23 November 2023
The Albanese government’s Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) contained several proposed changes concerning gig economy workers. First tabled in September 2023, the Bill seeks to make conditions fairer for ‘employee-like workers’ who do not benefit from minimum entitlements under the National Employment Standards (NES). Specifically, the Bill proposes to introduce minimum standards for employee-like workers who obtain work via a digital labour platform.
While the idea of minimum standards has been welcomed by gig workers and platforms alike, the Bill itself has been subject to scrutiny. After discussions with interested parties such as Uber, Menulog and Doordash, Workplace Relations Minister Tony Burke has agreed to change the way the Bill regulates gig economy workers to better reflect the industry’s operational requirements.
The Bill originally gave the Fair Work Commission (FWC) the power to make minimum standards orders for gig economy workers, who currently do not have access to the safety net minimum pay and conditions provided under the Fair Work Act 2009 (Cth) (FW Act).
However, stakeholders noted that the minimum standards would need to preserve workers’ flexibility and autonomy, without inflating operational costs for users. Accordingly, the FWC will be required to develop the minimum standards in consultation with affected parties to ensure that the standards set are appropriate for gig platforms and workers alike.
It is also understood the FWC will have a strict scope within which they can set the minimum standards. For example, minimum standards relating to insurance and pay have been suggested, as these are possible to introduce without changing the way in which gig economy workers are engaged. In contrast, setting standards for traditional employment conditions, such as rostering and overtime, are unlikely to be permitted. The underlying policy for these changes is to achieve a balance between creating minimum entitlements for workers who choose their hours and ensuring the gig economy’s flexibility.
In addition to the above, the Bill proposes to identify ‘employee-like’ workers based on indicia that will be introduced into the FW Act, making it clear to whom the minimum standards will apply. The Bill also seeks to give gig workers the right to seek reinstatement if they’ve been unfairly deactivated from a platform however the way in which this would function is still being developed.
The provisions of the Bill in relation to casual employment have changed. The Bill originally provided that employees with a regular pattern of work could not be classified as casual employees. However, following negotiations with the Australian Hotels Association, Minister Tony Burke has committed to allowing casual employees undertaking regular and systematic work to maintain their casual classification. Mr Burke also removed the Bill's civil penalty provision for misrepresentation of casual employment.
While provisions relating to gig economy workers and casual employees are still the subject of debate, the Senate has passed four bills introduced by crossbenchers Jacqui Lambie and David Pocock which will lead to the enactment of non-contentious aspects of the Bill.
The remainder of the Bill has been referred to the Senate Education and Employment Legislation Committee for inquiry and report by 1 February 2024. It is predicted that the legislation will not take effect until July 2024.
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