Proposed amendments to the Fair Work Act 2009 (Cth) (FW Act) outlined in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) are targeted at improving terms and conditions for "employee-like workers" in the gig economy.1
The key amendments are:
- (a) New definitions of "employee-like worker", which is intended to capture individual contractors with low bargaining power and a low degree of authority over the performance of work; and "digital platform operator", which is intended to capture on-line applications or systems relating to the provision of labour services.
- (b) New powers for the Fair Work Commission (FWC) to make binding minimum standards orders and non-binding minimum standards guidelines. Contravention of a minimum standards order would attract civil penalties.
- The proposed scope for the orders and guidelines is broad and may include (but is not limited to) terms dealing with payment terms, deductions, working time, record-keeping, insurance, consultation, representation, delegates' rights and/or cost recovery.
- Orders and guidelines cannot include terms about overtime rates, rostering arrangements, matters primarily of a commercial nature that do not affect the terms and conditions of engagement of employee-like workers, and terms that would change the form of the engagement or status of employee-like workers.
- (c) New protections for "employee-like workers" in relation to "unfair deactivation" that mirror the unfair dismissal protections in the FW Act for employees. As with the unfair dismissal jurisdiction, the intention is to provide a "fair go all round". The protections will be available to employee like workers who earn below the contractor high-income threshold (which will be prescribed by regulations).
- (d) New consent-based collective agreements for employee-like workers. Only one platform operator (and not multiple platforms bargaining together) will be able to make a collective agreement with one organisation representing regulated workers proposed to be covered by the agreement.
- (e) New protections against unfair contract terms for employee-like workers, with the FWC having the power to deal with disputes about unfair contract terms in services contracts by making orders to set aside, vary or amend all or part of the contract that is unfair and which, in an employment relationship, would relate to a "workplace relations matter" (such as remuneration, allowances, leave entitlements, hours of work, making, disputes between employees and employers, industrial action by employees or employers). The protections will be available to employee-like workers who earn below the contractor high-income threshold (which will be prescribed by regulations).
- (f) New rights for workplace delegates including protection against adverse action for exercising those rights. Workplace delegates would be entitled to the right to reasonable communication with members and eligible members that they represent, reasonable access to the workplace, and reasonable access to paid time during normal working hours for the purposes of related training.
For more information about the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 and how the changes might apply to your organisation, please contact Lander & Rogers' workplace relations and safety legal experts.
Image by Szymon Fischer on Unsplash.
1 The reforms also apply to workers in the road transport industry.
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