Gig-nificent Gains: New era of protections for gig workers

Recent legislative changes to the Fair Work Act 2009 (Cth) (FW Act) have come into effect that provide protections for “gig economy workers”, which refers to workers who perform work for a digital labour platform operator, and certain workers in the road transport industry (otherwise known as “regulated workers”).

A new class of workers

Effective from 26 August 2024, the FW Act includes a new class of worker, called “employee-like workers”, who would otherwise likely have been classified as independent contractors. These workers generally perform work through a digital labour platform (e.g. an app) which engages independent contractors and processes payments in relation to the work performed by the independent contractors (e.g. food delivery drivers and rideshare drivers) and must meet certain requirements of the FW Act in order to be considered as an employee-like worker.

Minimum standards

The Fair Work Commission (Commission) has been provided with powers to regulate the gig economy by setting award-like minimum standards for employee-like workers through issuing binding minimum standards orders (MSO) and non-binding minimum standards guidelines on matters such as payment terms, deductions, record-keeping, consultation, insurance, representation, delegates’ rights and cost recovery. The Commission may also make a “contractual chain order” to set minimum standards/guidelines for regulated road transport chains on payment times, rate reviews, fuel levies and termination.

Digital platform operators and road transport businesses may also be able to enter into collective agreements with unions to agree on the terms and conditions of regulated work by its workers. Similar to how an enterprise agreement operates, the terms and conditions in the collective agreements cannot be lower than a MSO.

Protections against unfair deactivation/termination and unfair contract terms

The Commission has released the “Digital Labour Platform Deactivation Code” (Code) and the “Road Transport Industry Termination Code” which provide protections for workers from unfair deactivation from a digital labour platform and protections for road transport contractors from unfair termination. These changes came into effect from 26 February 2025.

Eligible regulated workers are now able to file an unfair deactivation/termination claim in the Commission and the Commission may make orders that the worker has their access to the platform reactivated or be paid any lost income as a result of the deactivation.

Digital platform operators must also follow a process before modifying, suspending or deactivating a worker from its platform. For example, the Code requires digital platform operators to provide a worker with a “deactivation warning” before deactivating a worker (subject to certain exceptions) to place the worker on notice that they are at risk of losing access to the platform.

If a digital platform operator is considering the deactivation of a worker’s access to the platform, it is required to provide written notice to the worker before the deactivation occurs. The notice must state that the worker is at risk of being deactivated from the platform for a reason that relates to the worker’s capacity or conduct and the digital platform operator is considering terminating the worker’s access to the platform, that the worker has the right to respond to the notice and request a discussion with a representative of the digital platform operator within a reasonable period of time, and that the worker may appoint a person to be a support person or a representative.

If a worker requests a discussion with a representative, the digital labour platform operator must provide a human representative to consider the worker’s response (if any) and make any enquiries (if any) that are reasonably warranted. This means that a digital platform operator has some flexibility in determining whether it is required to further investigate the matter on a case-by-case basis.

The Code also provides some examples of conduct that may constitute a valid reason for deactivation, including a failure to meet platform obligations, inappropriate physical or verbal conduct, misuse of information, fraud, dishonesty or deliberate damage to a person’s property, or a failure to comply with licensing or accreditation requirements.

Lastly, the Commission has powers to amend or set aside a services contract if it is found that the terms and conditions of the contract are unfair.

Key takeaways

Businesses should be mindful that there is more scrutiny over the gig economy and the road transport industry. The new ability for regulated workers to make an unfair deactivation/termination claim mirrors the unfair dismissal jurisdiction that is currently available for employees. Businesses should therefore treat the modification, suspension and deactivation of any workers from its platform in a careful manner, ensuring that procedural fairness is given to the worker during the deactivation process and that it meets its obligations in accordance with the FW Act and the applicable code.

More generally, the societal shift from viewing vulnerable gig workers as “independent contractors” in business on their own account to “employee-like” means that businesses engaging such workers need to adapt.

It is also noteworthy that several applications have been made in the Commission for MSOs, particularly for workers involved in transporting goods, food and beverage deliveries and road transport. Businesses in these industries should remain updated on developments from the Commission throughout 2025.