From 26 August 2024, the Fair Work Commission will have the power to set minimum standards for employee-like workers in the gig economy and regulated road transport contractors. These will establish award-like conditions for gig workers and road transport contractors.
Affected businesses will need to comply with minimum standard orders – failure to do so will be a contravention of the Fair Work Act 2009 (Cth) (the Act) and expose the contravening party to civil penalties.
Who does this affect?
'Employee-like workers'
A worker is an 'employee-like worker' if the person performs digital platform work under a services contract and is not an employee and if they satisfy at least two of the following conditions:
- the person has low bargaining power;
- the person is paid at or below the rate of an employee performing comparable work;
- the person has a low degree of authority over the performance of the work;
- other conditions prescribed by the regulations.
'Regulated road transport contractors'
A worker is a regulated road transport contractor if the person performs work under services contract, and that person:
- personally performs all or a significant majority of the work under the contract;
- does not perform the work as an employee
- works in the road transport sectors covered by modern awards, including road transport and distribution, long distance operations, waste management, cash in transit and passenger vehicle transportation; and
- is not an 'employee-like worker'.
A person or an organisation representing regulated workers or a business who engages them can apply to the FWC for a minimum standard order, or the FWC can make an order on its own initiative.
The FWC will be able to make minimum standards orders which will be binding, and minimum standards guidelines which will not be binding.
What can minimum standard orders be about?
Minimum standards orders and guidelines must set out who they cover by identifying:
- the type of work covered;
- the class or classes of regulated businesses covered; and
- the class or classes of regulated workers covered.
Minimum standard orders may include terms about the following matters:
- payment terms;
- deductions;
- record-keeping in relation to matters covered by or required by the Act, or by an order or instrument made under the Act, being matters that concern regulated workers or regulated businesses;
- insurance;
- consultation;
- representation;
- delegates' rights;
- cost recovery.
Orders cannot include terms about:
- overtime rates;
- rostering arrangements;
- matters of a commercial nature not affecting the terms and conditions regulated workers;
- the way workers are engaged e.g. a term that deems them to be an employee;
- work health and safety maters covered by Federal or State and Territory laws;
- matters prescribed by the regulations.
The FWC cannot include terms about certain subject matter unless it is appropriate to do so. These are terms about:
- penalty rates;
- payment for time before or between eAngagements on a digital labour platform;
- minimum periods of engagement.
Businesses should be aware and ready
Businesses in these industries must be aware of any minimums standards orders applicable to them, to ensure compliance with the Act.
Businesses operating in these industries should seek out further information and if necessary, obtain legal advice about how the changes may affect them. lease contact our Workplace law team for further information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.