Protections for gig workers: Understanding the new unfair deactivation laws
The new unfair deactivation laws are a significant step forward for gig workers in Australia. They address long-standing issues concerning arbitrary treatment by digital labour platforms, providing much-needed protections for those who rely on these platforms for their livelihoods. If you have been unfairly deactivated or removed from a digital platform you may now have the right to challenge this decision. By ensuring platforms follow fair processes and giving workers the right to challenge unfair decisions, these laws aim to create a more equitable and sustainable gig economy.
To clarify further, digital platforms are the online apps or websites that connect workers with customers or clients to perform specific tasks or services. These platforms operate across various industries, and workers are typically classified as independent contractors rather than employees, with examples including Uber, DiDi, Uber Eats, Deliveroo, Menulog, Milkrun, Airtasker, Upwork and Fiverr.
Who is Protected from Unfair Deactivation?
The new laws protect employee-like workers who meet the following criteria:
You are an employee-like worker:
You perform work through a digital labour platform (e.g., an app or website used to find work).
You are not an employee but have at least two of the following characteristics:
Low bargaining power: You have little ability to negotiate your pay or working conditions.
Low pay: You earn at or below the rate paid to employees doing similar work.
Low authority: You have limited control over how you perform your work.
You have worked regularly for at least 6 months: Work performed before 26 August 2024 does not count toward the 6-month requirement.
Your annual earnings are below the contractor high income threshold: If you earn above this threshold which currently sits at $175,000, you are not eligible to make an unfair deactivation claim.
Time limit for lodgement: You must apply within 21 calendar days of the deactivation.
What Does “Deactivation” Mean?
You have been deactivated if:
You performed work through a digital labour platform.
The platform operator changed, suspended, or terminated your access to the platform.
You are no longer able to use the platform to find or perform work.
The Digital Labour Platform Deactivation Code:
This Code sets out the process platform operators must follow when considering deactivating an employee-like worker. Platforms must follow the Code if:
You are protected from unfair deactivation.
The deactivation is due to your capacity (inability to do the job) or conduct (misbehaviour).
The Code does not apply if the deactivation is due to serious misconduct.
Key Elements of the Code:
Valid reasons for deactivation: The Code outlines what may or may not be a valid reason for deactivation.
Right to respond: You must be given the opportunity to respond to the reasons for deactivation.
Communication: Platforms must communicate clearly and transparently with you throughout the process.
If the Fair Work Commission (FWC) finds that a platform did not follow the Code, it can then consider whether the deactivation was unfair.
How is Unfair Deactivation Determined?
The FWC will consider the following when deciding if your deactivation was unfair:
Was there a valid reason?
Did the deactivation relate to your capacity or conduct?
Was the Code followed?
Did the platform follow the processes outlined in the Digital Labour Platform Deactivation Code?
Other relevant factors:
The FWC may consider any other factors it deems relevant to the case.
Exceptions:
Your deactivation is not unfair if:
It was due to serious misconduct.
Your access was changed or suspended for 7 business days or less, and the platform had reasonable grounds to believe it was necessary to:
Protect health and safety.
Address fraud or dishonesty.
Ensure you have the correct license or accreditation.
Investigate or refer matters to a law enforcement agency.
What Can the FWC Do If Your Deactivation Was Unfair?
If the FWC finds that:
You are protected from unfair deactivation, and
Your deactivation was unfair,
it may:
Order your reactivation: The platform must restore your access.
Award lost money: The platform may be ordered to pay you for any income lost due to the deactivation.
The FWC cannot order compensation as an alternative to reactivation.
Next Steps for Gig Workers
It’s important to:
Know Your Rights: Familiarise yourself with the new laws and how they apply to you.
Document Your Work: Keep records of your work, communications with the platform, and any incidents that may lead to deactivation.
Take Action: If you’re unfairly deactivated, don’t hesitate to reach out to Workplace Justice.
