About regulated worker minimum standards orders and guidelines

We can set minimum standards for regulated workers, who are either employee-like workers or regulated road transport contractors. Regulated workers are engaged under a services contract to perform work. This means they are independent contractors, not employees.

Employee-like worker is defined at section 15P of the Fair Work Act 2009. Regulated road transport contractor is defined at section 15Q of the Fair Work Act 2009.

Regulated worker minimum standards can be in the form of orders or guidelines.

Minimum standards orders contain legally enforceable rights and obligations that regulated workers and regulated businesses must follow. Regulated business is defined at section 15F of the Fair Work Act 2009.

Employee-like worker minimum standards orders can apply to employee-like workers and digital labour platform operators.

Road transport minimum standards orders can apply to regulated road transport contractors and road transport businesses. Road transport business is defined at section 15R of the Fair Work Act 2009.

Minimum standards guidelines are standards for regulated workers and regulated businesses, but are not legally enforceable.

Before we set minimum standards, we must consider the minimum standards objective. The minimum standards objective can be found at section 536JX of the Fair Work Act 2009.

Before we set road transport minimum standards, we must consider the minimum standards objective and the road transport objective. The road transport objective can be found at section 40D of the Fair Work Act 2009.

An expert panel for the road transport industry must consider the road transport objective, including when considering employee-like worker minimum standards.

Before making a minimum standards order we must:

• be satisfied there has been genuine engagement with the parties to be covered
• follow a consultation process.

For employee-like worker minimum standards orders we must also:

• be satisfied that the people who will be covered by the order are employee-like workers
• consider choice and flexibility in working arrangements.

For road transport minimum standards orders we must also:

• consult with the Road Transport Advisory Group
• consider the commercial realities of the road transport industry
• be satisfied that making or varying the order will not unduly affect the viability or competitiveness of owner drivers or other similar persons.

Minimum standards guidelines are non-legally binding standards for regulated workers and businesses.

The engagement or consultation obligations that apply to making minimum standards orders do not apply to making guidelines.

We decide what terms and conditions will be set as minimum standards. There are rules about what can and cannot be included.

Terms we must include

Minimum standards orders and guidelines must include terms about the types of workers and businesses and types of work the order or guideline will cover.

Orders must also include a term about how to settle disputes that may arise under the order.

Terms we can include

Minimum standards orders and guidelines can include terms about:

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

We do not have to include these terms and we can also decide to include other terms.

Terms we cannot include

Minimum standards orders and guidelines cannot include terms about:

• overtime rates
• rostering arrangements
• matters of a commercial nature that do not affect the terms and conditions of engagement of regulated workers covered by the order
• matters relating to work health and safety that are comprehensively dealt with by other laws
• terms that would change the form of engagement or status of workers covered by the standards order (including by deeming them employees)
• for road transport minimum standards orders only, matters relating to road transport otherwise comprehensively dealt with by the Heavy Vehicle National Law, the Road Traffic (Vehicles) Act 2012 (WA), the Traffic Act 1987 (NT) or other laws.

Terms included only when appropriate (employee-like worker minimum standards orders only)

There are some terms we cannot include in an employee-like worker minimum standards order unless it is appropriate. This includes terms about:

• penalty rates for work performed at particular times or on particular days (including, but not limited to, loadings and shift allowances)
• payment for time before or between engagements on a digital labour platform
• minimum periods of engagement or a minimum payment referable to a period of minimum engagement.

Digital labour platform is defined at section 15L of the Fair Work Act 2009.

To include these terms we must consider what is covered by the order or guidelines. We must take into account:

• the type of work covered
• the digital labour platform operators covered.

A digital labour platform operator is defined at section 15M of the Fair Work Act 2009.