New workplace laws due to take effect this month are set to bring non-employees who work with digital platforms like food delivery apps and in the road transport industry under the umbrella of the Fair Work Commission (FWC).

The changes follow the passing of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) earlier this year, which we discussed in a previous Insight.

Here we explore in greater detail changes due to take effect on 26 August 2024 that affect so-called `gig workers' and regulated road transport contractors and what employers need to consider.

Who is covered?

The amendments afford a number of new protections for two sets of 'regulated workers', being employee-like workers (commonly known as 'gig workers') and regulated road transport contractors.  The defining criteria for each of these regulated workers is listed in the table below.

The 'road transport industry' is broadly defined to include the industries covered by the Road Transport and Distribution Award 2020, the Road Transport (Long Distance Operations) Award 2020, Waste Management Award 2020, the Transport (Cash In Transit) Award 2020 and the Passenger Vehicle Transportation Award 2020.

Minimum standards

The FWC will have power to make minimum standards for regulated workers, just as modern Awards contain minimum standards for employees.  

Additionally, the FWC will also have powers to make orders setting specific minimum standards for regulated road transport contractors and employee-like workers in the road transport industry who are part of a road transport contractual chain.  These orders may impose obligations not just on the other party to a services contract with regulated road transport contractors and employee-like workers in the road transport industry but also parties who are part of a broader contractual chain relating to that services contract.

The table below shows the matters that the legislation expressly states may be covered in each type of minimum standard as well as content expressly prohibited.  Standards may also cover other matters not expressly stated, provided they are not prohibited.

The FWC may also make minimum standards guidelines in relation to the matters outlined above.  Penalties will apply for breach of a minimum standards order but not for a breach of a guideline.

Unfair termination/deactivation

Regulated workers earning under a contractor high income threshold will also have access to a pseudo unfair dismissal jurisdiction.  

Specifically, employee like workers will have protection from being unfairly deactivated from a digital labour platform (which includes having access suspended or modified) if they have been performing work through the digital labour platform on a regular basis for a period of at least six months.

Regulated road transport contactors who have been performing work in the road transport industry under a contract or series of contracts, under which a road transport business receives services for a period of at least six months, will be protected from unfair termination.

Similar to the current unfair dismissal jurisdiction, in determining whether a deactivation or termination was unfair, the FWC will consider whether there was a valid reason for the termination or deactivation and whether procedural fairness has been afforded by following processes specified in termination codes to be developed by the Fair Work Commission.

If a deactivation is found to be unfair the FWC will be able to order reactivation and restoration of lost pay for the period of deactivation.  Unlike in the employee unfair dismissal jurisdiction, the FWC will not be able to order compensation as an alternative to reactivation.

For unfair terminations the FWC can order that a new contract be formed on either the same terms as the original contract or with any variations ordered by the FWC and that lost pay be restored.  Alternatively, the FWC may make an order that compensation be paid to the regulated road transport contractor.

Collective agreements

The FWC will also have power to approve a collective agreement made between an organisation representing the industrial interests of regulated workers and either a digital labour platform operator or a road transport business (being a business that receives services under a services contract involving the performance of work in the road transport industry).  

Unlike enterprise agreements covering employees under the FW Act, a collective agreement does not need to be approved through a vote of regulated workers proposed to be covered.  Instead, either of the negotiating parties (typically an authorised representative of workers and the relevant business) may propose that the other party sign the agreement.  A collective agreement is made when both negotiating parties have signed the collective agreement.

The FWC will have power to deal with disputes arising about the making of a collective agreement but not through arbitration, meaning it will not be able to make a binding decision resolving a dispute.

Actions and recommendations

Businesses operating a digital labour platform or in the road transport industry may wish to prepare for the implementation of these changes by:

• following and being involved in consultation on the FWC's making of standards and guidelines for regulated workers when it commences;
• developing internal procedures or guidelines for the deactivation or termination of regulated workers to minimise the risk of successful unfair termination or deactivation claims;
• developing a bargaining strategy to be prepared in the event of an authorised representative of regulated workers seeking to negotiate a collective agreement.

For more information or assistance, please contact our Employment, Workplace Relations and Safety team.

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