Closing loopholes no.2 – The Fair Work Commission and “Employee-like” workers

From 26/8/24, the Fair Work Commission (FWC) will have a new jurisdiction which includes the ability to set minimum standards for “employee-like workers” who perform work for a digital platform and will give those workers access to rights and powers that had previously been unavailable to them. This is part of the Federal Labor Government’s plan to address issues relating to the “gig economy”.

Who does it affect?

The first change being made is to define what an “employee-like worker” is as distinct from an employee and an individual contractor. A worker is considered “employee-like” if they meet two or more of the following characteristics:

• They have low bargaining power
• They have low authority over performance of work
• They receive remuneration at or below the rate of employees performing similar work
• Have any other characteristic prescribed by regulations

What are the changes?

Previously workers in this space had few rights but they will now have access to the following:

•  Minimum standards –  A set of minimum standards can now be set to apply to these workers following application by a registered organisation representing employee like workers and their businesses, the Minister for Employment and Workplace Relations, or the FWC. There are limits to what can be included in Minimum Standards and the FWC can only include terms relating to penalty rates, minimum engagement and other similar matters if it is appropriate for the work being performed. Likewise they cannot include terms relating to overtime and rostering.
• Collective bargaining – Employee-like workers will also be able to collectively bargain through a registered organisation representing them. These will be similar to enterprise agreements and will require the negotiating parties to consult and explain the terms of the agreement before they are approved by the FWC.
  
• Unfair deactivation – Employee-like workers will now be able to apply to the FWC for assistance if they believe they have been unfairly de-activated from a digital platform. This will be available to employee-like workers who have been on a contract, or series of contracts, for at least 6-months with the digital platform.
• Workplace delegates rights – Workplace delegates will now have additional protections while performing their duties and will have a right to reasonable communication with members of their employee organisation and anyone eligible to be members regarding any industrial relations concerns and they will also have a right to reasonable access to workplace facilities. There will additionally be a “Digital Labour Platform Deactivation Code” developed by the Minister of The Department of Employment and Workplace Relations to guide both sides on valid deactivations.

These changes are a significant departure from the current norm for businesses operating in this space. To assist businesses and employee-like workers with the transition, the FWC has set up a Regulated Worker User Group to engage businesses and employee-like workers and explain the changes and keep everyone updated on the progress of the implementation of said changes. Click here for more information.

If you need any assistance with this or similar matters, please call us on 1300 108 488 or email us at enquiries@ridgelinehr.com.au.