AI according to the instructions of use
accompanying the systems.
   Even if the AI Act belongs to productsafety regulatory framework, scholars havealready identified the risks that this proposal20) Ibid, 38.
21) COM/2021/206 final. European Commission. Proposal for a Regulation of the European Parliament and of theCouncil laying down harmonized rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain
union legislative acts. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021PC0206, 1.

European Union Platform Work Initiatives

represents for labor law (Ponce De Castillo
2021; De Stefano and Aloisi, 2021). Indeed,
as soon as AI is intended to be used in
employment context, it is integrated in thework organization, as it is the case in platform
economy, and the employer becomes subject
to both labor law (including OHS) and the AI
Act (as a user, and sometimes, a provider).
Regarding the impact on the OHS regulation,
Cefaliello and Kullmann (2022) have identified
overlaps between the AI Act and the Directive
89/391/EEC and argue that AI software
intended to be used in the employment context
should be developed and deployed in a waythat guarantees the protective purposes of OHS
legislation. For example, when the provider
identifies a risk for the health and safety ofthe (end) user, some space should be left to
the workers’ representatives to adjust thefunctioning of the AI to the work organization(e.g., setting target goals that guarantee thephysical and mental health of workers and not
placing them under undue pressure).
   Additionally, reporting mechanisms tothird-party agencies should be accessible toworkers and their representatives, which is
not the case in the current draft of the AI Act.
Such adjustment of the AI Act would also be
coherent with the provisions proposed by the
Platform Work Directive. Indeed, it is not clear
how the platform can assess and prevent therisks of algorithmic management if there is no
way to adjust the functioning of the algorithm.
Even if the platform workers and theirrepresentatives have the right to be consulted
when new AI is introduced to the work process(or if there is a change in the work organization
impacting their health and safety), their inputs
will be limited if the way the software is usedcannot be adjusted to the needs of the specific133

work process.
   Thus, even if the AI Act does not take into
account the specific dynamics of employment
relations, it still applies to situations of
employment. None of the provisions of thecurrent draft would address the problem of
misclassification but acknowledging the link
between the development of the algorithmic
management software and the risks it might
create for the workers could be a way to
influence how AI should be developed. If
providers adopt a “worker-centric” approach
while developing AI software intended to
be used in the employment context, it will
have the potential to leave some space
for the participation of health and safety
representatives and lead to real prevention ofoccupational risks.
4. CONCLUSION
Platform workers are exposed to traditionalrisks linked to the nature of their jobs (either
online or on-location), and the specificitiesof platform work, and especially the useof algorithmic management, add anotherlayer of risks. The constant monitoring andevaluation of workers by platforms exacerbate
psychosocial risks and place workers under
additional pressure, which may lead to work
injuries. All these risks are preventable
but under the current approach, the agent
legally and financially responsible for OHS
prevention—the “self-employed” platformworker—is not the one with the organizational
powers required for effective collective
prevention. In some respects, the recent draft
Directive on Platform Work offers interesting
possibilities to improve the health and safety ofworkers involved in the platform economy.
   First of all, regarding the misclassification

134of platform workers as “self-employed”
that places them in situations where they
are expected to prevent OHS risks while
being under the control of the platform, theproposed directive provides the possibility thatworkers might benefit from a presumption of
employment. By introducing the presumptionof employment, this Directive aims at reducing
legal uncertainty and guaranteeing that OHS
standards will apply to platform workers.
However, the requirements needed to trigger
the presumption, and the fact that someworkers who are controlled by the platform
can still be considered as self-employed, might
limit the impact of this presumption in practice.
Issues like the one faced with litigation efforts
might appear. Indeed, even if litigation torecognize platform workers as “workers” (andnot self-employed persons) has mostly beensuccessful, it has not led to structural changes
in the way platforms operate.
   Secondly, in its Article 7(2), the Directive
recognizes for the first time the impact ofalgorithmic management on workers’ healthand safety; and refers for the first time topsychosocial risks and mental health. This isa good start, but merely mentioning the risks
is not enough to adequately prevent them.
Indeed, national examples of legislation on
psychosocial risks factors, such as The Danish
Executive Order adopted in September 2020,22)
take a more sophisticated approach to theseissues. Thus, if the draft Directive is adopted
as it is, it signals that those work-related
psychosocial risks are a topic which needs tobe better addressed at a later stage, not only
for platform workers but for all workers, withthe adoption of a Directive on work-related

Aude CEFALIELLO

psychosocial risks.
   Thirdly, the Directive on Platform Workprovides that platforms should inform andconsult the workers or their representatives,
which could signal a step toward social
dialogue, and which should address theconsequences of the planning or introductionof AI at work. However, in practice, traditional
trade unions have experienced difficulties in
the past in organizing platform workers.
   Fourthly, the platform work proposal
relies on relevant administrative authorities(e.g., Labor Inspectorates) and judges toenforce the presumption of employability,
and relevant provisions. Platform work
embodies and combines more general OHS
challenges, in terms of both the nature of therisks and organization of OHS prevention.
Effective prevention requires strong healthand safety representatives, labor inspectorates,and possibilities to litigate, and even when
they will be considered as workers, it might
be difficult to establish health and safety
representatives in some countries. Additionally,labor inspectorates are under-resourced and arenot (yet) equipped to monitor compliance with
OHS standards in fragmented workplaces (bothin private and public spaces).
   Thus, even if this proposal seems
promising, some aspects which might leadto a narrower protection of platform workers
than expected should, hopefully, be addressed
during the on-going ordinary legislative
process. Some provisions of the Directive on
Platform Work could be a source of inspiration
to address the gaps that have been identified
in the AI Act for AI software intended to be
used in the employment context. To conclude,22) Available in English at: https://at.dk/en/regulations/executive-orders/psychosocial-working-environment-1406/(accessed August 17, 2022).

European Union Platform Work Initiatives

platform workers have suffered from being the“guinea pigs” of the un-regulated developmentof the gig-economy; but it seems that theEuropean Directive to improve their working
conditions might open paths to address broader
OHS challenges, in particular regarding the useof AI. Let’s hope that it will not end up as adead end.
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Consequences for Work Organisation and Working
Conditions.” JRC Working Papers Series on
Labour, Education and Technology. Joint ResearchCentre, European Commission.

CONFLICT OF INTEREST STATEMENT
The author confirms that there is no potential
source of conflict of interest.

Original Article

J Work Health Saf Regul 2023; 1; 138‒154

Reconsidering Working Time Regulation
for the Protection of Platform Workers’
Health and Safety
Cristina INVERSI*
Abstract: This paper addresses health and safety regulation and working time in platform
work, with a focus on food delivery services. In recent years, platform work has highlighted
many challenges in legal debates, and health and safety is one of the “hot topics” informing
academic discussion. The paper reviews existing literature on working time and healthand safety in platform work and draws on qualitative research on delivery riders’ working
experiences to identify some of the pressing issues. It then presents the current legal regulatory
framework, from European Union and United Kingdom perspectives, identifies challenges, andestablishes the importance of working time regulation to improving riders’ health and safety
protection.
Key words: Working time, Platform work, Health and safety, Labor law, Gig-economy, OSH
regulation

1. INTRODUCTION
New structures of work organization, suchas platform work, have profoundly affected
the legal debate on employment regulationfrom many angles and perspectives. Whilethe discussion around the legal classificationof platform workers has been at the forefrontof the analysis, due to the implications of
the subordinated relationship between theplatform and the worker, for rights andobligations, other themes have been crucial toincrease the understanding of the organization
and regulation of platform work. Forms ofcollective negotiation and resistance (Tassinari
and Maccarrone 2017; Prassl 2018a),
algorithmic management and work organization(Aloisi 2019; Lehdonvirta 2018; Prassl 2018b;
Wood 2021), health and safety (Christie andWard 2019; Apouey et al. 2020; Beckman etal. 2021), and gender issues (Gerber 2022;
Warren 2021) have been central themes in
research on platform work, both in developed
and developing countries. The global scaleof the phenomenon of platform work holds
much wider implications than those strictlyconnected with national regulations, and it
has required the intervention of international
actors, as in the case of the European Union(EU), to avert social dumping and a race tothe bottom on labor and social welfare rights.
Furthermore, globalization in platform work
brings challenges of integration of services
in global supply chains, reproducing old
dynamics of labor exploitation (to the extremeof gang-mastering practices and forced labor)
which have required the intervention of strictmeasures and criminal sanctions (Inversi2021).

* Alliance Manchester Business School, The University of Manchester, UK, Email: Cristina.inversi@manchester.ac.uk.

Reconsidering Working Time Regulation   In this context, platform workers’ healthand safety has been at the center of publicdebate. Issues of risks to workers and theirwell-being, especially during the COVID-19
pandemic, have dominated the media debate(Inversi, Cefaliello, and Dundon 2020), withlittle response from legislators. However, thelegal context for platform workers is rapidlychanging, with more and more jurisdictions
in Europe attributing employment status andconnected rights (and therefore the applicationof occupational safety and health [OSH] rights
and obligations), although a comprehensive
framework for the regulation of platformworkers’ health and safety is still to beestablished. At the moment, the most importantlegislative initiative within the European
context is the Proposal for a Directive of theEuropean Parliament and of the Council on
Improving Working Conditions in Platform
Work (2021/0414 (COD)), which aims toprovide common rules around platform workand employment status recognition within the
EU member states, alongside basic regulationon algorithmic management, thereby providing
minimum rights for genuine self-employedpeople. Despite this being an important step
within the EU framework of social rights, as
will be outlined later, the current regulatory
initiative to fill the gaps in platform workers’
protections brings challenges, in particular inregard to algorithmic management regulationand the possible implications for health andsafety. As this paper draws on qualitative
empirical research conducted in the United
Kingdom (UK) between 2016 and 2019
(Inversi 2018), it looks at platform workfrom the perspective of health and safety
regulation in the UK and EU. The paper
considers working time regulation as one of139

the fundamental pillars of health and safety
regulation and takes into account the influencethat the EU legal framework has on the UK
regulatory system. Indeed, the EU debate on
working time regulation has been one of thecontested terrains, among others, that widened
the fracture between the UK government andthe EU, and resulted in the so-called “Brexit”
process. Despite the UK leaving the EU,
effective as of February 1, 2020, it is importantto highlight that the two legal systems areintertwined and therefore require parallel
analysis. Furthermore, as will be outlined
later, the global scale of platform work calls
for international responses which need to befurther explored.
   The aim of the paper is thus to present thecurrent regulatory framework on working time
for platform workers, considering working
time as a fundamental dimension of healthand safety, in order to advocate for greaterattention by regulators. This is both to address
current issues and to regulate for better, moretransparent, fair, and participative working
standards. The paper first reviews existing
literature on working time regulation and its
effects on health, safety, and work-life balance,with a special focus on the opportunities
and the risks arising from platform work,
especially for food delivery services. Then, thepaper draws on qualitative research to further
describe current practical challenges and issues
that delivery riders face while performing
their jobs, or as a structural effect of platformbusiness models. Finally, the paper addresses
some of the legal responses that have been put
in place in the EU and in the UK, adding to thedebate on the regulation of digital platforms
from the health and safety perspective.

140

2. RE-ASSESSING THE IMPORTANCE
OF REGULATING WORKING TIME
FOR PROTECTING WORKERS’HEALTH AND SAFETY
The evolution of working time regulation(through formal and informal channels) is
pivotal to understanding the future of work
(Blyton 1985). This is true both from aquantitative perspective, with the expansionof labor markets in new areas of economic
activity such as platform work, and from aqualitative one, which entails a discussion ofworking conditions and employment rights,
including health and safety and working timearrangements.
   Historically, the purpose of regulating
working time was to sustain and organize theindustrial model, by treating time as a means ofmanaging and disciplining working relations,both individually and collectively (Thompson
1967). From an individual perspective,
working time has been conceived as an
instrument of control in exchange for wages;
from the collective side, its objective has been
to establish discipline and solidarity (Supiot
2001). Only at a later stage, the discourse about
working time regulation in labor law has beenstrongly linked to the protection of health andsafety (Sparks et al. 1997; Adnett and Dawson
1998) and to the promotion of work-lifebalance, especially in relation to gender issues(Rubery et al. 2005; McCrate 2016; Vincent
2016; Zbyszewska 2016).
   Within the EU, working time regulation
has been specifically introduced as a means toprotect workers’ health and safety. In 1993, theEU enacted the first directive on working time(Working Time Directive 93/104/EC), as the1) TFEU: Treaty on the Functioning of the European Union.

Cristina INVERSI

basis for regulating some fundamental aspectsof time at work such as a limit on maximum
working hours, rest breaks, and minimum
holiday entitlements. This first instrument wasthen replaced by a second directive (2000/34/EC), which expanded the application ofworking time protections to sectors previously
excluded (such as transport, maritime activities,
and medical training). Both directives werethen recast in a final directive, the Working
Time Directive 2003/88/EC (hereafter WTD).
   Considering its reception within EU
member states, friction regarding the scope ofthe first WTD is noteworthy in the UK, which
did not have a tradition of regulating working
time through statutes and historically delegatednegotiations to the collective bargaining
system. Indeed, regulations on working
time were introduced in the UK following aturbulent path. The scope of the first WTD
was challenged before the European Court ofJustice as the UK government did not consider
the regulation of working time to be a healthand safety issue. This claim was made in theattempt to undermine the adoption of theWTD by the EU, challenging its legislativecompetence (power) and interpretation oflabor law definitions. While the EU argued
that its competence was legitimated by Article
118A of the Amsterdam Treaty (now Article
153.2 TFEU 1)), the UK challenged the EU
Commission before the European Court ofJustice, contending that the WTD shouldhave been adopted on the basis of a different
source of legitimacy (namely Article 100 or
Article 235 of the EC Treaty), which requireda different and more stringent procedure for its
adoption (the unanimity of the Council) that

Reconsidering Working Time Regulation

would have guaranteed a sort of “veto power”
to countries that opposed it.2)   Eventually, the European Court of Justicerejected the UK claim and determined thatworking time regulation was directly related
to issues of the health and safety of workers
in their working time environment, thus
establishing that the power given by Article
118A (153 TFEU) of the Amsterdam Treaty
did have effect in this specific matter (Van
Nuffel 1997; Fitzpatrick 1997). This decision
has been pivotal to reinforcing the scope ofworking time statutory regulation, due tothe primary importance given to health andsafety competences (powers) within the EU
institutional and regulatory framework. At thesame time, however, the dispute reveals thestrenuous opposition of the UK to the WTD,
and to the EU competence to regulate thefield. The resistance to the WTD, and more
broadly to any statutory regulation on thismatter, has been explained as the product ofan “orthodox economic theory” perspective,
which assumes that competition will be able toforce any employer to accommodate individual
employees’ preferences on working time
(Adnett and Hardy 2001). Even after reaching
the peak of the dispute in terms of legislativecompetence and sovereignty, and with theultimate withdrawal of the UK from the EU,
this orthodox economic perspective is stillpart of UK government policy, especially if
we consider its position towards new working
time regulations and the regulation of digital

141

labor platforms (Inversi, Dundon, and Buckley2022).
   After the enactment of the WTD, theEuropean Court of Justice has played afundamental role in filling the gaps left by
the statutes in the definition of working time,a subject that has been at the forefront oflegal discussion and Court disputes. In fact,
the dualistic approach outlined by the WTD
in Article 2, concerning the definition ofworking time and rest time, has caused many
problems of interpretation, and attracted
criticism. The original conceptualization oftime in employment regulation rested on arigid dichotomy between working time andrest time. This bipolar structure can still
be found in European statutory regulations
and has been strongly criticized for its
rigidity and ineffectiveness in embracing
a holistic notion of working time (Bavaro2009), with consequential difficulties in its
application in relation to new forms of workorganization such as platform work (Inversi2019). Furthermore, the definition has beencondemned for its negligence in considering
issues such as “reproductive time,” 3) “onthe job inactivity,” and “consumption time”4)(Supiot 2001). The dualistic approach outlinedby the WTD considers time just as a static andunitary measurement of the working activity,and it is difficult to adapt to non-standard
forms of work. Indeed, the current definition ofworking time in the WTD seems to disregard
new forms of work organization, in particular2) United Kingdom of Great Britain and Northern Ireland v Council of the European Union (C-84/94).
3) This concept refers to the time dedicated for social reproduction and care, which has been consistently and historicallyallocated to women, diminishing their capacity to participate in the labor market and to obtain recognition for unpaid
work (Wajcman 2015).
4) These definitions refer to issues of working time organization and utilization, which have been addressed by theEuropean Court of Justice with the attempt to clarify working time definitions in “grey areas” such as on call work,
time spent for preparation to work and traveling, etc. (see Inversi 2019).

142

if we consider new ways of organizing workthrough algorithmic management.
   The intervention of the European Courtof Justice has been critical in shedding
light on the boundaries of the working
time definition, dealing with issues such as
on call work, stand-by time, and travelingtime. 5) However, the Court of Justice’s
interpretations have not addressed the lack of
an “intermediate category” between working
time and rest time, or found a definition able
to encompass elements such as work intensityand productivity, thus leaving major space for
employers to determine working arrangements
and conditions. The position held by the Courtof Justice has attracted consequential criticism
by some member states, who have sought a
substantial revision of the WTD (Roccella andTreu 2012). Since 2004, the EU Commission
has launched a process for the review of the
WTD, on the premises that changes in theworld of work have had on-going impacts
on working time, from social, economic,
technological, and demographic perspectives.
The process has failed at consultation stage,
and this failure has led to the adoption of nonbinding recommendations on working time.
These measures are unusual in OSH regulation,
which historically has followed the path oflegally binding regulations and provisions.
   Further attempts to revise the WTD led
to a series of consultations with social partners
in March and December 2010. This resulted

Cristina INVERSIin the production of a series of reports on thelegal implementation of the current directive,
and in cessation of negotiations in 2012 as
it was impossible to reconcile strategies,
objectives, and contents of a revised WTD
between European representatives of workers
and employers. As a counterbalance to thefailure to provide new statutory regulation, the
EU Commission then adopted an Interpretative
Communication on Directive 2003/88/EC of
the European Parliament and of the Council
concerning certain aspects on the organizationof working time (2017/C 165/01). The aim of
this was to provide guidance on interpreting
the WTD in the light of evolving case law.
Since then, revision of the WTD has notbeen on the agenda, but some steps forward
have been made in relation to some areas
relevant to working time and casual work,
such as the enactment of Directive 2019/1152
on Transparent and Predictable Working
Conditions, as illustrated below.
   From the historical account presented, it
is possible to see how working time regulation,
despite being recognized as a fundamental
pillar of workers’ health and safety protection,
has been regarded in the last decades as the“Cinderella” of health and safety regulation.
This is both for its light touch approach to
standard setting, which permits opt-outs(as in the case of the UK in particular) and
derogations to the limits for maximum hours(Barnard, Deakin, and Hobbs 2003), and for5) See, for instance, Sindicato de Medicos de Asistencia Publica (SIMAP) v Conseilleria de Sanidad y Consumo de laGeneralidad Valenciana, C-303/98, European Court of Justice, October 3, 2000; Landeshauptstadt Kiel v Norbert
Jaeger, C-151/02, European Court of Justice, September 9, 2003; Federacion de Servicios Privados del Sindicato
Comisiones Obreras v Tyco Integrated Security SL, C-266/14, European Court of Justice, September 10, 2015; MG v
Dublin City Council, C-214/20, European Court of Justice, November 11, 2021. (It is important to note that the lattercase involves a part-time firefighter who has been permitted to carry out a professional taxi driver secondary activity;
this case is potentially interesting for future platform work considerations, when workers need to combine primary
work with secondary activities in the platform economy).

Reconsidering Working Time Regulation

the soft-law instruments adopted in attempting
to re-regulate the field. However, research on
new forms of work and organization indicate
the pressing importance of improving working
time regulation, both to guarantee basic
employment rights, and to advance health andsafety protections (Genin 2016; ILO 2019).
Indeed, if we look at the evidence presented
by scholars linking working time to healthand safety and work-life balance, it is possible
to highlight how these themes are becoming
more and more relevant in the era of “workfragmentation” and platform work (EUOSHA 2020; HSE 2017). Here, I will refer
to some of the possible points of discussion,acknowledging that the limited scope of thispaper will not allow consideration of all thepossible health and safety implications ofregulating working time.
   First, it is important to bear in mind that
there is a historical divide with the working
time experience of high skilled workers andlow skilled workers, with the latter having
proportionally less autonomy in determining
their working time, both from a quantitative
dimension (desired number of hours) andan organizational one (when and where towork and at what pace). Low-skilled jobs
are over-represented in that portion of theworkforce that is more likely to work duringunsocial hours (Eurofound 2016), with retailworkers suffering “time famine” and schedule
unpredictability, thereby increasing stress andanxiety, and reducing work-life balance (Wood2018). These same issues are found in platformwork (EU-OSHA 2020) and, in particular,
in the food delivery sector which this paper
explores. This may not be obvious, especiallyas the innovation that the platform economy
claims to bring in the world of work is one of143

higher control on working time (Inversi 2018),
in its duration, organization, and tempo.
   The “precaritization” trend is even moreevident when it comes to analyzing the genderdimension, where female workers are more
likely to be found in involuntary part timejobs and those with reduced working hours(McCrate 2005, 2016, 2012; Gerber 2022).
In regard to gender, work life balance studies
are considered to focus too much on questions
about working time from a duration point ofview, and not enough on time squeeze, which
is a more pressing issue in terms of healthand wellbeing when analyzing working time
patterns in platform work (Warren 2021).
However, it is important to emphasize that,
depending on the nature of platform work
(Howcroft and Bergvall-Kåreborn 2019;
Howcroft, Dundon, and Inversi 2019; De
Stefano 2016), experiences around healthand safety risks and issues related to worklife balance differ. For example, types of
crowdwork performed in workers’ own
homes entail similar risks to telework, while
types of on-demand platform work requiring
physical presence at workplaces have featuresin common with more traditional OSH risks(Cefaliello and Inversi 2022). In this respect,
it is important to understand the nature of therisks that platform workers are facing, to havea clearer picture on their needs and demands interms of protection, as will be done in the next
section.
3. RIDERS’ EXPERIENCE OF WORKINGTIME AND THE HEALTH AND
SAFETY IMPLICATIONSThis section outlines some of the possible
hazards and OSH issues that riders experience
while working through platforms, focusing on

144

the sector of on-demand delivery services in thefood industry (see also the article by Elizabeth
Bluff, Richard Johnstone, and Michael Quinlan
in this special issue). In a recent report, EUOSHA (2019) has highlighted that workers in
non-standard and poor-quality forms of work
tend to have poorer physical and mental health.
The report points out that within the platform
economy risks are likely to be aggravatedby specific features of work organization,such as short notice communication of work
availability, punitive measures for not being
available, excessive fragmentation of jobs
into micro tasks, continuous evaluation andrating of performance, irregular working
hours, blurred boundaries between work andprivate lives, uncertainty of rights linked tounclear employment status, insecure income,lack of training, lack of social welfare andholiday as well as sick pay entitlements, lackof collective representation, and no clarity on
OSH responsibility and liabilities (see also thearticle by Aude Cefaliello in this issue).
   Through empirical qualitative datacollection, this paper reinforces the evidenceof connections between the specific features offood delivery work for digital labor platforms,
and the effects on workers’ physical andCristina INVERSI

mental health. This qualitative analysis of acase study of Deliveroo riders in three UK
cities (Manchester, Brighton, and London) 6)
found that OSH is a predominant issue inthe on-demand food delivery sector, and it isaffected by both the temporal and the specificorganization of riders’ work. The research
identified some important OSH concerns,
particularly relating to working time.
   First, working time in on-demand delivery
services appears to be extremely variable,
which has implications for the definition ofboundaries between working and private lives,
and recognition of time spent while being“on call” (Huws, Spencer, and Syrdal 2018).
Depending on the contractual agreements andpay arrangements, some workers experiencea true “hours famine” and uncertain shift
allocations, for instance, where work is
assigned by shifts allocated by the management
and paid with an hourly rate. Others, working
in areas where work is organized and paid“by delivery,” suffer from the oversupply ofwork by an uncontrolled labor offer which
increases the length of unpaid waiting time.
Both organizing structures put riders in
uncertain working time patterns and irregularschedules, at the detriment of their job, income6) In order to understand OSH issues and workers’ perceptions of them in platform work, I drew data from a large
number of qualitative interviews undertaken in 2017-2018, with Deliveroo riders and their trade union representatives.
Data were generated in forty interviews with Deliveroo riders, and nine interviews with trade unions officials andthink tank representatives at the national (UK) level. Additionally, further data were collected through an online
survey which was circulated amongst riders in the UK. The number of responses to the survey was very low (n=19)
and therefore not useful for quantitative purposes. However, the survey included a “blank comment box section”
where riders could write about working relationships and working time issues at Deliveroo. This information was
included in the qualitative data, alongside interviews, and it has been integrated in the findings. The data collected arepart of doctoral research and informed part of the PhD dissertation (Inversi 2018).
 The interviews with key regulatory informants and Deliveroo riders were conducted through a semi-structured
interview format. In some cases, interviews were conducted via Skype or telephone calls. Access to interviewees was
obtained by contacting relevant institutional bodies or key actors (management, trade unions, employers’ association)and by adopting a “snowball strategy.” Interviews with riders were mostly held in public spaces and recorded withthe agreement of the rider, following ethical and professional standards in research (according to the University ofManchester guidelines).

Reconsidering Working Time Regulation

security, and work-life balance. These results
consistently clash with the idea that platformwork can accommodate riders’ preferences interms of work organization. As a rider testified:
In practice I need to work when it’s busy—
I can’t choose to work during quiet period if
I prefer, because there is no work (Brighton
rider 43).

The second issue relates to the policyof business incentives to work in unsafe
conditions. At the moment, delivery platforms
are not obliged to provide riders with regular
work (unless riders have been classified as
employees) but can call in workers as needed
if the service offer is too low. For instance,
this practice is very common in times of bad
weather conditions, like rain or snow, whenriders are given special offers and pay rises toboost the service offer to clients. Through theseoffers the platform is de facto incentivizing
workers to work under extreme or undesirable
conditions. Because of the high competition
between riders and implications in terms ofwork allocation (i.e., the possibility of having
more hours or jobs allocated in the next days
or weeks) this system appears to hide formsof constraint towards riders, who ultimately
feel pressured to accept work even if this may
cause higher risks for their health and safety(increased risks of accidents and illnesses).
In terms of mental health, these practices put
workers in a similar situation to that in which

145

unemployed people find themselves, if not
worse (Chandola 2017).
   In addition, the performance pressuresthat the platform puts on workers affect their
physical and cognitive capabilities, to thedetriment of riders’ health and safety andcontrary to the preventive OSH principles.7)
Riders in this study felt pressured to ride faster,
not only to maximize income and rewards, butalso because of platform policies (and the rules
set by algorithmic management) imposing
negative outcomes in case of poor performanceor low orders acceptance rates. The adverse
experience of working time is coupled withhyper fragmentation of tasks, which are allmonitored and controlled, generating a sense ofanxiety and stress. As a rider explained:[work] It’s very, very, very, very rushed. So
everything is recorded, because it is an app,everything is timed. They know exactly where
you are and when you logged in, and theyknow exactly how long it took it, when you
collected and delivered, how long before you
accepted and before you got to the restaurant.
And so every week they would send youstats on how you are performing … And theywould say they actually use this so they candetermine whether or not you can get more
hours or less (Manchester rider 1).

Third, when considering compliance with the
WTD, in terms of hours spent at work, restsand holidays, the study found that the platform

7) Article 6 of Directive 89/391 sets down the following general preventive principles: (a) avoiding risks; (b) evaluating
the risks which cannot be avoided; (c) combating the risks at source; (d) adapting the work to the individual, especiallyas regards the design of work places, the choice of work equipment and the choice of working and production
methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate and to
reducing their effect on health; (e) adapting to technical progress; (f) replacing the dangerous by the non-dangerous
or the less dangerous; (g) developing a coherent overall prevention policy which covers technology, organization ofwork, working conditions, social relationships and the influence of factors related to the working environment; (h)giving collective protective measures priority over individual protective measures; (i) giving appropriate instructions
to the workers.

146

Cristina INVERSI

disincentives riders from taking any time
off from the platform. Riders explained that
good performance and constant presence (noabsences or interruptions due to holidays orsick leave) were the elements considered forallocating time and deliveries, and therefore
better pay. On the contrary, the platform“punished” riders for taking time off due
to work-related injuries and a diminishedcapability to get work.
Eventually this Christmas they really messme around and that’s when I decided thatenough was enough … During the end of
the year when I was cycling downhill, I
hurt my knee and I asked to take shifts off
to recover because it is not good to have somany hours with a bad knee. For some reason
I got punished about that, I don’t know why.
I sent emails, the reply I got was “we arevery disappointed” and they made it very
difficult after Christmas to get my hours back(Manchester rider 2).
I came back from a holiday, and I have gonefrom having secure working hours of 40 oreven more hours a week to then just nothing(Manchester rider 7).

As a fourth point, constant monitoring
enabled by algorithmic management has an
impact on workers in terms stress and anxiety(HSE 2017). In particular, when riders are
not informed of the extent of control andthe possible unilateral use of informationby the platform, their agency seems to be
restrained and their possibility to challenge
the platform appears to lessen. This aspect ofwork management clashes again with the ideaof independent work, which platforms claim
in order to underpin the non-existence of an
employment relationship.

They used to give us stats on performance, butthey stopped in the interest of trying to defeat
our (the Union’s) claim against riders being
independent contractors. They still measure
our performance, but we don’t see it. They
will fire you if you don’t meet the standards.
We don’t have a good chance of challenging
any disciplinary action without knowing what
our stats are (Rider from survey).

A further point to highlight is that because
platform work is coordinated and overseen byalgorithmic management, workers can lose
control over work content, pace and schedule,
and the way they do their work (Moore 2018).
Riders’ autonomy appears to be limited.
Furthermore, the platform is not supportiveand nor is it communicative when the riders
try to reach out. The data analysis suggeststhat a form of middle management does exist,
especially in the management of work offers.
Workers claim that the management is, in someareas, micro-managing hours, but are frustrated
by there being just one-way communication:
Deliveroo changes hours as they wish, theriders have very little influence on the hours
we are offered, and most people are offeredsignificantly less hours than they want (Riderfrom survey).
They can get you and breathe on your neckbut if you need them they are absolutely notthere (Rider from survey).

Finally, there are some crucial points relating
to more “traditional” risks that affect the OSHof delivery riders. They are subject to roadaccidents, physical injuries, and the possibilityof physical or verbal abuse (Christie and Ward2019). As an added layer of risk, riders testified
that their sense of being unsafe is increased

Reconsidering Working Time Regulation

because they work alone, and because it isvery difficult to communicate with, and receive
assistance from, the platform management incase of accidents or when they feel unsafe.
When referring to a series of criminal assaults
made by robbers through “fake orders” in someisolated areas of Manchester, a rider pointed
out:
They say we know it doesn’t happen anymore
because we prevent it. They are completely
pretending [it] does not happen, but it does.
The only thing you can actually do is say to
my friend, “hey would you come with me?”
And then you would go … every time I went
to Moss Side I would say “come with me”
and we both ride. And if Deliveroo rang andask, “why are you going there you are not ona job there it takes so long” I would just say“oh because you made me do dangerous jobs,
it’s not safe to and I am taking precautions”(Manchester rider 1).

In conclusion, it should be noted that riders
in this study had very different experiences inwork allocation, which resulted in polarizationof working time between them. In areas where
shifts were allocated by the platform and paidon an hourly rate, some riders were only able toobtain a few hours a week. By contrast, otherriders were allocated a much higher numberof hours, and sometimes excessive hours; oneof the riders interviewed disclosed that he wasworking sixty hours a week and he was able toget however many hours he desired. The issueof working time monitoring and control, incompliance with maximum hours of work toprotect riders’ safety (and others’ safety from aroad transport accidents point of view), is central
to the debate. Considering the potential ofalgorithmic management and access to data it iscontended that, if control can be exerted towards

147

riders’ performance and working time, the same
could be done to protect their health and safety,
by monitoring maximum hours worked, rests
periods, holidays, and so on. However, this isparticularly challenging from a legal standpoint
when regulating for employment rights
recognition and transparency in algorithmic
management, as is happening (or might happen),for instance, at the EU level.
4. HOW THE PLATFORM ECONOMY
RE-CONSTRUCTS ON-DEMAND
WORKERS’ TIME, SAFETY
AND HEALTH, AND THE LEGALRESPONSESAs anticipated earlier, the present section
analyzes some of the legal responses thathave been put in place in the UK and EU
that address platform workers’ health andsafety and working time issues. As has beenoutlined by legal scholars, the OSH regulatory
paradigm has been built around the conceptof the “standard employment relationship(SER),” leaving major gaps in protection forforms of work that are casualized, precarious,and non-unionized (Johnstone, Quinlan, andWalters 2005). This is particularly true forplatform workers, where the uncertainty of therelationship between the platform and workers
affects the application of a stable and certain
OSH legal framework (Cefaliello and Inversi2022). However, Courts in various jurisdictions
have intervened to address some of the issues
around the legal recognition of employment
status. It is not within the scope of the present
paper to examine in depth such case law andinterventions, but it is important to highlightthese processes in order to understand the
movement in the regulation of platform work.
   This section aims to shed light on some

148

specific issues related to health and safetythat are affecting the current debate. First, it
is contended that issues of legal recognition
impede the application of the current European
OSH regulatory framework, and the sameis true for the UK. Where an employment
relationship is recognized in a particular work
arrangement, the application of OSH regulation(either by statute or by case law) appears
clearer, both within the EU framework andin the UK. However, when self-employment
or quasi-self-employment is in place (suchas the case for “limb(b) workers” 8) in theUK) the framework appears to be much more
complicated and fewer protections are inplace.9)   When looking specifically at the issue ofworking time regulation, its pressing regulatory
relevance in platform work can be foundin the UK Uber case, 10) where the Working
Time Regulations 1998 (which transposed
the WTD into UK law) were used to assess
drivers’ employment status and guarantee basic
workers’ rights, such as respecting working
time protections and equality law. 11) The
same conclusion was not drawn, however, for
UK Deliveroo riders, with the Court taking
an opposite view regarding employment
recognition, and consequently excluding
them from the application of the OSH legal
framework and from protections granted by the

Cristina INVERSI

WTD.12)   Aside from the UK Deliveroo judgment,
Courts’ decisions against platform businesses(such as Uber, Deliveroo, and Foodora) inalmost all European countries (including
the UK) have highlighted working time andhealth and safety issues for platform workers,
intervening with protective judgments tocounterbalance legislative inaction at multiple
levels. In the UK, this is the case in the
judgment of the High Court of Justice (HCJ)in IWGB v SSWP and others in October
2020, regarding health and safety concerns
for platform workers during the COVID-19
pa nde mic . The de c ision a ddr e sse d th eapplication of health and safety protective
measures granted by EU law to platformworkers classified as “limb(b) workers” (thelegal status recognized in the Uber judgment
above), granting them some of the traditional
employment protections, such as those relating
to working time, equality, and some provisionsof OSH regulation. The Court found the UK
in breach of implementing two fundamental
articles:- A rticle 8(4) and the second paragraph of
Article 8(5) of Council Directive 89/391/EC
on the introduction of measures to encourage
improvements in the health and safety ofworkers at work (the so-called Framework
Directive).

8) Section 230(3)(b) of the Employment Rights Act 1996 states the following: In this Act “worker” (except in thephrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where
the employment has ceased, worked under): (a) a contract of employment, or (b) any other contract, whether express
or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or performpersonally any work or services for another party to the contract whose status is not by virtue of the contract that of aclient or customer of any profession or business undertaking carried on by the individual.
9) For a deeper discussion on the UK OSH regulatory framework applied to platform work, see Cefaliello and Inversi(2022).
10) Uber BV v Aslam [2021] UKSC 5.
11) The Equality Act 2010.
12) Independent Workers’ Union of Great Britain (IWGB) and RooFoods Limited T/A Deliveroo [2021] EWCA Civ 952.

149

Reconsidering Working Time Regulation- Article 3 of the Council Directive 89/656/
EC on the introduction of minimum healthand safety requirements for use by workers
of personal protective equipment at theworkplace (the so-called PPE Directive).
This HCJ decision imposed an obligation on
the UK state to guarantee the application ofhealth and safety measures to platform workers.
It condemned the inertia of the UK legislator,
particularly at a time when these workers havebeen considered “essential” but at the sametime deprived of protections (Hobby 2021).
   In a very different case, the Italian
Criminal Court of Milan condemned Uber
Eats for the use of illegal intermediationand gang-mastering, after the public
accusation provided evidence of severe labor
exploitation and gang-mastering practices byintermediaries contracting directly to Uber andsubcontracting to delivery workers: practices
encouraged by Uber Italy Srl.13) In particular,
Uber Italy Srl was found recruiting its riders
in refugees homes (the so-called CAS—
Centri di Accoglienza Straordinaria) andinflicting a series of abuses such as payment
deductions, excessive working hours, threatsand punishments, verbal abuses and excessive
control to the detriment of workers’ freedom,
health, safety and dignity, and entailing severe
work exploitation. This case highlighted theextreme conditions that vulnerable platformworkers may be subjected to, and the extent
of workers’ exploitation, despite repressive
regulation and criminal law being in place (inthe Italian case sanctioned by 603-bis of thepenal code) (Inversi 2021).
   In contrast to some Court decisions,statutory responses to the issues of riders’health and safety have been very timid. In theUK, the state resistance to protective statutory
regulation within the platform economy(Inversi, Dundon, and Buckley 2022) has
prevented relevant intervention in the field,
and major responses have come from judiciaryinterventions rather than law makers. A firstattempt to revise and assess modern working
practices through the so-called “Taylor
Review” (Taylor et al. 2017), has been highly
criticized for its lack of decisiveness, noninclusion of social actors (and especiallytrade unions) and extremely light regulatory
approach (Bales, Bogg, and Novitz 2018;
Inversi 2018; Inversi, Dundon, and Buckley2022).
   Within the EU, statutory changes toaddress work uncertainty in relation to work
schedules, organizational patterns, hours,
pay, probationary periods, and so on, havebeen introduced with Directive 2019/1152
on Transparent and Predictable Working
Conditions. The directive addresses someof the issues that affect platform workers,
such as time unpredictability, fixed working
schedules and lack of information on workorganization. However, the issue of recognitionof employment status remains, as the directive
applies to “every worker in the Union who
has an employment contract or employment
relationship as defined by the law, collective
agreements or practice in force in each member
state with consideration to the case-law of
the Court of Justice” (Article 1.2). Thus, thedirective does not specifically apply to platformworkers.
   An attempt at significant intervention
in platform workers’ rights and protections

13) Tribunale di Milano, n. 35334/2020 and n. 16233/2021, October 15, 2021.

150

comes in a new proposal for platform work
regulation, published in December 2021
by the EU Commission and now starting
its legislative process (see also the article
by Aude Cefaliello in this special issue).
The proposed directive aims at protecting
platform workers and their labor law rights,
specifically stating that “the determination of
the existence of an employment relationshipshall be guided primarily by the facts relating
to the actual performance of work, taking
into account the use of algorithms in theorganization of platform work, irrespectiveof how the relationship is classified in any
contractual arrangement that may havebeen agreed between the parties involved”(Article 3.2). Furthermore, the innovative
aspect of the proposed directive lies withthe recognition of a legal presumption of
employment relationship. Article 4 states
that: “The contractual relationship between
a digital labor platform that controls, within
the meaning of paragraph 2, the performanceof work and a person performing platformwork through that platform shall be legally
presumed to be an employment relationship.
To that effect, member states shall establish aframework of measures, in accordance with
their national legal and judicial systems.”
The presumption is linked to the concept of
platform control, which is then understood in
relation to five indicators, of which at least two
must be present to identify platform control,
and therefore an employment relationship. The
proposed directive has the specific purposeof extending employment rights to platform
work, on a uniform basis within EU member
states. Furthermore, the proposal is committed
to protecting genuine self-employment status,
thereby limiting a generalized and absolute

Cristina INVERSI

legal presumption of employment relationship.
   The proposal contains a number ofobligations for platforms in relation toalgorithmic management and transparency
in platform work. With reference to OSH
regulation, the proposal provides that (Article
7.2):
Without prejudice to Council Directive
89/391/EEC and related directives in the fieldof safety and health at work, digital labour
platforms shall: (a) evaluate the risks ofautomated monitoring and decision-making
systems to the safety and health of platformworkers, in particular as regards possible
risks of work-related accidents, psychosocialand ergonomic risks; (b) assess whether thesafeguards of those systems are appropriate
for the risks identified in view of the specificcharacteristics of the work environment;(c) introduce appropriate preventive andprotective measures. They shall not use
automated monitoring and decision-making
systems in any manner that puts undue
pressure on platform workers or otherwise
puts at risk the physical and mental health ofplatform workers.

It is important to note that this provision rightly
takes into account specific risks to platformworkers, aiming to respond to common issues
identified, such as avoiding decisions that
may incentivize risks, and to consider not
only physical risks and accidents but also
the psychosocial dimension. Furthermore,this provision identifies the potential for
misuse of monitoring and information thatare at the basis of algorithmic management.
However, the provision does not introduce any
substantial change in employers’ health andsafety obligations, as the Framework Directive
89/391/EEC and subsequent directives alreadyReconsidering Working Time Regulation

provide protections in that sense.
   Regrettably, the protection of platformworkers who do not hold a recognizedemployment relationship is still weak. While
Article 10 of the proposed directive extends
the application of some of the directive’s
protective provisions on transparency, humanmonitoring and review (Articles 6, 7 and 8,
which relate to the processing of personal databy automated systems), to “persons performing
platform work who do not have an employment
relationship” (the genuine self-employed),
at the same time it specifically excludes theapplication of “the provisions on health andsafety at work, which are specific to workers”(Article 7.2). The lack of application to genuine
self-employed of the protections enacted for
health and safety purposes is disappointing as it
would have extended the possibility of the selfemployed contributing to preventive actions
and risk assessment. This exclusion is also outof step with the Global Commission’s view on
the necessity to universalize OSH protections,going beyond employment status (ILO 2019).
   In summary, the proposed directive
attempts to advance platform workers’ rights by
granting the legal presumption of employment
relationship (thus guaranteeing the applicationof the EU employment law acquis) to many
platform workers. It also tries to advance
regulation on algorithmic management,
recognizing platforms obligation in terms oftransparency, information, and consultation.
However, a number of gaps in protection
can still be identified, especially in regard to
the definition of control necessary to invoke
the legal presumption of an employment
relationship, and when considering the lackof protection for the health and safety of selfemployed people from pressures and control,151

and the lack of risk assessment and prevention
related to work organization. From the author’s
perspective, the proposed directive is still very
timid in addressing some of the most pressing
issues of platform work, which would require
the participation of platforms in the prevention,assessment, and avoidance of any risks thatworkers may encounter, regardless of theiremployment relationship. Furthermore, anintervention on working time regulation for
health and safety purposes appears to be, again,
very far from the priorities of regulators. It
seems it is not their intention to enter into thiscontested organizational terrain.
5. CONCLUSIONSThe paper has outlined some specific issues
related to the protection of health and safety ofplatform workers, in particular those related toworking time and its impact of workers’ safety,
health, and wellbeing. After having presented
the health and safety problems connected withplatform work (such as extreme flexibility intime at work, pervasive control and unilateral
power by platforms, excessive or insufficientworking hours, and connected problems of
uncertainty, stress and poor wellbeing) the
paper has discussed some of the legal responses
that have been put in place in the UK and at
EU level, considering both relevant case law
and statutory regulations. While seeing some
improvement in the recognition of specificplatform workers’ needs and issues, the criticalreflection on the measures proposed at EU level
still reveals protection gaps and loopholes, anda missed opportunity to expand the protective
framework for occupational health and safety
to achieve universalization of OSH protections(ILO 2019).

152

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ACKNOWLEDGMENTS
I am grateful for the support and feedback
received from colleagues at the PMO
Department of Alliance Manchester Business
School.
CONFLICT OF INTEREST STATEMENT
No conflict of interest to disclose.
RESEARCH ETHICS
The data contained in the paper is part ofa larger study related to the author’s PhD
dissertation. The study obtained ethicalapproval from the University of Manchester.

Legislation Note

J Work Health Saf Regul 2023; 1; 155‒163Work Health and Safety Law Reform in Australia—The Recent Industrial Manslaughter Provisions
Richard JOHNSTONE*

1. INTRODUCTION
This legislative note traces the recent patternof amendments to five of Australia’s nine work
health and safety statutes to include the crimeof manslaughter.
   A u s t r a l i a h a s a f e d e r a l s y s t e m o fgovernment. Because there is no legislative
power to legislate for work health and safety
in the Australian federal constitution, theCommonwealth (federal) government and eachof the six state and two territory governments
have enacted their own work health andsafety legislation. Until recently, Australian
work health and safety regulation has largely
followed the approach taken in the United
Kingdom (UK), originally in the nineteenthcentury UK Factories Acts, and from the late1970s, in the Health and Safety at Work etc. Act
1974 (UK) (see Johnstone, Bluff and Clayton
2012, chap. 2). From 2008 to 2011, there wasa process of harmonizing the Australian work
health and safety statutes, which culminated in
the development of a Model Work Health and
Safety Act 2010 (Model Act) which has been
adopted by each of the Australian jurisdictions,apart from the state of Victoria, enacting a
Work Health and Safety Act. This note willrefer to these statutes collectively as the “Work
Health and Safety Acts.”   While the key general duty in the
Victorian Occupational Health and Safety
Act 2004 is imposed upon an “employer” inrelation to its “employees,” following theModel Act the Work Health and Safety Acts
in each of the other Australian jurisdictions1)
place “the primary duty” (in section 19(1)) on a“person conducting a business or undertaking”(PCBU), 2) who must ensure, as far as isreasonably practicable, the health and safetyof “workers” who are engaged, caused to beengaged, influenced, or directed by the PCBU,
but only “while the workers are at work in thebusiness or undertaking.” A “worker” is definedin section 7 as “a person who carries out workin any capacity for a” PCBU, and includes all
kinds of workers, not just employees. Section
19(2) provides that a PCBU must ensure, so
far as is reasonably practicable, that the healthand safety of “other persons” is not “put atrisk” from “work carried out as part of the* Professor, School of Law, Queensland University of Technology, Brisbane, Australia; Honorary Professorial Fellow,
Melbourne Law School, The University of Melbourne, Australia.
1) See the Commonwealth’s Work Health and Safety Act 2011 (Cth); New South Wales’s Work Health and Safety Act
2011 (NSW); Queensland’s Work Health and Safety Act 2011 (Qld); South Australia’s Work Health and Safety Act
2012 (SA); Tasmania’s Work Health and Safety Act 2012 (Tas); Western Australia’s Work Health and Safety Act 2020
(WA); Australian Capital Territory’s Work Health and Safety Act 2011 (ACT); and Northern Territory’s Work Healthand Safety (National Uniform Legislation) Act 2011 (NT). Readers interested in finding and reading these statutes canfind them at http://classic.austlii.edu.au/.
2) For an explanation of who is a PCBU, see Safe Work Australia 2021.

156

business or undertaking.” The primary duty is
continuous, preventive and inchoate, in that
it is an ongoing duty that can be contravened
without a worker or other person actually
suffering injury, disease or death.3) For further
discussion of the approach taken in the Work
Health and Safety Acts, including the primary
duty in section 19, see Bluff, Johnstone andQuinlan in this issue.
2. THE DIFFICULTIES INPROSECUTING CORPORATIONSAND CORPORATE OFFICERS FORMANSLAUGHTER UNDER THE
GENERAL CRIMINAL LAW IN
AUSTRALIA
From the late 1980s in Australia, there wereregular calls for manslaughter prosecutions
for work-related deaths, usually in response
to well-publicized incidents resulting in one
or more deaths at work (for an overview of
the Australian debate about manslaughter,
see Johnstone 2013). Manslaughter differsfrom the work health and safety general duty
offenses in Australia’s work health and safety
statutes in that it is concerned with an outcome(death), rather than being an inchoate offense,
and requires proof of criminal fault (usuallygross—or criminal—negligence). In principle,
there is no reason why a corporation, corporate

Richard JOHNSTONE

officer, or manager could not be prosecutedfor manslaughter under the existing generalcriminal law where their gross negligencecauses death at work. The courts have defined“gross negligence” as “a great falling shortof the standard of care” which a reasonable
person would have exercised, involving “suchhigh risk that death or grievous bodily harm
would follow that the doing of the act merited
criminal punishment.” 4)   Indeed, since the early 1990s, there
have been a few examples of successful
manslaughter prosecutions in Australia,
including R v Denbo Pty Ltd, 5) R v Smith, 6)
and R v Turkell. 7) What these cases had incommon was that they were prosecutions ofvery small companies, or the owners, officers,8)or employees of very small companies. The
reasons for the small number of prosecutions
and the focus on small companies have to
do with the principles that attribute criminal
liability to corporations and to corporate
officers.
   A corporation is an artificial legal
entity and can only act through its officers,
employees, and/or agents. Early in thetwentieth century, the courts used the principlesof vicarious liability―holding the corporation,
as the principal, responsible for the acts of
its agents―to attribute criminal liability to3) See R v Australian Char Pty Ltd (1999) 3 VR 834 at 847; Haynes v C I and D Manufacturing Pty Ltd (1995) 60 IR
149 at 157–159; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 at [58]–[61]; Diemould
Tooling Services Pty Ltd v Oaten; Santos Ltd v Markos [2008] SASC 197, (2008) 101 SASR 339 at [34].
4) R v Lavender [2005] HCA 37; endorsing Nydam v R [1977] VR 430 at 445; R v Scarth [1945] St R Qd 38 at 43.
5) R v Denbo Pty Ltd (Supreme Court of Victoria, Hampel J, June 2, 1994), in which the corporate defendant entered a
guilty plea.
6) Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, Judge English, 2008/5549,
November 6, 2008.
7) Unreported, District Court of New South Wales, Criminal Jurisdiction, Newcastle, Judge English, 2008/5550,
November 6, 2008.
8) For the definition of “officer” see s 4 of the Work Health and Safety Acts, which refer to an officer within the meaningof s 9 the Corporations Act. See further Johnstone and Tooma (2022, 124-130).

Industrial Manslaughter Legislation in Australiaa corporation (see ALRC 2020, 143). This
indirect, derivative form of liability was soon
replaced by “identification theory,” a form of
direct liability in which the conduct and stateof mind of high level-individuals (the directors
and senior managers who make the decisions
for the corporation) who are the “directing
mind and will” of the corporation constitute theconduct and state of mind of the corporation
itself. 9) The Australian courts have applied
identification theory (the direct liability test)in gross negligence manslaughter provisions
in Australia, with the result that large- andmedium-sized corporations have escapedliability. For example, in R v A C Hatrick
Chemicals Pty Ltd,10) the Victorian Supreme
Court held that neither the plant engineer nor
the plant manager and safety coordinator, or thetwo employees who were alleged to have actedwith gross negligence, “were acting as theCompany,”11) and consequently the company
was found not to be guilty of manslaughter.
   There are even greater challenges inproving the elements of manslaughter against
directors and other officers of larger companies(Wheelwright 2011, 30). The prosecutor must
prove that: (i) the officer was in breach of aduty of care towards the victim, (ii) the breachof that duty caused the death of the victim,and (iii) the breach of the duty should becharacterized as gross negligence and therefore
a crime.12) The courts have made it clear thatthe common law duty to take reasonable157

care for the health and safety of employees
is imposed directly upon the employer, andnot upon individual directors of the corporate
employer. 13) With the exception of working
directors whose involvement may be more
immediate, the typical contribution of adirector to a work incident causing death arises
from an omission―for example, the failure
to identify and manage risks or to implement
a control for a known hazard. Omissions can
support a manslaughter prosecution only where
the accused has a duty to act.14) Officers do not
owe that duty merely by virtue of their position
as officers. Consequently, it is very difficult
to prosecute corporate officers for grossnegligence manslaughter under the generalcriminal law (see further Johnstone and Tooma
2022, 162–163).
3. ATTRIBUTING CORPORATE
LIABILITY UNDER THE WORKHEALTH AND SAFETY STATUTES
It is now clear that identification theory does
not apply to absolute liability work health andsafety offenses that are qualified by reasonable
practicability under the Australian work healthand safety statutes—for example, section 19of the Work Health and Safety Acts. The UK,
Australian, and New Zealand courts haveheld that work health and safety offenses are
personal, including to a corporation, and are
non-delegable.15) The general duties are “dutybased offenses” which “constitute a model

9) Tesco Supermarkets Ltd v Natrass [1972] AC 153, approved in Hamilton v Whitehead (1988) 166 CLR 212, [1988]
HCA 65.
10) (1995) 140 IR 243.
11) At 234.
12) R v Adomako [1995] 1 AC 171.
13) Adar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 per Gleeson CJ, McHugh, Gummow, Hayne andHeydon JJ at 446.
14) R v Taktak (1988) 14 NSWLR 226.
15) R v British Steel plc [1995] 1 WLR 1356; [1995] IRLR 310; R v Gateway Foodmarkets Ltd [1997] 3 All ER 78;

158

Richard JOHNSTONEof corporate accountability while avoiding
issues of attribution” (ALRC 2020, 322).
Corporations breach these duties through theiracts or omissions, and corporate misconduct ismeasured directly against the standards in thegeneral duty. As the Victorian Supreme Court,
Court of Appeal stated in R v Commercial
Industrial Construction Group Pty Ltd:on the proper construction of s.21 of the[Occupational Health and Safety Act 1985
(Vic)] no rules of attribution are called for.
The only question is whether the employer
company has done everything that it was(reasonably) practicable to do to ensure thesafety of its employees. If not, the company
has breached its duty. It is irrelevant to
the question of liability where the failure
occurred.16)

Where offenses under the Work Health and
Safety Acts involve recklessness or grossnegligence, section 24417) provides that:(1) For the purposes of this Act, any conductengaged in on behalf of a body corporate byan employee, agent or officer of the body
corporate acting within the actual or apparent
scope of his or her employment, or within his
or her actual or apparent authority, is conduct
also engaged in by the body corporate.
(emphasis added)(2) If an offence under this Act requires proofof knowledge, intention or recklessness, it
is sufficient in proceedings against a body

corporate for that offence to prove that theperson referred to in subsection (1) had therelevant knowledge, intention or recklessness.
(emphasis added)

In other words, section 244 ousts the direct
liability principle, section 244(1) applies togrossly negligent conduct, and section 244(2)applies to recklessness. Section 244 enables
the court to attribute the negligent conduct, or
the knowledge, intention, or recklessness of asingle employee, officer or agent of the body
corporate, to the body corporate.
   The Northern Territory has taken adifferent approach to attributing criminal
liability to corporations. It has adopted section
12.4 of Part 2.5 of the Criminal Code Act 1995
(Cth)18) which provides that if negligence is a
fault element in relation to a physical elementof an offense it
may exist for the corporation … if thecorporation’s conduct is negligent whenviewed as a whole (that is, by aggregating the
conduct of a number of its employees, agentsor officers).

This is known as the “aggregation principle.”19)   The Northern Territory has also adopted
section 12.3 of Part 2.5 of the Criminal
Code Act 1995 (Cth)20) which addresses fault
elements other than negligence―that is,intention, knowledge, or recklessness―in
which case the fault element is taken to exist if

R v Nelson Group Services Ltd (Maintenance) [1998] 4 All ER 331; [1999] 1 WLR 1526 (CA); Kirk v Industrial
Relations Commission of NSW (2010) 239 CLR 531 at [10]; R v Commercial Industrial Construction Group Pty
Ltd [2006] VSCA 181; DPP v JCS Fabrications Pty Ltd and Anor [2019] VSCA 50; Linework Ltd v Department ofLabour [2001] 2 NZLR 639.
16) [2006] VSCA 181 at [30].
17) See also ss 245 and 251 which impute conduct to “the State” and to public authorities.
18) Part IIAA, Division 5 of the Criminal Code (NT).
19) For a critique of the aggregation principle, see ALRC 2020: 149–150.
20) Part IIAA, Division 5 of the Criminal Code (NT).

Industrial Manslaughter Legislation in Australia

the corporation expressly, tacitly, or impliedly
authorizes or permits the commission of theoffense.21) Authorization or permission may beestablished, amongst other ways, by proving
that: (i) the corporation’s board of directors
intentionally, knowingly, or recklessly engaged
in the conduct or expressly, tacitly, or impliedly
authorized or permitted the commission of
the offense; (ii) a high managerial agent of
the corporation intentionally, knowingly, or
recklessly engaged in the conduct or expressly,
tacitly, or impliedly authorized or permitted
the commission of the offense; (iii) a corporate
culture existed within the corporation that
directed, encouraged, tolerated, or led tononcompliance with the contravened law; or(iv) the corporation failed to create and maintaina corporate culture requiring compliance withthe contravened law.
4. THE MANSLAUGHTER PROVISIONSIN THE AUSTRALIAN WORKHEALTH AND SAFETY STATUTESIn order to overcome the difficulties inprosecuting corporations and corporate officers
for manslaughter under the general criminal
law, as explained in part 2 of this Legislation
Note, new manslaughter provisions havebeen enacted in three Australian states—
Queensland, Victoria, and Western Australia―
and in the Northern Territory and the Australian
Capital Territory. As this part will show, thenew provisions have been enacted ad hoc
and outside the Australian harmonization
process. They seek to overcome the problem of
attributing liability to corporations by enacting

159

new manslaughter crimes for PCBUs in theWork Health and Safety Acts in Queensland,Western Australia, and the two territories, andfor employers and other “persons owing aduty” in the Victorian Occupational Health and
Safety Act 2004. Each of these Acts alreadycontains attribution principles (for example,
section 244, outlined in part 3 above) that
displace the identification theory (that is, direct
liability as established by the Tesco decision).
They also create new manslaughter crimes forofficers if their gross negligence (and in at least
one jurisdiction, their recklessness) causes a
death of a worker, and in some jurisdictions,other persons.
   The first of these provisions were enacted
in Queensland in 2017, prompted by separate
multiple fatalities at the Dreamworld theme
park and in construction work at the Eagle
Farm Racecourse in 2016. Following therecommendations of the Best Practice Review
of Workplace Health and Safety Queensland(Lyons 2017), in 2017 the Work Health and
Safety Act 2011 (Qld) was amended to include
the crime of gross negligence industrial
manslaughter which can be committed by
PCBUs (section 34C) or senior officers (section
34D, also see Johnstone and Tooma 2022,
129) who are not volunteers if their grossnegligence results in the death of a worker inthe course of carrying out work for the businessor undertaking. One of the reasons that theBest Practice Review recommended that theindustrial manslaughter crimes should beenacted in the Work Health and Safety Act wasthat the Act already had provisions attributing21) Section 12.3 explains some of the ways in which authorization or permission may be established. These include
proving that a corporate culture existed within the corporation that directed, encouraged, tolerated, or led to noncompliance with the contravened law, or proving that the corporation failed to create and maintain a corporate
culture requiring compliance.

160

liability to corporations in section 244
discussed above. The industrial manslaughter
offense in Queensland attracts a maximum
penalty of A$10 million for corporations and20 years imprisonment for individuals. To date,
only two successful prosecutions of PCBUs
for manslaughter, one of a small company22)
and the other of a sole proprietor,23) have takenplace in Queensland.
   In the Northern Territory, manslaughter
provisions were added in 2019 to the Work
Health and Safety (National Uniform
Legislation) Act 2011 (NT) in a new Part 2
Division 6. Any person who: is not a volunteer,
has a “health and safety duty” under the Act,and is a PCBU or an officer who has a duty insection 27 to exercise due diligence to ensurethat their PCBU complies with its obligations
under the Act, commits industrial manslaughter
if they intentionally engage in grossly negligent
or reckless conduct that breaches their healthand safety duty and causes the death of anindividual to whom the duty is owed. This
provision is broader than its Queensland
counterpart because in the Northern Territory
the elements of the crime include the death ofa person other than a worker, recklessness inaddition to gross negligence. Also, as discussed
above, the principles attributing liability tocorporations in the Northern Territory arebroader than those in Queensland. 24) The
maximum penalty for an individual who
commits manslaughter is life imprisonment,
and for a corporation it is just over A$10
million.
   In 2020, the Victorian Occupational

Richard JOHNSTONE

Health and Safety Act 2004 was amended(Part 5A) by the addition of new crimes of“workplace manslaughter.” Manslaughter
can be committed by a person (including a
corporation) who is not a volunteer and whose
conduct is grossly negligent (see section 39E)
if they breach “an applicable duty” in Part 3 of
the Act “that the person owes another person.”This means that an employer, a self-employedperson, and a person who manages or controls
a workplace, as well as “upstream” duty
holders such as the persons who design plant,
buildings, or structures; manufacture plant andsubstances; supply plant and substances; andinstall, erect, or commission plant can commit
the crime of manslaughter. Manslaughter canalso be committed by an officer of an “entity”(for example a corporation, unincorporated
association, or a partnership) who is not a
volunteer if their conduct is negligent andconstitutes a breach “of an applicable duty
that the entity owes to another person.” The
maximum penalty is 25 years imprisonment
for an individual and just over A$18 million
for a corporation. The Victorian provisions are
narrower than the Queensland and Northern
Territory provisions because the employer
and self-employed person’s duty in Victoria
is narrower than the PCBU’s duty in theWork Health and Safety Acts. However, theVictorian provisions are broader than the
Queensland provisions in that manslaughter
includes deaths caused to persons who are not
employees (and in particular, members of the
public); and because the principles attributing
liability to corporations are broader than those22) R v Brisbane Auto Recycling Pty Ltd & Ors [2020] QDC 113 where the PCBU was fined A$3 million.
23) R v Jeffrey Owen [2022] QDC 325 in which Cash DCJ sentenced PCBU to 5 years imprisonment suspended after 18
months.
24) Part IIAA, Division 5 of the Criminal Code (NT).

Industrial Manslaughter Legislation in Australia

found in section 244 (and 245 and 251) of the
Queensland Act. Section 39E of the Victorian
Occupational Health and Safety Act 2004
provides that, in determining whether the
body corporate’s conduct is “negligent,” whatmatters is the conduct engaged in by the body
corporate itself; and it does not matter whether
the conduct is, or is not, conduct imputed tothe body corporate under section 143 (whichis the same as section 244 in the Work Healthand Safety Acts); or whether any of the body
corporate’s officers were involved in all or
any part of the conduct. The standard to be
applied is the standard of care that would havebeen taken by a reasonable body corporate in
the circumstances in which the conduct was
engaged in.
  The Work Health and Safety Act 2020
(WA) has taken a different approach toindustrial manslaughter. A PCBU commits
the crime of industrial manslaughter if: itengages in conduct which constitutes a failure
to comply with its health and safety duty, theconduct causes the death of an individual,
and the PCBU knew that the conduct was
likely to cause the death or serious injury of
the individual but disregarded that likelihood(that is, recklessness) (section 30A(1)). The
maximum penalty for a PCBU who is anindividual is 20 years imprisonment anda fine of A$5 million; and for a corporate
PCBU, a fine of A$10 million. An officer ofa PCBU commits an industrial manslaughter
offense if their PCBU commits an industrial
manslaughter offense and the PCBU’s conduct
is (i) attributable to any neglect on the partof the officer or (ii) engaged in with theofficer’s consent or connivance; and if theofficer engages in the conduct knowing that
the PCBU’s conduct is likely to cause the161

death of, or serious harm to, an individual andnonetheless is in disregard of that likelihood.
The maximum penalty for an officer is 20 years
imprisonment and a fine of A$5 million.
   Finally, in June 2021, the Australian
Capital Territory repealed the industrial
manslaughter provisions in the Crimes
Act 1900 (ACT) and created industrial
manslaughter offenses in the Work Health and
Safety Act 2011 (ACT). Section 34(1) provides
that a PCBU or an officer of a PCBU commits
an offense if the PCBU or officer has a healthand safety duty, engages in conduct which
results in a breach of that duty and causes thedeath of a worker or of another person, and the
PCBU is reckless or negligent about causing
the death of the worker or other person by the
conduct. The maximum penalty for a PCBU or
officer who is an individual is imprisonmentfor 20 years, and where the PCBU or officer isa body corporate, A$16.5 million. A significant
consequence of this reform is that now therelevant provision attributing liability tocorporations is section 244 of the Work Healthand Safety Act, rather than sections 51 and 52of the Criminal Code Act 2002 (ACT) (thatis, the attribution principles adopted in the
Northern Territory).
5. CONCLUSION
Even though the National Review Panel thatrecommended the provisions in the Model Act
preferred to address the issue of prosecution
for work-related fatalities at work by focusing
on the inchoate nature of WHS offences(Department of Employment and Workplace
Relations 2008, 123-124, and especially
Recommendation 51), faced with politicalpressure (especially from the families of
deceased workers, their support groups, and162

unions), five of the Australian jurisdictions
have now introduced manslaughter provisions
into their work health and safety statutes.
But there has been little coordinationor consistency in these reforms, and theanalysis above makes it clear that the enacted
provisions differ significantly—including
in: who can be prosecuted for manslaughter,
whether manslaughter is committed if aperson who is not a worker is killed at work,
whether recklessness is an element of thecrime, the provisions that attribute liability
to corporations, and the maximum available
penalties.
   Two other Australian states have indicatedan interest in enacting manslaughter offenses.
In 2021 a private members’ Bill, the Work
Health and Safety Amendment (Industrial
Manslaughter) Bill 2021, was introduced
into the New South Wales Parliament. The
Bill includes maximum penalties of 25 years
imprisonment for “senior officers” and A$10
million for bodies corporate that negligently or
recklessly engage in conduct that “substantiallycontributes to” the death of a worker or anotherperson at a workplace. In late March 2022, theSouth Australian Labor Party won government
in South Australia, with an industrial relations
policy that included introducing “industrial
manslaughter laws with a focus on avoiding
preventable deaths” (see “New industrial
manslaughter laws to follow SA election” (OHS
Alert 2022)).
   A review of the Model Work Health and
Safety Act in 2018 (Boland 2018, 117-124)
recommended that the Model Act should be
amended to provide for a new offense of grossnegligence industrial manslaughter by a PCBU
or a corporate officer, that a body corporate’s
conduct should include “the conduct of the

Richard JOHNSTONE

body corporate when viewed as a whole byaggregating the conduct of its employees,
agents, or officers”; and that the offense
should “cover the death of an individual towhom a duty is owed.” This recommendation
was rejected by the Work Health and Safety
Ministers in May 2021; however, the incoming
Federal Labor Government, elected in May
2022, has indicated that it intends to implement
all of the recommendations of the review. This
may lead to another round of manslaughter
provisions and an opportunity for the existing
provisions to be strengthened.
REFERENCES
ALRC (Australian Law Reform Commission). 2020.
Corporate Criminal Responsibility: Final Report.
ALRC Report 136. Brisbane: Australian Government.
https://www.alrc.gov.au/wp-content/uploads/2020/05/
ALRC-CCR-Final-Report-websml.pdf.
Boland, Marie. 2018. Review of the Model Work Healthand Safety Laws: Final Report. Canberra: Safe
Work Australia. https://www.safeworkaustralia.gov.
au/system/files/documents/1902/review_of_the_model_whs_laws_final_report_0.pdf.
Department of Employment and Workplace Relations.
2008. National Review into Model Occupational
Health and Safety Laws: First Report. AustralianGovernment. https://www.ag.gov.au/industrialrelations/publications/national-review-modeloccupational-health-and-safety-laws-first-report.
Johnstone, Richard. 2013. “Work Health and Safety
and the Criminal Law in Australia.” Policy andPractice in Health and Safety 11, no. 2: 25–44.
https://doi.org/10.1080/14774003.2013.11667788.
Johnstone, Richard and Michael Tooma. 2022. Work
Health and Safety Regulation in Australia. Sydney:
Federation Press.
Johnstone, Richard, Elizabeth Bluff and Alan Clayton.
2012. Work Health and Safety Law and Policy. 3rd
ed. Sydney: Thomson Reuters Australia.
Lyons, Tim. 2017. Best Practice Review of Workplace
Health and Safety Queensland: Final Report. Officeof Industrial Relations, The State of Queensland.
https://www.worksafe.qld.gov.au/__data/assets/
pdf_file/0011/22322/best-practice-review-of-whsqfinal-report.pdf.

Industrial Manslaughter Legislation in Australia

OHS Alert. 2022 “New Industrial Manslaughter Laws
to Follow SA Election.” Specialist News Pty Ltd.
March 21, 2022, 12:40 p.m. https://www.ohsalert.
com.au/.
Safe Work Australia. 2021. Information Sheet: The
Meaning of ‘Person Conducting a Business orUndertaking.’ Canberra: Safe Work Australia.

163
https://www.safeworkaustralia.gov.au/sites/default/
files/2021-01/What%20is%20a%20person%20
conducting%20a%20business%20or%20
undertaking.pdf.
Wheelwright, Karen. 2011. “Corporate Operations
Causing Death: The Legal Response Now and in
the Future?” Precedent 102: 28–31.

J Work Health Saf Regul 2023; 1: 164‒ 191

As a reference 1

Journal of Occupational Health Law (Japanese journal) Volume 1, No. 2 Contents

Special Feature

Health and work management issues and regulations for the establishment of telework

Introduction: Purpose of planning the special feature and outline of individual reports
Koichi Kamata, Professor Emeritus, Toyo University[Abstract]
Telework was initially introduced as an emergency- and evacuation-based measure due to the spread of COVID-19.
However, since it is no longer necessary to restrict the movement of people or avoid on-site work, there has beena shift from such teleworking back to the conventional commuting style, mainly among small and medium-sizedenterprises. Meanwhile, some companies have viewed telework as a way of working that improves the well-beingof their employees and are taking novel measures such as making telework a regular work style. At present, there
is a mixture of conflicting trends regarding telework. Given such circumstances, this special feature views telework
as one of the sustainable working styles of the future. This feature includes five papers that examine the efforts
made toward establishing such a style and the issues that have emerged as a result, especially those relating to theideal form of health management, labor management, and legal policy from various perspectives.

1. Issues for the establishment of telework from a medical perspective
Koji Kandabashi, Director, Bunkyo Hakusan Occupational Health Consultation Industrial Physician Office[Abstract]
Telework was rapidly introduced as a measure against COVID-19. When examining the spread of telework froma medical perspective, the greatest problem is that the health impact on workers is unknown. Many papers havebeen published recently, but these have several problems, including (1) the difficulty of distinguishing between theeffects of the COVID-19 crisis and the unique effects of telework, (2) the presence of effects unique to Japan, and (3)the fact that most were cross-sectional studies. Nevertheless, there has been slow but steady progress in industrial
health management methods.
[Keywords] Coronavirus, COVID-19, Telework, Remote, Industrial health165

As a reference

2. Health effects of working from home: Effects during the spread of COVID-19
and the future
Makoto Okawara, Assistant Professor, Environmental Epidemiology, Institute of Industrial Ecological Sciences,
University of Occupational and Environmental Health, Japan[Abstract]
This study summarizes the situation to date regarding telecommuting due to the COVID-19 crisis. How
telecommuting has affected domestic workers is also discussed by introducing some relevant research from asurvey on changes in work styles and workers’ health during the coronavirus pandemic (CORoNaWork project).
The survey was conducted by a project team centered on seven departments at the University of Occupational andEnvironmental Health, the author’s affiliated university. The author’s personal opinions on teleworking, including
telecommuting after the end of the COVID-19 pandemic, are also included.
[Keyword] COVID-19, Work from home, Telework, Health effects of working from home

3. Establishing telework and current challenges―Reviewing working methods and improving employee well-being through telework,in a society with a low birthrate and an aging population
Mikiko Tamayama, Secretariat, Social Health Strategy Research Institute[Abstract]
It has already been three years since COVID-19 forced the accelerated introduction of telework. Although telework
continues to be established in society even as the pandemic recedes, many companies are returning to on-site
work. Telework has led to the emergence of legal issues relating to work styles as well as problematic issues
identified by human resources departments. Therefore, I describe here the necessity of telework and the issues in
its establishment, improved well-being due to telework, and management methods that should be thought of assustainable.
[Keywords] Telework, Sustainable management, Work-life balance (WLB), Diversity, Improved well-being

4. Job characteristics associated with the promotion of telecommuting policy use:
An analysis of coworkers’ fairness perceptions
Masaki Hosomi, Associate Professor, Faculty of Commerce, Kansai University
Tetsushi Fujimoto, Professor, Department of Policy Studies, Doshisha University[Abstract]
This study investigated how the work environment increases coworkers’ fairness perceptions toward telecommuting
users based on work-life balance research and equity theory. The survey results showed that task autonomy

166

and job complexity increased fairness perceptions toward telecommuting policy users. Additionally, high task
interdependence strengthened the relationship between task autonomy and fairness perception and between job
complexity and fairness perception.
[Keyword] Telework, Fairness perception, Task autonomy, Job complexity, Task interdependence

5. Laws and regulations regarding the health of telecommuting workers
Keiichiro Sue, Partner attorney, Blakemore & Mitsuki[Abstract]
The study provides a summary of the legal issues related to the health problems of telecommuting workers. First,
the legal regulations for employers regarding workers’ health problems are summarized. This is followed by aninvestigation of their specific application, with a focus on public law regulations: (1) work environment issues, (2)labor volume issues, (3) labor quality issues, and finally (4) private law liability issues.
[Keyword] Telework, Public and private law regulation of health issues, Working environment, Working hours,
Overwork, Work related stressOriginal article

State of legal protection for gig worker health and safety:
Status in Japan and prospects
Takenori Mishiba, Co, Professor, Faculty of Law, Kindai University
Kotaro Kurashige, Co, Representative Attorney, KKM Law Office
Shoko Nakazawa, Visiting Researcher/Occupational Physician, Basic Clinical Scienceand Public Health, Department Preventive Medicine, Tokai University School Medicine[Abstract]
Labor laws in Japan are generally soft laws, and the Japanese legal system has yet to sufficiently recognize gig
work; however, different laws with different principles exist in order to combat labor issues and regulate behaviors
of business owners with the help of group dynamics (such as worker and customer trust in business owners). One
reason to value an agreement with management in setting work rules is to ensure that management strictly follows
these rules once they have been established. In terms of versatility and flexibility, labor laws in Japan may, to someextent, serve as a useful reference in a global context.
   In Japan, the scope of major labor protection laws for individuals (Labor Standards Act, Industrial Safety
and Health Act, Labor Contracts Act, and Industrial Accident Compensation Insurance Act) is not broad enoughto appropriately cover gig work. The laws permit several interpretations, but they have limited flexibility. Laws
that govern labor-management relations, including the Labor Union Act, may apply to gig work. In cases where
they do, employers cannot refuse to bargain collectively with the representatives of the workers, which would
allow the representatives to discuss safety and health matters with the employer in question. The Industrial Safety

167

As a referenceand Health Act includes provisions reflecting the principle that a person who generates risk is responsible for risk
management. The scope of the act has been gradually extended through legal interpretation and amendments. Still,
it may not apply to all gig work. The Home Work Act for homeworkers or home handicraft workers requires bothcontractees and contractors to implement diverse health and safety controls. Although the act has been applied
to limited types of work, in view of its similarity in terms of formative background (including the prohibition ofevasion of responsibility by employers), some amendments could make the act applicable to a broader range of job
types. The civil responsibility of employers for employees’ occupational health and safety may bolster the principlethat a person generating risk is responsible for risk management, and this part of the law has the highest potential
to be applied to gig work. This would require, however, a relationship between the platform and the gig worker
such that the platform can establish, control, and manage work conditions or command authority over the worker,
which would allow the risks of work-related accidents (damages) to be easier to predict and control. Regarding
economic laws, the Small and Medium-Sized Enterprise Cooperatives Act provides a legal basis for the solidarityof sole proprietors and for negotiations with their clients. Still, it has been utilized very rarely to date.
   As described above, there are almost no direct restrictions on health and safety in the gig economy or its users;
if serious cases of law evasion occur, however, courts will, based on the intent of applicable laws, attempt to offer
remedies for workers with flexible judicial discretion with regard to the employer’s duty of care, and this initial step
may lead to the formulation of concrete laws in the future. Essential duties to be imposed on platforms after new
legislation is formulated in the future are risk investigation, provision of investigation results to gig workers, anda sincere response to collective bargaining, while measures to be taken by the government include investigationsof general risks associated with gig work and of ideal countermeasures and the provision of relevant information.
In addition, a scheme is necessary to make it possible that in cases where cooperatives that are protected under
the Small and Medium-Sized Enterprise Cooperatives Act assign industrial physicians to conduct interviews withcooperative members, when the physicians deem it necessary to do so, cooperatives can approach contractees toimprove the working conditions of the members in question. Furthermore, because research in industrial health andother fields has identified risks associated with gig work, in addition to future legislation, these schemes should
be used to interpret the duty of consideration for safety and in mandatory negotiations between platforms and gig
workers.
[Keywords] Gig worker, Platformer, Industrial Safety and Health Act, Safety consideration obligations, Risk
assessment, Principle of risk creator management liability, Small and Medium-Sized Enterprise
Cooperatives Act, Home Work Act

Contribution

Labor issues and laws related to emerging infectious diseases in Japan
Hajime Yoshida, Executive Board Member of the Japan Association of Occupational Health Law, Former Guest
Professor at Kyoto University Law School, Attorney[Abstract]
In Japan, COVID-19 countermeasures in workplaces have not been enforced as legal obligations; rather,voluntary responses have been sought primarily in the form of requests for cooperation and recommendations, andresolutions have thus been attempted. However, many labor issues have arisen in this process.
   Research activities in the Ministry of Health, Labour, and Welfare FY2021 Industrial Disease ClinicalResearch Grant “Research on the creation of guidelines, system maintenance, and tool development that

168

contributes to comprehensive infectious disease prevention measures in the workplace” were used as a basis toreport primarily on the following: (1) The authority to order individuals to undergo vaccination or COVID-19
testing, rationale and limits of the right to order transfers of non-vaccinated individuals, and effects of the violationof orders. (2) The spread of COVID-19 and obligation of workers to work, work-from-home requests, and user
safety consideration obligations.
[Keywords] Vaccination, COVID-19 testing, Work order authority, Transfer order authority, Work obligation,
Safety consideration obligation

Judicial precedent introduction/judicial precedent research

A Case concerning the Japan Fishing Vessel lnsurance Association:
Takeshi Hayashi, Occupational Health Precedent Study Group
Director of Occupational Health Promotion Center, Health Management Promotion Department.
Health and Safety Management Promotion Headquarters, Hitachi Ltd[Abstract]
X, who works for Association Y on a promotional track, applied for reinstatement into Association Y twice during
their leave of absence due to schizophrenia. Both applications were rejected, and the individual was treated as
retired after the leave of absence period expired. This is a case in which a lawsuit was filed to the effect that thisdecision was illegal and invalid. In the judgment, all of X’s claims were dismissed as groundless, and the caseof Japan Fishing Vessel Insurance Association (Tokyo District Court Judgment dated August 27, 2020), whose
treatment of the individual as retired at the end of the leave of absence period was deemed valid although theattending physician judged that the individual could return to work, is examined here, with commentary provided.
[Keywords] S chizophrenia, Medical certificate, Reinstatement criteria, Occupational physician’s opinion,
Reasonable accommodation, Support for returning to work

Literature commentary“Healthy and safe telework: Technical brief-Geneva, 2021”
Japanese translation and practical implementation of ’Healthy and safe telework:
Technical brief-Geneva, 2021’ issued by ILO/WHO
Go Muto, Design Research Institution, Japan Society for Occupational Health.
The Scientific Committee of Remote Occupational Health. Japan/Department of Hygiene,
Kitasato University School of Medicine. Japan/Center for Preventive Medical Science,and Design Research Institution, Chiba University, Japan

Yusaku Morita, Japan Society for Occupational Health, The Scientific Committee ofRemote Occupational Health, Japan/Department of Health Development, Institute of

169

As a reference

Industrial Ecological Sciences, University of Occupational and Environmental Health, Japan

Koji Kandabashi, Japan Society for Occupational Health, The Scientific Committeeof Remote Occupational Health, Japan/DB-SeeD, LLC, Japan[Summary]
The technical brief for ‘Healthy and safe telework’ was developed by a joint WHO/ILO technical advisory groupin February 2022. This document addresses the following questions: l) What are the impacts of telework on
the physical and mental health and social well-being of workers and their families? 2) How can employers andworkers organize and carry out teleworking in a healthy and safe manner? 3) What are the roles and responsibilities
of employers in protecting workers’ health and safety, and providing a supportive environment for telework? 4)
What are the roles and responsibilities of workers and their representatives in protecting and promoting health andsafety while teleworking? 5) How can occupational health services and primary health care providers support thehealth and safety of teleworkers? This document was developed based on a rapid review of evidence about healthimpacts of telework as of June 2021, and an examination of existing relevant WHO guidelines and ILO norms andstandards regarding occupational safety and health, health behaviors and working environments. In this article, we
introduce the Japanese translation of the technical brief and interpret the implementation into workplaces in Japan.
[Keywords] Telework, COVID-19, ILO, Ergonomics, Information and communications technology (ICT)

Trends in labor administration“Trends and commentary on revision of certification criteria for brain/heart disease
and mental disorders”
Fumio Koyano, Director, Industrial Injury Certification Office, Compensation Division,
Ministry of Health, Labour and Welfare of Japan[Abstract]
In September 2021, the Ministry of Health, Labour, and Welfare of Japan revised the certification criteria forindustrial injuries related to brain and heart disease based on the latest medical knowledge. It has been almost 20
years since the last revision. Additionally, it has been over 10 years since the establishment of industrial injury
certification standards for mental disorders. Given the current trend of diversifying working styles, we have beenverifying the overall criteria to conduct revisions. The latest situation for industrial injury compensation for brain/heart diseases and mental disorders (e.g., karoshi (overwork)) is introduced in this study, and the process andthinking behind revisions to the certification criteria for brain/heart disease are explained.
[Keyword] Karoshi, Industrial injury insurance, Brain and heart disease, Mental disorders, Certification criteria

170

As a reference 2

Journal of Occupational Health Law (Japanese journal) Volume 1, No. 1 Contents

Toward the Inaugural Issue of the Journal of Occupational Health Law
Koichi Kamata, Representative of Japan Association of Occupational Health Law, Professor Emeritus of Toyo
University

Chairman’s speech

The Aim of establishing the Japan Association of Occupation Health Law (JAOHL)
Takenori Mishiba, The First Academic Congress Chairman

The Initiator of this Association, Deputy Representative Director, Law Professor of Kindai University Faculty of
Law[Abstract]
Currently, in the field of occupational health, there are many problems such as mental illness and lifestyle-related
illness for which it is difficult to determine who is responsible for treating them, and to clarify the appropriate
preventive method. There are some unclear issues in this regard, such as whether the relevant problems are due
to illness or personality. In order to solve these problems, it is not enough that the legal system simply pits labor
against management tries to square their interests to the greatest extent possible. It is also necessary to devise alegal system for cooperation between labor and management and other related parties (hospitals, rehabilitation
institutions, families, etc.). There are many other complicated risks in the workplace, and these are on the rise, but
the Occupational Safety and Health Act is not tackling all of them. Therefore, based on our knowledge of the law,
we decided to gather the wisdom of related multidisciplinary academic fields and carry out research to solve suchproblems.
   The greatest characteristic of this association is its orientation towards problem-solving and prevention. We
welcome everything from the latest academic research to practical debates concerning the challenges in the field.
   In our educational activities, we emphasize the practical legal education of occupational health professionals,
such as industrial physicians.
   The establishment of this society was supported by many organizations and individuals, including the
Ministry of Health, Labor and Welfare.
[Keywords] Occupational Safety and Health Law, Industrial Safety and Health Act, Mental health, Adult diseases,
Interdisciplinary, Problem solving

171

As a reference

Invited Lecture

Organizational Systems and Culture: A Social Psychology Perspective
Yukiko Muramoto, The University of Tokyo, Graduate School of Humanities and Sociology[Abstract]
When an organization introduces new rules or systems, it is challenging for employees to adapt and utilize them.
Employees’ attitudes and behavior tend to be defined more by the implicit culture of the workplace than by
explicit rules, and culture is difficult to modify even in the face of environmental changes. Specifically, we needto pay attention to cases where the old culture is maintained by “pluralistic ignorance.” The present article will
introduce selected empirical research in social psychology on pluralistic ignorance. Furthermore, it will discuss therelationship between organizational systems and culture.
[Keywords] Cultural lag, Pluralistic ignorance, Organizational inertia, Diversity, Social psychology

Special Lecture

Administrative review and judicial review of Workers’ Compensation―A practical observation of medical criteria and legal criteria of occupational
disease―Shigeya Nakajima, Former Representative Director of Japan Association of Occupational Health Law[Abstract]
This paper investigates the author’s thesis that verification and ruling on cause and effect (causality of injury
or illness), a challenge in medical disputes, involves both the medical standard of natural scientific verificationand the legal standard of litigatory verification. It also discusses how both of the above standards are positioned
theoretically and function practically, as well as what courses of action should be aimed for in the future, if theabove thesis is correct, in cases of occupational illnesses (for which this paper focuses chiefly on cardiovascularconditions) that have proven to be particularly challenging under the workers’ compensation system.
[Keywords] Medical lawsuit, Administrative review, Judicial review, Legality and illegality of administrative
action, Causal law and attributability

Educational Lecture 2

Will the ESG/SDGs raise the level of occupational health?
Tomohisa Nagata, Department of Occupational Health Practice and Management, Institute of Industrial
Ecological Sciences, University of Occupational and Environmental Health, Japan

172[Abstract]
Occupational health and safety is included in Corporate social responsibility (CSR) and Environment, Social &Governance (ESG). Although many listed companies disclose information on their occupational health and safety
activities, small and medium-sized companies have not made progress in disclosing such information. Companies
are built on transactions and relationships with many stakeholders. Organizing the content of information
disclosure on occupational safety and health required by stakeholders and increasing the number of companies that
disclose such information are necessary measures to raise the level of occupational safety and health.
[Keywords] C
 SR, ESG, SDGs, Information disclosure, Health and productivity management, Occupational healthand safety

Symposium 1

Lessons from the Kanagawa SR Management and Labor Center Incident―What should I have done and what shall we do from now on?―Symposium 1 Facilitator

Hajime Yoshida, Former Guest Professor at Kyoto university law school, Executive Board Member of the Japan
Association of Occupational Health Law, President of Tenma Law Firm, Attorney[Abstract]
In this case, in which an industrial physician refused permission for reinstatement to work although thepsychopathology that was the cause of the leave had abated, citing considerations such as the high likelihoodof problems arising with other employees, the court ruled in favor of reinstatement regardless of the reasons forleave. The symposium participants’ comments included the argument that an industrial physician’s decisions
on reinstatement should be based on the degree of recovery of the ability to work and should not reflect matterssuch as interpersonal relations in the workplace, which should be handled by administrative sections. Throughout
the discussions as a whole, it was pointed out that it is important for attending physicians, industrial physicians,
workplaces, labor and social security attorneys, and attorneys at law to perform their roles by sharing informationand cooperating appropriately with each other.
[Keywords] Returning to work, Industrial physician, Primary doctor, Certified social insurance labor consultant,
Attorney

Symposium 2

Legal measures for managing chemical substances―Based on an asbestos lawsuit and biliary cancer issues―

The present status of and issues regarding chemical substance management inworkplace

173

As a reference

Symposium 2 Facilitator

Arimichi Handa, General Incorporated Association, Japan Boiler Association Executive Director,
Former Director of Safety and Health Department of the Ministry of Health, Labor and Welfare Ministry[Abstract]
The control of chemical substances in Japan has been developed under the Labor Standards Act and Industrial
Safety and Health Act frameworks, with the aim of contributing greatly to preventing workplace accidents
involving chemicals. However, the basic concept underlying this approach has been one of analyzing accidents andother incidents and taking measures to prevent their reoccurrence. While this enables specifications and standards
that are easy to understand, inevitably it involves an ex-post approach. It is hoped that progress will be made in
the future on development of performance requirement standards that demand results but do not require specificmethods, and of rules on communication of information for this purpose.
[Keywords] Control of chemical Substances, Specifications and standards, Performance requirement standards,
Rules on communication of information

Enhancement of the educational system for the management of chemical substances
and the work environment
Fujio Kayama, Jichi Medical University Department of Medicine Professor Emeritus[Abstract]
The government has taken a step toward letting stakeholders in chemical manufacturing industries takeresponsibility in autonomous chemical risk assessment and risk management. It has done so as 80 percent ofchemical-related occupational diseases is due to chemicals other than those included in the list of special hazardous
chemicals. To fulfill the new amendment of the law, we need new educational programs and new reforms incertification processes for industrial hygienists and occupational health specialists, as well as for the workers
installing environmental safety equipment in the workplaces. We need to prepare comprehensive educational
programs for all the stakeholders in occupational health.
[Keywords] (Mandatory) Risk assessment of chemical substance, Self-management of chemical substance,
Creating the national certification of industrial hygienist, Human resource development inside andoutside of corporations

Chemical substance management and liability―Suggestions from the judicial decisions
Yukiko Ishizaki, Yokohama National University, Associate Professor[Abstract]
Amid calls for management of chemical substances to migrate to a structure of autonomous control basedon the principles of self-assessment of risks and taking necessary measures by businesses, it is expected174that communication of information on hazards will become increasingly important. The importance of such
communication of information also has been suggested in court cases on demands for compensation for damages
in response to on-the-job accidents. This paper elucidates points on which employers and manufacturers should
pay close attention, based on previous judicial decisions.
[Keywords] C hemical substance management, Dangerous toxicity, Autonomous management, Informationtransmission, Judicial decisions

From the standpoint of guiding chemical substance handlers
Katsumi Okubo, Ichinomiya Labor Standards Office, Deputy Office Chief[Abstract]
Some companies are making progress on control of chemical substances but finding that these efforts are notproceeding as planned due to issues involved with specific chemical substances. Many other companies have noteven made it to the starting line. Efforts are needed on the part of regulators in implementing legal and regulatory
restrictions.
   While the details of the Report of the Investigative Group on Control of Chemical Substances etc. in the
Workplace are groundbreaking, issues still remain with regard to implementation. It is important to ensure that
atmospheric concentrations of harmful substances are kept at or below threshold limits in areas where they could
be inhaled by workers, and they probably will need to be checked by regulators as well.
[Keywords] “ Report from the examination board regarding the management of chemical substance in workplace”,
Chemical substance management

Challenges and responses to communication of chemicals in products through the
supply chain
Toru Suzuki, Japan Chemical Database Ltd.
[Abstract]
As a goal for beyond-2020 following the WSSD 2020 goal, it is expected that information communication
throughout the life cycle of chemicals in products will become increasingly important. On the other hand,
information on the chemicals in products is often confidential business information, and disclosure of all chemicals
in a product can threaten the survival of the company. Therefore, it is necessary to clarify the chemicals whosenames should be disclosed based on the relevant science.
[Keywords] Chemicals in products, Hazard communication, Supply chain, Confidential business information

Review of the mechanism of chemical substance regulations―Toward a mechanism based on autonomous management―

175

As a reference

Uichi Nakamura, Ministry of Health, Labor and Welfare, Industrial Safety and Health Department, Former
Assistant Director of Chemical Hazards Control[Abstract]
The Ministry of Health, Labour and Welfare of Japan has formulated a policy of thorough revision of regulations
on control of chemical substances in the workplace, based on study by a working group that included academic
experts, industry representatives, and labor organizations. This policy calls for migration from regulations based on
individually specifying controlled substances and establishing specific measures to use in a system of autonomous
control, in which means are used such as labeling and use of safety data sheets (SDS) to communicate informationon the risks of chemical substances and protective measures reliably throughout the supply chain, and where eachenterprise and workplace chooses and implements measures itself based on this information.
[Keywords] Chemical substance management, Regulation, Autonomous management, Labeling, SDS

Symposium 3

Health management policy and law in teleworking

Summary of the report and the status of discussion
Symposium 3 Facilitator

Koichi Kamata, Toyo University, Professor Emeritus[Abstract]
A symposium was held with the objective of raising the issue of and discussing an ideal health management
policy and legal issues of workers engaged in telework. The present symposium mainly focused on employedlaborers who are working from home. Five attendees at the symposium were asked to report mainly on (1) work
time management, (2) measures to improve mental and physical health, and (3) improvements to the working
environment at home, including the recently published Ministry of Health, Labour and Welfare “Guidelines for
Promoting the Appropriate Introduction and Implementation of Telework.” Afterwards, discussions were held,
where the participants answered questions from the venue members.
[Keywords] R eform of working practice, Teleworking, COVID-19 expansion, Teleworking of employees,
Telework guideline

Health Impact Assessment and evidence of telework expanded due to the coronavirus
pandemic (COVID-19)
Naoto Fukutani, BackTech Inc., CEO, University of Occupational and Environmental Health, Visiting Scholar,
Department of Physical Therapy, Human Health Sciences, Graduate School of Medicine, Kyoto University, HealthManagement Project Researcher

176[Abstract]
The purpose of this paper is to evaluate the health effects of telework using the Health Impact Assessment (HIA)
method and to share evidence of health issues associated with telework. As a result of the survey, it became clearthat workers who are teleworking are more likely to have “decreased physical activity”, “stiff shoulders / backache
due to a poor working environment”, and “decreased work-related productivity”. Furthermore, it was clarified thatthe more frequently people telework, the greater the decrease in work-related productivity.
[Keywords] Teleworking, HIA, Presenteeism, Indefinite complaint, COVID-19

Relationship between personality traits and stress for home workers
Masaki Hosomi, Kansai University Faculty of Business and Commerce, Associate Professor[Abstract]
This study investigated the relationship between the Big Five personality traits and stress. A questionnaire
survey was administered to homeworkers and 602 samples were analyzed. The results showed that extroversion,agreeableness, consciousness, and openness lowered stress, while neuroticism heightened stress in homeworkers.
The frequency of homeworking did not significantly affect stress. In terms of moderating effects, consciousness
decreased stress when working from home more frequently, but did not significantly affect stress when working
from home less frequently.
[Keywords] Teleworking, Stress, Big Five, COVID-19 pandemic

Joint Symposium with Collaborating Societies 1[Japan Association of Job Stress]
Verifying the certification of job stress by courts (1)Joint Symposium with Collaborating Societies 1 Facilitators

Kenichi Kojima, Torikai Law Office
Yasumasa Otsuka, University of Tsukuba Humanity Associate Professor[Abstract]
This symposium explored the controversial stress factors that were or were not acknowledged by the courts asoverloading or illegal. It also discussed the presence of these factors by various professions and identified themeasures for problem solving. A case involving the chief officer of the Ikebukuro Labor Standards Inspection
Office (Tokyo District Court judgment, August 25, 2010) was taken up, and four symposium participants delivered
presentations from the perspectives of compensation and prevention.
[Keywords] Certification of workers compensation of mental health, Power harassment, Long hours of labor,
Compensation, Prevention

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As a reference

Joint Symposium with Collaborating Societies 2[Japan Society for Occupational Mental Health]
Support for reinstatement and medical treatment for workers’ accident compensation
insurance recipients:
In consideration of people with a mental disorder[Abstract]
At this symposium, two chairmen raised some problems regarding the current situation of the increase in long-term
medical treatment for persons with mental disorders in workers’ accident compensation insurance, and showed the
purpose of clarifying the ideal way of reinstatement support and medical treatment to solve this problem. After that,
After that, three speakers reported on (1) support for reinstatement and medical treatment for persons with mental
disorders based on medical knowledge, (2) support for reinstatement and medical treatment from an administrative
perspective, and (3) examination of differences in the legal system between Japan and Germany.
   A report was made on the ideal way of optimizing benefits. Furthermore, based on the announcement by the
symposium participants, a general discussion was held following the designated remarks from the standpoint of a
local industrial accident doctor.
   Throughout these sessions, problems and issues were pointed out and future measures were discussed, and theperspective of how to achieve fair harmony between medicine, law, and administration was shared.
[Keywords] Recognition as industrial accident compensation, Long-term medical treatment, Medical treatmentcompensation, Leave compensation, Fixed symptoms (Cure), Return to work

From the two chairmen: To the symposium
Joint Symposium with Collaborating Societies 2 Facilitators

Minoru Arai, M.D., Ph.D., Specially Appointed Psychiatrist of Tokyo Rinkai Hospital
Soichiro Maruyama, M.D., Ph.D., Emeritus professor of Kobe Shinwa Women’s University, Psychiatrist,
Occupational physician

Long-Term Medical Care after Approval of Industrial Accident Compensation for
Mental Disorders:Current Situation and 2 Case Reports
Nobuo Kuroki, MD., Ph.D., Medical Corporation Senjikai Katsutadai Medical Clinic Director, Professor
Emeritus of Toho University[Abstract]
The number of occupational accident claims for mental illness reaches a record high every year, reaching 2060
in FY2019 (up 240 from the previous year), and the actual number of occupational accidents certified in FY2019
was 509 (up 44 from the previous year). The number of certifications has also increased. In particular, the number

178

of cases of “non-suicidal mental disorders” approved for workers’ compensation has increased rapidly, with 4702
cases of “non-suicidal mental disorders” approved for workers’ compensation through 2019, accounting for 77.5%of the total 6067 approved cases. We reported on a survey on long-term medical treatment after occupational
accident certification, presented cases of long-term medical treatment after occupational accident certification (selfstudy cases), and examined problems and issues of occupational accident medical care.
[Keywords] Approval of industrial accident compensation, Long-term medical care, Leave compensation, Medical
treatment compensation

About “support for reinstatement of workers̕ accident compensation insurance and theway of medical treatment”
Fumio Koyano, Director, Occupational Disease Certification Countermeasures Office, Compensation Division,
Labor Standards Bureau, Ministry of Health, Labor and Welfare[Abstract]
If a person develops a mental disorder due to a strong psychological burden on his / her work, he / she will be
provided with the workers’ accident compensation insurance necessary for medical treatment and leave as a workrelated illness. Rehabilitation to society is one of the purposes of workers’ accident compensation insurance, and it
is desirable to return to work as soon as possible. For those who have been receiving medical treatment for a long
period of time, we are aiming for them to return to work as soon as possible by using the medical treatment andaftercare system while listening to the opinions of the attending physician.
[Keywords] Job-related events, Return to work, Medical treatment, Aftercare

Measures to Optimize Benefits for Workers’ Accident Compensation Insurance
Recipients Due to Mental Illness in Germany― Information Obtained from The German Workers’ Accident Insurance Association(DGUV) and Health Insurance Association (GKV) ―Takenori Mishiba, Ph.D., Professor, Faculty of Law, Kindai University Former Public Interest Representative
Member of the Safety and Health Subcommittee of the Labor
Policy Council of the Ministry of Health, Labor and Welfare Vice Representative Director, The Japan Associationof Occupational Health Law[Abstract]
How does Germany deal with people with mental illness who have been receiving workers’ accident compensation
insurance for a long time? A survey of German workers’ accident compensation and health insurance systems
revealed the following:a) Social insurance recipients such as those receiving workers’ accident compensation insurance are also obliged
to cooperate for recovery, and if they do not, insurance benefits can be suspended unless there is a reasonablereason.

As a reference179b) Obligations to cooperate include (1) reporting accurate facts, (2) taking medical / psychological examinations, (3)consultation and treatment, and (4) partial labor participation. Participation in rehabilitation is also required at
the discretion of the insurer.
c) As a general rule, a medical certificate for leave required by a doctor can only be issued for the next two weeks,
and insurance benefits will be provided only during that period. In this way, the need for benefits is diligently
determined.
d) Workers’ accident leave compensation is paid only up to 78 weeks, and if the situation does not improve during
the period, it will be reviewed again and disability compensation will be applied.
In this way, at least with regard to the compensation for leave of absence, unreasonable extensions of the receiving
period have been stopped. However, social insurance is based on the legal principle of the insured’s right inGermany, and the limitation of insurance benefits requires adequate proof.
[Keywords] G erman workers’ accident compensation, Compensation for leave of absence, Disability
compensation, Obligation to cooperate for recovery, Participation in rehabilitation

Designated debates on return to work support and medical treatment for recipients ofindustrial accident compensation insurance who are suffering from mental disorders
due to work or commuting related accidents and are losing their wages
Kazuyoshi Yamamoto, M.D., Ph.D., Yamamoto Clinic, EAP Institute of Job Stress Research[Abstract]
The increasing number of long-term recipients of medical (compensation) benefits and temporary leave(compensation) benefits of industrial accident compensation insurance, who are suffering from a mental
disorder due to their work or a commuting-related accident, are not able to return to work, and do not have arecognized disability is recognized as a problem. Three major issues are discussed as the causative factors: firstly,
naming an incomplete cure or incomplete remission as cured (stabilized symptoms), secondly, temporary leavecompensation benefits are paid until the injury or disease is cured (stabilized symptoms), lastly, the big disparity
between temporary leave (compensation) benefits and disability (compensation) benefits. The author notes thatcomprehensive consideration is necessary on the reduction of segment order of temporary leave compensation
benefits according to the recuperating period, generous disability (compensation) benefits and continuation of
medical compensation benefits after qualification of disabilities.
[Keywords] L ong-term recuperator, Incomplete cure, Medical (compensation) benefits, Temporary leave(compensation) benefits, Disability (compensation) benefits

Joint Symposium with Collaborating Societies 3[Japanese Society of Occupational Medicine and Traumatology]
Health issues of overseas workers and the review of worker’s injury cases

Issues related to worker’s injury of overseas workers observed in judicial rulings

180

Keiichiro Sue, Blakemore & Mitsui Law Firm, Partner[Abstract]
In order to examine the substantial causal relationship between health risks and illness in overseas work, I will
examine judicial decisions on administrative decisions regarding occupational injuries. Specifically, I will examine
individual judicial cases regarding cerebro-cardiovascular disease, mental illness, and other diseases in which
the existence of a reasonable causal relationship between illness and health risks, mainly physical and mental
stress unique to overseas work, was an issue. Through these cases, I try to find out relevant points to keep inmind regarding health management in overseas work. Finally, I will examine judicial decisions on administrativedecisions regarding the application of workers’ compensation for overseas business trips and overseas assignments.
[Keywords] Health risks in overseas work, Legally sufficient causal relationship between overseas work andonset of illness, Criteria for recognition of mental disorders due to psychological burden, Criteria
for recognition of cerebrovascular disease and ischemic heart disease due to work that significantly
aggravates vascular lesions, etc. Obligation to health and safety of workers, Special enrollment system
for workers’ compensation insurance

Special insurance system for overseas dispatchers and industrial accident
compensation insurance
Atsushi Nakayama, Nakayama Labor Safety & Health Management Office, President[Abstract]
Industrial accident compensation insurance covers workers who belong to business establishments in Japan.
Persons dispatched overseas who do not belong to domestic business establishments will not be covered by
the industrial accident compensation insurance unless they have special insurance. On the other hand, overseas
business travelers who belong to domestic business establishments are compensated without special insurance.
I will introduce examples of disputes between overseas dispatchers and overseas business travelers and thegovernment’s response.
[Keywords] Workers’ injury compensation, Special participation, Overseas transfer, Overseas trip

Urgent plan

Labor issues and laws related to the COVID-19 infectious disease

Co-Sponsor: General incorporated foundation Japan Association for Preventative Medicine
Urgent plan Facilitators

Tetsuo Nomiyama, Shinshu University Department of Medicine Sanitary Science, Public Health Classroom andOccupational Health Course (serving concurrently), children’s environmental health epidemiology research center(concurrently)

Ran Mukai, Kakitsubata Management Law Firm

181

As a reference[Abstract]
In its first general academic conference, the Japan Association of Occupational Health Law held symposia led byexperts, followed by general discussions concerning the following issues affecting corporate employees and otherrelated parties in connection with the COVID-19 pandemic: requests for extended leave and refusal to come towork; mandatory PCR testing; COVID-19 and compensation for damages, disciplinary action, and human-resource
evaluations; leave, wages, and leave allowance (for direct employees and employees dispatched by placement
agencies); and the relationship between working from home and employers’ obligations to consider safety. These
were based on labor- management issues and laws related to COVID-19, in light of the considerable impact thatthe spread of the pandemic has had on corporate employers and workers. The general discussions featured debate
on subjects such as the pros and cons of vaccine mandates; details of employers’ obligations to consider safety,
including PCR testing; leave allowance; corporate decision-making procedures in responding to COVID-19; andthe relationship between working from home and employers’ obligation to consider safety.
[Keywords] Vaccination obligation, Leave allowance, Force majeure, Caring safety obligation

Basic knowledge about COVID-19: essentials of the disease and relevance of social
measuresTakashi Kawamura, Professor emeritus, Kyoto University[Abstract]
In the COVID-19 pandemic, increases in infectivity and attenuation of toxicity are being caused by viral mutations.
The PCR test cannot prove that infection is not present because of its insufficient sensitivity, and a positive result
does not necessarily mean that the person is infectious as the test may give a positive result irrespective of viral
activity. The efficacy of COVID-19 vaccines does neither last long nor fully cover the mutated viruses. Sincecontact infection with virus-containing droplets is the main route of contagion, the most important policy is to
avoid contact with infected surfaces. The four declarations of a state of emergency were ineffective. Enforcementof the medical system is an urgent matter and some concrete plans in this regard will be proposed in thispresentation.
[Keywords] Infectivity, Toxicity, Contact infection, Declaration of emergency, Medical system

Legal Mind in the Age of the Coronavirus: On the Subject of Request for Extension of
Leave Period and Refusal to Come to Work
Yoichi Inoue, Aisan Nishio Law Firm, Representative, attorney, SME consultants, occupational health law
manager[Abstract]
For problems based on unknown risks or issues for which the evidence is not clear, such as labor issues related to
new coronavirus infections, a rational consensus-based response is necessary. Legal responsibility in the field ofoccupational health is determined by comprehensive consideration of employees, employers, and the environment.
Therefore, it is important to create rules for risk analysis and responsibility analysis focusing on these three factors.

182

In order to ensure the rationality of the consensus, appropriate cooperation among experts and multiple professions
is required.
[Keywords] Occupational health, Legal mind, COVID-19, Absence from work, Labor case law

Absence from work, and obligation to pay wages and leave allowance and vaccination& testing package in the job area
Hajime Yoshida, Tenma Law Firm, President, attorney, former guest professor of University of Kyoto Law
School[Abstract]
When placing an employee on leave in response to COVID-19, depending on the reason for leave the employer
may be obligated to pay the all of the employee’s wages if the employer has refused to receive labor services
without good reason (Article 536, Paragraph 2 of the Civil Code), or to pay leave allowance if the leave was due
to a fault in the employer’s management or administration (Article 26 of the Labor Standards Act). Employment
regulations requiring unvaccinated employees to submit proof of a negative test for COVID-19 as a condition ofworking in operations for which there is a high need to prevent the spread of the virus are considered reasonable inlight of considerations such as adequate consideration for disadvantages to workers.
[Keywords] Wage, Leave allowance, Unvaccinated, COVID-19 testing, Vaccine & testing package

Labor Law Issues in the Coronavirus Pandemic―With a focus on Mandatory PCR tests, etc., focusing on the coronavirus and damage
compensation, disciplinary action, personnel evaluation, vaccination, etc.―
Makoto Iwade, Attorney, Meiji Gakuin University Guest Professor[Abstract]
In preparation for the sixth wave of the new coronavirus (COVID-19), which struck on a larger-than-expected scalewith the onslaught of the Omicron strain, and for the mutant strains and new infectious diseases that are likely to
strike in the future, this report will discuss various issues that the coronavirus pandemic has caused and brought tolight in order to apply valuable lessons learned from the first through fifth waves of the coronavirus. The lecture
will focus on PCR testing, compensation for damages, disciplinary actions, personnel evaluations, vaccination,etc., among the various labor law issues that the coronavirus pandemic has caused and brought to light, while
introducing the latest coronavirus-related court cases that have recently started to be published.
[Keywords] PCR testing, Vaccination, Infection risk behavior, Damage, Disciplinary action, Mask wearing
obligation

183

As a reference

Telecommuting and obligation to care for safety
Ryo Yodogawa, Cyber Law Japan Eichi Offices, Kindai University Adjunct Professor[Abstract]
To maintain the health of employees working from home, employers need to fulfill their duties to consider thehealth and safety of their workers, by implementing the measures required under occupational health and safety
laws and regulations. They also need to ascertain the health status of employees working from home and take steps
such as reassignment to other duties and lessening their workloads as necessary in light of considerations such as
the details and degrees identified. In doing so, they should probably conform or refer to policies and guidelines
published by the national government, medical societies, and other authorities, with the participation of appropriate
experts such as occupational physicians. An employer that fails to fulfill its duty to consider safety under civil law
could face liability issues such as compensation for damages in the event that an employee working from home
contracts a condition such as clinical depression or economy-class syndrome.
[Keywords] Teleworking, Obligation to care for safety, Mental health, Health and Safety Committee, Industrial
physicianMoot Court

Judgment of reinstatement of a corporate lawyer who took sick leave for being unable
to adapt to the organization
Co-Sponsor: Peace Mind Co., Ltd.
Moot Court Joint-Facilitator

Hajime Yoshida, Former guest professor or University of Kyoto Law School, Executive Board Member of Japan
Association of Occupational Health Law, President of Tenma Law Firm
[Abstract]
A case of a conflict of opinions between an attending physician and an industrial physician regarding reinstatementof a company attorney who took sick leave without organizational accommodation was debated in the form of amock trial. In this mock trial, the issue was brought into relief of whether personality bias should be taken into
consideration in decisions on reinstatement from leave for psychological conditions. It also suggested the need forconsideration of the meaning and limitations of reworking programs, along with the importance of approachingtreatment and acceptance in the workplace through sharing of information and appropriate cooperation between theattending physician and industrial physicians or the workplace.
[Keywords] Reinstatement, Rework program, Primary doctor, Industrial physician, Alignment

184

Comments on the stance of an industrial physician―After the moot court―
Moot Court Joint-Facilitator

Ginji Endo, Osaka Occupational Health Service Center, Japan Industrial Safety & Health Association[Abstract]
This session included a mock trial by four persons—an attending psychiatrist, an attorney from the labor side,
an industrial physician, and an attorney from the company side—on the theme of a reinstatement judgment for acompany attorney who took sick leave without organizational accommodation. The trial included fierce debate on
various points at issue. In this paper, the industrial physician reviews the responses that should be taken within therelationship involving the worker, the attending doctor, the employer, superiors, and others, from the standpoint of
independence and neutrality as an industrial physician.
[Keywords] Reinstatement judgment, Independence and neutrality of industrial physician, Stance of industrial
physicianFrom the standpoint of an industrial physician who thinks reinstatement should be
rejected
Teruhisa Uwatoko, University of Kyoto Department of Medicine Hospital Department of Psychiatry and
Neurology[Abstract]
A mock case of adjustment disorder triggered by maladjustment to the workplace due to personality bias was
discussed. To evaluate the degree of adjustment disorder caused by the interaction with the work environment,
the company decided to use the rework program to evaluate the adjustment to the work environment, including
personality bias, and to consider the possibility of the employee returning to work. In this case, however, theindividual refused to be evaluated by the rework program, and the industrial physician determined that it was
impossible for the individual to return to work from the standpoint of his duty of care for the safety of theindividual and his surroundings.
[Keywords] Reinstatement judgment, Personality disorder, Adjustment disorder, Rework program, Rational care

Judgment of reinstatement of an in-house lawyer who took leave due to injury
or illness because he could not adapt to the organization-Examination from theperspective of the enterprise
Makoto Iwade, Attorney, Guest Professor of Meiji Gakuin University

185

As a reference[Abstract]
The following issues will be examined from the perspective of the company regarding the “judgment on
reinstatement of an in-house lawyer who failed to adapt to the organization and took sick leave,” which was
discussed in the mock trial at the 1st Annual Conference (hereinafter referred to as the “mock trial”). The study will
also examine the relationship between the termination of grounds for leave due to personal injury or illness andthe name of the diagnosed illness at the time of leave, the weight of the judgment of the attending physician andindustrial physician, suspicion of personality disorder, and reasonable accommodation under the Act on Promotionof Employment of Persons with Disabilities.
[Keywords] P rogram’s drift of Medical Leave Program, Legal structure of determining the possibility ofreinstatement, The relationship between the extinction of personal injury and reason for sick leaveand the name of the diagnosed illness during the absence, The relationship of promoting the Act on
Promotion of Employment of Persons with Disabilities and rational care

Mock trial: Opinion of a psychiatric physician considering the patient should return to
work
Tomoki Takano, Healthcare corporation Incorporated association Kofukai Kanda Higashi Clinic[Abstract]
Mr. A, who has been absent from work due to mental illness and whose period of leave is about to expire, hasa personality that is quite distinctive. He also has a high degree of professionalism, including being a licensed
attorney. In addition to Mr. A’s problems, there is also the complicated issue of how to deal with him in theworkplace. As an attending psychiatrist who recommends that he return to work, I provide my opinion and insights
into the situation.
[Keywords] Reinstatement to the workplace, Adjustment disorder, Group mental therapy, EAP, illness nature,Case-related

The forefront of relational study 1(Psychiatry)
Boundary between personality disorder and autism spectrum disorder: indivisiblenessof character and illness
Joichiro Shirahase, Metropolitan Tokyo Saisei-kai Chuo Hospital[Abstract]
This paper employs the concept of mentalization to explain the impact of the psychological stress we feel, andresponses to this impact, when interacting with workers who have personality disorder or autism spectrum disorder.
As preparation for doing so, it discusses what it means to understand psychiatry.
[Keywords] Occupational mental health, Typology, Mentalization, Procedural reason

186

The forefront of relational study 2(Labor law study, comparative law)
Dismissal of employees with a mental disability in Germany
Tatsuya Sasaki, Nagoya Gakuin University[Abstract]
Recently, the mental health of employees is a challenge in many companies, and many companies are concerned
about measures to prevent mental disease. Moreover, this problem is a common issue in the areas involved, forexample jurisprudence, medical science and psychology.
   First, I analyze characteristic precedents about dismissal of employees with a mental disability in Germany,
then I compare Japanese labour law with German labour law. Through these discussions, this paper clarifies
Japanese features of doctrine of dismissal of employees with a mental disability.
[Keywords] Illness nature, Case-related, Protection against Dismissal Act (KSchG), Dismissal on health grounds,
Dismissal on grounds of conduct

The forefront of relational study 3(Occupational health)
What are the outcomes of occupational health activities and are they measurable?

Performance Indicators for Occupational Health: Issues for Consideration
Koji Mori, University of Occupational and Environmental Health, Japan, Industrial ecological science research
center, Professor[Abstract]
In order to evaluate the results of occupational health activities, it is useful to set outcome indicators after clarifying
the objectives of the activities, and then combine the indicators for the several steps leading to the outcome. In
addition, setting targets for the achievement of each indicator at the planning stage can lead to improvement of theactivities. However, it is important to understand that improvements in employee health-related indicators are not
the result of occupational health alone, and that the contribution of occupational health is not only expressed in theindicators.
[Keywords] Occupational health, Health and productivity management, Performance indicator, Organizational
factor, Intangible resources

187

As a reference

An Attempt at Collaboration between Human Resource Management andOccupational Health: What We Really Need to Achieve and What We Need to StudyYuta Morinaga, Musashi University Faculty of Economics[Abstract]
The purpose of this paper is to discuss achievements and future research questions regarding occupational healthactivities, positioning them as a part of human resource management. In this paper, based on previous overseas
studies, we propose an expanded view of the outcomes of occupational health from the standpoint of humanresource management, to include the achievement of a wide range of employee well-being and organizational
outcomes. In addition, we exemplify the research issues found by placing occupational health activities within thetrend of human resource management research.
[Keywords] Human resource management, Psychologically healthy workplace, Process of practicing measures,
Balancing of work and treatment, Managerial position

Workshop 1

The way of cooperation between a certified social insurance labor consultant andoccupational health staff―The future mission of a social insurance labor consultant considered through thecases ---bringing smiles to working people ―Cooperation between Labor and Social Security Attorneys and Occupational Health
Staff― From the perspective of a physician qualified as a labor and social security
attorney ―Workshop 1 Facilitator

Hideki Morimoto, Morimoto Occupational Health Physician office[Abstract]
Forty to fifty percent of labor and social security attorneys (LSSAs) are consulted about mental health issues. Thereis also a possibility that they do not cooperate sufficiently with occupational health staff. Past studies have shownthat LSSAs are expected to be competent in mental health issues. It is necessary for both occupational health staff
and labor and social security attorneys to cooperate with each other according to the size of the company andthe type of contract, based on the principle that both should be involved with employees and companies in a fairmanner while fulfilling their own responsibilities.
[Keywords] Labor and social security attorneys, Cooperation, Mental health188

Cooperation between Labor and Social Security Attorneys and physician in
occupational mental healthYasuna Suzuki, Incorporated association Occupational Health Mental Health Study Group[Abstract]
This paper considers the roles of labor and social security attorneys and industrial physicians in occupational
mental health. The employer’s confidence in them is of utmost importance, and this can be achieved by, first,
having a sympathetic understanding of the situation in the workplace and, second, using appropriate sharedterminology among related parties. In addition, mental health measures are based on job attendance, and suddenly
calling in sick for the day citing vague symptoms is a distinctive sign of mental health issues. It is essential torecommend examination in such cases. The paper also explains making recommendations and providing guidance
based on reasonable considerations.
[Keywords] C ertified social insurance labor consultant, Part-time industrial physician, The situation of work site,
Same-day notice absence, Recommendation guidanceCommunication between Companies and Workers Mediated by Labor and Social
Security Attorneys and Industrial Physicians
Hisanori Shikata, Osaka worker injuries & labor law firm
[Abstract]
Workers’ mental health problems cause great costs and losses for both employers and workers. Therefore, it isnecessary to detect mental health problems at an early stage, investigate the cause, and take countermeasures.
For that purpose, it is necessary that personnel and labor specialists such as labor and social security attorney
and occupational health professionals such as occupational physicians relax the minds of workers, give advice toemployers on dealing with mental health problems, and work together to eliminate the cause of them by mediating
communication between employers and workers.
[Keywords] M ental health, Certified social insurance labor consultant, Industrial physician, Cooperation,
Communication

Prevention of disputes and the role of a certified social insurance labor consultant in
the resolution
Masato Ishikura, Japan Federation of Labor and Social Security Attorney’s Associations

189

As a reference[Abstract]
The main subject of this workshop was to explore forms of cooperation between labor and social security attorneys
and occupational health staff through discussion among occupational health staff, attorneys, and labor and social
security attorneys, based on examples.
In this paper, the author, an official of the Japan Federation of Labor and Social Security Attorney’s Associations,describes the importance, responsibilities, and missions of labor and social security attorneys and explains basic
approaches that should be taken in the performance of their duties.
[Keywords] Certified social insurance labor consultant, Significance of existence, Job responsibilities, Mission

Implementation of collaboration between Labor and Social Security Attorneys andOccupational Health Staff― From the perspective of an occupational physician ―Meiga Ito, Ito Occupational Health Consultant Office[Abstract]
In a previous study, although many labor and social security attorneys consider their role in occupational safety andhealth to be important, few of them actively perform safety and health work, citing a gap between their perception
and their intention to implement it. The main body of occupational health is the business operator, and voluntary
activities are required, but there are many cases where the business operator does not understand the importanceof building a health management system or the role of occupational physicians. Particularly in small and mediumsized enterprises occupational physicians and labor and social security attorneys should work together to provide
support that will enhance the initiative of employers.
[Keywords] O ccupational physicians, Labor and social security attorneys, Health and employment support,
Collaboration, implementation

Workshop 3

Remote Occupational Health Activities― Is It Lawful or Not?―
Workshop 3 Facilitator

Koji Kandabashi, Japan Society for Occupational Health, The Scientific committee of Remote Occupational
Health, DB-SeeD, LLC Representative

Yusaku Morita, Japan Society for Occupational Health, The Scientific committee of Remote Occupational
Health, Nippon Steel Corporation Headquarters Human Resource Labor Policy Department Health Promotion
Division

Chikako Shirata, Exa Corporation Human Resource Department Health Consultation Division
Yoshihito Naito, Naito Law OfficeTetsuro Ishizawa, Japan Society for Occupational Health, The Scientific committee of Remote Occupational
Health, Central Medical Support Co., Ltd. Representative

190[Abstract]
As working from home has spread rapidly since the COVID-19 pandemic first struck in 2020, occupational
health professionals have begun to use information and communication technology in their activities. In thisworkshop, occupational physicians, occupational health nurses, and lawyers discussed issues related to privacy andresponsibility with regard to online health interviews, particularly from a legal perspective. It found that measuresvital to prevent disputes include thorough communication to employees of the content of related notifications,obtaining the consent of the worker as appropriate during related activities, and clear documentation of rules.
[Keywords] Remote occupational health, Remote interview, Industrial health, Interview guidance, Health guidanceWorkshop 4

Consideration about the responsibility of outsourcers and assignors[Abstract]
As each symposium participant reported on the responsibilities of clients and contractors under work styles suchas side jobs, concurrent jobs, and freelance work that are being promoted today, views such as the following werepointed out:・In many aspects, legal systems remain underdeveloped with regard to new work styles such as side jobs,
concurrent jobs, and freelance work. There has been insufficient discussion of health and safety with regard to
freelance work in particular.
・The method of front loading identified as one means of digital transformation (DX) is a revolutionary approachthat contributes both to consideration for safety in the design stage and increasing productivity in the workplace.
It also contains important hints for industries other than construction as well.
・While technically it would be possible to deploy occupational health services for quasi-employed workers, there
are legal issues that must be resolved to enable it.
The discussions in this symposium suggested that there are pressing needs for clarification of the scopes of
responsibilities of clients and contractors and measures to protect workers’ health under work styles such as side
jobs, concurrent jobs, and freelance work, which are likely to be used even more widely in the future.
[Keywords] Extra career, Side job, Freelancing, Obligation to care for safety, Self-health obligation, Risk creator
management responsibility, Front loading, Quasi-employment worker

Introduction
Workshop 4 Joint Facilitator

Noritada Kato, Fuji Electric Co., Ltd, Occupational physician

Subcontractor, freelance, the scope and tasks of labor law seen in the safety careobligations for extra career takers and side job takers
Hiroshi Muramoto, Iwatani, Muramoto and Yamaguchi Law Firm

191

As a reference

Recent trend of occupational safety and health in construction industry― the move of DX (digital transformation) and utilization of front loading, etc.
Yasuo Toyosawa, President of Scaffolding and Construction Equipment Association of Japan,
Former Director General of National Institute of Occupational Safety and Health, Japan

Consideration about the responsibility of outsourcers and assignors― Utilization of Occupational physician
Toru Takeda, Occupational health consulting service office OHCS President

EpilogueWorkshop 4 Joint Facilitator

Takayoshi Kajiwara, Kajiwara Occupational physician Office President

Contribution

Experience of publishing in an English academic book and message for potential
authors― T.Mishiba. Workplace Mental Health Law. Routledge, based on the publishingexperience in 2020 ―Takenori Mishiba, Kindai University Faculty of Law Professor

Journal of Work Health and Safety Regulation

Journal of Work Healthand Safety Regulation

ISSN 2758 -4755

Vol.1
No.1

January 2023

CONTENTS
Greetings from the Editor-in-Chief (Law) of the Journal of Work Health and Safety
Regulation …………………………………………………………………………………………………… Richard JOHNSTONE
Greetings from the Editor-in-Chief (Health) of the Journal of Work Health and Safety
Regulation ……………………………………………………………………………………………………………… Fujio KAYAMA
Journal Guide

Editors’ Introduction
A Special Focus on Work Health and Safety Law and Policy and Work for Digital
Labor Platforms …………………… Richard JOHNSTONE, Elizabeth BLUFF and Michael QUINLAN

Vol.1

Original Articles
Ambiguities and Absences: Occupational Health and Safety Regulationof Platform-Mediated Work in Ontario, Canada……………………………………………… Eric TUCKER

No.1

Legal Protections of the Health and Safety for Gig Workers: The Present Status and Future
Prospects in Japan …………… Takenori MISHIBA, Kotaro KURASHIGE and Shoko NAKAZAWA
Regulating Health and Safety in Work for Digital Labor Platforms in Australia: The
Example of Food Deliverers…… Elizabeth BLUFF, Richard JOHNSTONE and Michael QUINLAN

An Occupational Health and Safety Perspective on EU Initiatives to Regulate Platform
Work: Patching up Gaps or Structural Game Changers?……………………… Aude CEFALIELLO
Reconsidering Working Time Regulation for the Protection of Platform Workers’
Health and Safety……………………………………………………………………………………………… Cristina INVERSI
Legislation Note
Work Health and Safety Law Reform in Australia—The Recent Industrial Manslaughter Provisions……………………………… Richard JOHNSTONE
January 2023

As a reference １：Journal of Occupational Health Law (Japanese journal) Volume 1, No. 2 Contents
As a reference ２：Journal of Occupational Health Law (Japanese journal) Volume 1, No. 1 Contents

The Japan Association of Occupational Health Law