Regulating employee-like workers

There have been several recent changes relevant to ‘employee-like’ workers including:

• the ability for the Fair Work Commission to make minimum standards orders; and

• the ability for the Fair Work Commission to deal with employee-like worker disputes about unfair deactivation from a digital platform.

Employee-like workers are certain independent contractors who perform digital platform work in the gig economy. A contractor will only be an employee-like worker if they meet two or more of the following criteria:

·         low-bargaining power in negotiations in relation to their services contract;

·         receives the same or less pay than an employee would get;

·         little authority over how they perform work.

Minimum standard orders

The Commission can make a minimum standard order either on its own initiative or upon an application made by a registered organisation (such as a union) that represents workers that would be covered by the order, a business that would be covered by the order (such as a ride share company) or the Minister for employment.

A minimum standard order can include rules covering various topics, including payment terms, deductions, record-keeping, insurance, consultation, representation, delegates' rights, and cost recovery, but they must always address dispute resolution. A minimum standard order cannot regulate areas such as overtime rates, rostering, commercial matters that don't affect the worker's engagement, changes to the worker's employment status, or workplace health and safety issues already governed by other laws

Unfair deactivation

Digital labour platform operators may choose to suspend or terminate a worker’s access to the platform, preventing them from working, a process known as ‘deactivation.’

Employee-like workers who believe they have been unfairly deactivated can seek a remedy by applying to the Commission. If the Commission finds the deactivation unjust, it can order the worker's access to be restored and any lost income to be compensated.

Fair Work has noted that they are going to target Uber, couriers etc., so prepare for your deliveries to get more expensive!