Regulated workers and businesses hub

The laws came into operation on 26 August 2024. 

No minimum standards orders have been made but there are applications before us.

• you may view the applications and stay up to date on their progress via our applications pages
• you can stay up to date with the progress of these applications by subscribing to updates.

A regulated worker is someone who: 

• is engaged to perform the work under a services contract
• is engaged as an individual, or by way of a body corporate, trust or partnership
• performs all, or most, of the work under the services contract themselves
• is not an employee, and
• meets the requirements to be
  • an employee-like worker, or
  • a regulated road transport contractor.

‘Services contract’ is defined in section 15H of the Fair Work Act 2009.

A contractor doing paid work through a digital labour platform, who has at least 2 of the following characteristics:

• low bargaining power in negotiating the services contract they work under
• payment at or below the rate received by an employee doing comparable work
• a low degree of authority over how and when they do the work.

A contractor who performs work in the road transport industry and is not an ‘employee-like worker’. 

Note: a person working in the road transport industry may be an employee-like worker if they get work through a digital platform and have at least 2 of the characteristics above.

A business may be a ‘regulated business’ if they:

• operate a digital labour platform, or
• are a road transport business.

A digital labour platform is an application (app), website or online system used to arrange, allocate or facilitate the provision of labour services, where the operator:

• engages the contractor’s services through the platform, or acts as an intermediary between users and contractors, and
• processes payments to the contractor directly, or through an associated entity or contractor.

'Digital labour platform’ is defined in section 15L of the Fair Work Act 2009.

A road transport business is a person (including a company) who receives services under a services contract for the performance of work in the road transport industry.

‘Road transport business’ is defined in section 15R of the Fair Work Act 2009.
‘Road transport industry’ is defined in section 15S of the Fair Work Act 2009.

Employees are not regulated workers and a minimum standards order cannot apply to them.  

However, employers who also engage employee-like workers or regulated road transport contractors, may now have both:

• an award or enterprise agreement that applies to their employees, and
• a minimum standards order or guidelines that apply to their employee-like workers or regulated road transport contractors. 

Minimum standards orders create enforceable rights and obligations for regulated workers and regulated businesses covered by the order. 

Minimum standards guidelines are similar, but are not legally binding.  

We can make minimum standards orders and guidelines on application or on our own initiative. 

We must follow the consultation process in the Fair Work Act. This includes ensuring there has been genuine engagement with the parties to be covered before making or varying a minimum standards order. 

The process will involve:

• publishing the application received
• issuing a Notice of Intent to make an order and draft order for comment
• giving affected entities a reasonable opportunity to make written submissions about the draft order
• publishing submissions received
• holding public hearings (optional)
• listening to affected entities and considering submissions.

• An affected entity is a person or body likely to be affected by the making of the minimum standards order. Affected entities may be identified by us based on the terms of the draft order or may be prescribed by the Fair Work Regulations.
• Before making any order, we must give all affected entities a reasonable opportunity to make submissions about a draft of the order. 

Visit the How we consult about regulated worker minimum standards page to learn more.

No. Having regard to the submissions made, and the factors required by the legislation, including the minimum standards objective, we may decide:

• to make the minimum standards order (as drafted or with minor amendments)
• not to make a minimum standards order
• to make non-binding minimum standards guidelines instead
• to significantly change the proposed order (which means issuing a new Notice of Intent and then consulting on the redrafted order).

The minimum standards objective is detailed at section 536JX of the Fair Work Act 2009.

We cannot make a minimum standards order unless there has been genuine engagement with the parties it will cover.

We must:

• provide a reasonable opportunity for affected individuals or entities to make submissions regarding any draft minimum standards order
• consult the Road Transport Advisory Group regarding any proposed road transport minimum standards orders and road transport contractual chain orders.

We may also:

• hold public hearings and listen to affected individuals and entities
• commission or undertake research.

Visit the How we consult about regulated worker minimum standards page to learn more.
See section 590 of the Fair Work Act 2009 regarding how we inform ourselves on matters.

If we decide to make a minimum standards order, there are rules about when the order can come into operation.

For road transport minimum standards orders, the time between issuing a Notice of Intent and the order taking effect must be at least 12 months. (We can reduce this to 6 months if urgent).

There is no set timeframe for when employee-like worker minimum standards orders start. However, we must be satisfied there has been enough time for a reasonable period of consultation after the Notice of Intent was issued, taking into account the unique nature of digital platform work.

The Fair Work Act sets out what can, and can’t, be in a minimum standards order. For example, minimum standards orders:

• must include terms about disputes and coverage
• may include terms about payment terms, deductions, record-keeping, insurance and other topics
• must not include terms about overtime rates, rostering arrangements, deeming provisions (changing employees to contractors or vice versa), or matters comprehensively dealt with by work health and safety laws
• must not change the form of a worker’s engagement from an independent contractor to an employee. 

See more information about what can be included in minimum standards orders.

Australia has a system of minimum standards and conditions of employment for employees employed within the Australian national workplace relations system. This is set out in modern awards, the National Employment Standards and for award/agreement free employees, the national minimum wage order. These minimum standards and conditions do not apply to regulated workers because they are not employees. 

When deciding whether to make minimum standards for regulated workers, we must take into account factors such as:

• the need for an appropriate safety net of minimum standards for regulated workers
• whether that safety net is fair and relevant and
• the safety net that applies to employees performing similar or comparable work.

This is outlined in the minimum standards objective found at section 536JX of the Fair Work Act 2009.

Additional considerations apply when deciding to make road transport minimum standards orders or road transport contractual chain orders (and sometimes other types of minimum standards orders if they relate to the road transport industry). These are outlined in the road transport objective, found at section 40D of the Fair Work Act 2009.

We have not decided what will be included in any minimum standards orders or guidelines. The Fair Work Act outlines terms we must, may and cannot include in any minimum standards order or guidelines.

There are currently 3 applications before us seeking minimum standards orders for regulated workers:

• MS2024/1 and MS2024/2 are applications for employee-like workers and road transport contractors involved in 'last-mile' package delivery respectively
• MS2024/3 is an application for employee-like workers involved in food and beverage delivery.

The terms sought include:

• superannuation payments
• terms relating to unpaid annual and personal/carers leave
• cost recovery rates for annual, personal/carers leave and public holidays.

We have not yet made a decision about these applications. 

You may view the applications, including the terms sought, and stay up to date on their progress, via our applications page.

The Fair Work Act outlines the matters we must consider in deciding whether to set a minimum standards order and outlines the processes it must follow.

For example, in deciding on whether to make a minimum standards order, we must be satisfied there has been genuine consultation with all parties covered by any new standard. This provides an opportunity to gather information and hear the views of those affected before making a decision. 

We are also required under the Fair Work Act to consider the minimum standards objective. This requires us to take into account the need for an appropriate safety net of minimum standards for regulated workers having regard to a range of matters. It includes the need to avoid unreasonable adverse impacts on:

• sustainable competition among industry participants;
• business costs, regulatory burden, sustainability, innovation, productivity or viability;
• administrative and compliance costs for industry
• the national economy
• persons or bodies that use or rely on the work performed by regulated workers or the services of regulated workers provided under services contracts.

When deciding whether to make road transport minimum standards orders or road transport contractual chain orders (and sometimes other types of minimum standards orders if they relate to the road transport industry) we must also take into account the road transport objective. 

The Minimum standards objective is found at section 536JX of the Fair Work Act 2009.
The road transport objective is found at section 40D of the Fair Work Act 2009.

For information about GST matters go to the Australian Tax Office (ATO). Federal, State, Territory governments provide information about mandatory insurance.

We have received 2 applications asking us to set minimum standards orders for employee-like workers:

• MS2024/1 is an application for minimum standards orders for employee-like workers involved in 'last-mile' package delivery
• MS2024/3 is an application for minimum standards orders for employee-like workers involved in food and beverage delivery.

Both applications include proposals about insurance coverage for employee-like workers. The Commission has not yet made a decision about these applications.

The ATO offers information on how the GST works.
The Fair Work Ombudsman has information on workers compensation.

Employee-like workers may be eligible to make an unfair deactivation application if all these conditions apply:

• they worked on a regular basis for a period of at least 6 months
• they are protected by law from unfair deactivation
• their deactivation was not consistent with the Digital Labour Platform Deactivation Code
• they were unfairly deactivated from a digital labour platform
• their annual earnings are less than the contractor high income threshold.

It is important to note that work performed before the laws started on 26 August 2024 does not count towards the 6 months. This means your deactivation must have occurred on or after 26 February 2025 to apply (6 months after the laws started).

See more information about who can make unfair deactivation application.

Regulated road transport contractors may be eligible to make an unfair termination application if all these conditions apply:

• they worked in the road transport industry under a services contract or a series of contracts for a period of at least 6 months.
• they are protected by law from unfair termination
• the termination was not consistent with the Road Transport Industry Termination Code
• they were unfairly terminated
• their annual earnings are less than the contractor high income threshold.

It is important to note that work performed before the laws started on 26 August 2024 does not count towards the 6 months. This means your deactivation must have occurred on or after 26 February 2025 to apply (6 months after the laws started).

See more information about who can make an unfair contract termination application.

Yes. Applications must be received by us within 21 calendar days of the deactivation or termination. We can sometimes extend this if there are exceptional circumstances but it's important to meet the deadline. 

See more information about applying for an unfair deactivation or termination remedy.

We can cancel or change unfair terms in a services contract if:

• your contract was entered on or after 26 August 2024
• the unfair terms would relate to ‘workplace relations matters’ if you were an employee
• their annual earnings are less than the contractor high income threshold.

If your pre-26 August 2024 contract is unfair, you may have options under the Independent Contractors Act 2006. These matters are heard by the Federal Circuit and Family Court of Australia (not the Commission). You should seek legal advice before commencing any legal process.

Find more information about unfair terms in services contracts.