Employee-like workers

Understand minimum standards and protections for employee-like workers in the gig economy.

On this page:

Overview

Some independent contractors (contractors) have special laws that apply to them. These contractors are called regulated workers.

There are 2 types of regulated workers:

  • employee-like workers doing digital platform work (employee-like workers)
  • regulated road transport contractors.

This page covers employee-like workers and the rules that apply to them.

Employee-like workers are contractors who perform digital labour platform work.

A contractor will only be an employee-like worker if they meet certain requirements explained on this page.

Employee-like workers can have additional rules about pay and conditions set by:

The Fair Work Commission (the Commission) is responsible for making orders and guidelines and registering collective agreements.

Employee-like workers have other rights and protections, including:

Who are employee-like workers?

Employee-like workers are a type of regulated worker.

An employee-like worker is a contractor who:

  • is a party to a services contract as an individual or:
    • a director (or family member of a director) of a body corporate that is a party to a services contract
    • a trustee of a trust in which one trustee is a party (in that capacity) to a services contract 
    • a partner in a partnership in which one partner is a party (in that capacity) to a services contract
  • performs all or most of the work under the services contract
  • performs work under a services contract:
    • using a digital labour platform (for example, a website or app), or
    • that was arranged or facilitated using a digital labour platform
  • doesn’t perform work under the services contract as an employee
  • has 2 or more of the following:
    • low bargaining power in negotiations relating to the services contract
    • receives the same or less pay than an employee would get
    • little authority over how they perform work.

The services contract must have a constitutional connection. For example, the services contract could be between the contractor and a constitutional corporation.

Employee-like workers could include contractors who:

  • deliver food or products ordered through a delivery app
  • do a task or service for a fee, like providing care services through a gig platform in the care sector, organised through a website or app.

Digital labour platform

A digital labour platform is an online app, website or system (platform) used to book or arrange the services, like the services above, where:

  • the operator of the platform engages contractors directly (or acts as an intermediary between users or customers and contractors) through the platform
  • payments for the work performed by contractors are processed by:
    • the operator
    • an associated entity of the operator, or
    • a contractor engaged by the operator, or an associated entity of the contractor.

The operators of a digital labour platform are called ‘regulated businesses’.

Minimum standards

The Commission can set standards for employee-like workers by making:

  • minimum standards orders (MSOs)
  • minimum standards guidelines (MSGs)

These are sets of rules about pay and conditions for employee-like workers.

They aren’t the only rules that can apply to regulated workers and businesses. Other rules can apply, including:

MSOs are legally binding. If they aren’t followed, an individual or business can face penalties.

MSGs aren’t legally binding.

Employee-like workers who work in road transport contractual chains in the road transport industry may also be covered by other minimum standards. For more information, visit Road transport contractual chain orders and guidelines.

Regulated worker minimum standards cases

Access a list of current regulated worker minimum standards cases from the Commission website: Regulated worker minimum standards cases.

The Commission will publish key information and documents for each case as they become available.

What can be included

MSOs and MSGs can deal with the same workplace matters.

They must explain who is covered by the MSO or MSG. An MSG can’t be made to cover the same workers, businesses and matters that are already covered by an MSO.

They can include rules about a range of matters, including:

  • payment terms
  • deductions
  • record-keeping
  • insurance
  • consultation
  • representation
  • delegates’ rights
  • cost recovery.

They must include rules about dispute resolution.

They can't include rules about:

  • overtime rates
  • rostering arrangements
  • matters that are primarily of a commercial nature and don’t affect the terms of engagement of the worker
  • matters that would change the form of engagement or status of the worker (for example, that would deem the worker to be an employee)
  • workplace health and safety matters that are dealt with by other federal, state and territory laws.

How MSOs and MSGs are made

The Commission can make these orders and guidelines on its own initiative or by application.

An application for an MSO or MSG can be made by:

  • a registered organisation, such as a union or employer association, that represents workers or businesses who would be covered by the MSO or MSG
  • a business that would be covered by the MSO or MSG, such as a ride share company
  • the Minister for Employment and Workplace Relations.

Find out more from the Commission: Regulated worker and contractual chain standards.

Road transport contractual chain orders and guidelines

Some employee-like workers working in the road transport industry work in road transport contractual chains.

A road transport contractual chain is a series of contracts or arrangements for performing work in the road transport industry.

Road transport contractual chains can be covered by orders or guidelines, similar to MSOs and MSGs.

Employee-like workers can be covered by:

  • a road transport contractual chain order or guidelines while performing work in a road transport contractual chain
  • minimum standards orders or guidelines while working for a regulated business.

An employee-like worker’s pay and conditions may change depending on the order or guidelines that apply to the work they are currently performing.

For more information, visit Road transport contractual chains.

Collective agreements

Collective agreements set terms and conditions for employee-like workers in a similar way to enterprise agreements.

These agreements can be made by consent between:

  • a digital labour platform operator
  • an organisation that represents the industrial interests of employee-like workers, like a union.

Like enterprise agreements, consultation must take place before a collective agreement is registered.

The Commission is responsible for registering collective agreements and dealing with disputes.

Employee-like workers and digital platform operators must comply with a collective agreement. They can face penalties if they don’t.

For more information, visit the Commission’s page: About collective agreements.

Unfair deactivation

Digital labour platform operators may decide to suspend or terminate an employee-like worker’s access to the platform, stopping them from using the platform for work. This is referred to as ‘deactivation’ from a platform.

Digital Labour Platform Deactivation Code

The Digital Labour Platform Deactivation Code supports protections for employee-like workers from unfair deactivation from a digital labour platform.

From 26 February 2025, digital platform businesses covered by the Code must follow a fair process before deactivating an employee-like worker.

Learn more about the Code and unfair deactivation from the Commission: Unfair deactivation for regulated workers.

Eligible employee-like workers who believe they have been unfairly deactivated from a digital labour platform can apply to the Commission for a remedy.

If the Commission determines that a deactivation is unfair, it may order that the employee-like worker:

  • has their access to the platform reactivated
  • be paid any income they lost because of the deactivation.

To be eligible, the worker must meet certain criteria. This includes that they:

Employee-like workers need to apply to the Commission within 21 days of the deactivation.

For more information, access the Commission’s page on Unfair deactivation for regulated workers.

Unfair terms in contracts

Employee-like workers or an organisation representing their industrial interests, like a union, can apply to the Commission for a remedy if:

  • they think their services contract contains an unfair contract term about certain workplace relations matters, and
  • their services contract was entered into on or after 26 August 2024.

Employee-like workers can apply to the Commission if they earn less than the contractor high income threshold.

In deciding if a contract term is unfair, the Commission can consider a range of factors relating to the contract, including:

  • the bargaining powers of the parties
  • whether the remuneration under the contract is less than what an employee would get for similar work
  • whether the term is harsh, unjust or unreasonable.

If the Commission decides that one or more contract terms is unfair, they can make an order to set aside, amend or vary all or part of the contract.

For more information, visit the Commission’s page: Independent contractor disputes about unfair contract terms.

Workplace delegates

Employee-like workers can be workplace delegates. Workplace delegates have certain rights in relation to representing employee-like workers.

A workplace delegate (delegate) is a person appointed or elected under the rules of an employee organisation (for example, a union) to represent members of the organisation:

  • who perform work in a particular regulated business, or
  • who perform work for, or that has been arranged or facilitated by, a particular regulated business (for example, a digital labour platform operator).

Regulated businesses can’t take certain actions against a delegate who is an employee-like worker.

Delegates can represent the industrial interests of employee-like workers. Further, employee-like workers can be appointed or elected as a delegate if the rules of the particular employee organisation allow it.

Delegates' rights

Delegates have certain unique rights.

Delegates are entitled to represent the industrial interests of employee-like workers who are current or potential union members. This includes in disputes with regulated businesses.

Delegates are also entitled to reasonable:

  • communication with employee-like workers who are members or potential members in relation to their industrial interests
  • access to the workplace facilities provided by a regulated business for the purpose of representing those workers’ industrial interests.

Minimum standards orders may include delegates’ rights terms. Regulated businesses must comply with these terms.

Protections for delegates

Regulated businesses can’t take certain actions against a delegate who is an employee-like worker and who they:

  • engaged under a services contract, or
  • arranged for or facilitated entry into a services contract under which the delegate performs work.

A regulated business can’t:

  • unreasonably refuse to deal with such a delegate
  • knowingly or recklessly make a false or misleading representation to such a delegate, or
  • unreasonably hinder, obstruct or prevent such a delegate exercising their rights.

Employee-like workers who are also delegates are also protected from adverse action taken because of their delegates rights.

Access our Workplace delegates page for other information on these rights and protections.

Industrial action

Employee-like workers are protected from adverse action because they engage in certain types of industrial action if they are:

  • covered by an MSO, or
  • included in an application for an MSO.

Industrial action can happen when employee-like workers and digital labour platform operators are trying to resolve a dispute.

Access other general information from our Industrial action page.

Sham contracting

While employee-like workers may have some similar characteristics to an employee, they are still contractors.

Contractors aren’t employees. If a business or individual tells someone they’re a contractor when they’re actually an employee, this may be sham contracting.

Sham contracting is illegal. Find out more at Sham contracting.

Help available

There is help available for employee-like workers, including from us (the Fair Work Ombudsman) and other government bodies. Go to Other help for regulated workers.

Source reference: Fair Work Act Division 3A, Part 1-2, Chapter 1, Chapter 3A, Chapter 3B

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